Gonzalez v. LaHood
Filing
56
ORDER granting 31 Defendant's Motion for Summary Judgment and directing Entry of Judgment. Signed by Judge M. James Lorenz on 9/30/2011. (mtb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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RAY LaHOOD, Secretary, Department of )
Transportation,
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Defendant.
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OSCAR M. GONZALEZ,
Civil No. 09cv400-L(WVG)
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [doc.
#31]and DIRECTING ENTRY OF
JUDGMENT
In this Title VII action, plaintiff Oscar Gonzalez alleges that he was discriminated
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against on the basis of his race and he suffered retaliation as a result of his protected activity.
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Defendant moves for summary judgment. The motion has been fully briefed and for the
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reasons set forth below, the motion will be granted.
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A.
Factual Background
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From April 2002 until October 2006, plaintiff Gonzalez worked at the Department of
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Transportation, Federal Motor Carrier Safety Administration at the Otay Mesa field office.
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Gonzalez was trained for an auditor position, a position at which he performed well. In June
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2005, after attending training, Gonzalez became a safety investigator (“SI”). During the
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academy, the portion of the training concerning how to do an enforcement case was missing
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but plaintiff had been doing investigator work from 2002.
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Barbara Griggs was the acting supervisor of the SIs from February until May 2006. In
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February and March 2006, Griggs noted inaccuracies with plaintiff’s compliance reviews
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(“CR”) that resulted in cancellation of enforcement actions. Because of plaintiff’s errors,
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Griggs placed plaintiff on a 10-week informal training schedule that included assigning
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plaintiff to work directly and individually with SIs having more experience, Lynda Holst and
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Don Tomlinson. Plaintiff was expected to be able to complete a CR on his own at the end of
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the ten weeks.
During plaintiff’s informal training in May 2006, Holst became the supervisor of the SI
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and Griggs no longer was the acting supervisor. At the end of the training session, neither
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Griggs, Tomlinson nor Holst assessed plaintiff as being able to complete a CR independently.
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As a result of the informal training assessment, plaintiff was placed on a performance
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improvement plan (“PIP”), the notice of which cites to four specific occurrences involving
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CRs or enforcement cases or both for four different carriers as reasons for placing plaintiff on a
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PIP. The PIP notice stated that plaintiff was failing to meet the critical job duties of conduting
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CRs and subsequent enforcement cases. It also described several deficiencies Tomlinson or
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Holst observed between between April 17 and June 23, 2006.
The relevant performance expectations Gonzalez would be required to meet were set
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forth in the PIP. Those expectation included: conducting CRs, preparing an enforcement
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action, and providing technical assistance and outreach. When plaintiff was put on the PIP, he
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was denied a within-grade increase in his pay. The PIP commenced on July 5, 2006 and ended
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in mid-September 2006.
At the conclusion of the PIP, Holst recommended that plaintiff be removed from his
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position because he (1) could not independently conduct a CR without making numerous
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errors; (2) could not accurately prepare an enforcement case and was unable to use the
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agency’s tools available to him; and (3) could not accurately answer carriers’ questions. (Exh.
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N, Notice of Proposal to Remove.) Each area of concern was supported by several examples.
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Terry Wolf, the Division Administrator and the deciding official, followed Holst’s
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recommendations and terminated plaintiff’s employment effective February 18, 2007. (Exh.. P)
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B.
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Rule 56 of Federal Rules of Civil Procedure empowers the court to enter summary
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judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and
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inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327
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(1986). Summary judgment is appropriate if the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
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genuine issue as to any material fact and that the moving party is entitled to a judgment as a
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matter of law. FED. R. CIV. P. 56(c).
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Legal Standard for Summary Judgment
The moving party’s burden on summary judgment depends on whether it bears the
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burden of proof at trial with respect to the claim or defense at issue. “When the party moving
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for summary judgment would bear the burden of proof at trial, it must come forward with
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evidence which would entitle it to a directed verdict if the evidence went uncontroverted at
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trial. In such a case, the moving party has the initial burden of establishing the absence of a
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genuine issue of fact on each issue material to its case.” See C.A.R. Transp. Brokerage Co.,
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Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). If the
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moving party does not bear the burden at trial, it can meet its burden on summary judgment by
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pointing out the absence of evidence with respect to any one element of the claim or defense.
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See Celotex, 477 U.S. at 325.
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If the movant meets its burden on summary judgment, the burden shifts to the
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nonmovant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324.
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In this regard, the nonmovant must “go beyond the pleadings” and rely on “evidentiary
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materials” such as his “own affidavits, or . . . the depositions, answers to interrogatories, and
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admissions on file” to designate specific facts in opposition to the summary judgment motion.
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Celotex, 477 U.S. at 324 (internal quotation marks omitted). These evidentiary materials must
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show that genuine factual issues remain which “can be resolved only by a finder of fact
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because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 250 (1986). If the moving party meets its burden, the party opposing
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summary judgment “may not rely merely on allegations or denials of its own pleading; rather,
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its response must ... set out specific facts showing a genuine issue for trial.” FED. R. CIV. P.
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56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). All
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inferences drawn from the evidence must be viewed in the light most favorable to the
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non-moving party, Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456
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(1992), but inferences must be based on evidence which, if believed, would be sufficient to
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support a judgment for the nonmoving party. Celotex, 477 U.S. at 322. Moreover, inferences
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cannot be created by pointing to “some metaphysical doubt as to the material facts.”
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Matsushita, 475 U.S. at 586 (citations omitted). Instead, deference to the nonmoving party has
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limits: (1) a plaintiff cannot rest on allegations in his pleadings to overcome a motion for
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summary judgment, Brinson, 53 F.3d at 1049; and (2) self-serving affidavits do not establish a
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genuine issue of material fact if they fail to state facts based on personal knowledge or are too
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conclusory. Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).
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Determinations regarding credibility, the weighing of evidence, and the drawing of
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legitimate inferences are jury functions, and are not appropriate for resolution by the court on a
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summary judgment motion. Id.
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C.
Discrimination Claim
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In count one of the complaint, plaintiff alleges a discrimination claim based on his
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status as a naturalized American citizen with Mexican heritage. (Comp. ¶32.) Defendant
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argues, however, that plaintiff cannot pursue this claim because he failed to exhaust his
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administrative remedies. Although plaintiff filed an opposition to defendant’s motion,
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Gonzalez has not addressed in any manner his discrimination claim in his response. It appears
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plaintiff has abandoned his discrimination claim; therefore, the Court will not consider this
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claim further.
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D.
Retaliation Claim
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Also n his complaint, plaintiff alleges retaliation with respect to his placement on the
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PIP and his discharge. Defendant argues, however, that the only proper and timely claim is for
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a Title VII retaliatory discharge. In his opposition, plaintiff appears to have abandoned his
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claim as to retaliation in connection with the PIP. Accordingly, the Court will consider the
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retaliation claim as limited to plaintiff’s employment termination which is based upon
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plaintiff’s assistance to another former employee, Carmen Cook, with her EEOC claim and for
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filing his own EEOC claim.
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Legal Standard for Title VII Retaliation
Title VII makes it an unlawful employment practice for an employer to discriminate
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against an individual because he has opposed any employment practice made unlawful by Title
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VII, or because he has made a charge, testified, assisted, or participated in any manner in an
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investigation under Title VII. 42 U.S.C. § 2000e-3(a). The burden-shifting format established
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in McDonnell–Douglas Corp. v. Green, 411 U.S. 792 (1973) is applicable to claims of
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retaliation under Title VII. See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1103 (9th
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Cir. 2008).
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Under McDonnell Douglas, a plaintiff must first prove a prima facie case of retaliation:
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plaintiff must establish he engaged in a protected activity, his employer subjected him to an
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adverse employment action, and a causal link exists between the protected activity and the
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adverse action. Metoyer v. Chassman, 504 F.3d 919,931 (9th Cir. 2007). The Ninth Circuit has
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repeatedly emphasized that a plaintiff's burden in establishing a prima facie case of
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discrimination is “minimal.” Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1094
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(9th Cir. 2005).
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If the plaintiff makes a prima facie case of retaliation, the burden then “shifts to the
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defendant to articulate a legitimate, nondiscriminatory reason for its allegedly [retaliatory]
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conduct.” Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). Finally, at the
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third step of McDonnell Douglas, if the employer articulates a legitimate reason for its action,
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the plaintiff must then raise a triable issue of material fact as to whether the defendant's
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proffered reasons for its actions are a mere pretext for unlawful retaliation. Manatt v. Bank of
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America, 339 F.3d 792, 800–01 (2003).
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As an alternative to the McDonnell Douglas framework, a plaintiff responding to a
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summary judgment motion “may simply produce direct or circumstantial evidence
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demonstrating that a discriminatory [or retaliatory] reason more likely than not motivated [the
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employer].” McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (citation
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omitted).
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The plaintiff may defeat summary judgment only by satisfying the usual standard
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required under Federal Rule of Civil Procedure 56(e). See Surrell, 518 F.3d at 1106. He may
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do this by producing either direct evidence of discriminatory motive, which need not be
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substantial, or circumstantial evidence that is “specific and substantial” evidence of pretext.
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Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221–22 (9th Cir.1998). If the plaintiff succeeds
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in demonstrating a genuine issue of material fact as to whether the reason advanced by the
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employer was a pretext for retaliation, then the case proceeds beyond the summary judgment
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stage. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Defendant argues that summary judgment should be granted as to the retaliation claim
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because plaintiff cannot meet the prima facie case for retaliation. Additionally, defendant
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contends that he had legitimate, non-discriminatory reasons for terminating plaintiff’s
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employment, and that plaintiff has no direct or circumstantial evidence that defendant's
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articulated reasons were a pretext for retaliation.
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2.
Prima Facie Case
To establish a prima facie retaliation claim under Title VII, an employee must show that
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(1) he engaged in a protected activity; (2) his employer subjected him to an adverse
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employment action; and (3) a causal link exists between the protected activity and the adverse
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action. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir.
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2000) (citation omitted). To show the requisite causal link, the plaintiff must present sufficient
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evidence to raise an inference that the protected activity was the likely reason for the adverse
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action. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (citations omitted). “The
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requisite degree of proof necessary to establish a prima facie case for Title VII ... on summary
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judgment is minimal and does not even need to rise to the level of preponderance of the
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evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
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a.
Protected Activity
In the complaint, plaintiff asserts that his employment was terminated in retaliation for
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his involvement as a witness in support of Carmen Cook’s EEO complaint against Lynda
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Holst. Cook’s EEO representative, Larry R. James, stated plaintiff became involved in Cook’s
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complaint early in February 2006. Plaintiff alleges that Holst was aware of plaintiff’s
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involvement in Cook’s EEO complaint; however, he has provided no evidence of when or how
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Holst learned of his participation with Cook. Holst testified that she knew of Cook’s EEO
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complaint but not that plaintiff was involved in providing a statement on Cook’s behalf. (Exh.
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R, Holst Dep., Vol. 2, at 284-88.)
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b.
Adverse Employment Action
Plaintiff claims that he suffered an adverse employment action when he was terminated
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from his employment.
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c.
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Causal Link
In its motion, defendant contends that plaintiff cannot show any causal connection
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between his protected activity and his removal. Gonzalez argues a causal connection solely on
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the basis that plaintiff engaged in the protected activity of assisting Cook with her EEO claim,
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which Holst was aware of, and his retaliatory placement on the PIP, which occurred three
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months later. (Opp. at 5-6.) The Court notes that the adverse action here is plaintiff’s
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termination, not his placement on the PIP. Therefore, the time between plaintiff’s protected
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activity and his termination is not three months but rather October 2006, when he received
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notice of defendant’s intent to terminate his employment as an SI.
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“The causal link may be established by an inference derived from circumstantial
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evidence, such as the employer's knowledge that the employee engaged in protected activities
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and the proximity in time between the protected action and allegedly retaliatory employment
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decision.” Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.1988) (internal quotation marks
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omitted). But “[t]he cases that accept mere temporal proximity between an employer's
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knowledge of protected activity and an adverse employment action as sufficient evidence of
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causality to establish a prima facie case uniformly hold that the temporal proximity must be
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‘very close.’” Clark County School Dist. v. Breeden, 121 S.Ct. 1508, 1511 (2001). Some courts
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have found even a gap of even a few months insufficient to show causal connection. See
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Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003)(the time gap between the
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protected activity and the adverse actions was three to eight months). Although “a specified
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time period cannot be a mechanically applied criterion,” the court considers retaliation claims
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“in the light of the timing and the surrounding circumstances. Id. 320 F.3d at 978.
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As noted above, plaintiff, without providing any evidentiary support for his contention,
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states that because Holst knew of plaintiff’s involvement with Carmen Cook’s EEO claim in
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March 2006, and Holst recommended that plaintiff be removed from the SI position in October
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2006, and plaintiff was ultimately terminated on February 18, 2007, there is a causal
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connection sufficient to support his prima facie case. The Court disagrees. Plaintiff offers no
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direct evidence of a causal link, and the seven months that elapsed between plaintiff’s
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protected activity and Holst allegedly knowing of plaintiff’s protected activity and his
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termination is too attenuated to support any inference of causal connection.
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With respect to plaintiff’s own protected activity, he did not contact an EEO Counselor
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until September 20, 2006, which is after he had unsuccessfully concluded his PIP. Because the
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protected activity occurred after the conclusion of the PIP which caused his termination,
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plaintiff cannot demonstrate a causal connection.
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Although little evidentiary support is necessary to make a prima facie case, plaintiff has
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failed to set forth a causal connection between his protected activity with respect to assisting
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Cook and his adverse employment action. Nevertheless, the Court will assume that plaintiff
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has made a sufficient showing to warrant further analysis under the McDonnell Douglas test.
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3.
Reason for the Adverse Employment Decision
Assuming plaintiff has established a prima facie case, which the Court believes he has
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not, defendant must come forward with a legitimate, non-retaliatory basis for Gonzalez’s
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termination. “The defendant's burden at this stage is one of production, not persuasion. The
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court may not make a credibility assessment.” Njenga v. San Mateo County Superintendent of
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Schools, 2010 WL 1261493, at *14 (N.D. Cal. 2010) (citing Reeves v. Sanderson Plumbing
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Prods., Inc., 530 U.S. 133, 142 (2000)).
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Defendant contends that the record overwhelmingly demonstrates that plaintiff was
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unable to perform the job of SI at the time he was terminated. The Court agrees. There is ample
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documentation of plaintiff’s many deficiencies in the performance of his position.
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The record fully establishes that plaintiff was unable to perform the duties required of
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all SIs. Accordingly, defendant has met its burden to show legitimate, non-retaliatory reasons
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for terminating plaintiff’s employment.
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4.
Pretext for Retaliation
“If the defendant offers admissible evidence of a legitimate, nondiscriminatory reason
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for the claimed adverse action, . . . the plaintiff is left to prove by a preponderance of the
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evidence that the reasons offered by the defendant are merely a pretext for discrimination [or
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retaliation].” Njenga v. San Mateo County Superintendent of Schools, 2010 WL 1261493, at
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*14 (N.D. Cal. 2010)(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
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(2000)). The “critical” issue at the pretext stage is whether the plaintiff produces “sufficient
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evidence to raise a triable issue of fact as to whether the reason proffered by [employer] for
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[termination] was a pretext for unlawful retaliation.” Bergene v. Salt River Project Agr. Imp.
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and Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001); see Manatt v. Bank of America, N.A.,
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339 F.3d 792, 801(9th Cir. 2003) (“Because [plaintiff] failed to introduce any direct or specific
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and substantial circumstantial evidence of pretext, summary judgment for the [defendant] must
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be affirmed.”). A “plaintiff cannot create a genuine issue of pretext to survive a motion for
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summary judgment by relying solely on unsupported speculations and allegations of
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discriminatory intent.” Crawford v. MCI Worldcom Communications, Inc., 167 F.Supp.2d
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1128, 1135 (S.D. Cal. 2001). The ultimate burden of persuading the trier of fact that the
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employer intentionally discriminated remains at all times with the plaintiff. See Reeves, 530
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U.S. at 143 (citing Burdine, 450 U.S. at 253).
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A plaintiff may meet the burden to show pretext using either direct or circumstantial
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evidence. Direct evidence is evidence “which, if believed, proves the fact [of discriminatory
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animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
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1221 (9th Cir.1998) (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th
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Cir.1994)) (alteration in original). Direct evidence typically consists of clearly sexist, racist, or
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similarly discriminatory statements or actions by the employer. See, e.g., Godwin, 150 F.3d at
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1221 (supervisor stated he “did not want to deal with [a] female”); Cordova v. State Farm Ins.,
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124 F.3d 1145, 1149 (9th Cir. 1997). When an employee offers direct evidence of retaliatory
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motive, a triable issue as to actual motivation of employer is created even if evidence is not
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substantial. Circumstantial evidence is evidence that requires an additional inferential step to
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demonstrate retaliation. For example, a plaintiff can make an affirmative case that the
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employer is biased or a plaintiff can make his case negatively, by showing that the employer's
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proffered explanation for the adverse action is “unworthy of credence.” Texas Dep't of
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Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Plaintiff contends that he offers direct evidence that establishes Holst’s retaliatory
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animus. Alternatively, plaintiff states that the record supports an inference that retaliation was
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a motivating factor in the decision to terminate plaintiff’s employment because the
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explanations are unworthy of credence as they are internally inconsistent or not believable or
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both.
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Here, in arguing direct evidence of retaliatory motive, plaintiff points to a single oral
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statement and three written statements Holst made to show pretext. But only the oral statement
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is related to the protected activity at issue: an employee, Jacobo Baco, allegedly heard Holst
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state she disliked plaintiff because he was outspoken about the removal of Carmen Cook, that
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it was none of his business, and he "was burning bridges with management and that it could
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cost him his job." (Opp. at 7-8.) Defendant argues, however, that the Court should not consider
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Baca's declaration because he signed an earlier affidavit on June 26, 2007,that was presented to
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an EEO investigator, wherein he described Holst as getting angry with plaintiff and yelling at
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him, as he alleges she did towards others. (Def. Exh. Z, Baca’s 2007 Affidavit, 5, 6, 8.) In the
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affidavit, Baca was asked specifically whether he believed Holst's behavior was because of
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plaintiff's prior EEO activity, and Baca stated: "I don't think this had to do with the race,
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national origin, religion or prior EEO activity of Mr. Gonzalez." (Id. at ¶ 10. (emphasis added))
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The general rule is that a party cannot create an issue of fact on a motion for summary
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judgment by submitting an affidavit that contradicts prior testimony. Cozzi v. County of Marin,
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2011 WL 1465603 (N.D. Cal. 2011); see also Scamihorn v. General Truck Drivers, 282 F.3d
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1078, 1086 n.7 (9th Cir. 2002)(party cannot create an issue of fact by an affidavit contradicting
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prior testimony).
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Baco’s recent declaration does not support a finding that Holst knew of plaintiff’s
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protected activity but instead merely states that Holst disliked plaintiff “because he was
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outspoken about the removal of Carmen Cook.” (Plf’s Exh. 39-2.) This statement does not in
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any manner link Holst with plaintiff’s protected activity and certainly is not direct evidence
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proving retaliatory animus without inference or presumption. See Godwin, 150 F.3d at 1221.
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Plaintiff also points to an August 2006 email from Holst to Griggs that refers to plaintiff
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as a “problem child”; another August 2006 email to Griggs wherein Holst wrote that plaintiff
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lied to an employee about Holst’s willingness to participate in setting up a union; and Holst’s
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October 2006 email to Ed Dinep, then FMCSA’s Chief of Employee Relations and Services
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division where she wrote that she was “in the mood” for giving plaintiff a negative
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performance evaluation. None of these writings directly suggests that Holst had a retaliatory
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animus based on plaintiff’s protected activity.
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Because plaintiff’s case must now be based on circumstantial evidence, he is required to
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present specific and substantial evidence of pretext. Plaintiff recognizes the overwhelming
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evidence of his performance deficiencies but maintains his termination was influenced by
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improper motives on the part of Holst.
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Even considering Baco’s recent declaration, which is at best in conflict with his earlier
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affidavit, as circumstantial evidence, an inference cannot be made that Holst knew of
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plaintiff’s protected activity with Cook’s EEO complaint simply because Holst disliked
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Gonzalez because he spoke about Cook’s removal.
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Plaintiff also attempts to show that the reasons given for his termination were unworthy
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of credence by challenging the accuracy of Holst’s and Tomlinson’s interpretation of
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regulations. But plaintiff’s subjective interpretation and application of regulations is not
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specific or substantial evidence of pretext.
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Further, plaintiff does not point to any evidence that gives rise to an inference that the
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termination decision maker, Terry D. Wolf, who is neither alleged nor proven to have known
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of Gonzalez’s protected activity, considered plaintiff’s protected activity in approving his
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termination. Gonzalez provides no other specific, substantial evidence of pretext for retaliation.
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As the Stengall Court noted: “The employee's ultimate burden of proof in all cases
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remains the same: to show by a preponderance of the evidence that the challenged employment
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decision was ‘because of’ discrimination [or, in this case, retaliation].” Stegall v. Citadel
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Broadcasting Co., 350 F.3d 1061, 1068 (9th Cir. 2003)(quoting Costa v. Desert Palace, Inc.,
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299 F.3d 838, 857 (9th Cir. 2002). Based on the evidence presented, plaintiff has not tendered a
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genuine issue of material fact as to pretext in order to avoid summary judgment. See Steckl,
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703 F.2d at 393.
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E.
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Plaintiff has failed to make a prima facie showing to support his sole claim of retaliation
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by not providing even a minimal causal connection between his protected activity – supporting
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Carmen Cook’s EEO complaint – and his termination. Even if plaintiff made a prima facie
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case, he has not provided any direct or circumstantial evidence to raise a triable issue of fact as
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to whether the reason offered by his employer for termination was a pretext for unlawful
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retaliation.
Conclusion
Accordingly, IT IS ORDERED defendant’s motion for summary judgment is
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GRANTED. The Clerk of the Court is directed to enter judgment in accordance with this
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Order.
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IT IS SO ORDERED.
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DATED: September 30, 2011
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M. James Lorenz
United States District Court Judge
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COPY TO:
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HON. WILLIAM V. GALLO
UNITED STATES MAGISTRATE JUDGE
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ALL PARTIES/COUNSEL
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