Pinder v. Employment Development Department, et al
Filing
64
ORDER signed by District Judge Troy L. Nunley on 1/4/2017 GRANTING 50 Motion for Summary Judgment/Motion for Summary Adjudication. CASE CLOSED. (Michel, G.)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
Plaintiff,
12
ORDER
v.
13
14
No. 2:13-cv-00817-TLN-DB
FRANK PINDER,
EMPLOYMENT DEVELOPMENT
DEPARTMENT, et al.,
15
Defendants.
16
17
18
This matter is before the Court pursuant to Defendants Employment Development
19
Department (“EDD”), Richard Rogers and David Derks’s (collectively hereinafter referred to as
20
“Defendants”) Motion for Summary Judgment or, alternatively, Summary Adjudication. (ECF
21
No. 50.) Plaintiff Frank Pinder (“Plaintiff”) opposes Defendants’ motion. (ECF No. 58.)
22
Defendants have filed a reply. (ECF No. 60.) The Court has carefully considered the arguments
23
raised by the parties. For the reasons set forth below, Defendants’ Motion for Summary
24
Judgment or, alternatively, Summary Adjudication is GRANTED.
FACTUAL BACKGROUND1
25
I.
26
Plaintiff is an African American male. (Pl.’s Resp. to Defs.’ separate statement of
27
28
1
As explained in more detail in Section III of this Order, the Court has examined the record carefully along
with the objections to determine whether the facts submitted by the parties are supported and whether a genuine
dispute exists. This section is composed of those facts that the Court has found are not in dispute.
1
1
undisputed material facts, ECF No. 58-1 at ¶ 1.) On or about January 4, 2010, Plaintiff began
2
working for EDD as a System Software Specialist III Supervisor for the Business Applications
3
Services Group. (ECF No. 58-1 at ¶ 2.) Plaintiff supervised a staff of approximately 20 people.
4
(See Defs.’ Resp. to Pl.’s separate statement of undisputed material facts, ECF No. 60-3 at ¶ 4.)
5
Plaintiff alleges that he received no “complaints” and was not otherwise “counseled about [his]
6
performance” during his first month of employment. (Pl.’s Decl., ECF No. 58-3 at ¶ 9.) The
7
parties seem to agree that Plaintiff had no immediate supervisor during that period. (ECF No. 60
8
at 4; Pl.’s Dep.,2 18:18–19.)
Derks, a white male, began his employment with EDD as the Client Solutions Section
9
10
Chief on or about February 2, 2010. (ECF No. 58 at 5; ECF No. 58-1 at ¶ 7; ECF No. 60 at 3–4.)
11
Derks was Plaintiff’s immediate supervisor from February until on or about August 30, 2010.
12
(ECF No. 58-1 at ¶¶ 8, 34.)
In approximately February 2010, Derks informed Plaintiff that there was a perception by
13
14
Plaintiff’s staff that Plaintiff was unable to perform his job. (ECF No. 58-1 at ¶ 9.) Plaintiff
15
claims there was no such perception but does not dispute being told this. (ECF No. 58-1 at 4;
16
Pl.’s Dep., 19:10–11.)
Derks removed Plaintiff from participating in hiring panels to interview new staff
17
18
members because Derks received feedback that Plaintiff argued with other members of the
19
interview panel in front of the interviewees. (ECF No. 58-1 at ¶ 14.) Plaintiff claims he was
20
removed in February 2010 as a result of an interview that took place in January 2010. (ECF No.
21
58-1 at 5; Pl.’s Dep., 40:3–44:5.)
Beginning in February 2010, Plaintiff and Derks had one-on-one meetings on a near
22
23
weekly basis until August 2010. (ECF No. 58-1 at ¶ 11.) Plaintiff in his deposition also
24
identified impromptu one-on-one meetings. (See, e.g., Pl.’s Dep., 54:1, 6.) The parties seem to
25
agree that these were work-related meetings. (ECF 50-2 at ¶ 10; see, e.g., Pl.’s Dep., 52:19–20,
26
54:6–18.) In his declaration, Derks stated that he “conducted regular one-on-one meetings with
27
2
28
Throughout this Order the Court refers to transcripts of Plaintiff’s deposition (“Pl.’s Dep.”), excerpts are
attached as an exhibit to the declaration of Michelle A. Marzahn. (ECF No. 50-3, Ex. C). Additionally, a courtesy
copy has been lodged with the Court. (See ECF No. 51.)
2
1
Plaintiff regarding project status, work performance, and expectations.” (ECF No. 50-4 at ¶ 7.)
2
Plaintiff’s discussions of these meetings in his deposition are consistent with that description.
3
(See generally Pl.’s Dep., 51:12–72:24.)3 Plaintiff’s deposition testimony provided a non-
4
exhaustive list of topics that were subjects of one-on-one meetings with Derks on unspecified
5
days. (See Pl.’s Dep., 51:12–72:24.) These included Plaintiff’s difficulties having his staff
6
perform assignments, Plaintiff’s alleged failure to provide Derks with requested data, and
7
discussions of Derks’s dissatisfaction with Plaintiff’s responses to technical questions regarding
8
information technology. (See Pl.’s Dep., 55:3–13, 55:14–56, 61:4–6, 63:3–15.) Plaintiff recounts
9
that “in some instances [at these meetings Derks] would tell me I am not doing my job” and that
10
this feedback was “a common thing every day.” (Pl.’s Dep., 54:16–18, 60:6–9, 69:10–11.)
11
Plaintiff viewed Derks’s criticism to have stemmed from alleged deficiencies on Derks’s
12
part, e.g., inexperience working with state and union employees, lack of technical understanding
13
and difficulty controlling Derks’s anger. (See, e.g., Pl.’s Dep., 56:4–9, 61:4–9, 66:1–2.) Plaintiff
14
viewed Derks’s behavior, tone, word choice and questions during one-on-one meetings to be
15
inappropriate, unprofessional and condescending. (See, e.g., Pl.’s Dep., 54:9–11, 60:17–61:10,
16
72:1–22). Plaintiff described Derks’s manner as “aggressive” and did not like Derks’s “tone” and
17
“demeanor” when Plaintiff perceived Derks to be “upset” or “something was wrong.” (Pl.’s
18
Dep., 54:9–18.) Plaintiff viewed some of the work related questions asked by Derks as
19
condescending because they covered things Plaintiff “obvious[ly] … should have known” from
20
the qualifications Plaintiff listed on his résumé. (Pl.’s Dep., 60:17–61:10.) Plaintiff was
21
particularly upset by the way he was told to “sit” during a specific one-on-one meeting and
22
characterized this as a “racial comment” in his deposition. (Pl.’s Dep., 72:1–24 (“[T]here was
23
something in his language and the way he said it, it was like he was talking to a dog.”))
Other than the one instance of being told to “sit,” Plaintiff did not identify any other
24
25
specific instance of perceived “racial comments” made by Derks. (Pl.’s Dep., 72:1–24.)
26
3
27
28
Plaintiff has improperly disputed ¶ 10 of Defendants’ statement of undisputed material facts (“DSUMF”)
(ECF No. 50-1 at ¶ 10) in the manner described in more detail in Section III. Upon reviewing the citation to the
record in support of ¶ 10 of DSUMF, it is clear Defendants have conflated some of Plaintiff’s statements regarding
impromptu meetings to characterize the weekly ones. Consequently, the Court briefly summarizes the portions of
Plaintiff’s deposition at issue.
3
1
Additionally, Plaintiff stated that Derks had never discussed anyone else’s race to Plaintiff’s
2
knowledge. (Pl.’s Dep., 72:17–20.) When asked generally what Plaintiff perceived as motivating
3
Derks to ask Plaintiff “condescending” questions, Plaintiff responded that he did not know. (Pl.’s
4
Dep., 65:3–66:2 (“I don’t know what he saw in me …. [T]o answer your question why he acts
5
like that …. I don’t know what was going on with him.”) When asked about Plaintiff’s
6
perception of Derks interaction with other employees, Plaintiff indicated that Derks was “forceful
7
with everyone” and recounted that on one occasion members of Plaintiff’s team were unwilling to
8
complete a task for Derks because they were “not happy with [Derks’s] way of talking to them or
9
dealing with them….” (Pl.’s Dep., 55:21–22, 57:25–58:2.)
On or about May 7, 2010, Derks informed Plaintiff by email that he was “disappointed” in
10
11
incomplete data received from Plaintiff. (ECF No. 58-1 at ¶ 15; ECF No. 50-4 at ¶ 10.)
On or about May 11, 2010, Derks reassigned procurement responsibilities from Plaintiff
12
13
to another staff member. (ECF No. 58-1 at ¶ 16.) In his declaration Derks stated that this was
14
done because “Plaintiff had not completed or managed the procurements[,] there were tight
15
deadlines [and] Plaintiff’s primary technical resource was frustrated with Plaintiff’s leadership.”
16
(ECF No. 50-4 at ¶ 11.)
On or about May 11, 2010, Derks informed Plaintiff that EDD management was
17
18
concerned Plaintiff was not technically qualified, and this perception was affecting Plaintiff’s
19
ability to lead his group. (ECF No. 58-1 at ¶ 17.) Derks offered to train Plaintiff on the technical
20
environment of EDD. (ECF No. 58-1 at ¶ 17.)
On or about May 12, 2010, Plaintiff spoke with EDD’s mediation group about Derks’s
21
22
“behavior,” forwarding them a copy of an email4 about reassigning Plaintiff’s procurement
23
responsibilities and received a mediation form. (ECF No. 58-1 at ¶ 18; ECF No. 60-3 at ¶ 26.) In
24
Plaintiff’s deposition he describes speaking to an unnamed person at what appears to be EDD’s
25
mediation office5 regarding his “concerns about not having the opportunity to do my job and not
26
4
27
28
Plaintiff’s declaration indicates the email in question is attached as an exhibit, but it is not. (See ECF No.
58-3.)
5
The parties at times seem generally confused as to what happened here calling this a group that “works with
managers and supervisors,” a “manager group,” “a group that EDD has that [Plaintiff] spoke to,” “EDD Mediation
Office” and “EEO.” (See ECF No. 58-1 at ¶ 18; ECF No. 58-3 at ¶ 26; Pl.’s Dep., 75:12–19, 77:7, 77:11, 77:15.)
4
1
doing the duties that I was hired to perform.” (Pl.’s Dep., 75:12–19.)
2
On or about May 14, 2010, Plaintiff received his first probationary report with an overall
3
rating of “unacceptable.” (ECF No. 58-1 at ¶ 19.) The report detailed concerns about perceived
4
deficiencies in Plaintiff’s job performance. (ECF No. 58-1 at ¶ 19; ECF No. 50-4 at ¶ 13.) In his
5
declaration Derks states that he prepared the report “several days” prior to Plaintiff receiving it
6
and that it had been reviewed prior to it being given to Plaintiff. (ECF No. 50-4 at ¶ 13.) Rogers,
7
an African American male, was the “Reviewing Officer” for Plaintiff’s first probationary report.
8
(ECF No. 58-1 at ¶ 6; ECF No. 60-3 at ¶ 27.) During the period that Derks was Plaintiff’s
9
immediate supervisor, Rogers was Plaintiff’s second-line supervisor. (ECF No. 58-1 at ¶ 5.)
10
Derks reported to Rogers. (ECF No. 58-1 at ¶ 7.) Rogers previously held Plaintiff’s position
11
before Plaintiff was hired. (ECF No. 58-1 at ¶ 3.) Rogers made the ultimate decision to hire
12
Plaintiff. (ECF No. 58-1 at ¶ 4.)
13
On or about May 24, 2010, Derks had a one-on-one meeting with Plaintiff and provided
14
him with a memorandum entitled “Weekly One-One Review.” (ECF No. 58-1 at ¶ 20.) During
15
the meeting and in the memorandum, Derks informed Plaintiff that Derks had determined that
16
Plaintiff had not met certain expectations and deadlines described in the memorandum. (ECF No.
17
58-1 at ¶ 20.) Plaintiff disputes having failed to meet those expectations and deadlines. (ECF
18
No. 58-3 at ¶ 29.) The parties disagree about whether Plaintiff failed to turn in certain time cards
19
for Derks’s review at this meeting. (ECF No. 58-1 at ¶ 20; ECF No. 58-3 at ¶ 29.)
20
On or about May 27, 2010, Plaintiff filed a complaint with EDD’s EEO Office, alleging
21
that he was experiencing discrimination based on race, as well as bias/harassment and retaliation.
22
(ECF No. 58-1 at ¶ 21.) The complaint attached the first probationary performance evaluation,
23
the May 24, 2010 memorandum from Derks, and a rebuttal to the probation report. (ECF No. 58-
24
1 at ¶ 21.) On or about May 28, 2010, Plaintiff provided Derks with a “rebuttal” to the first
25
26
27
28
The only real clarity provided is that EDD’s Equal Employment Opportunity (“EEO”) office was not contacted until
“a while” after this earlier event and that the parties have appeared to agree the latter occurred on May 27, 2010 due
in part to the repeated representations of Plaintiff’s counsel. (Pl.’s Dep., 77:17–21, 78:24–79:14.) Despite this, at
times, there are indications by both parties that sometime earlier in May another EDD EEO complaint of some sort
may have been made. (Compare ECF 60-3 at ¶ 26 and ECF No. 58 at 7 with ECF No. 50-1 at 27–28 and Pl.’s Dep.
75:3–80:1.) As discussed in footnote 14, if such a report occurred it would not change the outcome of Defendants’
motion.
5
1
2
probationary performance evaluation. (ECF No. 58-1 at ¶ 22.)
On or about June 1, 2010, Derks communicated to Plaintiff that Plaintiff had provided “no
3
real feedback” when asked about troubleshooting processes and was unable to answer if Plaintiff
4
had completed his weekly status report. (ECF No. 58-1 at ¶ 23; ECF No. 60-3 at ¶ 32.) Plaintiff
5
acknowledges receiving a message to this effect from Derks but denies it accurately represents
6
what happened. (ECF No. 60-3 at ¶ 32.)
7
On or about June 12, 2010, Plaintiff informed Derks that it was impossible to provide
8
information regarding “IT-SM metrics.” (ECF No. 58-1 at ¶ 24.) However, two other staff
9
members had already provided this information to Derks. (ECF No. 58-1 at ¶ 24.)
10
By approximately June 22, 2010, Derks had not received a requested “project charter”
11
from Plaintiff, the project in question was incomplete, and it was unclear to Derks whether
12
Plaintiff knew the status of the project. (ECF No. 58-1 at ¶ 25; ECF No. 50-4 at ¶ 17.)
13
In approximately June 2010, a mediator from the Department of Industrial Relations
14
(“DIR”) met individually with Plaintiff and Derks, and collectively with Plaintiff, Derks, and
15
Rogers. (ECF No. 58-1 at ¶ 28.) Plaintiff’s declaration together with his deposition suggest this
16
took place on approximately June 23, 2010, and was in connection with Plaintiff’s EEO
17
complaint. (See ECF No. 58-3 at ¶¶ 34–35; Pl.’s Dep., 80:2–83:23.)
18
On or about June 23, 2010, the EEO Office sent Plaintiff a letter in response to his May
19
27, 2010, EEO complaint stating that Plaintiff’s complaint had been closed on June 23, 2010,
20
without a finding of racial discrimination or retaliation. (ECF No. 58-1 at ¶ 26.)
21
On or about June 29, 2010, Plaintiff missed a meeting concerning Plaintiff’s team’s
22
workload that was attended by Derks, Rogers and all System Software Specialist III staff, except
23
Plaintiff, without providing any explanation. (ECF No. 58-1 at ¶ 27.)
24
On or about July 16, 2010, Derks spent three hours revising a status report after
25
concluding the one submitted by Plaintiff was below “expectations.” (ECF No. 58-1 at ¶ 29.)
26
On or about August 2, 2010, Derks offered to provide project management overview
27
training to Plaintiff, but Plaintiff declined the training, stating he was qualified to lead projects.
28
(ECF No. 58-1 at ¶ 30.)
6
1
On or about August 23, 2010, Derks and Plaintiff met one-on-one. (ECF No. 58-1 at ¶
2
31.) Derks asserts he asked Plaintiff what Plaintiff thought the reason was for the tension
3
between them. (ECF No. 50-4 at ¶ 21.) Derks asserts Plaintiff refused to answer, stating Plaintiff
4
was doing the best job Plaintiff could do to meet EDD requirements and did not care about
5
Derks’s expectations. (ECF No. 50-4 at ¶ 21.) Plaintiff asserts that Derks spoke to Plaintiff in an
6
“unprofessional manner” during the meeting. (ECF No. 58-3 at ¶ 38.) Later that day, Plaintiff
7
sent an email to that effect to Rogers copying the mediator from DIR. (ECF No. 58-1 at ¶ 32.)
8
On August 24, 2010, Rogers informed Plaintiff that the one-on-one meetings between
9
Derks and Plaintiff would end and Plaintiff would report directly to Rogers. (ECF No. 58-1 at ¶
10
33.) On approximately August 30, 2010, Rogers became Plaintiff’s immediate supervisor. (ECF
11
No. 58-1 at ¶ 34.)
12
On or about September 10, 2010, Plaintiff met with Rogers and Derks and received his
13
second probationary report with an overall rating of “unacceptable.” (ECF No. 58-1 at ¶ 36.)
14
The report detailed concerns about perceived deficiencies in Plaintiff’s job performance. (ECF
15
No. 58-1 at ¶ 36.) The report was prepared by Derks and reviewed by Rogers. (ECF No. 60-3 at
16
¶ 41.) At the meeting Plaintiff stated he would provide a proper response to the report when he
17
returned from vacation. (ECF No. 58-1 at ¶ 37.) Plaintiff was on vacation from on or about
18
September 13, 2010 through September 20, 2010. (ECF No. 58-1 at ¶ 38.) Rogers followed up
19
on the status of Plaintiff’s response to the probationary report on or about September 20, 2010
20
after Plaintiff’s return from vacation. (ECF No. 58-1 at ¶ 39.) On approximately September 30,
21
2010, Plaintiff provided Rogers with a “rebuttal” to the report. (ECF No. 58-1 at ¶ 40.)
22
On or about October 6, 2010, Plaintiff informed Rogers that Plaintiff would not participate
23
in a mandatory manager/supervisor meeting because he was picking up items for a potluck. (ECF
24
No. 58-1 at ¶ 41.) During this time, Rogers informed Plaintiff of a work assignment with certain
25
tasks and with specific deadlines. (ECF No. 58-1 at ¶ 42.) Plaintiff did not meet any of the
26
deadlines set forth in the October 6, 2010 work assignment. (ECF No. 58-1 at ¶ 43.) Plaintiff
27
indicates these deadlines were set without “negotiat[ing]” with Plaintiff, which Plaintiff asserts
28
EDD required Rogers to do. (ECF No. 58-3 at ¶ 43.)
7
1
On or about November 6, 2010, Rogers provided Plaintiff with a memorandum outlining
2
the missed deadlines, setting new deadlines, and informing Plaintiff that he would receive an
3
interim probationary report. (ECF No. 58-1 at ¶ 44.) Plaintiff missed the new deadlines set by
4
Rogers on November 6, 2010, for the work assignment originally assigned October 6, 2010 and
5
made no significant progress on the assignment. (ECF No. 58-1 at ¶ 45.)
6
On December 2, 2010, Rogers met with Plaintiff and gave him an interim probationary
7
report with an overall rating of “unacceptable.” (ECF No. 58-1 at ¶ 46.) Plaintiff was informed
8
that without immediate improvement, EDD would seek to reject Plaintiff from probation, i.e.,
9
terminate his employment. (ECF No. 58-1 at ¶ 46.)
10
On December 29, 2010, Plaintiff was notified that he would be terminated with an
11
effective date of January 7, 2011. (ECF No. 58-1 at ¶ 47.) Rogers stated that he was the ultimate
12
decision maker who decided to terminate Plaintiff because of his poor job performance. (ECF
13
No. 50-6 at ¶ 19.)
14
II.
15
Summary judgment is appropriate when the moving party demonstrates no genuine issue
16
as to any material fact exists, and therefore, the moving party is entitled to judgment as a matter
17
of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under
18
summary judgment practice, the moving party always bears the initial responsibility of informing
19
the district court of the basis of its motion, and identifying those portions of “the pleadings,
20
depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”
21
which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
22
Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof
23
at trial on a dispositive issue, a summary judgment motion may properly be made in reliance
24
solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at
25
324 (internal quotations omitted). Indeed, summary judgment should be entered against a party
26
who does not make a showing sufficient to establish the existence of an element essential to that
27
party’s case, and on which that party will bear the burden of proof at trial.
28
STANDARD OF REVIEW
If the moving party meets its initial responsibility, the burden then shifts to the opposing
8
1
party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.
2
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities
3
Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual
4
dispute, the opposing party may not rely upon the denials of its pleadings, but is required to
5
tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in
6
support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must
7
demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the
8
suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that
9
the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for
10
the nonmoving party. Id. at 251–52.
11
In the endeavor to establish the existence of a factual dispute, the opposing party need not
12
establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
13
dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
14
trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to
15
‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
16
trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963
17
amendments).
18
In resolving the summary judgment motion, the court examines the pleadings, depositions,
19
answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.
20
R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence
21
of the opposing party is to be believed, and all reasonable inferences that may be drawn from the
22
facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.
23
at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
24
obligation to produce a factual predicate from which the inference may be drawn. Richards v.
25
Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.
26
1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party
27
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
28
Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of
9
1
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.
2
III.
ANALYSIS
3
The claims not disposed of by the Court’s order granting in part and denying in part
4
Defendants’ motion to dismiss are: (1) discrimination based on race pursuant to California’s Fair
5
Employment and Housing Act (“FEHA”) against EDD; (2) discrimination based on race pursuant
6
to Title VII of the Civil Rights Act of 1964 (“Title VII”) against EDD; (3) harassment based on
7
race (pursuant to FEHA and Title VII against EDD; pursuant to FEHA only against the individual
8
defendants); (4) retaliation pursuant to FEHA and Title VII against EDD; (5) retaliation pursuant
9
to California Labor Code §§ 98.6 and 1102.5 against EDD; (6) failure to prevent harassment,
10
discrimination, and retaliation against EDD; (7) violation of California Labor Code §§ 226.7 and
11
512 against EDD; and (8) a claim under California’s Private Attorneys General Act (“PAGA”)
12
against EDD pursuant to California Labor Code §§ 2698 and 2699. (See ECF Nos. 8, 19.)
13
Defendants argue that summary judgment or, alternatively, summary adjudication, is
14
appropriate as to the remaining claims because there are no genuine issues of material fact, and
15
Defendants are entitled to judgment as a matter of law. (See generally ECF Nos. 50, 50-1, 60).
16
The Court analyzes Plaintiff’s racial discrimination claims under a disparate treatment theory
17
together due to the similarities of Title VII and FEHA. The Court will do likewise with
18
Plaintiff’s racial harassment and retaliation claims.
19
A.
Brief Discussion of Defendants’ Objections
20
Defendants filed thirty-two evidentiary objections to Plaintiff’s declaration and nearly an
21
equal number to Plaintiff’s separate statement of undisputed facts. (See ECF No. 60-1; ECF No.
22
60-3.) This includes arguing that Plaintiff’s declaration should not be considered in its entirety
23
for failure to state that it was made on personal knowledge and its alleged failure to “affirmatively
24
demonstrate” Plaintiff is competent to testify about the matters stated in the declaration. (ECF
25
No. 60-1 at 2.) The Court declines to strike Plaintiff’s declaration in its entirety as it is clear from
26
the context that substantial portions of the declaration cover topics that are within Plaintiff’s
27
personal knowledge and competency, e.g., the date of his hire, who interviewed him, whom he
28
supervised, etc. See generally Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir.
10
1
1990) (“That Rule 56(e)’s requirements of personal knowledge and competence to testify have
2
been met may be inferred from the affidavits themselves.”)
For efficiency’s sake the Court does not address each of the remaining evidentiary
3
4
objections separately here as this is unnecessary to resolve the motion. See Wynes v. Kaiser
5
Permanente Hosps., 936 F. Supp. 2d 1171, 1180 n.8 (E.D. Cal. 2013). The Court agrees that
6
many of Plaintiff’s attempts to controvert the Defendants’ statement of undisputed material facts
7
are done in an inappropriate manner. (See generally ECF No. 60-2 (indicating that in
8
Defendants’ view each of their proffered undisputed material facts remains undisputed).)
9
Plaintiff purports to dispute twenty-eight of Defendants’ proffered undisputed facts. (See
10
generally ECF No. 58-1.) In many instances these attempts are “puzzling and fail[] to raise
11
serious questions of disputed fact.” See Leramo v. Premier Anesthesia Med. Grp., 2:09-cv-2083
12
LJO JTL, 2011 WL 2680837, at *8 (E.D. Cal. July 8, 2011), aff'd, 514 F. App'x 674 (9th Cir.
13
2013).
14
As Defendants point out, where Plaintiff attempts to controvert Defendants’ proffered
15
undisputed facts, Plaintiff largely fails to confront them at all, citations to Plaintiff’s declaration
16
notwithstanding. (See generally ECF No. 60-2.) This fundamental deficit is more fruitfully and
17
efficiently analyzed against the summary judgment standard itself. See generally Burch v.
18
Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1123 (E.D. Cal. 2006) (noting that “objections to
19
evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it
20
constitutes an improper legal conclusion are all duplicative of the summary judgment standard
21
itself”). In short, as stated in footnote 1 of this Order and in the paragraphs to follow, the Court in
22
crafting the “Factual Background” section of this Order and its analysis has not relied on the
23
portions of the parties’ submissions purporting to controvert an undisputed fact that fail to render
24
that fact genuinely in dispute.
25
However, due to the deficiencies of Plaintiff’s reply and related submissions, the Court is
26
forced to treat certain of Defendants’ arguments as unopposed. This requires the Court to apply a
27
different standard in determining whether Defendants’ motion should be granted with respect to
28
those claims. When a summary judgment motion is unopposed, a district court must “determine
11
1
whether summary judgment is appropriate — that is, whether the moving party has shown itself
2
to be entitled to judgment as a matter of law.” Leramo, 2011 WL 2680837 at *8 (quoting
3
Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3rd Cir. 1990)). A district court
4
“cannot base the entry of summary judgment on the mere fact that the motion is unopposed, but,
5
rather must consider the merits of the motion.” Id. (quoting United States v. One Piece of Real
6
Property, etc., 363 F.3d 1099, 1101 (11th Cir. 2004)). A court “need not sua sponte review all of
7
the evidentiary materials on file at the time the motion is granted, but must ensure that the motion
8
itself is supported by evidentiary materials.” Id. (quoting One Piece of Real Property, 363 F.3d at
9
1101).
10
11
B.
Disparate Treatment Claims
Defendants argue that summary judgment should be granted on Plaintiff’s claim for racial
12
discrimination under a disparate treatment theory based on the following: First, Plaintiff cannot
13
make a prima facie case of disparate treatment from which a reasonable factfinder could infer that
14
Defendant EDD’s allegedly adverse employment actions against Plaintiff were taken because of
15
Plaintiff’s race. Second, even if Plaintiff could make a prima facie case, Defendant EDD has
16
articulated a legitimate, non-discriminatory reason for its treatment of Plaintiff, and Plaintiff has
17
identified no evidence properly before the Court that could permit a reasonable factfinder to
18
conclude that this reason is pretext. (See generally ECF No. 50-1 at 15–23.)
19
Plaintiff argues that Defendant EDD’s motion for summary judgment should be denied
20
based on the following: First, Plaintiff has made a prima facie case of disparate treatment.
21
Second, Defendant EDD’s reasons for terminating Plaintiff are not worthy of credence, and
22
Defendant EDD’s true motivation was Plaintiff’s race. (See generally ECF No. 58 at 3–10.)
23
i.
Title VII/FEHA Standard
24
Title VII provides that an employer may not “discriminate against any individual with
25
respect to his compensation, terms, conditions, or privileges of employment, because of such
26
individual's race ... or national origin.” 42 U.S.C. § 2000e-2(a)(1). FEHA uses largely the same
27
language and promotes the same objective as Title VII. See Cal. Gov. Code § 12940(a); Guz v.
28
Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000); Reno v. Baird, 18 Cal. 4th 640, 647 (1998). As a
12
1
result, the Title VII framework is applied to claims brought under FEHA, including
2
discrimination claims brought under a disparate treatment theory. Metoyer v. Chassman, 504
3
F.3d 919, 941 (9th Cir. 2007); Guz, 24 Cal. 4th at 354 (“In particular, California has adopted the
4
three-stage burden-shifting test established by the United States Supreme Court for … claims of
5
discrimination … based on a theory of disparate treatment”).
6
A plaintiff bringing a Title VII or FEHA racial discrimination action under a theory of
7
disparate treatment must demonstrate at trial that his or her employer took one or more adverse
8
employment actions against the plaintiff because of the plaintiff’s race. See Desert Palace, Inc. v.
9
Costa, 539 U.S. 90, 92–93, 99–100 (2003); Heard v. Lockheed Missiles & Space Co., 44 Cal.
10
App. 4th 1735, 1748 (1996). An adverse employment action is one that “materially affect[s] the
11
compensation, terms, conditions, or privileges of ... employment.” Davis v. Team Elec. Co., 520
12
F.3d 1080, 1089 (9th Cir. 2008); see also Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1137
13
(2005) (stating “an adverse employment action must materially affect the terms and conditions, or
14
privileges of employment to be actionable” in the FEHA context).
15
A plaintiff may oppose a motion for summary judgment using direct or indirect evidence.
16
McGinest, 360 F.3d at 1122; Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 66–68
17
(2000). “Direct evidence is evidence which, if believed, proves the fact of discriminatory animus
18
without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.
19
1998) (citation and internal quotation and editing marks omitted).
20
If an employer moving for summary judgment on a disparate treatment claim meets its
21
initial burden, “the plaintiff is presented with a choice regarding how to establish his or her case.”
22
McGinest, 360 F.3d at 1122. The plaintiff may proceed by using the burden-shifting framework
23
first set out in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), or alternatively, may
24
produce direct or circumstantial evidence that a discriminatory reason motivated the defendant in
25
taking the challenged actions against the plaintiff. McGinest, 360 F.3d at 1122; see Heard, 44
26
Cal. App. 4th at 1749 (indicating a FEHA disparate treatment plaintiff need not proceed under
27
McDonnell Douglas if the plaintiff has direct evidence). The plaintiff retains the burden of
28
persuasion throughout whether or not the plaintiff chooses to use the McDonnell Douglas
13
1
framework. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Guz, 24 Cal. 4th
2
at 356.
3
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie
4
case of racial discrimination. The “requisite degree of proof necessary to establish a prima facie
5
case for Title VII ... claims on summary judgment is minimal and does not even need to rise to
6
the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
7
Cir. 1994), as amended on denial of reh'g (July 14, 1994). Once established, the prima facie case
8
creates a rebuttable “presumption that the employer unlawfully discriminated against the
9
employee.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Burdine, 450 U.S. at
10
11
254).
A plaintiff may establish a prima facie case by showing: “(1) he was a member of a
12
protected class, (2) he was qualified for the position he sought or was performing competently in
13
the position he held, (3) he suffered an adverse employment action, such as termination,
14
demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory
15
motive.” Guz, 24 Cal. 4th at 355; see also Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603
16
(9th Cir. 2004) (setting forth substantially the same elements in the Title VII context). Often the
17
fourth element is stated as “similarly situated individuals outside his protected class were treated
18
more favorably” or words to similar effect. See, e.g., Chuang v. Univ. of Cal. Davis, Bd. of Trs.,
19
225 F.3d 1115, 1123 (9th Cir. 2000); Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654,
20
658 (9th Cir. 2002). But it need not be. See Guz, 24 Cal. 4th at 355; Peterson, 358 F.3d at 603.
21
This shifts the “burden of production, but not persuasion, … to the employer to articulate
22
some legitimate, nondiscriminatory reason for the challenged action.” Chuang, 225 F.3d at
23
1123–24. “To accomplish this, the defendant must clearly set forth, through the introduction of
24
admissible evidence, the reasons for” the challenged adverse employments actions. Lyons, 307
25
F.3d at 1112 (quoting Burdine, 450 U.S. at 255). Whether a defendant has met its burden of
26
production involves “no credibility assessment.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
27
509 (1993). “In other words, the factfinder's general duty to draw all reasonable inferences in
28
favor of the nonmovant does not require that the court make a credibility determination on the
14
1
defendant’s evidence at the summary judgment stage, even if it has reason to disbelieve that
2
evidence.” Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004).
3
If the defendant meets this burden of production, any presumption that the defendant
4
discriminated “drops from the case.” St. Mary's Honor Ctr., 509 U.S. at 507–11; see also Guz, 24
5
Cal. 4th at 356 (explaining that the presumption “disappears” at this point). At this point, plaintiff
6
must be given the opportunity to demonstrate that the proffered reason or reasons were pretext for
7
intentional discrimination. Burdine, 450 U.S. at 255–56; Guz, 24 Cal. 4th at 356.
8
The plaintiff may offer additional evidence to rebut the employer’s offered reasons but the
9
plaintiff is not necessarily required to produce evidence in addition to the evidence produced to
10
establish the prima facie case. Lyons, 307 F.3d at 1112–13; Chuang, 225 F.3d at 1127. This is
11
because a reasonable factfinder may infer “the ultimate fact of intentional discrimination” without
12
additional proof once the plaintiff has made out his prima facie case if the factfinder believes that
13
the employer's proffered nondiscriminatory reasons lack credibility. Lyons, 307 F.3d at 1112–13
14
(quoting Reeves, 530 U.S. at 147); see also Chuang, 225 F.3d at 1127 (same).
15
To establish that a defendant’s nondiscriminatory explanation is a pretext for
16
discrimination, a plaintiff may rely on circumstantial evidence or direct evidence or both. See
17
Chuang, 225 F.3d at 1127. Typically, circumstantial evidence offered by a plaintiff to prove
18
pretext will take one of two forms. Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th
19
Cir. 2005); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003), as amended (Jan.
20
6, 2004). The plaintiff may “make an affirmative case that the employer is biased.” Coghlan,
21
413 F.3d at 1095; Stegall, 350 F.3d at 1066 (describing the first option as “persuading the court
22
that a discriminatory reason more likely motivated the employer”). Or, the plaintiff may “make
23
his case negatively, by showing that the employer's proffered explanation for the adverse action is
24
‘unworthy of credence.’” Coghlan, 413 F.3d at 1095.
25
At this stage the ultimate task is for the district court to determine whether a reasonable
26
factfinder could conclude by a preponderance of the evidence that the defendant undertook the
27
challenged employment action or actions because of the plaintiff's race after examining all of the
28
evidence properly submitted irrespective of whether it was submitted in support of the prima
15
1
facie case or is characterized as direct or indirect. See Burdine, 450 U.S. at 256 n. 10 (“In saying
2
that the presumption drops from the case, we do not imply that the trier of fact no longer may
3
consider evidence previously introduced by the plaintiff to establish a prima facie case.”);
4
Chuang, 225 F.3d at 1127, 29 (“In this case, while the indirect evidence and direct evidence are
5
independently sufficient to allow the [plaintiffs] to proceed to trial, it is the cumulative evidence
6
to which a court ultimately looks.”); see also Cornwell v. Electra Cent. Credit Union, 439 F.3d
7
1018, 1028 (9th Cir. 2006) (“If the defendant [satisfies the second McDonnell Douglas step], then
8
the presumption of discrimination drops out of the picture and the plaintiff may defeat summary
9
judgment by satisfying the usual standard of proof required in civil cases under Fed. R. Civ. P.
10
56(c).”) (internal quotation marks omitted); Wallis, 26 F.3d at 889 (same).
ii.
11
Prima Facie Case Cannot Be Established
Plaintiff’s disparate treatment theory claim fails as a matter of law because Plaintiff has
12
13
failed to show that any adverse action was taken against him because of his race. Plaintiff has not
14
proffered any direct evidence6 of racial discrimination in his opposition to Defendant’s motion
15
and proceeds under the McDonnell Douglas framework. However, Plaintiff has not attempted to
16
show any similarly situated individuals outside his protected class were treated more favorably.
17
(See ECF No. 50 at 3–10.) Therefore, the Court must see whether “other circumstances
18
surrounding the adverse employment action give rise to an inference of discrimination.”
19
Peterson, 358 F.3d at 603.
Only the fourth element of the prima facie case is in dispute.7 For the sake of
20
21
completeness the Court will first briefly address the other factors as only the third of said factors
22
is partially contested by Defendant EDD. There is no dispute that the first factor is satisfied
23
because Plaintiff is an African American. Defendant EDD does not address the second factor in
24
6
25
26
27
28
The Court finds that Defendant has opposed the motion for summary judgment with respect to these claims.
Consequently, the Court applies the traditional summary judgment standard. Plaintiff makes no mention of the
incident where Plaintiff alleges Derks angrily told him to sit in a one-on-one meeting in support of Plaintiff’s
argument opposing summary judgment on his disparate treatment claims. (See ECF No. 50 at 3–10.) Even if the
Court applied the standard for an unopposed motion and considered this incident, it would not change the Court’s
conclusion. As the Court explains in more detail in resolving Plaintiff’s racial harassment claims, being told angrily
to “sit” in a one-on-one meeting with a supervisor of a different race is not conduct of a “racial nature” without more.
7
Plaintiff does not explicitly address this under a separate sub-heading. However, the Court has been able to
derive the thrust of Plaintiff’s argument looking to Plaintiff’s discussion of the other elements of a prima facie case.
16
1
its brief so for purposes of this motion only the Court assumes that Plaintiff was qualified for his
2
position.
Due in part to Defendant EDD’s concession, and that the fourth factor so strongly favors
3
4
Defendant EDD, as to the third factor the Court will treat the following as the adverse
5
employment actions at issue for Plaintiff’s disparate treatment claims: Plaintiff’s termination and
6
each of the three negative performance reports he received.8 Termination of employment
7
“certainly constitutes an adverse employment action.” Aragon, 292 F.3d at 660. Similarly, “an
8
undeserved negative performance review” can constitute an adverse employment action. Brooks
9
v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (emphasis added); see also Yanowitz, 36
10
Cal 4th at 1053–54 (explaining that FEHA covers “the entire spectrum of employment actions
11
that are reasonably likely to adversely and materially affect an employee’s job performance or
12
opportunity for advancement in his or her career”). For purposes of its motion for summary
13
judgment, Defendant EDD concedes these constitute adverse employment action for Plaintiff’s
14
disparate treatment claims. (ECF No. 50-1 at 16 (noting it does contend that the negative reports
15
were deserved).)
As to the fourth factor Plaintiff seems to allege that his white supervisor’s complaints
16
17
about his job performance demonstrate a discriminatory motive. Although not clearly stated, the
18
only evidence that Plaintiff offers in support of his claim that Defendant EDD took adverse
19
employment actions against him because of his race is his assertion that the first person to find
20
fault with his work was a supervisor of a different race than him. (ECF No. 58 at 5 (“Between
21
January 4, 2010 and February 4, 2010, [Plaintiff] had not received any complaints nor been
22
counseled about his performance before David Derks, a white male, became [Plaintiff’s] first line
23
supervisor.”).)
The inference Plaintiff would have drawn from his assertion is as follows: it is reasonable
24
25
26
27
28
8
The Court found it difficult to discern what, if anything, the Plaintiff viewed as constituting “adverse
employment actions” suffered by him aside from his termination. For example, Plaintiff’s pretext argument is
captioned “EDD’s Reason for Rejecting Pinder on Probation are [sic] Pretextual.” (ECF No. 58 at 9.) However,
Plaintiff never mentions his termination in the section captioned “EDD Acted Adversely Against Plaintiff.” (ECF
No. 58 at 5–9.) Plaintiff simply states in that section that he has suffered “an adverse action” without identifying it.
(ECF No. 58 at 5.) This is followed by four pages of statements, including his negative performance reports, without
proper citation to the record or legal analysis. (ECF No. 58 at 5–9.)
17
1
to infer that criticism of his work was based on his race because the first person to find fault with
2
his work was white. However, Plaintiff’s assertion is not supported by any evidence properly
3
before the Court, any citation to legal authority, or any legal analysis. (See ECF No. 50 at 3–10.)
4
Plaintiff’s own submissions to the Court and his deposition indicate that on January 18, 2010,
5
there was a disagreement between Plaintiff and Ken Lam9 during an interview with a potential job
6
candidate. (ECF No. 58-1 at 5; ECF No. 58-3 at ¶ 5; Pl.’s Dep., 40:3–44:5.) Plaintiff attributes
7
this to jealousy on the part of Ken Lam who Plaintiff believes applied for the job that Plaintiff
8
was hired to fill. (ECF No. 58-3 at ¶ 5; Pl.’s Dep., 42:20–25.) Moreover, Plaintiff faulted Derks
9
for removing Plaintiff from interview panels based “on interviews in January, before Derks was
10
hired.” (ECF No. 58-1 at 5.) Plaintiff testified that the January 18, 2010, interview was the only
11
interview he participated in as a panelist. (Pl.’s Dep., 40:3–4.) Therefore, Plaintiff has failed to
12
establish the factual predicate for the inference. Moreover, Plaintiff’s assertion ignores the
13
following facts: Plaintiff had no direct supervisor during the one month period cited and
14
dissatisfaction with Plaintiff’s work persisted even after a person of the same race became his
15
direct supervisor. (See ECF No. 58-1 at ¶ 46; ECF No. 60 at 4; Pl.’s Dep., 18:18–19.)
The Ninth Circuit has held the fact that a defendant of a different race than the plaintiff
16
17
made or was involved in making a decision that the plaintiff disagreed with, standing alone, does
18
not mean that plaintiff was “discriminated on the basis of race” in the Section 1983 context. See
19
Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (“[T]he fact that Mrs.
20
Thornton is Native American and certain City council members and administrators are not,
21
standing alone, does not mean that Defendants have discriminated on the basis of race”);
22
Bingham v. City of Manhattan Beach, 341 F.3d 939, 948–49 (9th Cir. 2003) (disagreeing with the
23
proposition “that because [plaintiff] is African-American, the officer is white, and they disagree
24
about the reasonableness of the traffic stop, these circumstances are sufficient to raise an
25
inference of racial discrimination”), abrogated on other grounds by Virginia v. Moore, 553 U.S.
26
164 (2008), as recognized in Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 956 n. 14
27
(9th Cir. 2010). This does not change simply because the plaintiff subjectively thinks it to be
28
9
In certain places in the submissions the name “Kin Lam” is also used. (See, e.g., ECF No. 58-3 at ¶ 6.)
18
1
true. See Thornton, 425 F.3d at 1167 (explaining that “conclusory statements of bias do not carry
2
the nonmoving party’s burden in opposition to a motion for summary judgment”).
3
Plaintiff’s citation to Third Circuit cases (unaccompanied by legal analysis) is not to the
4
contrary. For example, in Coulton v. University of Pennsylvania, No. 06-2417, 2007 WL
5
1881007 (3rd Cir. July 2, 2007), the plaintiff, who was white, noted that the initial decision to
6
discharge him was “made by an African-American supervisor” and was “upheld by an African-
7
American University Vice President.” Id. at *6. The Third Circuit held that “[t]he mere fact that
8
[these decision makers] were of a different race than [the plaintiff] … is insufficient to permit an
9
inference of discrimination.” Id. (citing Iadimarco v. Runyon, 190 F.3d 151, 156 (3rd Cir. 1999)).
10
This appears to be the uniform position of federal courts that have considered this issue in the
11
Title VII context. E.g., Holdmeyer v. Veneman, 321 F. Supp. 2d 374, 382 (D. Conn. 2004)
12
(“Plaintiff fails to raise an inference of discrimination with respect to the denial of his grievance.
13
The only evidence he offers is the fact that the decision maker is of a different race than he is.”),
14
aff'd sub nom. Holdmeyer v. Dep't of Agric., 146 F. App'x 535 (2d Cir. 2005); see also Hawkins v.
15
PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir. 2000) (“[Plaintiff], however, has shown nothing more
16
than a routine difference of opinion and personality conflict with her supervisor. [W]e refuse to
17
transmute such ordinary workplace disagreements between individuals of different races into
18
actionable race discrimination….”), cert denied, 531 U.S. 875 (2002); Rivas Rosado v. Radio
19
Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002) (concluding the same is true in sex discrimination
20
under Title VII where the plaintiff and alleged discriminator are different sexes). In sum based on
21
the foregoing, Plaintiff has failed to allege circumstances suggesting discriminatory motive.
22
23
iii.
Insufficient showing of pretext
Even if Plaintiff could make a prima facie case, Defendant EDD argues it has articulated a
24
legitimate, non-discriminatory reason for its treatment of Plaintiff. On this point, the Court notes
25
that Plaintiff has identified no evidence properly before the Court that could permit a reasonable
26
finder of fact to conclude that this reason is pretext for racial discrimination. Defendant EDD
27
states that its challenged actions were taken due to months of “unsatisfactory” job performance by
28
the Plaintiff. (ECF No. 50-1 at 21.) The Ninth Circuit has held “poor job performance ….
19
1
constitute[s] a legitimate, nondiscriminatory reason” for taking an adverse employment action.
2
Aragon, 292 F.3d at 661. Defendant EDD has identified ample admissible evidence in support of
3
its position, and has therefore met its burden of production. (ECF No. 50-1 at 21–23.)
4
Plaintiff’s arguments that Defendant EDD’s proffered reason is unworthy of credence and
5
that its real reason was Plaintiff’s race are largely conclusory statements with little legal analysis
6
or support. For example, Plaintiff asserts that “EDD’s explanation is weak, implausible,
7
inconsistent, incoherent and contradicted” and that Derks and Rogers are “unworthy” of being
8
believed. (ECF No. 58-1 at 7.) Conclusory statements of Plaintiff’s subjective belief are
9
insufficient to demonstrate pretext. See Wallis, 26 F.3d at 890 (“[The plaintiff] must do more
10
than establish a prima facie case and deny the credibility of the [defendant's] witnesses.”); Moore
11
v. California Dep't of Corr. & Rehab., 1:10-cv-1165 LJO SMS, 2012 WL 5288785, at *10 (E.D.
12
Cal. Oct. 24, 2012) (A “plaintiff cannot create a genuine issue of pretext to survive a motion for
13
summary judgment by relying solely on unsupported speculations and allegations of
14
discriminatory intent.”). Moreover, the evidence properly before the Court reflects Plaintiff’s
15
supervisors consistently and coherently disapproved of Plaintiff’s work quality based on discrete,
16
particular instances of perceived underperformance that do not contradict each other. These
17
particular instances of perceived underperformance became evident almost immediately after
18
each supervisor began working with Plaintiff. (See ECF No. 50-1 at 21–23.)
19
The remainder of Plaintiff’s argument seems to suggest that Plaintiff’s disagreement with
20
the substance of the evaluations by Derks and Rogers, and the quality and style of their
21
management, show Defendant EDD’s articulated reasons are pretext. (See ECF No. 58 at 9–10.)
22
Plaintiff states “Rogers gave [Plaintiff] an interim probationary performance evaluation with an
23
overall rating of unacceptable. But, Rogers was not aware of [Plaintiff’s] ability to get along with
24
others.” (ECF No. 58 at 9.) Plaintiff also appears to have been displeased that only Rogers was
25
present during Plaintiff’s December 2, 2010, interim report without citing any evidence to
26
demonstrate this was improper or even unexpected. (See ECF No. 58 at 10; compare, e.g., Pl.’s
27
Dep. 107:6–17 (describing being called into Derks office and presented with Plaintiff’s first
28
probationary report without suggesting any other persons were present).) Additionally, he
20
1
mentions that Derks held weekly one-on-one meetings with Pinder to “discuss essential job
2
duties.” (ECF No. 58 at 9.)
None of these assertions are evidence from which a reasonable factfinder could infer that
3
4
Defendant EDD’s proffered explanations are pretext for racial discrimination. Plaintiff’s
5
disagreement with the substance of performance evaluations and the quality and style of his
6
supervisors, even if made in good faith, simply are not the wrongs that Title VII and FEHA
7
address. See, e.g., Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1214 n.7 (9th Cir. 2008);
8
Hawkins, 203 F.3d at 276. Title VII and FEHA do not ask factfinders to determine whether an
9
employer is good at finding the talent in its ranks or whether evaluations of its employees always
10
correct or even “fair” in some abstract sense. Odima v. Westin Tucson Hotel Co., 991 F.2d 595,
11
602 (9th Cir. 1993). Neither do they seek to ensure that employees are never dissatisfied with the
12
management style of their supervisors. See Hawkins, 203 F.3d at 282; Shanks v. Abbot Labs., No.
13
5:15-cv-01151-EJD, 2016 WL 3940923, at *8 (N.D. Cal. July 21, 2016). They seek to smoke out
14
whether challenged employment actions were unlawfully motivated by certain prohibited factors,
15
e.g., the race of the employees. Loggins v. Kaiser Permanente Int'l, 151 Cal. App. 4th 1102,
16
1112 n.7 (2007).
For these reasons Defendants’ motion for summary judgment on Plaintiff’s claims for
17
18
racial discrimination under a disparate treatment theory is GRANTED.
C.
19
Harassment/Hostile Work Environment Claim
Defendants10 argue that summary judgment should be granted on Plaintiff’s
20
21
harassment/hostile work environment claim11 based on the following: First, the alleged
22
harassment was supervisory in nature and therefore does not constitute harassment as a matter of
23
law. Second, Plaintiff has identified no evidence properly before the Court that could permit a
24
reasonable finder to conclude that any of the allegedly harassing conduct was based on Plaintiff’s
25
10
26
27
28
The Court previously dismissed Plaintiff’s Title VII harassment claims against Derks and Rogers. (ECF No.
19 at 34.)
11
The parties use the terms “hostile work environment” and “harassment” to describe the same claim. This
Court has previously noted that the “terms ‘hostile work environment’ and ‘harassment’ may be used interchangeably
in that the elements of a claim under either label are the same. Al-Raheem v. Covenant Care, No. 1:10-2064 AWI
GSA, 2011 WL 4628698, at *3 (E.D. Cal. Oct. 3, 2011). The Court does so here.
21
1
race. (ECF No. 50-1 at 23–25.)
Plaintiff argues12 that Defendants’ motion for summary judgment on this claim should be
2
3
denied based on the following: Plaintiff has submitted evidence that could permit a reasonable
4
factfinder to conclude that Plaintiff established elements of a racial harassment claim; and
5
Defendant EDD did not adequately respond to the alleged harassment. (See ECF No. 58 at 12–
6
14.)
i.
7
Title VII/FEHA Standard
8
Title VII’s prohibition on racial discrimination encompasses not only claims for disparate
9
treatment based on race, but also provides a claim for the creation of a hostile work environment,
10
which violates the guarantee of “the right to work in an environment free from discriminatory
11
intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); see
12
also Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991) (“Courts have long
13
recognized that a workplace in which racial hostility is pervasive constitutes a form of
14
discrimination.”).
Under the FEHA, harassment and discrimination fall under separate statutory prohibitions.
15
16
See Cal. Gov. Code § 12940(a), (j)(1). Consequently, California courts have distinguished
17
harassing acts from discriminatory acts. Reno, 18 Cal. 4th at 645–47. Harassing acts constitute
18
“conduct outside the scope of necessary job performance ... presumably engaged in for personal
19
gratification, because of meanness or bigotry, or for other personal motives.” Id. at 646.
20
Discriminatory acts “arise out of the performance of necessary personnel management duties.”
21
Id. at 647. However, the California Supreme Court has stated that “some official employment
22
actions done in furtherance of a supervisor's managerial role can also have a secondary effect of
23
12
24
25
26
27
28
The Court has measured this portion of Defendants’ motion under the traditional summary judgment
standard. Plaintiff more or less recites the elements of this claim, albeit citing to Seventh Circuit cases, and captions
sub-headings with each element, e.g., “Plaintiff’s Harassment Complained of Was Based on His Race.” (ECF No. 58
at 12.) Beneath these captions follow nearly two pages of statements without proper citation to the record. While the
legal analysis is sparse, the Court is able to discern the thrust of Plaintiff’s opposition. Nevertheless, the Court notes
that had it measured this portion of Plaintiff’s opposition under the standard for when a motion for summary
judgment is not meaningfully opposed, the outcome would be the same as Defendants are entitled to judgment as a
matter of law on this claim. Additionally, the only piece of evidence not raised by Plaintiff that the Court would have
independently considered has already been addressed, i.e., the incident where Plaintiff was angrily told to sit by
Derks.
22
1
communicating a hostile message.” Roby v. McKesson Corp., 47 Cal. 4th 686, 709 (2009), as
2
modified (Feb. 10, 2010). Therefore, discriminatory acts can provide “evidentiary support for a
3
harassment claim ….” Id.
4
Despite this distinction, the elements that a plaintiff must show on a hostile work
5
environment claim based on race are the same under Title VII and FEHA: (1) that he was
6
subjected to verbal or physical conduct because of his race; (2) that the conduct was unwelcome;
7
and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the
8
plaintiff's employment and create an abusive work environment. Manatt v. Bank of America, NA,
9
339 F.3d 792, 798 (9th Cir. 2003); Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 265, 279
10
(2006); Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 876 (2010). The working
11
environment must be both subjectively and objectively perceived as abusive. Fuller v. City of
12
Oakland, 47 F.3d 1522, 1527 (9th Cir.1995); Haberman v. Cengage Learning, Inc., 180 Cal.
13
App. 4th 365, 379 (2009). Whether the workplace is objectively hostile must be determined from
14
the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.
15
Fuller, 47 F.3d at 1527; Thompson, 186 Cal. App. 4th at 877. This is determined looking at the
16
totality of the circumstances. Gathenji v. Autozoners, LLC, 703 F. Supp. 2d 1017, 1032 (E.D.
17
Cal. 2010); Hughes v. Pair, 46 Cal. 4th 1035, 1044 (2009).
18
FEHA and Title VII differ on whether liability may be imposed on individual defendants
19
and the circumstances under which it may be imposed on the employer. FEHA contains “clear
20
language imposing personal liability on all employees for their own harassing actions.” Jones v.
21
Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1162 (2008). The Ninth Circuit has held that
22
individual defendants may not be held personally liable under Title VII for their own harassing
23
behavior. See Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587 (9th Cir. 1993).
24
Under FEHA, whether an employer is liable for a racially hostile work environment
25
depends on whether its harassing employees were the plaintiff’s supervisors or co-workers.
26
“When the harasser is a supervisor, the employer is strictly liable for the supervisor's actions.”
27
Roby, 47 Cal. 4th at 707. “When the harasser is a nonsupervisory employee, employer liability
28
turns on a showing of negligence (that is, the employer knew or should have known of the
23
1
2
harassment and failed to take appropriate corrective action).” Id.
Under Title VII, whether an employer is liable for a racially hostile work environment
3
also depends on whether its harassing employees were the plaintiff’s supervisors or co-workers.
4
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). “If the harassing employee is the
5
victim's co-worker, the employer is liable only if it was negligent in controlling working
6
conditions.” Id. If the harassing employee is the victim’s supervisor, the employer is “strictly
7
liable” if the harassment culminates in a “tangible employment action.” Id. Otherwise, the
8
employer may escape liability by establishing, as an affirmative defense, that “(1) the employer
9
exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff
10
unreasonably failed to take advantage of the preventive or corrective opportunities that the
11
employer provided.” Id.
12
ii.
13
Alleged Harassing Behavior Not Based On Race
Defendants are entitled to judgment as a matter of law on Plaintiff’s harassment claim
14
because there is simply no evidence properly before the Court that Plaintiff was subjected to any
15
alleged harassment because of his race. Plaintiff seems to suggest that criticism from a supervisor
16
of a different race constitutes racial harassment without more. (See ECF No. 58 at 12 (“Derks is a
17
white male. And between January 4, 2010 and February, 4, 2010 before Derks became
18
[Plaintiff’s] supervisor, no team member complained about [Plaintiff’s] performance.”).) The
19
Court will also consider what appears to be the only incident that Plaintiff characterized as being
20
a “racial comment.” (See ECN No. 50-1 at 24.)
21
The Court rejects Plaintiff’s argument that race-neutral criticism by a supervisor is
22
transformed into racial harassment simply because the first supervisor to find fault with his work
23
is not of Plaintiff’s race. As previously noted in the context of Plaintiff’s disparate theory
24
argument, this assertion is misleading and not in its proper context as it ignores both the fact that
25
Plaintiff had no direct supervisor during this time frame and that Rogers, who is African
26
American, found Plaintiff’s work quality unacceptably low when he became Plaintiff’s direct
27
supervisor. (See ECF No. 58-1 at ¶ 46; ECF No. 60 at 4; Pl.’s Dep., 18:18–19.)
28
Even so, the test for whether a plaintiff has been subject to racial harassment is whether
24
1
the allegedly harassing behavior is based on race not whether the alleged perpetrator of the
2
harassment is of a different race from the plaintiff. See Kang v. U. Lim America, Inc., 296 F.3d
3
810, 817 (9th Cir. 2002) (reversing the district court’s order granting summary judgment in favor
4
of defendant on plaintiff’s Title VII national original harassment claim where both the plaintiff
5
and the alleged harasser were of Korean descent). This is ably illustrated by the analysis of the
6
Ninth Circuit in Sheikh-Hassan v. United Airlines, Inc., No. 98-15114, 1999 WL 137336 at *5–7
7
(9th Cir. 1999). There the Ninth Circuit affirmed the district court’s order granting summary
8
judgment on the plaintiff’s Title VII harassment claim. Id. The Ninth Circuit determined an
9
incident where a co-worker called the plaintiff “illiterate” and allegations that the plaintiff’s
10
supervisor “check[ed] on [him] when he went on his breaks” were not based on race. Id.
11
Therefore, they were not included in the Ninth Circuit’s analysis of whether the alleged use of a
12
racial slur against the plaintiff in an anonymous note was “sufficient to create a Title VII
13
violation.” Id.
14
As the Court has previously noted, the only incident that Plaintiff has apparently
15
characterized as being a racial comment was when Derks told him to sit. (See ECN No. 50-1 at
16
24.) Being told angrily to “sit” in a one-on-one meeting with a supervisor is not conduct of a
17
“racial nature” without more. The Court has been able to locate three instances where a plaintiff
18
alleging racial harassment cited an instance of being told to sit in an arguably offensive way by a
19
person of a different race, two of which involved speakers who were characterized as the
20
plaintiff’s supervisor. See e.g., Roberts v. Associated Wholesale Grocers, Inc., No. CIV A 92-
21
2298-EEO, 1993 WL 390378, at *7 (D. Kan., Sept. 15, 1993) (involving supervisor repeatedly
22
yelling “sit” during discussion about plaintiff’s job performance), aff'd, 37 F.3d 1510 (10th Cir.
23
1994); Rayburn-Duitman v. S. Bend Tribune, Corp., No. 3:97-CV-506 RM, 2000 WL 552539, at
24
*4 (N.D. Ind. Jan. 20, 2000) (involving co-workers telling plaintiff to “sit down and shut up”);
25
Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 54 (D.D.C. 2004) (involving
26
supervisor telling the plaintiff “to shut up and sit down” during one-on-one meeting when the
27
plaintiff asked to be excused). In each instance the district court concluded the conduct was not
28
of race based. Roberts, 1993 WL 390378 at *7; Singh, 300 F. Supp. 2d at 57; Rayburn-Duitman,
25
1
2000 WL 552539 at *4. Plaintiff’s brief description of the incident is essentially
2
indistinguishable from Roberts and Singh. The Court is persuaded by the analysis of these
3
opinions and finds that this incident cannot be objectively viewed as being racial in nature.
Even if this incident could be viewed as being of a “racial nature,” the Court notes that the
4
5
Ninth Circuit has affirmed grants of summary judgment to defendants where the plaintiffs were
6
subjected to conduct that was overtly racially related and much more severe and pervasive than
7
the conduct alleged herein. See Vasquez v. County of Los Angeles, 349 F.3d 634, 643 (9th Cir.
8
2003), 349 F.3d at 643 (both the facts of that case and those of the cases to which it was
9
compared); Manatt, 339 F.3d at 799 (same). The Seventh Circuit Title VII harassment case cited
10
by Plaintiff is not to the contrary. Porter v. City of Chicago, 700 F.3d 944, 956 (7th Cir. 2012)
11
(finding that even if the court assumed that the four specific instances of alleged harassment
12
identified by Plaintiff, including “being told to sit down in a ‘high-pitched voice’ by her
13
supervisor,” were based on her religion, these were “not severe or pervasive enough to fall within
14
Title VII's purview”).
For these reasons Defendants’ motion for summary judgment on Plaintiff’s claim for
15
16
racial harassment/hostile work environment is GRANTED.
D.
17
Retaliation Claims
Defendants argue that summary judgment should be granted on Plaintiff’s retaliation
18
19
claims based on the following: First, Plaintiff’s complaining to EDD’s mediation office and filing
20
a complaint with EDD’s EEO Office do not constitute protected activities necessary to make a
21
prima facie case of retaliation. Second, Plaintiff cannot establish a causal link between his
22
alleged protected activities and any adverse employment action. Third, even if Plaintiff made a
23
prima facie case, Defendant EDD has articulated a legitimate, non-retaliatory reason for its
24
treatment of Plaintiff, and Plaintiff has identified no evidence properly before the Court that could
25
permit a reasonable factfinder to conclude that this reason is a pretext for retaliation. (ECF No.
26
50-1 at 27–29.)
Plaintiff argues13 that Defendants’ motion for summary judgment on this claim should be
27
28
13
The Court finds that Plaintiff has opposed the motion for summary judgment with respect to these claims.
26
1
denied because Plaintiff has a made prima facie case of retaliation from which the Court can infer
2
that Defendant EDD’s allegedly adverse employment actions against Plaintiff were retaliatory.
3
(ECF No. 58 at 10–12.) The Court notes that Plaintiff does not directly address Defendants’
4
pretext argument. (See ECF No. 58 at 10–12.)
5
i.
6
Title VII/FEHA/Cal. Labor Code Standard
A plaintiff opposing a motion for summary judgment on retaliation claims under Title VII,
7
FEHA and §§ 98.6 and 1102.5 of the California Labor Code may use the McDonnell Douglas
8
burden shifting framework. McGinest, 360 F.3d at 1124 (setting out the standard for Title VII);
9
Moore v. Regents of the Univ. of Cal., 248 Cal. App. 4th 216, 244 (2016) (setting out the standard
10
for FEHA); Muniz v. United Parcel Serv., Inc., 731 F. Supp. 2d 961, 969 (N.D. Cal. 2010)
11
(setting out the standard for retaliation claims under Cal. Labor Code §§ 98.6 and 1102.5).
12
To make out a prima facie case of retaliation, a plaintiff must point to sufficient evidence
13
to permit a reasonable factfinder to conclude that (1) he engaged in a protected activity, (2) he
14
suffered an adverse employment action, and (3) there was a causal link between his activity and
15
the employment decision. McGinest, 360 F.3d at 1124; Moore, 248 Cal. App. 4th at 244. To
16
constitute protected activity, a complaint must be based on an employee’s “reasonable belief that
17
the employer has engaged in an unlawful employment practice.” Freitag v. Ayers, 468 F.3d 528,
18
541–42 (9th Cir. 2006), cert. denied, 549 U.S. 1323 (2007); see also Yanowitz, 36 Cal. 4th at
19
1043 & n.4 (explaining that the employee must “reasonably believe” he is opposing
20
discriminatory conduct even if he proves to be incorrect). Under Title VII, an adverse action for a
21
retaliation claim is one that could “dissuade[ ] a reasonable worker from making or supporting a
22
charge of discrimination.” Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 68 (2006).
23
FEHA differs slightly, requiring the same standard as a discrimination claim: an adverse action
24
“must materially affect the terms, conditions, or privileges of employment.” Yanowitz, 36 Cal.
25
26
27
28
Consequently, the Court applies the traditional summary judgment standard. Plaintiff more or less recites the
elements of a prima facie case of retaliation, albeit citing to Third Circuit cases, and captions sub-headings with each
element, e.g., “Plaintiff Engaged in a Protected Employee Activity.” (ECF No. 58 at 10–12.) Beneath these captions
follow nearly two pages of statements without proper citation to the record. While the legal analysis is sparse, the
Court is able to discern the thrust of Plaintiff’s opposition. Nevertheless, the Court notes that had it measured this
portion of Defendants’ motion under the standard for when a motion for summary judgment is not meaningfully
opposed, the outcome would be the same as Defendants are entitled to judgment as a matter of law on this claim.
27
1
2
4th at 1052.
The causation required for the third element may be “inferred from timing alone where an
3
adverse employment action follows on the heels of protected activity.” Davis, 520 F.3d at 1094;
4
Loggins, 151 Cal. App. 4th at 1112–13 (same for FEHA). “Essential to a causal link is evidence
5
that the employer was aware that the plaintiff had engaged in the protected activity.” Cohen v.
6
Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982); see also Morgan, 88 Cal. App. 4th at 70
7
(same for FEHA). This requires evidence from which a reasonable factfinder can infer the
8
decision maker (or at least one of them if more than one) in the challenged action was aware of
9
the protected activity. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197
10
(9th Cir. 2003), opinion amended on denial of reh'g, No. 00-35999, 2003 WL 21027351 (9th Cir.
11
May 8, 2003); Morgan, 88 Cal. App. 4th at 73; see also Cohen, 686 F.2d at 797 n.5 (“There is no
12
evidence that any company official or employee who had knowledge of [the plaintiff’s] complaint
13
had any part in the policy decision.”)
14
As with disparate treatment cases, once the prima facie case is established, the burden of
15
production shifts to the employer to present a legitimate, non-retaliatory reason for the adverse
16
employment action. McGinest, 360 F.3d at 1124; Loggins, 151 Cal. App. 4th at 1112. If the
17
employer carries this burden, a plaintiff must demonstrate a genuine issue of material fact as to
18
whether the reason advanced by the employer is pretext for retaliation. Brooks, 229 F.3d at 928;
19
see Loggins, 151 Cal. App. 4th at 1112. The Ninth Circuit has determined that “[i]n some cases,
20
temporal proximity can by itself constitute sufficient circumstantial evidence of retaliation for
21
purposes of both the prima facie case and the showing of pretext.” Dawson v. Entek Intern., 630
22
F.3d 928, 937 (9th Cir. 2011). However, under FEHA, temporal proximity is not sufficient to
23
show pretext without more. Loggins, 151 Cal. App. 4th at 1112.
24
ii.
The Court Assumes Prima Facie Case Satisfied
25
The Court assumes that Plaintiff can satisfy the elements of a prima facie case of
26
retaliation. While the Court has concluded for the reasons set forth in this Order that Plaintiff’s
27
racial disparate treatment and harassment claims fail as a matter of law, the Court assumes for the
28
purpose of this motion that Plaintiff reasonably believed in good faith that he was reporting
28
1
activity that violated FEHA, Title VII, or both when he filed his May 27, 201014 complaint with
2
EDD’s EEO Office and therefore Plaintiff’s complaint constitutes a protected activity satisfying
3
the first element of a prima facie case for each of the retaliation claims. However, Defendant
4
EDD is entitled to summary judgment on Plaintiff’s retaliation claims because there is insufficient
5
evidence properly before the Court from which a reasonable jury could conclude that the
6
legitimate, non-retaliatory explanation offered by Defendant EDD for terminating Plaintiff was a
7
pretext for retaliation.
Defendants do not contest that Plaintiff’s rejection from probation could constitute an
8
9
adverse employment action for purposes of Plaintiff’s prima facie case. However, for purposes
10
of this motion only the Court assumes that Plaintiff’s second and third negative job performance
11
reports are also adverse employment actions.15
The Court assumes that the third element of the facie case is satisfied due to the temporal
12
13
proximity between Plaintiff’s EEO complaint and each of Plaintiff’s second and third negative
14
probationary reports and his termination. Defendants have quoted Arteaga and Fifth Circuit case
15
law for the proposition that timing is never sufficient on its own to satisfy the third element.
16
(ECF No. 50-1 at 28–29.) However, this quotation of Arteaga is discussing the pretext stage.
17
Earlier in this same opinion it is stated that “… temporal proximity, by itself, may be sufficient to
18
establish a prima facie case of … retaliation….” Arteaga, 163 Cal. App. 4th at 334 (emphasis
19
added). Additionally, this Court is not free to ignore the Ninth Circuit’s binding precedent
20
irrespective of the Fifth Circuit’s view.
iii.
21
Defendant EDD has articulated a legitimate, non-retaliatory reason for all of the alleged
22
23
24
25
26
27
28
Insufficient Showing of Pretext
14
As noted in footnote 5, the record is confusing as to what Plaintiff might have done prior to filing his May
27, 2010 claim. Defendants argue that Plaintiff has not shown that his contacting of the mediation office constitutes
a protected activity. (ECF No. 50-1 at 27.) Plaintiff’s opposition makes no mention of this or any pre-May 27, 2010,
EEO Office complaint in connection with his retaliation claim. (See ECF No. 58 at 10.) Even assuming that any of
Plaintiff’s pre-May 27, 2010, activity constitutes a protected activity, there is no evidence properly before the Court
that any decision maker, i.e., Derks or Rogers, became aware of this activity. (See Pl.’s Dep., 75:3-85:13.) Thus,
inclusion of these events would not change the outcome.
15
It is not clear whether this argument is appropriately before the Court. The First Amendment Complaint
specifically identifies Plaintiff’s termination as being the act taken by Defendant EDD as retaliation. (ECF No. 8 at
14, 16.) Arguably the complaint would need to be amended to consider Plaintiff’s argument in his opposition. See
Ward v. Clark Cty., No. 06-16990, 2008 WL 2699913, at *1 (9th Cir., July 9, 2008).
29
1
adverse employment actions at issue for Plaintiff’s retaliation claims. Defendant EDD states that
2
its challenged actions were taken due to months of “unsatisfactory” job performance by Plaintiff.
3
(ECF No. 50-1 at 21, 29.) Poor job performance constitutes a legitimate, non-retaliatory reason
4
for taking an adverse employment action. See Aragon, 292 F.3d at 661. Defendant EDD has
5
identified ample admissible evidence to support this. (ECF No. 50-1 at 21–23, 29.) Defendant
6
EDD has therefore met its burden of production.
7
Although Plaintiff fails to address Defendant EDD’s pretext argument directly, the Court
8
construes Plaintiff to rely on its temporal proximity argument. (See ECF No. 58 at 10–12.) To
9
the extent this renders Defendants’ motion functionally unopposed on this point, the Court has
10
satisfied itself that there is insufficient evidence properly before the Court from which a
11
reasonable factfinder could conclude that Defendant EDD’s reason for its allegedly adverse
12
employment actions was pretext. For purposes of analyzing pretext, both the Ninth Circuit and
13
California precedent permit consideration of temporal proximity where there is other evidence to
14
support a conclusion of pretext. See Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir.
15
2003); Diego v. Pilgrim United Church of Christ, 231 Cal. App. 4th 913, 932 (2014). The Court
16
has examined the parties’ submissions to determine whether there is any evidence aside from
17
temporal proximity properly before the Court.
18
The only other evidence that can reasonably be considered is Plaintiff’s allegation made in
19
his deposition that Rogers was “upset” after receiving an email from Plaintiff on the evening of
20
August 23, 2010, that complained of Derks’s behavior in a one-on-one meeting and copied the
21
DIR mediator from the June meeting with Plaintiff, Rogers, and Derks. (Pl.’s Dep., 87:25–
22
89:24.) This evidence is insufficient. When taken in context, inclusion of such evidence
23
arguably further supports Defendants’ proffered reason. It is undisputed that Rogers told Plaintiff
24
the next day that the one-on-one meetings between Derks and Plaintiff would end, and that
25
Plaintiff would report directly to Rogers, who officially became Plaintiff’s immediate supervisor
26
on or about August 30, 2010. (ECF No. 58-1 at ¶¶ 33–34; Pl.’s Dep., 87:25–89:24.)
27
28
For purposes of examining temporal proximity, the Court assumes Derks and Rogers first
became aware of Plaintiff’s complaint to EDD’s EEO Office on June 23, 2010, during the
30
1
meetings with the DIR mediator. This seems to be the thrust of Plaintiff’s argument and there is
2
no evidence properly before the Court to the contrary. (See ECF No. 58 at 10–12; Pl.’s Dep.,
3
75:3–85:13.) Moreover, this benefits Plaintiff as this lessens the time between their knowledge
4
and Plaintiff’s second probationary report which Plaintiff received on or about September 10,
5
2010. (See ECF No. 58-1 at ¶ 36.)
6
The Court finds the temporal proximity taken together with all other evidence of pretext
7
properly before the Court to be insufficient to create a genuine issue of material fact and that
8
Defendant EDD is entitled to judgment as a matter of law on each of the retaliation claims. The
9
temporal proximity between June 23, 2010, and the alleged adverse employment actions, whether
10
looked at individually or collectively, does not support an inference that Defendant EDD’s
11
proffered reason was a pretext for an improper retaliatory motive. The Ninth Circuit has made
12
clear that “[t]here is no set time beyond which acts cannot support an inference of retaliation, and
13
there is no set time within which acts necessarily support” such an inference. Coszalter, 320 F.3d
14
at 978. Where there is any additional evidence, as the Court has assumed here, the district court
15
at the summary judgment stage examines “in the light of timing and the surrounding
16
circumstances” whether the challenged adverse action is “intended to be retaliatory.” Id.; see also
17
Diego, 231 Cal. App. 4th at 932 (explaining the same is true under FEHA).
18
A plaintiff’s job performance and behavior is properly included as a surrounding
19
circumstance in determining pretext where the plaintiff’s primary evidence is temporal proximity.
20
E.g., Davenport v. Bd. of Trs. of State Ctr. Cmty. Coll. Dist., 654 F. Supp. 2d 1073, 1094–95,
21
1101 (E.D. Cal. 2009) (examining in detail the plaintiff’s behavior problems at work preceding
22
his suspension and subsequent protected activity at the pretext stage even where these had not
23
lead to a formal negative performance review). This can cut both ways. See, e.g., Diego, 231
24
Cal. App. 4th at 932 (finding plaintiff’s ten year tenure with little or no job performance issues
25
whose termination followed within a week of the protected activity had proffered sufficient
26
evidence to survive summary judgment). Where “gradual adverse job actions began well before
27
the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.”
28
Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir. 2001) (cited with approval
31
1
in Bower v. City & Cty. of San Francisco, No. C 09-03507 CRB, 2011 WL 569882, at *8 (N.D.
2
Cal. Feb. 14, 2011), aff'd, 2012 WL 2951416 (9th Cir. July 20, 2012)); see also Mitchell v.
3
Superior Court of Cal. Cty. of San Mateo, No. 07–16309, 2009 WL 424578, at *1 (9th Cir. Feb.
4
20, 2009) (noting that the plaintiff had “not offered any evidence other than the ‘timing’ to rebut
5
what otherwise appears to be an effort by an employer to confront ballooning discoveries
6
regarding an employee’s inappropriate behavior”); cf. Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
7
268, 272 (2001) (explaining that “[e]mployers need not suspend previously planned transfers
8
upon discovering that a Title VII suit has been filed, and their proceeding along lines previously
9
contemplated, though not yet definitively determined, is no evidence whatever of causality”).
10
The undisputed evidence offered in support of Defendant EDD’s proffered non-retaliatory
11
basis for its adverse actions is substantial. Prior to any alleged protected activity there were
12
gradual adverse job actions taken due to the perception that Plaintiff was not performing his job
13
up to expectations: First, Plaintiff was removed from interview panels in February 2010. (ECF
14
No. 58-1 at ¶ 14; Pl.’s Dep., 40:3–44:5.) Second, Plaintiff was informed on May 7, 2010, that his
15
immediate supervisor was “disappointed” in data received from Plaintiff because that supervisor
16
viewed it as “incomplete.” (ECF No. 58-1 at ¶ 15; ECF No. 50-4 at ¶ 10.) Third, certain of
17
Plaintiff’s procurement responsibilities were removed on May 11, 2010. (ECF No. 58-1 at ¶ 16.)
18
Fourth, Plaintiff’s immediate supervisor told him on a near daily basis that Plaintiff’s work
19
product was below expectation beginning seemingly in February. (Pl.’s Dep., 54:16–18, 60:6–9,
20
69:10–11.) Finally, Plaintiff received a formal probationary report with an overall rating of
21
“unacceptable.” (ECF No. 58-1 at ¶ 19.)
22
After receiving his first report and the June 23, 2010, meeting with the mediator, but
23
before his second report, Plaintiff admitted doing a variety of things that would reinforce a
24
negative perception of his job performance with his supervisors: Plaintiff missed a meeting
25
concerning Plaintiff’s team’s workload that was attended by Derks, Rogers, and all System
26
Software Specialist III staff, except Plaintiff, without providing any explanation. (ECF No. 58-1
27
at ¶ 27.) Plaintiff turned in a status report that he admits his immediate supervisor spent three
28
hours revising because the supervisor viewed it as not meeting expectations. (ECF No. 58-1 at ¶
32
1
29.) Plaintiff declined project management overview training. (ECF No. 58-1 at ¶ 30.)
During his one-on-one meetings with Derks, all of which took part prior to this second
2
3
report, Plaintiff also admitted doing a variety of things that would reinforce a negative perception
4
of his job performance with his supervisors: For example, Plaintiff had difficulty making his staff
5
input their contact information in a database. (Pl.’s Dep., 55:3–13.) Plaintiff also had difficulty
6
making his staff provide status updates on their work assignments. (Pl.’s Dep., 55:14–56:3.) Due
7
to Plaintiff’s inability to recall dates in his deposition it is unclear whether these occurred before
8
June 23, 2010. Regardless, these admissions bolster Defendants’ argument that Plaintiff’s second
9
report was (or all of the adverse actions collectively) not due to retaliatory intent.
The undisputed facts show things did not improve after Plaintiff’s second report. It took
10
11
Plaintiff approximately ten days after Rogers’s follow-up request to provide a rebuttal to
12
Plaintiff’s second probationary report. (ECF No. 58-1 at ¶ 40.) Plaintiff admits emailing Rogers
13
that he would not attend a mandatory manager/supervisor meeting. (ECF No. 58-1 at ¶ 41.)
14
Moreover, Plaintiff admits failing to meet deadlines Rogers set at least twice. (ECF No. 58-1 at
15
¶¶ 43–45.)
When viewed in light of all the circumstances, including Plaintiff’s August 23, 2010,
16
17
email, nothing in the timing of the alleged adverse employment actions could permit a reasonable
18
factfinder to conclude that Defendant EDD was motivated by retaliatory intent for any of the
19
alleged adverse employment actions, whether viewed collectively or individually.
For these reasons Defendants’ motion for summary judgment on Plaintiff’s claims for
20
21
retaliation is granted.
E.
22
Defendants argue that summary judgment should be granted on Plaintiff’s failure to
23
24
Failure to Prevent Harassment, Discrimination and Retaliation Claim
prevent harassment, discrimination, and retaliation claim16 because “no liability can arise from
25
16
26
27
28
Plaintiff purports to bring this claim pursuant to FEHA and 29 C.F.R. § 1604.11(f). 29 C.F.R. § 1604.11(f)
is a subsection of EEOC’s “Guidelines on Discrimination Because of Sex” which suggests in part that employers
“take all steps necessary to prevent sexual harassment from occurring.” See Brodie v. Bd. of Trustees of California
State Univ., No. CV 12-07690 DDP AGRX, 2014 WL 359244 at *5 (C.D. Cal. Feb. 3, 2014) (noting this provision
details “what an employer ‘should’ do according to best practices, not what an employer ‘must’ do). The Court
construes this as an attempt to make a claim analogous to a FEHA failure to prevent claim under Title VII.
33
1
not preventing discrimination, harassment or retaliation that did not occur.” (ECF No. 50-1 at
2
30.)
Plaintiff did not address this argument in its opposition, so the Court applies the standard
3
4
for an unopposed motion for summary judgment with respect to this claim. (See ECF No. 58.)
5
The Court determines that Defendant EDD is entitled to judgment as a matter of law on
6
this claim. A plaintiff seeking to recover damages based on a claim of failure to prevent
7
discrimination, harassment, or retaliation must show three essential elements: (1) he was
8
subjected to discrimination, harassment, or retaliation; (2) the defendant failed to take all
9
reasonable steps to prevent discrimination, harassment, or retaliation; and (3) the defendant’s
10
failure caused the plaintiff to suffer injury, damage, loss, or harm. Hatfield v. DaVita Healthcare
11
Partners, Inc., No. C 13-5206 SBA, 2014 WL 2111237, at *5–6 (N.D. Cal. May 20, 2014)
12
(setting out the standard under FEHA); see also Williams v. Cty. of Marin, No. C03-2333 MJJ,
13
2004 WL 2002478, at *10 (N.D. Cal. Sept. 8, 2004) (suggesting the same standard would apply
14
under Title VII and that such claims have been recognized).17
Plaintiff is unable to satisfy the first element as the Court has granted summary judgment
15
16
in favor of Defendants on each of Plaintiff’s discrimination, harassment, and retaliation claims.
17
See Williams, 2004 WL 2002478 at *10; Mayes v. Kaiser Found. Hosps., No. 2:12-cv-1726 KJM
18
EFB, 2014 WL 2506195, at *14 (E.D. Cal. June 3, 2014); Trujillo v. N. Cty. Transit Dist., 63 Cal.
19
App. 4th 280, 289 (1998), as modified (May 12, 1998).
For these reasons Defendants’ motion for summary judgment on Plaintiff’s failure to
20
21
prevent harassment, discrimination, and retaliation claim is GRANTED.
F.
22
California Labor Code Sections 226.7 and 512 Claim
Defendants argue that summary judgment should be granted on Plaintiff’s claim that
23
24
Defendant EDD violated Sections 226.7 and 512 of the California Labor Code because Defendant
25
17
26
27
28
The Court expresses no opinion as to whether such a claim exists under Title VII. Neither party has cited
any authority to suggest it does. The case cited in Williams does not seem to stand for this proposition as it simply
discusses the circumstances where an employer can avoid liability in a Title VII sexual harassment claim. Compare
Williams, 2004 WL 2002478 at *10 n.11 (pinciting Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991)) with Ellison,
924 F.2d at 881 (“We next must determine what remedial actions by employers shield them from liability under Title
VII for sexual harassment by co-workers.”). The Court assumes solely for the purposes of this motion such a cause
of action would have the same elements in FEHA.
34
1
EDD is a public entity whose employees are not covered by those sections. (ECF No. 50-1 at 31–
2
32.)
3
Plaintiff did not address this argument in its opposition, so the Court applies the standard
4
for an unopposed motion for summary judgment with respect to this claim. (See ECF No. 58.)
5
The Court determines that Defendant EDD is entitled to judgment as a matter of law on
6
this claim because Sections 226.7 and 512 of the California Labor Code do not apply to its
7
employees. The California Court of Appeals has held that “unless Labor Code provisions are
8
specifically made applicable to public employers, they only apply to employers in the private
9
sector.” Johnson v. Arvin-Edison Water Storage Dist., 174 Cal. App. 4th 729, 733 (2009). In
10
Johnson, the California Court of Appeals specifically found that Section 512 did not apply to
11
public employers. Id. at 739. This was reaffirmed in California Correctional Peace Officer’s
12
Ass’n v. State, 188 Cal. App. 4th 646, 650 (2010), which also concluded Section 226.7 did “not
13
apply to public employees.” Id.
14
There seems to be no dispute that Defendant EDD is a public entity and Plaintiff was its
15
employee. (See ECF No. 8 at 1–2 (describing Defendant EDD as a “government agency” and
16
“California government entity” in the First Amended Complaint).) The parties have not
17
identified, and the Court has not located any authority for, treating Defendant EDD differently
18
from other public entities with respect to these sections of the Labor Code.
19
20
21
22
For these reasons Defendants’ motion for summary judgment on Plaintiff’s failure to
prevent harassment, discrimination and retaliation claim is GRANTED.
G.
California Labor Code Sections 2698 and 2699 Claim
Defendants argue that summary judgment should be granted on Plaintiff’s PAGA claim
23
pursuant to Sections 2698 and 2699 of the California Labor Code because the claim is being
24
pursued based on EDD’s alleged violations of California Labor Code Sections 98.6, 1102.5, 226.7,
25
and 512, each of which fail as a matter of law. (See ECF No. 50-1 at 31–32.)
26
Plaintiff did not address this argument in its opposition, so the Court applies the standard
27
for an unopposed motion for summary judgment with respect to this claim. (See ECF No. 58.)
28
The Court determines that Defendant EDD is entitled to judgment as a matter of law on
35
1
this claim because Plaintiff’s predicate claims under of Sections 98.6, 1102.5, 226.7, and of the
2
California Labor Code have failed as a matter of law. Gofron v. Picsel Techs., Inc., 804 F. Supp.
3
2d 1030, 1043 (N.D. Cal. 2011); Wentz v. Taco Bell Corp., No. 1:12-cv-1813 LJO DLB, 2012 WL
4
6021367, at *5 (E.D. Cal. Dec. 4, 2012).
5
6
For these reasons Defendants motion for summary judgment on Plaintiff’s PAGA claim is
granted.
7
IV.
8
For the reasons set forth above, Defendants’ Motion for Summary Judgment or,
9
alternatively, Motion for Summary Adjudication is GRANTED. The Clerk of Court shall enter
10
11
CONCLUSION
judgment in favor of the Defendants and close this case.
IT IS SO ORDERED.
12
13
Dated: January 4, 2017
14
15
Troy L. Nunley
United States District Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?