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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Keith, Plaintiff, 10 11 12 No. CV-14-08082-PCT-GMS ORDER v. Sally Jewell, Secretary of the U.S. Department of the Interior, 13 Defendant. 14 15 16 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. 17 BACKGROUND 18 Plaintiff Benjamin Keith, a 54 year old contract employee with the Bureau of 19 Indian Education, was employed as a Facility Manager at the Kaibeto Boarding School. 20 The school principal, Phyllis Newell-Yazzie, detailed him to the positions of Residential 21 Assistant and Security Guard and then ultimately chose not to renew his annual 22 employment contract. Keith brings the present suit under the Age Discrimination in 23 Employment Act (ADEA), 29 U.S.C. § 621 et seq. 24 25 DISCUSSION I. Legal Standard 26 The Court grants summary judgment when the movant “shows that there is no 27 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 28 of law.” Fed. R. Civ. P. 56(a). In making this determination, the Court views the 1 evidence “in a light most favorable to the non-moving party.” Warren v. City of 2 Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). “[A] party seeking summary judgment 3 always bears the initial responsibility of informing the district court of the basis for its 4 motion, and identifying those portions of [the record] which it believes demonstrate the 5 absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 6 (1986). The party opposing summary judgment “may not rest upon the mere allegations 7 or denials of [the party’s] pleadings, but . . . must set forth specific facts showing that 8 there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co. 9 v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Brinson v. Linda Rose Joint 10 Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Substantive law determines which facts are 11 material, and “[o]nly disputes over facts that might affect the outcome of the suit under 12 the governing law will properly preclude the entry of summary judgment.” Anderson v. 13 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is 14 such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v. 15 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. 16 at 248). 17 II. Analysis 18 “The ADEA makes it unlawful ‘to discharge any individual . . . because of such 19 individual’s age.’” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 20 2008) (quoting 29 U.S.C. § 623(a)(1)). ADEA claims based on circumstantial evidence 21 of discrimination are evaluated pursuant to the three-stage burden-shifting framework 22 outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diaz, 521 F.3d at 23 1207. “Under this framework, the employee must first establish a prima facie case of age 24 discrimination.” Id. If a prima facie case is established, “the burden shifts to the 25 employer to articulate a legitimate, non-discriminatory reason for its adverse employment 26 action.” Id. The burden then shifts back to the employee who must “prove that the 27 reason advanced by the employer constitutes mere pretext for unlawful discrimination.” 28 Id. “As a general matter, the plaintiff in an employment discrimination action need -2- 1 produce very little evidence in order to overcome an employer’s motion for summary 2 judgment.” Id. (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 3 (9th Cir. 2000)). 4 To establish a prima facie case of disparate treatment, a plaintiff must demonstrate 5 that he was “(1) at least forty years old, (2) performing his job satisfactorily, (3) 6 discharged, and (4) either replaced by substantially younger employees with equal or 7 inferior qualifications or discharged under circumstances otherwise ‘giving rise to an 8 inference of age discrimination.’” Id. 9 Here, Keith “failed to create a triable issue concerning whether his job 10 performance was satisfactory.”1 See id. at 1208. Defendant had produced evidence of 11 various failures to perform important job functions, often with serious repercussions. 12 (Doc. 34 at ¶ 19-26.) Keith’s only attempt to “set forth specific facts showing that there 13 is a genuine issue for trial,” as is required by Rule 56(e), is to state that Keith “denies in 14 whole or in part . . . nearly half of all facts contained within Defendant’s Motion for 15 Summary Judgment,” listing all of the disputed facts by number, without comment or 16 discussion. (Doc. 37 at 1-2.) Keith’s only evidence is Keith’s declaration, submitted in 17 tandem with his statement of facts and mirroring the statement of facts almost verbatim. 18 (Doc. 38-1.) This is wholly insufficient. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 19 888-89 (1990) (“Rule 56(e) provides that judgment ‘shall be entered’ against the 20 nonmoving party unless affidavits or other evidence ‘set forth specific facts showing that 21 there is a genuine issue for trial.’ The object of this provision is not to replace conclusory 22 allegations of the complaint or answer with conclusory allegations of an affidavit.”). 23 Moreover, Keith purports to “deny” Defendant’s various facts regarding his 24 failures to perform his job functions, but he explicitly or implicitly concedes that the job 25 1 26 27 28 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. -3- 1 functions were not performed. See Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly 2 support an assertion of fact or fails to properly address another party’s assertion of fact as 3 required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the 4 motion.”). 5 Defendant produced evidence that in October 2010, Principal Yazzie generated a 6 work order to cut down protruding bed frames that had sharp edges in a girls’ dormitory. 7 (Doc. 34 at ¶ 19.) Some of the bed frames were cut down but others were not. (Id.) 8 Keith conceded that he checked only “a portion of the bed rails” and that he “decided that 9 because all of the bed rails checked thus far were correct, it was not necessary to check 10 each and every bed rail.” (Doc. 38 at ¶ 19.) 11 Keith does not dispute that he “failed to repair or have his staff repair a water leak 12 in the laundry room of a housing unit, which resulted in the growth of black mold in the 13 staff’s living quarters, which had to be abandoned after staff members grew ill from 14 breathing toxic mold spores,” nor that he “admitted he did not inspect the repair or fill out 15 a work order to inspect for mold,” nor that Principal Yazzie reported that he was 16 “smiling” during their discussion of this issue, such that she “asked him if he was taking 17 this situation seriously.” (Doc. 34 at ¶ 21; Doc. 38 at ¶ 21.) 18 Defendant produced evidence that Keith was asked to repair windows that would 19 not lock properly at the assistant principal’s apartment, that Keith represented that the 20 windows had been repaired, and that the assistant principal discovered soon after that the 21 windows had not been repaired. (Doc. 34 at ¶ 22.) Keith implicitly conceded as much, 22 responding only with the excuse that “[a] part needed to be ordered,” and explicitly 23 conceded that he did not check all the windows in the apartment “because they were too 24 high to reach.” (Doc. 38 at ¶ 22; Doc. 34 at ¶ 22.) 25 Defendant produced evidence that beginning in the fall of 2010, Principal Yazzie 26 repeatedly asked Keith to install a security system and that Keith did not begin the 27 installation until December 2011. (Doc. 34 at ¶ 24.) Moreover, when Keith finally began 28 the installation, he discovered that a DVR (one of the components of the security system) -4- 1 was missing, but he failed to file a police report and acknowledged that he should have 2 done so. (Id.) Keith conceded as much, responding only that he “did not believe it was 3 necessary” to inventory the DVR because it was valued under $5000. (Doc. 38 at ¶ 24; 4 Doc. 38-1 at ¶ 24.) 5 Defendant produced evidence that equipment—a chainsaw and a welder—went 6 missing during the time Keith was the Facility Manager and that Keith admitted he had 7 not performed an inventory of equipment since his second year on the job. (Doc. 34 at ¶ 8 25.) 9 recovered, but he implicitly conceded that the items went missing and that he failed to 10 Keith responded that the chainsaw was stolen and the welding machine was inventory the equipment. (Doc. 38 at ¶ 25.) 11 Moreover, Keith conceded that he was given warnings regarding his unsatisfactory 12 job performance. Keith admits that Principal Yazzie met with him on various occasions 13 to tell him what he was doing wrong and further admits that Lemuel Adson, a second line 14 supervisor of Keith also spoke to him about his problematic job performance. (Doc. 38 at 15 ¶ 7-8.) Keith also admits to receiving a letter of reprimand which addressed his failure to 16 follow instructions and perform his duties. (Id. at ¶ 10.) 17 When an employee repeatedly violates the reasonable orders of his supervisors 18 and continues to do so even after receiving warnings, no reasonable jury could find the 19 job performance to be satisfactory. See Diaz, 521 F.3d at 1208. As such, Keith fails to 20 establish a prima facie case of discrimination. Therefore, the Court need not address the 21 remainder of the McDonnell Douglas analysis. Id. CONCLUSION 22 Keith fails to establish a prima facie case of discrimination. 23 24 /// 25 /// 26 /// 27 /// 28 /// -5- 1 IT IS THEREFORE ORDERED that the Motion for Summary Judgment by 2 Defendant Sally Jewell (Doc. 33) is GRANTED. The Clerk of Court is directed to enter 3 judgment accordingly. 4 Dated this 29th day of June, 2016. 5 6 7 Honorable G. Murray Snow United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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