Sanders v. LaHood
Filing
60
ORDER re 52 MOTION for Summary Judgment filed by Raymond LaHood. Signed by Judge Edward J. Davila on 9/10/2013. (ejdlc3, COURT STAFF) (Filed on 9/10/2013)
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UNITED STATES DISTRICT COURT
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United States District Court
For the Northern District of California
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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BOBBY SANDERS,
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Plaintiff,
v.
RAYMOND LAHOOD, SECRETARY,
UNITED STATES DEPARTMENT OF
TRANSPORTATION,
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Defendant.
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
[Re: Docket Item No. 52]
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In this employment-related action brought by Plaintiff Bobby Sanders (“Plaintiff” or
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“Sanders”), presently before the court is Defendant Raymond LaHood’s (“Defendant” or
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“LaHood”) Motion for Summary Judgment. See Docket Item No. 52. Having fully reviewed the
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parties’ papers and after hearing oral arguments, the Court will grant Defendant’s motion in its
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entirety.
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I. BACKGROUND
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Plaintiff is an African-American male at least forty years of age during the relevant time
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period. On or around January 12, 2003, Defendant, through the Federal Aviation Administration
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(“FAA”), began to employ Plaintiff as an Air Traffic Control Specialist in the Oakland Air Route
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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Traffic Control Center (“Oakland Center”), which is an En Route facility where controllers manage
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aircrafts traveling at high altitudes. See Compl. ¶ 11, Docket Item No. 1; Atkinson Decl. ¶ 4,
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Docket Item No. 52-10. On or about October 2004, Randy Park (“Park”) became the Air Traffic
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Manager at Oakland Center and Michael Muhl (“Muhl”) became the Assistant Air Traffic
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Manager. Compl. ¶ 12.
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Plaintiff, a retired Air Traffic Controller, was hired as an Air Traffic Control Specialist
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developmental (“trainee”) under the Employment of Retired Military Controllers Program, which
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authorized time-limited appointments. Compl. ¶ 11. To become a Certified Professional
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Controller, Plaintiff was required to undergo extensive training, consisting of four stages. Id. ¶ 13;
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For the Northern District of California
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see also Cormier Decl. Ex. 10, Docket Item No. 54. Plaintiff was placed in the domestic track
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training program. See Sanders Dep. 82:20-24, Docket Item No. 53.
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Plaintiff asserts that throughout his training he was inadequately trained and treated
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differently than other trainees. Compl. ¶ 13. As a result of inadequate training and differential
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treatment, in or around November 2004, Plaintiff filed a discrimination complaint with the FAA’s
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Equal Employment Opportunity (“EEO”) office. Id. On or about February 17, 2005, Plaintiff and
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the FAA reached a settlement agreement, which the FAA later revoked, and Plaintiff was removed
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from his position on or about May 6, 2005. Id. ¶ 15. On or about May 9, 2005, Plaintiff contacted
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the EEO regarding his discrimination complaint. Id. ¶ 16. In or about August 2005, Plaintiff and
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the FAA entered into a written agreement, whereby the FAA agreed to return Plaintiff to his
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position and expunge his prior negative training record and Plaintiff agreed to withdraw his EEO
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claims with prejudice. Id. ¶ 17; Sanders Dep. 78:4-79:2, 238:6-19; Cormier Decl. Ex. 5.
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Plaintiff returned to Oakland Center as a controller on or about August 22, 2005, in the
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oceanic track, rather than re-entering the domestic track. Compl. ¶ 17; Sanders Dep. 79:3-18.
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Plaintiff asserts that he was subject to race, sex, and age discrimination, as well as reprisal action.
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Compl. ¶ 19. In January 2006, Plaintiff began Oceanic Manual Classroom Training with instructor
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Bejie Aweau (“Aweau”). Plaintiff asserts that Aweau incorrectly trained Plaintiff, made statements
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that trainees were being “watched,” asked Plaintiff in front of other trainees if he was “picking this
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stuff up,” and said to him, “they told me to be careful of what I say around you because you write
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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everything down, and what I said might come back and bite me in the ass when you wash out of
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the program.” Id. ¶¶ 22-23. Plaintiff further asserts that he was not given the same training and
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instructional opportunities as other trainees, who were not African-American, and that he was
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unjustly given failing scores in some of his evaluations. Id. ¶¶ 24-26, 29, 35-36. Additionally,
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Plaintiff asserts that during the Stage III / Data-Side Training, which he began on or about October
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9, 2007, he was treated less favorably than a fellow female trainee who was younger than Plaintiff
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and not African-American. Id. ¶ 30. Plaintiff asserts that he was asked to perform additional
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requirements and evaluated unjustly as compared with other trainees. Id. ¶¶ 31-32.
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On or about December 3, 2007, Plaintiff failed a simulation-phase evaluation, was assigned
United States District Court
For the Northern District of California
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skill enhancement training, and was required to take a second evaluation on December 7, 2007,
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which he failed. See Kroger Decl. ¶¶ 5-9, Docket Item No. 52-6. Plaintiff asserts that he should
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not have failed the evaluation.
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On or about December 11, 2007, Valerie Koger (“Koger”), Oakland Center Training
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Manager, suspended Plaintiff’s training and initiated a review of Plaintiff’s training history.
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Compl. ¶ 37. Koger prepared a final document reviewing Plaintiff’s training in which she
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recommended upholding his training suspension and referring him to a lower-level facility. Koger
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Decl. Ex. F, Docket Item No. 52-7.
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On January 9, 2008, Muhl wrote a letter to Plaintiff on behalf of Park, notifying Plaintiff
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that his five-year term was ending. See Park Decl. ¶ 7 and Ex. C, Docket Item No. 52-11. In
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response, Plaintiff replied with a letter to Muhl on January 10, 2008 requesting an extension of his
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appointment and transfer to a lower-level facility. Compl. ¶ 40; Cormier Dec. Ex. 19 and B.
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Although Plaintiff had made prior verbal requests to extend his five-year appointment, this was the
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first formal written request. Muhl forwarded the letter to the Employee / Labor Relations Office,
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since he did not have the authority to extend temporary appointments. See Muhl Interrog. 4,
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Docket Item No. 52-4. Nadine Grundy, manager at the Hayward Air Control tower, spoke with
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Andy Richards (“Richards”), District Manager for Terminal Operations, requesting that he
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consider transferring Plaintiff to Hayward Airport. See Richards Decl. Ex. A ¶ 2, Docket Item No.
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52-12. Richards contacted Muhl regarding the proposed transfer. Compl. ¶ 42. Richards was
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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notified that Plaintiff’s employment was expiring and relayed to Grundy that it was too late to
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complete the proposed transfer and extension, which Defendant asserts generally takes several
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weeks to process. Atkinson Decl. ¶¶ 8-11. FAA Human Resources has no record of receiving the
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specific forms requesting an extension or transfer. Id. Plaintiff’s employment ended on January
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12, 2008.
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On September 2, 2011, Plaintiff filed his Complaint, which alleged four causes of action
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against Defendant. Three of the claims assert violations of Title VII of the Civil Rights Act of
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1964, U.S.C. § 2000(e) et seq.: discrimination based on race and gender, disparate treatment, and
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retaliation. One claim is based on the Age Discrimination in Employment Act: age discrimination
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For the Northern District of California
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and disparate treatment.
On June 26, 2013, Defendant filed this Motion for Summary Judgment, which is presently
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before the Court. See Docket Item No. 52. The Court heard oral arguments on this motion on
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August 23, 2013. See Minute Entry, Docket Item No. 58.
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II. LEGAL STANDARD
A motion for summary judgment should be granted if “there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
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Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the
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initial burden of informing the court of the basis for the motion and identifying the portions of the
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pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the
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absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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If the moving party meets this initial burden, the burden then shifts to the non-moving party
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to go beyond the pleadings and designate specific materials in the record to show that there is a
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genuinely disputed fact. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The court must regard as
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true the opposing party’s evidence, if supported by affidavits or other evidentiary material.
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Celotex, 477 U.S. at 324. The court must draw all reasonable inferences in favor of the party
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against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558
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(9th Cir. 1991). However, the mere suggestion that facts are in controversy, as well as conclusory
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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or speculative testimony in affidavits and moving papers, is not sufficient to defeat summary
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judgment. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the
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non-moving party must come forward with admissible evidence to satisfy the burden. Fed. R. Civ.
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P. 56(c); see also Hal Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.
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1990).
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A genuine issue for trial exists if the non-moving party presents evidence from which a
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reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the
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material issue in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);
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Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991). Conversely, summary judgment must
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For the Northern District of California
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be granted where a party “fails to make a showing sufficient to establish the existence of an
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element essential to that party’s case, on which that party will bear the burden of proof at trial.”
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Celotex, 477 U.S. at 322.
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III. DISCUSSION
Plaintiff’s claims are grounded in theories of gender-, age-, and race-based discrimination
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and disparate treatment, as well as retaliation. Defendant moves for summary judgment of
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Plaintiff’s claims on the grounds that Plaintiff (1) offered no or insufficient evidence to support his
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claims and (2) Plaintiff’s claims are time-barred.
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Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
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“discriminate against any individual . . . because of such individual’s race, color, religion, sex, or
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national origin.” 42 U.S.C. § 2000e-2. The Age Discrimination in Employment Act of 1967
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(“ADEA”) prohibits an employer from discriminating against an employee because of the
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employee’s age. 29 U.S.C. § 623(a). To establish a prima facie case for discrimination, a plaintiff
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must offer evidence that “give[s] rise to an inference of unlawful discrimination,” either using
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“direct circumstantial evidence of discriminatory intent,” Vasquez v. County of Los Angeles, 349
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F.3d 634, 640 (9th Cir. 2003), or by using the McDonnell Douglas burden-shifting framework
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showing that “(1) he is a member of a protected class, (2) he was qualified for his position, (3) he
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experienced an adverse employment action, and (4) similarly situated individuals outside of his
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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protected class were treated more favorably.” Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603
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(9th Cir. 2004); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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After reviewing the evidence, the Court finds that Plaintiff has failed to meet his burden of
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showing race-, age-, or gender-based discrimination or disparate treatment sufficient to withstand a
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motion for summary judgment. As such, summary judgment with regard to these types of
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claims—the First, Second, and Third Causes of Action of the Complaint—will be granted.
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To establish a prima facie case for the remaining claim—unlawful retaliation for engaging
in protected activity—a plaintiff must show “(1) involvement in a protected activity, (2) an adverse
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employment action and (3) a causal link between the two.” Brooks v. City of San Mateo, 229 F.3d
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For the Northern District of California
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917, 928 (9th Cir. 2000). If a plaintiff meets this burden, the defendant must put forth a legitimate,
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non-discriminatory reason for the adverse employment action; if that is accomplished, the plaintiff
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must then show that the stated reason is pretext. Id.; see also Crown v. Wal–Mart Stores, Inc., 8
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Fed. App’x 776, 778 (9th Cir. 2001) (holding that a plaintiff to a retaliation complaint has the
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burden of proving—in addition to the engagement in protected activity and the causal link between
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that activity and the retaliatory conduct—that the employer’s explanation for the action was a
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pretext for the illegal consequence).
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An employee-plaintiff seeking to avoid the granting of summary judgment, as Plaintiff is in
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this case, cannot rely on the prima facie showing alone; rather he or she must “must adduce
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substantial additional evidence from which a trier of fact could infer the articulated reasons for the
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adverse employment action were untrue or pretextual.” Loggins v. Kaiser Permanente Int’l, 151
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Cal. App. 4th 1102, 1113 (2007); Barefield v. Bd. of Trustees of Cal. State Univ., Bakersfield, 500
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F. Supp. 2d 1244, 1272 (E.D. Cal. 2007) (“[T]o survive summary judgment, Plaintiff must provide
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sufficient facts that the alleged adverse actions materially affect the conditions of her employment,
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including performance or opportunity for advancement.”); Yanowitz v. L’Oreal USA, Inc., 36 Cal.
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4th 1028, 1046 (2005). In a summary judgment motion, the non-moving party may not rest upon
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mere allegations or denials of the moving party’s evidence, but instead must point to admissible
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evidence that shows there is a genuine issue of material fact for trial. Nissan Fire & Marine Ins.
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Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000); Nelson v. Pima Cmty. College
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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Dist., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a
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factual dispute for the purposes of summary judgment.”); Arpin v. Santa Clara Valley Transp.
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Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“[The plaintiff’s] conclusory allegations unsupported
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by factual data are insufficient to defeat [the defendant’s] summary judgment motion.”).
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Plaintiff contends that the facts demonstrate a prima facie case of unlawful retaliation. He
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asserts that his employment was terminated as a direct result of prior EEO complaints, which
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constituted a protected activity. Plaintiff further asserts that Defendant’s refusal to extend his
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appointment and transfer him to a lower-level facility amounts to an adverse employment action
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and that a causal link exists between the two. Furthermore, Plaintiff argues that Defendant’s given
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For the Northern District of California
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reason for not extending his appointment is pretext for the retaliatory action.
In response, Defendant articulates legitimate non-discriminatory reasons for the termination
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of Plaintiff’s employment, unrelated to Plaintiff’s EEO complaints. Defendant asserts that
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Plaintiff’s employment was not terminated; rather the 5-year term for which he was originally hired
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was always set to expire on January 12, 2008 and Plaintiff was aware of that fact when he was
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hired. The letter from Muhl to Plaintiff written on January 9, 2008 was simply a reminder of this.
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Defendant notes that Plaintiff’s employment was not extended because he had not completed his
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training; his training was suspended in December 2008 because he had failed his simulation-phase
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evaluation twice, even after being given remedial training. Even had he passed his evaluation,
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Plaintiff would still not have been fully certified as he had not yet passed Stage IV training.
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Furthermore, Defendant notes that Plaintiff was not transferred to a lower-level facility because
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there was not enough time to effectuate such a transfer between the date a written request for
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transfer was received––January 10, 2008—and the date his employment was due to expire, which
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was two days later. Defendant contends that it takes at least more than two days, if not several
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weeks to effectuate a transfer.
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The Court agrees with Defendant that Plaintiff has not met his burden to establish a prima
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facie case. Plaintiff has not presented sufficient evidence to show that the termination of his
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employment was as a result of his EEO complaints. Plaintiff does not provide statements or
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conversations among the terminating parties that refer to his termination in the same context as his
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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complaints, let alone that those complaints were the reason for his termination. The evidence that
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Plaintiff presents — the statement made by Aweau, the fact that two evaluators were present at his
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evaluation, and his opinion that he was incorrectly failed in his evaluation — simply do not add up
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to establish a connection between his EEO complaints and the ending of his five-year appointment
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in January 2008. In sum, Plaintiff has failed to present sufficient evidence to satisfy the causal link
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requirement.
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In cases where summary judgment was denied, the plaintiff was able to point to specific
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direct and circumstantial evidence that suggested or showed that the adverse employment action
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was motivated by the plaintiff’s engaging in a protected activity like complaining of discrimination
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For the Northern District of California
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or harassment. For example, in Walker v. Brand Energy Services, LLC, a plaintiff presented
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evidence showing that he received an angry reaction from his supervisor after complaining about
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racial discrimination. 726 F. Supp. 2d 1091, 1102 (E.D. Cal. 2010). The plaintiff in that case was
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also able to present testimonial evidence from a co-worker that the plaintiff’s supervisor said he
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was going to terminate the plaintiff because the plaintiff had complained about the supervisor’s
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harassing conduct. Id. at 1098. In Reeves v. Safeway Stores, Inc., the court reversed the granting
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of summary judgment because there remained a triable issue of fact as to the reasoning behind the
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plaintiff’s termination. 121 Cal. App. 4th. 96 (2004). In that case, the plaintiff presented
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affirmative evidence that the cause-in-fact of his termination was his complaining about sexual
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harassment in the workplace. Id.
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In this case, Plaintiff has presented no similar direct or circumstantial evidence pointing to a
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link between the protected activity and the decision not to extend his appointment or transfer him.
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Accordingly, Plaintiff has failed to satisfy his burden. Summary judgment with regard to
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Plaintiff’s claim of retaliation will therefore be granted.
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IV. CONCLUSION AND ORDER
For the aforementioned reasons Defendant’s Motion for Summary Judgment is GRANTED
in its entirety.
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Case No.: 5:11-CV-04391-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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