Tipaksorn Tungjunyatham v. Mike Johanns

Filing 45

ORDER GRANTING IN PART and DENYING IN PART 29 Motion for Summary Judgment, signed by Magistrate Judge Sandra M. Snyder on 11/12/2009. (Martin, S)

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 TIPAKSORN TUNGJUNYATHAM, 10 11 12 13 14 15 16 Plaintiff is proceeding pro se with a civil action in this 17 Court. The matter has been referred to the Magistrate Judge for 18 all proceedings, including the entry of final judgment, pursuant 19 to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 7320 301. Pending before the Court is the motion of Defendant Mike 21 Johanns, Secretary of United States Department of Agriculture 22 Agency, for summary judgment or, in the alternative, for summary 23 adjudication, filed with extensive supporting papers on June 26, 24 2009. Plaintiff filed opposition and exhibits on July 17 and 22, 25 2006, but those documents were superseded by opposition and 26 27 28 1 ) ) Plaintiff, ) v. ) ) MIKE JOHANNS, Secretary of the) U.S. Department of Agriculture) Agency, ) ) Defendant. ) ) ) 1:06-cv-1764-SMS ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION (DOC. 29)

1 exhibits filed on August 17, 2009 (Docs. 35 and 36).1 Defendant 2 filed a reply with attachments on September 16, 2009; Plaintiff's 3 unsolicited responses filed on September 18, 2009, were stricken. 4 Plaintiff's claims include 1) discrimination based on

5 Plaintiff's Thai national origin in the form of a failure to 6 select her for a position for which she applied in 2002; 2) 7 retaliation for Plaintiff's having registered a formal EEO 8 complaint regarding wrongful denial of promotion, consisting of 9 retraining from September 17, 2004, until February 17, 2005, for 10 failure to pass pathology training despite Plaintiff's Ph.D. 11 degree in pathology from the University of Tokyo and her superior 12 pathology skills, and unspecified harassment and ethnic 13 intimidation, which resulted in a mental breakdown in December 14 2004; 3) wrongful termination; and 4) intimidation and violation 15 of privacy on March 3 and 6, 2006, when the agency representative 16 faxed confidential documents to Plaintiff's representative while 17 the latter was out of state. (Amended Sched. Rprt. (Doc. 14) pp. 18 1-3; Sched. Conf. Order (Doc. 19 20 I. Summary Judgment Summary judgment is appropriate when it is demonstrated that 15) pp. 2-4.)

21 there exists no genuine issue as to any material fact, and that 22 the moving party is entitled to judgment as a matter of law. 23 24 25 26 27 28
In the reply Defendant notes that Plaintiff failed to comply with Local R u l e 56-260(b) by failing to reproduce Defendant's undisputed facts and a d m i t t i n g and denying the specific facts. Defendant does not directly seek any r e l i e f with respect to Plaintiff's failure to comply with the rule. (Reply p. 2 n. 1.) The Court has broad discretion to interpret and apply its local r u l e s . Dulange v. Dutro Construction, Inc., 183 F.3d 916, 919 n. 2 (9 th Cir. 1 9 9 9 ) . In the exercise of this discretion and the Court's inherent power to c o n t r o l its docket and the disposition of its cases with economy of time and e f f o r t for both the court and the parties, the Court will review the e v i d e n t i a r y materials timely submitted by both parties to determine the p r e s e n c e or absence of an issue of fact.
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1 Fed. R. Civ. P. 56(c). Under summary judgment practice, the 2 moving party 3 4 5 6 7 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is the 8 moving party's burden to establish that there exists no genuine 9 issue of material fact and that the moving party is entitled to 10 judgment as a matter of law. British Airways Board v. Boeing Co., 11 585 F.2d 946, 951 (9th Cir. 1978). 12 Where a party with the ultimate burden of persuasion at 13 trial as to a matter moves for summary judgment, it must 14 demonstrate affirmatively by evidence each essential element of 15 its claim or affirmative defense and must establish that there is 16 no triable issue of fact as to each essential element such that a 17 rational trier of fact could render a judgment in its favor. 18 Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 19 888 (9th Cir. 2003). If a party moves for summary judgment with 20 respect to a matter as to which the opposing party has the 21 ultimate burden of persuasion at trial, then the moving party 22 must show that the opposing party cannot meet its burden of proof 23 at trial by establishing that there is no genuine issue of 24 material fact as to an essential element of the opposing party's 25 claim or defense; the moving party must meet the initial burden 26 of producing evidence or showing an absence of evidence as well 27 as the ultimate burden of persuasion. Nissan Fire Ltd. v. Fritz 28 3 [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

1 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). In order to carry 2 its burden of production, the moving party must either produce 3 evidence negating an essential element of the opposing party's 4 claim or defense or show that the nonmoving party does not have 5 enough evidence of an essential element to carry its ultimate 6 burden of persuasion at trial. Id. (citing High Tech Gays v. 7 Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 8 1990)). In order to carry its ultimate burden of persuasion on 9 the motion, the moving party must persuade the court that there 10 is no genuine issue of material fact. Id. 11 However, "where the nonmoving party will bear the burden of

12 proof at trial on a dispositive issue, a summary judgment motion 13 may properly be made in reliance solely on the pleadings, 14 depositions, answers to interrogatories, and admissions on file." 15 Celotex Corp. v. Catrett, 477 U.S. 317, 323. Indeed, summary 16 judgment should be entered, after adequate time for discovery and 17 upon motion, against a party who fails to make a showing 18 sufficient to establish the existence of an element essential to 19 that party's case, and on which that party will bear the burden 20 of proof at trial. Id. "[A] complete failure of proof concerning 21 an essential element of the nonmoving party's case necessarily 22 renders all other facts immaterial." Id. In such a circumstance, 23 summary judgment should be granted, "so long as whatever is 24 before the district court demonstrates that the standard for 25 entry of summary judgment, as set forth in Rule 56(c), is 26 satisfied." Id. at 323. 27 If the moving party meets its initial responsibility, the

28 burden then shifts to the opposing party to establish that a 4

1 genuine issue as to any material fact actually does exist. 2 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 3 586 (1986). In attempting to establish the existence of this 4 factual dispute, the opposing party may not rely upon the denials 5 of its pleadings, but is required to tender evidence of specific 6 facts in the form of affidavits or admissible discovery material 7 in support of its contention that the dispute exists. Rule 56(e); 8 Matsushita, 475 U.S. at 586 n.11. The opposing party must 9 demonstrate that the fact in contention is material, i.e., a fact 10 that might affect the outcome of the suit under the governing 11 law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 12 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 13 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, 14 i.e., the evidence is such that a reasonable jury could return a 15 verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 16 818 F.2d 1433, 1436 (9th Cir. 1987). 17 In the endeavor to establish the existence of a factual

18 dispute, the opposing party need not establish a material issue 19 of fact conclusively in its favor. It is sufficient that "the 20 claimed factual dispute be shown to require a jury or judge to 21 resolve the parties' differing versions of the truth at trial." 22 T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary 23 judgment is to 'pierce the pleadings and to assess the proof in 24 order to see whether there is a genuine need for trial.'" 25 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) 26 advisory committee's note on 1963 amendments). The evidence of 27 the opposing party is to be believed, Anderson, 477 U.S. at 255, 28 and all reasonable inferences that may be drawn from the facts 5

1 placed before the court must be drawn in favor of the opposing 2 party, Matsushita, 475 U.S. at 587 (citing United States v. 3 Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). 4 Nevertheless, it is the opposing party's obligation to produce a 5 factual predicate from which an inference may be drawn. Richards 6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 7 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Although the 8 Court must not weigh the evidence, the Court must draw reasonable 9 inferences; evidence that is too insubstantial or speculative may 10 be insufficient to establish the existence of a genuine issue of 11 material fact. Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 12 1255 (9th Cir. 1982); Dept. of Commerce v. U.S. House of Rep., 525 13 U.S. 316, 334 (1999). To demonstrate a genuine issue, the 14 opposing party "must do more than simply show that there is some 15 metaphysical doubt as to the material facts." Matsushita, 475 16 U.S. at 586. A mere scintilla of evidence supporting the opposing 17 party's position will not suffice; there must be enough of a 18 showing that the jury could reasonably find for that party. 19 Anderson, 477 U.S. at 251-52. Where the record taken as a whole 20 could not lead a rational trier of fact to find for the nonmoving 21 party, there is no genuine issue for trial. Id. at 587. 22 The showings must consist of admissible evidence,

23 Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 24 1335 n.9 (9th Cir. 1980), or pleadings, depositions, answers to 25 interrogatories, admissions, and affidavits or declarations, Fed. 26 R. Civ. P. 56(c). A court cannot draw an inference about facts 27 not specifically put in the record by a party, and a court will 28 not assume that general averments embrace specific facts needed 6

1 to sustain a complaint, Lujan v. National Wildlife Federation, 2 497 U.S. 871, 887 (1990). Legal memoranda and oral argument are 3 not evidence and do not create issues of fact capable of 4 defeating an otherwise valid motion for summary judgment. British 5 Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). 6 The Court is not obligated to consider matters that are in

7 the record but are not specifically brought to its attention; the 8 parties must designate and refer to specific triable facts. Even 9 in the absence of a local rule, for evidence to be considered, 10 the party seeking to rely on it must specify the fact by 11 indicating what the evidence is or says and must indicate where 12 it is located in the file. Although the Court has discretion in 13 appropriate circumstances to consider other material, it has no 14 duty to search the record for evidence establishing a material 15 fact. Carmen v. San Francisco United School Dist., 237 F.3d 1026, 16 1029 (9th Cir. 2001). 17 A party moving for summary judgment is entitled to the

18 benefit of any relevant presumptions that support the motion 19 provided that the facts giving rise to the presumption are 20 undisputed. Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 21 (9th Cir. 1982). 22 23 24 II. Failure to Exhaust Administrative Remedies for Allegations concerning Nonselection for an FSIS position in 2002 (EEO Number 040330) Title 42 U.S.C. § 2000e-16(c) provides that to bring a claim

25 in a district court pursuant to Title VII, a plaintiff must first 26 exhaust her or his administrative remedies, which includes filing 27 a civil action within ninety days after receipt of notice of a 28 final agency (EEOC) decision, 42 U.S.C. § 2000e-16(c), 29 C.F.R. 7

1 § 1614.407(c); Charles v. Garrett, 12 F.3d 870, 874 (9th Cir. 2 1993). The requirement of exhaustion must be demonstrated, or the 3 action is barred. Brown v. General Services Administration 425 4 U.S. 820, 831-33 (1976); Nelmida v. Shelly Eurocars, Inc., 112 5 F.3d 380, 383 (9th Cir. 1997). 6 In a footnote (Motion p. 9 n. 5), Defendant argues that

7 Plaintiff's EEO claim number 40330 regarding her non-selection 8 for a FSIS position soon after she had been hired in 2002 is 9 time-barred.2 10 This argument concerns Plaintiff's allegations of

11 discriminatory conduct based on national origin or color in 12 violation of 42 U.S.C. § 2000e-2(a)(1) (Title VII), which makes 13 it an unlawful employment practice for an employer to fail or 14 refuse to hire or to discharge any individual, or otherwise to 15 discriminate against any individual with respect to his or her 16 compensation, terms, conditions, or privileges of employment 17 because of the individual's race or color. Included in the 18 complaint filed in this Court was a reference to a claim with EEO 19 number 040330, which Defendant characterizes as relating to 20 Plaintiff's non-selection for a position with the FSIS shortly 21 after Plaintiff was hired in 2002. (Cmplt. [Doc. 1], p. 2, ll. 22 17-18.) 23 Plaintiff admits in the course of narration in her

24 opposition that her judicial complaint filed in this action on 25 26 27 28
This particular instance of non-selection is to be distinguished from t h e later allegedly discriminatory failure to hire Plaintiff for the v e t e r i n a r y medical officer position with the Animal and Plant Health I n s p e c t i o n Service (APHIS) of the USDA, meant to address poultry with c o n t a g i o u s diseases, including Exotic Newcastle Disease (END), which is d i s c u s s e d later in this order.
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1 December 7, 2006 (Doc. 1), erroneously and as a result of 2 unintentional clerical error referred to EEO claim number 40330 3 on p. 2, lines 17 and 18; Plaintiff states that the issues 4 described in that particular EEO complaint "never were stated in 5 this civil action," the claim was closed at the EEOC OFO, and 6 Plaintiff did not pursue the issue further. 7 20.) 8 It therefore appears that Plaintiff has admitted that she (Opp. p. 2, ll. 9-

9 did not exhaust administrative remedies with respect to this 10 claim. Although Plaintiff explains that the reference to the EEO 11 claim was accidental, the allegations nevertheless remain in the 12 complaint, which has not been amended. 13 The Court concludes that Plaintiff has failed to submit

14 evidence sufficient to demonstrate a genuine dispute as to any 15 material fact concerning exhaustion of administrative remedies 16 with respect to Plaintiff's claim concerning non-selection for a 17 FSIS position shortly after she was hired in 2002. Plaintiff's 18 claim is thus barred, and Defendant is entitled to judgment on 19 this claim. 20 21 Defendant argues that there is a bar to Plaintiff's claim 22 that her removal from her position was discriminatory because 23 Plaintiff failed to file a timely action in this Court. 24 Title 42 U.S.C. § 2000e-5(f)(1) provides in pertinent part: 25 26 27 28 If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not 9 III. Timeliness of the Complaint with respect to Plaintiff's Termination

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filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. (Emphasis added.)

9 This ninety-day period is a statute of limitations. Scholar v. 10 Pacific Bell, 963 F.2d 264, 266-67 (9th Cir.1992). Therefore, if 11 a claimant fails to file the civil action within the ninety-day 12 period, the action is barred. Id. at 267. 13 Defendant argues that because the case initially was set

14 before the MSPB, the governing statutes concerning the time for 15 filing the action here are 5 U.S.C. § 7702 and 7703(b), which 16 provide that if the aggrieved person seeks review of the MSPB 17 decision by the EEOC, a civil action for review of the EEOC's 18 decision "must be filed within 30 days after the date the 19 individual filing the case received notice of the judicially 20 reviewable action under section 7702." Defendant cites to Sloan 21 v. West, 140 F.3d 1255 (9th Cir. 1998), in which the Court 22 reviewed so-called mixed cases, such as the instant case, that 23 involve both a claimed adverse employment action and a related 24 Title VII violation, which may be exhausted for Title VII 25 purposes by asserting both claims before the MSPB, receiving a 26 decision from the MSPB, and either appealing thereafter to the 27 EEOC, or directly filing a district court action; if the 28 complaint is appealed to the EEOC, the employee may appeal to the 10

1 district court within thirty days of receipt of notice that the 2 Commission concurs with the decision of the MSPB. 140 F.3d at 3 1258-61 (citing in part to 29 C.F.R. § 1614.310(d) and 5 C.F.R. § 4 1201.161(f)). 5 The parallel provisions concerning the time for filing a §§ 2000-e-16(c) and

6 district court action set forth in

7 7703(b)(2) have been construed together. Lee v. Sullivan, 787 8 F.Supp. 921, 928 (N.D.Cal. 1992) (holding that it would be unjust 9 to hold that a district court action was untimely where the 10 notices given by the EEOC and MSPB inaccurately informed the 11 plaintiff that she could only seek relief from the Court of 12 Appeals and failed to inform her that she could obtain review in 13 a district court). 14 Statutes of limitations such as these are subject to

15 equitable tolling. See, Nelmida v. Shelly Eurocars, Inc. 112 F.3d 16 380, 384 (9th Cir. 1997). The doctrine of equitable tolling has 17 been delineated as follows: 18 19 20 21 22 23 24 25 26 27 28 A statute of limitations is subject to the doctrine of equitable tolling; therefore, relief from strict construction of a statute of limitations is readily available in extreme cases and gives the court latitude in a case-by-case analysis. See Harvey, 813 F.2d at 654. See also Espinoza, 754 F.2d at 1250. The equitable tolling doctrine has been applied by the Supreme Court in certain circumstances, but it has been applied sparingly; for example, the Supreme Court has allowed equitable tolling when the statute of limitations was not complied with because of defective pleadings, when a claimant was tricked by an adversary into letting a deadline expire, and when the EEOC's notice of the statutory period was clearly inadequate. See Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990). See also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984) (per curiam). Courts have been generally unforgiving, however, when a late filing is due to claimant's failure "to exercise due diligence in preserving his 11

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legal rights." Irwin, 111 S.Ct. at 458. (Emphasis added.) Scholar v. Pacific Bell, 963 F.2d at 267-68. See also, Gates v.

3 Georgia-Pacific Corp., 492 F.2d 292, 295 (9th Cir. 1974) 4 (equitable tolling appropriate for the failure to bring a civil 5 action within thirty days after notification by the Commission, 6 where the notification failed to inform the aggrieved person of 7 the time period for bringing a civil action); Harms v. I.R.S., 8 321 F.3d 1001, 1007 (10th Cir. 2003) (noting that equitable 9 tolling is permitted where a plaintiff is actively misled or 10 prevented from asserting his rights, but not finding a basis for 11 equitable tolling where although the notifying agency erroneously 12 instructed him to take his claims to the MSPB, the aggrieved 13 person was not misled and did not rely on the notice); Lucht v. 14 Encompass Corp., 491 F.Supp.2d 856, 864-65 (S.D.Iowa 2007) 15 (noting that equitable tolling is generally justified where the 16 circumstances are truly beyond the control of the plaintiff, as 17 when the notice from the EEOC is inadequate or the agency 18 provides inaccurate or misleading information, and the plaintiff 19 has been diligent, but declining to toll the deadline where the 20 EEOC notice contained typographical errors but was essentially 21 coherent). 22 Here, Defendant submitted in support of its motion the 23 declaration of James E. Varsalone, who before retirement in 2008 24 served as the representative for the USDA in connection with 25 Plaintiff's administrative claim relating to discrimination and 26 alleged wrongful termination before the Merit System Protection 27 Board (MSPD). Plaintiff's representative was Dr. Milosav Muller. 28 12

1 (Varsalone Decl., Doc. 29.5, ¶¶ 1-2.) Varsalone declared that 2 Exhibit B to the declaration was a true and correct copy of the 3 final decision upholding the termination of Plaintiff and finding 4 no discrimination. (Id. at ¶ 3.) Exhibit B reflects that the EEOC 5 reviewed the MSPB's decision in which the MSPB found no 6 discrimination; the EEOC concluded that the MSPB's decision 7 constituted a correct interpretation of the governing law and 8 policies and was supported by the evidence. (Second page of Ex. 9 B, marked as "4 OF 5" and "Exh 31 p4.") The following text 10 appears in Defendant's Exh. B: 11 12 13 14 15 16 This decision of the Commission is final, and there is no further right of administrative appeal from the Commissioner's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title....

17 (Id.) The document continues with a specification of terms and 18 statement of consequences of failure to name the correct person, 19 and advice as to the right to request counsel. (Id.)3 20 21 22 23 24 25 26 27 28
There has been no objection to Plaintiff's declaration, which consists of her opposition and list of exhibits, w ith a purported jurat (Doc. 35). The opposition contains factual assertions as well as argument and conclusions. The d o c u m e n t is signed and notarized (Doc. 35 pp. 25-27). The jurat states in pertinent part the following: I declare under penalty of perjury that it is true to the best of my knowledge and belief." T h e qualification of truth "to the best of my knowledge and belief" is not in compliance with 28 U.S.C. § 1746, w h ic h requires that a declaration be subscribed as true under penalty of perjury, and be executed substantially in the s ta tu to r y form, which in turn requires a declaration "under penalty of perjury that the foregoing is true and correct." 2 8 U.S.C. § 1746. Although a lack of swearing is not a fatal defect, the declaration must be made under penalty of p e r j u r y and must be attested to be true. Cobell v. Norton, 310 F.Supp.2d 77, 84 (D.D.C. 2004) (statement of truth b a s e d on "knowledge, information, and belief" insufficient); Kersting v. United States, 865 F.Supp. 669, 776-77 (D. H a w a ii 1994) (necessary elements are that the unsworn declaration contains the phrase "under penalty of perjury" a n d states that the document is true). Here, the statement is only that it is true and correct as far as Plaintiff knows a n d believes. The nature and extent of that qualification is uncertain and is subject to being clarified only by P l a in t i ff . H o w e v e r , as there has been no formal objection from Defendant, any objection is considered to have been w a iv e d .
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In contrast, Plaintiff submitted a version of the final

2 decision of the EEOC OFO (Office of Federal Operations) that 3 issued on May 9, 2006, which she characterized in her opposition 4 (Opposition p. 5, Ex. 2) as containing a "right for 5 reconsideration." The document contained notice of a right to 6 file a civil action and advice that there was no further right of 7 administrative appeal from the Commission's decision; it also 8 contained advice regarding requesting counsel. However, preceding 9 those sections, it contained additional language that was not 10 contained in the version of the document presented by Defendant, 11 and sworn to without qualification by witness Varsalone, as the 12 decision of May 9, 2006: 13 14 15 16 17 18 19 20 21 22 (Opp., p. 5, Exh. 2.) The text continued with citations to 23 applicable regulations and further directions for submitting 24 requests to reconsider, such as addressee and address, and 25 information concerning filing deadlines and proof of service. 26 (Id.) 27 Plaintiff submitted documentation, which is not challenged 28 14 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration....

1 by Defendant, which reflected that Plaintiff timely pursued what 2 she divined from the notice was a remedy by way of request for 3 reconsideration, as distinct from further appeal to another 4 administrative level. This documentation includes a timely motion 5 for reconsideration by the EEOC of the decision submitted by her 6 representative dated June 8, 2006, accompanied by a proof of 7 service (P.'s Exh. 3), and a document entitled "ERRATA," dated 8 November 3, 2006, signed for the Commission by the same Director 9 of the OFO who had signed the final decision (that is, both final 10 decisions or versions thereof) (P's Exh. 4). In the ERRATA, it 11 was stated: 12 13 14 15 The corrected version of the decision followed, but it was still 16 dated May 9, 2006. (P's Exh. 4.) 17 Thereafter, Plaintiff timely filed the instant action within 18 thirty days of the presumed date of receipt. The decision issued 19 on November 3, 2006; it was indisputably presumed received by 20 November 8, 2006; and Plaintiff's complaint here was filed on 21 December 7, 2006. 22 Inexplicably, the proofs of service of the significantly 23 varying final decisions, both of which are dated with the same 24 date of May 9, 2006, appear to be identical. Defendant does not 25 directly address the cumulative evidence. However, the Court 26 understands this evidence not to present a disputed issue of fact 27 regarding the extent of notice given to Plaintiff, but rather to 28 15 The above captioned (sic) decision contained an error. The decision contained the right to reconsideration. There is no right to reconsideration on a petition form (sic) a Merit S Protection Board decision. This correction in no way alters the substantive content of the decision.

1 reflect that information regarding a request for reconsideration 2 was originally included in the decision in May 2006 and was 3 subsequently removed in a version of the notice that was later 4 served on Plaintiff in November 2006. 5 The notice given to Plaintiff in May 2006 was inadequate to

6 inform Plaintiff that Plaintiff was required to file a civil 7 action or otherwise forfeit her claim. This is because the 8 decision purported to offer to Plaintiff a remedy that was an 9 alternative to appeal to a further or higher administrative level 10 (which the notice had foreclosed), and which likewise was 11 logically an alternative to filing a court action. It would make 12 no sense for Plaintiff or any reasonable person to seek judicial 13 review of an action that the Plaintiff was simultaneously 14 attempting to have the very body that made the decision 15 reconsider and change. 16 It is inferred and concluded that a reasonable person in

17 Plaintiff's position would understand from the advisements in the 18 initial decision that an alternative to seeking review in a court 19 action was seeking reconsideration from the Commission itself. If 20 there was ambiguity, it should not redound to the Defendant's 21 benefit. The undisputed documentary evidence reflects that 22 Plaintiff diligently sought relief pursuant to the notice. Once 23 Plaintiff was informed of the true state of affairs, she timely 24 sought review from the Court. 25 Plaintiff argues that it would be unfair to consider

26 Plaintiff's lawsuit untimely. 27 The Court agrees that it is antithetical to basic notions of

28 procedural fairness to penalize Plaintiff, who exercised 16

1 diligence at all apparent stages of the ripening administrative 2 proceedings, for relying on Defendant's instructions in the 3 decision. Defendant was indisputably and admittedly responsible 4 for the error in affirmatively representing to Plaintiff that 5 seeking reconsideration was a correct course of action; 6 Plaintiff, who has no known expertise in the pertinent subjects, 7 reasonably relied on Defendant's express directions and was 8 induced to follow a specified course of action; and Plaintiff was 9 diligent. 10 The instant case presents circumstances warranting an

11 equitable estoppel. As in Lee v. Sullivan, 787 F.Supp. 921 12 (N.D.Cal. 1992), where the plaintiff's action was filed more than 13 thirty days after the final decision, it was still timely where 14 the individual had not received accurate notice of her right to 15 proceed to sue. 16 The Court therefore concludes that Defendant has not

17 demonstrated that Plaintiff's complaint concerning her allegedly 18 wrongful termination was untimely or that Defendant is entitled 19 to judgment on that claim. Therefore, Defendant's motion for 20 summary adjudication on that claim will be denied.4 21 22 Defendant contends that it is entitled to judgment on 23 Plaintiff's claim concerning her failure to be selected for 24 positions in grade GS-12 because there is no genuine dispute as 25 to the material facts concerning Plaintiff's lack of the bona 26 27 28
It should further be noted that although Plaintiff submits materials in opposition to the motion in an effort th a t might be interpreted as an effort to address the merits of the discriminatory termination claim, this issue is not r a is e d in Defendant's motion (see Mot. p. i) and therefore is not before the Court.
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IV. Failure of Plaintiff to Establish Prima Facie Claim of Discriminatory Non-selection

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1 fide occupational qualifications for the position. 2 The legal standards governing the appropriate analysis on

3 summary judgment of a claim concerning failure to hire or promote 4 are established and were recently stated in Dominguez-Curry v. 5 Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005) (a case 6 concerning discrimination based on gender, but equally applicable 7 to discrimination on the other statutory grounds): 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To make out a prima facie case under McDonnell Douglas, a plaintiff must show that (1) she belongs to a protected class; (2) she applied for and was qualified for the position she was denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. At summary judgment, the degree of proof necessary to establish a prima facie case is "minimal and does not even need to rise to the level of a preponderance of the evidence." Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). If established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff. Id. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Id. If the employer meets this burden, the presumption of unlawful discrimination "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to whether 18 Title VII makes it an unlawful employment practice for an employer to refuse to hire an individual because of her sex. 42 U.S.C. § 2000e-2(a)(1). In responding to a summary judgment motion in a Title VII disparate treatment case, a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant's decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McGinest, 360 F.3d at 1122....

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the employer's proffered nondiscriminatory reason is merely a pretext for discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.2000). The plaintiff may show pretext either (1) by showing that unlawful discrimination more likely motivated the employer, or (2) by showing that the employer's proffered explanation is unworthy of credence because it is inconsistent or otherwise not believable. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir.1998). Ultimately, the plaintiff's burden is to "produce some evidence suggesting that [the defendant's] failure to promote [her] was due in part or whole to discriminatory intent." McGinest, 360 F.3d at 1123. Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d at 1037 (9th

9 Cir. 2005). 10 Here, Plaintiff applied for a position with the Animal and 11 Plant Health Inspection Service (APHIS) of the USDA. The position 12 was for veterinary medical officers (VMO's) to address poultry 13 with contagious diseases, including Exotic Newcastle Disease 14 (END), a fatal and extremely infectious viral disease affecting 15 all species of birds, including poultry, which is spread by 16 direct contact between healthy birds and the bodily discharges of 17 infected birds. The position was offered in Spring 2003 pursuant 18 to the decision of Paul Ugstad, the Associate Director of the 19 Eastern Region for the USDA, APHIS, and Dr. Jack Shere, the Area 20 Commander for the END Task Force. Drs. Ugstad and Shere announced 21 the vacancy and worked together on the selections because they 22 were the two persons who would supervise the VMO's who were 23 hired, Dr. Shere on the task force, and Dr. Ugstad thereafter. 24 (Ugstad Decl. ¶¶ 1-6, Ex. C; Shere Decl. ¶¶ 1-6.) The position 25 was created to investigate the disease, quickly address 26 outbreaks, and educate members in the poultry community about the 27 disease in order to avoid the spread of disease; thus, it was of 28 19

1 paramount importance that the communications of the task force 2 members be understood. (Id.) 3 Plaintiff asserts that she was a member of a protected class

4 or classes ("Asian Thai female" [Opp. p. 9], "Asian, Thai 5 national origin" [Opp. p. 18]) and argues that she was fully 6 qualified for a position. 7 As evidence of her being fully qualified for the position,

8 Plaintiff argues that she had already successfully completed a 9 one-year probationary period as a VMO with a performance rating 10 that was fully successful. However, there is no showing that the 11 particular mix of duties and skills pertinent to the position 12 that Plaintiff already held was sufficiently similar to the 13 position which Plaintiff sought to hold such that successful 14 performance of the one position warrants an inference that 15 Plaintiff was necessarily fully qualified for the other position, 16 or an inference to nullify or contradict any perceived defect in 17 Plaintiff's qualifications for the task force position. 18 Plaintiff asserts that at an unspecified time after she was

19 not selected, she inquired why she was not selected and stressed 20 the fact that about six positions of the advertised ten were 21 "unfulfilled." (Doc. 35 p. 9 l. 21.) She was told that the agency 22 had no money. The context, participants, and circumstances of 23 this particular exchange are not clear. Plaintiff argues that by 24 making such a statement, the agency violated Plaintiff's rights 25 or unlawfully singled her out from competition for the advertised 26 job position. However, given the generality of the evidence, it 27 does not warrant an inference of discriminatory or retaliatory 28 animus. 20

1

Plaintiff points to Dr. Fulnechek's compilation of about 500

2 pages of supervisory documentation regarding Plaintiff's 3 performance and conduct, and his e-mailing other, unspecified 4 employees on December 1, 2004, concerning his intention to give 5 the material to Plaintiff in order to permit her fully to 6 understand the concerns about her so that she could improve her 7 performance or alter her behavior. Plaintiff argues that this was 8 an admission by Fulnechek that he illegally compiled the 9 information, and she appears to contend that this warrants an 10 inference that her conduct was really a new issue that had never 11 been mentioned before. (Doc. 35 p. 13, ll. 7-25.) However, this 12 evidence post-dated the decision to provide Plaintiff with 13 additional training and supervision, and it likewise occurred 14 after the meeting of September 2004 in which Plaintiff was 15 informed of multiple problems concerning her mastery of the basic 16 skills of the VMO position for which she was then being trained. 17 The evidence does not warrant an inference of unlawful conduct on 18 the part of Dr. Fulnechek or an inference of retaliatory animus. 19 Plaintiff points to Exhibit 7A, a letter of October 3, 2003,

20 to Plaintiff from Corinne Nygren, Human Resources Specialist, 21 concerning Plaintiff's inquiry regarding her application for VMO 22 positions with announcement numbers 24-87-581 and 6-87-379-3. The 23 announcement number of the VMO position on the END Task Force was 24 24-87-581. (Ugstad Decl., Exh. C.) Thus, the letter pertains to 25 the position in question. In the letter, Nygren states: 26 27 28 As you are aware, you were found eligible for this position for both the case exam and merit promotion announcements, and were referred out on both certificates. You were referred out on the case exam certificate with a score of 97 points. Please keep in mind that the rating score 21

1 2 3 4 5 6

you received on this application and your placement on the certificate is not reflective of every announcement you may apply to in the future. Since each announcement may require different specialized experience, and therefore have a different rating plan, your score may very. Your letter also asked us to inform you if this position has already been filled. The electing official has made tentative selections and has chosen applicants other than you. The precise significance of eligibility for the position in both

7 case exam and merit promotion announcements, and referral out on 8 both certificates, one with a score of 97 points, is not clear on 9 the face of the letter; it is uncertain what part of the process 10 is represented by the referral out on certificates or on a case 11 exam certificate, and it is not clear how many points were 12 possible. Plaintiff does allege that another applicant, Dr. 13 Smith, was hired with a score of 73, and a passing score for 14 hiring was 70. (Opp. p. 18, ll. 23-25.) Under the circumstances, 15 it may be inferred from this evidence that Plaintiff exhibited at 16 least some portion of the qualifications with respect to the two 17 positions. 18 Plaintiff also points to a letter dated July 6, 2004, from 19 Nygren to Plaintiff, with regard to her application for the END 20 Task Force position. The letter states in pertinent part: 21 22 23 24 25 26 27 28 As you are aware, you were found eligible for the Veterinary Medical Officer position and were referred out on the GS-12 certificate. It has recently come to our attention that you did not receive adequate consideration for the position, however, (sic) we will be giving you priority consideration for the next full-time GS-0701-12 position in California. Please understand that this priority consideration will only be given one time, and it will only be given for a position of the same series, grade level, promotion potential, tenure, and geographic location. Although you will be given priority consideration, please be aware that this does not guarantee selection for the position for which you will be given the 22

1 2 3

consideration. We apologize for any inconvenience this may have caused, and I encourage you to call me at 612-336-3235 if you should have any questions regarding this matter.

4 (P's Exh. 7B.) 5 Although this letter indicates that there was some defect in

6 the consideration given Plaintiff for this position, it is not 7 clear to what inadequacy in consideration the letter refers. It 8 is so general that it is not clear what bearing on, or 9 relationship to, Plaintiff's qualifications the inadequate 10 consideration had or has. The universe of potential inadequacies 11 is so broad that the meaning and effect of this evidence is 12 unclear. 13 Plaintiff asserts that from September 17, 2004, through

14 February 17, 2005, "defendant" subjected Plaintiff to numerous 15 instances of retaliatory harassment, mental abuse, and ethnic 16 intimidation that are described in the report of investigation of 17 complaint 050129. (Doc. 35, p. 20, ll. 12-20.) The report of the 18 investigation is not before the Court. Plaintiff has not 19 presented evidence of any specific retaliatory conduct in this 20 regard. 21 Further, with respect to the qualifications that were

22 required for the job, Defendant submitted extensive and detailed 23 evidence that explains the context surrounding Plaintiff's 24 evidence. Reference to the vacancy announcement (D.'s Exh. C) 25 shows that the qualifications expressly required included 1) 26 specified educational accomplishments, 2) comprehension and 27 ability to communicate in the English language, 3) combinations 28 of experience and academic ability or education; and 4) specific 23

1 knowledge, skill and abilities (KSA's). (Exh. C, p. US 0086-97.) 2 The announcement also states: 3 4 5 6 7 8 BASIS OF RATING .... Applicants meeting basic eligibility requirements will be rated and ranked on the knowledges (sic), skills and abilities and other characteristics (KSA's) required to perform the duties of the position. Please review KSA's carefully. Include in the write-ups such things as experience in and out of Federal service that gave you the specific knowledge, skill or ability; objectives of your work; and evidence of your success (such as accomplishments, awards received, etc.)

9 The announcement then lists specific requirements, such as 10 ability to examine animals physically, recognize disease 11 conditions using accepted diagnostic procedures, analyze data, 12 and use computer program skills in communicating in writing in 13 order to represent the agency to the public and private interest 14 groups. The position required skill in verbal communication in 15 order to present professional and scientific information and 16 issues to diverse groups for the purpose of negotiating, gaining 17 cooperation, and obtaining desired results. (Ex. C pp. US 0089718 98.) 19 Defendant submitted specific evidence (Ugstad Decl., Ex. C,

20 p. 1) that Plaintiff was not qualified for the position GS-070121 09/12 on the END Task Force for which she applied because she 22 lacked required skills for communicating and interacting as well 23 as an adequate understanding of poultry husbandry requirements 24 and disease processes. The declarations of Ugstad and Shere, the 25 position vacancy announcement, and the position description 26 (Ugstad Decl., Exhs. C, D), warrant an inference that the job, 27 the duties of which involved inspecting animals for disease, 28 diagnosis and detection of causation, developing procedures to 24

1 deal with animals exposed to disease and related protocols, 2 advice to producers regarding treatment and preventive care, and 3 certifying the health of animals and their by-products to be 4 exported to other countries, required skill in communicating 5 verbally to present scientific and professional information and 6 issues to diverse groups for the purpose of negotiating, gaining 7 cooperation, and obtaining desired results; to represent the 8 agency before public and private livestock groups and individuals 9 to promote service programs in disease prevention and control; to 10 translate technical information and terms into language easily 11 understood by various consumers; and to explain and enforce 12 regulations and policy. A substantial part of the job was regular 13 community outreach meetings with groups of two to twenty people 14 regarding health emergencies, and effective communication of 15 complex, technical matters regarding END in many different 16 settings. (Id.) 17 Defendant submitted to this Court some of the supplemental

18 information submitted by Plaintiff in her application for the job 19 as evidence of her lack of skill in communicating. The materials 20 reflect awkward sentence structure and a lack of mastery of 21 English grammar and usage. (Ugstad Decl., Ex. E, page marked "US 22 00948.")5 Further, Drs. Ugstad and Shere recounted their 23 24 25 26 27 28
The Court notes that perusal of even a short portion of Plaintiff's opposition filed on August 17, 2009, fu r th e r reflects limitations in written communication, such as elimination of articles (Opp., p. 2 ll. 5-6 ["W ith one e x c e p tio n of issue regarding EEO complaint...."]); awkward usage (id. p. 2, l. 18 ["Defendant was well aware about th a t fact"]), p. 5, l. 16 "right for reconsideration"]; uncorrected errors (Opp. p. 3, l. 2 [Critical point is fact that p la in tiff timely filed her civil action complaint at the District Court, in contrary to defendant's erroneous claimed that s h e failed to bring lawsuit within thirty days...], id. p. 3 l. 8 ["Courts have been cleared that summary judgment is not to be used as a...."], id. p. 8 l. 1 "the fact that job application of one selected candidate for 10 job opening"], id. p. 8 ll. 8-9 ["...did defendant subjected Plaintiff to increased scrutiny"], id. p. 8 l. 15 ["Plaintiff demonstrated an inability to effective responda"]; malapropisms ["creditability" in place of credibility], id. p. 3 l. 21; and lack of agreement b e tw e e n subject and verb, id. p. 5 l. 5 ["Plaintiff's objections to defendant's statement is fact that....] ;
5

25

1 impressions of Plaintiff's abilities resulting from their 2 telephonic interview of Plaintiff on July 28, 2003, for the VMO 3 GS-12 position. The doctors evaluated all candidates for the 4 position on the END force based on their applications, knowledge, 5 skills, abilities, technical knowledge of poultry husbandry and 6 diseases, and references. (Shere Decl. ¶ 13, Ugstad Decl. ¶ 13.) 7 All applicants were evaluated pursuant to the same procedure with 8 the same questions in order to assess interpersonal and 9 communication skills as well as technical knowledge of poultry 10 husbandry and poultry diseases. 11 Ugstad observed Plaintiff's inability to communicate her

12 answers effectively, primarily because of limited English13 speaking skills. Plaintiff was difficult to understand, and her 14 answers were frequently not responsive to the questions in a way 15 that caused Ugstad to conclude that her comprehension of English 16 was limited as well. For example, she could not understand that 17 the location of the very position for which she was interviewing 18 was in southern California. Ugstad concluded that because it was 19 a struggle to communicate with Plaintiff in an interview, and 20 considering the limited skills demonstrated in her written 21 material as well, the Agency would have been disadvantaged in its 22 outreach efforts by hiring Plaintiff. Further, many of the 23 persons with whom Plaintiff would have to communicate in such a 24 position were native Spanish speakers. (Ugstad Decl. ¶¶ 13-14.) 25 Likewise, Dr. Shere noted the need for the VMO to translate

26 information into language easily understood by persons with 27 varying degrees of awareness of agency objectives, to engage in 28 regular community outreach, and to persuade responsible persons 26

1 or groups to observe the propriety of veterinary medical or 2 program procedural adjustments and modifications. (Decl. ¶¶ 93 11.) In the telephonic interview, he found it difficult to 4 understand Plaintiff's answers and needed to ask for 5 clarification several times; further, Plaintiff was unable to 6 answer basic questions about poultry. Finally, she was unaware of 7 END. (Decl. ¶ 14.) 8 Both Ugstad and Shere declared that Plaintiff was not

9 selected for the GS-12 level VMO position because of her lack of 10 understanding of poultry husbandry and disease processes as well 11 as inability effectively to communicate; it was not on the basis 12 of her national origin. (Decls. ¶¶ 15.) The two candidates who 13 were selected for the GS-12 level VMO position on the END Task 14 Force were a Hispanic male with demonstrated experience with 15 poultry diseases and extensive experience in community outreach 16 by written and verbal communications, and a Caucasion male with 17 demonstrated prior experience with the END Task Force and 18 community outreach activities. (Decls. ¶¶ 16.) 19 Plaintiff also suffered from a lack of experience and

20 knowledge regarding poultry and limited experience based on her 21 resume, the interview, and all materials. (Ugstad Decl. ¶ 14.) 22 The Court concludes that Defendant has presented evidence

23 that Plaintiff was not qualified for the position because of lack 24 of ability and skills that are reasonably related to job 25 performance, including the ability to communicate clearly and 26 effectively and to comprehend the English language well, as well 27 as knowledge of the pertinent veterinary subject matter and 28 experience in the specific type of industry and position. 27

1 Although Plaintiff's national origin may bear some relationship 2 to the level of her communication skills, it does not appear that 3 it played any part in the non-selection of Plaintiff; rather, it 4 was the inability to communicate effectively that was the 5 determinative factor with respect to Plaintiff's language ability 6 and skills. It appears without question that communication skills 7 were reasonably related to job performance in this instance. It 8 is established that an adverse employment decision may even be 9 predicated upon an individual's accent when language skills are 10 reasonably related to job performance and where the accent 11 interferes materially with job performance. Fragante v. Honolulu, 12 888 F.2d 591, 596 (9th Cir. 1989) (noting the importance of 13 carefully examining the circumstances in such a case, but finding 14 no discrimination in the rejection of a Filipino applicant for a 15 position as a clerk which required communication with contentious 16 members of the public, including telephone conversations). Here, 17 Defendant has produced evidence that demonstrates that Plaintiff 18 suffered substantial inadequacies in communication skills in 19 addition to her accent, and it further demonstrates that other 20 skills and experience central to the job were missing from 21 Plaintiff's qualifications. 22 Plaintiff has not submitted any evidence warranting an

23 inference that the qualifications did not include these matters 24 or that Plaintiff did have the necessary communication skills, 25 knowledge, and experience. Plaintiff has not submitted evidence 26 controverting the evidence that the doctors responsible for 27 selecting the persons to hire found that Plaintiff lacked the 28 necessary skills during the telephone interview and from a review 28

1 of her qualifications. She has not submitted evidence 2 controverting the evidence that the persons hired had greater 3 experience with poultry and outreach, knowledge of the disease 4 processes in question, and ability to communicate. 5 Plaintiff asserts that similarly situated applicants who

6 were outside the protected class were treated more favorably by 7 being hired when their application ratings were inferior to 8 Plaintiff's. For example, Dr. Smith, who was hired, scored 73, 9 and 70 was a passing score for being hired. (Doc. 35, p. 18.) 10 However, the declaration of Dr. Ugstad reflects that Dr. Layton 11 Smith applied for a VMO position on the END Task Force and was 12 hired for a GS-11 position. (Decl. ¶ 17.) The position Plaintiff 13 sought was of a higher grade, namely, a GS-12 position. Thus, it 14 does not appear that Dr. Smith was necessarily similarly situated 15 or was treated more favorably. 16 Plaintiff's bare assertion that she was discriminated

17 against on the basis of her national origin does not suffice to 18 raise a disputed issue of fact concerning Plaintiff's lack of 19 basic qualifications for the job. Anderson v. Liberty Lobby, 20 Inc., 477 U.S. 242, 248 (1986). As was recently stated: 21 22 23 24 25 26 27 28 29 A plaintiff may not defeat a defendant's motion for summary judgment merely by denying the credibility of the defendant's proffered reason for the challenged employment action. See Wallis, 26 F.3d at 890; Schuler v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir.1986). Nor may a plaintiff create a genuine issue of material fact by relying solely on the plaintiff's subjective belief that the challenged employment action was unnecessary or unwarranted. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996) (concluding, despite the plaintiff's claims that she had performed her job well, that "an employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact").

1 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 (9th 2 Cir. 2006). 3 The Court concludes that Plaintiff has not submitted

4 evidence that demonstrates that she had the communication skills, 5 knowledge of poultry disease processes, or sufficient experience 6 with poultry and outreach to qualify for the specific position in 7 question. 8 However, if the Court were mistaken and Plaintiff in fact

9 made a prima facie showing of her qualifications for the 10 position, then the Court concludes that Plaintiff has not 11 submitted evidence sufficient to raise a disputed issue of 12 material fact regarding whether or not the employer's stated 13 reasons were pretextual. 14 The plaintiff is required to offer proof that the employer's

15 legitimate, nondiscriminatory reason is actually a pretext for 16 racial discrimination. Circumstantial evidence used to prove this 17 must be specific and substantial. Id., 439 F.3d at 1029 (citing 18 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998)). 19 Plaintiff has referred to reports of the investigation of

20 various EEO cases as evidence in support of her assertions. (See, 21 e.g., Doc. 35 p. 8, l. 3; p. 18, ll. 12-14; p. 20, l. 17; p. 23, 22 l. 25; p. 22, l. 12.) However, these reports are not before the 23 Court. 24 Plaintiff states that when she "contacted defendant for

25 explanation (sic) why she was not hired, defendant replied that 26 there were no monetary funds (sic) to fill advertised job 27 openings," but Defendant simultaneously continued to advertise to 28 fill the remaining six vacant positions and in fact gave a job to 30

1 all applicants that applied for positions and who had ratings 2 scores over 70, except to Plaintiff. (Doc 35, p. 19.) Plaintiff 3 also states, however, that she was not selected while the agency 4 kept six advertised positions "unfulfilled," which the Court 5 interprets as meaning "unfilled." (Id. p. 18 l. 22.) 6 It is unclear to what applicant or positions Plaintiff

7 refers. To the extent that Plaintiff is referring to the two 8 persons hired for the END Task Force, the evidence has already 9 been discussed. To the extent that Plaintiff is referring to 10 other candidates or hires, Plaintiff has not pointed to specific 11 evidence identifying the candidates or their qualifications. 12 Plaintiff states that when Plaintiff registered an informal

13 EEO complaint, Defendant sent her a letter of apology stating 14 that Defendant did not give Plaintiff appropriate consideration 15 and that Plaintiff would have priority consideration in a similar 16 job opening in the future; Defendant admitted wrongdoing with 17 apology and promised to make corrections in the future. (Doc. 36, 18 p. 19, Exh. 7A.) However, as noted above, this evidence is not 19 specific with respect to any basis for the conclusion that 20 consideration was inadequate. The declaration of Martha Gravagna, 21 lead human resources specialist of the USDA marketing and 22 regulatory programs, HR division, submitted by Defendant in 23 support of the reply, reflects Gravagna's declaration that she 24 directed Nygren to write the letter regarding the procedures for 25 the VMO-12 position. (Decl. ¶ 1-3.) The reference to the USDA's 26 not following proper procedures referred to the fact that 27 although Plaintiff was listed as a potential candidate on the 28 August 5, 2003 certification, other candidates were not included 31

1 in the list submitted to Drs. Shere and Ugstad, and therefore the 2 procedures for providing candidates to the selecting officials 3 were not followed. The reference to an absence of adequate 4 consideration did not relate to the interview procedure or any 5 assessments made by Drs. Shere and Ugstad when considering 6 Plaintiff on July 28, 2003. (Id. at ¶¶ 3-5.) 7 Plaintiff argues that the comparison Drs. Shere and Ugstad

8 made between her and other candidates was a violation of due 9 process because not made according to departmental standards. 10 Plaintiff provides no specific standards or procedures in support 11 of her assertion. As with her assertions about her 12 qualifications, an apology, and the alleged justification of a 13 lack of funds, Plaintiff has not submitted specific factual data. 14 Yet it is established that in responding to the moving party's 15 meeting its initial burden of showing, the nonmoving party must 16 go beyond the pleadings and by its own declarations or by other 17 evidence from the discovery process come forth with specific 18 facts to show that a genuine issue of material fact exists. 19 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 20 Plaintiff cites Cones v. Shalala, 199 F.3d 512 (D.C.Cir.

21 2000), in which the government's business justification for not 22 promoting an employee was sufficiently rebutted by evidence that 23 the alleged objective of filling the position with a lateral 24 transfer (instead of competitively advertising it) because of a 25 goal of downsizing was not supported by agency consideration of 26 whether the lateral transfer would aid its downsizing goal, and 27 further by evidence that the agency had promoted three white 28 employees to the higher position in the preceding ten months. As 32

1 Defendant notes, Cones may be distinguished because there the 2 government conceded that the applicant was substantively 3 qualified. 199 F.3d at 517. 4 Plaintiff alleged that she had worked in the same position

5 as a VMO at level GS-701-11 with job duties that included daily 6 oral and written communication with inspectors, plant management, 7 and employees, with fully successful performance ratings; she 8 successfully performed for three months her statutory duties as a 9 relief veterinary medical officer without any complaints from 10 USDA inspectors or slaughter plants officials. (Cmplt. ¶¶ 7, 10.) 11 However, the position was at a different level from the position 12 Plaintiff sought to obtain. Plaintiff has not provided evidence 13 of her precise job duties at slaughter plants or her ratings 14 while in this position. 15 The Court concludes that Plaintiff has failed to submit

16 evidence that she possessed the necessary qualifications for the 17 job, or, if she did establish her prima facie case, Defendant 18 submitted evidence warranting a conclusion that the reason 19 Plaintiff was not hired was because of a legitimate business 20 decision regarding Plaintiff's lack of qualifications, and 21 Plaintiff did not submit evidence warranting a reasonable trier 22 of fact in concluding that the employer's stated reasons were 23 pretextual. 24 25 V. Retaliation Claim Defendant argues that Plaintiff cannot meet her burden of

26 proving a causal link between her EEO activity and the employer's 27 assignment of Plaintiff to additional training. 28 Title 42 U.S.C. § 2000e-3(a) provides that it shall be an 33

1 unlawful employment practice for an employer to discriminate 2 against any of his employees or any applicant for employment 3 because the person has opposed any practice made an unlawful 4 employment practice by the statute, or because he or she has made 5 a charge, testified, assisted, or participated in any manner in a 6 covered investigation, proceeding, or hearing. Under Title VII, a 7 plaintiff may establish a prima facie case of retaliation by 8 showing that 1) plaintiff engaged in activity protected under 9 Title VII, 2) the employer subjected the plaintiff to an adverse 10 employment decision, and 3) there was a causal link between the 11 protected activity and the employer's action. Passantino v. 12 Johnson & Jonnson Consumer Products, Inc., 212 F.3d 493, 506 (9th 13 Cir. 2000). The McDonnell Douglas burden-shifting framework 14 applies in retaliation cases as well as in discrimination cases, 15 pursuant to which the plaintiff must prove a prima facie case, 16 the employer then has the burden of producing evidence and 17 thereby to articulate a legitimate, non-retaliatory reason for 18 the action taken, and the plaintiff must then prove that the 19 employer's reason is a pretext for a discriminatory motive. 20 Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir. 21 2003). 22 To establish causation, the plaintiff must show by a

23 preponderance of the evidence that engaging in the protected 24 activity was one of the reasons for the action taken and that but 25 for such protected activity, the person would not have been 26 subjected to the action. Villiarimo v. Aloha Island Air, Inc., 27 281 F.3d 1054, 1064-65 (9th Cir. 2002); Kauffman v. Sidereal 28 Corp., 695 F.2d 343, 345 (9th Cir. 1982). 34

1

The causal link may be established by an inference derived

2 from circumstantial evidence, such as knowledge by the employer 3 of the employee's protected activities plus the proximity in time 4 between the protected action and the allegedly retaliatory 5 employment decision. Jordan v. Clark, 847 F.2d 1368, 1376 (9th 6 Cir. 1988). Where it is accepted that mere temporal proximity 7 between an employer's knowledge of protected activity and an 8 adverse employment action is sufficient to establish a prima 9 facie case of causality, the cases uniformly hold that the 10 temporal proximity must be very close. Clark County School 11 District v. Breeden, 532 U.S. 268, 273-74 (2001) (twenty months 12 held too long, citing cases, including Richmond v. ONEOK, Inc., 13 120 F.3d 205, 209 (9th Cir. 1997), in which it was held that a 14 three-month period is insufficient to warrant an inference of 15 causation). It has been held that although less than three months 16 is sufficiently close, Yartzoff v. Thomas, 809 F.2d 1371, 1376 17 (9th Cir. 1987), longer periods are too attenuated to support the 18 inference, Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 19 1065 (9th Cir. 2002)