Simpson v. Brennan

Filing 55

ORDER that the Agency's motion for summary judgment (Doc. 52 ) is granted. Because there are no remaining claims in this case, the Clerk of Court shall enter judgment accordingly and terminate this action. See document for complete details. Signed by Judge Dominic W Lanza on 11/17/2022. (WLP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pedro A. Simpson,

No. CV-20-00495-PHX-DWL

Plaintiff,

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ORDER

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v.

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Louis DeJoy, Postmaster General, United
States Postal Service,

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Defendant.

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Pedro A. Simpson (“Simpson”) has sued his former employer, the United States
Postal Service (the “Agency”), for employment discrimination. Now pending before the
Court is the Agency’s motion for summary judgment on Simpson’s remaining claims.
(Doc. 52.) For the following reasons, the motion is granted.

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BACKGROUND
I.

Factual Background
The background facts below are taken from the parties’ summary judgment

submissions and other materials in the record and are uncontroverted unless otherwise
noted. Additional facts bearing on the parties’ specific summary judgment arguments are
addressed in the Discussion portion of this order.
In 1976, Simpson began his career with the Agency. (Doc. 52-1 at 72.) Simpson
eventually became the Manager of Information Systems for the Agency’s Arizona-New
Mexico District. (Id. at 77 ¶ 6.)
In March 2016, Simpson underwent surgery for cancer. (Doc. 53-1 ¶ 1.) Simpson

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shared news of his condition with his supervisor, District Manager John DiPeri (“DiPeri”).

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(Id.) At some point before February 10, 2018, Simpson began working remotely.1

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After DiPeri was detailed to a different region, Gail Hendrix (“Hendrix”), a District

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Manager from Missouri, stepped in as the “Acting District Manager for Arizona-New

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Mexico” from February 10, 2018 to July 6, 2018. (Doc. 52-1 at 76 ¶ 3 .)2

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In April 2018, Simpson and Hendrix met telephonically for Simpson’s mid-year

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performance review. (Id. at 77 ¶ 7.)3 Following this review, Hendrix asked Lerene Wiley

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(“Wiley”), the District’s Human Resources Manager, to initiate the “reasonable

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accommodation process” through the “District Reasonable Accommodation Committee”

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(“DRAC”). (Id. at 77-78 ¶ 9.)

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Simpson met with DRAC on June 27, 2018. (Id. at 5 ¶ 13.) This meeting resulted

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in an agreement that Simpson would return to work at the District Office but that his hours

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would be shifted to avoid peak traffic times. (Id. at 5 ¶¶ 13-16. See also id. at 37 [DRAC

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Medical Summary Information Sheet, describing Simpson’s restrictions as “Driving

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limited to short distances daily,” “Ability to travel to and from a distant office environment

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is impaired by unpredictable need for immediate access to a restroom,” and “Capable of

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driving intermittently as flare up and frequency of symptoms permit (presently

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improved)”].)

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Hendrix and Simpson then spoke by phone and agreed he would return to the office

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on July 9, 2018. (Id. at 5 ¶ 17. See also id. at 41-42 [Hendrix’s notes from July 3, 2018

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The Agency describes this shift as occurring “at some point prior to April 2018.”
(Doc. 52 at 2.) Simpson does not provide an exact date but indicates it was after his cancer
surgery in March 2016 and before DiPeri’s departure. (Doc. 53-1 ¶ 1.) Other evidence in
the record indicates that DiPeri’s departure occurred sometime before February 10, 2018.
(Doc. 52-1 at 76 ¶ 3.)
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In his response, Simpson makes various allegations regarding why Hendrix became
Acting District Manager and her work performance, none of which are material to the
summary judgment analysis.
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Although the parties dispute whether Hendrix knew Simpson was working remotely
before this meeting, they agree Hendrix possessed this knowledge afterward. (Compare
Doc. 52 at 2 [stating Hendrix “learned that [Simpson] was not coming into the office at all”
at the mid-year review meeting in April 2018] with Doc. 53 at 3 [including this statement
as a disputed fact and alleging Simpson “virtually attended staff meetings wherein Gail
Hendrix was acting as a DM”].)
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call].) However, Hendrix was replaced by Richard “Marty” Chavez (“Chavez”) as Acting

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District Manager on July 6, 2018, before Simpson’s return. (Id. at 95-96 ¶¶ 3, 6.)

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On July 9, 2018, Simpson returned to work. (Id. at 6 ¶ 19.) At this time, Chavez

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“knew [Simpson] had an altered schedule as a reasonable accommodation but did not know

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why.” (Id. at 96 ¶ 6.)

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In September 2018, Chavez and Simpson agreed that Simpson would begin

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reporting to the office at 5:00 AM and leaving in the early afternoon (according to the

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Agency, 1:30 PM; according to Simpson, 1:00 PM). (Doc. 52-1 at 96 ¶ 7; Doc. 53-1 ¶ 3.)

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Although the exact reason for this arrangement is disputed (as is who suggested the altered

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schedule), the parties agree that it was based, at least in part, on Simpson’s cancer

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treatments. (Doc. 52-1 at 96 ¶ 7; Doc. 53-1 ¶ 3.)4

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In the spring of 2019, Simpson was asked to provide technology support for a Postal

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Service conference in Albuquerque, which was scheduled for June 6, 2019. (Doc. 52-1 at

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96-97 ¶¶ 11-13.) On June 4, 2019, Renee Chaney (“Chaney”), one of the event organizers

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and a Postal Service employee, emailed Simpson asking to check out two flash drives for

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the event. (Id. at 110.) In response, Simpson suggested Chaney use “DVD disk[s]” instead

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of flash drives or use an already-provided flash drive. (Id.)5

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Later that afternoon, Chaney emailed Simpson a list of requests for various forms

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of technology assistance for the event. (Id. at 102-04.) Simpson addressed Chaney’s

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The Court notes that Simpson’s brief describes the new schedule as coming into
effect “in the spring of 2019” rather than in September 2018. (Doc. 53 at 4.) It is not clear
whether this is a mistake, as Simpson does not directly dispute the Agency’s assertion that
the shift occurred in September 2018. (Id.) At any rate, to the extent this date is disputed,
it is not material to the Court’s analysis.
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Simpson alleges that he responded to Chaney’s initial email (requesting flash drives)
by “immediately advis[ing] her that USPS Security policy precluded the distribution of
USPS Flash Drives to unknown or not Exempt employees.” (Doc. 53-1 ¶ 4.) This response
is not reflected in the emails provided as exhibits (Doc. 52-1 at 102-13) and Simpson
provides no supporting evidence. Although Simpson alleges he “has asked repeatedly for
access to his email account as of the day when his peers, Lerene Wiley and Tina Sweeney
violently evicted Plaintiff from his office as he was working” and that the Agency “declines
to provide that essential information” (Doc. 53-1 ¶ 4), Simpson has not requested
additional discovery under Rule 56(f) of the Federal Rules of Civil Procedure, nor has he
filed any discovery motions.
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requests as follows. First, in response to Chaney’s request for a router “able to work in all

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of the breakout rooms,” Simpson stated: “It is not possible to guarantee this outcome since

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we have not even known about the venue for more than two weeks. We literally DO NOT

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KNOW how well the router will perform at the venue until we install it!” (Id. at 107.)

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Second, in response to Chaney’s request that an “IT person” manage the presentations at

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the event and Chaney’s offer to send the presentations by Friday “so your office can

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download and prepare,” Simpson replied: “Don’t bother sending the presentations to my

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office . . . . I won’t be in Albuquerque. Write the presentations to a DVD as I have

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repeatedly advised. John Reese . . . will fly to Albuquerque Friday. Please be advised that

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John is NOT a presentation specialist. . . . He will be there to attempt to make all of the

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USPS Technology work as it should. You should practice preparing the presentations to

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run yourself. . . . Good luck as you coordinate those presentations.” (Id.) Third, in

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response to Chaney’s request for portable microphones, Simpson replied: “It is up to the

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venue to provide that hardware and ensure that it works . . . .” (Id.) Fourth, in response to

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Chaney’s request for flash drives or DVD discs, Simpson referred Chaney to “the

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remainder of my messages” and stated “DVDs have been used routinely since about the

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early 1990s for media presentation. (Remember Blockbuster?)” (Id.) Finally, in response

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to Chaney’s closing, which stated “[i]f there is anything more I feel I missed, I will let you

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know,” Simpson responded: “Thank you. I will respectfully commiserate with YOU for

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your lack of preparation.” (Id. at 107-08.)

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Following this exchange, Chaney emailed Chavez separately, reiterating what she

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needed and asking who else could help her. (Id. at 97 ¶ 15.) Chavez, in turn, forwarded

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Chaney’s email to Simpson, with a note stating: “I don’t want to get stuck on what was and

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was not said but I need the issues raised below solved prior to Sunday.” (Id. at 112-13.)

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Simpson responded as follows:

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If this is a direct order to provide anything and everything that [Chaney]
thinks that the “Exec Speakers” want to see, I will ask Bob to submit an
emergency request for $10,000 – For whatever yours and [Chaney’s] heart
desires between now and Sunday. You must approve that PO or it will not
go forward. You have been holding PO requests for weeks. We have MTEL
printers that we have not been repaired awaiting your approval and much
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more. If your order requires it, I decline to NOT follow the WA Purchasing
Guidelines as they might reflect Federal Purchasing Guidelines - aka
FEDERAL LAWS. That is what is necessary to provide what your “team”
wants at this late hour. I am medically incapable of travelling to
Albuquerque. My staff has been all over the two worlds (ABQ and PHX)
recently. They have been working on critical IT issues. We are not standing
around waiting for the next opportunity to impress an “Executive” (Postal
Employee). I do not accept your criticism based on a project that we were
just invited to join TWO weeks ago. . . . Make the decision and I and Bob
will be up late preparing the PO! Anecdotally – you base this demand on an,
“I was told” statement. “Who” told that nonsense[]?

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(Id. at 112.)

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Chavez viewed these emails from Simpson as “unprofessional,” “inappropriate” or

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“grossly inappropriate,” “unhelpful,” “unwarranted,” and/or “insubordinate.” (Id. at 97

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¶¶ 13-15.) Accordingly, after consulting with Wiley and Acting Phoenix Postmaster Tina
Sweeney (“Sweeney”),6 Chavez decided that Simpson “should be issued a Notice of
Emergency Placement in an Off-Duty Status pursuant to Section 651 of the Employee and
Labor Relations Manual.” (Id. at 98 ¶ 18. See also id. at 54-63 [copy of Section 651].)7

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On June 6, 2019, Simpson received a “Notice of Emergency Placement” from
Sweeney and Wiley. (Id. at 6-7 ¶¶ 22, 25 [Wiley declaration]; id. at 44 [actual notice].) At
that time, Simpson was “instructed to turn in accountable items, including his access badge,
keys, USPS-issued mobile phone, and USPS-issued laptop, and directed . . . to immediately
leave the building.” (Id. at 7 ¶ 25.)8

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A few hours later, Simpson sent the following email to Chavez, Wiley, and
Sweeney:9

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Simpson disputes the Agency’s description of Sweeney as the “Office[r] in Charge”
on June 6, 2019 and asserts that Sweeney was a “District Post Office Operations
Manager[]”for “higher level Postmasters.” (Doc. 53 at 6.) To the extent Sweeney’s exact
position is disputed, this fact is not material to the Court’s analysis.
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Simpson appears to agree with this fact, although he characterizes it differently.
(Doc. 53-1 ¶ 6 [“Chavez ordered his HR Manager and acting Phoenix Postmaster, both
peers in the District management staff to get rid of Plaintiff without pay.”].)
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The Agency submits undisputed evidence that it took these steps “because of
[Simpson’s] level of access to the District’s Information Systems,” which made it
“necessary and appropriate to ask [Simpson] to turn these items in.” (Doc. 52-1 at 88 ¶10.)
A copy of the email indicates Simpson also cc’ed several others on the email chain,
including DiPeri. (Doc. 52-1 at 46-47.)
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This AM at about 0545, POOM Tina Sweeney and HR Manager Lerene
Wiley delivered a letter to my office, while I was already working. Tina
handed me a letter titled “EMERGENCY PLACEMENT IN AN OFF DUTY
STATUS. The cryptic allegation stated is” Your [sic] sent an inappropriate
message (A) District Manager Marty Chavez, on June 5, 2019. Tina
demanded that I leave the USPS smartphone, laptop, the key to my office,
and my USPS ID. Then, she demanded that I leave the premises immediately
and they escorted me to my vehicle and watched as I exited the compound.
The letter cites two ELM provisions, to which I do not have access. Thus, I
am deprived of my right to a clear statement and an explicit statement of my
rights. Therefore, this message will serve as my Notice of Appeal pursuant
to all of my legal rights without any waiver. . . . Your actions are clearly
retaliatory. I have been working an office schedule from 0500-1300 since
Marty retaliated against me for the fact that I am working under a Reasonable
Accommodation Agreement. According to Marty, despite my FLSA
EXEMPT Status, “working from home does not count.” Thus, I have, in
good faith, worked a restricted office schedule plus any other work that my
position requires from home, including weekends and holidays. Marty began
his retaliatory campaign to eliminate me immediately after Gail Hendrix left
from her detail and Marty began his detail as DM. I intend to exercise all of
my available rights. Therefore, please provide me with information about
how to contact an EEO Specialist.

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(Id. at 46-47.) In the same email, Simpson asked to be placed on sick leave under the

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Family Medical Leave Act (“FMLA”) beginning June 7, 2019. (Id.) In response, the

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Agency sent a letter to Simpson, dated June 7, 2019, advising him that Sweeney “has been

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delegated the authority to decision [sic] your appeal and respond to your request for FMLA

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sick leave. . . . Attached for your reference is a copy of the provisions of the Employee

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and Labor Relations Manual . . . .” (Id. at 53.)10

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The following week, Simpson’s emergency placement on off-duty status was

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rescinded. (Id. at 7 ¶ 29 [Wiley declaration]; id. at 68 [letter to Simpson announcing

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recission]; id. at 89 ¶ 18 [Sweeney declaration].)

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On July 3, 2019, Simpson filed for retirement, effective June 30, 2019. (Id. at 7

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¶ 30.)11 At no point did Simpson inform Wiley, Hendrix, Sweeney, or Chavez that he

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The Agency presents evidence that Simpson’s FMLA request was ultimately
granted. (Doc. 52-1 at 7 ¶ 30.) Simpson does not dispute this fact. (See Doc. 53 at 7.)
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Simpson alleges that, after he submitted his retirement papers, the Agency sent
“THREE US Postal Inspectors, federal law enforcement agents, to [his] home” and that
these individuals questioned him until he “advised them that he had filed for his
retirement.” (Doc. 53-1 at 5 ¶ 6.) Simpson further alleges that “[t]he agents never advised
[him] about what crime they were investigating.” (Id.) Simpson characterizes this alleged
incident as “anecdotal but consistent” (Doc. 53 at 7) but does not otherwise explain its
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believed he was being subjected to a hostile work environment. (Id. at 8 ¶ 32; id. at 78

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¶ 16; id. at 90 ¶ 29; id. at 99 ¶ 29.)

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II.

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On September 25, 2019, Simpson filed a formal Equal Employment Opportunity
(“EEO”) complaint. (Doc. 37-1 at 7-15.)
On October 10, 2019, the Agency’s EEO office accepted Simpson’s complaint for

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investigation. (Id. at 17-19.)
On February 6, 2020, the Agency’s EEO office issued a finding of no

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Procedural History

discrimination. (Doc. 1 at 12-46.)

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On March 9, 2020, Simpson filed the complaint. (Doc. 1.)

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On August 19, 2020, the Court held the scheduling conference, during which the

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Agency raised concerns about the clarity of the complaint. (Doc. 30.) In light of those

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concerns, Simpson requested, and the Court granted, leave to file an amended complaint.

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(Id.)

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On September 21, 2020, Simpson filed his operative pleading, the First Amended
Complaint (“FAC”). (Doc. 35.)
On October 5, 2020, the Agency filed a motion to dismiss, which later became fully
briefed. (Docs. 37, 39-40.)

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On June 14, 2021, the Court granted in part and denied in part the Agency’s motion

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to dismiss. (Doc. 44.) After noting that “[t]he FAC is not a model of clarity as to which

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claims Simpson is actually asserting in this action,” in part because “[i]t does not set forth

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any specific counts or causes of action and contains a jumble of confusingly numbered

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paragraphs,” the Court interpreted the FAC as setting forth 10 claims: (1) constructive

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discharge related to Simpson’s emergency placement on leave without pay in June 2019;

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(2) violation of due process related to the emergency placement; (3) failure to

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accommodate a disability; (4) retaliation for engaging in the reasonable accommodation

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process; (5) retaliation for prior protected activity; (6) disparate treatment; (7) negligent

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relevance to his claims.
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infliction of emotional distress; (8) intentional infliction of emotional distress; (9) violation

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of due process rights “related to the events that occurred on the day of his emergency

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placement”; and (10) hostile work environment. (Id. at 9, 22.) The Court dismissed “all

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of those claims except No. 1 (constructive discharge), Nos. 4 and 5 (the retaliation claims,

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but only to the extent they are premised on the ‘participation clause’), No. 6 (disparate

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treatment), and No. 10 (hostile work environment).” (Id.) The Court also concluded that,

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“under the somewhat unusual circumstances of this case, the Agency should be afforded

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leave to file another dismissal motion” because the “Agency did its very best to make sense

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of an often inscrutable complaint and it appear[ed] to the Court that some of the claims that

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survived . . . did so only because the Agency was unaware (for understandable reasons)

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that they stood apart from the other claims the Agency was challenging.” (Id. at 22-23.)

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On July 6, 2021, the Agency filed a motion to dismiss claim Nos. 4 and 5, which

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are Simpson’s retaliation claims premised on the “participation clause” of Title VII.

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(Doc. 45.)

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On August 26, 2021, after Simpson failed to respond to the motion, the Court
granted it. (Doc. 46.)

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On May 27, 2022, the Agency moved for summary judgment on Simpson’s three

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remaining claims: No. 1 (constructive discharge), No. 6 (disparate treatment), and No. 10

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(hostile work environment). (Doc. 52.) The motion is now fully briefed (Docs. 53, 54)

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and neither side requested oral argument.

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DISCUSSION
I.

Legal Standard

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“The court shall grant summary judgment if [a] movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter

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of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of

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the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue

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in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d

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1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable

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to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.”

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Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is

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improper where divergent ultimate inferences may reasonably be drawn from the

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undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotations omitted).

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A party moving for summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of ‘the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits,

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if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of

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production, the moving party must either produce evidence negating an essential element

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of the nonmoving party’s claim or defense or show that the nonmoving party does not have

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enough evidence of an essential element to carry its ultimate burden of persuasion at trial.”

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Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . .

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[the] moving party carries its burden of production, the nonmoving party must produce

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evidence to support its claim or defense.” Id. at 1103.

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“If the nonmoving party fails to produce enough evidence to create a genuine issue

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of material fact, the moving party wins the motion for summary judgment.” Id. There is

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no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not

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significantly probative, summary judgment may be granted.” Id. at 249-50 (internal

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citations omitted). At the same time, “[t]he evidence of the non-movant is to be believed,

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and all justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a

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motion for summary judgment, the judge must view the evidence presented through the

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prism of the substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary

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judgment inquiry as to whether a genuine issue exists will be whether the evidence

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presented is such that a jury applying that evidentiary standard could reasonably find for

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either the plaintiff or the defendant.” Id. at 255.

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…

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II.

The Parties’ Arguments

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The Agency moves for summary judgment on all of Simpson’s remaining claims.

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(Doc. 52.) First, as for the disparate treatment claim, the Agency contends that Simpson

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“cannot establish a prima facie case of discrimination” because he cannot demonstrate that

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(1) “he was performing to the USPS’s legitimate expectations” and/or (2) “similarly

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situated employees were treated more favorably.” (Id. at 6-8.) Alternatively, the Agency

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contends it is entitled to summary judgment because it “had legitimate, non-discriminatory

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reasons for issuing [Simpson] the emergency placement” based on the Simpson’s

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“unprofessional emails” to Chaney, refusal to assist Chaney, “insubordinate response” to

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Chavez, and “apparent efforts to sabotage the Albuquerque event.” (Id. at 8-9.) Next, the

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Agency contends it is entitled to summary judgment on the hostile work environment claim

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because Simpson provides no evidence that the allegedly harassing actions, “perpetrated

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by at least three separate individuals, were taken because of his protected status.” (Id. at

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9-12.) The Agency also contends that the alleged conduct described by Simpson is “not

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the type of conduct that can create a hostile work environment” because it was “not

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objectively offensive, hostile, or abusive, [was] not based on [Simpson’s] protected status,

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and [is] not of the required level of severity or seriousness to give rise to a hostile work

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environment.” (Id. at 12.) Finally, the Agency contends it is entitled to summary judgment

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on the constructive discharge claim because Simpson “cannot establish that he was

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discriminated against, or that his working conditions had become intolerable as a result of

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discrimination.” (Id.) The Agency further argues that “[e]ven if the decision to issue

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Plaintiff a notice of emergency placement was discriminatory, [Simpson] had an

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opportunity to appeal that decision, and, once it was rescinded, to return to work. However,

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rather than trying to resolve the matter, [Simpson] elected to retire.” (Id. at 12-13. See

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also id. at 13 [“No reasonable person in [Simpson’s] position would have felt compelled

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to resign because of the emergency placement or the allegedly hostile work

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environment.”].)

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Simpson opposes the Agency’s motion. (Doc. 53.) Simpson broadly characterizes

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the Agency’s motion as containing “numerous citations to irrelevant cases” and

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“incorporates by reference [his] arguments and legal precedence from [his] Response to

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[the Agency’s] failed Motion to Dismiss.” (Id. at 8.)12 Simpson also purports to identify

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various disputed facts that are material to his disparate treatment claim. For example,

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Simpson appears to argue he received worse treatment than similarly situated employees

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because the Agency “has never placed a manager who reports directly to the District

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Manager in an emergency off duty status without pay in the history of the Arizona District

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as . . . organized . . . in 1992.” (Doc. 35 at 7-8.)13 As for whether the Agency had a

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legitimate, non-discriminatory reason for its actions, Simpson argues that he “has already

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dispelled this disputed issue repetitively, Supra” and that the Agency’s “evolution of the

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truth is clearly pretextual” and then reiterates his request for a jury trial. (Id. at 9.) As for

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the quality of his work performance, Simpson contends he met the Agency’s reasonable

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expectations for several reasons. First, Simpson explains that he refused to provide the

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requested IT help on June 5, 2019 because he believed it would violate federal law.

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(Doc. 53 at 8.)14 Second, in a related vein, Simpson argues he “offered a solution, which

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Simpson’s response (Doc. 39) to the Agency’s first motion to dismiss (Doc. 37) is
attached as an exhibit to his response to the Agency’s motion for summary judgment.
(Doc. 53-2.) The Court notes that many of Simpson’s arguments opposing the Agency’s
first motion to dismiss do not apply in the summary judgment context. However, to the
extent his arguments against dismissal augment or explain his summary judgment
arguments, the Court has attempted to incorporate them.
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Simpson’s most coherent argument regarding “similarly situated” employees
appears in the FAC. (Doc. 35 at 7-8.) In his response to the Agency’s motion for summary
judgment, Simpson appears to take a position contrary to his own interests, stating “no
other similarly situated victims exist!” (Doc. 53 at 9.) Simpson then asserts that Hendrix
and Chavez acted differently than other district managers had acted toward Simpson in the
past. (See id. [noting all of the other district managers expected that he would “object,
debate, and advise them about a bad choice or an illegal choice” and that “[t]he only district
managers who had a real problem with [Simpson’s] open and candid advice are the actors
– Hendrix and Chavez”].) To the extent this argument applies the “similarly situated”
standard to the behavior of the Agency’s managerial staff (rather than to how Simpson was
treated in relation to other employees who were similarly situated to him), Simpson
misconstrues the law.
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This is perhaps a generous interpretation of Simpson’s response, which states, in
response to the Agency’s argument that his performance was deficient: “[A]t least since
World War II, national and international law has established that defendants cannot claim
‘following orders’ to negate illegal actions. [Simpson] asks the court to take notice that,
federal service protects and indeed requires employees to protect their agency from
unlawful orders. In fact, when [the Agency] hired [Simpson] at the age of 17, [the Agency
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was that Chavez should approve a Purchase Order to allow District IT to proceed,” in

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response to the requests from Chaney and Chavez on June 5, 2019. (Id. at 10-11, emphasis

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omitted. See also id. at 5 [“[Simpson] offered Chavez a professionally practical and legal

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approach to achieving Chaney’s misguided list of requests.”].)15 Finally, Simpson alleges

5

that Chavez “acknowledged” the fact that Chavez had not received any complaints “of a

6

failure in the IT support that [Simpson] was providing through himself and his staff.” (Id.

7

at 4.)16

8

Simpson next contends he was subjected to a hostile work environment when

9

Hendrix tasked him with meaningless assignments related to network outages and Chavez

10

“held him to the standard of a not-Exempt employee and monitored his automatic tour of

11

duty rings nor especially [Simpson’s] entrance and exit records into the District office.”

12

(Id. at 10.) In his FAC, Simpson also alleges that Hendrix “forced” him into a reasonable

13

accommodation process and that Chavez undermined him by routinely challenging

14

Simpson’s decisions about potential FLSA violations related to “IT assets.” (Doc. 35 at

15

3-6.) Simpson also contends the decision to place him on emergency off-duty status

16

without pay despite Simpson’s “reasonable” responses to Chaney’s “uninformed and

17

unreasonably illegal demands” was discriminatory conduct. (Doc. 53 at 10-11.)

18

Finally, as for his constructive discharge claim, Simpson contends without

19

explanation that the standard in Green v. Brennan, 578 U.S. 547 (2016), governs. (Id. at

20

11.)17 Simpson also alleges that “none of the thugs who violated [his] rights to his tenured

21

federal agency job contacted him to offer a way to voluntarily and safely return to work.

22

required [Simpson] to swear an oath to protect the US Constitution from enemies, foreign
or domestic.” (Doc. 53 at 8.)
15
Simpson offers this statement in response to the Agency’s arguments concerning
his hostile work environment claim. (Id. at 10-11.) In the spirit of deciding the issues on
their merits, and given that Simpson is the nonmoving party, the Court construes Simpson’s
statements broadly.
16
Simpson suggests, albeit in a different context, that the Agency’s “reports regarding
[his] biannual performance evaluations” show that he “perform[ed] his job functions
competently and exemplary.” (Id. at 2.)

23
24
25
26
27
28

Simpson’s motion opposing the Agency’s first motion to dismiss included several
pages of quoted language from Green. (Doc. 53-2 at 9-13.)
17

- 12 -

1

[The Agency] left [Simpson] with two options: camp out at the doorway to a secured

2

facility or . . . retire. On the date that [Simpson] submitted his retirement papers he

3

confirmed from Bob Garman that his access to the USPS network remained suspended.

4

Constitutional law acknowledges these actions as a constructive termination from a federal

5

job.” (Id. at 7.)18

6

In reply, the Agency contends Simpson “did not meaningfully respond to the Motion

7

for Summary Judgment, nor did he introduce any specific evidence establishing a genuine

8

issue for trial.” (Doc. 54 at 1.) The Agency argues that, rather than responding to the legal

9

arguments in its motion, Simpson merely “accuses [the Agency] of ‘numerous citations to

10

irrelevant cases’” and incorporates “his legal argument produced via [his] Response to [the

11

Agency’s] Motion to Dismiss.” (Id. See also id. at 2 [“Different standards govern a motion

12

to dismiss and a motion for summary judgment.”].) The Agency further contends that

13

Simpson “has not submitted any significant probative evidence tending to support the

14

complaint,” instead “rel[ying] on the allegations in his complaint and his own affidavit,”

15

and “does not dispute [the Agency’s] facts so much as he seeks to either explain the reasons

16

for his behavior and/or malign defense counsel and the USPS employees involved.” (Id.

17

at 3.) The Agency also argues that Simpson’s “exclusive reliance on Green v. Brennan is

18

entirely misplaced since [the Agency] is not challenging exhaustion or timeliness in the

19

summary judgment motion.” (Id. at 2.) The Agency then reiterates many of the arguments

20

contained in its motion for summary judgment. (Id. at 4-11.)
…

21
22
23
24
25
26
27
28

Simpson also suggests, at several points, that the Agency’s arguments violate Rule
11. (See, e.g., Doc. 53 at 10 [as to the hostile work environment claim, arguing that the
Agency “plays loosely, perhaps in violation of Rule 11, with the truth about this disputed
matter”]; id. [as to whether Chavez was monitoring Simpson’s badge records, arguing
“Rule 11 requires at a minimum, that [the Agency] perform a reasonable inquiry about
these lies”]; id. at 11 [as to whether a purchase order was required to fulfill Chaney’s
requests, arguing “Rule 11 requires at a minimum that [the Agency] perform a reasonable
inquiry about these lies”].) To the extent Simpson is requesting sanctions under Rule 11,
his arguments are unavailing. “A motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly violates Rule 11(b).”
Fed. R. Civ. P. 11(c)(2). To the extent Simpson is suggesting the Court should, on its own,
find that Rule 11 has been violated, the Court declines to do so.
18

- 13 -

1

III.

Analysis

2

A.

Threshold Considerations

3

Simpson’s response to the Agency’s summary judgment motion is, like his FAC,

4

not a model of clarity. It does not set forth any specific counts or causes of action, contains

5

only a handful of legal citations (Rules 11 and 56, the FMLA, and Green), and provides

6

very few relevant facts in the course of purporting to dispute the Agency’s factual

7

assertions.19 Simpson’s response is so devoid of legal theories and relevant factual

8

allegations that the Court is unable to understand some of his arguments without reference

9

to his FAC.

10

Simpson’s reliance on Green v. Brennan, 578 U.S. 547 (2016), to avoid summary

11

judgment is misplaced. In his response, Simpson broadly states that Green “overcomes

12

every one of [the Agency’s] decorative but ineffectual arguments . . . .” (Doc. 53 at 2.)

13

Simpson also “incorporates” his response to the Agency’s first motion to dismiss, wherein

14

Simpson quoted Green at length. Although Green vacated the lower court’s entry of

15

summary judgment on employment discrimination claims, the Supreme Court’s decision

16

was based on its holding that the limitations period for a constructive discharge claim

17

begins running only after the employee gives notice of his resignation. 578 U.S. at 563-

18

564. Here, the statute of limitations for Simpson’s claims is not at issue, so Green is

19

inapplicable.

20

Simpson also fails to support his opposition with sufficient evidence. Simpson

21

provides only two exhibits to support his position: a copy of his response to the Agency’s

22

first motion to dismiss (Doc. 53-2) and a declaration from himself (Doc. 53-1). The copy

23

of Simpson’s response is not evidence. Partovi v. Martinez, 2008 WL 2705370, *3 (D.

24

Ariz. 2008) (citing British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978),

25
26
27
28

19

Although Simpson is proceeding pro se, it appears he is an attorney. (Doc. 37 at 1
n.1 [“It should be noted that although Mr. Simpson is representing himself in this action,
he is a practicing attorney, and has been an active member of the State Bar of Arizona since
May 1995.”].) He is therefore not entitled to the liberal standards afforded to non-attorney
pro se plaintiffs. Kelly v. City of Poway, 2022 WL 1524737, *3 (S.D. Cal. 2022); Price v.
Peerson, 2014 WL 12579823, *4 (C.D. Cal. 2014), aff’d, 643 F. App’x 637 (9th Cir. 2016).
- 14 -

1

for the proposition that “[l]egal memoranda does not constitute evidence”). This leaves

2

Simpson’s declaration. As an initial matter, some of the facts alleged in Simpson’s

3

declaration are not based on personal knowledge. (See, e.g., Doc. 53-1 at 2 [“Upon

4

information and belief, USPS headquarters placed Gail Hendrix as an acting DM in

5

Arizona because she had lost control of her home district. Reportedly, carrier(s) died

6

because Hendrix’ District failed to properly protect them from the summer heat.”].) At

7

summary judgment, although a party “is not required to produce evidence in a form that

8

would be admissible at trial, [he] must show that [he] would be able to present the

9

underlying facts in an admissible manner at trial.” De La Torre v. Merck Enters., Inc., 540

10

F. Supp. 2d 1066, 1075 (D. Ariz. 2008). Because Simpson provides no indication that an

11

admissible form of the hearsay in his declaration is anticipated, the Court may not consider

12

those statements. Additionally, Simpson’s declaration is filled with conclusory assertions.

13

But “[w]hen the nonmoving party relies only on its own affidavits to oppose summary

14

judgment, it cannot rely on conclusory allegations unsupported by factual data to create an

15

issue of material fact.” Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). See also

16

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory,

17

speculative testimony in affidavits and moving papers is insufficient to raise genuine issues

18

of fact and defeat summary judgment.”).

19
20

B.

Merits
1.

Disparate Treatment

21

As an initial matter, Simpson’s response does not identify the federal statute

22

underlying his disparate treatment claim or the basis for his discrimination allegations.

23

Simpson’s FAC (Doc. 35) and the EEOC’s Final Agency Decision (Doc. 1 at 12-46)

24

indicate Simpson may be alleging discrimination due to race, color, or national origin (in

25

violation of Title VII), age (in violation of the Age Discrimination in Employment Act

26

(“ADEA”)), or disability (in violation of the Rehabilitation Act). In its motion for

27

summary judgment, the Agency interprets Count Six as alleging disparate treatment under

28

Title VII. (Doc. 52 at 6-9.) Because Simpson does not directly dispute this interpretation

- 15 -

1

in his response or connect his membership in any specific protected class to the emergency

2

placement (i.e., the adverse employment action underlying his disparate treatment claim),

3

the Court will assume the same.

4

Under Title VII, it is unlawful for an employer to “discriminate against any

5

individual with respect to his compensation, terms, conditions, or privileges of

6

employment, because of such individual’s race . . . or national origin.”

7

§ 2000e–2(a)(1). Simpson does not provide direct evidence of discrimination. (See

8

generally Doc. 53.) Thus, Simpson’s disparate treatment claim is subject to the burden-

9

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

10

See also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981) (applying the

11

McDonnell Douglas to a Title VII claim alleging discriminatory treatment).

42 U.S.C.

12

Under McDonnell Douglas, a plaintiff alleging disparate treatment must first

13

establish a prima facie case of discrimination. To do so, the plaintiff must show: (1) that

14

he is a member of a protected class; (2) that he was qualified for his position and performing

15

his job satisfactorily; (3) that he experienced an adverse employment action; and (4) that

16

similarly situated individuals outside his protected class were treated more favorably or

17

other circumstances surrounding the adverse employment action give rise to an inference

18

of discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). As

19

a general matter, the Ninth Circuit “require[s] very little evidence to survive summary

20

judgment in a discrimination case, because the ultimate question is one that can only be

21

resolved through a searching inquiry—one that is most appropriately conducted by the

22

factfinder, upon a full record.” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410

23

(9th Cir. 1996) (internal quotations omitted). See also Burdine, 450 U.S. at 253-54 (“The

24

prima facie case serves an important function in the litigation: it eliminates the most

25

common nondiscriminatory reasons for the plaintiff’s rejection.”). “Upon these showings,

26

the burden shifts to the defendant to produce some evidence demonstrating a legitimate,

27

nondiscriminatory reason for the employee’s termination.” Bodett v. CoxCom, Inc., 366

28

F.3d 736, 743 (9th Cir. 2004). “If the defendant meets this burden of production, any

- 16 -

1

presumption that the defendant discriminated ‘drops from the case,’ and the plaintiff must

2

then show that the defendant’s alleged reason for termination was merely a pretext for

3

discrimination.” Id. “A plaintiff “may prove pretext either directly by persuading the court

4

that a discriminatory reason more likely motivated the employer or indirectly by showing

5

that the employer’s proffered explanation is unworthy of credence.”

6

quotations omitted).

Id. (internal

7

Here, the Agency does not dispute that Simpson belongs to some unspecified

8

protected class or that the emergency placement on off-duty status was an adverse

9

employment action. (Doc. 52 at 7.) Nevertheless, the Agency contends that Simpson is

10

unable to establish a prima facie case of Title VII discrimination because (1) he was not

11

performing to the Agency’s “legitimate expectations” and (2) “[n]o similarly situated

12

individuals were treated more favorably.” (Id. at 7-8.) As for Simpson’s job performance,

13

the Agency contends that Chaney’s emails to Simpson on June 5, 2019 requested “basic

14

technology

15

unprofessional.” (Id. at 7.) The Agency points to copies of the emails, as well as a

16

declaration from Chavez, to support its contention that Simpson was “sabotaging the event”

17

by refusing to assist Chaney, “even when directly ordered to do so by A-DM Chavez.” (Id.

18

at 7-8.)

and support”

and Simpson’s responses

were

“inappropriate and

19

Simpson disputes the Agency’s characterization of Chaney’s requests and his

20

responses. First, he argues that some of Chaney’s requests were either against “USPS

21

Security policy,” not tasks that “District IT was capable of delivering,” or “misguided”

22

because they would require a “public bidding process” under federal law. (Doc. 53 at 4-5.)

23

Simpson does not reference any materials in the record in support of these contentions.

24

Although the Court doubts that Simpson’s allegations in his declaration,20 unsupported by

25

other evidence, are sufficient to create an issue of material fact as to whether he was

26

performing to the Agency’s legitimate expectations, the Court finds it unnecessary to reach

27
28

Simpson’s affidavit is largely a verbatim copy of arguments contained in his
response. (Compare Doc. 53-1 with Doc. 53.)
20

- 17 -

1

a definitive judgment on this point because the Agency is entitled to summary judgment

2

for several other reasons.

3

First, the Court agrees with the Agency that the record evidence does not show that

4

similarly situated individuals outside Simpson’s protected class were treated more

5

favorably (or that other circumstances exist that might give rise to an inference of

6

discrimination). The parties agree Simpson was the first employee on the Executive and

7

Administrative Schedule (“EAS”) within the Arizona-New Mexico District to be placed

8

on emergency off-duty status without pay. (See, e.g., Doc. 35 at 8 ¶ 5 [FAC, alleging that

9

Chavez, Sweeney, and Wiley previously “admitted that they had not placed any other

10

‘managers’ in an off duty status within the last year”); Doc. 52-1 at 8 ¶ 34 [Wiley

11

declaration: “Prior to June 6, 2019, I have never been involved in placing an employee

12

within the [EAS], which consists of supervisors, managers, Headquarters-reporting

13

personnel, and other managerial personnel, on emergency placement.”]; id. at 90 ¶ 27

14

[Sweeney declaration: “To the best of my recollection, prior to June 6, 2019, I had not

15

placed an employee within the [EAS] . . . on emergency placement, within the Arizona-

16

New Mexico District.”]; id. at 100 ¶ 31 [Chavez declaration: “Prior to June 6, 2019, I had

17

never placed an employee within the Arizona-New Mexico District on emergency

18

placement who was on the [EAS] . . . .”].)

19

For purposes of establishing a prima facie case of Title VII discrimination,

20

“individuals are similarly situated when they have similar jobs and display similar

21

conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). In other

22

words, the proper comparators are not other Postal Service employees within the EAS in

23

general, but other EAS employees who engaged in conduct similar to that of Simpson. The

24

Agency contends Simpson cannot establish that such comparators outside his protected

25

class were treated more favorably (Doc. 52 at 8), pointing to the declarations that are quoted

26

above. Simpson does not dispute this assertion21 and a review of the record does not reveal

27

21

28

In the FAC, Simpson describes these declarations as “disingenuous” because they
“ignore the fact that [Simpson] reported to ONE manager within the USPS, DM John
DiPeri and acting in John DiPeri’s place was only Richard Chavez. Both Tina Sweeney
and Lerene Wiley were [Simpson’s] peers who also organizationally reported to the same
- 18 -

1

any comparators who engaged in conduct similar to Simpson and were treated more

2

favorably. In fact, in his response, Simpson states: “Despite [the Agency’s] irrelevant

3

allegations that the legal standard requires other Chavez favorites or victims, no other

4

similarly situated victims exist!” (Doc. 53 at 9.) Further, Simpson does not identify any

5

comparators outside his protected class or even specify what his protected class is. In the

6

entirety of his response, Simpson does not mention the race, color, or national origin of

7

any other individual or Postal Service employee.

8

Simpson also fails to show other circumstances suggesting that the adverse

9

employment action was the result of race- or national origin-based discrimination—there

10

is simply nothing in the record to demonstrate this, nor are there even sufficient allegations

11

to this effect in his FAC. (See generally Docs. 35, 53.) The exhibits attached to the

12

Agency’s motion indicate that Wiley, Hendrix, and Sweeney do not know Simpson’s race

13

or national origin. (See Doc. 52-1 at 3 ¶ 4 [Wiley]; id. at 77 ¶ 5 [Hendrix]; id. at 86 ¶ 4

14

[Sweeney].) Also, the EEOC charge and the declarations from Sweeney and Chavez,

15

considered together, show that two of the three individuals involved in the decision to place

16

Simpson on emergency off-duty status, Sweeney and Chavez, are within the same

17

protected class of race as Simpson. (Doc. 1 at 12; Doc. 52-1 at 86, 95.) And Simpson’s

18

own description of the situation suggests, at most, personal grudges between himself and

19

Chavez unrelated to race. (See, e.g., Doc. 53 at 9 [“In fact, in the TWENTY-SEVEN years

20

of service to different District Managers, . . . [Simpson] established a repertoire and means

21

of standard communication [with various other District Managers]. . . . The only district

22

managers who had a real problem with [Simpson’s] open and candid advice are the actors

23

– Hendrix and Chavez.”].) Thus, a reasonable jury could not find that Simpson has

24

established a prima facie case of Title VII discrimination, even given the low threshold of

25

evidence required to do so.

26
27
28

District Manager. A group of USPS ‘managers’ did not supervise [Simpson] as
Defendant’s report implies.” (Doc. 35 at 8-9 ¶ 5.) However, Simpson does not express
any disagreement with the assertion that no other EAS member in the District engaged in
similar conduct.
- 19 -

1

Finally, the Agency has articulated a legitimate, non-discriminatory reason for

2

putting Simpson on emergency placement—namely, that his conduct violated the

3

Employee Labor and Relations manual. As the Agency notes in its motion, the emails

4

Simpson sent to Chaney were “unprofessional,” he “refus[ed] to provide [Chaney] with

5

basic supplies like flash drives and wireless microphones and to help her (or to direct

6

another employee in the IT department to help her) load a PowerPoint presentation onto a

7

flash drive,” he provided an insubordinate response to Chavez (upon which he copied even

8

higher-level executives), and “his apparent efforts to sabotage the Albuquerque event

9

warranted issuance of the emergency placement.” (Doc. 52 at 8-9.) The Agency points to

10

declarations by Sweeney and Chavez, both of whom state that Simpson’s statements to

11

Chaney and Chavez on June 5, 2019 were unprofessional, insubordinate, and disruptive to

12

postal operations and therefore emergency placement was necessary under the Employee

13

Labor and Relations manual. (Doc. 52-1 at 87 ¶¶ 6-8 [Sweeney]; id. at 97-98 ¶¶ 13-20

14

[Chavez].) This showing is sufficient to meet the Agency’s burden of production. Reeves

15

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (the employer’s burden is

16

“one of production, not persuasion”).

17

Accordingly, Simpson was required to “produce enough evidence to allow a

18

reasonable factfinder to conclude either: (a) that the alleged reason for [his] discharge was

19

false, or (b) that the true reason for his discharge was a discriminatory one.” Nidds v.

20

Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996). “Under Ninth Circuit law,

21

circumstantial evidence of pretext must be specific and substantial in order to survive

22

summary judgment.” Brown v. City of Tucson, 336 F.3d 1181, 1188 (9th Cir. 2003)

23

(cleaned up). Simpson utterly failed to do so here. He does not even allege a connection

24

between his race, color, or national origin and the emergency placement. (See generally

25

Doc. 53.) In response to the Agency’s arguments, Simpson contends (1) Chaney’s requests

26

were improper and unreasonable (id. at 4-5), (2) in response to Chavez’s email requesting

27

that he help Chaney, he “offered Chavez a professionally practical and legal approach to

28

achieving Chaney’s misguided list of requests” and “respectfully offered to work late into

- 20 -

1

the night along . . . to prepare a Purchase Order conforming to federal law and the Western

2

Area Guidelines” (id. at 5-6), (3) fulfilling Chaney’s request would violate the Western

3

Area’s Purchasing Guidelines and federal law (id.), and (4) he had reason to believe Chavez

4

would not approve any related purchase orders because “[f]or months, Chavez had been

5

negligently holding up mission critical postal operations printer repair (MTEL) Purchase

6

Orders[,] . . . sabotaging the flow of mail between operations and downstream facilities”

7

(id. at 6).

8
9

Simpson does not provide evidence supporting these allegations. (See generally
Docs. 53-1, 53-2.)

However, even if he had, Simpson’s arguments are unavailing.

10

“[C]ourts only require that an employer honestly believed its reason for its actions, even if

11

its reason is foolish or trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc., 281

12

F.3d 1054, 1063 (9th Cir. 2002) (internal quotations omitted). Simpson does not argue that

13

the Agency did not honestly believe its proffered reasons—in other words, none of the facts

14

he alleges, if true, show that the Agency’s explanation is not credible. See Short v. DeJoy,

15

2022 WL 3098997, *16 (D. Ariz. 2022) (“[T]o survive summary judgment, it would not

16

be enough for Plaintiff to show that Wiley’s and Weber’s interpretation of the MOU was

17

somehow wrong . . . . Instead, Plaintiff would need to go further and show that Defendant’s

18

representatives didn’t honestly believe the proffered interpretation.”); Buhl v. Abbott Labs.,

19

817 F. App’x 408, 410-11 (9th Cir. 2020) (“The record is replete with evidence of Buhl’s

20

misconduct and performance issues.

21

evidence, . . . he has not offered any other evidence from which a jury could find that

22

Abbott’s dissatisfaction with his conduct and performance—dissatisfaction that was

23

expressed by multiple managers on multiple occasions over multiple months—was

24

feigned.”).

Although Buhl attempts to explain away this

25

The bottom line is that Simpson has not provided any evidence creating a genuine

26

issue of material fact as to whether the Agency made the emergency placement because he

27

is a member of a protected class. Accordingly, the Agency is entitled to summary judgment

28

on his disparate treatment claim.

- 21 -

1

2.

Hostile Work Environment

2

As with the disparate treatment claim, Simpson does not identify the federal statute

3

underlying his hostile work environment claim. (See Docs. 35, 53.) In its motion for

4

summary judgment, the Agency analyzes the hostile work environment claim as a Title VII

5

claim. (Doc. 52 at 10-12.) Simpson does not object to this characterization in his response.

6

(Doc. 53.)

7

If Count 10 is construed as a Title VII hostile work environment claim, the Agency

8

is entitled to summary judgment because Simpson does not even allege that he was

9

subjected to verbal or physical conduct of a prohibited nature. “To prevail on a hostile

10

workplace claim premised on either race or sex, a plaintiff must show: (1) that he was

11

subjected to verbal or physical conduct of a racial or sexual nature; (2) that the conduct

12

was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the

13

conditions of the plaintiff’s employment and create an abusive work environment.”

14

Vasquez, 349 F.3d at 642. Here, other than quoting a provision of Title VII (Doc. 35 at 1

15

¶ 1), Simpson’s FAC and response do not even mention race—his own or that of other

16

employees. (See generally Docs. 35, 53.)

17

The Court is somewhat wary of interpreting Simpson’s hostile work environment

18

claim as falling under Title VII because, unlike his disparate treatment claim (which is

19

based on his emergency placement), Simpson’s hostile work environment claim seems

20

based at least in part on actions related to disability.22 As noted by the Agency, Simpson

21

appears to premise his hostile work environment claim on five instances of conduct:

22

Hendrix tasking him with “meaningless assignments,” Hendrix “forcing” him into the

23

reasonable accommodation process, Chavez monitoring his badge records and refusing to

24

acknowledge his remote work, “unknown persons escalating [Simpson’s] FLSA decisions

25

to A-DM Chavez for review,” and Chaney’s requests for IT assistance (and subsequent,

26

related adverse actions). (Doc. 52 at 10-11. See also Doc. 35 at 3-6 ¶¶ 1-6.)

27

22

28

The Court also notes that the EEO investigation covered Simpson’s hostile work
environment claim in the context of race, color, age, national origin, disability, genetic
information, and retaliation. (Doc. 1 at 12-46 [copy of Final Agency Decision].)
- 22 -

1

Simpson seems to allege, if indirectly, that several of these events were related to

2

his requests for disability accommodations. For example, he contends that Hendrix

3

“discriminately attempting to show that [he] was not satisfactorily performing his function”

4

was related his remote work, as was Hendrix forcing him into the DRAC process. (See

5

Doc. 35 at 3-4 ¶¶ 1-3.) Simpson makes similar allegations about Chavez’s conduct. (See,

6

e.g., id. at 5 ¶ 4 [“Chavez summoned [Simpson] to Chavez’[s] office. Chavez admitted

7

that he did ‘not even know’ what [Simpson’s] duties required. [Simpson] candidly asked

8

Chavez whether Chavez had received ANY COMPLAINTS about [Simpson’s]

9

performance while supporting the District. Chavez replied that he had not received any

10

complaints. Despite . . . the fact that [Simpson] was exceeding the expectations of a District

11

IT Manager, Chavez noted that he was monitoring [Simpson’s] office time by [Simpson’s]

12

badge entry and exit records. Chavez stated that, ‘working from home does not count.’”];

13

id. at 5-6 ¶¶ 4-5 [alleging that Chavez forced Simpson to work a specific eight-hour office

14

schedule and that, after Simpson appealed this decision to the “Western Area” and was

15

denied, Chavez “made the work environment extremely and increasingly hostile toward

16

[Simpson].”].)

17

The Ninth Circuit has not recognized a hostile work environment claim based on

18

disability discrimination and has declined to decide whether such a claim exists. Brown,

19

336 F.3d at 1190. See also Meyer v. DeJoy, 2022 WL 3334981, *2 (9th Cir. 2022) (whether

20

a hostile work environment claim is cognizable under the Rehabilitation Act is unclear)

21

(internal citations and quotations omitted). Nevertheless, even assuming that such a claim

22

is cognizable under the Rehabilitation Act, and further assuming that Simpson could satisfy

23

the first (qualified individual with a disability) and third (conduct was unwelcome)

24

elements of such a claim,23 the Agency would still entitled to summary judgment on claim

25
26
27
28

23

Because the Agency appears to have construed claim No. 10 as alleging a Title VII
hostile work environment claim (and this construction was reasonable given the unfocused
nature of Simpson’s filings), the Agency did not assert any arguments as to whether
Simpson was a qualified individual with a disability or whether the conduct was
unwelcome. (Doc. 52 at 10-12.) However, because Simpson’s hostile work environment
claim fails for several other reasons, it is not necessary to analyze those issues in any detail.
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1

No. 10.24 Based on the record evidence, a reasonable jury could not find for Simpson

2

because the described conduct was not “sufficiently severe or pervasive to alter the

3

conditions of the [his] employment and create an abusive work environment.” Vasquez,

4

349 F.3d at 642.

5

“To determine whether conduct was sufficiently severe or pervasive . . . , we look

6

at all the circumstances, including the frequency of the discriminatory conduct; its severity;

7

whether it is physically threatening or humiliating, or a mere offensive utterance; and

8

whether it unreasonably interferes with an employee’s work performance.” Id. (internal

9

quotations omitted). The working environment must “both subjectively and objectively be
“Whether the workplace is objectively hostile must be

10

perceived as abusive.”

11

determined from the perspective of a reasonable person with the same fundamental

12

characteristics.” Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527 (9th Cir. 1995), as

13

amended (1995). Here, when compared to other hostile work environment cases, the

14

alleged conduct is not severe or pervasive enough to be actionable. For example, in Kortan

15

v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000), the Ninth Circuit held “no

16

triable issue exist[ed] about whether the [supervisor’s] conduct was frequent, severe or

17

abusive enough to interfere unreasonably with Kortan’s employment” when a supervisor

18

“used gender derogatory language . . . , including referring to various staff members as a

19

‘castrating bitch,’ ‘Madonna,’ and ‘regina,’” and “referred to [the plaintiff] as ‘Rapunzel’

20

and ‘Medea’ and wrote postcards to her at home.” Id. at 1106-08, 1111. It follows that the

21

challenged conduct here could not, as a matter of law, amount to a hostile work

22

environment—it was less frequent, less severe, and less humiliating than the conduct at

23

issue in Kortan. See also Vasquez, 349 F.3d at 644 (holding that “[t]wo isolated offensive

24

remarks, combined with Vasquez’s other complaints about unfair treatment” did not create

25

24

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Id.

The Agency’s arguments for summary judgment on Simpson’s hostile work
environment claim were not race- or sex-specific and apply equally to a hostile work
environment claim based on disability. See also Armijo v. Costco Wholesale Warehouse,
Inc., 2022 WL 1267254, *14 (D. Haw. 2022) (“The Ninth Circuit has not ruled on the issue
of whether a hostile work environment claim can be brought under the ADA. . . . To the
extent that such a claim exists, its elements are similar to the elements of a Title VII hostile
work environment claim.”).
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1

a hostile work environment).

2

The Court also agrees with the Agency that the record contains no evidence that the

3

Agency treated Simpson differently on account of disability (or membership in any other

4

protected class). (Doc. 52 at 11-12 [describing, in relation to each action, the lack of

5

evidence that the allegedly harassing conduct was “because of” Simpson’s protected

6

status]. See also Doc. 52-1 at 3-4 ¶ 5 [Wiley, stating that Hendrix asked Wiley to initiate

7

the reasonable accommodation process because Simpson was “working from home” but

8

was “required to work from the District office, and there was no formal accommodation in

9

place permitting him to work full-time from [another] location”]; id. at 6 ¶ 18 [Wiley,

10

stating that “[Simpson’s] race, age, gender, national origin, and genetic information did not

11

play any role in initiating the DRAC process . . . .”]; id. at 89-90 ¶ 24 [Sweeney, stating

12

that Simpson’s medical status “played no role in my decision to issue [Simpson] a Notice

13

of Emergency Placement”].) The Court finds there is no genuine dispute of material fact

14

as to whether the allegedly harassing conduct was “because of” Simpson’s cancer diagnosis

15

or any related consideration.

16

3.

Constructive Discharge

17

For purposes of Title VII, “[a] constructive discharge occurs when a person quits

18

his job under circumstances in which a reasonable person would feel that the conditions of

19

employment have become intolerable.” Lawson v. Washington, 296 F.3d 799, 805 (9th

20

Cir. 2002) (emphasis omitted). Put another way, “constructive discharge occurs when the

21

working conditions deteriorate, as a result of discrimination, to the point that they become

22

sufficiently extraordinary and egregious to overcome the normal motivation of a

23

competent, diligent, and reasonable employee to remain on the job to earn a livelihood and

24

to serve his or her employer.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.

25

2000) (internal quotations omitted). Thus, “a plaintiff alleging a constructive discharge

26

must show some aggravating factors, such as a ‘continuous pattern of discriminatory

27

treatment.” Sanchez, 915 F.2d at 431. However, “an employee need not demonstrate that

28

his employer intended to force him to resign, but merely that his conditions of employment

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1

were objectively intolerable.” Lawson, 296 F.3d at 805.

2

Here, Simpson’s constructive discharge claim fails as a matter of law for the same

3

reasons as his hostile work environment claim—there is insufficient evidence of

4

discriminatory treatment by the Agency from which a jury could conclude that Simpson’s

5

work environment was abusive. “Where a plaintiff fails to demonstrate the severe or

6

pervasive harassment necessary to support a hostile work environment claim, it will be

7

impossible for her to meet the higher standard of constructive discharge: conditions so

8

intolerable that a reasonable person would leave the job.” Brooks, 229 F.3d at 930. Even

9

if Simpson disliked the terms of his employment (e.g., the altered schedule or time spent

10

working outside of business hours), there is no evidence that his working conditions were

11

“intolerable” or “discriminatory.” See also Steiner v. Showboat Operating Co., 25 F.3d

12

1459, 1465 (9th Cir. 1994) (“To survive Showboat’s motion for summary judgment on this

13

claim, Steiner must show that there are triable issues of fact as to whether a reasonable

14

person in her position would have felt that she was forced to quit because of intolerable

15

and discriminatory working conditions.”) (cleaned up); Atwood v. Consol. Elec. Distribs.,

16

Inc., 231 F. App’x 767, 769 (9th Cir. 2007) (“The mere fact that Atwood felt that his

17

termination was inevitable is not enough to reach a constructive discharge.”).

18

Accordingly,

19

IT IS ORDERED that the Agency’s motion for summary judgment (Doc. 52) is

20

granted. Because there are no remaining claims in this case, the Clerk of Court shall enter

21

judgment accordingly and terminate this action.

22

Dated this 17th day of November, 2022.

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