Anoruo v. Shinseki

Filing 119

ORDER Granting 64 Defendant's Motion for Summary Judgment. Clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 2/18/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSEPH CHIDI ANORUO,

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2:12-CV-1190 JCM (GWF)

Plaintiff(s),

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v.

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ERICK K. SHINSEKI,

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Defendant(s).

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ORDER

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Presently before the court is defendant Eric K. Shinseki’s motion for summary judgment.

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(Doc. # 64). Pro se plaintiff Joseph Chidi Anoruo filed a response (docs. ## 100 & 101), and

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defendant filed a reply (doc. # 103). Plaintiff then filed a supplemental response (doc. # 104), and

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defendant filed an additional reply (doc. # 110).

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I.

Background

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This case revolves around a hiring process that occurred in 2011 for the position of “oncology

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manager” for the United States Department of Veterans Affairs’ Southern Nevada Healthcare System

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(“VA”). Invoking Title VII of the Civil Rights Act, pro se plaintiff alleges that the selection of Eva

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Murphy rather than himself was the result of discrimination on the basis of his national origin.

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Plaintiff is originally from Nigeria and is now a United States citizen.

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Plaintiff graduated from Howard University with a doctorate degree in pharmacy in May

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2000. Plaintiff began working for the VA as a clinical pharmacist in 2003 at the VA’s Southwest

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Clinic. In 2004, plaintiff was appointed as an alternate I.V. pharmacist. He held this position through

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James C. Mahan
U.S. District Judge

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2011, when the hiring process at issue took place.

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Plaintiff previously filed discrimination complaints against the VA that were related to a

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2007 decision to shut down an infectious disease clinic that was run by plaintiff. This action is still

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pending before the Ninth Circuit.

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Eva Murphy is a naturalized U.S. citizen who was born in Hungary. Ms. Murphy graduated

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from Idaho State University in 1989 with a bachelor of science degree in pharmacy. She began

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working for the VA as a pharmacist in 1992. In 1996, she began working exclusively in IV infusions

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and oncology. In 2003, she transferred to the Southwest Clinic, where she worked alongside plaintiff

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until 2011. Throughout the entirety of her work with the Southwest Clinic, Ms. Murphy was the

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primary oncology pharmacist, and plaintiff worked as an “alternate” to Ms. Murphy in oncology

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pharmacy.

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On January 8, 2011, the VA posted an announcement that it was seeking applicants for the

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position of oncology manager. Plaintiff, Ms. Murphy, and another of their co-workers, Mary Ann

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Gusakov-Mason, were among the applicants for this position.

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Ultimately, Josephine Tefferi, the associate chief of outpatient clinical pharmacy programs,

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selected Ms. Murphy for the position without conducting any interviews. She later recounted that

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the reasons for selecting Ms. Murphy rather than plaintiff were that Ms. Murphy had worked for the

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V.A. far longer (nineteen years versus eight years), that she had more experience in I.V./oncology

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pharmacy, as Ms. Murphy had worked primarily in this field since 1996 whereas plaintiff began in

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2003, and the fact that plaintiff’s only position in oncology pharmacy had been to serve as an

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alternate to Ms. Murphy.

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Plaintiff first pursued this action through the Equal Employment Opportunity Commission’s

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(EEOC) administrative process. On April 12, 2012, plaintiff was issued a right to sue notice by the

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EEOC.

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Plaintiff now alleges that defendant violated Title VII because plaintiff was not hired for the

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position of oncology manager on the basis of his national origin and, alternatively, that the choice

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not to hire him was in retaliation for plaintiff’s past protected Title VII activities.

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James C. Mahan
U.S. District Judge

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II.

Legal Standard

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The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine issue as to any material fact and that the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to

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isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

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(1986).

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In determining summary judgment, a court applies a burden-shifting analysis. “When the

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party moving for summary judgment would bear the burden of proof at trial, it must come forward

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with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.

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In such a case, the moving party has the initial burden of establishing the absence of a genuine issue

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of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213

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F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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In contrast, when the nonmoving party bears the burden of proving the claim or defense, the

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moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to

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make a showing sufficient to establish an element essential to that party's case on which that party

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will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails

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to meet its initial burden, summary judgment must be denied and the court need not consider the

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nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing

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party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions

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of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th

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Cir. 1987).

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James C. Mahan
U.S. District Judge

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex Corp., 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable

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inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is

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merely colorable or is not significantly probative, summary judgment may be granted. See id. at

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249–50.

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III.

Analysis

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As an initial matter, the court acknowledges that plaintiff is pro se, and therefore his filings

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should be held to a less stringent standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document

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filed pro se is to be liberally construed, and . . . must be held to less stringent standards than formal

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pleadings drafted by lawyers.”) (internal quotations and citations omitted).

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A.

Title VII Discrimination
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Prima Facie Case

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Title VII claims are to be analyzed through the burden-shifting framework of McDonnell

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Douglas Corp. v. Green, 411 U.S. 792 (1973). “Under this analysis, plaintiffs must first establish

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a prima facie case of employment discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,

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1155 (9th Cir. 2010). “Establishing a prima facie Title VII case in response to a motion for summary

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judgment requires only minimal proof and does not even need to rise to the level of a preponderance

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of the evidence.” Palmer v. Pioneer Assocs, Ltd., 338 F.3d 981, 984 (9th Cir. 2003) (internal

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citations and quotations omitted).

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To establish a prima facie case, the plaintiff must present evidence showing: (1) he is a

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member of a protected class; (2) he was performing his job in a satisfactory manner; (3) he suffered

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James C. Mahan
U.S. District Judge

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an adverse employment action; and (4) that similarly situated individuals outside his protected class

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were treated more favorably, or other circumstances surrounding the adverse employment action give

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rise to an inference of discrimination. See, e.g., Zeinali v. Raytheon Co., 636 F.3d 544, 552 (9th Cir.

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2011).

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In this case, defendant concedes that plaintiff has established a prima facie case, because an
individual outside of his protected class was hired for the oncology manager position.
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Legitimate, Nondiscriminatory Reasons

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“If plaintiff[] establish[es] a prima facie case, the burden of production, not of persuasion,

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shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged

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action.” Hawn, 615 F.3d at 1155 (internal citations and quotations omitted). “If defendant meets this

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burden, plaintiff[] must then raise a triable issue of material fact as to whether the defendant’s

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proffered reasons for [the adverse action] are mere pretext for unlawful discrimination.” Id.

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Here, defendant has provided significant evidence demonstrating that it selected Ms. Murphy

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for the position for perfectly legitimate reasons. Defendant referred to the fact that Ms. Murphy had

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worked for the VA for nearly eleven years longer than plaintiff. Also defendant noted that Ms.

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Murphy had worked for nearly fifteen years as a specialist in I.V./oncology pharmacy, and plaintiff’s

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only role in oncology was to serve as an alternate to Ms. Murphy. Therefore, defendant has presented

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evidence demonstrating a legitimate, nondiscriminatory reason for its hiring decision.

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3.

Pretext

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“A plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer’s

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proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not

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believable, or (2) directly, by showing that unlawful discrimination more likely motivated the

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employer.” Noyes v. Kelly Servs., 488 F.3d 1163, 1171 (9th Cir. 2007) (internal citations, quotations,

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and alterations omitted). “All the evidence as to pretext–whether direct or indirect–is to be

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considered cumulatively.” Id.

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In response to the VA’s explanation for its hiring decision, plaintiff delivers a lengthy

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narrative as to why he believes he was more deserving of the position than Ms. Murphy. Plaintiff

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James C. Mahan
U.S. District Judge

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refers to the fact that he has doctorate degree in pharmacy while plaintiff merely has a bachelor of

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science degree. Plaintiff also states that the VA did not give enough consideration to his employment

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experience outside of his direct work for the VA. He also states that Ms. Murphy had rarely stepped

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up to perform the clinical aspects of being an oncological pharmacist, while plaintiff had frequently

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done so.

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Though the evidence provided by plaintiff clearly demonstrates that he thinks the wrong

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criteria were used in the hiring process, none of the evidence he presents contains any inkling that

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the VA’s decision to hire Ms. Murphy was a result of unlawful discrimination. Indeed, the mere fact

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that an employer uses inadequate criteria to determine the best candidate does not mean that the

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employer is racist. See Coleman v. Quaker Oats, Co., 232 F.3d 1271, 1285 (9th Cir. 2000) (“That

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[defendant] made unwise business judgments or that it used a faulty evaluation system does not

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support the inference that [defendant] discriminated on the basis of age.”).

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From plaintiff’s extensive analysis stating that his education and experience better qualified

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him for the position than Ms. Murphy, it is clear that plaintiff seeks a general review of the efficiency

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of the VA’s process to determine that the VA made the wrong hiring decision–this is not the role of

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the court. See Green v. Maricopa County Cmty. Coll. Sch. Dist., 265 F. Supp. 2d 1110, 1128 (D.

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Ariz. 2003) (“We do not sit as a super personnel department that

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reexamines an entity’s business decision and reviews the propriety of the decision.”)

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Accordingly, because plaintiff has provided no evidence indicating that the defendant’s

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proffered explanation for its hiring decision is pretextual, the court will grant summary judgment in

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favor of defendant on this claim.

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B.

Title VII Retaliation

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Federal law holds that “it is unlawful to retaliate against an employee because [he] has taken

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action to enforce rights protected under Title VII.” Miller v. Fairchild, 797 F.2d 727, 730 (9th Cir.

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1986). “To succeed in a retaliation claim, the plaintiff must demonstrate (1) that [he] was engaging

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in protected activity, (2) that [he] suffered an adverse employment decision, and (3) that there was

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a causal link between [his] activity and the employment decision.” Hashimoto v. Dalton, 118 F.3d

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James C. Mahan
U.S. District Judge

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671, 679 (9th Cir. 1997).

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Similar to the shortcomings in his other Title VII claim, plaintiff’s evidence only supports

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the principle that the VA made the wrong hiring decision by overvaluing the length of Ms. Murphy’s

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work history and the quality of her I.V./oncology experience. This evidence does not indicate any

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causal link between plaintiff’s pending discrimination claim and the decision by the VA not to hire

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plaintiff as an oncology manger. Accordingly, the court will grant summary judgment in favor of

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defendant on this claim.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion for

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summary judgment (doc. # 64) be, and the same hereby is, GRANTED. The clerk shall enter

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judgment accordingly and close the case.

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DATED February 18, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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