McCoy v. Department of the Army et al

Filing 78

ORDER signed by Senior Judge Lawrence K. Karlton on 5/31/11 GRANTING IN PART AND DENYING IN PART 67 Motion for Summary Judgment filed by John H. McHugh. The motion is granted with respect to plaintiff's claim for compensatory damages for her retaliation claim and denied on all other grounds. (Meuleman, A)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

FOR THE EASTERN DISTRICT OF CALIFORNIA

7
ROSLYN McCOY,
8
NO. CIV. S-09-1973 LKK/CMK
9

Plaintiff,

10
11
12
13

v.
DEPARTMENT OF THE ARMY -ARMY CORPS OF ENGINEERS and
HONORABLE JOHN McHUGH,
SECRETARY OF THE ARMY,
collectively,

O R D E R

14
Defendants.
15

/

16

Roslyn

McCoy, a former employee of the Army Corps of

17

Engineers brought this employment discrimination suit. Plaintiff

18

claims that she was terminated from her clerical position with the

19

Corps because of her dyslexia, in violation of the Rehabilitation

20

Act of 1973. The complaint alleges both retaliation and disparate

21

treatment. Pending before the court is a motion for summary

22

judgment by defendant John McHugh, Secretary of the Army. For the

23

reasons explained below, defendant’s motion is GRANTED with respect

24

to plaintiff’s claim for compensatory damages for retaliation, and

25

is DENIED in all other respects.

26

////
1

I. Plaintiff’s Allegations

1
2

Plaintiff began her employment as an administrative support

3

assistant in the Equal Employment Opportunity office at the Army

4

Corps of Engineers in May 2005. She was hired through the Workforce

5

Recruitment Program, which provides funding for agencies within the

6

Defense Department to hire people with disabilities for limited

7

terms. Plaintiff self-designated as having a learning disability

8

when she applied for the job.

9

Prior to starting work, plaintiff spoke to supervisor Linda

10

Brown about her disability, and they discussed accommodations that

11

would be provided to plaintiff. Plaintiff asserts that one of those

12

accommodations was that Ms. Brown would proofread plaintiff’s

13

work.1 Ms. Brown also supervised Barbara Dwyer, an EEO specialist.

14

When plaintiff’s initial term of employment ended in October,

15

2005, Ms. Brown converted plaintiff’s term to a two-year position

16

as a Program Support Clerk. In that position, plaintiff provided

17

clerical and administrative support to Ms. Brown, Ms. Dwyer, and

18

other managers.

19

In April, 2006, plaintiff was entering the office at the same

20
21
22
23
24
25
26

1

This is alleged in the Second Amended Complaint (“SAC”) at
¶ 8. It is asserted to be in dispute. In a declaration, Ms. Brown
asserts that “at no point did I inform Ms. McCoy or accept from her
that she would not be responsible for her own work and that she had
no obligation to proof read her final product.” Def.’s Ex. C ,Decl.
Linda Brown (“Brown Decl.”) ¶ 13. However, in the EEO hearing in
this matter, Brown stated: “The reasonable accommodation I provided
you for where I was proofreading your work prior–while we were
waiting for the computer technology equipment. . . and for you to
tell me that it was working for you and that I no longer needed to
proofread your work.” Pl.’s Ex. 1, Brown EEO Testimony 207:12-17.
2

1 time as A.R. Smith, an African-American2 employee of the Corps.
2 Smith heard plaintiff say to him “Where are you going? We don’t
3 allow your kind in here.” Def.s’ Ex. D, Dep. A.R. Smith (“Smith
4 Dep.”)

19:24-25,

26:1-2.

Mr.

Smith

found

the

comment

to

be

5 “inappropriate,” id. 19:10-11, “unconscionable and defamatory,” Ex.
6 4 to Smith Dep. He reported the incident to Ms. Brown. Smith Dep.
7 37:11-18; Ex. 4 to Smith Dep. Ms. Brown counseled plaintiff about
8 the incident.
9
10

In June, 2006, plaintiff received a positive performance
evaluation from Ms. Brown.

11

In August, 2006, plaintiff and Ms. Dwyer met with the Chief

12

of Staff for the Sacramento office, Ms. Richert. In the meeting,

13

plaintiff, Dwyer, and Richert spoke confidentaly about Ms. Brown.

14

Plaintiff complained about some problems that she had with Ms.

15

Brown, and Ms. Richert asked plaintiff whether plaintiff was

16

claiming to have been subject to discrimination and a hostile work

17

environment. Plaintiff states that she raised concerns about

18

hostile work environment and disability discrimination at the

19

meeting, McCoy Decl. ¶ 7, but this fact is disputed by defendants.

20

Ms. Brown learned of the meeting, either before or after it

21

occurred, and learned that the meeting was about her management

22

style.3 Testimony of Linda Brown at EEO hearing, Pl.’s Ex. 6

23
2

24

Ms. Dwyer testified in the EEO hearing that Mr. Smith is
African-American, but plaintiff disputes this fact on the basis
that Ms. Dwyer lacks personal knowledge of it.

25
3

26

Defendant claims that Ms. Brown never learned about the
substance of the meeting. However Ms. Brown testified at the EEO
3

1

163:21-24.

2

In August, 2006, plaintiff was involved in making changes to

3

a flyer for a “Diversity Jubilee” event sponsored by the EEO

4

office. After plaintiff made her changes, some of the contents of

5

the flyer were inaccurate. On or about August 23, 2006, Richert and

6

Brown met with plaintiff to discuss the inaccuracies. In the

7

meeting, Richert asked plaintiff whether she was expected to

8

proofread her own work, and plaintiff responded “no.” Ms. Brown

9

declares that she considered this to be a false statement by

10

plaintiff about her job responsibilities and that it “led her to

11

immediately question Ms. McCoy’s candor and sharply eroded my trust

12

in her.” Brown Decl. ¶ 13. Plaintiff disputes this statement by

13

Brown, alleging that it is pretext.

14

On or about August 23, 2006, Brown noticed that someone on her

15

staff had set up meetings with volunteers for the Diversity

16

Jubilee. She wanted to reward the initiative shown by the person

17

who had set up the meetings and inquired separately of both Dwyer

18

and plaintiff as to whose idea it was to set up the meetings. Both

19

Dwyer and plaintiff claimed credit for the meetings. Brown then met

20

with Dwyer and plaintiff together and asked them whose idea it was.

21

Dwyer indicated that it was her idea, and plaintiff remained

22

silent. Plaintiff also remained silent when Brown asked her why she

23

was claiming credit for Dwyer’s work. The parties dispute the

24

meaning of plaintiff’s silence, and whether, in fact, the idea to

25
26

hearing that she learned that the meeting was about her management
style. Pl.’s Ex. 6 163:21-24.
4

1

set up the meetings was exclusively Dwyer’s.

2

On September 7, 2006, Brown gave notice to plaintiff that she

3

was

4

probationary period. The notice stated:

5
6
7
8
9

terminated

effective

September

15,

2006,

within

her

You
are
being
terminated
because
of
your
unsatisfactory conduct including your making a false
statement to the Chief of Staff during a meeting on
23 August 2006 wherein you stated “you were not
required to proofread your work”; on 24 August 2006,
you made a false statement to me when you said that
it was your idea to meet with Diversity Jubilee
volunteers
prior
to
the
event;
and
your
inappropriate comment to a member of the Safety
Office on 7 April 2006.

10
11

Notice of Termination, Ex. E to Brown Decl. Plaintiff disputes that

12

these were the real reasons for her termination.

13

Plaintiff filed a formal EEO complaint on October 17, 2006,

14

alleging

15

February 2009 before an Administrative Law Judge (“ALJ”). On April

16

16, 2009, the Department of the Army issued a final agency decision

17

(“FAD”), in which it implemented the ALJ’s decision that the

18

defendant had met its burden of showing that the termination was

19

for legally sufficient reasons. Plaintiff received an emailed copy

20

of the FAD on April 16, 2009 and on April 17, 2009. Plaintiff

21

received a copy of the FAD via certified mail on April 23, 2009.

22

discrimination

and

reprisal.

A

hearing

was

held

in

II. Standard for a Motion for Summary Judgment

23

Summary judgment is appropriate when there exists no genuine

24

issue as to any material fact. Such circumstances entitle the

25

moving party to judgment as a matter of law. Fed. R. Civ. P. 56(c);

26

see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);
5

1

Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995). Under

2

summary judgment practice, the moving party

3
4
5
6

always 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.

7

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.

8

R. Civ. P. 56(c)).

9

If the moving party meets its initial responsibility, the

10

burden then shifts to the opposing party to establish the existence

11

of a genuine issue of material fact. Matsushita Elec. Indus. Co.

12

v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also First

13

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89

14

(1968); Secor Ltd., 51 F.3d at 853. In doing so, the opposing party

15

may not rely upon the denials of its pleadings, but must tender

16

evidence of specific facts in the form of affidavits and/or other

17

admissible materials in support of its contention that the dispute

18

exists. Fed. R. Civ. P. 56(e); see also First Nat’l Bank, 391 U.S.

19

at 289. In evaluating the evidence, the court draws all reasonable

20

inferences from the facts before it in favor of the opposing party.

21

Matsushita, 475 U.S. at 587-88 (citing United States v. Diebold,

22

Inc., 369 U.S. 654, 655 (1962) (per curiam)); County of Tuolumme

23

v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

24

Nevertheless, it is the opposing party’s obligation to produce a

25

factual predicate as a basis for such inferences. See Richards v.

26

Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The
6

1

opposing party “must do more than simply show that there is some

2

metaphysical doubt as to the material facts . . . . Where the

3

record taken as a whole could not lead a rational trier of fact to

4

find for the nonmoving party, there is no ‘genuine issue for

5

trial.’” Matsushita, 475 U.S. at 586-87 (citations omitted).
III. Analysis

6
7

Defendant

moves

for

summary

judgment

on

the

basis

that

8

plaintiff’s claims are time-barred, that the claims fail as a

9

matter of law, and that plaintiff’s remedies should be limited.

10

A. Plaintiff’s claim is not time-barred.

11

Defendant argues that all of plaintiff’s claims are time-

12

barred because plaintiff filed this action 92 days after receiving

13

the final agency decision on her claim. It has been held that there

14

is a

15

Plaintiff argues that defendant has waived this defense by not

16

raising it earlier, or in the alternative, that equitable tolling

17

applies

18

defendant’s counsel throughout the administrative procedure that

19

email service of documents is not sufficient and that papers needed

20

to be served by mail with a certificate of service. Plaintiff

21

claims that she reasonably took this to mean that the notice of

22

final agency decision was not received until it was received by

23

certified mail on April 23, 2009. Below the court discusses both

24

the last date for filing and whether tolling applies.

90-day time limit imposed by the Rehabilitation Act.

since

plaintiff

reasonably

relied

on

statements

by

25

A federal employee may file an employment discrimination suit

26

in district court after exhausting her administrative remedies. As
7

1

a "precondition to filing [an employment discrimination suit] the

2

complainant must seek relief in the agency that has allegedly

3

discriminated against him." Kraus v. Presidio Trust Facilities

4

Division/Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir.

5

2009)(quoting Brown v. GSA, 425 U.S. 820 (1976)). After exhausting

6

administrative remedies, the complainant has ninety days to file

7

her complaint in the district court. “A complainant who has filed

8

an individual complaint. . . is authorized under Title VII, the

9

ADEA and the Rehabilitation Act to file a civil action in an

10

appropriate United States District Court (a) within 90 days of

11

receipt of the final action on an individual or class complaint if

12

no appeal has been filed.” 29 C.F.R § 1614.407.

13

The 90-day statute of limitations for suing the federal

14

government for employment discrimination is not a jurisdictional

15

bar, and may be equitably tolled. Irwin v. Dep't of Veterans

16

Affairs, 498 U.S. 89, 96 (1990). “We have allowed equitable tolling

17

in situations where the claimant has actively pursued his judicial

18

remedies by filing a defective pleading during the statutory

19

period, or where the complainant has been induced or tricked by his

20

adversary’s misconduct into allowing the filing deadline to pass.”

21

Id. See also, Williams-Scaife v. Department of Defense Dependent

22

Sch.,

23

applicable in employment discrimination cases filed by federal

24

employees.”). “Equitable tolling does not depend on any wrongful

25

conduct by the defendant to prevent the plaintiff from suing.

26

Instead, it focuses on whether there was excusable delay by the

925

F.2d

346

(9th

Cir.

8

1991)(“[E]quitable

tolling

is

1

plaintiff.” Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th

2

Cir. 2000). In Santa Maria, the court concluded that equitable

3

tolling

4

information to know of the possible existence of a claim.” Id.

5

Equitable tolling is not appropriate when the late filing is due

6

to plaintiff’s lack of due diligence. Irwin,498 U.S. at 95; Scholar

7

v. Pacific Bell, 963 F.2d 264, 268 (9th Cir. 1992). Moreover, “a

8

pro se petitioner’s lack of legal sophistication is not, by itself,

9

an

10

does

not

extraordinary

apply

once

circumstance

the

plaintiff

warranting

“has

equitable

sufficient

tolling.”

Rasberry v. Garcia, 448 F.3d 1150, 1151 (9th Cir. 2006).

11

Although not precisely defined in the statute, regulations,

12

or Ninth Circuit case law, other circuits have held that “receipt”

13

of final agency action is actual or constructive notice of the

14

action, and that it need not be by mail, or even written. See,

15

e.g., Ebbert v. DaimlerChrystler Corp., 319 F.3d 103, 116 (3d Cir.

16

2003)(“[W]e hold that oral notice can suffice to start the 90-day

17

period.). As explained below, that rule is not tendered in this

18

case.

19

Here plaintiff argues that equitable tolling applies to the

20

period between her initial receipt of the notice of the final

21

agency action by email and when she received the decision by

22

certified mail. It is undisputed that plaintiff received an emailed

23

copy of the final agency decision on April 16, 2009 and again on

24

April 17, 2009. Plaintiff received a copy of the final agency

25

decision by certified mail on April 23, 2009. Plaintiff filed her

26

original complaint with this court on July 17, 2007, within 90 days
9

1

of receiving the certified mail copy of the final agency decision,

2

but 92 days after first receiving the decision by email.

3

Plaintiff argues that defendant’s counsel in the EEO hearing

4

informed her throughout the EEO process that documents needed to

5

be

6

mail/electronically is insufficient service.” Decl. McCoy ¶ 12;

7

August 31, 2007 email, Ex. 2 to Decl. McCoy. Counsel's admonition

8

was made in response to plaintiff’s request to receive documents

9

electronically so that she could use software to read the documents

served

certified

allowing

“sending

12

administrative process and at the time of the filing of the

13

original complaint, avers that she reasonably believed that this

14

principle applied to calculating the time for filing her complaint

15

after receiving the notice of final agency decision. From these

16

undisputed

17

limitations was equitably tolled for the period in between April

18

16, 2007, and April 23, 2007, and that plaintiff’s complaint was

19

timely filed.

concludes

In sum the court concludes that

that

given

by

disability. Decl. McCoy ¶ 11. Plaintiff, who was pro se during the

court

comprehension,

documents

11

the

better

and

to

facts

for

mail,

10

20

her

by

the

plaintiff’s

statute

of

plaintiff reasonably relied

21

on defendant’s counsel’s statements, and thus reasonably believed

22

that her claim had accrued only upon receipt of

23

decision by mail. Without implying that there was any wrongdoing

24

by defendant’s counsel, the court finds that counsel’s statements

25

resulted in inadequate notice of the statutory period. See Scholar

26

v. Pacific Bell, 963 F.2d 264, 268 (9th Cir. 1992)(equitable
10

the final agency

1

tolling appropriate “when the EEOC's notice of the statutory period

2

was clearly inadequate.”). Plaintiff did not fail to exercise due

3

diligence, and filed her claim within 90 days of receiving the

4

final agency decision by mail.

5

Although the court may not rely on plaintiff’s pro se status

6

in and of itself as a basis for equitable tolling, plaintiff’s lack

7

of legal sophistication, coupled with counsel’s statements that

8

email delivery of documents does not constitute sufficient service

9

within the EEO process, resulted in an “extraordinary circumstance

10

warranting equitable tolling.” Rasberry, 448 F.3d at 1151.4

11

B. Plaintiff’s Disparate Treatment Claim

12

Plaintiff argues that she was terminated from her employment

13

because her supervisor, Linda Brown, was biased against people with

14

learning disabilities, including plaintiff.

15

The Rehabilitation Act of 1973, 29 U.S.C. § 791 prohibits

16

employment discrimination by the federal government against people

17

with

18

Rehabilitation Act, a plaintiff must demonstrate that (1) she is

19

a person with a disability, (2) who is otherwise qualified for

20

employment,

21

disability.” Walton v. United States Marshals Serv., 492 F.3d 998,

22

1005 (9th Cir. 2007). “The requisite degree of proof necessary to

23

establish a prima facie case for Title VII and ADEA claims on

disabilities.

and

“To

(3)

state

suffered

a

prima

facie

discrimination

case

under

because

of

the

her

24
25
26

4

Having concluded that equitable tolling applies, the court
need not consider plaintiff’s claim that the defendant waived her
untimely filing.
11

1

summary judgment is minimal and does not even need to rise to the

2

level of a preponderance of the evidence.” Wallis v. J.R. Simplot

3

Co., 26 F.3d 885, 889 (9th Cir. 1994). Once a plaintiff establishes

4

a prima facie case, the burden shifts to the defendant to produce

5

a legitimate non-discriminatory reason for the adverse employment

6

action--in this case, termination. McDonnell Douglas Corp. v.

7

Green, 411 U.S. 792, 802 (U.S. 1973); Sisson v. Helms, 751 F.2d 991

8

(9th Cir. 1985)(applying the McDonnell Douglas burden-shifting

9

framework to Rehabilitation Act claims). The plaintiff then must

10

“be afforded a fair opportunity to show that [defendant’s] stated

11

reason for respondent's rejection was in fact pretext.” McDonnell

12

Douglas Corp., 411 U.S. at 803.

13

Although the burden of proof remains on plaintiff throughout

14

the burden-shifting analysis, “as a general matter, the plaintiff

15

in an employment discrimination action need produce very little

16

evidence in order to overcome an employer's motion for summary

17

judgment. This is because the ultimate question is one that can

18

only be resolved through a searching inquiry - one that is most

19

appropriately conducted by a factfinder, upon a full record.”

20

Chuang v. University of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir.

21

2000).

22

i. The Prima Facie Case

23

Defendant does not dispute that plaintiff has met the first

24

and second elements of the prima facie case–that she was disabled

25

and that she was otherwise qualified for employment. Defendant

26

argues that plaintiff cannot satisfy the third element because she
12

1

cannot show that there were any employees similarly situated to

2

plaintiff, let alone any that were treated favorably. Defendants

3

argue that such a showing is required in order to establish a

4

disparate treatment claim.

5

The defendant’s argument demonstrates its weakness. If there

6

are no other persons similarly situated, it cannot follow that a

7

claim will not lie and plaintiff must lose her case. Defendant has

8

pointed out some differences between plaintiff and the putative

9

similarly situated employees. Barbara Dwyer had the same supervisor

10

as plaintiff, but substantially different job responsibilities.

11

Indeed, plaintiff provided clerical support to Ms. Dwyer. The other

12

employees listed by plaintiff as similarly situated, worked in

13

different departments and under different supervisors. Evidence of

14

similarly situated employees who were treated more favorably,

15

however, is but one way of satisfying the third element of the

16

McDonnell-Douglas prima facie case. That element can also be

17

satisfied by showing that “other circumstances surrounding the

18

adverse

19

discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603

20

(9th Cir. 2004). Thus, the Circuit court has explained “[i]n the

21

context of a lay-off, plaintiff need not show that he was replaced

22

by a member of a different race; rather, he must show that his lay

23

off occurred under circumstances giving rise to an inference of

24

discrimination. Aragon can establish this inference by showing the

25

employer had a continuing need for [his] skills and services in

26

that [his] various duties were still being performed, or by showing

employment

action

give

13

rise

to

an

inference

of

1

that

others

not

in

[his]

protected

class

were

treated

more

2

favorably." Aragon v. Republic Silver State Disposal, 292 F.3d 654,

3

660 (9th Cir. 2002)(internal citation omitted).

4

In the instant matter plaintiff has offered evidence that

5

could support a finding that her termination was motivated by Ms.

6

Brown’s

7

declaration by Army Corps of Engineers employee Penelope Cross, who

8

testified

9

Bayless that Rosyln McCoy was not of average intelligence, nor

10

could she read or write, or words to that effect.” On another

11

occasion,

12

“mentally handicapped.” Decl. of Penelope Cross, Pl.’s Ex. 13.

13

These statements could show that Brown associates dyslexia with

14

intellectual deficiency. Defendants object to the Cross declaration

15

on the basis that it contradicts an earlier declaration by Ms.

16

Cross in which she only identified one statement by Ms. Brown. That

17

declaration submitted by the defendant, however, also contains a

18

statement by Ms. Cross that she heard Ms. Brown say that each of

19

her

20

another.” January 30, 2009 Decl. of Cross, Ex. A to Def.’s Reply

21

Brief. This statement, if true, surely gives rise to an inference

22

that Ms. Brown associates being disabled with stupidity. Defendant

23

argues

24

“handicapped by one form of stupidity or another,” Brown did not

25

use those words with a discriminatory animus. Clearly Brown’s

26

intent is for the trier of fact, and cannot be disregarded simply

bias

against

the

disabled.

That

evidence

includes

a

that on two occasions she “heard Linda Brown tell Sue

Penelope

employees

that

was

even

Cross

heard

“handicapped

if

she

did

14

Brown

by

say

one

refer

form

that

her

to

of

plaintiff

stupidity

employees

as

or

were

1

because she says so. Moreover, other evidence has been produced by

2

plaintiff.

3

Plaintiff avers in a declaration, that on several occasions,

4

Brown “expressed great anger and resentment” about the time and

5

effort she had to give her own daughter, who Brown referred to as

6

“mentally retarded,” and “mentally ill.” McCoy Decl. ¶ 9.

7

In his motion, defendant’s only argument as to plaintiff’s

8

prima facie case is about the insufficiency of the similarly-

9

situated employees proffered by plaintiff. The court finds that the

10

evidence produced by plaintiff raises a material fact as to whether

11

the circumstances surrounding plaintiff’s termination give rise to

12

an inference of discrimination. Plaintiff has therefore made a

13

prima facie case of discrimination.

14

ii. Defendant’s proffered non-discriminatory reason for the

15

termination.

16

“When

the

plaintiff

has

proved

a

prima

facie

case

of

17

discrimination, the defendant bears only the burden of explaining

18

clearly the nondiscriminatory reasons for its actions.” Tex. Dep't

19

of Cmty. Affairs v. Burdine, 450 U.S. 248, 260 (1981). “This burden

20

is

21

credibility assessment.’” Reeves v. Sanderson Plumbing Prods., 530

22

U.S. 133, 142 (U.S. 2000) (quoting St. Mary's Honor Center, supra,

23

at 509).

one

of

production,

not

persuasion;

it

‘can

involve

no

24

In this case, defendant has met its burden by asserting that

25

plaintiff was fired for the three reasons stated in her termination

26

letter i.e. that she made a racially offensive remark to a co15

1

worker, and that she twice made false statements at work.

2

iii. Plaintiff’s Pretext Argument

3

Plaintiff argues that there are triable issues of material

4

fact as to whether she was actually terminated because of her

5

disability, and not for the reasons stated in the termination

6

letter and repeated in defendant’s motion. A plaintiff can prove

7

pretext either “(1) indirectly, by showing that the employer's

8

proffered

9

internally

explanation

is

inconsistent

unworthy
or

of

otherwise

credence
not

because

believable,

it
or

is
(2)

10

directly, by showing that unlawful discrimination more likely

11

motivated the employer.” Chuang v. University of Cal. Davis, 225

12

F.3d 1115, 1127 (9th Cir. 2000)5. The court looks at the two types

13

of evidence cumulatively; “a combination of the two kinds of

14

evidence may in some cases serve to establish pretext so as to make

15

summary judgment improper.” Id. Additionally, the prima facie case

16

itself may raise a genuine issue of material fact regarding the

17

truth of the employers’ proffered reasons. Id.

18

In response to defendant’s motion Plaintiff addresses each of

19

the three stated reasons given by the employer. First, the incident

20

with Mr. Smith occurred six months before the termination. Moreover

21

a performance review that occurred between plaintiff’s remarks to

22

Mr. Smith and plaintiff’s termination made no mention of the

23

incident. In that performance review, plaintiff received “success”

24
25
26

5

The court does not stop to explore what sometimes appears
to be confusion about the proof required to prevail at trial and
the showing necessary to defeat a motion for summary judgement.
16

1

or “excellence” marks in all sections. Pl.’s Ex 4. Defendant argues

2

that the incident did not appear in the performance review because

3

the review period closed on April 30, 2006, and Brown did not learn

4

of the Smith incident until May 2, 2006. This assertion is not

5

dispositive. Plaintiff asserts in her declaration

6

appeared to be satisfied after plaintiff apologized to Mr. Smith,

7

and plaintiff did not hear anything more about the issue until she

8

received her termination letter. McCoy Decl. ¶ 10.

that Brown

9

Second, one of the stated reasons for the termination was that

10

plaintiff had falsely taken credit for work performed by her co-

11

worker, Ms. Dwyer. However, prior to the termination, Ms. Dwyer

12

told

13

intentionally lied. EEO Hearing Transcript, Pl.’s Ex. 12.

Brown

that

she

did

not

believe

that

plaintiff

had

14

Third, one of defendant’s stated reasons for the termination

15

was that plaintiff made the false statement that she was not

16

required

17

evidence that Brown had, in fact, agreed to proofread plaintiff’s

18

work as an accommodation for plaintiff’s disability. Pl.'s Ex. 1

19

207:12-17 (testimony by Ms. Brown that she agreed to proofread

20

plaintiff’s work). A fact finder could infer, therefore, that Brown

21

knew that plaintiff’s statement in this regard was not false, and

22

that Brown was merely using that basis as a pretext.

to

proofread

her

own

work.

Plaintiff

has

presented

23

Defendant argues that the evidence is insufficient to overcome

24

the so-called “same-actor inference” established in Bradley v.

25

Harcourt, Brace & Co., 104 F.3d 267 (9th Cir. 1996). There, the

26

court held that “where the same actor is responsible for both the
17

1

hiring and the firing of a discrimination plaintiff, and both

2

actions occur within a short period of time, a strong inference

3

arises that there was no discriminatory action." Here, Brown

4

converted plaintiff from an 80-day position to a two-year term on

5

October 1, 2005. However, plaintiff has rebutted this inference

6

with evidence showing that Brown became biased while working with

7

plaintiff because of the perceived burden imposed by plaintiff’s

8

disability. See Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090,

9

1097 (9th Cir. 2005)(same inference actor may have been rebutted

10

if

plaintiff

“proffered

evidence

suggesting

that

Andreassen

11

developed a bias against Norwegians during that period.”).6

12

Thus, the court concludes that plaintiff has provided evidence

13

from which a trier of fact could conclude that “the employer's

14

proffered

15

internally inconsistent or otherwise not believable.” Chuang,

16

supra. In her prima facie case, plaintiff also provided evidence

17

that her termination was motivated by unlawful discrimination on

18

Brown’s part. Together, these two categories of evidence offered

19

by plaintiff raise a genuine issue of material fact as to whether

20

defendant’s stated reason for firing plaintiff was, in fact,

21

pretext.

22

C. Plaintiff’s Retaliation Claim

23

explanation

is

unworthy

of

credence

because

it

is

Plaintiff claims that she was terminated in retaliation for

24
25
26

6

In any event an inference, however strong, is merely a
matter that permits a trier of fact to resolve evidence, it does
not resolve the issue of whether there is a triable issue of fact.
18

1

complaining to Ms. Richert on August 9, 2006 about a hostile work

2

environment and disability discrimination. Plaintiff’s retaliation

3

claim is subject to the same burden-shifting analysis as her

4

disparate treatment claim, except that in order to establish a

5

prima facie case, plaintiff must show that (1) she engaged in

6

protected activity, and (2) that she suffered an adverse employment

7

action, and (3) that a causal link exists between the two events.

8

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994).

9

i. Plaintiff’s Prima Facie Case for Retaliation

10

There

is

a

dispute

about

whether

plaintiff

engaged

in

11

protected activity on August 9, 2006. Plaintiff declares that she

12

raised the issue of disability discrimination in the meeting with

13

Richert. McCoy Decl. ¶ 7. While defendant disputes that fact, that

14

merely creates a material issue of fact. Thus the court concludes

15

that there remains a genuine issue of material fact as to whether

16

plaintiff engaged in protected activity on August 9, 2006.

17

Plaintiff undisputedly suffered an adverse employment action

18

when she was terminated on September 15, 2009. Plaintiff therefore

19

must only show a causal link between the protected activity and the

20

termination.

21

Plaintiff tenders two arguments to support the causal link.

22

First is that a link can be inferred from the close temporal

23

proximity of the two events. The Ninth Circuit appears to draw the

24

line for timing-based inferences of causation at about three

25

months. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

26

1065 (9th Cir. 2002)(surveying cases in which a causal link was
19

1

inferred when there was a lapse of less than three months, but no

2

causal link inferred where the lapse was four five or

3

months,). In this case, there was a lapse of only five weeks, so

4

a causal link could be inferred.

eight

5

Nonetheless, defendant argues that there is no evidence that

6

Brown knew of plaintiff’s alleged protected activity, and that such

7

knowledge is a prerequisite for establishing a causal link. Brown

8

admitted that she knew that the subject of the meeting between

9

plaintiff and Richert was Brown’s “management style.” EEO Hearing

10

Testimony of Linda Brown, Pl.’s Ex. 6:20-21. A causal connection

11

can be established even if the evidence is only that the decision-

12

maker “suspected” protected activity. Actual knowledge is not

13

required. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107,1113

14

(9th

15

he-know-and-when-did-he-know-it” question. “Such questions are

16

often

17

inappropriate for resolution on summary judgment. It is frequently

18

impossible

19

contradicting someone's contention that he did not know something,

20

and Hernandez has no such evidence.” Id. at 1114.

Cir.2003.

difficult

for

Ultimately

to

a

answer,

this

and

plaintiff...to

for

is

that

discover

a

“what

reason

direct

are

did

often

evidence

21

Given the above, the court concludes that plaintiff has met

22

her burden of presenting a prima facie case that she was terminated

23

in retaliation for complaining about disability discrimination.

24

ii. Defendant’s proffered reason for the termination.

25

As noted above, defendant has met its burden by explaining

26

that plaintiff was fired for the three reasons stated in her
20

1

termination letter: that she made a racially offensive remark to

2

a co-worker, and that she twice made false statements at work.

3

iii. Plaintiff’s Pretext Argument

4

In addition to the analysis and facts discussed above

5

respect to plaintiff’s discrimination pretext argument, plaintiff

6

offers evidence specific to her retaliation pretext argument. In

7

particular, plaintiff offers evidence that Brown had gotten “very

8

angry” in the past when plaintiff met with a Human Resources

9

official about her job title. McCoy Decl. ¶ 6. Brown had indicated

10

that in her opinion “going over her head” was a terminable offense.

11

Id. Plaintiff contends that evidence of this prior incident is

12

evidence that Brown was likely to have gotten angry when plaintiff

13

complained

14

termination.7

to

Richert,

and

that

this

was

a

cause

of

with

her

15

The court finds that plaintiff has raised a genuine issue as

16

to whether defendant’s stated reasons for the termination were in

17

fact pretext.

18

D. Remedies

19

Defendant requests that plaintiff’s remedies be limited in two

20

ways: (1) plaintiff’s claim for back pay should be limited to a one

21

year period, since back pay for time beyond her appointed term is

22

speculative; and (2) no compensatory damages are available for

23

plaintiff’s retaliation claim. The court takes each issue in turn.

24

////

25
7

26

As noted above there is a issue of fact as to whether
plaintiff in fact complained about job bias.
21

1

i. Speculative Damages

2

Plaintiff seeks back pay to the date of her termination, and

3

front pay to a reasonable date beyond the date of the judgment.

4

Defendant argues that plaintiff is only entitled to recover back

5

pay up to the point when her two-year term would have ended, on

6

September 30, 2007.

7

Back-pay under the Rehabilitation Act is an equitable remedy.

8

Lutz v. Glendale Union High Sch., Dist. No. 205, 403 F.3d 1061,

9

1069 (9th Cir. 2005). Generally, the amount of back-pay awarded may

10

not be speculative. See, e.g., Fresh Fruit & Vegetable Workers

11

Local 1096 v. NLRB, 539 F.3d 1089 (9th Cir. 2008)(holding, in the

12

context of an unfair labor practice, that “[t]he [National Labor

13

Relations] Board may not impose a back pay award in the absence of

14

record

15

employees" because such an award would be “purely conjectural.”).

16

Thus, defendant argues, back-pay for any time after September 30,

17

2007, when plaintiff’s two-year term of employment would have

18

terminated, is too speculative for the court to award.

evidence

as

to

the

circumstances

of

the

individual

19

Plaintiff argues that a triable issue exists as to whether

20

plaintiff’s employment would have continued beyond September 30,

21

2007. Plaintiff submits evidence from a human resources official,

22

who declares that Brown had approached him about making plaintiff’s

23

position permanent. Decl. Ted. Surratt, Pl.’s Ex 7.

24

In this case, the court may decide, in its discretion, that

25

back and front pay beyond September 30, 2007 may be awarded,

26

////
22

1

depending on facts found at trial.8

2

ii. Compensatory Damages for Retaliation

3

On this issue, the court is confronted with an unambiguous

4

statute that says one thing, and two Ninth Circuit opinions which,

5

put together, unambiguously hold the opposite.

6

The Civil Right Act of 1991, 42 U.S.C. § 1981a, provides for

7

compensatory damages in some cases of intentional discrimination,

8

including for violations of section 501 the Rehabilitation Act, 29

9

U.S.C. § 791. “In an action brought by a complaining party. under

10

the powers, remedies, and procedures set forth in. . . section

11

505(a) of the Rehabilitation Act. . . against a respondent who

12

engaged in unlawful intentional discrimination [as opposed to

13

disparate impact] under section 501 of the Rehabilitation Act. .

14

. , or who violated the requirements of section 501 of the Act (29

15

U.S.C. 791). . . , the complaining party may recover compensatory

16

and punitive damages. . . ." 42 USCS § 1981a(a)(2). In this case,

17

plaintiff is alleging violations of 29 U.S.C. § 791, and seems

18

therefore unambiguously entitled to recover compensatory damages

19

on the face of the statute.

20

However, the Ninth Circuit has held, “[b]y statute, the

21

remedies for violations of the ADA and the Rehabilitation Act are

22

co-extensive with each other, 42 U.S.C. § 12133; 29 U.S.C. §

23
24
25
26

8

Although the amount of back pay is a matter for the court to
decide, Lutz, 403 F.3d at 1069, the court may rely on an advisory
jury for fact-finding relating to the appropriate amount of back
or front pay. Traxler v. Multnomah County, 596 F.3d 1007, 1013 (9th
Cir. 2010)(citing Lutz, supra).
23

1

794a(a)(2), and are linked to Title VI of the Civil Rights Act of

2

1964, 42 U.S.C. § 2000d, et seq. These statutes require that ADA

3

and Rehabilitation Act remedies be construed the same as remedies

4

under Title VI." Ferguson v. City of Phoenix, 157 F.3d 668 (9th

5

Cir. 1998)(cert. denied at 529 U.S. 1159).

6

The Rehabilitation Act itself contains no anti-retaliation

7

provision, but expressly incorporates the ADA’s anti-retaliation

8

provision,

42

9

available

for

U.S.C.

§

12203.

retaliation

Compensatory

under

the

damages

ADA.

are

not

Interpreting

§

10

1981a(a)(2), the Ninth Circuit has held “the text of section 1981a

11

is not ambiguous. It explicitly delineates the specific statutes

12

under the ADA for which punitive and compensatory damages are

13

available. . . [the statute] limits its remedial reach to ADA

14

discrimination claims, and does not incorporate ADA retaliation

15

claims.” Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th

16

Cir.

17

compensatory damages are not available for ADA retaliation claims.”

18

Id. at 1269.

19

2009).

The

court

held

ultimately

that

“punitive

and

Combining the Ferguson holding that ADA and Rehabilitation Act

20

remedies

21

compensatory damages are not available for retaliation under the

22

ADA, it appears that in this circuit compensatory damages are not

23

available for retaliation under the Rehabilitation act.

24
25
26

are

co-extensive,

with

Alvarado’s

holding

that

IV. Conclusion
For the reasons stated above, the court ORDERS as follows:
[1] Defendant’s motion for summary judgment, ECF No. 67,
24

1

is GRANTED in part and DENIED in part.

2

[2] The motion is GRANTED with respect to plaintiff’s

3

claim

4

claim.

5

[3] The motion is DENIED on all other grounds.

for

compensatory

6

IT IS SO ORDERED.

7

DATED:

May 31, 2011.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
25

damages

for

her

retaliation