Lassair v. Shulkin

Filing 45

ORDER granting Defendant's 30 Motion for Summary Judgment: The Amended Complaint (Dkt. # 18 ) is DISMISSED with prejudice. Signed by Judge Richard A. Jones.(MW)

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The Honorable Richard A. Jones

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EDNA LASSAIR,
Plaintiff,

No. 2:17-01638-RAJ

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v.
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ROBERT WILKIE, SECRETARY,
DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.

ORDER GRANTING
DEFENDANT’S MOTION
FOR SUMMARY
JUDGMENT

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This matter comes before the Court on Defendant’s Motion for Summary

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Judgment (Dkt. # 30). Having considered the submissions of the parties, the relevant

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portions of the record, and the applicable law, the Court finds that oral argument is

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unnecessary. For the reasons stated below, Defendant’s Motion is GRANTED. Dkt. #

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30.
I.

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BACKGROUND

Plaintiff Edna Lassair (“Plaintiff” or “Ms. Lassair”) is a former employee of the

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VA who began working in 2008 as a Rating Veterans Service Representative

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(“RSVR”). Dkt. # 12 at p. 2, ¶ 3. Her position entailed reviewing veterans’ medical

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and military records to make service connected disability decisions. Id. All raters are

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required to meet quantity and quality standards. Dkt. # 32 at ¶ 3. Raters are required to

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review a certain number of cases each day and their work is reviewed by a Decision

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Review Officer (“DRO”) to determine if the ratings contain errors. Id. at ¶¶ 4-5.
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Quantity and quality standards are based on an employee’s general schedule (“GS”)

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grade level, so raters in a higher grade are typically required to meet higher quality and

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production standards. Id.

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In 2009, Plaintiff’s work coach issued her a written counseling due to

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unacceptable performance. Dkt. # 1-2 at ¶ 6. Plaintiff alleges this is because her DRO

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at the time, John Dick, was taking a long time to review her cases and that he was

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discriminating against her based on her age. Dkt. # 31-1, Ex. A at p. 25:16-25. After

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Plaintiff complained that Mr. Dick was taking too long to review her work, her cases

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were redistributed to other reviewers in October 2009. Dkt. # 31-1, Ex. A at p. 23:9-12.

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For the remainder of October 2009, Plaintiff corrected the errors that the new reviewers

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identified in her work. Id. at p. 22:8-11.

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Plaintiff’s performance issues continued into 2010 and 2011 as documented by

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the Performance Improvement Plan (“PIP”) she was placed on in April 2010, that was

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continued in January 2011. Dkt. # 33 at ¶ 4; Dkt. # 34 at ¶ 22. Plaintiff also began

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working from home in 2011 and claims that she had problems with her work

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disappearing from the system. Dkt. # 31-1, Ex. A at p. 58:2-20. In May 2011, the VA

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issued Plaintiff a “Warning of Unacceptable Performance—Performance Improvement

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Plan,” which rescinded the prior PIP and issued a new one. Dkt. # 32 at ¶ 9. After

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receiving the new PIP, Plaintiff contacted the EEOC in June 2011, alleging that the

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issuance of the PIP created a hostile work environment based on her race, age, and

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disability. Dkt. # 12-1. As a remedy, she sought to have the agency remove her from

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the PIP. Id.

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In August 2011, the parties participated in a mediation and reached a settlement

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agreement. Dkt. # 12 at p. 2, ¶ 5. Plaintiff signed the agreement, and so did both her

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Representative and Chief Union Steward. Dkt. # 12-2. The settlement agreement stated

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that in exchange for certain undertakings by the VA, Plaintiff would “waive,” among

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other rights, “all other civil or administrative proceedings of the Complaint or issues
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related to it in whatever forum,” and also “release VA and all of its officers, agents, and

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employees from all claims that she has or may have against them arising out of the

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events and circumstances related to the Complaint.” Id.

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In March 2012, Plaintiff filed a notice alleging breach of the settlement

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agreement. Dkt. # 12 at p. 3, ¶ 7. The Office of Resolution Management (“ORM”)

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determined that agency did not breach the settlement agreement. Dkt. # 14 at pp. 16-17,

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¶¶ 5-6. However, the ORM held that the settlement agreement was not enforceable

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because it did not contain a waiver under the Older Workers Benefit Protection Act

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(“OWBPA”). Id. at p. 18, ¶ 9. The decision was ultimately appealed to the EEOC

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which held that the failure to include an OWBPA waiver voided only Plaintiff’s

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settlement of her claim under the ADEA but did not void the settlement agreement as to

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her other discrimination claims. Dkt. # 12-4. Plaintiff voluntarily resigned her position

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with the VA effective January 31, 2014. Dkt. # 12 at p. 3, ¶ 10. She has not worked for

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the VA since her resignation. Id.

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In July 2018, Plaintiff filed a lawsuit in state court asserting claims of

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discrimination based on race, disability, and age. Dkt. #3-1. Defendant removed the

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case to this Court. Dkt. #1. On March 23, 2018, Defendant filed a Motion for

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Summary Judgment. Dkt. # 14. The Court granted summary judgment, finding that

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Plaintiff’s claims were barred by the settlement agreement, with the exception of

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Plaintiff’s allegations related to age discrimination. Dkt. # 17. The Court gave Plaintiff

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leave to file an amended complaint asserting an age discrimination claim. Id. On

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August 31, 2018, Plaintiff filed an Amended Complaint asserting age discrimination

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under the Age Discrimination in Employment Act (“ADEA”). Dkt. # 18. Defendant

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now moves for summary judgment as to Plaintiff’s remaining claim. Dkt. # 30.
II.

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LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
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Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence

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

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Where the moving party will have the burden of proof at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party.

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue

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where the nonmoving party will bear the burden of proof at trial, the moving party can

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prevail merely by pointing out to the district court that there is an absence of evidence to

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support the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving

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party meets the initial burden, the opposing party must set forth specific facts showing

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that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the

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light most favorable to the nonmoving party and draw all reasonable inferences in that

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party’s favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).

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However, the court need not, and will not, “scour the record in search of a

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genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see

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also White v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court

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need not “speculate on which portion of the record the nonmoving party relies, nor is it

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obliged to wade through and search the entire record for some specific facts that might

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support the nonmoving party’s claim”). The opposing party must present significant

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and probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident

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& Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and

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“self-serving testimony” will not create a genuine issue of material fact. Villiarimo v.

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Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. v. Pac

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Elec. Contractors Ass’n, 809 F. 2d 626, 630 (9th Cir. 1987).

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ORDER-4

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III.

DISCUSSION

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A. Plaintiff’s Discrimination Claims are Untimely

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Defendant argues that nearly all of Ms. Lassair’s allegations of age

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discrimination occurred prior to April 24, 2011 and are time-barred. Dkt. # 30 at 8-9.

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Federal employees who believe they have been discriminated against on the basis of age

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have the option to pursue administrative remedies or file a complaint directly in federal

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court. Shelley v. Geren, 666 F.3d 599, 605 (9th Cir. 2012). Under EEOC guidelines,

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an aggrieved federal employee must consult an EEO counselor within 45 days of an

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alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). After exhausting the

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administrative remedies by waiting 180 days after filing the administrative action with

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the EEOC, or upon receiving a final agency determination, the employee may file a civil

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action in district court. 29 C.F.R. § 1614.201(c). If the employee chooses to bypass the

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administrative action and file directly in district court, the employee must notify the

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EEOC of its intent to file within 180 days of the alleged discriminatory conduct and

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wait 30 days before filing. 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). Absent

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waiver, estoppel, or equitable tolling, failure to comply with these regulations is “fatal

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to a federal employee's discrimination claim.” Lyons v. England, 307 F.3d 1092, 1105

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(9th Cir. 2002).

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Here, it appears that Ms. Lassair opted to pursue administrative action when she

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contacted the EEO counselor on June 8, 2011. Dkt. # 36-1, Ex. J. Thus, any allegedly

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discriminatory acts occurring before April 24, 2011 (45 days before she contacted the

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EEOC) are untimely. As Defendant notes, nearly all of the allegations in Ms. Lassair’s

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amended complaint appear to have occurred prior to April 24, 2011. This includes

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allegations regarding Mr. Dick’s allegedly discriminatory comments and failure to

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review her work in 2009, the delay in her ladder promotion in 2009, her exclusion from

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the “Nehmer” project in 2010, the written counseling that she received prior to April

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2011, and the initial PIP that she was placed on in 2010.
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Ms. Lassair argues that her claims are timely because the EEO officer considered

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her earlier allegations in its review of her hostile environment claim. Dkt. # 6 at 7.

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This argument fails for two reasons. First, the EEO officer’s evaluation of allegations

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occurring prior to April 24, 2011, is not a waiver of the exhaustion timeliness

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requirements. Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985) (“The mere

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receipt and investigation of a complaint does not waive objection to a complainant’s

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failure to comply with the original filing time limit when the later investigation does not

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result in an administrative finding of discrimination.”). An agency may waive a

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timeliness objection by making an express finding that the complaint was timely or

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failing to appeal an EEOC determination of timeliness. Bruce v. United States Dept. of

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Justice, 314 F.3d 71, 74 (2d Cir. 2002) (emphasis added).

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Here, the EEOC did not make a finding that Ms. Lassair’s discrimination

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allegations were timely. Instead, it appears that the EEO officer acknowledged that Ms.

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Lassair’s earlier allegations were not timely but opted to still consider them as part of a

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“continuing violation” theory with respect to her hostile work environment claim. Dkt.

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# 36-1, Ex. L. Id.; see also Valadez v. Potter, No. C06-0329RSL, 2008 WL 426504, at

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*3 (W.D. Wash. Feb. 13, 2008) (holding timeliness requirement was not waived where

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agency did not make finding of discrimination or make a finding that the filing was

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timely); Ford v. United States, No. C 11-00498 SI, 2011 WL 3516129, at *6 (N.D. Cal.

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Aug. 11, 2011) (“[T]he acceptance of an untimely complaint for administrative

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investigation does not waive the right of a federal agency to subsequently object to the

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timeliness of the complaints.”).

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In addition, Ms. Lassair’s reliance on Nat’l R.R. Passenger Corp. v. Morgan is

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misplaced. In Morgan, the Supreme Court held “discrete discriminatory acts are not

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actionable if time barred, even when they are related to acts alleged in timely filed

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charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Actions

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such as failure to train, discipline, and denial of promotions are all considered “discrete
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acts.” Id. at 114 (holding discrete acts include denial of a promotion, suspension, and

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denial of training). Accordingly, Plaintiff’s allegations that she received written

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counseling and warnings regarding her performance in 2009 through April 11, 2011,

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was denied training in 2009, had her promotion delayed in 2009, was not assigned to the

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“Nehmer project” in 2010, and she was placed on a PIP in 2010 that was extended in

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January 2011, are all untimely.

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B. Prima Facie Case of Age Discrimination

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Even if Ms. Lassair’s allegations were timely, her age discrimination claim must

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also fail because she has not established a prima facie case of discrimination. The

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ADEA prohibits an employer from discriminating “because of [an] individual’s age.”

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Shelley v. Geren, 666 F.3d 599, 606-07 (9th Cir. 2012) (citing 29 U.S.C. § 623(a)(1));

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29 U.S.C. § 633a(a). The ADEA applies to protect federal employees and applicants for

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federal employment. 29 U.S.C. § 633a(a). A plaintiff can show discrimination by

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presenting either direct evidence or indirect evidence. Enlow v. Salem–Keizer Yellow

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Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004). In cases like this one where there is

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no direct evidence of discrimination, Plaintiff may prove discrimination using indirect,

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or circumstantial evidence, under the burden-shifting framework established in

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McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Shelley, at 608; Salas

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v. Indep. Elec. Contractors Inc., No. 11-1748 RAJ, 2013 WL 1898249, at *5 (W.D.

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Wash. May 7, 2013), aff’d, 603 F. App’x 607 (9th Cir. 2015) (applying McDonnell

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Douglas test to ADEA claim on summary judgment).

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Under the McDonnell Douglas framework, the plaintiff has the initial burden of

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establishing a prima facie case of discrimination by a preponderance of the evidence.

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Shelley, at 608. If she succeeds in making out a prima facie case, the burden shifts to

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the defendant to articulate a legitimate, non-discriminatory reason for its actions.

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McDonnell Douglas, at 802. It is then the plaintiff’s responsibility to establish that the

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defendant’s stated reason was merely pretext and that the true reason was

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discriminatory. Id.

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To establish a prima facie case of discrimination under the ADEA, Plaintiff must

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show that: (1) she belongs to a protected group; (2) she performed her job satisfactorily,

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(3) she suffered an adverse employment action, and (4) a substantially younger

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employee was treated more favorably. Coleman v. Quaker Oats Co., 232 F.3d 1271,

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1281 (9th Cir. 2000). Here, Ms. Lassair has failed to establish that she suffered an

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adverse employment action and that a substantially younger employee was treated more

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favorably.

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Plaintiff argues that she suffered an adverse employment action when she was

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placed on a PIP due to her supervisor’s delay in reviewing her cases. Dkt. # 36 at 8.

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But PIPs that do not impact an employee’s compensation or terms of employment are

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not adverse actions. Hopkins v. McDonald, No. C15-1918RSL, 2016 WL 3617860, at

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*3 n.2 (W.D. Wash. July 6, 2016) (“A written warning that does not change the terms

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and conditions of employment does not rise to the level of an adverse employment

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action.”); Sumera v. Lynch, No. 4:13-CV-01950-KAW, 2016 WL 368159, at *6 (N.D.

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Cal. Feb. 1, 2016) (“PIP . . . did not materially affect the terms and conditions of

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employment and therefore [was] not adverse employment action[].”) (internal citations

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omitted); Cozzi v. Cty. of Marin, 787 F. Supp. 2d 1047, 1061 (N.D. Cal. 2011) (“Written

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warnings and performance improvement plans are not adverse actions where they do not

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materially affect the terms and conditions of employment.”). Because Plaintiff’s

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compensation and terms of employment were not impacted by the PIP (Dkt. # 32 at ¶ 9;

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Dkt. # 34 at ¶ 27), this is insufficient to establish an adverse employment action.

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Plaintiff also argues that she was adversely affected by a three-month delay in receiving

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her career ladder promotion (Dkt. # 36 at 8; Dkt. # 36-1, Exs. E, F) and because she was

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not trained to perform ratings on the Nehmer project (Dkt. # 18 at ¶ 11). These

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allegations are untimely, however, because they are discrete acts occurring before April

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24, 2011. Morgan, at 113.

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Plaintiff is also required to show that similarly situated employees, not within her

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protected class, received more favorable treatment. Plaintiff does not meet this burden.

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While Ms. Lassair alleges that “similarly situated younger individuals were treated more

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favorably then she was” she provides no specific examples. Moran v. Selig, 447 F.3d

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748, 755 (9th Cir. 2006) (“[I]ndividuals seeking relief must demonstrate, at the least,

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that they are similarly situated to those employees in all material respects.”). Ms.

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Lassair does not point to other younger employees or co-workers that were treated

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better. Defendant, for its part, notes that “16 Rating Veterans Service

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Representative[s]” were placed on a PIP between 2009-2011, and at least nine of these

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employees were younger than Ms. Lassair. Dkt. # 34 at ¶ 29.

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Even if Ms. Lassair could establish a prima facie case of discrimination,

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Defendant has articulated a legitimate and non-discriminatory reason for its actions.

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Plaintiff’s performance, as documented by several different supervisors, was below the

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defined quality and quantity metrics and as a result, she was issued written counseling

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and eventually placed on a performance improvement plan. Dkt. # 18 at ¶¶ 7-10; Dkt.

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#36-1, Exs. B, E, F, G. Indeed, the evidence provided by Plaintiff herself shows that

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her promotion was temporarily delayed because she did not meet the qualifications and

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requirements for promotion. Dkt. # 36-1, Exs. E, F. Similarly, Plaintiff was not trained

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on the Nehmer project because she was not meeting her performance standards on her

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existing work. Dkt. # 33 at ¶ 8. In addition, it appears Defendant made multiple

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attempts to accommodate Plaintiff, including granting her request to work from home

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(Dkt. # 34 at ¶ 18) and allowing her to perform “collateral duties” instead of rating cases

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although rating cases was an “essential function” of her position (Dkt. # 34 at ¶ 21).

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Because Defendant has stated a legitimate nondiscriminatory reason for its
actions, the burden shifts back to Plaintiff to produce “specific, substantial evidence of
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pretext.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). She

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fails to do so. Rather than rebut the evidence of her negative performance evaluations

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with examples of positive performance, Plaintiff simply states that she was “qualified

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for the position she held.” Dkt. # 36 at 8. The Court cannot infer pretext from these

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facts. Viewing the evidence in the light most favorable to Ms. Lassair, the Court finds

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that she has failed to carry her burden under the McDonnell Douglas framework and

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Defendant is entitled to summary judgment on her discrimination claim.

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C. Prima Facie Case of Hostile Work Environment

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Plaintiff also claims that she was subjected to a hostile work environment under

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the ADEA, but she supplies no evidence showing that the harassment she experienced

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was sufficiently severe to present a cognizable violation of federal law. To establish a

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prima facie case for a hostile work environment claim, a plaintiff must show that: 1) she

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was subjected to verbal or physical conduct because of her membership in a protected

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class, 2) the conduct was unwelcome, and 3) the conduct was sufficiently severe or

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pervasive to alter the conditions of the plaintiff’s employment and create an abusive

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work environment. Meritor v. Savings Bank v. Vinson, 477 U.S. 57 (1986); Manatt v.

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Bank of America, 339 F.3d 792, 798 (9th Cir. 2003).

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Courts must look at the totality of the circumstances when making a

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determination of whether a hostile work environment exists. Faragher v. City of Boca

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Raton, 524 U.S. 775, 787 (1998). This determination includes examining “the

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frequency of the discriminatory conduct; its severity; whether it is physically

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threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

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interferes with an employee’s work performance.” Id. at 787–88 (internal citation and

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quotation omitted). To constitute an actionable unlawful employment practice, the

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various acts comprising the hostile work environment “must have some relationship to

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each other.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002).

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Importantly, discrete acts, such as termination, failure to promote, denial of transfer, or
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refusal to hire, cannot qualify as related acts. Id. at 108–113. Several of the allegations

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in Ms. Lassair’s Amended Complaint relate to discrete discriminatory acts, such as

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placing her on a PIP or delaying her ladder increase. Dkt. # 18 at ¶¶ 8-9. As such,

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those allegations cannot form the basis of Ms. Lassair’s hostile work environment

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claim. Morgan, at 108-113.

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In addition, harassment or discriminatory acts divorced from Plaintiff’s

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membership in a protected class cannot support her hostile work environment claim.

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Sischo–Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir.

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1991) (noting existence of hostile work environment claim under the ADEA and that

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“[a] hostile work environment requires the existence of severe or pervasive and

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unwelcome verbal or physical harassment because of a plaintiff's membership in a

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protected class.”), abrogated on other grounds by statute as stated in Dominguez–Curry

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v. Nev. Transp. Dept., 424 F.3d 1027 (9th Cir. 2005).

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Here, Plaintiff offers very few facts to support her claim that she was harassed

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because of her age. In her deposition, Plaintiff stated that unnamed coworkers said, “the

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old lady is coming” when they saw her and that it was just “around the office” that she

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“was the old lady.” Dkt. # 31-1 at 26. Plaintiff also stated that one supervisor, Mr.

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Bosworth, told her that she was “not catching on fast enough” but later said that, other

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than Mr. Bosworth’s comment, no other supervisors or coworkers said anything about

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her age. Dkt. # 31-1 at 28-29. This is not the type of severe or pervasive harassment

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sufficient to support a hostile work environment claim. Sischo-Nownejad, at 1104.

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Ms. Lassair also submitted a declaration by Mary Crawford, Ms. Lassair’s union

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steward, in which Ms. Crawford contends that the “VA has a common and standard

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harassment practice” of placing employees on PIPs because of harassment and

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discrimination and that Ms. Lassair was “subjected to a hostile work environment based

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on her age, race and disabilities.” Dkt. # 37 at 3. Defendant argues that Ms. Crawford is

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asserting legal conclusions outside the scope of her personal knowledge and improper
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“expert” opinions. Dkt. # 39 at 10-11. Defendant also argues that Ms. Crawford lacks

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foundation to testify about many of the facts asserted in her declaration and that many

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of Ms. Crawford’s statements conflict with Plaintiff’s own deposition testimony. Dkt. #

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39 at 10-11. For example, Ms. Crawford states that Plaintiff’s supervisor, Mr. Dick,

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made comments about Plaintiff’s age and “intentionally and deliberately” delayed

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providing certain employees feedback on their work. Dkt. # 37 at 3. But she provides

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no basis for the source of her knowledge.

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The Court agrees that there are significant issues with Ms. Crawford’s

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declaration. The declaration is fraught with hearsay and legal conclusions, beyond the

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scope of Ms. Crawford’s personal knowledge. Moreover, to the extent that Plaintiff is

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attempting to classify Ms. Crawford as an expert, the Court is unpersuaded. The Court

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may consider an expert opinion only if the proposed expert’s “specialized knowledge

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will assist the trier of fact to understand the evidence or to determine a fact in issue.”

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Fed. R. Evid. 702. The witness must be “qualified as an expert by knowledge, skill,

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experience, training, or education” and may testify “if (1) the testimony is based upon

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sufficient facts or data, (2) the testimony is the product of reliable principles and

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methods, and (3) the witness has applied the principles and methods reliably to the facts

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of the case.” Id. Here, Plaintiff has not met her burden of establishing that Ms.

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Crawford is an expert. There is no evidence that a court has qualified Ms. Crawford as

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an expert and Ms. Crawford has not offered a method or principle that she applied to the

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facts of this case. Accordingly, the Court will give minimum consideration to Ms.

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Crawford’s declaration.

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The hostile work environment standard is a demanding one and the conduct must

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be “extreme” before it can “amount to a change in the terms and conditions of

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employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). When

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viewed in light of Ninth Circuit precedent, the conduct complained about by Ms.

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Lassair does not establish the type of extreme conduct sufficient to support a hostile
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work environment claim. See e.g. Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 643-44

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(9th Cir. 2003) (holding that alleged harassing conduct, including two racial epithets

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directed at the plaintiff, was insufficient to create a hostile work environment); Sanchez

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v. City of Santa Ana, 936 F.2d 1027 (9th Cir.1990) (finding no hostile work

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environment despite allegations that the employer posted a racially offensive cartoon,

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made racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe

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vehicles to Latinos, did not provide adequate police backup to Latino officers, and kept

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illegal personnel files on plaintiffs because they were Latino).

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Ms. Lassair’s allegations that she was denied training, her production goals were

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changed, she received written counseling and was placed on a PIP, and her promotion

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was delayed by three months, do not establish a pattern of related discriminatory

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conduct sufficiently severe to support a hostile work environment claim. Dkt. # 18 at ¶¶

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7-9, 11, 13; Dkt. # 36 at 4. This is especially true where the evidence shows that many

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of these allegedly discriminatory acts were the result of Ms. Lassair’s persistent

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performance issues, as documented by multiple different supervisors, and a desire to

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accommodate her individual requests. Dkt. # 34 at ¶ 21-22, 26.

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Similarly, Ms. Lassair’s hostile work environment claim is not saved by her

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general assertion that coworkers joked about her age (Dkt. # 31-1 at p. 26:13-25) or Ms.

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Crawford’s statements that in 2009, Mr. Dick made comments about her age (Dkt. # 37

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at 3). Although offensive, such comments are not “sufficiently severe or pervasive to

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alter the conditions of the plaintiff's employment and create an abusive work

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environment.” Vasquez, at 642.

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While the Court appreciates that Ms. Lassair was unhappy in her work

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environment and believes she was treated unfairly, her claim simply does not rise to the

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level of creating a cognizable hostile work environment claim. Drawing all reasonable

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inferences in favor of Ms. Lassair, the evidence is insufficient to avoid summary

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judgment on her hostile work environment claim.
ORDER-13

IV.

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CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (Dkt. #

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30) is GRANTED and the Amended Complaint (Dkt. # 18) is DISMISSED with

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prejudice.

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DATED this 16th day of October, 2019.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER-14