Hashem v. Army and Air Force Exchange, Service

Filing 56

ORDER denying Hashem's 39 Motion for Summary Judgment ; denying AAFES's 48 Motion for Summary Judgment and extending the deadline for dispositve motions to 5/13/2016. Signed by Judge Andrew P. Gordon on 4/15/16. (Copies have been distributed pursuant to the NEF - EW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHANIE HASHEM,

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Plaintiff,

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v.
ARMY AND AIR FORCE EXCHANGE
SERVICE,
Defendant.

Case No. 2:14-CV-00549-APG-VCF
ORDER (1) DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
(ECF NO. 39); (2) DENYING
DEFENDANT’S RENEWED MOTION
FOR SUMMARY JUDGMENT (ECF NO.
48); AND (3) EXTENDING THE
DISPOSITIVE-MOTION DEADLINE

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Plaintiff Stephanie Hashem was fired from her job at defendant Army and Air Force

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Exchange Service (“AAFES”) in July 2013. Hashem contends that, due to an elbow injury

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requiring her to perform less physically-demanding work, she was subjected to a hostile work

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environment and disability discrimination while employed at AAFES. AAFES previously

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moved to dismiss Hashem’s amended complaint, arguing that Hashem failed to exhaust her

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administrative remedies. I converted that motion into a motion for summary judgment and

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granted it for Hashem’s wrongful-termination claim and denied it for her claims for hostile work

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environment and disability discrimination. ECF No. 21.

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Hashem now moves for summary judgment on her remaining claims, arguing that

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AAFES’s denial of some of her discovery requests based on a lack of knowledge demonstrates

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that there is no genuine dispute of material fact. AAFES renews its motion for summary

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judgment and argues that Hashem’s deposition testimony establishes that she failed to file a

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formal complaint with AAFES and has thus failed to exhaust her administrative remedies.

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I deny Hashem’s motion because she did not make legal arguments demonstrating that

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she is entitled to judgment as a matter of law. I also deny AAFES’s motion because it provided

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unauthenticated deposition excerpts that, even if considered, do not demonstrate that Hashem did

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not file a formal complaint with AAFES.

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I.

BACKGROUND
AAFES hired Hashem as a food-service worker in January 1989. ECF No. 39 at 4. In

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December 2012, a doctor recommended Hashem’s work activities be limited due to an injury to

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her elbow. Id. Hashem claims she informed her supervisors of her limitations but her

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supervisors advised her that “there was no such thing as light duty.” Id. at 5. According to

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Hashem, they also told her that she would be terminated if she missed work for an extended

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period of time due to the injury, and she was given physically demanding tasks against her

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doctor’s orders. Id. Hashem states that she filed an EEO complaint on April 24, 2013. ECF No.

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51 at 5–6. According to Hashem, she was subsequently terminated for conduct that was a

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common practice among AAFES employees. ECF No. 39 at 6.
Hashem filed this suit on April 10, 2014, asserting various federal and state law claims

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related to her employment and termination. ECF No. 1. Hashem later filed an amended

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complaint asserting claims under Title VII, the Americans with Disabilities Act (“ADA”), and

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the Rehabilitation Act for wrongful termination, hostile work environment, and disability

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discrimination. ECF No. 9. I granted summary judgment to AAFES on Hashem’s wrongful-

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termination claim because the administrative complaints she allegedly filed pre-dated her

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termination, and the undisputed evidence established that she did not exhaust her administrative

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remedies on that claim. ECF No. 21 at 5. I found that questions of fact exist regarding whether

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Hashem exhausted her administrative remedies for her hostile-work-environment and disability-

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discrimination claims by filing an EEO complaint on April 24, 2013. Id. at 5. Thus, I denied

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summary judgment on those claims without prejudice to renew should discovery reveal that

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Hashem did not adequately exhaust her administrative remedies. Id. at 6.
After discovery closed, both parties moved for summary judgment. I address each

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motion in turn.

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II.

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ANALYSIS
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories

and admissions, and affidavits demonstrate “there is no genuine dispute as to any material fact

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and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c). A fact is

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material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if “the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.” Id.
The party seeking summary judgment bears the initial burden of informing the court of

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the basis for its motion, and identifying those portions of the record that demonstrate the absence

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of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

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burden then shifts to the non-moving party to go beyond the pleadings and set forth specific facts

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demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato

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Johnson, 212 F.3d 528, 531 (9th Cir. 2000). I view all evidence and inferences that may be

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drawn therefrom in the light most favorable to the non-moving party. James River Ins. Co. v.

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Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008).

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A.
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Hashem has not demonstrated that she is entitled to judgment as a matter of
law.

Hashem argues that AAFES’s responses to her discovery requests undisputedly

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demonstrate that AAFES harassed her and discriminated against her by (1) refusing to assign her

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light duty due to her elbow injury and (2) terminating her but not other employees for taking

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home food items when it was a common employee practice. She points to several requests for

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admissions to which AAFES responded that it was “without sufficient information to admit or

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deny [and] therefore denies.”1 ECF No. 39 at 38–39. AAFES explained that it denied these

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requests for admissions because Hashem’s former supervisor retired, and therefore AAFES could

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not obtain the relevant information. Id. at 46.
Hashem additionally highlights one of her requests for production, which requested

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documents “showing the work assignments given to [her] by [AAFES] from December 18, 2012

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For example, Hashem asked AAFES to “[a]dmit that upon her return to work on or about February 14,
2013, [she] was assigned duties that included working on the grill and mopping the floor.” ECF No. 39 at
38.

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through July 12, 2013.” Id. at 8, 51. AAFES responded with a document that provides a

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“summary of responsibilities” for a “food service foreman.” Id. at 55. Because the document has

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a January 2003 effective date and was last modified on June 22, 2012, Hashem argues that it fails

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to detail her job responsibilities for the entire requested date range. She also argues that this

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issue “confirms [her] assertion that [AAFES] failed to accommodate her as recommended by her

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doctor . . . and refused to assign her any ‘light’ duty[,] causing her condition to become worse.”

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Id. at 8.

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Federal Rule of Civil Procedure 36(a)(4) allows a party responding to a request for

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admissions to “assert lack of knowledge or information as a reason for failing to admit or deny

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only if the party states that it has made reasonable inquiry and that the information it knows or

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can readily obtain is insufficient to enable it to admit or deny.” AAFES partially satisfied this

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rule by explaining that it lacked information regarding the supervisor’s statements because the

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supervisor had retired. Although AAFES did not state that it made reasonable inquiries by

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attempting to locate the supervisor, Hashem’s dissatisfaction with AAFES’s responses does not

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demonstrate that her claims are undisputed. If she felt that AAFES’s responses did not comply

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with Rule 36, she could have conferred with AAFES’s counsel and, if unsuccessful in resolving

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the issue, filed a motion under Federal Rule of Civil Procedure 37. Similarly, Hashem’s

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dissatisfaction with AAFES’s response to her request for production of documents does not

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demonstrate that her claims are undisputed.

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Hashem provides evidence in support of her claims through her verified motion, which

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sets forth facts that she avers to be true under penalty of perjury. For example, Hashem states

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that, despite a doctor’s note, her former supervisor refused to assign her lighter duties and stated

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“that she would be demoted, and possibly lose her job, if she missed work for any extended

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period of time due to her injury.” ECF No. 39 at 5.

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However, Hashem has not met her burden of demonstrating that she is entitled to

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judgment as a matter of law. She devotes her motion to addressing the alleged deficiencies in

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AAFES’s discovery responses, but she fails to make any legal arguments or cite any legal

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authorities demonstrating that she has proven each element of her claims of hostile-work-

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environment and disability discrimination. Instead, she asserts in conclusory fashion that

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AAFES’s conduct violated Title VII and the ADA. See, e.g., id. at 9. I must therefore deny her

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motion for summary judgment.

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B.

AAFES has failed to establish that Hashem did not exhaust her
administrative remedies.

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To file suit for employment discrimination, a federal employee must first exhaust administrative

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remedies. Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039,

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1043 (9th Cir. 2009); 42 U.S.C. §§ 2000e-16(a), (c); 29 C.F.R. § 1614.103. The employee

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begins the administrative process by consulting an EEO counselor within 45 days of the

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discriminatory incident. 29 C.F.R. § 1614.105(a)(1). If the matter is not resolved through

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counseling within 30 days, the EEO counselor issues a notice informing the employee of her

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right to file a formal discrimination complaint with the entity that employs her and “of the

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appropriate official with whom to file a complaint.” Id. § 1614.105(d). The employee then has

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15 days to file a formal complaint with her employer. Id. §§ 1614.105(d), 1614.106(a). Once she

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files the complaint, the employer has 180 days to investigate. Id. §§ 1614.108(a), (e). After the

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employee receives a copy of the investigation file, she must choose and exhaust one of two

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administrative routes before filing suit in federal court. Id. § 1614.108(f); see also 29 C.F.R.

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§ 1614.407.

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In its renewed motion for summary judgment, AAFES argues that Hashem’s deposition

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testimony shows that she did not file a formal EEO complaint on April 24, 2013, and that she has

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therefore failed to exhaust her administrative remedies. At certain points in her testimony

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Hashem appears to acknowledge that she did not file a formal complaint.2 But AAFES has not

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authenticated the transcript excerpts. “Authentication is a ‘condition precedent to admissibility,’

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and this condition is satisfied by ‘evidence sufficient to support a finding that the matter in

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question is what its proponent claims.’” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th

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Cir. 2002) (footnote omitted) (quoting Fed. R. Evid. 901(a)). “[U]nauthenticated documents

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cannot be considered in a motion for summary judgment.” Id. To be authenticated, a deposition

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must “identif[y] the names of the deponent and the action and include[] the reporter’s

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certification that the deposition is a true record of the testimony of the deponent. Ordinarily, this

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would have to be accomplished by attaching the cover page of the deposition and the reporter’s

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certification to every deposition extract submitted.” Id. at 774 (internal citations omitted).

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Because AAFES has failed to include a cover page and the reporter’s certification with its

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deposition excerpts, I cannot consider this exhibit for summary judgment.
Even if AAFES had authenticated the deposition excerpts, this evidence does not

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conclusively answer whether Hashem filed a formal EEO complaint. The provided transcript

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excerpts are difficult to follow and do not provide the context for much of the dialogue.

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However, Hashem testified that the EEO complaint she allegedly made on April 24, 2013

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consisted of her sending an email to what both parties refer to as a “hotline.” ECF No. 48-2 at 3–

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For example:
Q.
A.
Q.

You have never filed an EEO complaint with AAFES?
Not in 2013.
Right, I’m sorry, I should have said that. Right. In 2013, you did not file an EEO
complaint with AAFES?
A.
No.
ECF No. 48-2 at 7.

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4. Hashem refers to the email address as the “AAFES hotline” or “EEO hotline.”3 Id. at 3; ECF

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No. 50 at 3. AAFES refers to it as the “IG’s” or inspector general’s hotline. ECF No. 48-2 at 4;

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ECF No. 53 at 3. Neither party has presented evidence definitively identifying what individual

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or entity Hashem emailed, and neither party has included a copy of Hashem’s April 24 email as

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an exhibit.
AAFES has not explained how its employees are supposed to file a formal EEO

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complaint. After attempting to informally address an employment-discrimination claim, a

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federal employer’s EEO counselor must provide the employee notice of the right to file a formal

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complaint. 29 C.F.R. § 1614.105(d). This notice must also direct the employee to “the

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appropriate official with whom to file a [formal] complaint.” Id. Although arguing that an

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informal complaint does not satisfy the exhaustion requirement, AAFES has not explained which

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of its officials receives EEO complaints from employees and what mechanism is used to lodge

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the complaint, such as email. Because AAFES has failed to contrast the correct complaint

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procedure with Hashem’s email to the “hotline,” I cannot definitively determine whether she

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filed a formal complaint.
Additionally, Hashem references an investigation that took place after she emailed her

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complaint. See, e.g., ECF No. 48-2 at 2. AAFES argues that this fact, if true, “suggest[s] that the

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hotline [that Hashem emailed] is actually an email option for filing informal complaints with the

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inspector general’s office, which is separate from the EEO office.” ECF No. 53 at 3. AAFES,

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however, provides no evidence to support this assertion, and this is not the only conclusion that

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can be drawn. For example, federal regulations require a federal employer to conduct an

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investigation after an employee files a formal complaint. 29 C.F.R. § 1614.108(a), (e). While

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there is no evidence that the investigation that Hashem references was a post-complaint

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investigation by AAFES, her testimony about an investigation further demonstrates the record’s

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It is not clear from Hashem’s opposition whether she believes she filed a formal complaint. For
example, Hashem argues that she “was clear about the fact that she had complained to [the] EEO Hotline
of the on-going Harassment on the date in question,” which she believes “constitutes at least an informal
complaint.” ECF No. 50 at 3 (emphasis omitted).

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lack of clarity. As a result, it is still unclear whether Hashem exhausted her administrative

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remedies by filing a formal EEO complaint. I therefore cannot grant AAFES’s summary

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judgment motion.

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In the interest of justice and efficiency, I will extend the dispositive-motion deadline and

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grant both parties an opportunity to renew their summary judgment motions. Each party should

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address the deficiencies in their respective motions that I have highlighted above.

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III.

IT IS THEREFORE ORDERED that Hashem’s motion for summary judgment (ECF No.

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39) is DENIED.
IT IS FURTHER ORDERED that AAFES’s renewed motion for summary judgment

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(ECF No. 48) is DENIED.
IT IS FURTHER ORDERED that the dispositive motion deadline is extended to May 13,

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CONCLUSION

2016.
DATED this 15th day of April, 2016.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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