Jinadasa v. Schlag et al

Filing 157

ORDER GRANTING WITH RESPECT TO RACE DISCRIMINATION CLAIMS AND DENYING MOTION FORPARTIAL SUMMARY JUDGMENT AS MOOT WITH RESPECT TO WITHDRAWN SEX DISCRIMINATIONCLAIM; ORDER DENYING PLAINTIFF JINENDRA JINADASA'S MOTION FOR SUMMARY JUDGMENT re 115 , 131 - Signed by JUDGE SUSAN OKI MOLLWAY on 11/9/2016. "Because Jinadasa has withdrawn his gender discrimination claims with prejudice, the court denies as moot BYU-Hawaii's motion for partial summary judgment wi th respect to those claims. However, with respect to the remaining claims, the court grants summary judgment to BYU-Hawaii and denies Jinadasa's motion for summary judgment. Because this order leaves no claims for further adjudication, the t rial date and all deadlines and/or court dates are vacated. At the hearing on the motions disposed of by this order, Jinadasa indicated that he was considering leaving employment with BYU-Hawaii. That suggests that any settlement might be ach ieved by a monetary sum. This court will delay the entry of judgment to allow the parties to conduct a settlement conference with Magistrate Judge Kenneth J. Mansfield on November 17, 2016, at 10:30 a.m. Ex parte sealed settlement statement s shall be delivered to Magistrate Judge Mansfield no later than November 14, 2016. These should not be filed with the Clerk of Court. The court will enter judgment on or after December 1, 2016, or upon notification from Magistrate Judge Mansfield that judgment should be entered, whichever is earlier. If it appears that settlement is a possibility, this court will further delay the entry of judgment to allow the settlement process to continue." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Jinendra Jinadasa shall be served by first class mail at the address of record on November 10, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JINENDRA JINADASA,
Plaintiff,
vs.
BRIGHAM YOUNG UNIVERSITYHAWAII, et al.,
Defendants.
____________________________

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CIVIL NO. 14-00441 SOM/KJM
ORDER GRANTING WITH RESPECT
TO RACE DISCRIMINATION CLAIMS
AND DENYING MOTION FOR
PARTIAL SUMMARY JUDGMENT AS
MOOT WITH RESPECT TO
WITHDRAWN SEX DISCRIMINATION
CLAIM; ORDER DENYING
PLAINTIFF JINENDRA JINADASA'S
MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING WITH RESPECT TO RACE DISCRIMINATION CLAIMS AND
DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AS MOOT WITH RESPECT
TO WITHDRAWN SEX DISCRIMINATION CLAIM; ORDER DENYING PLAINTIFF
JINENDRA JINADASA'S MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
In the papers he has filed in this case, Plaintiff

Jinendra Jinadasa, proceeding pro se, projects himself as a
person with the best of intentions who seeks to right the wrongs
he says minority employees suffer while employed by
Defendant Brigham Young University-Hawaii (“BYU Hawaii”).
Jinadasa is not proceeding as a class representative and so may
not seek remedies on behalf of others.

He may only seek remedies

for harm he has personally suffered, which in theory may include
harm suffered as he tried to protect others from unlawful
discrimination.
This court’s order of January 25, 2016, left for
adjudication the following claims: (1) Jinadasa’s Title VII,
Title IX, and § 1981 disparate treatment claims based on the
allegations that Mindy Clark was paid more and disciplined less

than Jinadasa, as asserted in Counts I, III, and IV of the Fourth
Amended Complaint; and (2) Jinadasa’s retaliation claim under
Title VII, asserted in Count II of the Fourth Amended Complaint.
Both BYU Hawaii and Jinadasa seek summary judgment with
respect to the remaining claims.

At the hearing, Jinadasa

withdrew with prejudice his gender-based discrimination claims.
Accordingly, the court denies as moot BYU-Hawaii’s motions to the
extent they seek partial summary judgment with respect to the
gender discrimination claims.

The court grants BYU-Hawaii

summary judgment with respect to the remaining claims and denies
Jinadasa’s motion.
II.

SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment shall be granted when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

(9th Cir. 2000).

The movants must support their position

concerning whether a material fact is genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the

2

materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

A moving party without the

ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).

The nonmoving party may not

3

rely on the mere allegations in the pleadings and instead must
set forth specific facts showing that there is a genuine issue
for trial.

T.W. Elec. Serv., 809 F.2d at 630.

At least some

“‘significant probative evidence tending to support the
complaint’” must be produced.

Id. (quoting First Nat’l Bank of

Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also
Addisu, 198 F.3d at 1134 (“A scintilla of evidence or evidence
that is merely colorable or not significantly probative does not
present a genuine issue of material fact.”).

“[I]f the factual

context makes the non-moving party’s claim implausible, that
party must come forward with more persuasive evidence than would
otherwise be necessary to show that there is a genuine issue for
trial.”

Cal. Arch’l Bldg. Prods., Inc. v. Franciscan Ceramics,

Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita
Elec. Indus. Co., 475 U.S. at 587).

Accord Addisu, 198 F.3d at

1134 (“There must be enough doubt for a ‘reasonable trier of
fact’ to find for plaintiffs in order to defeat the summary
judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

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When “direct evidence”

produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
III.

Id.

BACKGROUND.
On April 24, 2007, BYU-Hawaii hired Jinadasa as a Web

Architect.

See Decl. of Kevin Schlag ¶ 5, ECF No. 132-1, PageID

# 1538; Videotaped Depo. of Jinendra Jinadasa at 46, ECF No. 1325, PageID # 1563.

Kevin Schlag, who was Jinadasa’s supervisor at

BYU-Hawaii, offered Jinadasa the position with a starting salary
of $44,000 per year, which Jinadasa accepted.

Id. at 46-47,

PageID #s 1563-64.
Jinadasa has previously told this court that he is
black and from Ethiopia, Africa.

See ECF No. 44, PageID # 331;

ECF No. 61, PageID # 517; see also Transcript of Proceedings,
Jan. 11, 2016, at 23, ECF No. 111, PageID # 1126.

Jinadasa says

he found a pay stub for a Caucasian Portal Administrator, Mindy
Clark, who was paid $5,954.17 per month, or $71,450.04 per year.
See ECF No. 115-1, PageID # 1245.

Jinadasa says that he had more

relevant work experience and a more difficult job with greater
responsibilities.

He argues that the difference in pay must

therefore have been based on his race.
#s 1230-31.

See ECF No. 115, PageID

Jinadasa contends that he was also discriminated

against based on his race when he was suspended for having

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violated BYU-Hawaii’s Honor Code.

According to Jinadasa, Clark

was not suspended for her Honor Code violations.

See ECF No.

115, PageID # 1227.
BYU-Hawaii’s differing treatment of Jinadasa and Clark
lies at the heart of this case.

The court examines the factual

detail as necessary in the discussion below.
IV.

ANALYSIS.
A.

Because Jinadasa Has Withdrawn His Gender
Discrimination Claims With Prejudice, the Court
Denies as Moot BYU-Hawaii’s Motion With Respect to
the Gender Discrimination Claims.

BYU-Hawaii sought partial summary with respect to
Jinadasa’s remaining disparate treatment gender discrimination
claims.

See ECF No. 120.

At the hearing on the motion, Jinadasa

withdrew his gender discrimination claims with prejudice.

Given

that withdrawal, the court denies as moot BYU-Hawaii’s motion to
the extent it seeks partial summary judgment with respect to the
gender discrimination claims.
B.

The Court Grants Partial Summary Judgment In Favor
of BYU-Hawaii With Respect to Jinadasa’s Remaining
Disparate Treatment Race Discrimination Claims,
Which Are Based on Pay and Discipline Differences
Between Mindy Clark and Jinadasa.

BYU-Hawaii also seeks

partial summary judgment with

respect to Jinadasa’s disparate treatment race-based claims
asserted under Title VII and 42 U.S.C. § 1981.
granted.

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That motion is

In relevant part, § 1981 prohibits race discrimination
in the making and enforcement of contracts.

Title VII similarly

prohibits discrimination based on race, color, religion, sex, or
national origin:
(a) It shall be an unlawful employment
practice for an employer -(1) to fail or refuse to hire or to
discharge any individual, or otherwise
to discriminate against any individual
with respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual’s race,
color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2.
A plaintiff may establish disparate treatment in
violation of § 1981 or Title VII through direct evidence or,
alternatively, through the familiar McDonnell Douglas burden
shifting framework.

See Surrell v. California Water Serv. Co.,

518 F.3d 1097, 1105 (9th Cir. 2008) (discussing standard with
respect to Title VII and § 1981 claims).
evidence of disparate treatment.

Jinadasa lacks direct

The court therefore applies the

McDonnell Douglas framework to these motions for summary
judgment.
The framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), begins by requiring a plaintiff
to establish a prima facie case of discrimination.

The degree of

proof required to establish a prima facie case for summary

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judgment is minimal.

See Coghlan v. Am. Seafoods Co., 413 F.3d

1090, 1094 (9th Cir. 2005).

A prima facie case of disparate

treatment requires a plaintiff to establish that: (1) the
plaintiff is a member of a protected class; (2) the plaintiff was
qualified for the position in issue; (3) the plaintiff suffered
an adverse employment decision; and (4) one or more employees
outside the protected class with comparable qualifications and
work records did not suffer similar adverse employment decisions.
See, e.g., White v. Pac. Media Grp., Inc., 322 F. Supp. 2d 1101,
1110 (D. Haw. 2004).
A plaintiff must demonstrate that his or her situation
is similar in all material respects to that of employees who
received more favorable treatment.
748, 755 (9th Cir. 2006).

See Moran v. Selig, 447 F.3d

However, “a plaintiff is not obligated

to show disparate treatment of an identically situated employee.”
McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (cited
approvingly in Selig).

Instead, “individuals are similarly

situated when they have similar jobs and display similar
conduct.”

Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1160 (9th

Cir. 2010) (citing Vasquez v. Cnty. of Los Angeles, 349 F.3d 634,
641 (9th Cir. 2003) (finding employee not similarly situated if
he “did not engage in problematic conduct of comparable
seriousness” to plaintiff’s conduct)).

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Under the McDonnell Douglas framework, once a plaintiff
succeeds in presenting a prima facie case, the burden then shifts
to the defendant to articulate a “legitimate, nondiscriminatory
reason” for its employment decision.
F.3d 1163, 1168 (9th Cir. 2007).

Noyes v. Kelly Servs., 488

“Should the defendant carry its

burden, the burden then shifts back to the plaintiff to raise a
triable issue of fact that the defendant’s proffered reason was a
pretext for unlawful discrimination.”
1.

Id.

Jinadasa’s Disparate Treatment Claims Based
on Unequal Pay Fail Because He and Mindy
Clark Were Not Similarly Situated.

In asserting disparate treatment in the form of unequal
pay, Jinadasa points to Mindy Clark’s salary, which was higher
than his.

But Jinadasa presents no evidence suggesting that he

and Clark were similarly situated.

Jinadasa therefore fails to

show that there is any genuine issue of fact going to whether he
has a prima facie case of disparate treatment relating to pay.
According to Eugenia Soliai, the Assistant Director &
Equal Opportunity Manager at BYU-Hawaii, BYU-Hawaii’s Human
Resources Department establishes the salary ranges for
administrative and staff positions at BYU-Hawaii.
Eugenia Soliai ¶ 1-2, ECF No. 132-2, PageID # 1549.

See Decl. of
The Human

Resources Department sets the salary grade according to “the
scope of responsibilities assigned with the job and the amount of
discretion and independent judgment required to be exercised by

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an employee in that position.”

Id. ¶ 3, PageID # 1550.

The

Human Resources Department also makes starting salary
recommendations based on the position’s salary grade and an
individual’s work experience and education.

In making that

recommendation, the Human Resources Department does not consider
student employment to be work experience.

Id. ¶¶ 4-5.

According to his resume, Jinadasa has a Bachelor of
Science degree in International Business Management with a minor
in Information Technology.

ECF No. 115-12, PageID # 1279.

Jinadasa was hired as a Web Architect, which, even before
Jinadasa had applied for that position, the Human Resources
Department had designated as having a salary grade of “52.”

See

Decl. of Kevin Schlag ¶ 5, ECF No. 132-1, PageID # 1538; Decl. of
Kevin Schlag ¶ 6, ECF No. 144-2, PageID # 1909.
When Schlag hired Jinadasa, the Human Resources
Department recommended that Jinadasa’s starting salary be
$44,300.

See Schlag Decl. ¶ 7, ECF No. 132-1, PageID # 1538.

Schlag says that, at the time he hired Jinadasa, he did not think
Jinadasa had “much relevant, real world experience.”

Id. ¶ 8.

Jinadasa had done a little web design and development, but most
of his experience related to repairing computers and networks.
Id.

His duties included the following:
[being] responsible for supporting department
web pages, developing graphics and layouts
for the website, transferring web pages into
the new Drupal system (a content management
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system), testing and analyzing traffic on the
website, providing website training to
department staff, and helping department
staff with special website requests.
Jinadasa also spent a large amount of his
time helping departments to maintain website
content, which included changing pictures and
text.
Id. ¶ 9, PageID # 1539.
According to her resume, Clark had a Bachelor’s degree
in Computer Information Systems.

ECF No. 115-11, PageID # 1276.

Schlag says:
Clark was the primary administrator for the
PeopleSoft portal. PeopleSoft was a system
that housed sensitive personnel and student
data, such as accounting records, social
security numbers, contact information,
payroll, financial aid, and grades. As the
Portal Administrator, Clark was responsible
for, among other things, maintaining and
securing the PeopleSoft system, customizing
PeopleSoft for the needs of BYUH’s faculty,
staff, and students, and troubleshooting
technical and user issues.
Id. ¶ 12, PageID #s 1539-40.

BYU-Hawaii’s Human Resources

Department set the salary grade for the Portal Administrator
position at “53.”

Schlag says that “the Portal Administrator

position was more complex than the Web Architect position because
PeopleSoft requires a deeper level of technical understanding.

A

Web Architect uses well-developed tools and standards to make web
pages.

A Portal Administrator, on the other hand, needs to use

tools that are harder to use, and the required skills are less
prevalent in the labor marketplace.”

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Id. ¶ 13, PageID # 1540.

Schlag also viewed Clark’s college degree as more relevant to her
position than Jinadasa’s degree was to his.

Id. ¶ 17, PageID

# 1541.
Jinadasa and Clark had different jobs with different
responsibilities.

On the present record, they cannot be said to

have been similarly situated.

Even if Jinadasa could be said to

have been a better employee with more responsibilities than
Clark, and even if his Web Architect position could be deemed
more important than Clark’s Portal Administrator position, that
would not support a prima facie case of disparate treatment of
similarly situated employees.

BYU-Hawaii was allowed to pay

different amounts to employees in different positions even if
someone else might have equated certain job duties or
backgrounds.

BYU-Hawaii’s determination of what it chose to

value does not, absent more, show discrimination against
employees based on race.

Notably, the lower job classification

that resulted in the lower salary for the Web Architect position
was set before Jinadasa had even applied for the job.

This court

therefore looks at whether Jinadasa has more than the differing
valuations to support his claim of unequal pay based on race.
At the hearing on the present motions, Jinadasa
referred to having submitted a chart to the court indicating that
75% of BYU-Hawaii’s employees are white.

It appears that

Jinadasa was referring to Exhibit H to his motion for summary

12

judgment, which indicates that BYU-Hawaii’s administration has 33
white employees and 9 minority employees.
PageID # 1264.

See ECF No. 115-8,

Even assuming Jinadasa presents admissible

evidence as to the racial make up of the administration, that
make up does not support the disparate treatment claim Jinadasa
is advancing with respect to his pay.

Jinadasa is claiming that

he was treated differently from a similarly situated employee of
a different race.

Jinadasa does not even argue that he and the

bulk of BYU-Hawaii’s primarily white administration were
similarly situated.

Jinadasa therefore cannot simply point to a

statistic as evidence that he was paid less than a similarly
situated employee of a different race.
Jinadasa also mentioned at the hearing that there was a
pay disparity between Caucasian and non-Caucasian employees at
BYU-Hawaii.

But Jinadasa provided the court with no evidence to

that effect.

Under Local Rule 56.1(f), this court has no “duty

to search and consider any part of the court record not otherwise
referenced in the separate and concise statements of the
parties.”

A mere assertion of a general pay disparity is

insufficient to raise a genuine issue of fact as to whether
Jinadasa was paid less than any similarly situated employee
because of his race.

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2.

Jindasa’s Disparate Treatment Claims Based on
Unequal Discipline Fail Because He Raises No
Genuine Issue of Fact As to Whether the
Discipline Related to Comparable Conduct.

Jinadasa was suspended for 5 days in October 2012,
3 days with pay and 2 days without pay.

See Decl. of Norman

Black. ¶ 4, ECF No. 132-2, PageID # 1545.

The Fourth Amended

Complaint alleges that the suspension was based on alleged
violations of the university’s Honor Code.
Complaint ¶ 31, ECF No. 61, PageID # 524.

See Fourth Amended
It further alleges

that “Caucasians and others who had committed more serious
offenses were never disciplined.”

Id.

Jinadasa specifically

alleges that Mindy Clark, who was allegedly a similarly situated
female Caucasian employee, violated the Honor Code and used
profanity but was not subjected to any discipline.
PageID # 522.

Id. ¶ 24,

BYU-Hawaii seeks partial summary judgment with

respect to this unequal discipline claim.

The court grants that

request, as Jinadasa fails to demonstrate that Clark was a
similarly situated person who received lesser discipline.
On or about November 5, 2008, Jinadasa sent his
supervisor, Kevin Schlag, an e-mail in which he complained that
Mindy Clark had referred to President Obama as “satan.”

See

Decl. of Kevin Schlag ¶ 22, ECF No. 132-1, PageID # 1542.

Schag

counseled Clark, telling her that her coworkers believed that the
comment was offensive.

On November 6, 2008, Clark sent an

apology to Schlag, stating, “I wanted to apologize for some
14

comments I made the day after the election.
to hurt and it was disrespectful of me.
apologies.”

They were not meant

Please accept my

ECF No. 132-7, PageID # 1749.

On or about December 31, 2009, Jinadasa sent Schlag
another e-mail complaining that Clark was stressed at work and
used the word “shit.” See Decl. of Kevin Schlag ¶ 23, ECF No.
132-1, PageID # 1542.

Schlag says he again counseled Clark.

Clark apologized for her language.

Id.

Jinadasa’s suspension arose out of a series of
statements he made that BYU-Hawaii deemed insubordinate,
irreverent, unprofessional, and increasingly hostile.

Schlag,

who supervised both Clark and Jinadasa, reacted by counseling
Jinadasa “as to his rude, unprofessional, disrespectful, and
insubordinate communications.”

See Decl. of Kevin Schlag ¶ 25,

ECF No. 132-1, PageID # 1542.
Jinadasa’s behavior spanned a long period.

On February

5, 2010, for example, Jinadasa sent Schlag an e-mail complaining
that Schlag had not consulted Jinadasa about a particular
decision, accusing Schlag of having ignored Jinadasa’s plea for 2
student workers, stating that Jinadasa was annoyed by Schlag’s email concerning a web policy, and saying that Jinadasa did not
appreciate Schlag’s e-mails asking Jinadasa to “improve
relations.”

See ECF No. 132-5, PageID #s 1713-14.

15

Schlag

responded, “I’ll give you a bit of time to cool off, but I’d like
to address this sooner rather than later.”

Id., PageID # 1713.

On June 9, 2010, Jinadasa received an e-mail that asked
how a new software would interface with Drupal.
5, PageID # 1711.

See ECF No. 132-

Jinadasa responded, “We heard rumors but were

never involved in anything or were asked to research and see the
integration process.”

Id.

Schlag then sent an e-mail to

Jinadasa stating, “You must have missed a meeting, when we talked
about this in our dept meeting a while ago.”

Id., PageID # 1710.

Jinadasa replied,
Yes we talked about it. Is there not a
process where the actual web people test the
product and are given a chance to see what
the product can do before it is purchased or
implemented?
This is kind of force spoon feeding the web
team to go a long with a product they have no
clue about and were left in the dark about.
Whose bright idea was this?
Id.
It appears that, on August 25, 2011, Jinadasa told BYUHawaii’s Human Resources Department that he was asserting
discrimination claims.

ECF No. 132-5, PageID #s 1727 (letter

from Human Resources Department indicating that Jinadasa had
initiated internal “claims” with that department on August 25,
2011).

Jinadasa followed this with further unhappy e-mails.

example, on October 4, 2011, Jinadasa sent Tessie Faustino,
Eugenia Lawrence, and Gloria Gervacio (all with BYU-Hawaii’s
16

For

Human Resources Department), along with Schlag, an e-mail
concerning a charge of discrimination that he was planning to
file with the Equal Employment Opportunity Commission.

The e-

mail stated, “How ignorant and reckless could you and the
administration be?”
stated, “P.S.

ECF No. 144-9, PageID # 2055.

He then

Feel free to hack my email account and copy my

hard drive, nothing to hide.

Just don’t put anything in there

that should not be there because I have auditing and login
notifications.

Thanks.”

ECF No. 144-10, PageID # 2057.

Jinadasa then filed his EEOC charge on October 5, 2011.

See ECF

No. 121-3.
On October 10, 2011, Jinadasa sent another e-mail to
Faustino, Lawrence, Gervacio, and Schlag, stating, “Hi!

I hope

Dave Thomas has advised you on the possible outcomes that may
result from the investigation of the EEOC and this class action
lawsuit.

As a courtesy, I would advise Norm Black not to get too

comfortable.”

ECF No. 144-11, PageID # 2058.

On October 19, 2011, Jinadasa sent an e-mail to
Faustino, Lawrence, and Schlag that complained about Schlag’s
“berat[ing] my communication skills because I never kiss up to
him and the rest of the administration.”
# 2059.

17

ECF No. 144-12, PageID

On October 26, 2011, Jinadasa sent Faustino, Lawrence,
Gervacio, and Schlag the following e-mail regarding Schlag’s
evaluation of Jinadasa:
Hi! Boss:
This is to let you know that I do not agree
with your evaluation ratings and find your
ratings without merit and they are not based
on a methodical matrix. Your evaluations
since the time I have questioned your
management decisions have been repeatedly
lower than what I have evaluated myself based
on the projects and objectives I have set and
completed.
Too bad HR does not provide Performance
evaluations for Directors, anyway since you
are leaving EIS here is some final thoughts.
Unlike your so called “project management
stuff” that you have been working on since
2009 and which we have yet to see to this
day; I have projects and email, server logs
of what I have done and feedback from the
departments I have worked with. You have no
right in lowering my ratings, because you are
hardly at the office and never take the time
or initiative to see what projects we are
working on, the only time you are ever
involved in a project is if it is a high
profile or we request your intervention on
something, and during our one time monthly
one on one. You lack the ability to motivate
and empower a team, and most importantly the
ability to give technical vision. You rely
too much on email communication and coop
yourself up in your office, spend too much
time on Facebook tweeting about the ‘80’s
during work and lack face time with your
employees (except a select few).
Lastly Boss, next time you interview someone
for a temple recommend and ask them if they
are honest with their fellow men, you ask
yourself if you were honest with me and my
family when you offered me $44,300. I wonder
18

what the conversation was like with Jim
Nilson and the rest of your boys club-hi bud
guess what I got JJ to agree to $44K cause he
is coming from Kiribati where he was making
10 times less than that and he has no idea he
is getting a lower pay than all our IT staff
that graduated in 2005,-that is going to make
our department look good and I am on my way
up the company ladder since I am cutting cost
and making my boss look good.
Thanks! Good luck in all your future endeavors.
ECF No. 144-13, PageID # 2060.
On October 27, 2011, Jinadasa sent an e-mail to
Faustino and Schlag:
Hi! Boss:
Thank you for letter . . . dated October 27,
2011 letting me know that I was denied the
position of PeopleSoft Developer. You have
till November 11th, 2011 to choose from the
following options and get back to me by 5pm
that day with your choice:
1. Revamp my position and include Portal
administration & Integration Broker and give
me the Salary I deserve.
2. Find another EIS employee to take on
Portal Administration & Monitoring
Integration Broker, which is not in my job
description and I took on to ensure that
services were not interrupted when Mindy left
in May of 2011.
Should you fail to respond by that date and
time, I will take every necessary step to
ensure that my family and I are being treated
fairly and receive the honest and fair
compensation that we deserve. Look forward
to your reply.

19

ECF No. 144-14, PageID # 2061.

Jinadasa then immediately

followed up with an e-mail stating, “Disregard the email . . . .
I am done dealing with you.

Get ready for what is about to come

in the next few weeks . . . .”

Id.

Norman Black began his employment with BYU-Hawaii on
October 31, 2011, as its Enterprise Information Systems director.
See Decl. of Norman Black ¶ 2, ECF No. 132-2, PageID # 1544.
On November 15, 2011, Faustino, the Human Resources
director at BYU-Hawaii, sent Jinadasa a letter that said:
Dear JJ:
We have received a number of email
communications that you have sent to Kevin
Schlag since initiating your claims with this
office on August 25, 2011. In reviewing
these emails, I have noted a disturbing trend
in your communications to become increasingly
threatening and confrontational with Kevin.
I want to remind you that you are still a
university employee and as such, you have a
continuing duty of loyalty to the university.
Part of that duty includes alerting the
university, through appropriate channels, to
any unlawful actions or practices taking
place at the university, including unlawful
discrimination or retaliation. We sincerely
appreciate the good-faith efforts of our
employees to report and help us eliminate any
unlawful employment practices. Moreover,
federal law and university policy protect you
against any act of retaliation that might be
taken against you because of your reports or
because of your participation in or support
of any investigation of unlawful
discrimination. However, the fact that you
have filed discrimination claims against the
university does not excuse you from any part
of your employment duties, including your
20

duty to comply with the Honor Code and
policies of BYU-Hawaii. Likewise, the
prohibitions against retaliation do not
exempt you from discipline for violations of
these university standards.
One of the requirements that applies to all
university employees is the personal
commitment we make in the Honor Code to
“respect others.” This is particularly
important in the workplace where co-workers
need to coordinate their efforts and work
together under the direction of their
supervisor to accomplish university
objectives. One way in which a lack of
respect is manifest is by attributing flaws
of character or integrity to those who do not
agree with you. Many of your communications
since you filed your claim with this office
appear to violate this Honor Code standard.
It is not uncommon for university employees
to say or do things from time to time that do
not demonstrate appropriate respect for their
co-workers and supervisors. But the emails
you sent establish a pattern of
communications from you that appear to be
calculated to provoke an emotional reaction,
to threaten or intimidate, or to denigrate or
antagonize your co-workers and supervisors.
As such, they are inappropriate in the
workplace and counterproductive to our
conflict resolution efforts. I believe that
they are also in violation of the Honor
Code’s requirement that employees of
BYU-Hawaii “respect others.”
Even in a situation-or perhaps especially in
the situation-in which you feel that others
at the university have acted unethically or
unlawfully, your interactions and
communications with them should continue to
be professional and should not be unduly
disrespectful. Conflicts will arise in
any organization, and sometimes the people
involved in those conflicts will lose their
sense of personal respect for each other. At
BYU-Hawaii, however, this does not excuse
21

them from the Honor Code’s requirement that
they treat each other with respect. The
university has established processes designed
to help resolve workplace conflicts and
correct unlawful or unethical practices in an
ordered and rational manner and in a forum
where all parties are treated with respect.
Inflammatory communications, sarcastic
comments, and accusations based on matters
that are extraneous to your claim and the
current investigation are not appropriate for
this process, and are inconsistent with the
Honor Code standard of showing respect for
others.
The university cannot permit such
communications to continue to disrupt the
workplace. I have already asked you once to
direct any questions or comments about your
discrimination claims to Jeannie Lawrence in
this office, and to limit your communications
with Kevin to those day-today work-related
matters that are part of your regular
employment. Any further inappropriate
communications will be subject to university
discipline, and if you persist in such
disrespectful communications, you may be
subjected to further discipline, up to and
including the termination of your employment.
If you need further clarification of this
standard, I can provide you with a
number of examples of disrespectful
communications from your recent emails. If
you have questions about the appropriateness
of communications you feel you need to make
with Kevin or others, I would be happy to
review your communications with you before
they are sent to ensure that they are
consistent with university standards set
forth in the Honor Code.
I hope you will not misunderstand our intent
in bringing these things to your attention.
Our purpose is to remind you of this Honor
Code standard, help you understand how some
of your recent communications violate the
standard, and alert you to the consequences
22

of further disregarding a standard that
governs our behavior as employees of
BYU-Hawaii. However, I would not want you to
understand this warning as discouraging, in
any way, your reporting of discrimination or
other actions in support of your claims of
unlawful discrimination. You are free to
communicate--and encouraged to communicate-information that you believe in good faith
may be relevant to your claims of
discrimination or any other unlawful
practices that you observe taking place at
BYU-Hawaii. In fact, it is critical that the
university receive this information so that
we can identify and correct any such unlawful
actions and practices. As mentioned above,
such communications are also subject to legal
protections against retaliation, and
university policy and federal law prohibit
the university and your supervisors from
exercising discipline against you or taking
any materially adverse action against you on
the basis of such reports. But the
inflammatory and disrespectful language you
have included in recent emails is unnecessary
to communicate your discrimination claims or
to provide evidence in support of those
claims. Threats, taunts, and insults are
extraneous and impertinent to your claims,
and the anti-retaliation laws and university
policies do not immunize you from discipline
for this kind of language.
I hope this information is helpful and that
everyone involved will be able to maintain a
respectful and professional attitude while
our office sorts through the various
allegations you have made. Please let me
know if you have any questions about our
investigation that l can answer.
Sincerely,
Tessie Faustino
ECF No. 132-5, PageID #s 1727-29 (emphasis added).

23

Jinadasa appears to have commented on the letter of
November 15, 2011.

Although his comments are not in the record,

Faustino wrote to Jinadasa, referring to a request from him:
I have attached a copy of the Honor Code, as
you requested. My main concern is that your
emails show a pattern of communications that
violate the Honor Code requirement to
“Respect others.” While your communications
have not been profane or discriminatory in
nature, more is required of BYU-H employees
than to refrain from swearing and from racial
epithets. Let me share a number of examples
from emails you have recently sent, and try
to explain why these communications may not
meet the standards for employment at
BYU-Hawaii:
ECF No. 132-5, PageID # 1730.

Faustino spent several pages

discussing comments Jinadasa had made that Faustino thought might
have violated the Honor Code.

Id., PageID #s 1730-32.

Faustino

then stated:
These are some the most troubling examples of
your disrespectful communications in recent
weeks. I recognize that other employees may
say and do things that are inappropriate from
time to time as well. . . . In your case, it
was necessary that I provide counsel and a
warning because HR was aware of the situation
(I had been copied on your emails), because
we had already requested once that you do not
discuss the discrimination claim with Kevin,
and because the number and frequency of
derogatory emails seems to indicate a pattern
of disrespectful communication that is
increasing in intensity.
Id., PageID # 1732.
On May 21, 2012, Jinadasa sent an e-mail to a
Dr. Clayton Hubner and Michelle Fuluvaka, who had apparently
24

complained about some kind of “outage” affecting the Canvas
Learning Management System that was used in a classroom.
No. 132-5, PageID #s 1722-23.

See ECF

Jinadasa told them that “Canvas

branding was not affected” because it was hosted on a different
server that had not crashed.

Jinadasa said that it was

“preposterous” for them to think that the crash of a different
server had affected the Canvas program.

Id.

Jinadasa further

told them, “Taking shots at Branding and the BYUH system is
uncalled for, we welcome constructive feedback and will continue
to work on improving services.”

Id.

On May 22, 2012, Norman Black wrote a “Memo for
Record,” stating to Jinadasa:
I appreciate your desire to clarify things,
but this email was unprofessional in that it
accused Dr. Hubner and Michelle of not
understanding the problems and called their
comments preposterous and accused them of
taking shots at the web systems. You
then told them their comments were uncalled
for and that you only wanted constructive
feedback.
. . . . Your response to them was
unwarranted and unnecessary. From my visits,
I understand this type of response has
happened in the past and it needs to be
handled more professionally going forward.
In the future, please consider suggestions
for what they are, simply suggestions. You
are doing a good job here. I appreciate your
contributions to the team. Emails like the
one above reflect negatively on you and on
our team without providing anything positive.
If you feel like you have been attacked or
criticized, please come and talk with me and
25

we will resolve it in a manner that will be
acceptable to all involved.
ECF No. 132-5, PageID # 1723.
On September 23, 2012, Jinadasa sent an e-mail to the
entire Enterprise Information Systems Department.

See Videotaped

Deposition of Jinendra Jinadasa at 209, ECF No. 132-5, PageID #
1671.

This e-mail asked whether there was a “major typo” with a

job posting that stated, “Will work in an office at LDS Business
College in Salt Lake City, Utah” and “Required to travel to BYUHawaii Campus twice per year for a minimum of one-week stay for
each trip.”

Jinadasa’s e-mail about the job posting said, “If

this is not a typo and is accurate, I would love to know the
brilliant mastermind behind this genius job posting.”
132-5, PageID # 1733.

ECF No.

He then stated, “I have a bad feeling

which in the past always becomes a reality that this job posting
is being massaged for someone’s friend or acquaintance down in
Utah or some other Mormon ville.
next, out source EIS to India.

I am just wondering what is
Thanks.”

Id.

On October 12, 2012, Faustino sent a letter to Jinadasa
that responded to his e-mail of September 23, 2012, as well as to
other complaints by Jinadasa.

Faustino said, “[N]one of the

allegations raised in your letter provides a basis for a finding
that BYU-Hawaii or any of its employees has engaged in unlawful
discrimination.”

ECF No. 132-5, PageID # 1736-38.

letter also stated:
26

Faustino’s

Our investigation of the allegations in your
September 23, 2012 email not only found that
no discrimination had taken place, but we
determined that there is nothing in your
email that even rises to the level of
presenting a reasonable, good faith claim of
discrimination. It appears from our
investigation that you have made these
allegations without even a minimal inquiry
into the facts or a cursory examination of
the law, in spite of the fact that you have
indicated that you have legal counsel that
could advise you on these matters. Moreover,
this is the third time in seven months that
you have raised discrimination claims against
your colleagues or against the university
based on speculation, rumor, or unsupported
suspicions, but without any reasonable basis
in law or in fact.
Id., PageID # 1738.
The letter went on to say that Jinadasa’s “allegations
appear to be designed to cause disruption in the work of your
department, intimidate your co-workers, and harass your
supervisors and this office with unfounded discrimination
claims.”

Faustino added:
It has therefore become necessary to warn you
that this kind of disruptive behavior is
unacceptable at BYU-Hawaii. Because this is
your first warning about the filing of
unreasonable and bad faith claims, I am not
recommending at this time that any discipline
should be imposed on you for this behavior.
However, if you continue to seek to
intimidate or harass your co-workers and
supervisors with unreasonable or bad faith
claims of discrimination or retaliation, you
will be subject to university discipline.

Id.

27

Faustino concluded that Jinadasa had repeatedly sent
disrespectful communications:
This kind of disrespectful and unprofessional
communication is part of a pattern of
behavior that we have noted and warned you
about in the past and that we have encouraged
you to correct. (See my Nov. 15, 2011 letter
and Nov. 16, 2011 email to you.)
Unfortunately, as this pattern has re-emerged
in your most recent email, I find it
necessary to warn you again and to refer this
matter to your supervisors for appropriate
disciplinary action. Accordingly, a copy of
this letter will be sent to Norm Black with a
recommendation that appropriate disciplinary
measures be imposed on you.
Id., PageID # 1739.
Faustino appears to have been distinguishing between
misconduct in the form of Jinadasa’s allegedly baseless
complaints and separate misconduct in the form of Jinadasa’s
allegedly disrespectful and unprofessional communications.
Faustino was warning against repeating the former but not
recommending discipline because this was the first warning to
Jinadasa on that subject.

However, Faustino was forwarding on

her concern about allegedly disrespectful communications for
appropriate discipline, given the earlier counseling Jinadasa had
received about such communications.
Later the same day, Black issued Jinadasa a letter of
reprimand that suspended Jinadasa for 5 days, telling him that he
was not to be on campus or at the office during the suspension.
See ECF No. 132-5, PageID #s 1740-43.
28

This court need not here examine whether the suspension
was the best and most appropriate way to address the alleged
misconduct.

Instead, the court looks to Jinadasa’s complaint

that similarly situated employees were not similarly disciplined
given their different race.

The circumstances relating to

Schlag’s counseling of Clark for her equating President Obama
with “satan” and her use of an expletive are not comparable to
Jinadasa’s numerous e-mails.
Schlag began by counseling Jinadasa in much the same
way he had counseled Clark.

Regardless of whether Clark’s

characterization of President Obama reflected a deep-seated
racial animus, the record reflects that Clark quickly apologized.
There is no evidence that she ever again made that or any
analogous comment.

The single-word expletive similarly led to a

quick apology, and once again there is no evidence the behavior
was repeated.

By contrast, Jinadasa does not appear to have

recognized the tone of his e-mails as inappropriate or to have
moderated that tone.

In reacting to Jinadasa by suspending him,

BYU-Hawaii cannot be said to have treated similarly situated
employees differently.

Conduct repeated after counseling is not

similar to one-time misconduct.

Accordingly, Jinadasa fails to

establish a prima facie case of disparate treatment based on
Clark’s lesser punishment.

29

Nor is this court persuaded by Jinadasa’s argument that
there were other individuals at BYU-Hawaii who were not punished
as severely as he was.

In Jinadasa’s motion for summary

judgment, for example, he says that he complained that a
Caucasian male with a tattoo and another man with a beard were
not punished for what Jinadasa says were Honor Code violations.
Jinadasa also claimed that other employees viewed a video at work
that made fun of African-Americans but were not disciplined.
Even if his EEOC charge and the Fourth Amended Complaint could be
read as encompassing these allegations, Jinadasa fails to
demonstrate that these individuals were similarly situated.

This

court cannot tell, for example, that the tattoo and beard were
indeed Honor Code violations.

For all the court knows, the

employees had the tattoo and beard when hired, the tattoo was an
appropriate or customary cultural expression, or the beard was
required by the employee’s religion.

Nor does the court know

whether the video was isolated or repeated.

Jinadasa raises no

issue of fact as to whether these individuals allegedly violated
the Honor Code over a long period of time or had received any
prior warning about the matter in issue.
C.

Jinadasa’s Retaliation Claim Under Title VII.

Title VII’s anti-retaliation provision generally
forbids retaliation against an employee who has exercised rights
under Title VII.

See 42 U.S.C. § 2000e–3(a).

30

“Title VII

retaliation claims must be proved according to traditional
principles of but-for causation . . . .

This requires proof that

the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.

Ct. 2517, 2533

(2013).
For purposes of a summary judgment motion, a plaintiff
may demonstrate retaliation under Title VII by applying the
McDonnell Douglas burden-shifting analysis.

See Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).
To make out a prima facie retaliation claim under
Title VII, a plaintiff must show that “(1) the employee engaged
in a protected activity, (2) she suffered an adverse employment
action, and (3) there was a causal link between the protected
activity and the adverse employment action.”
Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008).
must establish a “but for” connection.

Davis v. Team Elec.
The causal link

Nassar, 133 S.

Ct. at

2533.
“Protected activity includes the filing of a charge or
a complaint, or providing testimony regarding an employer’s
alleged unlawful practices, as well as engaging in other activity
intended to oppose an employer’s discriminatory practices.”

Raad

v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th
Cir. 2003) (quotation marks and citation omitted); 42 U.S.C.

31

§ 2000e–3(a) (forbidding discrimination against employee who
“opposed any unlawful employment practice prohibited by Title VII
or who has made a charge, testified, assisted, or participated in
a Title VII proceeding or investigation”).

There is no dispute

that Jinadasa’s filing of his EEOC charges constitutes protected
activity for purposes of his Title VII retaliation claim.
At the hearing on the present motion, Jinadasa
initially indicated that he was limiting the protected activity
underlying his retaliation claim to his filing of EEOC charges
and to his notifications to BYU-Hawaii that he intended to file
those charges.

The court deems that statement to encompass his

internal notification of August 25, 2011, to BYU-Hawaii’s Human
Resources Department that he viewed certain matters as
discriminatory.
Later in the hearing, Jinadasa mentioned that he was
retaliated against for having opposed BYU-Hawaii’s discrimination
towards others in 2008.

Jinadasa indicated, for example, that he

was denied training trips in 2009 and 2010 because he had opposed
discrimination in 2008.

But Jinadasa did not administratively

exhaust any such Title VII retaliation claim.

There is no

contention that Jinadasa submitted a claim to the EEOC within 300
days of being denied travel.1

See ECF No. 121-3.

1

Jinadasa may

A plaintiff must exhaust his or her administrative remedies
before bringing a Title VII claim in this court. Sommatino v.
United States, 255 F.3d 704, 707 (9th Cir. 2001) (“In order to
32

not proceed with an unexhausted Title VII claim based on being
denied training trips in 2009 and 2010 in retaliation for
Jinadasa’s opposition to alleged discriminatory practices in
2008.
For purposes of the second prong of the prima facie
case of retaliation in violation of Title VII, an “adverse
employment action” is an action that is “materially adverse” to a
reasonable employee or job applicant.

Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations
omitted).

An “adverse employment action” is one that “materially

affects the compensation, terms, conditions, or privileges of
employment.”

Davis, 520 F.3d at 1089.

An “adverse employment

action” exists when the employer’s actions are so harmful that
they could dissuade a reasonable worker from making or supporting
a charge of discrimination.

White, 548 U.S. at 68.

Normally,

“petty slights, minor annoyances, and simple lack of good
manners” will not deter a reasonable worker from making a charge

bring a Title VII claim in district court, a plaintiff must first
exhaust her administrative remedies”). A plaintiff does this by
filing a charge with the EEOC within 180 days of the occurrence
of the alleged unlawful practice. 42 U.S.C. § 2000e-5(e)(1).
However, when a person also files a charge with a state or local
agency, the EEOC charge must be filed within 300 days of the
occurrence of the alleged unlawful practice. Id.; see EEOC v.
Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000) (“Although
ordinarily the administrative charge must be filed within 180
days of the alleged unlawful employment practice, the deadline is
extended to 300 days if the charge is initially filed with a
state agency that enforces its own anti-discrimination laws.”).
33

of discrimination, id., while termination, dissemination of a
negative employment reference, issuance of an undeserved
performance review, and refusal to consider a plaintiff for a
promotion may.

See Brooks v. City of San Mateo, 229 F.3d 917,

928-29 (9th Cir. 2000).
The Ninth Circuit has adopted the EEOC’s guidelines for
what constitutes an adverse employment action in the Title VII
context, ruling that an adverse employment action is any adverse
treatment that “is reasonably likely to deter the charging party
or others from engaging in protected activity.”

Ray v.

Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000); accord Elvig
v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004).
Thus, the Ninth Circuit defines “adverse employment actions”
broadly, not limiting them to actions such as discharges,
transfers, or demotions.
1118 (9th Cir. 2002).

See Lyons v. England, 307 F.3d 1092,

Adverse employment actions may include

lateral transfers, unfavorable job references, and changes in
work schedules, but not “every offensive utterance by co-workers”
is an adverse employment action because “offensive statements by
co-workers do not reasonably deter employees from engaging in
protected activity.”

Ray, 217 F.3d at 1243.

With respect to the causation requirement in a prima
facie case of retaliation, a court may infer causation when an
adverse employment action occurs “fairly soon after the

34

employee’s protected expression.”
1065.

See Villiarimo, 281 F.3d at

“Causation sufficient to establish the . . . [causal link]

element of the prima facie case may be inferred from
circumstantial evidence, such as the employer’s knowledge that
the plaintiff engaged in protected activities and the proximity
in time between the protected action and the allegedly
retaliatory employment decision.”

Yartzoff v. Thomas, 809 F.2d

1371, 1376 (9th Cir. 1987).
Under the McDonnell Douglas framework, once a plaintiff
succeeds in presenting a prima facie case, the burden then shifts
to the defendant to articulate a “legitimate, nondiscriminatory
reason” for its employment decision.
F.3d 1163, 1168 (9th Cir. 2007).

Noyes v. Kelly Servs., 488

“Should the defendant carry its

burden, the burden then shifts back to the plaintiff to raise a
triable issue of fact that the defendant’s proffered reason was a
pretext for unlawful discrimination.”

Id.

There is no dispute that Jinadasa’s filing of EEOC
charges was protected activity for purposes of his Title VII
retaliation claim.

See ECF No. 131-1, PageID # 1512 (“BYUH does

not dispute that Plaintiff engaged in protected activity by
filing his EEOC charges.”).

The Fourth Amended Complaint asserts

that, in retaliation for exercising Title VII rights Jinadasa
was: (1) banned from the BYU Hawaii campus; (2) barred from
attending a worship service; (3) barred from attending a family

35

wedding on the BYU Hawaii campus; (4) singled out for violation
of BYU Hawaii policy while more severe violations by others were
ignored; (5) given bad performance reviews; (6) denied training
trips and awards; (7) yelled at; (8) left out of key decision
making; and (9) not invited to parties.

The court examines each

of these alleged adverse employment actions below.
1.

Jinadasa Does Not Show that the Ban From
Campus, Which Kept Jinadasa From a Worship
Service and Family Wedding, Was Caused By His
Exercise of a Protected Right.

There is no dispute that Black’s 5-day suspension of
Jinadasa, which was accompanied by a ban on Jinadasa’s presence
on campus or at the office during the suspension, amounted to an
adverse employment action.

The issue is rather whether that

adverse employment action was caused by Jinadasa’s exercise of a
protected right.

If he presents no evidence of that “but for”

relationship, Jinadasa does not show how he would establish a
prima facie case at trial.
Jinadasa had submitted a complaint to the BYU-Hawaii
Human Resources Department on August 25, 2011.
first EEOC charge on October 5, 2011.

He then filed his

Both of these protected

activities occurred more than a year before Black suspended him.
Jinadasa relies entirely on temporal proximity to establish
causation.

“A temporal distance of several months makes a causal

link more difficult to prove; a distance of five years severely
undermines it.”

Stucky v. Haw. Dept. of Educ., 2007 WL 602105,
36

*5 (D. Haw. Feb. 15, 2007).

Compare Nidds v. Schindler Elevator

Corp., 113 F.3d 912, 919 (9th Cir. 1996) (4-month period between
protected activity and layoff was sufficiently close to satisfy
“causal link” prong), and Yartzoff v. Thomas, 809 F.2d 1371, 1376
(9th Cir. 1987) (3-month period sufficient to infer causation),
with Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003)
(no causal inference possible when 9 months separated protected
activity from adverse employment action).
The Supreme Court observed in Clark County School
District v. Breeden, 532 U.S. 268, 273 (2001), that the requisite
“temporal proximity must be ‘very close.’”

Breeden cites with

approval cases from the Seventh and Tenth Circuits holding that
3- and 4-month periods do not support an inference of causation.
Id.

More recently, the Ninth Circuit has cautioned courts

against engaging in a “mechanical inquiry into the amount of time
between the speech and alleged retaliatory action.”

Anthoine v.

N. Central Counties Consortium, 605 F.3d 740, 751 (9th Cir.
2010).

In short, there is no “bright line” rule providing that

any particular period is always too long or always short enough
to support an inference.

See Coszalter v. City of Salem, 320

F.3d 968, 977-78 (9th Cir. 2003).

However, under the

circumstances presented here, it is clear that the year between
the suspension and the filing of the EEOC charge is too long a
period to support an inference of causation.

37

Instead, the record

indicates that the suspension flowed from what BYU-Hawaii viewed
as Jinadasa’s disrespectful and increasingly hostile
communications, which he had been warned about.
Even if Jinadasa could be said to have established a
prima facie case, BYU-Hawaii would be entitled to summary
judgment with respect to the portion of the Title VII retaliation
claim based on the suspension and ban from campus, as BYU-Hawaii
establishes a legitimate nondiscriminatory reason for its actions
and Jinadasa fails to raise a genuine issue of fact as to
pretext.

BYU-Hawaii has demonstrated a legitmate,

nondicriminatory reason for suspending Jinadasa and banning him
from campus.

Jinadasa had repeatedly sent e-mails to his

coworkers, supervisors, and the Human Resources Department that
BYU-Hawaii told Jinadasa were inappropriate.

Jinadasa provides

no evidence that BYU-Hawaii’s explanation for the suspension and
ban is pretextual.

Jinadasa does not even attempt to identify

evidence he might introduce at trial that would cast doubt on
BYU-Hawaii’s stated explanation.

Under these circumstances, BYU-

Hawaii is entitled to summary judgment to the extent Jinadasa
bases his Title VII retaliation claim on his suspension and ban
from campus.

38

2.

Jinadasa Does Not Show That He Was Treated
More Harshly Than Others For Similar
Violations of the Honor Code.

As discussed above, Jinadasa fails to establish the
factual predicate for his claim that his Honor Code violations
netted him harsher discipline than was imposed on similarly
situated employees.

Accordingly, this provides no basis for a

Title VII retaliation claim.
3.

Jinadasa Does Not Show That He Got a Bad
Performance Review Because He Had Exercised a
Protected Right.

Jinadasa claims to have received poor performance
reviews in retaliation for his discrimination complaints.

BYU-

Hawaii begins by arguing that Jinadasa has admitted that he did
not receive poor performance reviews.

For example, in his motion

for summary judgment, Jinadasa states, “From 2007 to the present
day, the plaintiff has received over average performance
reviews.”

ECF No. 115, PageID # 1225.

Exhibit 23 to Jinadasa’s

deposition is a copy of his 2012 performance evaluation by Black.
ECF No. 132-5, PageID #s 1718-20.

Jinadasa characterized this

review as “an above average performance review.”

Jinadasa Depo.

at 103-04, ECF No. 132-5, PageID #s 1594-95.
This court does not think Jinadasa’s statements about
getting good reviews negate his claim.

A review that on the

whole may have been above average is not inconsistent with a
retaliation claim.

In an evaluation by Kevin Schlag dated
39

October 18, 2011, which was about 2 weeks after Jinadasa’s first
EEOC charge of October 5, 2011, Jinadasa received mostly ratings
of “3” (solid achiever), with one “4” (high achiever) and one “2”
(fair performer).

See ECF No, 132-5, PageID # 1715.

Jinadasa

received a “2” for his “communication skills” with the
explanation: “Sometimes JJ responds without gathering all the
information first, and sometimes he doesn’t follow the
organizational lines of communication.

I will not consider any

communications made in the context of JJ’s discrimination claim
in this evaluation.”

Id.

Kevin Schlag’s October 2011 rating of “2” for
Jinadasa’s “communication skills” is not sufficient to defeat
summary judgment because Jinadasa raises no genuine issue of fact
as to whether the review was undeserved.

The court notes that

the “2” Jinadasa received for “communication skills” in his 2011
performance review is the same rating he had received from Schlag
in his 2009 and 2010 performance reviews, before he had filed any
discrimination complaint in issue here.
PageID #s 1702 and 1706.

See ECF No. 132-5,

The comments for the 2010 rating state,

“Typically does well–-sometimes is not up to standards of
professional business communication.”

Id., PageID # 1706.

The

comments section for the 2009 rating simply stated, “Be
professional in all communications.”

Id., PageID # 1702.

In the

month before the 2011 performance review, Jinadasa sent the Human

40

Resources Department and Schlag e-mails stating, “How ignorant
and reckless could you and the administration be?”

Jinadasa also

complained in e-mail that Schlag had berated Jinadasa for his
“communication skills because I never kiss up to him and the rest
of the administration.”

ECF No. 144-9, PageID # 2055; ECF No.

144-12, PageID # 2059.

Although the substance of these e-mails

may have been protected because they related to Jinadasa’s EEOC
filing, Jinadasa has not presented a triable issue going to why
BYU-Hawaii’s concern about the tone of the e-mails was anything
but a legitimate nondiscriminatory reason for giving Jinadasa a
“2” for communication skills.
BYU-Hawaii has demonstrated a legitimate
nondiscriminatory reason for the rating.

Because Jinadasa does

not raise a genuine issue of fact as to whether the rating was a
pretext for discrimination or retaliation, BYU-Hawaii is entitled
to partial summary judgment to the extent Jinadasa’s Title VII
retaliation claim is based on the 2011 performance review that
gave Jinadasa a “2” for communication skills.
On or about November 2, 2012, Jinadasa’s new
supervisor, Norman Black, issued Jinadasa’s performance review
for 2012.

This review rated Jinadasa “3” or “4” in all

categories but “communication skills.”

Black rated Jinadasa a

“1” for “communication skills,” explaining, “Received counseling
and was disciplined for inappropriate communications.”

41

ECF No.

132-5, PageID # 1718.

As discussed above, Jinadasa was suspended

by Black on or about October 12, 2012, just a few weeks before
the performance review was issued.
#s 1742-43.

ECF No. 132-5, PageID

Before that suspension, Jinadasa had sent, on

September 23, 2012, an e-mail that sarcastically asked who was
“the brilliant mastermind behind this genius job posting.”
No. 132-5, PageID # 1733.

ECFR

As with the 2011 performance review,

Jinadasa’s communications provided BYU-Hawaii with a legitimate
nondiscriminatory reason for the rating he received for
“communication skills” on his 2012 annual performance review.
Because Jinadasa does not raise a genuine issue of fact as to
whether the stated reason is a pretext for discrimination or
retaliation, BYU-Hawaii is entitled to partial summary judgment
with respect to the portion of the Title VII retaliation claim
based on the 2012 performance review.
4.

Jinadasa Does Not Show That His
Discrimination Complaints Were the “But For”
Reason He Was Denied Training Trips.

Jinadasa next claims that he was retaliated against in
violation of Title VII when he was denied training trips in 2009
or 2010.

But because the training trips occurred before Jinadasa

complained about discrimination in 2011 to the Human Resources
Department or filed charges with the EEOC in 2011, the denial of
approval for Jinadasa to attend the conferences could not have
been in retaliation for that protected activity.

42

Jinadasa testified that he asked Schlag if he could
attend a Drupal conference in New York or Washington in either
2009 or 2010.

Jinadasa explained in his deposition that Schlag

said that Jinadasa could not attend the conference because the
budget had already been spent.
No. 132-5, PageID # 1614.

See Jinadasa Depo. at 139, ECF

Because the denial of the training

trips preceded the submission of the 2011 complaint to the Human
Resources Department and the EEOC charges, that denial cannot
possibly have been in retaliation for that protected activity.
At the hearing on the present motions, Jinadasa
indicated that he was denied training trips in 2009 and 2010 in
retaliation for having opposed discriminatory practices in 2008.
As noted above, however, Jinadasa did not timely exhaust his
administrative remedies with respect to such a retaliation claim.
That is, he filed no EEOC charge within 300 days of the denial in
2009 or 2010.
5.

Jinadasa Does Not Show That He Was Denied Any
Awards in Retaliation For His Discrimination
Complaints.

Jinadasa says he was denied a monetary award in 2012.
He explained that he had been nominated for an award by a
department manager.
PageID # 1611-12.

See Jinadasa Depo. at 135-36, ECF No. 132-5,
Jinadasa said that, in the end, BYU-Hawaii

gave the award to someone else based on “Favoritism,

43

discrimination, nepotism, whatever you call it.”

Id. at 138,

PageID # 1613.
This court notes that favoritism might not relate to
any matter covered by Title VII.

While it might not make sense

to hand out purportedly merit-based awards to people just because
one likes them, one might like them for reasons unrelated to
race.
VII.

Not all forms of discrimination are prohibited by Title
This court nevertheless assumes for purposes of this order

that Jinadasa is asserting that the giving of the award involved
race discrimination.
Norman Black explains that the award at issue, the
Exemplary Employee Award, “recognizes employees for excellent
work and exemplifying BYUH’s mission, purpose, and initiatives.”
Decl. of Norman Black ¶ 9, ECF No. 132-2, PageID # 1546.

Black

says that, at the time of Jinadasa’s nomination for the award in
2012, Jinadasa had already displayed his pattern of disrespectful
conduct toward his supervisors and coworkers.

Id.

¶ 10.

Jinadasa presents no evidence suggesting that his
failure to receive the award was caused by his discrimination
complaints.

It is not even clear that the giving of the award to

someone else amounts to an adverse employment action, as the
giving of a discretionary award to someone else might not be
“reasonably likely to deter the charging party or others from
engaging in protected activity.”

44

Ray, 217 F.3d at 1242-43.

But

even if not receiving a discretionary award could be considered
an adverse employment action, Jinadasa fails to raise an issue of
fact as to whether the award should have instead been given to
him.

Jinadasa does not dispute that he sent his supervisors,

coworkers, and the Human Resources Department a series of e-mails
that he was told were inappropriate.

This might have

disqualified him from receiving an award for “excellent work and
exemplifying BYUH’s mission, purpose, and initiatives.”
This court fully understands that discretionary acts
like awards may well be fertile ground for discrimination that
perpetrators may think will go undetected.

The discretionary

nature of an award does not remove it from scrutiny, especially
when, like here, the award also comes with money.

At the same

time, a claimant cannot escape his proof obligations by simply
saying, “I should have been chosen.”

Here, multiple people were

nominated for the award, and Jinadasa must show not only that
retaliation was in play but also that, but for that
discrimination, he would have been chosen.
Ct. at 2533.

See Nasser, 133 S.

Jinadasa makes no such showing.

Jinadasa essentially attempts to establish pretext by
arguing that Mindy Clark received the award in 2008.

Jinadasa

says she was undeserving of the award then because she had been
counseled for calling President Obama “satan” and for using the
word “shit.”

See Decl. of Kevin Schlag ¶¶ 22-23, ECF No. 132-1,

45

PageID # 1542.

The record contains no evidence that the award

was given to Clark after she was counseled.

What is clear is

that Clark’s counseling for saying “shit” occurred in 2009 and
that she said “satan” in November 2008, after the election.

Nor

is there any evidence of other nominees in 2008, some of whom
might have been counseled for worse offenses.

On the present

record, this court cannot infer retaliatory discrimination on the
basis of unequal treatment of similarly situated individuals.
6.

Jinadasa Does Not Present Evidence That
Schlag Yelled At Him In Retaliation For Any
Discrimination Complaint.

Jinadasa testified that Schlag “snapped” or yelled at
him on September 28, 2009.

Schlag apologized the next day.

See

Jinadasa Depo. at 114, ECF No. 132-5, PageID # 1599; 132-5,
PageID # 1721 (copy of e-mail chain).

Jinadasa says this

outburst supports his retaliation claim.
87, ECF No. 132-5, PageID # 1578.

See Jinadasa Depo. at

However, this event occurred

several years before Jinadasa’s 2011 discrimination complaints.
See ECF No. 121-3.

Jinadasa’s protected activity in 2011

therefore could not have been the “but for” cause of Schlag’s
outburst.

46

7.

Jinadasa Does Not Present Evidence That Any
Job Responsibility Changes Were in
Retaliation for Any Discrimination Complaint.

Jinadasa says he was retaliated against for having
submitted discrimination complaints when he was left out of key
decision making.
Jinadasa filed his first EEOC charge on October 5,
2011.

See ECF No. 121-3, PageID # 1416.

Jinadasa was suspended

for 5 days, as discussed above, on October 12, 2012.
132-5, PageID #s 1740-43.

See ECF No.

Jinadasa filed his second EEOC charge

on November 8, 2012, complaining about his suspension.

See ECF

No. 121-4, PageID #s 1418-19.
Jinadasa says that, after his suspension, he suffered a
series of changes in his work.

He says that, before his

suspension, he could access the Domain Name System server.
Jinadasa claims that, after his suspension, he lost that access.
He then had to wait months to address some requests that, before
the job changes, he could have easily addressed.
Depo. at 150-51, ECF No. 132-5, PageID # 1623-24.

See Jinadasa

that affected his job.

Id. at 153, PageID # 1625.

Jinadasa says
He also says

that some of the projects he had been working on were transferred
to others.

Id. at 156, PageID # 1628.

He explains that

“ownership of the face of the University on the internet to the
public went from the IT group EIS to University communications.”
Id., PageID # 1635.

47

Jinadasa’s supervisor, Black, indicates that Jinadasa
lost control over the servers when he transferred to a different
department in April 2013, while the administration of the web
servers stayed in Jinadasa’s old department.
¶ 12, ECF No. 132-2, PageID # 1546.

See Black Decl.

At the hearing on the

present motions, Jinadasa said that he was not complaining about
being transferred from the IT group EIS to University
Communications in April 2013.
Black also says he decided to change project
administration based on workload and operational needs.
Black Decl. ¶ 15, ECF No. 132-2, PageID # 1547.

See

BYU-Hawaii thus

presents legitimate, nondiscriminatory reasons for its actions.
The burden shifts to Jinadasa to raise a genuine issue of fact as
to whether the proffered reasons are a pretext for
discrimination.

Because Jinadasa does not meet that burden.

BYU-Hawaii is entitled to summary judgment with respect to the
portion of the Title VII retaliation claims based on alleged
changes in Jinadasa’s job.
8.

Jinadasa Presents No Evidence That BYU-Hawaii
Retaliated Against Him By Not Inviting Him to
Parties.

Jinadasa contends that, having complained about
discrimination, he was excluded from parties in retaliation.
However, Jinadasa presents no evidence that the parties in issue
were sponsored by BYU-Hawaii (as opposed to organized by

48

employees as private social events).

Nor does he show that he

would have been invited but for his discrimination complaints.
See Nasser, 133 S. Ct. at 2533 (requiring “but for” causation).
The Ninth Circuit has held that ostracism by other employees is
not an adverse employment action for purposes of Title VII
retaliation claims.

See Brooks v. City of San Mateo, 229 F.3d

917, 929 (9th Cir. 2000) (stating with respect to Title VII
retaliation claim, “Because an employer cannot force employees to
socialize with one another, ostracism suffered at the hands of
coworkers cannot constitute an adverse employment action.”); see
also Cooper v. S. Cal. Edison Co., 170 F. App'x 496, 498 (9th
Cir. 2006).

Accordingly, BYU-Hawaii is granted partial summary

judgment with respect to the portion of the Title VII retaliation
claims based on Jinadasa’s not having been invited to parties.
V.

CONCLUSION.
Because Jinadasa has withdrawn his gender

discrimination claims with prejudice, the court denies as moot
BYU-Hawaii’s motion for partial summary judgment with respect to
those claims.

However, with respect to the remaining claims, the

court grants summary judgment to BYU-Hawaii and denies Jinadasa’s
motion for summary judgment.

Because this order leaves no claims

for further adjudication, the trial date and all deadlines and/or
court dates are vacated.

49

At the hearing on the motions disposed of by this
order, Jinadasa indicated that he was considering leaving
employment with BYU-Hawaii.

That suggests that any settlement

might be achieved by a monetary sum.

This court will delay the

entry of judgment to allow the parties to conduct a settlement
conference with Magistrate Judge Kenneth J. Mansfield on November
17, 2016, at 10:30 a.m.

Ex parte sealed settlement statements

shall be delivered to Magistrate Judge Mansfield no later than
November 14, 2016.

These should not be filed with the Clerk of

Court.
The court will enter judgment on or after December 1,
2016, or upon notification from Magistrate Judge Mansfield that
judgment should be entered, whichever is earlier.

If it appears

that settlement is a possibility, this court will further delay
the entry of judgment to allow the settlement process to
continue.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 9, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Jinadasa v. Brigham Young University-Hawaii, et al., Civ. No. 14-00441
SOM/BMK; ORDER GRANTING WITH RESPECT TO RACE DISCRIMINATION CLAIMS AND DENYING
MOTION FOR PARTIAL SUMMARY JUDGMENT AS MOOT WITH RESPECT TO WITHDRAWN SEX
DISCRIMINATION CLAIM; ORDER DENYING PLAINTIFF JINENDRA JINADASA'S MOTION FOR
SUMMARY JUDGMENT

50