Xia v. Salazar
Filing
36
MEMORANDUM DECISION granting 23 Motion for Summary Judgment. Signed by Magistrate Judge Brooke C. Wells on 01/30/2012. (asp)
_____________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
_____________________________________________________________________
WAYNE W. XIA,
:
Civil No. 2:10-cv-00025
Plaintiff,
:
RULING & ORDER
vs.
:
KENNETH L. SALAZAR, SECRETARY
OF THE DEPARTMENT OF THE
INTERIOR,
:
MAGISTRATE JUDGE BROOKE C.
WELLS
Defendant.
_____________________________________________________________________
Oral argument was heard on defendant Kenneth L. Salazar’s motion for
summary judgment on January 11, 2012.1 Attorneys Amy Oliver and Christopher
Morely appeared on behalf of the defendant, and attorneys Andrew Hale and Nan
Bassett appeared on behalf of plaintiff. At the conclusion of the hearing, the court took
the matter under advisement. Now, having considered the parties’ arguments along
with relevant authorities, the court rules as stated herein.
1
Document Number 34.
I. Undisputed Facts
Plaintiff Wayne Xia currently serves as a Supervisor and Civil Engineer in the
Bureau of Reclamation’s Upper Colorado Regional Office located in Salt Lake City,
Utah, a GS-810-14 level position.2 Plaintiff has been employed in that position for
eleven years.3
2008 EEO Claim
In 2007, plaintiff applied for the position of Assistant Regional Director for the
Upper Colorado Region.4 Mr. Xia was not selected for that position and on April 17,
2008 he filed a formal EEO claim alleging discrimination on the basis of race.5 On
December 23, 2008, the Department of Interior dismissed plaintiff’s EEO complaint as
untimely.6
Power Manager Position
In October 2008, Mr. Xia applied for the position of Power Manager for the Upper
Colorado Region, a GS-340-35 level position.7 The announcement for the Power
Manager position did not require any educational degree, but did require one year of
Document Number 2, “Complaint” at ¶¶ 2, 6; Document Number 24,
“Memorandum In Support Of Defendant’s Motion For Summary Judgment, pg. ii.
2
3
Id.
Document Number 24, “Memorandum In Support” pg. Iii; Document Number 242, “Deposition of Wayne Xia” at 16:17-25.
4
Document Number 2, “Complaint” at ¶¶8-9; Document Number 24
“Memorandum In Support” pg. iii.
5
6
Document Number 24-4, “Agency Dismissal” No. BOR-2008-0145.
7
Document Number 2, “Complaint” at ¶ 13.
2
experience equivalent to the GS-14 level as well as specialized experience in four core
competencies: project and program management, leadership, technical knowledge
(engineering), and technical knowledge (power operations).8 Mr. Xia and Mr. Max
Spiker were the only two applicants for the Power Manager position.9 On February 9,
2009, Mr. Spiker was formally selected for the position of Power Manager.10
Plaintiff’s Retaliation Claim
On April 13, 2009, Mr. Xia’s formal administrative complaint claiming failure to
hire for the Power Manager position based on discrimination, was received by the
Department of the Interior.11 On October 19, 2009, the Agency issued its final decision
concluding that Mr. Xia had not been retaliated against.12 Thereafter, on January 12,
2010, Mr. Xia filed his currently pending action in the United States District Court for the
District of Utah.13 Plaintiff’s complaint alleges a single cause of action for “Reprisal”
stating that due to Mr. Xia’s pursuits in the 2008 EEO action, “Agency and Regional
management took retaliatory action against him in the form of his non-selection for the
Power Manager position.”14
8
Document Number 24-6, “Power Manager Vacancy Announcement” 000103.
9
Document Number 2. “Complaint” at ¶ 14.
Document Number 24, “Memorandum In Support” pg. x; Document Number
24-17, “Notification of Personnel Action”.
10
Document Number 24-18, “Department of the Interior Complaint of
Discrimination”.
11
12
Document Number 24-19, “Final Agency Decision” October 19, 2009.
13
Document Number 2.
14
Document Number 2, ¶ 21.
3
II. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.”15 In applying this standard, the court must construe all
facts and reasonable inferences therefrom in the light most favorable to the moving
party.16 In considering whether genuine issues of material fact exist, the court does not
weigh the evidence but instead whether a reasonable jury, faced with the evidence
presented, could return a verdict for the nonmoving party.17
III. Title VII Cases
Title VII protects employees from discriminatory treatment as well as retaliation
by employers based upon an employee’s assertion of his right to be free from
discrimination. The relevant provision of Title VII states:
It shall be unlawful employment practice for an employer to
discriminate against any of his employees. . . because
[the employee] has opposed any practice made an unlawful
employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under
this subchapter.18
15
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
16
See, Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir.
17
See, Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249 (1986).
18
42 U.S.C. § 2000e-3(a)
1991).
4
In Title VII cases, it is plaintiff’s burden to prove a prima facie case of retaliation
by a preponderance of the evidence.19 Establishment of a prima facie case “creates a
presumption that the employer unlawfully discriminated against the employee.”20 That
presumption then places upon defendant the burden of rebutting the prima facie case by
producing evidence that the adverse employment actions were taken “for a legitimate,
nondiscriminatory reason.”21 Once defendant meets that burden, the burden shifts back
to the plaintiff who must show that defendant’s proffered reasons were a pretext for
discrimination.22
IV. Prima Facie Case
In order to establish a prima facie case of retaliation under Title VII, Mr. Xia must
show: “(1) that he engaged in protected opposition to discrimination, (2) that a
reasonable employee would have found the challenged action materially adverse, and
(3) that a causal connection existed between the protected activity and the materially
adverse action.”23 The parties do not dispute that Mr. Xia satisfies the first and second
elements of his prima facie case by virtue of his 2008 EEOC claim and his non-selection
19
See, McDonnell Dougals Corp v. Green 411 U.S. 792, 802 (1973).
20
St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 506 (1993).
St Mary’s Honor, at 507 (citing Texas Dept, of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981)).
21
22
St. Mary’s Honor, at 507.
Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008)(citing, Argo v.
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)). See also,
Wells v Colorado Dept, of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003).
23
5
for the position of Power Manager. 24 Defendant argues, however, that plaintiff has
failed to establish the third element— a causal connection between Mr. Xia’s protected
opposition to discrimination and his employer’s adverse action.25
A causal connection may be established where “the plaintiff presents evidence of
circumstances that justify an inference or retaliatory motive, such as protected conduct
closely followed by adverse action.”26 However, in order to support a causal connection,
the adverse action must be “very closely connected in time to the protected activity”.27
Here, Mr. Xia alleges a causal connection based upon the temporal proximity between
his 2008 EEO claim and his non-selection for the Power Manager position.28
Temporal Proximity
Defendant contends that Mr. Xia has not established a causal connection
because his non-selection for the Power Manager position occurred on February 9,
2009, nearly ten months after plaintiff filed his 2008 EEO claim on April 17, 2008.29
Defendant asserts that such a significant gap between the relevant events does not
support a causal connection.30
Mr. Xia, on the other hand, argues that the Bureau “misapprehends” the relevant
24
Document Number 24; “Memorandum In Support” pg. 2.
25
Document Number 23; “Memorandum In Support” pg. 3.
26
Williams v. WD.Sport, NM, Inc., 497 F.3d 1079, 1091 (10th Cir. 2007).
27
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
28
Document Number 2, ¶ 22.
29
Document Number 24; “Memorandum In Support” pg. 3.
30
Document Number 24, “Memorandum In Support” pg. 3.
6
dates for purposes of establishing temporal proximity.31 According to Mr. Xia, the
relevant date is not April 2008, (the date that he filed his EEO complaint), but December
23, 2008, the date when the investigation into his claim was actually completed. Under
Mr. Xia’s interpretation, the filing of the complaint itself is not relevant since it merely
“triggered an investigative process” which lasted several months.32 Based on Mr. Xia’s
analysis there were only a few weeks between the December 2008 conclusion of the
investigation and Mr. Xia’s January 8, 2008, interview for the Power Manager position.33
Plaintiff contends that such a short time frame between those two events clearly
establishes a causal connection sufficient to make a prima facie case of retaliation. In
the alternative, Mr. Xia asks the court to embrace the “unique circumstances” exception
under which causation may be still inferred despite a lengthier gap of time between the
protected activity and retaliatory conduct.’34
Upon consideration, the court concludes that Mr. Xia has failed to establish any
causal connection between his 2008 EEO charge and his non-selection for the Power
Manager position. The relevant dates for purposes of determining temporal proximity
are the April 17, 2008, date when Mr. Xia filed his formal EEO claim, and the February 9,
2009, date on which Mr. Xia was not selected for the power manager position. Case law
31
Document Number 27; “Memorandum In Opposition” pg 21.
32
Document Number 27, “Memorandum In Opposition” pg. 23.
Defendant takes issue with this date arguing that no employment action,
adverse or otherwise, occurred on January 9, 2009. Instead, it was 31 days later on
February 9, 2009 when plaintiff was not selected for the power manager position.
33
34
See, Wells v. Colo. Dep’t of Transp. 324 F.3d 1205, 1216 (10th Cir. 2003).
7
clearly establishes that the relevant dates for protected activity are “when the employer
first found out that Plaintiff had filed a [ ] charge, not during the pendency or final
disposition of the charge.”35 Utilizing those dates, the approximately ten month time gap
between the filing of the claim and the non-selection for power manager are insufficient
to establish a causal connection.36
Additionally, the Court does not find the “unique circumstances” exception
applicable. In Wells v. Colo DOT, the plaintiff went on medical leave two days after
filing her EEO complaint.37 Immediately upon plaintiff’s return from medical leave, she
was transferred to another location and reassigned her duty.38 While the Wells court
noted that a five month gap between the protected activity and adverse action would
ordinarily be too long for temporal proximity, it concluded that the “unique
circumstances” of plaintiff’s immediate reassignment upon return from medical leave
were sufficient to establish a causal connection.39 In Mr. Xia’s case there are not any
Wojcicki v. Aiken Tech. College, 2011 U.S. Dist. LEXIS 113810 *20 (D.S.C.
Sept. 30, 2011)(Emphasis added). Of note, plaintiff does not cite to any case law to
support his argument that the conclusion of the investigation, as opposed to the filing of
the charge, is the important date for temporal proximity.
35
See, Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir.
1991)(one and one-half month period between protected activity and adverse action
may, by itself establish causation)); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th
Cir. 1997)(three month period, standing alone, is insufficient to establish causation));
Haynes v. Level 3 Commc’ns LLC, 456 F.3d 1215, 1228 (10th Cir. 2006)(finding, seven
months too long to infer retaliation).
36
37
Wells v. Colo. DOT, 325 F.3d 1205, 1211 (10th Cir. 2003)
38
Id.
39
Id. at 1217.
8
factors similar to the plaintiff’s situation in Wells, nor are there any other unique
circumstances which would support application of the exception.
For these reasons, this Court concludes that Mr. Xia has failed to establish the
necessary causal connection between his 2008 EEO charge and his non-selection for
the Power Manager position. Consequently, plaintiff has failed to carry his burden and
established the third requirement of a prima facie case of retaliation.
V. Order
For the reasons set forth, Defendant Kenneth Salazar’s Motion For Summary
Judgment is hereby GRANTED.
DATED this 30th day of January, 2012.
BY THE COURT:
______________________
Brooke C. Wells
United States Magistrate Judge
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