Keith v. Jewell

Filing 40

ORDER granting Defendant Sally Jewell's 33 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 6/29/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Benjamin Keith,
Plaintiff,

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No. CV-14-08082-PCT-GMS
ORDER

v.
Sally Jewell, Secretary of the U.S.
Department of the Interior,

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Defendant.

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Pending before the Court is the Motion for Summary Judgment by Defendant
Sally Jewell. (Doc. 33.) For the following reasons, the Court grants the motion.

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BACKGROUND

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Plaintiff Benjamin Keith, a 54 year old contract employee with the Bureau of

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Indian Education, was employed as a Facility Manager at the Kaibeto Boarding School.

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The school principal, Phyllis Newell-Yazzie, detailed him to the positions of Residential

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Assistant and Security Guard and then ultimately chose not to renew his annual

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employment contract. Keith brings the present suit under the Age Discrimination in

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Employment Act (ADEA), 29 U.S.C. § 621 et seq.

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DISCUSSION
I.

Legal Standard

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The Court grants summary judgment when the 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). In making this determination, the Court views the

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evidence “in a light most favorable to the non-moving party.”

Warren v. City of

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Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). “[A] party seeking summary judgment

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always bears the initial responsibility of informing the district court of the basis for its

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motion, and identifying those portions of [the record] which it believes demonstrate the

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absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986). The party opposing summary judgment “may not rest upon the mere allegations

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or denials of [the party’s] pleadings, but . . . must set forth specific facts showing that

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there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co.

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v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Brinson v. Linda Rose Joint

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Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Substantive law determines which facts are

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material, and “[o]nly disputes over facts that might affect the outcome of the suit under

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the governing law will properly preclude the entry of summary judgment.” Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is

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such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v.

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Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S.

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at 248).

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II.

Analysis

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“The ADEA makes it unlawful ‘to discharge any individual . . . because of such

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individual’s age.’” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.

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2008) (quoting 29 U.S.C. § 623(a)(1)). ADEA claims based on circumstantial evidence

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of discrimination are evaluated pursuant to the three-stage burden-shifting framework

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outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diaz, 521 F.3d at

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1207. “Under this framework, the employee must first establish a prima facie case of age

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discrimination.” Id. If a prima facie case is established, “the burden shifts to the

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employer to articulate a legitimate, non-discriminatory reason for its adverse employment

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action.” Id. The burden then shifts back to the employee who must “prove that the

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reason advanced by the employer constitutes mere pretext for unlawful discrimination.”

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Id. “As a general matter, the plaintiff in an employment discrimination action need

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produce very little evidence in order to overcome an employer’s motion for summary

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judgment.” Id. (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124

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(9th Cir. 2000)).

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To establish a prima facie case of disparate treatment, a plaintiff must demonstrate

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that he was “(1) at least forty years old, (2) performing his job satisfactorily, (3)

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discharged, and (4) either replaced by substantially younger employees with equal or

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inferior qualifications or discharged under circumstances otherwise ‘giving rise to an

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inference of age discrimination.’” Id.

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Here, Keith “failed to create a triable issue concerning whether his job

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performance was satisfactory.”1 See id. at 1208. Defendant had produced evidence of

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various failures to perform important job functions, often with serious repercussions.

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(Doc. 34 at ¶ 19-26.) Keith’s only attempt to “set forth specific facts showing that there

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is a genuine issue for trial,” as is required by Rule 56(e), is to state that Keith “denies in

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whole or in part . . . nearly half of all facts contained within Defendant’s Motion for

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Summary Judgment,” listing all of the disputed facts by number, without comment or

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discussion. (Doc. 37 at 1-2.) Keith’s only evidence is Keith’s declaration, submitted in

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tandem with his statement of facts and mirroring the statement of facts almost verbatim.

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(Doc. 38-1.) This is wholly insufficient. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

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888-89 (1990) (“Rule 56(e) provides that judgment ‘shall be entered’ against the

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nonmoving party unless affidavits or other evidence ‘set forth specific facts showing that

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there is a genuine issue for trial.’ The object of this provision is not to replace conclusory

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allegations of the complaint or answer with conclusory allegations of an affidavit.”).

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Moreover, Keith purports to “deny” Defendant’s various facts regarding his

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failures to perform his job functions, but he explicitly or implicitly concedes that the job

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In reality, Plaintiff failed to create any triable issues at all. He merely issued a cursory
denial of many of the facts alleged from the record by the Defendant. This is wholly
insufficient to defeat summary judgment. “The non-moving party must set forth specific
facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Brinson
v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Defendant has failed to
do so here.
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functions were not performed. See Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly

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support an assertion of fact or fails to properly address another party’s assertion of fact as

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required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the

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motion.”).

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Defendant produced evidence that in October 2010, Principal Yazzie generated a

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work order to cut down protruding bed frames that had sharp edges in a girls’ dormitory.

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(Doc. 34 at ¶ 19.) Some of the bed frames were cut down but others were not. (Id.)

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Keith conceded that he checked only “a portion of the bed rails” and that he “decided that

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because all of the bed rails checked thus far were correct, it was not necessary to check

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each and every bed rail.” (Doc. 38 at ¶ 19.)

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Keith does not dispute that he “failed to repair or have his staff repair a water leak

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in the laundry room of a housing unit, which resulted in the growth of black mold in the

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staff’s living quarters, which had to be abandoned after staff members grew ill from

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breathing toxic mold spores,” nor that he “admitted he did not inspect the repair or fill out

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a work order to inspect for mold,” nor that Principal Yazzie reported that he was

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“smiling” during their discussion of this issue, such that she “asked him if he was taking

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this situation seriously.” (Doc. 34 at ¶ 21; Doc. 38 at ¶ 21.)

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Defendant produced evidence that Keith was asked to repair windows that would

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not lock properly at the assistant principal’s apartment, that Keith represented that the

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windows had been repaired, and that the assistant principal discovered soon after that the

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windows had not been repaired. (Doc. 34 at ¶ 22.) Keith implicitly conceded as much,

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responding only with the excuse that “[a] part needed to be ordered,” and explicitly

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conceded that he did not check all the windows in the apartment “because they were too

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high to reach.” (Doc. 38 at ¶ 22; Doc. 34 at ¶ 22.)

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Defendant produced evidence that beginning in the fall of 2010, Principal Yazzie

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repeatedly asked Keith to install a security system and that Keith did not begin the

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installation until December 2011. (Doc. 34 at ¶ 24.) Moreover, when Keith finally began

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the installation, he discovered that a DVR (one of the components of the security system)

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was missing, but he failed to file a police report and acknowledged that he should have

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done so. (Id.) Keith conceded as much, responding only that he “did not believe it was

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necessary” to inventory the DVR because it was valued under $5000. (Doc. 38 at ¶ 24;

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Doc. 38-1 at ¶ 24.)

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Defendant produced evidence that equipment—a chainsaw and a welder—went

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missing during the time Keith was the Facility Manager and that Keith admitted he had

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not performed an inventory of equipment since his second year on the job. (Doc. 34 at ¶

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25.)

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recovered, but he implicitly conceded that the items went missing and that he failed to

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Keith responded that the chainsaw was stolen and the welding machine was

inventory the equipment. (Doc. 38 at ¶ 25.)

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Moreover, Keith conceded that he was given warnings regarding his unsatisfactory

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job performance. Keith admits that Principal Yazzie met with him on various occasions

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to tell him what he was doing wrong and further admits that Lemuel Adson, a second line

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supervisor of Keith also spoke to him about his problematic job performance. (Doc. 38 at

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¶ 7-8.) Keith also admits to receiving a letter of reprimand which addressed his failure to

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follow instructions and perform his duties. (Id. at ¶ 10.)

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When an employee repeatedly violates the reasonable orders of his supervisors

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and continues to do so even after receiving warnings, no reasonable jury could find the

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job performance to be satisfactory. See Diaz, 521 F.3d at 1208. As such, Keith fails to

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establish a prima facie case of discrimination. Therefore, the Court need not address the

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remainder of the McDonnell Douglas analysis. Id.
CONCLUSION

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Keith fails to establish a prima facie case of discrimination.

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IT IS THEREFORE ORDERED that the Motion for Summary Judgment by

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Defendant Sally Jewell (Doc. 33) is GRANTED. The Clerk of Court is directed to enter

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judgment accordingly.

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Dated this 29th day of June, 2016.

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Honorable G. Murray Snow
United States District Judge

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