Kim v. U.S. Department of Agriculture

Filing 84

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART DEFENDANTS 58 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 2/3/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 IN SUK KIM, 5 6 7 Plaintiff, v. 8 THOMAS J. VILSACK, Secretary of the United States Department of Agriculture, 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Docket No. 58) Defendant. 10 United States District Court For the Northern District of California No. C 10-2101 CW ________________________________/ 11 12 Plaintiff In Suk Kim charges Defendant Thomas J. Vilsack, 13 Secretary of United States Department of Agriculture, with age and 14 national origin discrimination and unlawful retaliation in 15 violation of the Age Discrimination in Employment Act (ADEA), 29 16 U.S.C. §§ 621-634, and Title VII, 42 U.S.C. §§ 2000e, et seq. 17 Defendant moves for summary judgment on all of Plaintiff’s claims. 18 Plaintiff opposes Defendant’s motion. Having considered the 19 20 papers filed by the parties and their oral arguments during the 21 hearing, the Court GRANTS Defendant’s motion in part and DENIES it 22 in part. 23 24 25 26 27 28 1 BACKGROUND 2 The following summary presents any disputed facts in the 3 light most favorable to Plaintiff, as the non-moving party.1 4 5 Plaintiff was born in 1938 and is of Korean ancestry. ¶ 3; Answer ¶ 3; Mot. for Summ. J. 2; Opp. 6. Compl. From 1993 through 6 2001, Plaintiff was employed by the United States Department of 7 8 Agriculture (USDA), first as a Development and Investigation chemist in the Food Safety Inspection Service Western Laboratory 10 United States District Court For the Northern District of California 9 in Alameda, California and later as a Toxicologist in Washington, 11 D.C. 12 Deposition of In Suk Kim (Kim Depo.), 15:2-16:22. 13 the USDA in 2001 for personal reasons and moved back to 14 Decl. of Richard M. Rogers (Rogers Decl.) ¶ 4, Ex. 6, California. Plaintiff left Id. at 15:25-16:2. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Concurrently with her opposition to Defendant’s motion, Plaintiff filed a separate eight-page document containing objections to certain evidence submitted by Defendant in support of the motion for summary judgment. See Pl.’s Evidentiary Objections, Docket No. 66. Defendant requests that this document be disregarded, because it violates Local Rule 7-3(a), which requires that evidentiary objections to the motion should be contained within the opposition. Because, when added together, Plaintiff’s opposition and the additional document containing evidentiary objections total less twenty-five pages, the maximum length allowed for her opposition under Local Rule 7-3(a), the Court exercises its discretion to excuse Plaintiff’s failure to comply with the requirement that they be contained within a single document. Accordingly, Defendant’s request is OVERRULED. To the extent that the Court relies on any evidence to which Plaintiff objects, the Court rules on the objection prior to considering the evidence. Where necessary, such rulings are discussed below. To the extent that the Court decides the motion without considering evidence to which Plaintiff has objected, Plaintiff’s objections are OVERRULED as moot. 2 1 About two years later, Plaintiff applied to work at the USDA 2 again and was hired by Dr. Emilio Esteban, then the Laboratory 3 Director of the Western Laboratory, and Leon Ilnicki, the 4 Chemistry Branch Chief (CBC), to work in the Western Laboratory as 5 a Supervisory Chemist paid at the GS-13 level. 6 Id. at 25:20-27:20; Decl. of Emilio Esteban (Esteban Decl.) ¶ 2. When 7 Plaintiff began her new position on September 7, 2003, Mr. Ilnicki 8 9 United States District Court For the Northern District of California 10 was her direct supervisor. Kim Depo., at 30:4-9. Mr. Ilnicki took sick leave in 2005 and resigned due to 11 illness shortly after taking leave. 12 Esteban Decl. ¶ 2. 13 Plaintiff’s direct supervisor. 14 Decl. ¶ 2. Id. at 30:7-9, 60:19-22; After Mr. Ilnicki left, Dr. Esteban became Kim Depo., at 30:7-9; Esteban Dr. Esteban assigned Plaintiff to serve in the 15 position of Acting CBC for a period of time in 2005, after 16 Plaintiff complained to him during a meeting that Stephen Powell, 17 18 another Supervisory Chemist, who was born in 1948, had initially 19 been assigned to serve as the Acting CBC. 20 From mid-2005 through early January 2006, Plaintiff and Mr. Powell 21 rotated in this position. 22 ¶ 4; Opp. at 2. 23 Kim Depo., at 64:10-16. Powell Depo., at 20:3-4; Esteban Decl. On July 13, 2005, Dr. Esteban gave Plaintiff a performance 24 review for the period from July 1, 2004 through June 30, 2005. 25 26 27 Dr. Esteban rated Plaintiff at the highest level overall, with an “OUTSTANDING” rating, and in each individual performance element, 28 3 1 with an “EXCEEDS” rating, including for supervision. 2 ¶ 4, Ex. 7, Esteban Depo., Ex. 1, at 1. 3 Rogers Decl. In June 2005, Dr. Esteban posted a vacancy announcement for 4 the permanent CBC position. 5 announcement was open until February 2006 and was advertised 6 multiple times. Id. Esteban Decl. ¶ 5. The vacancy Plaintiff saw continued advertisements of 7 the position in local and national media outlets in December 2005 8 9 and sometime between then and July 2006. Kim Depo., at 71:1-8. United States District Court For the Northern District of California 10 Three candidates, including Plaintiff, who met the minimum 11 requirements for the position, applied and were placed onto a 12 Promotion Certificate. 13 applicants placed on the Promotion Certificate were born in 1952 14 and 1958. Id. at ¶ 6. Esteban Decl. ¶ 5. The other two Dr. Esteban decided that none of the three 15 candidates was appropriate for the position and did not interview 16 any of them. Id. at ¶ 5.2 17 Plaintiff was informed that she was not selected for the 18 Id. at 19 position on October 24, 2005 and again on July 6, 2006. 20 ¶¶ 6, 7, Exs. D and E; Kim Depo., at 71:2-8; 72:24-73:4. 21 6, 2006 letter stated that the Western Laboratory had cancelled 22 the vacancy announcement. Esteban Decl. ¶ 7, Ex. E. The July When 23 Plaintiff asked Dr. Esteban, after she received the July 6, 2006 24 25 26 27 28 letter, why she was not selected, he told her that the reason was 2 Plaintiff objects to paragraph five of Dr. Esteban’s declaration as lacking foundation and conclusory. However, this statement is based on Dr. Esteban’s personal knowledge. Accordingly, Plaintiff’s objections are OVERRULED. 4 1 “a budget problem.” 2 states that he rejected Plaintiff for the position because he 3 believed that she did not have the supervisory and management 4 skills necessary for the position, she consistently had difficulty 5 meeting deadlines and completing administrative tasks, and other 6 Kim Depo., at 72:24-73:13. Dr. Esteban now staff members complained that she was too intrusive into their 7 personal lives. Esteban Decl. ¶ 7.3 8 In 2005 or 2006, Mr. Powell informed Dr. Esteban that he 9 United States District Court For the Northern District of California 10 intended to retire in March 2007. Powell Depo., at 13:2-15:2. 11 Dr. Esteban asked him to stay to train, and to transfer his 12 institutional knowledge to, Catalina Yee and Dr. Patricia 13 Nedialkova.4 Powell Depo., at 13:12-16:21. Dr. Nedialkova’s 14 national origin is described as “American” and she was born in 15 16 1975. Nedialkova Decl. ¶ 4. Defendant states, and Plaintiff does 17 not dispute, that Ms. Yee’s national origin is “USA” and she was 18 born in 1961. 19 20 From January 13, 2006 through April 30, 2007, Plaintiff continuously served as Acting CBC. Kim Depo., at 65:10-23. 21 22 23 24 25 26 3 Plaintiff objects to the relevant portion of paragraph seven of Dr. Esteban’s declaration as lacking foundation, conclusory and hearsay. However, the statements contained therein are based on Dr. Esteban’s personal knowledge. Further, Dr. Esteban’s statement that the staff members made complaints are not offered to prove the truth of the matter contained in the complaints, but rather as evidence of his motive for rejecting Plaintiff for the promotion. Accordingly, Plaintiff’s objections are OVERRULED. 27 4 28 Dr. Nedialkova was known as Patricia Linden for some of the time period relevant to this case. Opp. at 1 n.1. 5 1 During this time, Dr. Nedialkova and Ms. Yee served as Acting 2 Supervisory Chemists. 3 Plaintiff was serving as Acting CBC, she made some of her 4 subordinates feel uncomfortable by asking them about personal 5 matters and by engaging them in long conversations that were not 6 work-related. Esteban Depo., at 90:13-17, Ex. 3. While Nedialkova Depo., at 30:5-25. 7 In June or July 2006, Dr. Esteban gave Plaintiff a 8 9 performance review for the period from July 1, 2005 through June United States District Court For the Northern District of California 10 30, 2006. Esteban Depo., Ex. 1, at 2; Kim Depo., at 85:25-86:2. 11 In this review, Dr. Esteban gave Plaintiff an overall “SUPERIOR” 12 rating, the second highest rating. 13 He gave her the highest “EXCEEDS” rating in three individual 14 categories, and the middle “MEETS” rating, in two, including for Esteban Depo., Ex. 1, at 2. 15 Supervision. Id. When they met to discuss this review, Dr. 16 Esteban told Plaintiff that she was “not energetic enough to 17 18 19 supervise” others. Kim Depo., at 85:25-86:2. In October 2006, after operating without a permanent CBC for 20 more than a year, Dr. Esteban decided to eliminate the CBC 21 position and reorganize the Chemistry Branch of the Western 22 Laboratory. 23 Esteban Decl. ¶ 8. As part of the reorganization, Dr. Esteban began to develop a new position, Lead Chemist, with 24 the intention of moving Plaintiff into it from the Supervisory 25 26 Chemist position. Id. The Lead Chemist position had the same 27 responsibilities as the Supervisory Chemist except that it lacked 28 a supervisory component. Id. The Lead Chemist and the 6 1 Supervisory Chemist positions had the same pay grade and salary. 2 Id. 3 expertise for the less experienced chemists, and would act as a 4 consultant for them. 5 19, 2007 Affidavit (Esteban Aff.)), at 15.5 The Lead Chemist would provide additional training and Esteban Decl. 17, Ex. H (Esteban September As part of the 6 reorganization, Dr. Esteban also promoted two Chemistry Analysts, 7 8 9 Dr. Nedialkova and Ms. Yee, to the position of Supervisory Analyst. In January 2007, the CBC at the Food Emergency Response 10 United States District Court For the Northern District of California Esteban Decl. ¶ 8. 11 Network (FERN) requested a report on what methods the Western 12 Laboratory used. 13 sent a report. Esteban Decl. ¶ 11.6 Id. As Acting CBC, Plaintiff Dr. Esteban determined that the report 14 Plaintiff sent was incomplete and asked her to revise it to 15 16 include an analysis that she had omitted. Id. 17 18 19 20 21 22 5 Plaintiff challenges the admissibility of affidavits attached to the declarations of Dr. Esteban, Kenneth Dobson, and John Rivera, which these individuals had submitted in connection with the earlier EEO investigations, based on a general and unexplained objection that they are hearsay. Pl.’s Evidentiary Objections, at 4, 6, 7. These affidavits are sworn statements made in front of officers authorized to administer oaths. See 29 C.F.R. § 1614.108(c)(2). Accordingly, Plaintiff’s objections are OVERRULED. 23 6 24 25 26 27 28 Plaintiff objects to the admissibility of paragraphs eleven and thirteen of Dr. Esteban’s declaration based on lack of foundation and the best evidence rule. However, the statement contained therein are based on his personal knowledge. Further, his statement regarding the documents is offered to prove his assessment of Plaintiff’s writing skills and work performance and is not offered to prove the content of the documents. Accordingly, Plaintiff’s objections are OVERRULED. 7 1 In February 2007, Dr. Esteban asked Plaintiff to edit a 2 document to add a paragraph justifying the purchase of certain 3 laboratory equipment. 4 Dr. Esteban decided that her written work product was of poor 5 quality and re-wrote the document. 6 Id. at ¶ 13. She failed to do so. Id. Id. On February 26, 2007, while Plaintiff was serving as the 7 Acting CBC, at the GS-13 level, she sent an email to Dr. Esteban, 8 9 requesting that she be temporarily promoted to Acting CBC at United States District Court For the Northern District of California 10 Grade-14 pay for 120 days from that date. 11 75:7-77:24; Esteban Decl. ¶ 9, Ex G. 12 request, there was no vacancy announcement pending for the 13 permanent CBC position. 14 Kim Depo., at At the time of Plaintiff’s Kim Depo., at 77:16-18. On March 6, 2007, Plaintiff met with Dr. Esteban for her 15 midterm performance evaluation. Id. at 80:12-19. During that 16 meeting, Dr. Esteban told her that her request to be promoted to a 17 18 Grade-14 position of Acting CBC was denied and that he was 19 eliminating the CBC position. 20 her that the reason for his denial was that there was a budget 21 problem. 22 also informed Plaintiff that she would be moved from the 23 Id. at 79:13-14. Id. at 79:7-12, 82:15-17. He told During that conversation, Dr. Esteban Supervisory Chemist to the Lead Chemist position. Id. at 24 84:21-85:17. Dr. Esteban explained that Plaintiff was not 25 26 “energetic enough to be a supervisory chemist,” that he “wanted to 27 have young one,” and that she was “not aggressive enough to be a 28 supervisor.” Id. at 82:24-25, 85:18-86:7. 8 Dr. Esteban also 1 informed Plaintiff that Dr. Nedialkova would take the Supervisory 2 Chemist opening. 3 Plaintiff submitted a request for training to increase her skills 4 as a supervisor. 5 6 Kim Depo., at 84:17-20. After the meeting, Esteban Aff. at 7. On March 26, 2007, Plaintiff wrote a letter, which was forwarded to the Equal Employment Office (EEO), containing 7 complaints about discrimination. Id. at 87:22-88:4. Plaintiff 8 9 filed a written complaint on May 31, 2007. Rogers Decl. ¶ 3, Ex. United States District Court For the Northern District of California 10 3. In her complaint, Plaintiff alleged that Dr. Esteban had 11 discriminated against her on the basis of age by “preventing her 12 merit promotion to Chemistry Branch Chief.” 13 also made several other allegations, including age discrimination 14 in her performance reviews and in moving her to the Lead Chemist Id. at 3. Plaintiff 15 position. Id. 16 In July 2007, Dr. Esteban signed Plaintiff’s performance 17 18 evaluation for the July 1, 2006 through June 30, 2007 time period. 19 Rogers Decl., Ex. 4, at 19. 20 Plaintiff an overall “SUPERIOR” rating, the second highest rating 21 out of five possible ratings. 22 highest “EXCEEDS” rating in two individual categories, and the 23 In this evaluation, Dr. Esteban gave Id. Dr. Esteban gave Plaintiff the middle “MEETS” rating in three, including for Supervision. Id. 24 In February 2008, Dr. Esteban left the Western Laboratory 25 26 after receiving a promotion. Esteban Decl. ¶ 10. From February 27 12, 2008 through June 12, 2008, John Rivera and Dave Martin served 28 as Acting Laboratory Directors for the Western Laboratory. 9 Rivera 1 Decl. ¶ 1; Esteban Decl. ¶ 10. 2 directors, Plaintiff was researching a new Carbadox method, and 3 she presented many issues related to the new method at a meeting 4 on June 3, 2008. 5 6 When they began as acting Kim Decl. ¶ 19. While Dr. Rivera was acting director, he “instructed [Plaintiff] to work with the supervisors” of the chemistry 7 analysts and to go through the supervisors in order to assign work 8 9 to the analysts whom they supervised, but “she refused to do it” United States District Court For the Northern District of California 10 and would instead go directly to the chemistry analysts. Rivera 11 Decl. ¶ 3, Ex. A (Rivera March 16, 2010 Affidavit (Rivera Aff.)), 12 at 4; Nedialkova Depo., at 80:12-16. 13 provide Dr. Rivera with progress reports that he requested. 14 Rivera Aff., at 4. Plaintiff also failed to Plaintiff did not complete an assignment 15 related to hormones. Id. 16 In August 2008, Plaintiff received a performance appraisal 17 18 for the July 1, 2007 through June 30, 2008 appraisal period. 19 Sladden Decl. ¶ 14, Ex. M. 20 sets of ratings, one given by Dr. Esteban for the time period 21 through February 16, 2008 and one by Dr. Rivera from February 17, 22 2008 through June 12, 2008. 23 The appraisal was a composite of two Id. Both sets of ratings were identical: “FULLY SUCCESSFUL” for her overall rating, and average 24 “MEETS” ratings for each of the individual categories. Id. Dr. 25 26 Rivera gave her these ratings because he felt that she “did not 27 contribute to the team” and did not complete at least one 28 assignment as required. Rivera Aff., at 4. 10 1 In June or July 2008, Dr. Kenneth Dobson began as the 2 Laboratory Director for the Western Laboratory. 3 Dobson Decl. ¶ 1; Kim Decl. ¶ 17. 4 At some point after that, Plaintiff began refusing to 5 communicate with the Supervisory Chemists and told them that she 6 was only required to communicate with and share information with 7 her supervisor, not with her peers. Nedialkova Depo., at 8 9 59:11-16, 77:20-25. The Supervisory Chemists reported this to United States District Court For the Northern District of California 10 their supervisor, Dr. Dobson, who was also Plaintiff’s supervisor. 11 Nedialkova Depo., at 77:20-25. 12 When Plaintiff went to his office, Dr. Dobson would turn 13 around and leave. 14 to Interrogatories), at 3. Pl.’s Response to Def.’s Interrogatories (Resp. When Plaintiff would speak in 15 meetings, Dr. Dobson would not listen to what she had to say and 16 would talk to Ms. Yee or Dr. Nedialkova instead of responding to 17 18 Plaintiff. 19 Hernandez (Hernandez Depo.)), at 23:12-24. 20 believed that Dr. Dobson was “cold” to Plaintiff. 21 23:17-19. 22 giving a presentation during a meeting. 23 Rogers Decl. ¶ 4, Ex. 11 (Deposition of Carlos Other employees Id. at On one occasion, Dr. Dobson fell asleep while she was Id. at 20:18-22. At some unspecified point, in a staff meeting, Dr. Dobson 24 remarked that he had to treat every employee like the worst 25 26 possible employee, or “somebody with the last name like ‘Perez’ 27 would sue him.” Rogers Decl. ¶ 4, Ex. 9 (Deposition of Karen 28 Thomas (Thomas Depo.)), at 20:12-19. 11 1 In or about October 2008, Dr. Rivera was asked to provide a 2 member for the newly created Chemistry Method Steering Group. 3 Rivera Aff., at 4. 4 Quality Assurance, told him that the member had to be a 5 supervisor. 6 Dr. Charles Pixley, Director of the Laboratory Id. at 4-5. Because there was no CBC at the time, Dr. Rivera asked that either Ms. Yee or Dr. Nedialkova, as the 7 Supervisory Chemists, serve on the committee; Dr. Nedialkova was 8 9 United States District Court For the Northern District of California 10 ultimately placed on the committee. Id. On January 3, 2009, Plaintiff filed a second employment 11 discrimination complaint alleging that she was subjected to 12 retaliation and age and national origin discrimination when she 13 was given the rating of “FULLY SUCCESSFUL” on her August 2008 14 performance review and when she was not selected to serve on the 15 Chemistry Method Steering Group. Rogers Decl., Ex. 4; 2AC ¶ 4; 16 Answer ¶ 4; Opp. at 10. 17 18 Dr. Dobson did not give Plaintiff any projects. Kim Depo., 19 Ex. 14, Resp. to Interrogatories, at 3. 20 Dobson took away all of Plaintiff’s projects, except the Melamine 21 project. 22 on January 29, 2009. 23 Id. On January 29, 2009, Dr. However, work on the Melamine project was stopped Kim Depo., at 108:17-22. Defendant does not dispute that Plaintiff subsequently 24 amended her second administrative complaint to allege that Dr. 25 26 Dobson’s reassignment of her projects to other employees in 27 January 2009 was also the result of retaliation and 28 discrimination. 11/17/2011 Hr’g Tr. 13:23-15:11. 12 1 On April 23, 2009, Dr. Dobson sent an email to a colleague 2 stating that he was looking for projects for Plaintiff to do, in 3 order to address her perception that she was “‘marginalized’ by 4 her position.” 5 that he was seeking projects suitable for a chemist who “doesn’t 6 Rogers Decl. ¶ 2, Ex. 1. Dr. Dobson also stated go into the lab because of ‘chemical sensitivity.’” Id. 7 In late 2009, the Western Laboratory was assigned the new 8 9 responsibility of hormone detection, a function that was United States District Court For the Northern District of California 10 previously performed by another laboratory. 11 This additional responsibility would require additional analysis 12 or “bench work” done in the laboratory. 13 additional responsibility, Dr. Dobson decided that he would 14 eliminate the Lead Chemist position and assign some of the Id. Dobson Decl. ¶ 8. To meet this 15 responsibilities of the role to the Supervisory Chemist position, 16 while changing Plaintiff to the role of Chemistry Analyst. Id. 17 18 On November 24, 2009, Dr. Dobson sent an email to a colleague 19 describing his plan to change Plaintiff’s job position. 20 Decl., Ex. 2. 21 results of a survey of employees that stated that Plaintiff 22 “apparently does nothing” and that he needs “to do a better job 23 managing her.” Rogers In the email, he stated that he had been given the Rogers Decl., Ex. 2. Attached to the email was a 24 diagram that showed that Dr. Dobson planned to re-assign Plaintiff 25 26 either to a solo project or to the laboratory and that he would 27 consider the situation resolved if Plaintiff were to perform well, 28 quit or be terminated. Id. The diagram also showed that, if 13 1 Plaintiff were to assert that she had a chemical sensitivity, he 2 planned to require her to see a doctor, pursuant to regulation, to 3 confirm the diagnosis or face progressive discipline, up to 4 termination. 5 chemical sensitivity, that would mean that she could not work in 6 Id. If a doctor were to confirm that she had a the laboratory, and she would be terminated as unfit for the 7 position. Id. 8 In December 2009, Dr. Dobson decided to reinstate the CBC 9 United States District Court For the Northern District of California 10 position and posted the position through a vacancy announcement. 11 Dobson Decl. ¶ 7. Plaintiff was not on the Promotion Certificate 12 for this vacancy. Id. 13 position on February 22, 2010. 14 Dr. Nedialkova was selected for the Id. On March 3, 2010, Dr. Dobson and Dr. Nedialkova told 15 Plaintiff that she would have to work on a hormone method and that 16 she would have to work in the laboratory the next week. Kim 17 18 Depo., at 161:23-162:11. On March 4, 2010, Dr. Dobson told Plaintiff that he was 19 20 changing her position from Lead Chemist to Chemistry Analyst. 21 at 165:21-24. 22 that she would have to vacate her office and move to a desk in the 23 Id. Dr. Dobson and Dr. Nedialkova also told Plaintiff “train,” an area attached to the lab where all of the chemists 24 sat. Id. at 166:1-8. They told her that she had to move there by 25 26 the end of the next day. Id. at 164:1-3. At that time, Plaintiff 27 did not state that she could not work in the laboratory or the 28 train due to chemical sensitivities. 14 Id at 166:14-16. Instead, 1 Plaintiff resigned her position that day. 2 160:24-161:1; Sladden Decl. ¶ 15, Ex. N. 3 Kim Depo., at On May 17, 2010, Plaintiff filed this action, alleging 4 violations of the ADEA and Title VII based on the claims 5 comprising the two administrative complaints described above.7 6 On July 6, 2010, Plaintiff filed another administrative 7 8 complaint, alleging that she was subjected to retaliation and discrimination based on her age, national origin, and race when 10 United States District Court For the Northern District of California 9 she was demoted from Lead Chemist to Chemist and constructively 11 discharged on March 4, 2010. 12 no dispute that Plaintiff exhausted her administrative remedies as 13 to each of her administrative complaints. 14 Sladden Decl. ¶ 13, Ex. L. There is On February 9, 2011, after being granted leave to amend, 15 Plaintiff filed a second amended complaint (2AC), containing three 16 17 claims: (1) unlawful discrimination based on age in violation of 18 the ADEA; (2) unlawful discrimination based on national origin in 19 violation of Title VII for conduct after March 26, 2007; and 20 (3) retaliation after March 26, 2007 in violation of the ADEA and 21 Title VII. 22 three counts. Defendant now moves for summary judgment as to all 23 24 25 26 27 28 7 Plaintiff also filed an administrative complaint on January 29, 2010 alleging that she had been discriminated against based on her age when she learned on January 27, 2010 that she would not be considered for the reinstated CBC position. Sladden Decl. ¶ 12, Ex. K. She withdrew this complaint on February 5, 2010, id., and she does not raise the claim in the instant case. 15 1 LEGAL STANDARD 2 Summary judgment is properly granted when no genuine and 3 disputed issues of material fact remain, and when, viewing the 4 evidence most favorably to the non-moving party, the movant is 5 clearly entitled to prevail as a matter of law. 6 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 7 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 8 9 United States District Court For the Northern District of California 10 1987). The moving party bears the burden of showing that there is no 11 material factual dispute. Therefore, the court must regard as 12 true the opposing party’s evidence, if supported by affidavits or 13 other evidentiary material. 14 815 F.2d at 1289. Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences 15 in favor of the party against whom summary judgment is sought. 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 17 18 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 19 F.2d 1551, 1558 (9th Cir. 1991). 20 Material facts which would preclude entry of summary judgment 21 are those which, under applicable substantive law, may affect the 22 outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 23 24 242, 248 (1986). 25 26 Where the moving party does not bear the burden of proof on 27 an issue at trial, the moving party may discharge its burden of 28 production by either of two methods: 16 4 The moving party may produce evidence negating an essential element of the nonmoving party’s case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 5 Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1 2 3 6 1099, 1106 (9th Cir. 2000). 7 If the moving party discharges its burden by showing an 8 9 absence of evidence to support an essential element of a claim or United States District Court For the Northern District of California 10 defense, it is not required to produce evidence showing the 11 absence of a material fact on such issues, or to support its 12 motion with evidence negating the non-moving party’s claim. 13 see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); 14 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Id.; If 15 the moving party shows an absence of evidence to support the non16 moving party’s case, the burden then shifts to the non-moving 17 18 party to produce “specific evidence, through affidavits or 19 admissible discovery material, to show that the dispute exists.” 20 Bhan, 929 F.2d at 1409. 21 22 23 If the moving party discharges its burden by negating an essential element of the non-moving party’s claim or defense, it must produce affirmative evidence of such negation. Nissan, 210 24 F.3d at 1105. If the moving party produces such evidence, the 25 26 27 burden then shifts to the non-moving party to produce specific evidence to show that a dispute of material fact exists. 28 17 Id. If the moving party does not meet its initial burden of 1 2 production by either method, the non-moving party is under no 3 obligation to offer any evidence in support of its opposition. 4 Id. 5 ultimate burden of persuasion at trial. This is true even though the non-moving party bears the 6 Id. at 1107. DISCUSSION 7 I. Plaintiff’s Discrimination Claims 8 In Count One of her 2AC, Plaintiff claims that Defendant’s 9 United States District Court For the Northern District of California 10 treatment of her before and after March 26, 2006 violated the 11 ADEA. 12 treatment of her after March 26, 2006 constituted prohibited 13 discrimination based on national origin under Title VII. 14 opposition, Plaintiff clarifies that she is claiming that the In Count Two of her 2AC, Plaintiff claims that Defendant’s In her 15 following adverse employment actions were discriminatory: “She was 16 denied permanent promotion and temporary designation to CBC, she 17 18 was given poor performance reviews, she was marginalized and 19 deprived of assignments, and she was constructively discharged.” 20 Opp. at 6. 21 discrete adverse acts collectively, the Ninth Circuit has 22 cautioned that district courts should consider a plaintiff’s 23 While Plaintiff urges the Court to consider the “claim of discrimination with regard to each of these employment 24 decisions separately, examining the specific rationale offered for 25 26 27 each decision and determining whether that explanation supported the inference of pretext.’” Odima v. Westin Tucson Hotel Co., 991 28 18 1 F.2d 595, 600 (9th Cir. 1993) (quoting Norris v. San Francisco, 2 900 F.2d 1326, 1330 (9th Cir. 1990)). 3 A. Legal Standard 4 Plaintiff pursues claims under the ADEA and Title VII using a 5 6 theory of disparate treatment. Therefore, she must provide evidence of intentional age or national origin discrimination by 7 Defendant. 8 In disparate treatment cases, plaintiffs can prove 9 United States District Court For the Northern District of California 10 intentional discrimination through direct or indirect evidence. 11 Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 12 2004). 13 persons involved in the decision-making process that may be viewed 14 as directly reflecting the alleged discriminatory attitude Direct evidence is “evidence of conduct or statements by 15 sufficient to permit the fact finder to infer that that attitude 16 was more likely than not a motivating factor in the employer's 17 18 decision.” 19 omitted). 20 discrimination, “very little such evidence is necessary to raise a 21 genuine issue of fact regarding an employer’s motive.” 22 Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985). 23 Id. (citation and internal quotation and editing marks When a plaintiff submits actual evidence of Lowe v. Even if an employer proffers a non-discriminatory reason for the action, direct 24 evidence of discrimination “necessarily” raises “a genuine issue 25 26 of material fact with respect to the legitimacy or bona fides of 27 the employer’s articulated reason for its employment decision.” 28 Id. 19 1 Because direct proof of intentional discrimination is rare, 2 such claims may also be proved circumstantially. 3 Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). 4 ADEA and Title VII claims based on circumstantial evidence are 5 analyzed through the burden-shifting framework set forth in 6 See Dominguez- McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). 7 See Shelley v. Geren, 2012 U.S. App. LEXIS 623, at *18-22 (9th 8 9 Cir. 2012) (finding McDonnell Douglas framework still applicable United States District Court For the Northern District of California 10 to motions for summary judgment on ADEA claims after the Supreme 11 Court’s decision in Gross v. FBL Financial Services, Inc., 557 12 U.S. 167 (2009)). 13 14 At the first step of the McDonnell Douglas analysis, Plaintiff must establish a prima facie inference of 15 discrimination. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 16 1201, 1207 (9th Cir. 2008). A prima facie showing includes proof 17 18 that 1) the plaintiff is a member of a protected class or, in the 19 age discrimination context, over forty years of age; 2) the 20 plaintiff is qualified for the position in question or is 21 performing her job satisfactorily; 3) the plaintiff suffered an 22 adverse employment action; and 4) the plaintiff was treated 23 differently than a similarly situated employee who did not belong 24 to the same protected class. Cornwell v. Electra Cent. Credit 25 26 Union, 439 F.3d 1018, 1028 (9th Cir. 2006); Coleman v. Quaker Oats 27 Co., 232 F.3d 1271, 1281 (9th Cir. 2000) (citing Nidds v. 28 Schindler Co., 113 F.3d 912, 917 (9th Cir. 1997)); Washington v. 20 1 Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993); Sischo-Nownejad v. 2 Merced Community College, 934 F.2d 1104, 1109-10 & n.7 (9th Cir. 3 1991). 4 final factor may be shown by demonstrating that “the position 5 remained open after his or her rejection and the employer 6 In the context of non-selection for a promotion, this continued to seek applications from other people with similar 7 qualifications to the plaintiff.” Warren v. City of Carlsbad, 58 8 9 F.3d 439, 441 (9th Cir. 1995). “[V]ery little evidence” must be United States District Court For the Northern District of California 10 produced to make the prima facie case. 11 at 1110-11. 12 Sischo-Nownejad, 934 F.2d Once a plaintiff has established a prima facie inference of 13 discrimination, he or she will generally have raised a genuine 14 issue of material fact regarding the legitimacy of the employer’s 15 articulated reason for her termination. Accordingly, a factual 16 question will almost always exist, and summary judgment will not 17 18 be appropriate. 19 However, in those cases where the prima facie case consists of no 20 more than the minimum necessary to create a presumption under 21 McDonnell Douglas, the plaintiff must produce some evidence of 22 pretext to overcome summary judgment if the employer articulates a 23 Id. at 1111; Washington, 10 F.3d at 1433. non-discriminatory reason for the adverse treatment. Wallis v. 24 J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). 25 26 When a plaintiff presents direct evidence that the proffered 27 explanation is a pretext for discrimination, “very little 28 evidence” is required to avoid summary judgment. 21 EEOC v. Boeing 1 Co., 577 F.3d 1044, 1049 (9th Cir. 2009). 2 plaintiff relies on circumstantial evidence, “‘that evidence must 3 be specific and substantial to defeat the employer's motion for 4 summary 5 LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)). 6 7 8 9 United States District Court For the Northern District of California 10 judgment.’” In contrast, when a Id. (quoting Coghlan v. Am. Seafoods Co. B. Age Discrimination in Plaintiff’s March 26, 2007 Administrative Complaint 1. Denial of Permanent CBC position To make her prima facie case, Plaintiff offers actual evidence of age discrimination in Dr. Esteban’s refusal to promote 11 her to the position of permanent CBC. Plaintiff testified that, 12 13 at the time Dr. Esteban first informed her that he was eliminating 14 the supervisory permanent CBC position, he told her that she was 15 not “energetic enough to be a supervisory chemist,” that he 16 “wanted to have young one,” and that she was “not aggressive 17 enough to be a supervisor.” 18 Thus, Plaintiff has introduced a statement by Dr. Esteban, the 19 Kim Depo., at 82:24-25, 85:18-86:7. relevant decision-maker, that raises a triable issue of fact as to 20 whether an age-discriminatory attitude motivated Dr. Esteban’s 21 22 decision to eliminate the permanent CBC position rather than 23 promote Plaintiff to fill it. 24 permanent CBC position open and that Dr. Esteban has previously 25 proffered various explanations for his denial of the promotion, 26 including budgetary reasons and his perception that Plaintiff 27 Defendant argues that there was no lacked adequate supervisory skills. 28 22 Nonetheless, Plaintiff has 1 presented evidence that raises a genuine question of material fact 2 as to whether the elimination of the position was based on 3 age-based animus and the proffered reasons were pretextual. 4 Dominguez-Curry, 424 F.3d at 1039 (“a single discriminatory 5 comment by a plaintiff's supervisor or decision maker is 6 See sufficient to preclude summary judgment for the employer”). 7 Defendant argues that Plaintiff’s claims for discrimination 8 9 based upon the denial of her applications for the permanent CBC United States District Court For the Northern District of California 10 position are time-barred. The evidence shows that Plaintiff was 11 first informed that she was not selected for the position on 12 October 24, 2005. 13 informed again on July 6 or 7, 2006 that she was not selected for 14 the position; at that time, she was also told that the vacancy Esteban Decl. at ¶ 6, Ex. D. Plaintiff was 15 announcement had been canceled. Id. at ¶ 7, Ex. E; Kim Depo., at 16 71:2-8; 72:24-73:4. On March 6, 2007, Dr. Esteban informed 17 18 Plaintiff that he was eliminating the permanent CBC position 19 altogether. 20 Plaintiff’s first contact with an EEO counselor was made on March 21 26, 2007 and that she filed her initial complaint on May 31, 2007. 22 Opp. at 2; Reply, at 3. 23 Kim Depo., at 82:15-17. The parties agree that Federal regulations require aggrieved federal employees to 24 contact an EEO counselor within forty-five days of the alleged 25 26 discriminatory action. 29 C.F.R. § 1614.105(a)(1). At the 27 hearing, Plaintiff’s counsel argued that Plaintiff did not learn 28 that she was being discriminated against until March 6, 2007 23 1 during her meeting with Dr. Esteban and that the relevant time 2 period did not start until then. 3 Plaintiff’s counsel cited Jones v. Dillard's, Inc., 331 F.3d 1259 4 (11th Cir. 2003), in which the Eleventh Circuit permitted 5 equitable tolling of an ADEA claim where the plaintiff did not 6 In support of this argument, have sufficient information to plead a claim based on 7 discrimination in termination until after the limitations period 8 9 United States District Court For the Northern District of California 10 had run. Id. at 1266. In Jones, the court found that, until the employer had hired 11 her replacement, the plaintiff had no information, other than 12 rumors and suspicion, to support that she was fired for any reason 13 other than the pretextual reason she was given, which in that case 14 was the financial status of the company. Id. at 1267-68. The 15 Jones court distinguished several other cases in the Eleventh 16 Circuit in which equitable tolling was not applied, where the 17 18 plaintiffs “had sufficient evidence of their age discrimination 19 claims to file an EEOC charge within the limitations period,” 20 because they learned of their younger replacements within that 21 time period. 22 stated, “The applicable limitations period did not begin to run 23 Id. at 1267. In so holding, the court in Jones until the facts supporting a cause of action became apparent or 24 should have became [sic] apparent to a reasonably prudent person 25 26 27 28 with concern for his or her rights.” Id. The Ninth Circuit has also held that equitable tolling applies to claims brought under the ADEA. 24 Forester v. Chertoff, 1 500 F.3d 920, 925 (9th Cir. 2007). 2 applied if, despite all due diligence, a plaintiff is unable to 3 obtain vital information bearing on the existence of his claim.” 4 Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000), 5 overruled in part on other grounds, 272 F.3d 1176, 1194 (9th Cir. 6 2000). “Equitable tolling may be “If a reasonable plaintiff would not have known of the 7 existence of a possible claim within the limitations period, then 8 9 equitable tolling will serve to extend to [sic] statute of United States District Court For the Northern District of California 10 limitations for filing suit until the plaintiff can gather what 11 information he needs.” 12 postpone the statute of limitations until the existence of a claim 13 is a virtual certainty.” 14 that equitable tolling does not apply if the plaintiff “knew or “However, equitable tolling does not Id. Id. Thus, the Ninth Circuit has held 15 reasonably should have known of the possible existence of a . . . 16 discrimination claim within the limitations period,” even if the 17 18 plaintiff has not “marshaled every conceivable item of proof he 19 might eventually be able to use at trial.” 20 Id. at 1179. Plaintiff has introduced evidence that, if credited, could 21 prove that, like in Jones, the facts necessary for Plaintiff 22 sufficiently to allege a cause of action based on discrimination 23 were not apparent until Dr. Esteban informed her that he was 24 eliminating the permanent CBC position, and told her that he 25 26 “wanted to have young one.” Defendant has not shown that a 27 reasonable plaintiff would have suspected prior to the March 6, 28 2007 meeting that Dr. Esteban’s stated reasons for denial of the 25 1 promotion were pretextual and that the decision was actually 2 motivated by age-based animus. 3 material fact as to whether Plaintiff’s claim of a discriminatory 4 promotion denial was equitably tolled until that date. 5 Plaintiff’s claim would not be time-barred, because Plaintiff 6 Thus, there is a dispute of If it was, contacted an EEO counselor less than forty-days after that 7 meeting. 8 9 Accordingly, Defendant’s motion is DENIED to the extent that United States District Court For the Northern District of California 10 it seeks summary judgment on Plaintiff’s claim for age 11 discrimination in a promotion denial. 12 13 14 2. Denial of Promotion to GS-14 Acting CBC Position Plaintiff also alleges that Defendant discriminated against her in denying her a temporary 120-day promotion to a GS-14 Acting 15 CBC position on March 6, 2007, though Plaintiff continued to serve 16 as Acting CBC at a GS-13 level through April 30, 2007. Because 17 18 Dr. Esteban denied her temporary promotion to GS-14 Acting CBC in 19 the same meeting in which Plaintiff says he made an overtly age 20 discriminatory statement, Plaintiff has raised a factual dispute 21 as to whether Defendant engaged in discrimination. 22 argues that “the denial was based upon her poor supervisory 23 skills.” Mot. at 17. Defendant However, Plaintiff’s proffered evidence 24 raises a factual dispute as to whether this reason was pretextual. 25 26 Defendant also argues that the CBC position was being eliminated 27 entirely. However, this does not explain the refusal to promote 28 her to the GS-14 position through April 30, 2007. 26 Further, as 1 already addressed above, Dr. Esteban’s statement raises a genuine 2 question of material fact as to whether the elimination of the 3 position was actually based on age-based animus. 4 Plaintiff has met her burden on summary judgment, and Defendant’s 5 motion is DENIED to the extent that it seeks summary judgment on 6 Accordingly, her claim for age discrimination in the denial of a temporary 7 promotion. 8 9 United States District Court For the Northern District of California 10 C. Age and National Origin Discrimination Claims in Plaintiff’s January 3, 2009 Administrative Complaint Defendant argues that Plaintiff should not be permitted to 11 raise claims based on age and national origin discrimination from 12 13 her January 3, 2009 administrative complaint. Defendant bases 14 this argument on the Court’s February 3, 2011 order granting 15 Plaintiff leave to file a second amended complaint to allege 16 claims based on the July 6, 2010 administrative complaint. 17 However, Defendant fails to recognize that Plaintiff had already 18 plead the discrimination claims arising from her January 3, 2009 19 administrative complaint in her First Amended Complaint (1AC), see 20 1AC ¶¶ 9-10, Docket No. 4, and thus these claims were not at issue 21 22 23 in the Court’s February 3, 2011 order. In Plaintiff’s January 3, 2009 administrative complaint, she 24 alleged that she was subjected to retaliation and discrimination 25 based on her age and national origin when she was given a rating 26 of “FULLY SUCCESSFUL” on her August 2008 performance review and 27 when she was not selected to serve on the Chemistry Method 28 27 1 Steering Group. 2 not disputed that this administrative complaint also contained an 3 allegation that Plaintiff was subjected to age and national origin 4 discrimination and retaliation when her supervisor gave her 5 projects to other employees in January 2009. 6 7 Rogers Decl., Ex. 4; 2AC ¶ 4; Answer ¶ 4. It is Opp. at 10. 1. Non-selection to the Chemistry Method Steering Group Defendant argues that Dr. Rivera’s non-selection of Plaintiff 8 for the Chemistry Method Steering Group was not an adverse 9 United States District Court For the Northern District of California 10 employment action. The Ninth Circuit defines “‘adverse employment 11 action’ broadly.” 12 Inc., 374 F.3d 840, 847 (9th Cir. 2004) (citing Ray v. Henderson, 13 217 F.3d 1234, 1241 (9th Cir. 2000); see also Brooks v. City of 14 San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (collecting cases). 15 Fonseca v. Sysco Food Services of Arizona, An adverse employment action is one that “materially affect[s] the 16 compensation, terms, conditions, or privileges of . . . 17 employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th 19 Cir. 2008). However, “[n]ot every employment decision amounts to 20 an adverse employment action.” 21 Defendant argues that Plaintiff’s non-selection for the committee 22 was not an adverse employment action, because it had no material 23 impact on her employment, title, grade, duties, promotional 18 24 opportunities or duties. Brooks, 229 F.3d at 928. Mot. at 9. Defendant further argues 25 that there was a non-discriminatory reason for the decision: that 26 27 28 the members of the group had to be CBCs or otherwise in supervisory roles. Id.; Rivera Aff., at 4-5. 28 Plaintiff does not 1 respond to either of these arguments. 2 evidence of discriminatory intent on Dr. Rivera’s part. 3 According, the Court GRANTS Defendant’s motion for summary 4 judgment as to Plaintiff’s discrimination claims arising from her 5 non-selection to the Chemistry Advisory Group. 6 7 Plaintiff also adduces no 2. August 2008 Performance Review Defendant argues that Plaintiff has failed to establish a 8 prima facie case of discrimination as to her final 2008 9 United States District Court For the Northern District of California 10 performance review, because she not identified any similarly 11 situated person outside of her protected class who was treated 12 more favorably than she was. 13 also argues that the evaluation was not an adverse action and did 14 not affect the material terms of her employment. 15 Mot. at 20. In his reply, Defendant Reply, at 10. However, “undeserved performance ratings, if proven, would 16 constitute ‘adverse employment decisions.’” Yartzoff v. Thomas, 17 18 809 F.2d 1371, 1376 (9th Cir. 1987). While she seeks to rebut 19 Defendant’s evidence that her work performance was flawed and thus 20 argue that the proffered non-discriminatory reasons are 21 pretextual, Response at 12, Plaintiff does not respond to the 22 contention that she has not established a prima facie case of 23 discrimination on this basis. 24 At the hearing, Plaintiff’s counsel conceded that she could not establish that similarly situated 25 people outside of her protected class had been treated more 26 27 favorably. According, the Court GRANTS Defendant’s motion for 28 29 1 summary judgment as to Plaintiff’s discrimination claims arising 2 from her 2008 performance review. 3. Reassignment of Projects in January 2009 3 4 Defendant argues that Plaintiff cannot establish a prima 5 facie case for discrimination based on Dr. Dobson’s reassignment 6 of all of her projects on January 29, 2009. 7 Defendant states that the projects at issue had not been assigned to her in the first 8 place. However, Plaintiff has submitted evidence that the 9 United States District Court For the Northern District of California 10 projects were initially assigned to her, and points out that Dr. 11 Dobson’s prior affidavit states that they had been assigned to 12 her. 13 There is no dispute that the projects were re-assigned to Dr. 14 Nedialkova and Ms. Yee. 15 Resp. to Interrogatories, at 4; Dobson Aff., at 83-84. Ex. D. Dobson Aff., at 84; Dobson Decl. ¶ 11, Further, Defendant acknowledges that Dr. Nedialkova is 16 approximately thirty-seven years younger than Plaintiff and Ms. 17 18 Yee is approximately twenty-three years younger than Plaintiff, 19 and that both are of “American” national origin. 20 produced evidence that her projects were re-assigned to colleagues 21 who were substantially younger and of a different national origin 22 than she. 23 national origin class, Korean, over forty years old and qualified 24 Plaintiff has Defendant has not challenged that she is of a protected to complete the projects. Plaintiff has established a prima facie 25 case that Dr. Dobson’s reassignment of her projects constituted 26 27 age and national origin discrimination. 28 30 1 Defendant states that there was a non-discriminatory reason 2 for Dr. Dobson’s re-assignment of Plaintiff’s projects: the need 3 for Plaintiff to focus her attention on the Melamine project, 4 which was the highest priority at the time. 5 Plaintiff has testified that work on the Melamine project was 6 stopped on January 29, 2009. Mot. at 9. However, Kim Depo., at 108:17-22; Mot. at 10. 7 Thus, Plaintiff has produced evidence rebutting the proffered 8 9 non-discriminatory reason “indirectly by showing that the United States District Court For the Northern District of California 10 employer's proffered explanation is unworthy of credence.” Tex. 11 Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 12 Accordingly, Defendant’s motion for summary judgment is DENIED as 13 to Plaintiff’s claims for national origin and age discrimination 14 arising from the January 2009 reassignment of all of her projects. 15 D. Plaintiff’s July 6, 2010 Administrative Complaint 16 In her July 6, 2010 administrative complaint, Plaintiff 17 18 alleged that she had been subjected to discrimination based on her 19 national origin and age when she was constructively discharged by 20 being demoted from Lead Chemist to Chemist and moved to the 21 laboratory space. 22 her opposition to this motion, Plaintiff argues that this was a 23 Sladden ¶ 13, Ex. L. In her complaint and in constructive termination because Dr. Dobson knew that she could 24 not work in the laboratory due to chemical sensitivity and so 25 26 27 28 deliberately took these actions to force her to quit. 3AC ¶ 17. A constructive discharge occurs when the “working conditions deteriorate, as a result of discrimination, to the point that they 31 1 become ‘sufficiently extraordinary and egregious to overcome the 2 normal motivation of a competent, diligent, and reasonable 3 employee to remain on the job to earn a livelihood and to serve 4 his or her employer.’” 5 930 (9th Cir. 2000) (quoting Turner v. Anheuser-Busch, Inc., 7 6 Brooks v. City of San Mateo, 229 F.3d 917, Cal. 4th 1238, 1246 (1994)). “The determination whether 7 conditions were so intolerable and discriminatory as to justify a 8 9 reasonable employee’s decision to resign is normally a factual United States District Court For the Northern District of California 10 question left to the trier of fact.” Watson v. Nationwide Ins. 11 Co., 823 F.2d 360, 361 (9th Cir. 1987). 12 In Defendant’s reply, he argues for the first time that 13 Plaintiff has failed to meet her burden to “link her constructive 14 discharge to her protected class or national origin.” Reply, at 15 14. While it is true that Plaintiff has the burden of persuasion 16 of this element, in his opening brief, Defendant did not produce 17 18 evidence negating it or argue that Plaintiff does not have enough 19 evidence of this element to carry her ultimate burden of 20 persuasion at trial. 21 not meet his initial burden of production by either method, 22 Plaintiff was under no obligation to offer any evidence in support 23 of her opposition. Because Defendant, as the moving party, did See Nissan, 210 F.3d at 1105. Further, to the 24 extent that Defendant raises an argument regarding causation for 25 26 the first time in his reply brief, it is waived. See Graves v. 27 Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (“arguments raised for 28 the first time in a reply brief are waived”). 32 1 While Defendant acknowledges that Plaintiff has testified 2 that she has a sensitivity to chemicals that causes her neck and 3 back pain, Mot. at 25, he argues that she has not established that 4 work conditions were so intolerable and egregious as to force her 5 to resign. 6 Mot. at 24. Defendant also contends that Plaintiff failed to protest her reassignment on the basis of her chemical 7 sensitivity and thus that she did not attempt to resolve the 8 9 United States District Court For the Northern District of California 10 11 problems related to her employment prior to quitting. Mot. at 25; Reply, at 14-15. However, Plaintiff has proffered evidence that could 12 establish that Dr. Dobson, knowing that she would find work 13 conditions in the laboratory intolerable, deliberately moved 14 Plaintiff to the laboratory with the intention of forcing her to 15 quit or creating a reason to terminate her. Plaintiff has 16 submitted an email, dated April 23, 2009, in which Dr. Dobson 17 18 acknowledges that Plaintiff has an alleged “chemical sensitivity.” 19 Rogers Decl. ¶ 20 2009, Dr. Dobson describes his plan to change Plaintiff’s job 21 position. 22 diagram that shows that Dr. Dobson planned to re-assign Plaintiff 23 Ex. 1. In another email, sent on November 24, Rogers Decl. ¶ Ex. 2. Attached to the email is a either to a solo project or to the laboratory. Id. The diagram 24 shows that if Plaintiff asserted that she had a chemical 25 26 sensitivity, as Dr. Dobson believed she would, he intended to 27 require her to see a doctor to confirm the diagnosis or face 28 progressive discipline, up to termination. 33 Id. If a doctor were 1 to confirm that she had a chemical sensitivity that meant that she 2 could not work in the laboratory, she would be terminated as unfit 3 for the position. 4 5 6 Id. Defendant cites no case that supports the proposition that an employer’s deliberate reassignment of an employee to work in a space that would trigger a known chemical sensitivity of the 7 employee could not constitute constructive discharge as a matter 8 9 of law. Further, while “[a]n employee who quits without giving United States District Court For the Northern District of California 10 his employer a reasonable chance to work out a problem has not 11 been constructively discharged,” 12 1174, 1185 (9th Cir. 2007) (quoting Tidwell v. Meyer’s Bakeries, 13 Inc., 93 F.3d 490, 494 (8th Cir. 1996)), Plaintiff has presented 14 evidence that could establish that Dr. Dobson deliberately created Poland v. Chertoff, 494 F.3d 15 the problem here in order to force Plaintiff to quit or give him a 16 reason to terminate her. Given that Dr. Dobson already had 17 18 knowledge of the problem, and in fact anticipated it, the fact 19 that Plaintiff did not raise it at the time of the reassignment 20 did not deprive him of a chance to “work out” the problem. 21 22 23 Accordingly, the Court DENIES Defendant’s motion for summary judgment on Plaintiff’s claims for age and national origin discrimination based on constructive discharge. 24 II. Plaintiff’s Retaliation Claims 25 26 In her opposition, Plaintiff clarifies that she claims that 27 certain acts alleged in her administrative complaints were 28 retaliatory: the August 2008 “FULLY SUCCESSFUL” performance 34 1 rating; her exclusion from membership in the Chemistry Method 2 Steering Group; “being stripped of her projects” on January 29, 3 2009; and the alleged constructive discharge on March 4, 2010. 4 Reply, at 10. 5 6 The burden-shifting framework outlined in McDonnell Douglas governs actions for retaliation under Title VII and the ADEA. Lam 7 v. University of Hawaii, 40 F.3d 1551, 1559 (9th Cir. 1994); Heyer 8 9 v. Governing Bd. of the Mt. Diablo Unified Sch. Dist., 2011 U.S. United States District Court For the Northern District of California 10 Dist. LEXIS 70124, at *4-5 n.3 (N.D. Cal.) (citing O'Day v. 11 McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 12 1996)). 13 employer require a plaintiff to demonstrate that: (1) he or she 14 engaged in protected activity; (2) he or she was subjected to The parties agree that claims of retaliation by an 15 adverse employment action; and (3) there is a causal link between 16 the plaintiff’s protected complaint and the adverse treatment. 17 18 Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir. 19 2004); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 20 1994); Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 21 1354 (9th Cir. 1984). 22 action is more broadly defined than in the discrimination context, 23 In the retaliation context, an adverse and encompasses those actions that “might have dissuaded a 24 reasonable worker from making or supporting a charge of 25 26 discrimination.” Burlington Northern & Santa Fe Ry. v. White, 548 27 U.S. 53, 68 (2006). Once a plaintiff has established a prima 28 facie case, the burden shifts to the employer to put forth a 35 1 legitimate non-discriminatory reason for the adverse employment 2 action. 3 relatively light burden, the plaintiff can still prevail if he or 4 she can demonstrate that the reason asserted is simply a pretext. 5 Id. at 889. 6 Wallis, 26 F.3d at 889. If an employer meets this Defendant argues that Plaintiff should not be permitted to 7 raise retaliation claims from her January 3, 2009 administrative 8 9 complaint. Defendant again bases this argument on the Court’s United States District Court For the Northern District of California 10 February 3, 2011 order in which the Court granted Plaintiff leave 11 to file a second amended complaint in order to allege claims based 12 on the July 6, 2010 administrative complaint. 13 previously stated, Defendant fails to recognize that Plaintiff had 14 already plead the retaliation claims arising from her January 3, However, as 15 2009 administrative complaint in her First Amended Complaint 16 (FAC), see FAC ¶¶ 9-10, Docket No. 4, and thus these claims were 17 18 19 20 not at issue in the Court’s February 3, 2011 order. A. Non-selection to the Chemistry Method Steering Group Defendant argues that Plaintiff has not established a prima 21 facie case for retaliation based on non-selection for the 22 Chemistry Method Steering Group. 23 Plaintiff bases her argument for a causal link between her protected complaint and non-selection on 24 the temporal relationship between the two. However, as Plaintiff 25 26 herself points out, the “exclusion from the Steering Committee on 27 October 1, 2008, was over two years after Dr. Kim’s first 28 complaint of discrimination,” Opp. at 10, and several months 36 1 before her second complaint. 2 first complaint and the alleged adverse action, an inference of 3 causation cannot be made. 4 532 U.S. 268, 273 (2001) (per curiam) (noting that a court may not 5 infer causation from temporal proximity unless the time between an 6 Given the time period separating the See Clark County Sch. Dist. v. Breeden, employer’s knowledge of protected activity and an adverse 7 employment action is “very close” and citing cases for the 8 9 proposition that a three-month and four-month time lapse is United States District Court For the Northern District of California 10 insufficient to infer causation). Plaintiff also does not point 11 to any evidence that Dr. Rivera, who made the selection, knew of 12 her EEO complaint prior to making the selection. 13 previously discussed, Defendant has proffered a legitimate non- 14 retaliatory reason, that the committee members had to be CBCs or Further, as 15 other individuals in supervisory positions, which Plaintiff has 16 not demonstrated is a pretext. 17 18 Accordingly, the Court GRANTS Defendant summary judgment as 19 to Plaintiff’s retaliation claim based on non-selection to the 20 Chemistry Method Steering Group. 21 22 23 B. 2008 Performance Appraisal Defendant also argues that Plaintiff has not established a prima facie case for retaliation based on her 2008 performance 24 appraisal, because she cannot establish causation between her 25 26 protected complaint and the adverse action. To establish 27 causation, Plaintiff relies on time proximity. 28 Dr. Esteban, who signed the 2008 performance appraisal, knew of 37 She admits that 1 her prior EEO complaint by at least April 27, 2007, more than a 2 year before he signed the performance review, which again is too 3 attenuated to give rise to an inference of causation. 4 Accordingly, the Court GRANTS Defendant summary judgment as to 5 Plaintiff’s claim for retaliation based on her 2008 performance 6 Opp. at 10. review. 7 C. Reassignment of Projects in January 2009 8 Defendant does not argue that Plaintiff has not established a 9 United States District Court For the Northern District of California 10 prima facie case for retaliation based on the January 2009 11 reassignment of her projects, which took place less than a month 12 after Plaintiff filed her second administrative complaint. 13 Instead, Defendant proffers a non-retaliatory reason for the 14 action. 15 The Court has already found that there is a disputed issue of material fact as to the credibility of Defendant’s 16 proffered non-retaliatory reason. Accordingly, the Court DENIES 17 18 Defendant’s motion for summary judgment as to Plaintiff’s claim 19 for retaliation based on the January 2009 reassignment of her 20 projects. 21 D. Constructive Discharge in March 2010 22 Defendant argues that Plaintiff cannot establish a prima 23 facie case for retaliation when she was constructively discharged 24 by her reassignment to Chemistry Analyst on March 4, 2010, because 25 the length of time between the date the relevant EEO complaint was 26 27 28 filed--January 3, 2009--and the adverse action was over a year, which cannot give rise to an inference of causation. 38 Mot. at 21. 1 Plaintiff’s only response is to assert that Dr. Dobson began “his 2 plan to marginalize and fire Dr. Kim on April 23, 2009” and cites 3 Dr. Dobson’s April 23, 2009 email. 4 email does not contain a plan to marginalize and fire Plaintiff, 5 as she purports. 6 Opp. at 10. However, that Instead, Dr. Dobson seeks to find projects that would be suitable for Plaintiff, in an effort to address her 7 feeling that she was marginalized in her current position. Rogers 8 9 Decl. ¶ 2, Ex. 1. Accordingly, the Court GRANTS Defendant summary United States District Court For the Northern District of California 10 judgment as to Plaintiff’s claim of retaliation arising from 11 constructive discharge based on her reassignment to Chemistry 12 Analyst on March 4, 2010. 13 14 CONCLUSION For the reasons set forth above, the Court GRANTS Defendant’s 15 motion for summary judgment in part and DENIES it in part (Docket 16 No. 58). Defendant’s motion for summary judgment is denied as to 17 18 19 the following claims: 1. Age discrimination in violation of the ADEA (Count One of the 20 2AC), based on: (1) denial of the permanent CBC position; 21 (2) denial of the temporary promotion to the GS-15 Acting CBC 22 position; (3) reassignment of all of Plaintiff’s projects in 23 January 2009; and (4) constructive discharge. 24 2. National origin discrimination in violation of Title VII (Count 25 Two of the 2AC), based on: (1) reassignment of all of 26 Plaintiff’s projects in January 2009, and (2) constructive 27 discharge. 28 39 1 3. Retaliation in violation of the ADEA and Title VII (Count Three 2 of the 2AC), based on reassignment of all of Plaintiff’s 3 projects in January 2009. 4 IT IS SO ORDERED. 5 6 7 Dated: 2/3/2012 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40

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