Stephens v. County of Sacramento Department of Human Assistance of Northern California Welfare Division
Filing
46
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 09/10/19 DISCHARGING 36 Order to Show Cause; RECOMMENDING that the 35 Motion for Summary Judgment be granted and this case be closed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Benson, A.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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REHEMA STEPHENS,
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Plaintiff,
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No. 2:16-cv-1849-JAM-EFB PS
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
COUNTY OF SACRAMENTO
DEPARTMENT OF HUMAN
ASSISTANCE OF NORTHERN
CALIFORNIA WELFARE DIVISION,
Defendant.
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This case was before the court on February 27, 2019 for hearing on the sole defendant
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County of Sacramento’s (hereafter “County”) motion for summary judgment (ECF No. 35) and
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the court’s November 16, 2018 order directing plaintiff to show cause why sanctions should not
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be imposed for her failure to timely respond to the County’s motion (ECF No. 36).1 Attorney
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Glen Williams appeared on behalf of the County, and plaintiff appeared pro se. For the following
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reasons, the order to show cause is discharged and it is recommended that the County’s motion be
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granted.
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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).
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I.
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Order to Show Cause
The County noticed its motion for summary judgment for hearing on November 28, 2018.
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ECF No. 35. In violation of Local Rule 230(c), plaintiff failed to timely file an opposition or
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statement of non-opposition to the motion. Accordingly, the hearing on the motion was
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continued and plaintiff was ordered to show cause why sanctions should not be imposed for her
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failure to respond to the motion. ECF No. 36. Plaintiff was also ordered to file an opposition or
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statement of non-opposition to the pending motion.
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In response, plaintiff explains that she was diligently working on her response to the motion
but was unable to finish it before the original deadline. ECF No. 37. Plaintiff also filed a
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declaration in opposition to the County’s motion (but not a formal opposition) and a response to
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defendant’s Statement of Undisputed Facts. ECF Nos. 38, 39. In light of plaintiff’s
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representation and her pro se status, the order to show cause is discharged and no sanctions are
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imposed.
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II.
Defendant’s Motion for Summary Judgement
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A.
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Plaintiff’s complaint alleges claims against the County of Sacramento for racial
Undisputed Facts
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discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil
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Rights Act of 1964 (“Title VII”). ECF No. 1.
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On December 2, 2013, plaintiff was hired as a Human Services Specialist (“HSS”) at the
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County of Sacramento Department of Human Assistance. Decl. of Donna Doyle (“Doyle Decl.”)
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¶ 4; Decl. of Rehema Stephens (“Stephens Decl.”) ¶ 4. Following her completion of her HSS
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Induction class on March 10, 2014, plaintiff was assigned to a unit at the Bowling Green Bureau
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and commenced a twelve-month probationary HSS position. Doyle Decl. ¶ 7; Compl. ¶7.
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Plaintiff’s immediate supervisor was Carmen Espinoza, who reported to Project Manager Donna
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Doyle. Doyle Decl. ¶ 7.
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On March 17, 2014, Espinoza met with plaintiff to discuss plaintiff’s interest in taking the
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African American Cultural Special Skills Exam. Decl. of Carmen Espinoza (“Espinoza Decl.”) ¶
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9; Stephens Decl. ¶ 13. During the conversation, Ms. Espinoza told plaintiff to do her “due
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diligence” because “dealing with that particular demographic can be difficult.” Stephens Decl.
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¶ 13. When plaintiff asked Ms. Espinoza if she was referring to black people, Ms. Espinoza
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stated that many people make the mistake of “thinking that because they’re of the same race and
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culture they have an automatic in.” Id. Plaintiff then asked Ms. Espinoza if she was suggesting
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that plaintiff not take the exam, to which Espinoza replied, “No, I’m just making sure you have
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all the facts.” Id.
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After this conversation, the working relationship between plaintiff and Ms. Espinoza
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deteriorated and multiple disputes arose. Stephens Decl. ¶¶ 14-17, 19-22; Espinoza Decl. ¶¶ 10-
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14. At plaintiff’s request, Ms. Doyle held a meeting on April 2, 2014 to discuss the comments
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Ms. Espinoza made on March 17 and her subsequent interactions with plaintiff. Stephens Decl.
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¶¶ 23, 25. At the meeting—which was attended by Ms. Doyle, Ms. Espinoza, plaintiff, and
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plaintiff’s union representative, Mechele Dews—plaintiff requested she be assigned to another
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unit with a different supervisor. Id. ¶ 25. Ms. Doyle denied that request. Id.
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On May 23, 2014, plaintiff was called into Ms. Doyle’s office and given a Notice of
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Release from Probationary Status. Id. ¶ 27. Ms. Doyle informed plaintiff that her employment
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was being terminated because she was insubordinate to her direct supervisor, unprofessional with
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clients, and demonstrated an inability to work well with her coworkers. Id.
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B.
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Summary judgment is appropriate when there is “no genuine dispute as to any material
Summary Judgment Standard
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant
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to the determination of the issues in the case, or in which there is insufficient evidence for a jury
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to determine those facts in favor of the nonmovant. Crawford–El v. Britton, 523 U.S. 574, 600
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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Nw. Motorcycle Ass’n v.
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U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). At bottom, a summary judgment
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motion asks whether the evidence presents a sufficient disagreement to require submission to a
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jury.
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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims
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or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323–24 (1986). Thus, the rule functions to
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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
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trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
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(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally,
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under summary judgment practice, the moving party bears the initial responsibility of presenting
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the basis for its motion and identifying those portions of the record, together with affidavits, if
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any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
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U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving
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party meets its burden with a properly supported motion, the burden then shifts to the opposing
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party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e);
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Anderson, 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).
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A clear focus on where the burden of proof lies as to the factual issue in question is crucial
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to summary judgment procedures. Depending on which party bears that burden, the party seeking
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summary judgment does not necessarily need to submit any evidence of its own. When the
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opposing party would have the burden of proof on a dispositive issue at trial, the moving party
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need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National
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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters
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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U .S. at
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323–24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
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issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings,
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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment
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should be entered, after adequate time for discovery and upon motion, against a party who fails to
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make a showing sufficient to establish the existence of an element essential to that party’s case,
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and on which that party will bear the burden of proof at trial. See id. at 322. In such a
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circumstance, summary judgment must be granted, “so long as whatever is before the district
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court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.
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To defeat summary judgment the opposing party must establish a genuine dispute as to a
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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that
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is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at
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248 (“Only disputes over facts that might affect the outcome of the suit under the governing law
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will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is
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determined by the substantive law applicable for the claim in question. Id. If the opposing party
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is unable to produce evidence sufficient to establish a required element of its claim that party fails
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in opposing summary judgment. “[A] complete failure of proof concerning an essential element
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of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
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at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine
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the court must again focus on which party bears the burden of proof on the factual issue in
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question. Where the party opposing summary judgment would bear the burden of proof at trial on
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the factual issue in dispute, that party must produce evidence sufficient to support its factual
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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit
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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue
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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to
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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such
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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,
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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
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The court does not determine witness credibility. It believes the opposing party’s
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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;
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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the
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proponent must adduce evidence of a factual predicate from which to draw inferences. American
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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J.,
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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at
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issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th
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Cir. 1995). On the other hand, “[w]here the record taken as a whole could not lead a rational trier
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of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475
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U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any
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reasonable inferences that might be drawn from it could not support a judgment in favor of the
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opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any
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genuine dispute over an issue that is determinative of the outcome of the case.
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C.
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Plaintiff alleges three claims under Title VII. First, she alleges that the termination of her
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Discussion
employment was motivated by racial animus. ECF No. 1 at 8-9. Second, she claims her
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employment was terminated in retaliation for participation in protected activities. Id. at 9-11.
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Lastly, she alleges that she was subjected to a hostile work environment.2 Id. at 9.
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1.
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Disparate Treatment and Retaliation
An employee may show violations of Title VII by proving disparate treatment, a hostile
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work environment, or retaliation for protected activities. To establish a prima facie case of
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disparate treatment under Title VII, a plaintiff must introduce evidence that “give[s] rise to an
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inference of unlawful discrimination.” Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987)
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(quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To establish a
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prima facie case under Title VII, a plaintiff must offer proof: (1) that she belongs to a class of
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persons protected by Title VII; (2) that the she performed her job satisfactorily; (3) that the
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plaintiff suffered an adverse employment action; and (4) that her employer treated her differently
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than a similarly situated employee who does not belong to the same protected class as the
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plaintiff.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citations
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and internal quotations omitted).
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In the introductory section of the complaint, plaintiff alleges that she was denied due
process “when a written complaint of racial discrimination was made.” ECF No. 1 ¶ 1. The
complaint, however, does not allege a due process claim. Significantly, in response to an
interrogatory served by defendant, plaintiff confirmed that she only asserts claims under Title VII.
Decl. of Shanan Hewitt, Exs. B (ECF No. 35-3 at 14) & C (ECF No. 35-3 at 23).
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Similarly, a prima facie case for retaliation is dependent upon a threshold showing of facts
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sufficient to give rise to an inference of unlawful retribution for having complained of
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discrimination or otherwise engaged in activity protected by Title VII. Thus, to establish a prima
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facie case of retaliation, plaintiff must establish that “(1) [s]he engaged in protected activity, (2)
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[s]he suffered an adverse personnel action, and (3) there was a causal link between the two.”
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Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988); Yartzoff, 809 F.2d at 1375.
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If plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a
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legitimate, non-discriminatory (and, here, non-retaliatory) reason for its decision. Manatt v. Bank
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of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003). Once an employer does so, the plaintiff bears the
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burden of proving that the articulated reason was merely a pretext for a discriminatory motive.
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Id.; Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir. 2002) (en banc) (citing Price
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Waterhouse v. Hopkins, 490 U.S. 228, 260 (1989)).
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a.
Prima Facie Case
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In applying the shifting burdens analysis, the starting point is whether plaintiff has
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produced sufficient evidence to establish a prima facie case. The Ninth Circuit has noted that “[a]
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plaintiff alleging employment discrimination ‘need produce very little evidence in order to
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overcome an employer’s motion for summary judgment. This is because the ultimate question is
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one that can only be resolved through a searching inquiry-one that is most appropriately
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conducted by a factfinder, upon a full record.’” Davis v. Team Elec. Co., 520 F.3d 1080, 1089
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(9th Cir. 2008) (internal citations omitted); see also Peterson v. Hewlett-Packard Co., 358 F.3d
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599, 603 (9th Cir. 2004) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419
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(9th Cir. 1988)).
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The County does not dispute that plaintiff, who is African-American, is a member of a
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protected class, nor does it dispute that plaintiff’s termination was an adverse employment action.
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ECF No. 35-1 at 23. It argues, however, that plaintiff has not established a prima facie case
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because she cannot demonstrate that racial discrimination was a motivating factor to terminate her
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employment. Id.
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Plaintiff’s disparate treatment claim hangs on her contention that Ms. Espinoza’s March
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17, 2014 statements regarding plaintiff’s intent to take the African American Cultural Special
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Skills exam reflected racial animus towards plaintiff and African Americans and that further
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conflicts between the plaintiff and her supervisor stemmed from that animus. Plaintiff contends
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that Ms. Espinoza’s statement “dealing with that particular demographic can be difficult” has
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racial undertones that could be construed as hostile to a particular race. While that one statement
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is the only racial incident identified by plaintiff, and even if it is somewhat ambiguous as to
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whether it evinces actual animus, there is evidence reflecting that plaintiff’s relationship with
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Espinoza was strained following the March 17 conversation.
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After the conversation, Espinoza began making more frequent visits to plaintiff’s work
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station. Stephens Decl. ¶ 14. According to plaintiff, Espinoza stopped by plaintiff’s work station
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on March 27, 2014 and simply stared at her and a coworker. Id. ¶ 20. Allegedly, after an
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awkward pause, Espinoza stated that she didn’t need anything and was just passing by. Id. The
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following month, plaintiff informed Espinoza and Doyle that she had been feeling uneasy since
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the March 17 conversation. Id. ¶ 25. In response, Doyle stated that plaintiff may have
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misunderstood or misperceived Espinoza’s intention. Id. The following month, plaintiff’s
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employment was terminated. Id. ¶ 27.
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As noted, the threshold for establishing a prima facie case of disparate treatment is low.
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The single statement to plaintiff with the racial overtone about difficulty “dealing with that
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particular demographic” combined with the temporal proximity of plaintiff’s termination
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following her telling Espinoza and Doyle of her discomfort since the March 17 conversation is
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sufficient to establish a prima facia case that the termination was motivated both by racial animus
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and retaliation for complaining about the March 17 statement. See Davis, 520 F.3d at 1089.
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As for plaintiff’s retaliation claim, the County also argues plaintiff has failed to show a
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causal link between any protected activity and her release from employment. Specifically, the
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County contends that plaintiff has not provided any evidence suggesting the termination of her
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employment was motivated by retaliation. ECF No. 35-1 at 27. But this argument ignores the
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proximity in time between the complaint and the firing.
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Establishing a causal link “requires proof that the unlawful retaliation would not have
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occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex.
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Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (concluding that a plaintiff making a
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retaliation claim under Title VII “must establish that his or her protected activity was a but-for
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cause of the alleged adverse action by the employer”). “To show the requisite causal link, the
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plaintiff must present evidence sufficient to raise the inference that her protected activity was the
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likely reason for the adverse action.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.
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1982). “The causal link can be inferred from circumstantial evidence such as the employer’s
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knowledge of the protected activities and the proximity in time between the protected activity and
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adverse action.” Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011) (citing Jordan v.
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Clark, 847 F.2d 1368, 1376 (9th Cir. 1988)); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
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268, 273 (2001) (per curiam) (holding that a court may not infer causation from temporal
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proximity unless an employer’s knowledge of protected activity and an adverse employment
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action are “very close” in time).
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In her declaration, plaintiff states that she emailed Doyle on March 27, 2014 to complain
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about the remarks Espinoza made ten days earlier. Id. ¶ 23. A meeting was held on April 2,
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2014, to address plaintiff’s complaint. Id. ¶ 25. It was at that meeting Doyle informed plaintiff
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that she had misinterpreted Espinoza’s intentions. Id. Seven weeks later, plaintiff’s employment
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was terminated. Id. ¶ 27. While there is no direct evidence that plaintiff was terminated for
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submitting her complaint to Doyle, plaintiff can meet her burden through indirect evidence. The
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date on which plaintiff made her complaint to Doyle is sufficiently proximate to the termination
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of her employment to “raise the inference that her protected activity was the likely reason for the
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adverse action.” Cohen, 686 F.2d at 796; see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
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1065 (9th Cir. 2002) (finding a prima facie case of causation where plaintiffs were discharged
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from employment 42 and 52 days after the alleged protected activity)); Yartzoff, 809 F.2d at 1376
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(holding that sufficient evidence existed where adverse actions occurred less than three months
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after the complaint was filed, two weeks after the charge was first investigated, and less than two
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months after the investigation ended).
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Accordingly, plaintiff has proffered sufficient evidence to satisfy the low burden of
establishing a prima facia case.
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b.
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Legitimate, Non-Discriminatory Reason
The County argues that plaintiff’s employment was terminated due to insubordination and
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unprofessionalism, which are legitimate, non-discriminatory reasons for terminating plaintiff’s
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employment. ECF No. 35-1 at 26-27.
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When a plaintiff establishes a prima facie case, the burden of producing evidence that
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legitimate, nondiscriminatory reasons existed for the adverse employment action shifts to the
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defendant, but the burden of persuasion remains with the plaintiff. Burdine, 450 U.S. at 256.
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“The employer need not persuade the court that it was actually motivated by the proffered
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reasons: ‘It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it
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discriminated against the plaintiff.’” Yartzoff, 809 F.2d at 1376 (quoting Burdine, 450 U.S. at
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254-55). Thus, a defendant “need only produce admissible evidence which would allow the trier
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of fact rationally to conclude that the employment decision had not been motivated by
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discriminatory animus.” Id.
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Here, the County has submitted evidence demonstrating that plaintiff was uncooperative,
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difficult to work with, and insubordinate. For instance, on March 13, 2014, Espinoza tried to
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speak with Plaintiff, but Plaintiff declined to speak with her, excusing herself by saying that she
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had just gotten back from getting lunch and had not eaten yet. Espinoza Decl. ¶ 7. The following
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week, Espinoza instructed plaintiff to complete the Time On Aid (“TOA”) sheets assistance
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recertification packets. Id. ¶ 8. In response, plaintiff confronted Espinoza, expressing that, upon
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talking with her peers, she had learned that other employees were not required to have TOA
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sheets reviewed. Id. Although Espinoza explained that it was policy that a review of TOA sheets
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be completed, it was later discovered that plaintiff had not completed her TOA sheets correctly.
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Id. Espinoza also discovered that plaintiff had been working on her TOA sheets with her sister,
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Shontae Stephens – Espinoza’s peer and another supervisor at the Department – rather than
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seeking assistance from Espinoza, as plaintiff had been instructed. Id. ¶¶ 8, 15.
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10
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On March 24, 2014, plaintiff informed Espinoza that she left early the previous day due to
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a family emergency in violation of the County’s policy that employees seek approval for leave,
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including leave for an emergency. Id. ¶ 10; Doyle Decl. ¶ 10. Espinoza asked plaintiff to come
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to her office to discuss her leaving early the prior day. Espinoza Decl. ¶ 10. In response, plaintiff
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stated, “Walk all the way over there?” Id. On the same date, Espinoza met with plaintiff to
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discuss one of plaintiff’s cases. During the conversation, plaintiff spoke to Espinoza in a tone
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that Espinoza found confrontational. Id. ¶ 11. Espinoza also learned that plaintiff had failed to
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complete a traffic log ticket for her client, which was one of plaintiff’s responsibilities. Id. A few
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days later, Espinoza asked plaintiff to come to her office to discuss a matter, and plaintiff again
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complained about walking “all the way over there.” Id.¶ 13. After further discussions, plaintiff
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stated she was frustrated and needed a minute. Id. Espinoza waited a minute before speaking
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again but was interrupted by plaintiff stating: “I said I need a minute, that means you need to
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leave.” Id. ¶ 13.
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In early May 2014, two employees complained that plaintiff had been acting
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unprofessional towards them and plaintiff’s clients. Id. ¶ 16, Ex. D. Thereafter, Doyle conducted
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a review of all probationary employees. Id. ¶ 17. The review of plaintiff’s 16 cases showed that
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12 were deficient with errors. Id. Although plaintiff had subsequently corrected seven of the
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errors, five cases remained incomplete. Id. Shortly after this review, plaintiff’s employment was
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terminated. Id. ¶ 18.
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This evidence, none of which plaintiff disputes, demonstrates that plaintiff acted in an
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unprofessional manner when interacting with her supervisor and coworkers, and that she failed to
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follow office procedures. Accordingly, the County has presented evidence in support of an
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articulated legitimate, nondiscriminatory basis for terminating plaintiff’s probationary
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employment.
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c.
Pretext
Plaintiff can demonstrate pretext by “directly persuading the court that a discriminatory
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[or retaliatory] reason more likely motivated the employer[,] or indirectly by showing that the
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employer’s proffered explanation is unworthy of credence.” Stegall v. Citadel Broad. Co., 350
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F.3d 1061, 1066 (9th Cir. 2003) (quoting Burdine, 450 U.S. at 248 (citation omitted)). “‘Direct
2
evidence is evidence which, if believed, proves the fact [of discriminatory or retaliatory animus]
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without inference or presumption.’” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.
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1998) (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)). “When the
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plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation
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of the employer is created even if the evidence is not substantial.” Godwin, 150 F.3d at 1221. In
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contrast, when direct evidence is unavailable, and the plaintiff proffers only circumstantial
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evidence that the employer’s motives were different from its stated motives, plaintiff must show
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“specific” and “substantial” evidence of pretext to survive summary judgment. Id. at 1222. To
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meet this burden, plaintiff “cannot simply show the employer’s decision was wrong, mistaken or
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unwise.” Dep’t of Fair Employment & Housing v. Lucent Techs., 642 F.3d 728, 746 (9th Cir.
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2011). She “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies,
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or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
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fact-finder could rationally find them unworthy of credence.” Id.
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Here, plaintiff has failed to produce evidence that can satisfy that standard. She simply
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fails to show that the County’s proffered reasons for terminating her employment are pretextual.
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Plaintiff describes different incidences when supervisors, including Espinoza, spoke aggressively
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towards her. See Stephens Decl. ¶¶ 22, 24. But she does not dispute the facts surrounding any of
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the incidences of unprofessional conduct described above. Accordingly, plaintiff has not shown
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that the proffered nondiscriminatory reason for terminating her employment was pretextual.
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Accordingly, the County is entitled to summary judgment on plaintiff’s disparate
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treatment and retaliation claims.
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2.
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Hostile Work Environment
Plaintiff’s also alleges that she was subjected to a hostile work environment after she
complained about Ms. Espinoza’s March 17, 2014 statements. ECF No. 1 ¶¶ 29-30.
To establish a prima facia hostile work environment claim, plaintiff must proffer evidence
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showing “(1) she was ‘subjected to verbal or physical conduct’ because of her race, (2) ‘the
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conduct was unwelcome,’ and (3) ‘the conduct was sufficiently severe or pervasive to alter the
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1
conditions of [her] employment and create an abusive work environment.’” Manatt v. Bank of
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America, N.A., 339 F.3d at 798. “The work environment must be both subjectively and
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objectively perceived as abusive.” Campbell v. Hawaii Dept. of Edu., 892 F.3d 1005, 1017 (9th
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Cir. 2019). “In determining whether a work environment is sufficiently hostile, the court
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evaluates the totality of the circumstances, ‘including the frequency of the discriminatory
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conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
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utterance; and whether it unreasonably interferes with an employee’s work performance.’” Fuller
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v. Idaho Dept. of Corrections, 865 F.3d 1154, 1161 (9th Cir. 2017). [T]he required showing of
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severity or seriousness of the harassing conduct varies inversely with the pervasiveness or
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frequency of the conduct.” Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991).
Here, plaintiff has failed to produce evidence demonstrating conduct that was sufficiently
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severe to alter the conditions of her employment and create an abusive work environment. She
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identifies a single statement which she relies upon as evidence of racial animus. But as noted
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supra, even that statement is ambiguous as to Espinoza’s intent. Plaintiff may well have found it
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offensive, but it does not rise to the level of severe and pervasive hostility that is actionable under
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Title VII. See Manatt v. Bank of America, NA, 339 F.3d at 798-99.
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Plaintiff states that after the Espinoza’s March 17 statement, Espinoza began visiting
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plaintiff’s work station 5-6 times a day. Stephens Decl. ¶ 14. She also states that on March 20,
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2014, Espinoza switched the time for a regularly scheduled meeting, which interfered with
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plaintiff’s lunch break. Id. ¶ 16. On March 25, 2014, Espinoza stopped by plaintiff’s work
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station, said hello, and then proceeded to stand and stare at plaintiff and a coworker. After an
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awkward pause, the coworker left and Espinoza stated that she “didn’t really want anything, I was
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just passing by.” Id. ¶ 19. Plaintiff further declares that on April 1, 2014, a different supervisor
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“began aggressively asking me about why I did not respond to the PA calls regarding a client.”
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Id. ¶ 24.
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While plaintiff may have subjectively found these interactions offensive and believed
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them to be related to the March 17 incident, the described incidences are not the type that can be
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fairly characterized as “sufficiently severe or pervasive to alter the conditions of [her]
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employment and create an abusive work environment.’” Manatt, 339 F.3d at 798. Accordingly,
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the County is also entitled to summary judgment on plaintiff’s hostile work environment claim.
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III.
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Conclusion
Accordingly, it is hereby ORDERED that the November 16, 2018 order to show cause
(ECF No. 36) is discharged and no sanctions are imposed.
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Further, it is RECOMMENDED that:
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1. The County’s motion for summary judgment (ECF No. 35) be granted; and
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2. The clerk be directed to enter judgment in defendant’s favor and close the case.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: September 10, 2019.
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