Katyal v. Donahoe et al

Filing 31

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/12/2017 RECOMMENDING that the 13 Motion for Summary Judgment be granted, the clerk enter judgment for the defendant and close the case. Objection due within 14 days after being served with these findings and recommendations. Referred to Judge Troy L. Nunley. (Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PRASHANT KATYAL, 12 Plaintiff, 13 14 15 No. 2:15-cv-1021-TLN-EFB PS v. FINDINGS AND RECOMMENDATIONS MEGAN J. BRENNAN, Postmaster General, United States Postal Service, Defendant. 16 17 This matter is before the court on defendant’s motion for summary judgment. ECF No. 18 13.1 For the reasons explained below, it is recommended that the motion be granted.2 19 I. Background 20 Plaintiff is a former employee of the United States Postal Service (“Postal Service”). 21 After his employment was terminated in 2008, he filed a complaint with the Equal Employment 22 Opportunity Commission (“EEOC”). Compl. (ECF No. 1) at 1-2.3 Plaintiff prevailed in 23 24 25 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 2 26 27 28 The court determined that oral argument would not materially assist in the resolution of the pending motion, and the matter was submitted on the briefs. See E.D. Cal. L.R. 230(g). 3 Page numbers cited herein refer to those assigned by the court’s case management and electronic docketing system and not those assigned by the parties. 1 1 arbitration and his employment was ordered reinstated. Id. at 15. Upon reinstatement in 2 February 2010, the Postal Service determined that there were no positions he could perform with 3 his medical restrictions. Id. at 8, 15. 4 To resolve the matter, in February 2011 the parties entered into a settlement agreement. 5 Declaration of Victoria Bosch ISO Mot. Summ. J., Ex. 10 (ECF No. 13-3 at 50-56). Pursuant to 6 that agreement plaintiff was required to apply for disability retirement. Upon the Office of 7 Personnel Management’s (“OPM”) approval of his application and plaintiff’s acceptance of 8 disability retirement, the Postal Service agreed to pay him $100,000. Id. The settlement also 9 provided that the Postal Service makes no representations or guarantees about plaintiff’s 10 eligibility for disability retirement or the amount of any retirement benefits. Id. at 52. 11 Plaintiff filed an application for disability retirement with OPM, and while his application 12 was pending he was placed on “Leave Without Pay” status. Id. at 18 (Ex. 4), 22 (Ex. 5). To 13 continue receiving health insurance while on leave, each pay period plaintiff would use small 14 amounts of sick leave or annual leave to stay on the Postal Service’s payroll. Id. at 22-23. 15 In August 2012, OPM approved plaintiff’s disability retirement. Id. at 17-18 (Ex. 4). 16 Plaintiff accepted disability retirement and in September 2012, the Postal Service paid him the 17 amount due under the settlement agreement. Id. That same month, plaintiff started receiving 18 disability retirement benefits. Id. at 42 (Ex. 7). The OPM’s calculation of benefits was based in 19 part on plaintiff’s length of employment, and the date he was entitled to start receiving benefits 20 was based on his last day in pay status, which was November 20, 2011. Id. at 23-27 (Ex. 5). 21 In October 2012, plaintiff submitted an Information for Pre-Compliant Counseling form 22 with the Postal Service’s Equal Employment Office (“EEO”). Declaration of Zeppelin B. Lui 23 ISO Mot. Summ. J., Ex. A (ECF No. 13-4 at 4-5); ECF No. 1 at 26. Shortly thereafter, plaintiff 24 called EEO Specialist Trent Andrews and left a voicemail stating that his complaint consisted of 25 “A new complaint and a breach.” ECF No. 1 at 26. On November 13, 2012, Mr. Andrews wrote 26 a letter to plaintiff regarding his counseling form. The letter, in addition to noting Mr. Andrews’ 27 numerous attempts to contact plaintiff by telephone, requested that plaintiff clarify 28 ///// 2 1 his complaint by November 21, 2012.4 2 Plaintiff, however, did not respond to Andrew’s letter until August 15, 2013. ECF No. 3 13-3 at 36-37. At that time, plaintiff explained that his dispute concerned the Postal Service’s 4 failure to provide OPM with the correct date for his last day of employment. He believed, and 5 still contends, that his last day of employment for purposes of calculating retirement benefits was 6 February 19, 2010, the last day he physically worked for the Postal Service, and not November 7 20, 2011, the last day he was in pay status. 8 On November 23, 2013, plaintiff filed a formal EEO complaint, which the Postal Service 9 dismissed for failure to timely contact an EEO Counselor and failure to state a claim.5 ECF No. 10 13-4 at 14-18 (Ex. C). The Equal Employment Opportunity Commission (“EEOC”) subsequently 11 affirmed the dismissal, finding that the alleged discriminatory events occurred prior to August 13, 12 2012, but that plaintiff did not make contact with an EEO Counsel until August 15, 2013, which 13 was beyond the 45-day limitation period provided by 29 C.F.R. § 1614.105(a)(1).6 Plaintiff 14 requested reconsideration, which the EEOC denied on February 4, 2015. ECF No. 13-4 at 25-27. 15 This action followed. 16 The complaint alleges that the Postal Service incorrectly reported to the OPM his last day 17 of work and length of service, and that the reporting of these inaccuracies constituted 18 discrimination. ECF No. 1 at 1-5. 19 20 21 22 23 24 25 26 27 28 4 The correspondence plaintiff filed with the EEO indicated that the incident at issue related to an OPM letter dated September 6, 2012. ECF No. 1 at 26. The applicable regulations require that a person alleging discrimination contact an EEO counsel within 45 days of the discriminatory action, which in this case would have been November 21, 2012. See 29 C.F.R. § 1614.105(a) (requiring a person who believes he has been discriminated against to contact an EEO counsel within 45 days of the alleged discriminatory action). 5 Plaintiff’s EEO complaint also alleged discrimination based on (1) the Postal Service’s termination of insurance benefits in 2010 and 2011, (2) a February 2010 finding that there were no positions plaintiff could perform with his medical restrictions, and (3) denial of requests to reinstate his employment. ECF No. 13-4 at 14 (Ex. C), 20 (Ex. D). The complaint filed in this action does not allege discrimination on these grounds. See ECF No. 1. 6 Because it found plaintiff’s complaint untimely, the EEOC did not address the EEO’s alternative dismissal for failure to state a claim. ECF No. 13-4 at 21 n.1 (Ex. D) 3 1 2 II. Summary Judgment Standards Summary judgment is appropriate when there is “no genuine dispute as to any material 3 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 4 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 5 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 6 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 7 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 8 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 9 motion asks whether the evidence presents a sufficient disagreement to require submission to a 10 11 trier of fact. The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 12 or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 13 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 14 trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 15 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, 16 under summary judgment practice, the moving party bears the initial responsibility of presenting 17 the basis for its motion and identifying those portions of the record, together with affidavits, if 18 any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 19 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving 20 party meets its burden with a properly supported motion, the burden then shifts to the opposing 21 party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); 22 Anderson, 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 23 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 24 to summary judgment procedures. Depending on which party bears that burden, the party seeking 25 summary judgment does not necessarily need to submit any evidence of its own. When the 26 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 27 need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National 28 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 4 1 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U .S. at 323- 2 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 3 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 4 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 5 should be entered, after adequate time for discovery and upon motion, against a party who fails to 6 make a showing sufficient to establish the existence of an element essential to that party’s case, 7 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 8 circumstance, summary judgment must be granted, “so long as whatever is before the district 9 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 10 To defeat summary judgment the opposing party must establish a genuine dispute as to a 11 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 12 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 13 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 14 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 15 determined by the substantive law applicable for the claim in question. Id. If the opposing party 16 is unable to produce evidence sufficient to establish a required element of its claim that party fails 17 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 18 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 19 at 322. 20 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 21 the court must again focus on which party bears the burden of proof on the factual issue in 22 question. Where the party opposing summary judgment would bear the burden of proof at trial on 23 the factual issue in dispute, that party must produce evidence sufficient to support its factual 24 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 25 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 26 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 27 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 28 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such 5 1 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 2 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 3 The court does not determine witness credibility. It believes the opposing party’s 4 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 5 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 6 proponent must adduce evidence of a factual predicate from which to draw inferences. American 7 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., 8 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at 9 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th 10 Cir. 1995). On the other hand, “[w]here the record taken as a whole could not lead a rational trier 11 of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 12 U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any 13 reasonable inferences that might be drawn from it could not support a judgment in favor of the 14 opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any 15 genuine dispute over an issue that is determinative of the outcome of the case. 16 III. 17 Discussion Defendant argues that it is entitled to summary judgment on plaintiff’s discrimination 18 claim because (1) he failed to exhaust his administrative remedies under Title VII by not 19 contacting an EEO counselor within 45 days as required by Title VII, and (2) he has no evidence 20 that discrimination motivated either of the challenged actions. ECF No. 5-7. As explained 21 below, plaintiff has failed to submit any evidence of discrimination and, as a result, plaintiff is 22 entitled to summary judgment. The court therefore declines to address defendant’s alternative 23 argument.7 24 ///// 25 26 27 28 7 Although exhaustion of administrative remedies is required to confer the district court with jurisdiction over a Title VII claim, Vasquez v. Cnty. of L.A., 349 F.3d 634, 644 (9th Cir. 2003), 29 U.S.C. § 1614(a)(2)’s requirement that an employee contact a counsel within 45 days “is not a jurisdictional prerequisite for suit in federal court,” Kraus v. Presidio Trust Facilities Div./Residential Management Branch, 572 F.3d 1039, 1044 (9th Cir. 2009). Accordingly, the court may consider the merits without addressing whether plaintiff complied with § 1614(a)(2). 6 1 As previously noted, the complaint alleges that the Postal Service incorrectly reported to 2 OPM plaintiff’s last day of employment and length of service, and that such conduct amounted to 3 discrimination. See ECF No. 1 at 4-5. The complaint, however, does not allege the basis of the 4 alleged discriminatory conduct (e.g., race, religion, disability, age), nor does it identify the 5 statutory basis for his discrimination claim(s). However, in his EEOC complaint, which is 6 appended to the complaint filed in this action, he alleged discrimination based on race, religion, 7 sex, national origin, age, physical and mental disabilities, and retaliation for EEO activity. ECF 8 No. 1 at 23. 9 Regardless of whether plaintiff intends to proceed under Title VII, the Rehabilitation Act, 10 or the Age Discrimination in Employment Act, to prevail on a discrimination claim he must 11 produce evidence that would allow a reasonable jury to find that the challenged conduct was 12 motivated by unlawful discrimination. See Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 13 1987) (to establish a prima facie case of disparate treatment under Title VII, plaintiff must 14 introduce evidence that “give[s] rise to an inference of unlawful discrimination.”) (quoting Texas 15 Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)); Mustafa v. Clark County Sch. 16 Dist., 157 F.3d 1169, 1175 (9th Cir. 1998) (under the Rehabilitation Act, a plaintiff “must show 17 that he was discriminated against solely on the basis of his disability); Shelley v. Geren, 666 F.3d 18 599, 608 (9th Cir. 2012) (A prima facie case of age discrimination “requires evidence adequate to 19 create an inference that an employment decision was based on an illegal discrimination 20 criterion.”). 21 Defendant submitted evidence demonstrating that plaintiff is unable to meet his burden of 22 showing that the Postal Service’s alleged incorrect reporting of plaintiff’s last day of employment 23 and the duration of his service were due to discrimination. At his deposition, the following 24 colloquy transpired: 25 26 27 28 Q: What led you to believe that the problems with the dates that we’ve been talking about[,] that are at issue in this case[,] had to do with discrimination? A: Well, looking at other people I—not looking at other people—I just sort of feel like—I’m a different race, I’ve been held to higher standards. Every time I’m trying to talk to her, my supervisor, 7 1 they’re not fixing it the situation. Maybe I’m—because I’m a different race or age or different religion, maybe that’s because of why. 2 3 Q: Are there any other reasons why you thought this was a problem that involved discrimination? 4 A: No. 5 6 7 ECF No. 13-3 at 45 (Ex. 8). Thus, plaintiff essentially conceded at this deposition that he has no evidence of 8 discrimination. More significantly, he has not submitted any evidence at all in opposition to 9 defendant’s motion for summary judgment. Instead, plaintiff’s opposition8 merely argues, 10 without evidentiary support, that: (1) the Postal Service provided OPM incorrect information 11 regarding the duration of his employment, (2) his last day of work was in February 2010 instead 12 of 2011; (3) after his last day of work he only used sick and annual leave once or twice a month to 13 stay on payroll to keep his health insurance, and (4) that an EEO counselor failed to acknowledge 14 that his primary dispute with the Postal Service concerned the reporting of his length of service 15 and last day of employment.9 ECF No. 23 at 1-2. 16 17 These unsupported allegations are insufficient to defeat summary judgment. Stanley v. University of S. California, 178 F.3d 1069, 1076 (9th Cir. 1999) (“Unsupported allegations made 18 19 20 21 8 In response to defendant’s motion for summary judgment, plaintiff filed a document entitled “Undisputed Statement of Facts.” ECF No. 23. In a subsequent filing, plaintiff confirmed that that he intended the “Undisputed Statement of Facts” to serve as his opposition to defendant’s motion. See ECF No. 28. 9 22 23 24 25 26 27 28 Although plaintiff alleges that he was subject to discrimination, his complaint and opposition suggest that his primary dispute concerns OPM’s calculation of his retirement benefits, rather than discrimination by the Postal Service. That issue, however, is not before this court. Under the Civil Service Reform Act (“CSRA”), federal employees asserting retirement related claims must first adjudicate claims with OPM, and then they may seek review from the Merit Systems Protection Board (“MSPB”) and then the Federal Circuit. See 5 U.S.C. § 8461(c) (OPM “shall adjudicate all claims under” the Federal Employees Retirement System’s Act); 5 U.S.C. § 8347(b) (OPM “shall adjudicate all claims under” the Civil Service Retirement System); Rodriguez v. United States, 852 F.3d 67, 83 (1st Cir. 2017) (the CSRA applies to federal employee “retirement claims, which are first reviewed by OPM and thereafter by the MSPB and the Federal Circuit.”). This action follows plaintiff’s discrimination complaint filed with the Postal Service’s EEO, not adjudication of a claim by OPM. 8 1 in briefs are not sufficient . . . to defeat a motion for summary judgment.”). Moreover, even if his 2 contentions are true, they fail to suggest that plaintiff was subject to discrimination. Although 3 plaintiff is not required to produce direct evidence of discrimination, at a minimum he must 4 produce some evidence from which a reasonable inference could be drawn that would permit a 5 jury to reasonably conclude at trial that discriminatory animus and not the defendant’s proffered 6 explanation motivated the actions of the defendant. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889- 7 90 (9th Cir. 1994). 8 9 10 As plaintiff has failed to submit any evidence supporting his claim of discrimination, defendant is entitled to summary judgment. IV. Conclusion 11 Accordingly, it is hereby RECOMMENDED that: 12 1. Defendant’s motion for summary judgment (ECF No. 13) be granted; and 13 2. The Clerk be directed to enter judgment in defendant’s favor and close the case. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 within the specified time may waive the right to appeal the District Court’s order. Turner v. 20 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: September 12, 2017. 22 23 24 25 26 27 28 9

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