Abell v. United States Department of the Interior et al

Filing 62

MEMORANDUM DECISION AND ORDER re 48 MOTION to Strike Declarations Submitted in Reply filed by Leann Abell and 32 MOTION for Summary Judgment of, in the alternative, Partial Summary Judgment filed by Ryan Zinke. IT IS HEREB Y ORDERED: Defendant's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (Dkt. 32 ) is GRANTED, in part, and DENIED, in part. Plaintiff's Motion to Strike Declarations Submitted in Reply (Dkt. 48 ) is DENIED as moot. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 2:17-cv-00531-REB

LEANN ABELL,

MEMORANDUM DECISION AND
ORDER RE:

Plaintiff,
vs.
UNITED STATES DEPARTMENT OF THE
INTERIOR, RYAN ZINKE, Secretary; BUREAU
OF LAND MANAGEMENT,

DEFENDANT’S1 MOTION FOR
SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, PARTIAL
SUMMARY JUDGMENT
(Dkt. 32)

Defendants,
PLAINTIFF’S MOTION TO STRIKE
DECLARATIONS SUBMITTED IN
REPLY
(Dkt. 48)
Pending before the Court are (1) Defendant’s Motion for Summary Judgment or, in the
Alternative, Partial Summary Judgment (Dkt. 32), and (2) Plaintiff’s Motion to Strike
Declarations Submitted in Reply (Dkt. 48). Having carefully considered the record, participated
in oral argument, and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
I. GENERAL BACKGROUND
Plaintiff LeAnn Abell is a 57-year-old botanist who works for the BLM’s Coeur d’Alene
District – she has worked for the BLM since 1988 and has been a full-time botanist for the Coeur
d’Alene District since 1999. Through this action, Abell claims that she has been discriminated
against, retaliated against, and subjected to a hostile work environment because of her age. See
1

On November 27, 2018, the Court granted then-Defendants’ Motion to Dismiss,
dismissing the United States Department of the Interior and the Bureau of Land Management
(“BLM”) from this case. See generally 11/27/18 MDO (Dkt. 27). Therefore, only Secretary
Ryan Zinke (now David Bernhardt) is the proper defendant.
MEMORANDUM DECISION AND ORDER - 1

generally Am. Compl., ¶¶ 20-29 (Dkt. 8) (asserting lone cause of action as “Claim of
Discrimination, Hostile Work Environment, and Retaliation Based on Age”). Through the atissue Motion, Defendant argues that summary judgment is appropriate because “(1) nearly all of
the purported acts or omissions upon which Abell bases her claims do not constitute adverse
employment actions; (2) many of the purported adverse employment actions took place long
before Abell contacted the Equal Employment Office and thus are not actionable; (3) there were
legitimate, nondiscriminatory reasons for any counselling or discipline; (4) there is no causal link
between Abell’s age and the purported adverse employment actions; and (5) the purported
harassment was not severe or pervasive.” Def.’s MSJ, pp. 1-2 (Dkt. 32).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary
judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It is “not a disfavored procedural shortcut,” but is instead the
“principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute
as to any material fact – a fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and
the court must not make credibility findings. See id. at 255. Direct testimony of the non-movant
must be believed, however implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.
MEMORANDUM DECISION AND ORDER - 2

1999). On the other hand, the court is not required to adopt unreasonable inferences from
circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to a material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To
carry this burden, the moving party need not introduce any affirmative evidence (such as
affidavits or deposition excerpts) but may simply point out the absence of evidence to support
the non-moving party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th
Cir. 2000). This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. See Devereaux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her . . . affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477
U.S. at 324 (internal quotation marks omitted).
However, the court is “not required to comb through the record to find some reason to
deny a motion for summary judgment.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029
(9th Cir. 2001). Instead, the “party opposing summary judgment must direct [the court’s]
attention to specific triable facts.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th
Cir. 2003).
III. DISCUSSION
A.

Age Discrimination Claim
The Age Discrimination in Employment Act (“ADEA”) makes it “unlawful for an

employer . . . to discharge any individual,” or otherwise discriminate against an employee
because of her age. 29 U.S.C. § 623(a). “To prove discrimination because of age, [Abell] must
introduce evidence from which a reasonable jury could conclude, in light of common experience,
that it was more likely than not that the employer’s adverse action was motivated by
MEMORANDUM DECISION AND ORDER - 3

consideration of [her] age.” Maxfield v. Brigham Young Univ.-Idaho, 27 F. Supp. 3d 1077, 1086
(D. Idaho 2014) (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80 (1978)). “Age
discrimination can be established through either direct or indirect evidence.” Mousaw v. Teton
Outfitters, LLC, 2016 WL 5746344, at *4 (D. Idaho 2016) (citing Coghlan v. Am. Seafoods Co.,
LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)). However, simply proving age “played a role” in the
adverse action is not enough to prevail; rather, “a plaintiff must prove that age was the ‘but-for’
cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009) (holding that mixed-motive theory applicable to Title VII claims is not available in
ADEA claims).
The Ninth Circuit utilizes the three-step McDonnell Douglas burden-shifting framework
to analyze age discrimination cases. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994). Under this framework, the employee must first establish a prima facie case of age
discrimination; once the employee has done so, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its adverse employment action; if the employer satisfies
its burden, the employee must then prove that the reason advanced by the employer constitutes
mere pretext for unlawful discrimination. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201,
1207 (9th Cir. 2008).
A plaintiff can establish a prima facie age discrimination case based on circumstantial
evidence by showing the following: (1) that she is a member of a protected class; (2) that she
was qualified for her position and performing her job satisfactorily; (3) that she experienced
adverse employment action; and (4) that similarly situated individuals outside of the protected
class were treated more favorably, or other circumstances surrounding the adverse employment
action give rise to an inference of discrimination. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d
1151, 1155 (9th Cir. 2010) (citing Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.
MEMORANDUM DECISION AND ORDER - 4

2004)). “The requisite degree of proof necessary to establish a prima facie case for . . . ADEA
claims on summary judgment is minimal and does not even need to rise to the level of a
preponderance of the evidence.” Wallis, 26 F.3d at 889; see also Chuang v. Univ. of Cal. Davis,
Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (“As a general matter, the plaintiff in an
employment discrimination action need produce very little evidence in order to overcome an
employer’s motion for summary judgment.”).
The ADEA defines an adverse employment action as one that “materially affect[s] the
compensation, terms, conditions, or privileges of . . . employment.” Chuang, 225 F.3d at 1126;
see also 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s
age.”). Abell initially alleges that she “suffered adverse employment actions because of her
age,” specifying “those actions” within her Amended Complaint as including:


Being denied opportunities that would lead to promotion;



Being denied training opportunities that would lead to pay raises and/or
promotions;



Being subjected to increased standards of performance that other younger
workers are not subjected to;



Being denied opportunities to relocate her position;



Being denied opportunities to work a more favorable schedule; and



Being disciplined without cause and because of her age.

Am. Compl., ¶ 20 (Dkt. 8); see also id. at ¶¶ 21-23 (alleging that no explanation for claimed
adverse actions exists, other than age discrimination; Abell’s supervisors took no action on
complaints about said discrimination; and younger employees were (and are) treated more
favorably than Abell).
MEMORANDUM DECISION AND ORDER - 5

Defendant disagrees, arguing that “Abell cannot recall being demoted, being denied any
specific promotion, or losing any benefits within the past five years.” Mem. ISO MSJ, p. 14
(Dkt. 32-1) (citing Ex. B to Wucetich Decl. at 129:16-131:21 (Dkt. 32-26)). In turn, Defendant
attempts to identify various “perceived slights” that, while possibly representing adverse
employment actions in Abell’s mind, actually do not.2 See id. at pp. 15-21. For instance,
Defendant argues that:


“The Letter Of Counsel Was Just A Written Warning”;



“Abell Cannot Base Her Claim On A Purported Failure To Promote
Because She Did Not Seek Out Any Promotions”;



“The Purported Denial Of Training Requests Did Not Affect The Terms
And Conditions Of Abell’s Employment”;



“The Denial Of Abell’s Request To Be Transferred To A Supervisor In
Another Field Office Was Not An Adverse Employment Action”;



“The Purported Denial Of Abell’s Request To Switch To A First-40 Work
Schedule Is Not An Adverse Employment Action”;



“Adding A Teamwork Criteria To The Entire Field Office’s Performance
Evaluations Was Not An Adverse Employment Action Toward Abell”;



“Abell’s Purported Exclusion From Meetings Did Not Alter The Terms And
Conditions Of Her Employment”;

2

Defendant’s approach here is likely a function of attempting to pinpoint (or, at the very
least, rule out) those particular actions that do and do not form the basis of Abell’s age
discrimination claim. That is, armed initially with only the allegations within Abell’s Amended
Complaint, Defendant presumably tested the same in discovery and came to understand that
Abell is of a mind that she has been discriminated against due to her age by virtue of various
circumstances in her workplace over time. See Mem. ISO MSJ, p. 15 (Dkt. 32-1) (“Accordingly,
Abell strings together a litany of perceived slights over the past seven years in the hopes that one
will pass muster.”). Of course, even if Defendant is correct in arguing that such conduct does not
represent adverse employment actions, Abell’s age discrimination claim is not put to rest as a
matter of law; it just means that the claim cannot be premised upon that particular complained-of
conduct. To be sure, Defendant prefaces its argument by stating that “nearly all of the acts and
omissions upon which Abell bases her [age discrimination and retaliation claims] do not
constitute adverse employment actions.” Id. at p. 14 (emphasis added). In fact, it is possible that
other acts exist to support the claim(s). See supra.
MEMORANDUM DECISION AND ORDER - 6



“Evans’s Promotion Did Not Result In A De Facto Demotion of Abell”; and



“Purported Teasing By Co-Workers For Wearing Large, Noise Cancelling
Headphones In The Office Is Not An Adverse Employment Action.”

Id. According to Defendant, because none of these actions amounts to a requisite adverse
employment action, there can be no age discrimination claim tethered thereto.
Abell does not respond to these arguments specifically (at least in the context of her age
discrimination claim), but instead generally states:
In the case at bar, Ms. Abell can show that she was subjected to employment actions
that materially affected the compensation, terms, and conditions of her
employment. She was forced to give up acting field manager duties because she
would not participate in creative, and perhaps, illegal timekeeping related to the
way that younger workers were allowed to work. Part of her job description was
given to another younger worker making her position ineligible for GS-12 paygrade
status. She was given a lower performance review with no explanation on the
review. The lower rating made her ineligible for cash awards which she had
previously received. She was also suspended from work for three days without
pay.
Opp. to MSJ, p. 20 (Dkt. 41); cf. Reply ISO MSJ, pp. 1-2 (Dkt. 47) (Defendant stating in its
reply: “In fact, Abell does not even address any of the case law discussed in the Secretary’s
memorandum which establishes that the alleged acts do not rise to the level of an adverse
employment action. Instead, Abell argues that there are some acts, which previously were not
the focus of her complaint,[3] that can constitute an adverse employment action under the broader
definition applied in retaliation claims.”). The Court therefore understands that Abell’s age
discrimination claim has been distilled down to include only those actions explicitly cited by
Abell in her briefing to represent actionable discriminatory conduct, to wit: (1) being taken off

3

This is an overstatement. The age discrimination-related arguments contained in
Abell’s opposition to Defendant’s Motion for Summary Judgment are more-or-less consistent
with certain of the allegations contained within the Amended Complaint. See supra. At the
same time, it is not incorrect to state that Abell’s claims in this respect are less-than-exact and
have arguably even morphed over time. This Memorandum Decision and Order recognizes as
much and attempts to “settle the pond” on this issue.
MEMORANDUM DECISION AND ORDER - 7

acting manager duties for not approving younger employees’ falsified time records; (2) assigning
her job duties to a younger employee, thereby ensuring that she would not be promoted from pay
grade 11 to pay grade 12; (3) receiving poor performance reviews, making her ineligible for a
monetary award; and (4) being suspended from work without pay. See supra.4
These actions, viewed in the light most favorable to Abell, constitute adverse
employment actions; each materially affects Abell’s compensation, terms, conditions, and/or
privileges of employment – premised as they are upon allegations that younger employees were
treated more favorably at each turn. Such allegations have many moving parts, the nuts and bolts
of which are unquestionably fact-dependent and, thus, beyond the reach of this Memorandum
Decision and Order when considering the procedural setting presented by Defendant’s Motion
for Summary Judgment. Suffice it to say, for each of these actions, Abell contends:


Removal From Field Manager Duties: “Younger employees were receiving
cash awards that were not given to older employees meeting the same criteria.
Younger employees were submitting timesheets that appeared to be falsified, in
that they included hours which were not actually worked. As acting field
manager [Abell] was asked to approve these timesheets. Since Ms. Abell did
not want to be complicit in the falsified time records, she asked to be taken off
acting manager duties.” Abell’s SOF, p. 2 (Dkt. 42) (internal citations omitted).



Doug Evans’s Promotion and Reduction of Job Duties: “Doug Evans, a
younger employee, was promoted in Fall 2011. Mr. Pavlat [(Abell’s
supervisor)] split off some of Ms. Abell’s job description to Mr. Evans without
discussing it with her. By taking away some of Ms. Abell’s authority and duties
and assigning them to someone else, Ms. Abell’s position was assured to be
locked at pay grade 11 instead of being eligible for pay grade 12 designation.”
Id. at pp. 2-3 (citing Abell Decl., ¶ 8 (Dkt. 44) (“By taking away some of my
job responsibilities and authority and giving it to Mr. Evans, a younger worker,
Mr. Pavlat insured that my position would never meet the requirements for GS12 paygrade eligibility, consistent with other specialists that were assigned to
both the Cottonwood and Coeur d’Alene field offices. . . . . [My job description]
describes what is supposed to be my ability to delegate. Instead of allowing me

4

In this aspect, Defendant’s Motion for Summary Judgment is granted, in part, to the
extent that its arguments concerning possible bases for Abell’s age discrimination claim are
neither confirmed, nor even addressed, by Abell herself in her briefing on the matter. See Fed.
R. Civ. P. 56(e)(3).
MEMORANDUM DECISION AND ORDER - 8

to delegate what I wanted, Mr. Pavlat, as part of a promotion of Mr. Evans,
assigned away permanently some of my responsibilities.”)).5


Poor Performance Reviews: After raising concerns about disparate treatment,
“[o]n October 28, 2016, Mr. Pavlat completed a performance review of Ms.
Abell. It was the lowest review she had ever received. Typically, Ms. Abell
received a superior rating which entitled her to a monetary award. The lower
rating made her ineligible for a monetary award. . . . . Also in 2017, a new
critical element was added to Ms. Abell’s performance review. This element is
completely subjective, and as far as it is known, Ms. Abell is the only one in
the office to have this element as a part of a performance evaluation.” Abell’s
SOF, pp. 5, 7 (Dkt. 42) (citing Abell Decl., ¶¶ 28, 37-38 (Dkt. 44) (“Mr. Pavlat
did not explain to me why my rating was lower. He also did not put any
comments on the review which would explain the lower rating. Typically, I
received a superior rating, which entitled me to a monetary award. The 2016
performance review did not entitle me to a performance award. . . . . Shortly
after my 2016 review, Mr. Pavlat added critical element number 4 [(“Teamwork
and Communication”)] to my evaluation. This element is completely
subjective. As far as I know, I am the only one in the office to have this element
as a part of my performance evaluation. Every performance evaluation I’ve
received since 2016 has been lower than a superior rating without any
explanation. I also have not received another performance cash award.”)).6



Suspension: “In 2018, after Ms. Abell made another complaint about unequal
treatment regarding the in/out board, Mr. Pavlat attempted to suspend Ms. Abell
for seven days. On July 12, 2018, he gave her a proposed 7-Day suspension
based on inappropriate conduct and false or unfounded statements. In the
proposed 7-Day suspension document, Mr. Pavlat made it clear that Ms. Abell
should not be allowed to make complaints [and] he stated it was inappropriate

5

Defendant objects to Abell’s comments on this point, arguing that they lack personal
knowledge, are speculative, and that she testified that she opted not to pursue promotional
opportunities. See Obj. to Abell Decl., p. 2 (Dkt. 47-1); see also Mem. ISO MSJ, p. 20 (Dkt. 321). The Court disagrees that Abell lacks the personal knowledge to describe a “before and after”
situation involving her job duties. Separately, in determining admissibility for summary
judgment purposes, it is the contents of the evidence rather than its form that must be considered.
See Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (affirming consideration of
hearsay contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony
of contents would not be hearsay). Finally, that Abell may never have sought a promotion in the
past does not ipso facto mean that, as a matter of law, she would not have sought a promotion
had she been qualified for one at some other future point in time.
6

Defendant again objects, arguing that it lacks personal knowledge in that, in fact, Abell
was not entitled to a monetary award even if she had a higher rating. See Obj. to Abell Decl., pp.
5-6 (Dkt. 47-1). This is a question of fact incapable of resolution here. Even so, the Court notes
Defendant’s argument that a “teamwork criteria” was added as an evaluation criteria for all field
office employees. See Mem. ISO MSJ, p. 19 (Dkt. 32-1) (citing Pavlat Decl., ¶ 28 (Dkt. 32-3)).
MEMORANDUM DECISION AND ORDER - 9

for her to question the actions of certain individuals or his alleged favoritism
toward them.” Abell’s SOF, p. 7 (Dkt. 42) (citing Abell Decl., ¶¶ 35-36 (Dkt.
44) (“Mr. Pavlat made it clear in his proposed suspension that he felt it was
inappropriate for me to even bring disparate treatment (favoritism) allegations.
This felt like another instance of retaliation to me. Mr. Pavlat’s attempt to have
me suspended for seven days was reviewed by Aaron Rasmussen. Mr.
Rasmussen mitigated one of Mr. Pavlat’s charges against me and sustained the
other charge. I was subjected to a three day suspension.”)).7, 8

7

Defendant again objects, arguing that Abell mischaracterizes the suspension document
and that it speaks for itself. See Obj. to Abell Decl., p. 6 (Dkt. 47-1). The parties’ respective
interpretations of the at-issue suspension document are not taken up here except to highlight
Abell’s association of her suspension (in and of itself) with an adverse employment action to
support her age discrimination claim.
8

Despite these allegations of adverse employment actions, Defendant argues that any
pre-May 9, 2016 actions cannot apply to establish prima facie age discrimination and retaliation
claims because they were not timely filed with the Equal Employment Opportunity Commission
(“EEOC”). See Mem. ISO MSJ, pp. 21-22 (Dkt. 32-1) (“Abell initially contacted the EEO on
June 21, 2016. Accordingly, any acts or omissions completed prior to May 9, 2016 are outside
the 45-day window set forth in [29 C.F.R. § 1614.105] and thus cannot serve as the purported
adverse employment actions needed to support a discrimination or retaliation claim.”). Abell
does not dispute that certain purported adverse employment actions may have occurred more
than 45 days before she initiated contact with the EEOC, but counters that Defendant “waived
this defense when it accepted, investigated, and concluded Ms. Abell’s discrimination and hostile
work environment claim from 2015 to the present in the EEO process.” Opp. to MSJ, p. 7, n.1
(Dkt. 41) (citing and quoting Ester v. Principi, 250 F.3d 1068 (7th Cir. 2001)). But Ester (a
Seventh Circuit case) explicitly recognized a split among the circuit courts, with the Ninth
Circuit “determin[ing] that an agency waives a timeliness defense when it makes a finding of
discrimination.” Id. at 1072 (citing Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985)).
Therefore, Ester does not apply; Boyd and its progeny do. The Ninth Circuit has held that where
the EEOC “made an express finding” that the complaint was timely, and the employer “neither
appealed nor refused to proceed,” but rather, “began an investigation,” the employer “may not . .
. raise the argument that it did not waive the timeliness argument” in subsequent district court
proceedings. Girard v. Rubin, 62 F.3d 1244, 1247 (9th Cir. 1995) (emphasis added). However,
the Ninth Circuit has also stated that “[t]he mere receipt and investigation of a complaint does
not waive objection to a complainant’s failure to comply with the original filing time limit when
the later investigation does not result in an administrative finding of discrimination.” Boyd, 752
F.2d at 414 (emphasis added). Here, the EEOC neither made an express finding that Abell’s
complaint was timely, nor did its investigation result in an administrative finding of
discrimination. Considering this, the Court agrees with Defendant that, to the extent any of the
purported adverse employment actions took place prior to May 9, 2016 (45 days before Abell
contacted the EEOC), they are not actionable. This discounts the alleged (1) removal from field
manager duties and (2) reduction of job duties due to Mr. Evans’s promotion as separate bases
for Abell’s age discrimination claim because they both took place before May 9, 2016. In this
limited respect, Defendant’s Motion for Summary Judgment is granted.
MEMORANDUM DECISION AND ORDER - 10

As Abell has established a prima facie case of age discrimination, McDonnell Douglas
requires that Defendant sustain its burden of articulating legitimate, nondiscriminatory reasons
for its employment decisions. See supra. To carry its burden, Defendant must “introduce
evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory
reason for the adverse action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
Defendant provides evidence that its employment-related actions towards Abell were based on
staffing and scheduling needs, in addition to Abell’s own inappropriate and unprofessional
conduct. See generally Mem. ISO MSJ, pp. 5-12, 15-24 (Dkt. 32-1). The Court finds that
Defendant has articulated legitimate, nondiscriminatory reasons related to the actions that form
Abell’s age discrimination claim. Accordingly, the burden shifts to Abell to show pretext.
A plaintiff may demonstrate pretext in two ways: “(1) indirectly, by showing that the
employer’s proffered explanation is unworthy of credence because it is internally inconsistent or
otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1148 (9th Cir. 2006)
(internal quotation marks omitted). Here, Abell argues that “[a]ny legitimate reason articulated
by the Defendant for the adverse employment actions are pretextual,” owing to (1) Mr. Pavlat’s
particular conduct in disciplining Abell as compared to other younger employees, (2) the historic
backdrop informing Abell’s discrimination claims, and (3) the timing of Abell’s poor
performance reviews. See Opp. to MSJ, pp. 20-21 (Dkt. 41); but see Mem. ISO MSJ, pp. 24-28
(Dkt. 32-1) (claiming Abell tried to put “ageist twist” on otherwise innocent remarks and
invented facts to show younger workers were purportedly treated better). Viewing the evidence
in the light most favorable to Abell, a triable issue exists as to whether Defendant’s legitimate
nondiscriminatory reasons for its employment decisions affecting Abell were a pretext for age
discrimination. See, e.g., Reynaga v. Rosenburg Forest Prods., 847 F.3d 678, 691 (9th Cir. 2017)
MEMORANDUM DECISION AND ORDER - 11

(“[W]e require very little evidence to survive summary judgment in a discrimination case,
because the ultimate question is one that can only be resolved through a searching inquiry – one
that is most appropriately conducted by the fact finder, upon a full record.”) (internal quotation
marks omitted); Noyes v. Kelly Serv., 488 F.3d 1163, 1170 (9th Cir. 2007) (“[T]he burden on
plaintiffs to raise a triable issue of fact as to pretext is hardly an onerous one.”); Reece v.
Pocatello/Chubbuck Sch. Dist. No. 25, 713 F. Supp. 2d 1222, 1231 (D. Idaho 2010) (“Because
motivations are often difficult to ascertain, ‘such an inquiry should be left to the trier of fact’
since impermissible motives are often easily masked ‘behind a complex web of post hoc
rationalizations.’”) (quoting Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1072 (9th Cir. 2003)).
Because triable issues of fact remain on Abell’s age discrimination claim, summary
judgment is inappropriate on the whole. But see supra (discussing those instances where certain
of Defendant’s arguments are well-taken and consequently where limited relief is granted).
B.

Retaliation Claim
To make out a prima facie case of retaliation under the ADEA, a plaintiff must show that

(1) she engaged in a protected activity; (2) an adverse employment action was taken; and (3) a
causal link exists between the two events. See O’Day v. McDonnell Douglas Helicopter Co., 79
F.3d 756, 763 (9th Cir. 1996). If a plaintiff can make out a prima facie case, then the McDonnell
Douglas burden shifting scheme applies. See id. The burden-shifting scheme, as well as a
plaintiff’s avenues for showing pretext in a retaliation claim, are no different than as described
above under Abell’s age discrimination claim. See Stegall, 350 F.3d at 1065-66.
As compared to the adverse employment action prong of an age discrimination claim, the
Supreme Court has indicated that, concerning retaliation claims, “an action is cognizable as an
adverse employment action if it is reasonably likely to deter employees from engaging in
protected activity,” which “means it well might have dissuaded a reasonable worker from
MEMORANDUM DECISION AND ORDER - 12

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006). Abell initially alleges in her Amended Complaint that, immediately
upon complaining about discriminatory conduct to her supervisors, she was retaliated against;
and, similarly, after lodging her age discrimination complaint with the EEOC in August 2016,
she “was subjected to additional retaliation” in the form of the following adverse employment
actions:


“Being called into her supervisor’s office for meetings, during which
groundless complaints were leveled at her”;



“Her assistant was taken from her and assigned to a younger worker”;



“Other work resources were taken from her, which caused her to miss certain
critical deadlines”;



“Exclusion from field office activities”;



“Being threatened with termination of employment”;



“Putting counseling sessions in her personnel file”; and



“Subjecting her to formal discipline.”

See Am. Compl., ¶¶ 22-24, 26 (Dkt. 8); see also id. at ¶ 27 (Abell alleging that “[t]he retaliatory
discrimination was caused by Plaintiff’s complaint of age discrimination. Retaliation can be
inferred due to the proximity in time between the timing of the complaint and the retaliatory
behavior.”).
Defendant does not dispute that Abell engaged in protected activity when she both
informally and formally made age discrimination complaints. Still, with respect to each instance
of its alleged retaliation for her doing so, Defendant argues either that there were no adverse
employment actions, no link between Abell’s protected activity and any adverse employment

MEMORANDUM DECISION AND ORDER - 13

actions, and/or non-pretextual legitimate reasons for any adverse employment actions. See
generally Mem. ISO MSJ, pp. 14-28 (Dkt. 32-1).9
Abell disagrees, claiming that she can meet her burden of establishing a prima facie
retaliation claim and “that Defendant’s alleged nondiscriminatory reasons for its retaliation
(where one is given) is merely pretext.” Opp. to MSJ, p. 6 (Dkt. 41). In doing so, Abell
highlights four “[s]eparate instances of retaliation which should survive summary judgment,”
including (1) “the NEPA process retaliation”; (2) “the Windy Bay Project retaliation”; (3) “the
EEO complaint retaliation”; and (4) “the In/Out Board retaliation.” Id. at pp. 6-14.10
Viewed in the light most favorable to Abell, each of these situations represents an
adverse employment action for the purposes of Abell’s retaliation claim; each could dissuade a

9

Defendant’s arguments here largely repeat those raised in challenging Abell’s age
discrimination claim. See generally Mem. ISO MSJ, pp. 14-28 (Dkt. 32-1). In its reply briefing,
however, Defendant additionally argues that Abell failed to exhaust her administrative remedies
for her three-day suspension in August 2018. See Reply ISO MSJ, p. 9 (Dkt. 47) (“The decision
to impose a suspension was rendered on July 31, 2018, and Abell served the suspension between
August 3 and 5, 2018. The suspension cannot be deemed to have been part of the prior
administrative proceeding because the agency issued its final decision and right to sue letter on
October 6, 2017. Accordingly, the agency action has been closed for approximately 10 months
by the time the decision to impose the suspension was made, and there is no record of Abell
initiating a new administrative action relating to the suspension.”). The Court rejects
Defendant’s argument on this point – not only was it raised for the first time in its reply briefing,
it presupposes that Abell is legally obligated to initiate a subsequent administrative complaint
relating to Defendant’s alleged retaliatory adverse employment actions flowing from her initial,
underlying administrative complaint. See, e.g., Emery v. Potter, 2007 WL 9724323, at *7 (D.
Ariz. 2007) (“Courts have held that the claim of retaliation is related to the EEO charge if the
protected activity alleged is the filing of the EEO charge.”) (citing Gupta v. E. Tex. State Univ.,
654 F.2d 411, 414 (5th Cir. 1981) (holding it was, “unnecessary for a plaintiff to exhaust
administrative remedies prior to urging a retaliation claim growing out of an earlier charge.”);
Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991) (charge of retaliation in response to filing
complaint with EEOC was not barred by failure to file EEOC charge about such retaliation,
where retaliation claim was reasonably related to prior sex discrimination claim)).
10

The Court understands that, by focusing upon these specific “instances of retaliation”
in her briefing, Abell adds detail to her original allegations, such that, like her age discrimination
claim (see supra), her retaliation claim encompasses only these events.
MEMORANDUM DECISION AND ORDER - 14

reasonable worker from raising a claim of discrimination – the common denominator between
them being (1) a precedent complaint of discrimination and/or disparate treatment, followed by
(2) recriminations at the hands of a supervisor. Such allegations are again fact-dependent, with
Abell’s and Defendant’s discordant points of view surrounding these events impossible to
resolve as a matter of law. Even so, it is enough in this procedural setting that, for each of these
actions, Abell contends:


The NEPA Process Retaliation: “On May 28, 2015, Ms. Hugo [(a younger
employee)] implemented a wildlife project with no special status plan species
inventory or NEPA analysis. This was in violation of the Act. Ms. Abell raised
concern about this favoritism to Kurt Pavlat. Mr. Pavlat informed Ms. Abell
that he was simply going to move forward with the project and not require the
NEPA [analysis]. Ms. Abell then brought her complaint to Mr. Pavlat’s
supervisor Linda Clark. Ms. Clark understood that Ms. Abell’s complaint was
really about treating younger employees more favorably than older employees.
Yet, she did nothing to address the issue or follow-up with Ms. Abell. On June
3, 2015, Mr. Pavlat wrote a memo to the file and instead of noting the illegality
of Ms. Hugo’s behavior he says that Ms. Abell was ‘unprofessional’ for
bringing the Complaint. On June 9, 2015, Ms. Clark and Mr. Pavlat met with
Ms. Abell, but instead of addressing Ms. Abell’s concerns about the disparate
treatment, they threatened her, and Mr. Pavlat indicated that he was putting a
counseling session note into Ms. Abell’s file. Mr. Pavlat described the meeting
as an attempt to address ‘Ms. Abell’s lack of teamwork/communication with
Ms. Hugo and Ms. Lyden [(Abell’s helper, but reassigned to Ms. Hugo)].’”
Abell’s SOF, pp. 3-4 (Dkt. 42) (citing Abell Decl., ¶¶ 14-17 (Dkt. 44) (“On
June 9, 2015, Ms. Clark and Mr. Pavlat met with me. I thought they were going
to address my concerns. Instead, they berated me, saying I was not being a
team player. I started crying and felt humiliated. I felt I was being threatened
with termination. Mr. Pavlat indicated that he was putting a counseling session
note into my file. Shortly after this meeting, a ‘Diversity Tracking’ email
showed up in my box. This meeting was in retaliation for complaining about
the disparate treatment of Ms. Hugo. No part of the June 9, 2015 meeting
addressed a way to assist me or re-assign Ms. Lyden to assist me. They also
never addressed the double standard applied to Ms. Hugo which allowed her to
bypass the NEPA process.”)).11

11

Defendant objects to Abell’s recounting of these events, claiming it represents
inadmissible hearsay, mischaracterizes an unauthenticated email, lacks personal knowledge, and
contradicts Abell’s deposition testimony. See Obj. to Abell Decl., pp. 3-4. Even if true, it cannot
be said that Abell’s evidence on this point cannot be presented in a form that would be
admissible at trial and/or tested at trial; therefore, Defendant’s objection cannot operate to
altogether preclude the Court’s consideration here.
MEMORANDUM DECISION AND ORDER - 15



The Windy Bay Project Retaliation: “In March of 2016, Ms. Abell was being
bullied by her younger co-workers in that they wanted to change the Windy Bay
Project on which she was the lead. Ms. Abell was the lead on that project. On
March 16, 2016, Mr. Pavlat met with Ms. Abell and instructed her to meet with
one of the younger workers and make her requested changes. Ms. Abell met
with the worker but felt that the requested changes would not follow the NEPA
process, so she refused the changes. On April 6, 2016, Ms. Abell held a meeting
regarding the Windy Bay Project. In this meeting, she attempted to address
some of the concerns she had with the project process, she documented in an
outline exactly what she addressed. Ms. Abell explained that she had her own
leadership style and asked to be respected for her own style, and she asked that
everyone do their job to effectively manage the land. The presentation was
accompanied by power point slides, many of which Ms. Abell took from a BLM
human resources training she attended. Ms. Abell followed this presentation
with another complaint to Ms. Clark. . . . . Ms. Clark and Mr. Pavlat never
addressed Ms. Abell’s concerns about the unequal treatment of younger
employees. Instead, they issued Ms. Abell a formal written Letter of Counsel
[(on May 9, 2016)] related to the April 6th presentation.” Abell’s SOF, pp. 1011 (Dkt. 42) (citing Abell Decl., ¶¶ 18, 21-25 (Dkt. 44) (“On March 16, 2016,
Mr. Pavlat met with me and instructed me to meet with Ms. Hugo and make her
requested changes to the Windy Bay Project. This is all that I recall that the
meeting was about. I understood from the meeting that if I did not make Ms.
Hugo happy, things would be bad for me and I might even be terminated.”)).12



The EEOC Complaint Retaliation: “On June 21, 2016, Ms. Abell initiated the
informal EEO complaint process with the Department of Interior. On October
7, 2016, after the conclusion of the informal process, a formal complaint was
accepted and docketed by the EEO. On October 28, 2016, Mr. Pavlat completed
a performance review of Ms. Abell. It was the lowest review she had ever
received. Typically, Ms. Abell received a superior rating which entitled her to
a monetary award. The lower rating made her ineligible for a monetary award.”
Abell’s SOF, p. 5 (Dkt. 42) (citing Abell Decl., ¶¶ 28, 37-38 (Dkt. 44) (“On
October 28, 2016, Mr. Pavlat completed my performance review. It was the
lowest review I had ever received. Mr. Pavlat did not explain to me why my
rating was lower. He also did not put any comments on the review which would
explain the lower rating. Typically, I received a superior rating, which entitled
me to a monetary award. The 2016 performance review did not entitle me to a
performance award. . . . . Shortly after my 2016 review, Mr. Pavlat added
critical element number 4 [(“Teamwork and Communication”)] to my

12

Defendant again objects, arguing that Abell’s statements lack personal knowledge, are
conclusory, and constitute inadmissible hearsay. See Obj. to Abell Decl., pp. 4-5 (Dkt. 47-1).
These arguments fail for the reasons already stated. Moreover, the Court considers Abell’s
perspective on these points as just that – informed by her subjective understanding of what took
place in the above-discussed meetings and presentations – not as what actually took place.
Abell’s perspectives (and the reasons for them) can be tested via cross-examination at trial.
MEMORANDUM DECISION AND ORDER - 16

evaluation. This element is completely subjective. As far as I know, I am the
only one in the office to have this element as a part of my performance
evaluation. Every performance evaluation I’ve received since 2016 has been
lower than a superior rating without any explanation. I also have not received
another performance cash award.”)).13


The In/Out Board Retaliation: “In 2018, after Ms. Abell made another
complaint about unequal treatment regarding the in/out board, Mr. Pavlat
attempted to suspend Ms. Abell for seven days. On July 12, 2018, he gave her
a proposed 7-Day suspension based on inappropriate conduct and false or
unfounded statements. In the proposed 7-Day suspension document, Mr. Pavlat
made it clear that Ms. Abell should not be allowed to make complaints [and] he
stated it was inappropriate for her to question the actions of certain individuals
or his alleged favoritism toward them.” Abell’s SOF, p. 7 (Dkt. 42) (citing
Abell Decl., ¶¶ 32-36 (Dkt. 44) (“On May 8, 2018, I received an e-mail from
Mr. Pavlat sent out on May 4, 2018. I thought this e-mail was addressed to me
alone because it mentioned travel to Cottonwood. I saw it as another double
standard which was being applied to me and not to the younger workers. I was
aware and had complained before about the younger workers not having to use
the in/out board or make others aware of their schedule. I responded to the email, in yet another attempt to point out Mr. Pavlat’s inconsistency in the
manner he treated older versus younger workers. I was unaware that when I
replied, I was replying to the entire office. I thought the e-mail was only
addressed to me. After I sent out my e-mail, Mr. Pavlat never once spoke to
me about it. Instead, on June 12, 2018, he delivered to me a proposed 7-Day
Suspension. Mr. Pavlat attempted to suspend me for seven days. Mr. Pavlat
made it clear in his proposed suspension that he felt it was inappropriate for me
to even bring disparate treatment (favoritism) allegations. This felt like another
instance of retaliation to me. Mr. Pavlat’s attempt to have me suspended for
seven days was reviewed by Aaron Rasmussen. Mr. Rasmussen mitigated one
of Mr. Pavlat’s charges against me and sustained the other charge. I was
subjected to a three day suspension.”)).14, 15

13

Defendant’s objections to these statements have already been addressed when
discussing Abell’s “poor performance reviews” vis à vis her age discrimination claim. See
supra.
14

Defendant’s objections to these statements have already been addressed when
discussing Abell’s “suspension” vis à vis her age discrimination claim. See supra.
15

Regardless, as stated earlier when discussing Abell’s age discrimination claim and
Defendant’s attendant waiver argument, where purported adverse employment actions took place
before May 9, 2016 (45 days before Abell contacted the EEOC), they are not actionable. See
supra. This would at least seem to discount the alleged NEPA process retaliation as a basis for
Abell’s retaliation claim because it took place in 2015. In this limited respect, Defendant’s
Motion for Summary Judgment is granted.
MEMORANDUM DECISION AND ORDER - 17

As before, because Abell has established a prima facie case of retaliation, McDonnell
Douglas calls on Defendant to produce evidence of legitimate, nondiscriminatory reasons for its
employment decisions. As before, it has done this. See supra (referencing staffing and
scheduling needs, alongside Abell’s alleged inappropriate and unprofessional conduct). This
shifts the burden to Abell to raise a triable issue of fact as to whether Defendant’s proffered
reasons for its actions are pretextual. And, as before, Abell has done this. See id. (referencing
totality of Mr. Pavlat’s conduct when disciplining Abell, including timing); see also Opp. to
MSJ, pp. 7-14 (Dkt. 41) (same). In short, because triable issues of fact remain on Abell’s
retaliation claim, summary judgment is inappropriate on the whole. But see supra (discussing
those instances where certain of Defendant’s arguments are well-taken and consequently where
limited relief is granted).
C.

Hostile Work Environment Claim
To establish a prima facie case for age-based hostile work environment under the ADEA,

a plaintiff must show that (1) the defendant subjected her to verbal or physical conduct based on
age; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to
alter the conditions of her employment and create an abusive working environment. See Surrell
v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008); Sischo-Nownejad v. Merced Cmty.
Coll. Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) (hostile work environment claim cognizable
under ADEA). “Not every insult or harassing comment will constitute a hostile work
environment.” Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000). Both subjective and
objective requirements must be satisfied by demonstrating that the plaintiff perceived the work
environment to be hostile and that a reasonable person in the plaintiff’s position would have
perceived it as hostile. See Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). In
considering the objective hostility of a work environment, the court considers the totality of the
MEMORANDUM DECISION AND ORDER - 18

circumstances, including the “frequency of discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1113 (9th Cir. 2004). Simple teasing, offhand comments, and isolated incidents (unless
extremely serious) do not amount to discriminatory changes in the terms and conditions of
employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). “The required
level of severity or seriousness varies inversely with the pervasiveness or frequency of the
conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001).
Abell states that “[t]he discrimination exhibited by Defendant was sufficiently severe or
pervasive that it constituted a hostile work environment,” initially alleging in her Amended
Complaint:
Plaintiff has been harassed and/or discriminated against on almost a daily basis,
since approximately March of 2015. The illegal actions continue. Plaintiff was
asked about when she was going to retire. She was criticized for her older
generation communication style. Plaintiff was excluded from meetings and limited
in her participation in other meetings. Further, younger co-workers of Plaintiff
were allowed to continually circumvent the chain of command, in order to cut
Plaintiff out of all processes involving her employment. Plaintiff was also publicly
reprimanded and disciplined, while Mr. Pavlat and Ms. Clark claimed to only
reprimand and discipline younger workers in private. Finally, Plaintiff’s supervisor
refused to take action on her reasonable accommodation request under the ADA.
Defendant also employed policies and practices which indicated a preference based
on age. For example, Mr. Pavlat and other supervisors stated orally, and in writing,
their preference for a younger work force and asked that all new hires be younger
workers. And, according to recent surveys, as many as 35% of all Bureau of Land
Management employees experience some form of harassment; 21% of that
harassment is based on age.
Am. Compl., ¶¶ 28-29 (Dkt. 8).
Defendant rejects this position, arguing that Abell’s subjective sensitivities, in and of
themselves, do not establish a rampant, hostile work environment for older workers at the BLM.
According to Defendant, without statements reflecting that Abell’s age drove Defendant’s
MEMORANDUM DECISION AND ORDER - 19

conduct toward her, Abell’s theory of liability necessarily fails to connect the dots between her
jaded perception and workplace reality. See Mem. ISO MSJ, p. 30 (Dkt. 32-1) (“Here, there are
no statements suggesting age-based animus. And Abell’s entire theory seems to be based on a
similar false syllogism: (A) I can’t get along with my coworkers; (B) I am older than some of
them; [so] (C) I can’t get along with my coworkers because I am older than them.”) (citing
Crawford v. Median Gen. Hosp., 96 F.3d 830, 836 (6th Cir. 1996)). Defendant has a point, but it
only goes so far when attempting to have Abell’s hostile work environment claim dismissed
from the action on summary judgment.
Clearly, Abell and some of her co-workers and supervisors have a strained relationship
stemming, at least in part, from Abell’s perception that arguably all undesirable events at work
are tied to her age. It is even true that some of what Abell complains about is not indicative of a
hostile work environment at all.16 This is to say that Defendant appropriately raises these points
in opposing Abell’s hostile work environment claim and that Abell must confront them at trial.
The Court recognizes the possibility of age discrimination and retaliation claims (see supra) such
that, if true, and combined with Abell’s further elucidation of her claim within her briefing,17
establishes not only that (1) she perceived Defendant’s conduct as hostile, abusive, and/or

16

For example, as discussed during oral argument, that Defendant has expressed an
interest in recruiting young employees is not at all unusual when attempting to fill entry-level
positions and/or trying to establish professional continuity over time.
17

Opposing Defendant’s summary judgment efforts, Abell emphasizes how (1) she
needed to step down as acting field manager in 2011 because she was asked to be complicit in
younger employees’ bogus timekeeping practices; (2) a younger worker was promoted and given
part of her job description in 2012, limiting her opportunity for advancement; (3) she was denied
training opportunities in 2013, 2016, and 2017 while training was provided to younger
employees; (4) younger workers were permitted to violate the law, whereas she was reprimanded
upon complaining about such violations; (5) she was reprimanded for using PowerPoint slides
that were used in other human resources presentations; (6) she was given poor performance
reviews after complaining about her disparate treatment; and (7) she was suspended after
mistakenly sending a critical email to the entire office. See Opp. to MSJ, pp. 16-17 (Dkt. 41).
MEMORANDUM DECISION AND ORDER - 20

humiliating, but that (2) a reasonable jury could conclude that any differences in the way she was
treated from other employees were not, as Defendant implicitly argues, the sort of innocuous
dealings that are not actionable. In other words, it is possible that a reasonable jury could find an
objectively hostile or abusive environment, because of the nature, frequency, permanence, and
cumulative effect of the alleged conduct towards older employees like Abell. Therefore,
summary judgment on the question of hostile work environment is inappropriate.
With all this in mind, though there may be some concern about Abell’s strength of proof
and whether the elements of her claims can be established to a fact-finder, the Court is not
persuaded as a matter of law that they have absolutely not been established for the purposes of
summary judgment – such is the “tilt of the table” so to speak, when assessing Defendant’s
arguments. At this stage of the litigation, the evidence must be viewed in Abell’s favor and,
doing so, warrants the denial (for the most part) of Defendant’s Motion for Summary Judgment.
Had roles been reversed and Abell moved for summary judgment on her claims, those same
factual discrepancies would have similarly prevented the entry of summary judgment in her
favor.
IV. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.

Defendant’s Motion for Summary Judgment or, in the Alternative, Partial

Summary Judgment (Dkt. 32) is GRANTED, in part, and DENIED, in part, as follows:
a.

Abell may generally proceed on her age discrimination claim; in this

respect, Defendant’s Motion for Summary Judgment is DENIED. However, Abell may only
assert those pre-May 9, 2016 actions referenced in this Memorandum Decision and Order as the
bases for her age discrimination claim; in this respect, Defendant’s Motion for Summary
Judgment is GRANTED.
MEMORANDUM DECISION AND ORDER - 21

b.

Abell may generally proceed on her retaliation claim; in this respect,

Defendant’s Motion for Summary Judgment is DENIED. However, Abell may only assert those
pre-May 9, 2016 actions referenced in this Memorandum Decision and Order as the bases for her
retaliation claim; in this respect, Defendant’s Motion for Summary Judgment is GRANTED.
c.

Abell may proceed on her hostile work environment claim; in this respect,

Defendant’s Motion for Summary Judgment is DENIED.
2.

Plaintiff’s Motion to Strike Declarations Submitted in Reply (Dkt. 48) is DENIED

as moot.

DATED: September 30, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 22