Ahmed v. Wormuth

• Court: District Court, N.D. California
• Decided: December 10, 2024
• Docket: 3:22-cv-04365
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EHAB AHMED, Case No. 22-cv-04365-TSH

8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 9 v. SUMMARY JUDGMENT; ORDER REFERRING PARTIES FOR 10 CHRISTINE WORMUTH, SECRETARY, FURTHER SETTLEMENT DEPARTMENT OF THE ARMY, CONFERENCE 11 Defendant. Re: Dkt. No. 50 12 13 I. INTRODUCTION 14 Plaintiff Ehab Ahmed brings this Title VII case alleging discrimination based on his race 15 and religion, as well as retaliation for participating in protected activity. Pending before the Court 16 is Defendant Christine Wormuth’s Motion for Summary Judgment. ECF No. 50. Ahmed filed an 17 Opposition (ECF No. 65) and Wormuth filed a Reply (ECF No. 67). The Court finds this motion 18 suitable for disposition without oral argument and VACATES the December 12, 2024 hearing. 19 See Civ. L.R. 7-1(b). For the reasons stated below, the Court GRANTS IN PART and DENIES 20 IN PART the motion.1 21 II. BACKGROUND 22 A. Factual Background 23 Ahmed served as an Associate Professor of the Hebrew Language at the Defense Language 24 Institute (“DLI”) in Monterey, California from 2007 through October 1, 2021. Parties’ Stipulated 25 Statement of Facts (“Stip. Stmt. Facts”) ¶ 5, ECF No. 51; Sec. Am. Compl. ¶ 8a, 8aa, ECF No. 35. 26 His native language is Egyptian Arabic, he identifies as “Egyptian, Middle Eastern,” and his 27 1 religion is Muslim. Stip. Stmt. Facts ¶ 3; Ahmed Depo. at 9:21-10:1, ECF Nos. 53-1, 66.2 2 In December 2020 Ahmed attended a department meeting where it was announced that the 3 Hebrew Department was downsizing. Sec. Am. Compl. ¶ 8b; Ahmed Decl. ¶ 3, ECF No. 65-3. 4 Ahmed states he was among the teachers initially marked to stay at the DLI during the 5 downsizing, while two senior Hebrew teachers, both having more than ten years with the 6 department, were designated to leave. Ahmed Decl. ¶¶ 4-5. As Ahmed knew these colleagues 7 personally and felt it was unjust for them to be let go, he spoke with his Chairperson and Dean in 8 townhalls via Microsoft Teams, expressing his concern with the situation. Id. ¶ 5. After voicing 9 these concerns, Ahmed states he “was blocked from other job opportunities and target[ed] for 10 termination.” Id. ¶ 6. Ahmed states he applied for at least 12 jobs, “the majority of which I was 11 fully qualified for, in and out of the Arabic department: receiving no interviews.” Id. ¶ 13. 12 In January 2021, Ahmed states he applied to transfer to an Arabic teaching role “in an 13 effort to save at least one of my colleagues’ positions.” Id. ¶ 7. He passed tests in two Arabic 14 dialects and met the qualifications for the position, but he was not transferred, nor was he granted 15 an interview for any management roles he applied for. Id. 16 DLI management subsequently announced on April 2, 2021 that, instead of downsizing, 17 DLI was going to eliminate the entire Hebrew Department the following year. Id. ¶ 8; Sec. Am. 18 Compl. ¶ 8e. Ahmed was not selected to stay. Ahmed Decl. ¶ 8. On April 14 Ahmed was 19 informed that his not-to-exceed date (i.e., the date by which his term-limited employment was 20 scheduled to end) was advanced from October 2, 2021 to July 23, 2021. Sec. Am. Compl. ¶ 8f. 21 On April 7, 2021, Ahmed states he met with Associate Provost Dr. Hiam Kanbar, who 22 informed him of a shortage of Levantine dialect Arabic teachers and instructed him to take a 23 proficiency test. Ahmed Decl. ¶ 9. Ahmed became a certified Levantine Arabic speaker in May 24 2021. Id.; Ahmed Depo. at 148:20-25. However, Ahmed contends “Dr. Kanbar later basically 25 said, ‘sorry, we don’t need you,’ which to me, it was implying she may have hoped I wouldn’t 26 pass to justify not transferring me.” Ahmed Decl. ¶ 9. 27 1 In May and June 2021, two Egyptian Team Leader positions opened up. Id. ¶ 10. Ahmed 2 reached out to the Arabic school dean, Dr. Viktoriya Shevchenko, and Associate Provost Dr. Hiam 3 Kanbar, requesting he be considered, but he states they denied him the opportunity to compete 4 because the positions were restricted to current Arabic teachers. Id. 5 In the summer of 2021, Bella Kelly was the Dean, LREC Extension Programs, at the DLI 6 Foreign Language Center, stationed at Fort Meade, in Maryland. Kelly Decl. ¶ 2, ECF No. 54. 7 On June 23, 2021, Kelly recommended Avner Even-Zohar for a Continuing Education position 8 teaching Hebrew at Fort Eisenhower (formerly Fort Gordon) in Georgia. Id. ¶ 4. Even-Zohar 9 accepted the position. Id. ¶ 10. There is no evidence in the record indicating on which date Even- 10 Zohar accepted the position, but Ahmed states he was not transferred until August 2021, as 11 documented by an email he received on August 16, 2021. Ahmed Decl. ¶ 14. Ahmed states the 12 Fort Eisenhower position was never formally announced. Id. ¶ 15. 13 Ahmed contacted an EEO officer on July 13, 2021. Stip. Stmt. Facts ¶ 6. Following 14 mediation with DLI management, he and DLI executed a settlement agreement on or around July 15 16, 2021, pursuant to which Ahmed’s not-to-exceed date was extended to October 2, 2021. Sec. 16 Am. Compl. ¶ 81, 13. 17 In July 20213 Ahmed applied for the position of Assistant Dean of UAA (Chinese School). 18 Ahmed Decl. ¶ 18; Mirzaei Decl. ¶ 2, ECF No. 55. There were 38 applicants. Mirzaei ¶ 5. The 19 resume of each applicant for the position was redacted to remove personally identifying 20 information and each applicant was given an identification number. Id. ¶ 6. Ahmed was 21 designated as Applicant 14. Id. ¶ 7. Ahmed’s redacted resume did not disclose his religion, 22 national origin, race, or prior activity protected by Title VII. Id. ¶ 8 & Ex. 1 (Ahmed’s resume). 23 However, Ahmed contends his resume (as well as the other 38 applicants’ resumes) contained 24 identifiable information, including references to Ain Shams University in Cairo and work history 25 in Egypt, that could reveal his background. Ahmed Depo. at 80:1-82:25. After ranking the 26 candidates based on their resumes, the selection panel interviewed the eight applicants with the 27 1 highest composite scores. Mirzaei Decl. ¶¶ 11, 13. Ahmed received the ninth highest composite 2 score and was not selected for an interview. Id. ¶¶ 12-13 & Ex. 3 (composite scores). Josh Merl, 3 who was designated as Applicant 23, was selected for the Assistant Dean position. Stip. Stmt. 4 Fact ¶ 10. 5 On August 4, 2021, Ahmed was interviewed for a Levantine Team Leader position at DLI. 6 Sec. Am. Compl. ¶ 8n; Estima Decl. ¶ 2, ECF No. 60. The selection panel for the Levantine Team 7 Leader position had a script of interview questions, and the same questions were posed to each 8 interviewee. Estima Decl. ¶ 5; Al Thawahrih Decl. ¶ 16, ECF No. 58. Ahmed contends the 9 interview process was procedurally flawed as questions were asked in Arabic despite nearly half 10 the panel members not speaking Arabic, and because the use of target language questions was 11 unusual for Team Leader positions. Ahmed Decl. ¶ 22. Based on composite scores, Ahmed was 12 the third highest ranked interviewee. Estima Decl. ¶ 8. The selection panel determined Ahmed “is 13 not a good fit for the position of team leader in the Levantine program.” Id. ¶ 9 & Ex. 1. The 14 panel’s recommendation memorandum noted that Ahmed mixed the use of Modern Standard 15 Arabic, Egyptian, and Levantine when he was asked to speak in Levantine during the interview, 16 and that he was not familiar with the Levantine curriculum. Id. ¶¶ 9-10. The panel recommended 17 Siba Ammari for the position, after which Tatiana McCaw, the Dean of Middle East School II at 18 DLI, selected Ammari for the position. Id. ¶ 12; McCaw Decl. ¶¶ 2, 5-6, ECF No. 63. 19 Ahmed again contacted an EEO officer on September 3, 2021, alleging further 20 discrimination and noncompliance with the settlement agreement. Stip. Stmt. Facts ¶ 7; Sec. Am. 21 Compl. ¶ 13. 22 On or around September 10, 2021, Ahmed and Dr. Hany Amin, the then-head of the 23 Egyptian Department, had a conversation in which Dr. Amin told Ahmed he would be a good fit 24 for an Egyptian testing project position and that the Egyptian Department had a need for such a 25 position. Amin Decl. ¶ 2-3, ECF No. 64. Although an Egyptian testing project position did not 26 exist, Dr. Amin felt there was a need for it and that DLI first had to fund the position. Id. ¶ 4. 27 Ahmed contends Dr. Amin advised him that no additional funding would be required as he would 1 out to DLI management to see if DLI would fund an Egyptian testing project position within the 2 Egyptian Department but was informed there was no funding available. Amin Decl. ¶ 5. Ahmed 3 states Dr. Amin never received explicit funding denial. Ahmed Decl. ¶ 27. 4 B. Procedural Background 5 On July 28, 2022, Ahmed filed his initial complaint, alleging discrimination based on race, 6 religion, national origin, age, and association with religion pursuant to Title VII of the Civil Rights 7 Act of 1964. ECF No. 1. Ahmed also alleged retaliation for voicing concerns. Id. On December 8 16, 2022, Wormuth filed a motion to dismiss pursuant to Rule 12(b)(6), ECF No. 12, which the 9 Court granted on February 28, 2023, ECF No. 21; Ahmed v. Wormuth, 2023 WL 2309776 (N.D. 10 Cal. Feb. 28, 2023). 11 On April 28, 2023, Ahmed filed a First Amended Complaint raising the following causes 12 of action: (1) Title VII discrimination based on race; (2) Title VII discrimination based on national 13 origin; (3) Title VII discrimination based on religion; (4) age discrimination in violation of the 14 Age Discrimination in Employment Act (“ADEA”); and (5) retaliation under Title VII. ECF No. 15 25. Wormuth again moved for dismissal. ECF No. 27. On June 26, 2023, the Court granted in 16 part and denied in part Wormuth’s motion. ECF No. 32; Ahmed v. Wormuth, 2023 WL 4205765 17 (N.D. Cal. June 26, 2023). Specifically, the Court granted dismissal of Ahmed’s claims as to any 18 conduct prior to July 20, 2021, granted dismissal of his ADEA claim and Title VII national origin 19 discrimination claims without leave to amend, restricted Ahmed’s Title VII race and religion 20 discrimination claims to his non-selections for the Hebrew teaching position at Fort Eisenhower 21 and the Assistant Dean of UAA position, and allowed Ahmed to pursue Title VII retaliation 22 claims based on employment actions occurring on or after July 20, 2021. 23 On July 26, 2023, Ahmed filed the operative Second Amended Complaint, alleging three 24 claims under Title VII: (1) discrimination based on race; (2) discrimination based on religion; and 25 (3) retaliation. 26 Wormuth filed the present motion on November 6, 2024. 27 1 III. LEGAL STANDARD 2 Summary judgment is proper where there is “no genuine dispute as to any material fact and 3 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving 4 for summary judgment bears the initial burden of identifying those portions of the pleadings, 5 discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex 6 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome 7 of the case, and a dispute as to a material fact is genuine if there is sufficient evidence for a 8 reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 9 U.S. 242, 248 (1986). 10 If the moving party meets its initial burden, the opposing party must then set forth specific 11 facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. 12 at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving 13 party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the 14 task of the Court “‘to scour the record in search of a genuine issue of triable fact.” Keenan v. 15 Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden “to identify with 16 reasonable particularity the evidence that precludes summary judgment.” Id.; Cafasso, U.S. ex rel. 17 v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (The nonmoving party “must 18 set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”) 19 (citations omitted). Thus, “[t]he district court need not examine the entire file for evidence 20 establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with 21 adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 22 237 F.3d 1026, 1031 (9th Cir. 2001); Christian Legal Soc. Chapter of Univ. of Cal. v. Wu, 626 23 F.3d 483, 488 (9th Cir. 2010) (“Judges are not like pigs, hunting for truffles buried in briefs.”) 24 (citations omitted). 25 “While the evidence presented at the summary judgment stage does not yet need to be in a 26 form that would be admissible at trial, the proponent must set out facts that it will be able to prove 27 through admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) 1 be made on personal knowledge, set out facts that would be admissible in evidence, and show that 2 the affiant or declarant is competent to testify on the matters stated.”)). If the nonmoving party 3 fails to identify such evidence, or if it offers evidence that is “merely colorable, or is not 4 significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 5 (citations omitted). 6 IV. DISCUSSION 7 As a result of the Court’s previous orders, the claims remaining in this case relate to the 8 Fort Eisenhower position (raising claims for race and religion discrimination and retaliation), the 9 Assistant Dean of UAA position (raising claims for race and religion discrimination and 10 retaliation), the Levantine Team Leader position (raising a claim for retaliation only), and the 11 Egyptian testing project position (raising a claim for retaliation only). Wormuth seeks an order 12 granting summary judgment as to all remaining claims. 13 A. Title VII Framework 14 1. Discrimination 15 Title VII forbids discrimination by employers based on an individual’s race, color, 16 religion, sex, or national origin. 42 U.S.C. § 2000e-2. The Supreme Court in McDonnell Douglas 17 Corp. v. Green, 411 U.S. 792 (1973), established a three-stage burden-shifting test for evaluating 18 claims of discrimination. Under this test, the plaintiff bears the initial burden of establishing a 19 prima facie case of discrimination. Id. at 802. “To make out a prima facie case under McDonnell 20 Douglas, a plaintiff must show that (1) [he] belongs to a protected class; (2) [he] applied for and 21 was qualified for the position [he] was denied; (3) [he] was rejected despite her qualifications; and 22 (4) the employer filled the position with an employee not of plaintiff’s class, or continued to 23 consider other applicants whose qualifications were comparable to plaintiff’s after rejecting 24 plaintiff.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). “The 25 requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary 26 judgment is minimal and does not even need to rise to the level of a preponderance of the 27 evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), as amended on denial of 1 F.3d 1115, 1124 (9th Cir. 2000). As to qualifications, Plaintiff must “present[] sufficient evidence 2 from which the trier of fact could reasonably infer that [he] possessed the ‘minimum 3 qualifications’ for the positions, . . . or that [his] qualifications were comparable with those of the 4 persons awarded the positions.” Lyons v. England, 307 F.3d 1092, 1113–14 (9th Cir. 2002) 5 (quoting Laborde v. Regents of the Univ. of California, 686 F.2d 715, 717 (9th Cir. 1982)). 6 Once the prima facie case is established, the employer must then offer a legitimate, 7 nondiscriminatory reason for the adverse employment decision. McDonnell Douglas, 411 U.S. at 8 802. Although the burden of production shifts to the defendant at this point, the burden of proof 9 remains with the plaintiff at all times. Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 10 (1981). 11 Finally, if the employer offers a legitimate, nondiscriminatory reason, the plaintiff must 12 then prove that the employer’s proffered reason was pretextual. McDonnell Douglas, 411 U.S. at 13 804. To defeat summary judgment with a showing of pretext, a plaintiff can “show pretext 14 directly, by showing that discrimination more likely motivated the employer, or indirectly, by 15 showing that the employer’s explanation is unworthy of credence.” Vasquez v. Cnty. of Los 16 Angeles, 349 F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004). In addition, a showing 17 that a defendant treated similarly situated employees outside plaintiff’s protected class more 18 favorably would be probative of pretext. Id. 19 2. Retaliation 20 “Section 704 of Title VII prohibits retaliation against an employee for opposing unlawful 21 discrimination.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004). Retaliation 22 claims under Title VII are also assessed under the McDonnell Douglas burden-shifting framework. 23 Id. “To establish a prima facie case of retaliation under Title VII, [Plaintiff] must show 1) that he 24 acted to protect his Title VII rights; 2) that an adverse employment action was thereafter taken 25 against him; and 3) that a causal link existed between the two events.” Id. 26 27 1 B. Hebrew Teaching Position at Fort Eisenhower, Georgia 2 1. Discrimination 3 a. Prima Facie Case 4 Wormuth first argues Ahmed cannot establish a prima facie discrimination claim regarding 5 his non-selection for the position at Fort Eisenhower “because there is no evidence that Kelly was 6 aware of Plaintiff’s existence (let alone Plaintiff’s race or religion) when she recommended a 7 different person (Even-Zohar) for that position.” Mot. at 9. Wormuth provides a declaration from 8 Kelly stating that, on June 23, 2021—when she recommended Even-Zohar for the Continuing 9 Education position—she did not know Ahmed and was not aware he existed. Kelly Decl. ¶ 6. In 10 contrast, Kelly states she was familiar with Avner Even-Zohar because Even-Zohar previously 11 applied for a position in Germany, and Kelly remembered exchanging emails with Even-Zohar 12 about that position. Id. ¶ 3. 13 A plaintiff fails to establish a prima facie discrimination claim where “there is no showing 14 by direct or indirect evidence that the decision-maker knew” about the plaintiff’s protected 15 characteristics. Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987); see also Stewart v. 16 Wilkie, 855 F. App’x 394, 394-95 (9th Cir. 2021) (affirming grant of summary judgment where 17 the defendant “submitted numerous, uncontroverted declarations that [the plaintiff’s] age was 18 redacted and that no one on the ranking panel was aware of [the plaintiff’s] age”); Raytheon Co. v. 19 Hernandez, 540 U.S. 44, 54 n.7 (2003) (“If [the decision-maker] were truly unaware that such a 20 disability existed, it would be impossible for her hiring decision to have been based, even in part, 21 on respondent’s disability.”); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 82 (2d Cir. 2005) (“a 22 defendant’s discriminatory intent cannot be inferred, even at the prima facie stage, from 23 circumstances unknown to the defendant”); Wong v. Wells Fargo Bank, N.A., 2021 WL 4243398, 24 at *7 (N.D. Cal. Sept. 17, 2021) (“[T]he Court finds that as a matter of law, plaintiff cannot make 25 a prima facie case where a decision-maker is unaware of the basis for the alleged discrimination”); 26 Hsiung v. Walt Disney Co., 2020 WL 7379145, at *6 (C.D. Cal. Aug. 19, 2020) (same); Hamm v. 27 U.S. Dep’t of Homeland Sec., 2020 WL 6562245, at *3 (C.D. Cal. Sept. 9, 2020) (“A plaintiff fails 1 a protected class, but there is no showing by direct or indirect evidence that the decision-maker 2 knew this fact”) (citation and quotation marks omitted). 3 Instead of introducing admissible evidence demonstrating a genuine issue of fact as to 4 whether Kelly was aware of his race, religion, and/or prior protected activity status, Ahmed 5 submits a separate statement of facts lodging the following objections to Kelly’s sworn 6 declaration: “lacks foundation, lacks personal knowledge, hearsay, assumes facts not in evidence, 7 calls for speculation[.]” ECF No. 65-2 ¶¶ 13-16. Ahmed does not explain the legal or factual 8 bases for these evidentiary objections. However, it is clear that Kelly has personal knowledge 9 about her own knowledge, and she can testify to these facts. See Fed. R. Evid. 602. Additionally, 10 Kelly’s sworn testimony does not involve hearsay, but even if it did, that is not a valid objection in 11 these summary judgment proceedings because Kelly could testify to these facts at trial. JL 12 Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“at summary 13 judgment a district court may consider hearsay evidence submitted in an inadmissible form, so 14 long as the underlying evidence could be provided in an admissible form at trial, such as by live 15 testimony”). Ahmed also does not explain his “assumes facts not in evidence” and “calls for 16 speculation” objections, but, again, Kelly is capable of testifying regarding her own knowledge on 17 these topics. 18 Ahmed’s separate statement of facts also contends that other DLI employees were aware of 19 his protected characteristics and/or that DLI’s official records contained that information (ECF 20 No. 65-2 ¶¶ 13-16), but those assertions do not call into question Kelly’s sworn testimony that 21 Kelly lacked knowledge of Ahmed’s protected characteristics. Kelly was stationed at Fort Meade, 22 in Maryland (Kelly Decl. ¶ 2), and Ahmed was based in Monterey, California (Stip. Stmt. Facts ¶ 23 5). There is no evidence that Kelly and Ahmed ever interacted and/or that Kelly was generally 24 aware of the official records of all DLI employees. Ahmed bears the burden of identifying 25 evidence showing that the decisionmaker was aware of his protected characteristics; here, that 26 evidence is absent. 27 As Ahmed sets forth no evidence rebutting Kelly’s testimony that she was unaware of his 1 material fact and has failed to establish a prima facie case of discrimination. As such, summary 2 judgment is appropriate in Wormuth’s favor. However, even if Ahmed could establish a prima 3 facie case, he fails to produce sufficient evidence to raise a genuine issue of material fact as to 4 whether Wormuth’s proffered nondiscriminatory reason is merely a pretext for discrimination. 5 b. Legitimate, Nondiscriminatory Reason 6 Once a plaintiff has established a prima facie case, “the burden shifts to the defendant to 7 articulate a ‘legitimate, nondiscriminatory reason’ for its action.” Weil v. Citizens Telecom Servs. 8 Co., LLC, 922 F.3d 993, 1002 (9th Cir. 2019) (quoting McDonnell Douglas, 411 U.S. at 802). 9 Assuming Ahmed could establish a prima facie case, Wormuth has provided evidence that Ahmed 10 was not transferred to teach Hebrew at Fort Eisenhower because Kelly was not aware Ahmed 11 existed and was not aware he was seeking a transfer from DLI’s Hebrew Department. Kelly Decl. 12 ¶¶ 6, 9; see also Cobain v. Destination Hotels & Resorts, 2007 WL 1589533, at *11 (E.D. Cal. 13 June 1, 2007) (finding that employer’s lack of awareness that the plaintiff had applied for the 14 position is a legitimate, nondiscriminatory reason for non-selection), distinguished on other 15 grounds by Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010). 16 c. Pretext 17 If the employer articulates a legitimate, nondiscriminatory reason for its action, “the 18 presumption of unlawful discrimination ‘simply drops out of the picture.’” Dominguez-Curry, 19 424 F.3d at 1037 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). “The 20 plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to 21 whether the employer’s proffered nondiscriminatory reason is merely a pretext for 22 discrimination.” Id. (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000)). 23 Ahmed must introduce “specific and significantly probative” evidence that Wormuth’s proffered 24 reasons are pretextual. Schuler v. Chronical Broad. Co., 793 F.2d 1010, 1011 (9th Cir. 1986). “A 25 plaintiff may meet the burden to show pretext using either direct or circumstantial evidence.” 26 Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1094–95 (9th Cir. 2005). Circumstantial 27 evidence can be utilized affirmatively to make a case that an employer is biased, such as through 1 explanation is unworthy of credence. Id. at 1095. 2 Ahmed first argues there was a “timing discrepancy” because Kelly recommended Even- 3 Zohar for the position on June 23, 2021, but “the transfer wasn’t processed until August 15, 4 2021.” Opp’n at 11; Ahmed Decl. ¶ 14 (“In August 2021, DLI transferred Avner Even-Zohar, 5 who is Jewish and Israeli, to a Continuing Education position at Fort Eisenhower, as documented 6 by and through an email I received on August 16, 2021, while Acting Chair of the Hebrew 7 Department in the absence of Chairperson Eyal.”). However, there is no evidence that transfers 8 are processed the same day a recommendation is made, and Ahmed introduces no evidence to 9 suggest the approximately two-month interval between the recommendation and the transfer 10 makes Wormuth’s explanation “unworthy of credence because it is internally inconsistent or 11 otherwise unbelievable[.]” Chuang, 225 F.3d at 1127. Ahmed thus fails to explain why the time 12 at issue is evidence of pretext. 13 Ahmed also argues “DLI management chose to rescue Even-Zohar, their Jewish teacher, 14 while allowing Plaintiff, an Arab Muslim to lose his position and become employed.” Opp’n at 15 12. This assertion is unsupported by evidence and therefore cannot create a genuine dispute of 16 fact to defeat summary judgment. See Fed. R. Civ. P. 56(c)(1). In any event, it does not rise to 17 the level of “specific and significantly probative” evidence that Wormuth’s proffered reasons for 18 Kelly’s conduct are pretextual. Schuler, 793 F.2d at 1011. Indeed, there is no evidence that 19 anyone in “DLI management” was involved in Kelly’s recommendation of Even-Zohar for the 20 position, much less that they intentionally “chose to rescue” Even-Zohar rather than Ahmed or that 21 they did so based on Ahmed’s religion. Such “subjective personal judgments do not raise a 22 genuine issue of material fact.” Id. (citing Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). 23 Ahmed next argues the Fort Eisenhower position “was never publicly announced, thereby 24 deviating from standard DLI procedures.” Opp’n at 12. However, he does not provide any 25 evidence establishing what “standard DLI procedures” are, nor does he show those “standard DLI 26 procedures” would have applied to the Fort Eisenhower position. This is not specific and 27 probative evidence demonstrating that Wormuth’s nondiscriminatory and nonretaliatory reasons 1 were pretextual. 2 d. Summary 3 In sum, Ahmed has failed to establish a prima facie case of discrimination because he has 4 not introduced any evidence to contradict the sworn testimony that Kelly was unaware of his 5 existence, let alone his race or religion, when she recommended Even-Zohar for the position. 6 Even if Ahmed could establish a prima facie case, he has failed to produce specific and 7 significantly probative evidence demonstrating that Kelly’s reason for recommending Even-Zohar 8 for the position was pretextual. Accordingly, the Court GRANTS Wormuth’s motion as to 9 Ahmed’s Title VII discrimination claim based on the Hebrew teaching position at Fort 10 Eisenhower. 11 2. Retaliation 12 Wormuth next argues Ahmed cannot establish a prima facie Title VII retaliation claim with 13 respect to the Fort Eisenhower position because Kelly recommended Even-Zohar before he 14 engaged in activity protected by Title VII. Mot. at 11. “An alleged adverse action which predates 15 the alleged protected activity cannot serve as the basis for a retaliation claim.” Brown v. Jewell, 16 2017 WL 772140, at *2 (E.D. Cal. Feb. 28, 2017), aff’d sub nom. Brown v. Zinke, 741 F. App’x 17 413 (9th Cir. 2018); see also Alhozbur v. McHugh, 2011 WL 13243131, at *8 (N.D. Cal. July 21, 18 2011) (“Retaliation cannot be shown where the protected activity took place after the alleged 19 retaliatory action had already been set in motion”); Castillo v. Dominguez, 120 F. App’x 54, 57 20 (9th Cir. 2005) (a plaintiff must show “that []he acted to protect h[is] Title VII rights, that an 21 adverse employment action was thereafter taken against h[im], and that a causal link exists 22 between those two events.”) (citation and quotation marks omitted). 23 Ahmed first engaged in protected activity when he contacted an EEO counselor on July 13, 24 2021. Stip. Stmt. Fact ¶ 6; see also Ahmed, 2023 WL 4205765, at *12 (listing qualifying 25 protected activity, all of which occurred on or after July 13, 2021). That protected activity 26 postdates Kelly’s June 23, 2021 recommendation of Even-Zohar for the Fort Eisenhower position. 27 As such, Kelly’s recommendation could not have been in retaliation for Ahmed’s protected 1 2011 WL 13243131, at *8; Castillo, 120 F. App’x at 57. 2 Ahmed argues he engaged in protected activity in December 2020 when he spoke with his 3 Chairperson and Dean regarding his concerns about the downsizing situation. Opp’n at 11. 4 However, Ahmed still introduces no evidence that Kelly was aware of any activity in which he 5 might have engaged in December 2020, and Kelly’s sworn declaration establishes that she was not 6 aware of any such activity. Kelly Decl. ¶ 5. Ahmed cannot demonstrate a prima facie retaliation 7 claim without evidence demonstrating that knowledge. See Cohen v. Fred Meyer, Inc., 686 F.2d 8 793, 797 (9th Cir. 1982); Perez v. McDonough, 2024 WL 4844383, at *7 (N.D. Cal. Nov. 20, 9 2024) (dismissing Title VII claim where plaintiff failed to show decisionmaker was aware of her 10 EEO activity). Further, Ahmed does not introduce evidence demonstrating that his purported 11 conduct in December 2020 qualifies as protected activity, much less that the activity was protected 12 by Title VII, which is the only employment discrimination statute at issue in his complaint. See 13 McCarthy v. Brennan, 2016 WL 946099, at *12 (N.D. Cal. Mar. 14, 2016) (a retaliation claim 14 must be brought “under the statute under which [plaintiff] alleged the protected activity”). Indeed, 15 Ahmed’s declaration contends that in December 2020 he reported “concerns regarding retention of 16 less experienced teachers,” Ahmed Decl. ¶ 6, but he does not claim that his stated concerns 17 involved an allegation that DLI was engaging in unlawful discrimination against more experienced 18 teachers based on their race, religion, national origin, sex, gender, age, prior protected activity 19 status, or any other legally protected characteristic. Without more, voicing concerns about 20 retaining less experienced teachers is not an activity protected by federal employment 21 discrimination statutes. See de la Cruz v. Brennan, 2020 WL 1233886, at *8 (N.D. Cal. Mar. 13, 22 2020). Regardless, even if the Court were to consider the December 2020 discussion as protected 23 activity, the six to seven months between it and Kelly’s June 23, 2021 recommendation of Even- 24 Zohar is not sufficiently proximate to support a retaliatory causal inference as a matter of law. See 25 Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (holding that the time between 26 the allegedly retaliatory act and the protected activity must be “very close” and citing cases 27 holding that intervals of three and four months are not sufficiently proximate); Garcia v. City of 1 to mean that 1.5 months is sufficient whereas three and four months is too long”); Anderson v. 2 City & Cnty. of San Francisco, 169 F. Supp. 3d 995, 1028 (N.D. Cal. 2016) (“Other courts within 3 this Circuit have found that the temporal proximity of seven months, standing alone, is insufficient 4 to support an inference of retaliatory motive.”) (collecting cases). 5 Even if Ahmed could establish a prima facie case, as discussed above, he fails to identify 6 specific and significantly probative evidence that Wormuth’s proffered reasons for his non- 7 selection are pretextual. He introduces no evidence to suggest the approximately two-month 8 interval between Kelly’s recommendation and Even-Zohar’s transfer makes Wormuth’s 9 explanation unworthy of credence, there is no evidence anyone involved “chose to rescue” Even- 10 Zohar rather than Ahmed or that they did so based on of his religion, and even if Ahmed’s 11 December 2020 activity is considered protected activity, a six to seven month period between a 12 purported protected activity and an employment action cannot create a triable issue of pretext. See 13 Kama v. Mayorkas, 107 F.4th 1054, 1060 (9th Cir. 2024) (“Even cases involving very close 14 temporal proximity have generally featured independent evidence of discrimination or 15 retaliation.”). Accordingly, the Court GRANTS Wormuth’s motion as to Ahmed’s Title VII 16 retaliation claim based on the Hebrew teaching position at Fort Eisenhower. 17 C. Assistant Dean of UAA (Chinese School) 18 1. Discrimination 19 a. Prima Facie Case 20 Wormuth next argues Ahmed cannot establish a prima facie discrimination claim with 21 respect to the Assistant Dean of UAA position because there is no evidence that any panel member 22 was aware of his race or religion. Mot. at 13. 23 The selection panel for the Assistant Dean position was comprised of Dr. Atousa Mirzaei, 24 Zachary Jankowski, Dr. Farooq Babrakzai, Jamil Al Thawahrih, and Tatyana Neronova. Mirzaei 25 Decl. ¶ 3. The 38 applicants’ resumes were redacted to remove personally identifying 26 information, with each applicant given an identification number. Id. ¶¶ 5-6. Ahmed was 27 designated as Applicant 14. Id. ¶ 7. Ahmed’s redacted resume did not disclose his religion, 1 candidates based on their resumes, the selection panel interviewed the eight applicants with the 2 highest composite scores. Id. ¶¶ 11, 13. Ahmed received the ninth highest composite score and 3 was not selected for an interview. Id. ¶¶ 12-13 & Ex. 3 (composite scores). Wormuth has 4 presented declarations from each of the panel members attesting that they were not aware that 5 Applicant 14 referred to Ahmed, nor were they aware of his race, national origin, or religion, or 6 that he previously engaged in Title VII protected activity. Id. ¶¶ 8, 15-19; Jankowski Decl. ¶¶ 7- 7 11, ECF No. 56; Babrakzai Decl. ¶¶ 7-11, ECF No. 57; Al Thawahrih Decl. ¶¶ 6-10, Neronova 8 Decl. ¶¶ 6-10, ECF No. 59. 9 When a decisionmaker is unaware that a plaintiff is a member of a protected class, there 10 can be no prima case of discrimination under Title VII. See White v. Wilson, 2018 WL 6175385, 11 at *4 (C.D. Cal. Mar. 23, 2018), aff’d sub nom. White v. Barrett, 812 F. App’x 629 (9th Cir. 2020) 12 (“It is undisputed that Plaintiff is a member of protected classes under Title VII . . . . However, it 13 is also undisputed that neither the FMS or FAS selecting official knew of Plaintiff’s race, color, 14 sex, or age at the time of the selection. This precludes Plaintiff from stating a prima facie case 15 under either Title VII or the ADEA.”); Robinson, 847 F.2d at 1316-17 (finding no genuine dispute 16 as to whether application screeners were aware of plaintiff’s race, even though plaintiff produced 17 evidence that he checked a box indicating his race on all four of his applications, because this 18 information was not disclosed to the screeners, the screeners declared they were unaware of 19 plaintiff’s race, and plaintiff failed to produce evidence that placed their credibility in doubt); 20 Woodman, 411 F.3d at 81–83 (holding that an ADEA claim failed at the prima facie stage where 21 the plaintiff failed to adduce evidence of the decision-maker’s knowledge of the relative ages of 22 the plaintiff and her replacement); Stewart v. Wilkie, 2020 WL 362630, at *5 (C.D. Cal. Jan. 22, 23 2020), aff’d, 855 F. App'x 394 (9th Cir. 2021) (“[N]othing indicates that any ranking panel 24 member knew Stewart personally such that they could have known his age. Also, no interview 25 occurred because Stewart did not advance to the interview step, so no reviewer could have inferred 26 age from appearance. Thus, when Stewart was eliminated from the application process at the 27 second step, none of the panel members could have considered his age as a factor in their decision- 1 Raytheon, 540 U.S. at 54 n.7 (“If [the employer] were truly unaware that . . . a disability existed, it 2 would be impossible for her hiring decision to have been based, even in part, on [the employee’s] 3 disability. And, if no part of the hiring decision turned on [the employee’s] status as disabled, he 4 cannot, ipso facto, have been subject to disparate treatment.”)). 5 Ahmed disputes whether the panel members knew he was a member of a protected class. 6 Although personally identifying information was removed from the applicants’ resumes, Ahmed 7 argues the applications still “contained identifiable cultural markers that could reveal candidates’ 8 backgrounds and give hints as to their identities.”4 Opp’n at 12. Ahmed has presented evidence 9 that the pool of applicants who could be from the Hebrew Department was “maybe seven or eight 10 teachers,” making it possible by the process of elimination to determine which application 11 belonged to which applicant; that his application included mention of colleagues at the Hebrew 12 Department with whom he worked; and that his application included the location of his former 13 jobs. Ahmed Depo. at 80:1-18; 82:6-25. 14 At the prima facie stage, a plaintiff’s burden “is ‘minimal and does not even need to rise to 15 the level of a preponderance of the evidence.’” Dominguez-Curry, 424 F.3d at 1037 (quoting 16 Lyons, 307 F.3d at 1112). As such, the Ninth Circuit has instructed that district courts must be 17 cautious in granting summary judgment for employers on discrimination claims. See Lam v. Univ. 18 of Hawai‘i, 40 F.3d 1551, 1564 (9th Cir. 1994) (“‘We require very little evidence to survive 19 summary judgment’ in a discrimination case, ‘because the ultimate question is one that can only 20 be resolved through a “searching inquiry”—one that is most appropriately conducted by the 21 factfinder.’”) (quoting Severe Negative TreatmentSischo–Nownejad v. Merced Cmty. Coll. Dist., 22 934 F.2d 1104, 1111 (9th Cir. 1991)). From the evidence presented, it is possible that one or more 23 panel members could have been aware of Ahmed’s protected status, and the question of whether 24 they were is more appropriately left for the jury to decide. Thus, as Wormuth does not otherwise 25 argue that Ahmed is unable to make out a prima facie case under McDonnell Douglas, the Court 26 4 Ahmed again lodges in his separate statement of facts evidentiary objections to the panel 27 members’ sworn testimony about their own lack of knowledge. ECF No. 65-2 ¶¶ 27, 36-40, 44- 1 finds Ahmed has established a prima facie case. 2 b. Legitimate, Nondiscriminatory Reason 3 As Ahmed can establish a prima facie case, Wormuth must provide evidence that the 4 selection panel chose to interview only the eight highest scoring applicants from their review of 5 candidates, and Ahmed was the ninth highest-ranked applicant. Mirzaei Decl. ¶¶ 12-13 & Ex. 3. 6 The panel members’ decision to interview candidates they deemed better qualified is a legitimate, 7 non-discriminatory for Ahmed’s non-selection. See Dominguez-Curry, 424 F.3d at 1037 8 (employer’s decision to choose more qualified candidate is a legitimate non-discriminatory 9 reason); Hines v. Cal. Pub. Util. Comm’n, 2010 WL 2985536, at *6 (N.D. Cal. July 27, 2010), 10 aff’d, 467 F. App’x 639 (9th Cir. 2012) (employer’s evidence that plaintiff was not promoted 11 because the other candidates were more qualified is nondiscriminatory reason); Tam v. Potter, 12 2008 WL 2811989, at *4 (N.D. Cal. July 21, 2008) (employer’s reason that other applicants were 13 deemed better qualified for promotion based on two-stage evaluation satisfied burden). 14 c. Pretext 15 Ahmed offers two reasons Wormuth’s proffered reason is a pretext for discrimination. 16 First, as discussed above, Ahmed has presented evidence that the applications contained 17 identifiable cultural markers that could reveal candidates’ backgrounds and give hints as to their 18 identities. Ahmed Depo. at 80:1-18; 82:6-25. Second, Ahmed contends the top 10 applicants’ 19 scores were extremely close to one another, making the decision to interview the top eight 20 candidates seem arbitrary and capricious. Ahmed Decl. ¶ 19. Drawing all reasonable inferences 21 in favor of Ahmed, as it must do at this stage, see Raad v. Fairbanks N. Star Borough Sch. Dist., 22 323 F.3d 1185, 1194 (9th Cir. 2003), the Court finds he has created a triable question of fact. 23 From the evidence presented, it is possible that the selection panel could infer Ahmed’s race and 24 nationality from his redacted resume, and when that is combined with the fact they drew the line 25 right before him (between the eighth and ninth ranked candidates), when these candidates were 26 only 20 points apart, he has a triable showing that their stated reason is unworthy of credence. 27 “The circumstances surrounding each of these questions involve factual disputes that should not 1 F.3d at 1195; see Curley v. City of N. Las Vegas, 772 F.3d 629, 633 n.3 (9th Cir. 2014) (collecting 2 cases where an employee defeated summary judgment without discrediting all of the employer’s 3 stated reasons, such as where an “employer offers a plethora of reasons, and the plaintiff raises 4 substantial doubt about a number of them.”); Chuang, 225 F.3d at 1127 (“[A] disparate treatment 5 plaintiff can survive summary judgment without producing any evidence of discrimination beyond 6 that constituting his prima facie case, if that evidence raises a genuine issue of material fact 7 regarding the truth of the employer’s proffered reasons.”). 8 d. Summary 9 In sum, the Court finds Ahmed has presented evidence that the panel members’ decision 10 not to interview him was pretext for discrimination, and summary judgment is therefore improper. 11 Accordingly, the Court DENIES Wormuth’s motion as to Ahmed’s Title VII discrimination claim 12 based on the Assistant Dean of UAA position. 13 2. Retaliation 14 Wormuth argues Ahmed’s retaliation claim for the Assistant Dean position fails at the 15 prima facie stage because the selection panel members were not aware of his prior protected 16 activity. Mot. at 14. The panel members have each submitted declarations stating they were not 17 aware that Applicant 14 (Ahmed) had previously engaged in activity protected by Title VII, and 18 that information is not included in Ahmed’s resume. Mirzaei Decl. ¶¶ 8, 19; Jankowski Decl. ¶ 19 11, Babrakzai Decl. ¶ 11; Al Thawahrih Decl. ¶ 10, Neronova Decl. ¶ 10. A plaintiff cannot 20 establish a prima facie retaliation claim where the decisionmaker lacks knowledge of the prior 21 protected activity. See, e.g., Cohen, 686 F.2d at 797 (“[A]t the time Reynolds made the decision 22 that directly resulted in the adverse action against Bires, he did not know that she had engaged in a 23 protected activity. This breaks the requisite causal link between the decision to implement the 24 policies and Bires’ EEOC complaint.”); Velez v. VA, 2022 WL 1759597, at *6 (N.D. Cal. May 3, 25 2022) (“Associate Director Graham could not have possibly decided to remove Plaintiff’s Site 26 Manager role in retaliation for her EEO activities when he did not know of those activities”); 27 Adams v. Kmart Corp., 2001 WL 969049, at *4 (N.D. Cal. Aug. 10, 2001) (“In retaliation claims 1 held that the decisionmaker’s knowledge of the protected activity is an essential element.”); Chew 2 v. City & Cnty. of San Francisco, 2016 WL 631924, at *15 (N.D. Cal. Feb. 17, 2016), aff’d, 714 F. 3 App’x 687 (9th Cir. 2017) (“employment decisions made when the decision-maker did not know 4 that the affected employee had engaged in protected activity cannot be causally linked to such 5 activity”). 6 In response to Wormuth’s evidence, Ahmed raises the same argument he makes for his 7 discrimination claim: the redacted applications contained identifiable “cultural markers” that could 8 reveal candidates’ backgrounds and give hints as to their identities. Ahmed Depo. at 80:1-18; 9 82:6-25. However, even if these characteristics could be inferred from the resume, Ahmed 10 presents no evidence that undermines the panel members’ sworn testimony that his resume does 11 not reveal his protected activity. See Stewart, 855 F. App’x at 394-95; Robinson, 847 F.2d at 12 1317. As such, because there is no evidence that the panel members were aware of Ahmed’s 13 protected activity, the Court finds he cannot establish a retaliation claim. Accordingly, the Court 14 GRANTS Wormuth’s motion as to Ahmed’s Title VII retaliation claim based on the Assistant 15 Dean of UAA position. 16 D. Levantine Team Leader Position 17 1. Prima Facie Case 18 Wormuth argues Ahmed’s retaliation claim for the Levantine Team Leader position fails 19 because the four selection panel members were not aware of his protected activity when they 20 recommended Siba Ammari for the position.5 Mot. at 16. The selection panel was comprised of 21 Dr. Sonia Estima, SSgt Spencer Rogers, Jamil Al Thawahrih, and Mais Ghanem. Estima Decl. ¶ 22 3. Each submitted declarations stating they were not aware that Ahmed had previously engaged in 23 activity protected by Title VII. Estima Decl. ¶ 16; Rogers Decl. ¶ 6, ECF No. 61; Al Thawahrih 24 Decl. ¶ 19; Oliva Decl. ¶ 6. And Dean McCaw, the decisionmaker who selected Ammari was also 25 unaware of Ahmed’s protected activity. McCaw Decl. ¶ 7. A plaintiff cannot establish a prima 26 facie retaliation claim where the decisionmaker lacks knowledge of the prior protected activity. 27 1 Cohen, 686 F.2d at 797; Velez, 2022 WL 1759597, at *6; Adams, 2001 WL 969049, at *4. 2 In his separate statement of facts (but not the Opposition), Ahmed argues: (1) “Al 3 Thawahrih was on multiple interview panels and would have been aware of protected activity 4 within the department,” ECF No. 65-2 ¶ 94; (2) his protected activity “was known within the small 5 department,”6 id. ¶¶ 93, 95; and (3) he had, in fact, engaged in prior protected activity, id. ¶¶ 92, 6 97.7 However, Ahmed offers no declarations or testimony from the individuals involved in the 7 Levantine Team Leader selection process, and his speculative beliefs about what they might have 8 known cannot create a genuine dispute of material fact, especially where each of those individuals 9 submitted a sworn declaration establishing that they were not aware of Ahmed’s protected activity. 10 Accordingly, the Court finds Ahmed has failed to establish a prima facie case of 11 retaliation, and summary judgment is appropriate in Wormuth’s favor. However, even if Ahmed 12 could establish a prima facie case, he fails to produce sufficient evidence to raise a genuine issue 13 of material fact as to whether Wormuth’s proffered nondiscriminatory reason is merely a pretext 14 for retaliation. 15 2. Legitimate, Nondiscriminatory Reason 16 Wormuth has presented evidence that Siba Ammari was more qualified than Ahmed for 17 the position, including that Ammari was more familiar with the Levantine curriculum and was a 18 certified tester for Levantine. Estima Decl. ¶¶ 10, 14-15; id., Ex. 1; Ahmed Depo. at 145:11-22. 19 The selection panel’s recommendation of a person whom they viewed to be a superior candidate— 20 and Dean McCaw’s acceptance of that recommendation—is a legitimate, non-discriminatory, 21 nonretaliatory reason for Ahmed’s non-selection. See Dominguez-Curry, 424 F.3d at 1037; Hines, 22 2010 WL 2985536, at *6; Tam, 2008 WL 2811989, at *4. 23 24 6 Ahmed’s references to “the small department” or “the department” are unclear, but it is 25 undisputed that he was a member of the Hebrew Department, not DLI’s Arabic schools. Stip. Stmt. Fact ¶ 5. Ahmed introduces no evidence to support his belief that members of a different 26 language department would have been aware of the protected activity of an Associate Professor of the Hebrew Language. 27 7 Ahmed also lodges the same boilerplate evidentiary objections to the panel members’ sworn 1 3. Pretext 2 Ahmed first argues Wormuth’s proffered reason is pretextual because DLI applied 3 inconsistent standards. Opp’n at 13-14. Ahmed notes that “in the 14 years [he] worked for the 4 DLI, he taught as a non-native speaker, not only holding his position as Associate Professor but 5 being placed in positions of esteem and power by the DLI throughout his tenure, including but not 6 limited to Acting Chair of the Hebrew Department.” Id. at 13. He claims “DLI created a new set 7 of standards only applied to Plaintiff, wherein they demanded the Levantine Team Leader position 8 be filled by a native speaker.” Id. Ahmed argues DLI “rigged the selection process to include a 9 [sic] element he could never fulfill – to be a native speaker.” Id. at 14. Other than his own 10 speculation, however, Ahmed provides no evidence about “DLI’s standard practices” for team 11 leader selections, and there is thus no basis for the Court to conclude that DLI’s interview 12 procedures were any different than the procedures DLI normally employs for similar openings. 13 But even if Ahmed had presented evidence on this issue, the case he cites, Bergene v. Salt 14 River Project Agr. Imp. & Power Dist., 272 F.3d 1136 (9th Cir. 2001), does not support his 15 position. In Bergene, the court found that a change in job requirements can constitute specific and 16 substantial evidence of pretext. Id. at 142. However, the selection criteria at issue changed during 17 the selection process: the initial posting was open only to journeyman electricians and did not 18 require supervisory experience; later, however, the posting was expanded to non-journeyman 19 electricians and candidates were evaluated on their supervisory experience. Id. at 1143. These 20 mid-process criteria changes adversely impacted the plaintiff’s competitive advantage, and the 21 Ninth Circuit thus found that these changes were sufficient to establish a genuine dispute of 22 material fact regarding pretext. Id. Here, in contrast, there is no evidence that the selection 23 process or selection criteria changed during the selection process; instead, the process was the 24 same for all applicants: the selection panel membership remained the same for all candidates 25 (Estima Decl. ¶ 2); the selection panel had a script of interview questions, with the same questions 26 posed to each interviewee (id. ¶ 5; Al Thawahrih Decl. ¶ 16); and the selection panel member who 27 did not speak Modern Standard Arabic or Levantine Arabic did not provide ratings for questions 1 Ahmed also argues the selection process “stacked the deck” against him. Opp’n at 14. For 2 example, he claims that including non-Arabic-speaking panel member(s) made it impossible for 3 the entire panel to understand the answers provided in Modern Standard Arabic or Levantine. Id. 4 But the evidence shows the other applicants faced the exact same hurdle. Ahmed also notes that 5 “several panel members were not certified Arabic testers” (Opp’n at 14) and “the use of target 6 language questions was unusual for Team Leader positions” (Ahmed Decl. ¶ 22), but, once again, 7 Ahmed does not articulate how the panel makeup or target language questioning (which was 8 consistent for all candidates) singled him out or how those processes are indicative of retaliatory 9 animus. Ahmed also claims that his non-native speaker status was a disadvantage (Opp’n at 13), 10 but native speaker status was not a selection criterion, and, in any event, there is no indication that 11 familiarity and facility with the target language would not be a legitimate selection criterion for a 12 language school position. 13 Finally, the Court notes that Ahmed admitted during his deposition that he was not the 14 most qualified candidate for the role when he testified that “I am not saying I was the most 15 qualified” candidate. Stip. Stmt. Fact ¶ 12. An employer has the discretion to select a better- 16 qualified candidate, and the fact that the panel did so here is not pretext for retaliation. Romo v. 17 Springs Window Fashions Div., Inc., 263 F. App’x 640, 641 (9th Cir. 2008) (“[T]he record 18 contains nothing that raises a genuine issue of material fact as to whether Springs’ 19 nondiscriminatory reason for not promoting her (another employee’s superior qualifications) was 20 pretextual); Adetuyi v. City & Cnty. of San Francisco, 63 F. Supp. 3d 1073, 1088 (N.D. Cal. 2014) 21 (finding plaintiff failed to meet his burden of showing pretext where he failed to show his 22 qualifications were “clearly superior” to the chosen candidate). 23 4. Summary 24 In sum, Ahmed has failed to establish a prima facie case of retaliation because he has not 25 introduced any evidence to contradict the sworn testimony of the panel members that they were 26 unaware of his prior protected activity. Even if Ahmed could establish a prima facie case, he 27 himself testified he was not the most qualified candidate, and there is no evidence—much less 1 to interview Ahmed was pretext for discrimination. 2 Accordingly, the Court GRANTS Wormuth’s motion as to Ahmed’s Title VII retaliation 3 claim based on the Levantine Team Leader position. 4 E. Egyptian Testing Project Role 5 1. Prima Facie Case 6 Wormuth argues Ahmed’s retaliation claim based on the Egyptian testing project role fails 7 because there was no open position to which he could have been transferred.8 Mot. at 17-18. 8 Ahmed contends this argument fails because “Dr. Amin’s contemporaneous statements about 9 departmental needs contradict Defendant’s position.” Opp’n at 14. Specifically, he argues that 10 while Wormuth “now claim[s] that Dr. Amin was merely posing a hypothetical question as to 11 whether Plaintiff would like to join his department, this is a gross misstatement of the evidence. 12 In fact, Dr. Amin offered the job to Plaintiff directly, expressing his need for Plaintiff’s skills in 13 test development, in order to improve the Arabic Tests.” Id. at 14-15. Ahmed also argues Dr. 14 Amin “advised Plaintiff that he would be contacting Chief of Staff Steve Collins to facilitate 15 Plaintiff’s transfer to Dr. Amin’s department. There was nothing hypothetical about the 16 exchange.” Id. at 15. 17 In his declaration, Dr. Amin states he had a conversation with Ahmed in which he said 18 Ahmed would be a good fit for an Egyptian testing project position and that the Egyptian 19 Department had a need for such a position, but he also states “no such position existed; rather it 20 was my opinion that there was a need for an Egyptian testing project position, but DLI first had to 21 fund the position.” Amin Decl. ¶¶ 3-4. Dr. Amin states he reached out to DLI management to see 22 if DLI would fund an Egyptian testing project position within the Egyptian Department, but he 23 was informed that there was no funding for such a position. Id. ¶ 5. Dr. Amin also states the 24 Egyptian department was downsizing and, ultimately, was terminated by DLI. Id. ¶ 6. 25 DLI is not required to create a new funded position for Ahmed, and the fact that it did not 26 do so here cannot support a cognizable retaliation claim as a matter of law. See, e.g., Rowell v. 27 1 Sony Pictures Television Inc., 743 F. App’x 852, 854 (9th Cir. 2018) (a retaliatory failure-to-hire 2 claim “is premised on an employer’s rejection of a candidate for an open position”) (emphasis in 3 original); see also id. (“Indeed, it stands to reason that an adverse employment action against a 4 prospective employee arises only if there is employment to be had in the first place.”); Bernstein v. 5 The MONY Grp., Inc., 228 F. Supp. 2d 415, 419 (S.D.N.Y. 2002) (dismissing Title VII claim 6 where the plaintiff “has not alleged . . . that any position ‘in recruiting and marketing’ was ever 7 created or that she was rejected from such position”); Hamilton v. St. Joseph’s Med. Ctr., 2014 8 WL 2624976, at *6 (E.D. Cal. June 12, 2014) (granting motion for summary judgment where 9 “there was no current posting for the job plaintiff wanted”); Hottenroth v. Vill. of Slinger, 388 10 F.3d 1015, 1032 (7th Cir. 2004) (“[T]he failure of the Slinger Board to create a new position for 11 Hottenroth cannot, as a matter of law, be considered an adverse action . . . . [A]n adverse 12 employment action does not include an employer’s refusal to grant an employee a discretionary 13 benefit to which she is not automatically entitled”); McQuilkin v. Del. River Port Auth., 2013 WL 14 5936983, at *13 (D.N.J. Nov. 6, 2013) (“[T]he failure of an employer to create a new position of 15 grants administrator for Plaintiff — a job title that did not exist at the time — cannot be the basis 16 of a retaliation claim”). 17 Ahmed does not introduce a public job posting for this role. He does not identify internal 18 documents showing that DLI had authorized this role or that such a position was open and waiting 19 to be filled. And he does not submit any evidence to demonstrate that an Egyptian Testing Project 20 role was later filled by someone else. Without evidence of such a position, Ahmed fails to meet 21 his burden of establishing a prima facie retaliation claim. See Rowell, 743 F. App’x at 854. 22 Accordingly, the Court finds Ahmed has failed to establish a prima facie case of retaliation, and 23 summary judgment is appropriate in Wormuth’s favor. However, even if Ahmed could establish a 24 prima facie case, he fails to produce sufficient evidence to raise a genuine issue of material fact as 25 to whether Wormuth’s proffered nondiscriminatory reason is merely a pretext for retaliation. 26 2. Legitimate, Nondiscriminatory Reason 27 Assuming Ahmed could assert a retaliation claim with respect to a position that did not 1 ¶ 5), the Egyptian Department was downsizing (id. ¶ 6); and DLI ultimately terminated the 2 Egyptian Department (id.). Indeed, DLI no longer has an Egyptian Department. Id. ¶ 7. As such, 3 the Court finds Wormuth has offered a legitimate, nondiscriminatory reason for the adverse 4 employment decision. See Jaiyeola v. Carrier Corp., 350 F. App’x 583, 587 (2d Cir. 2009) 5 (finding that “downsizing” and ultimate “elimination of the entire department” was a legitimate, 6 non-retaliatory reason for employment action); Ellorin v. Applied Finishing, Inc., 996 F. Supp. 2d 7 1070, 1093 (W.D. Wash. 2014) (“general downsizing due to poor economic conditions” combined 8 with the fact “that the position itself, although discussed, was never created or filled” was a 9 legitimate, nondiscriminatory reason for employment actions). 10 3. Pretext 11 In response to Wormuth’s evidence, Ahmed states that in November 2021 Dr. Amin told 12 the Investigations and Resolutions Directorate’s investigator Mr. Matthew Trower that he believed 13 Ahmed was not offered or allowed to transfer to the Egyptian Department “because of a rushed 14 decision to end my contract, thereby disregarding the department’s need for a candidate with my 15 expertise, experience and talent.” Ahmed Decl. ¶ 25; Opp’n at 15. He argues Wormuth’s 16 explanation “is clearly unworthy of credence as Dr. Amin’s testimony to investigators directly 17 contradicts Defendant’s funding explanation.” Opp’n at 15. However, other than his own 18 declaration which consists of hearsay, Ahmed provides no evidence in support of this argument. 19 Regardless, even assuming Dr. Amin made this statement, his belief that Ahmed was not offered 20 to transfer to the Egyptian Department because of a rushed decision to end his contract does not 21 establish that the Egyptian Testing Project role existed in the first place. Nor is there any support 22 in the record for Ahmed’s argument that he “was not offered the job in [Dr. Amin’s] department, 23 not because of a lack of funding, but simply because DLI management wanted to end Plaintiff’s 24 contract.” Opp’n at 15. Again, that assertion does not demonstrate that the Egyptian Testing 25 Project role existed, which is a fundamental requirement of a retaliatory non-selection claim. 26 4. Summary 27 In sum, Ahmed has failed to establish a prima facie cases because the undisputed evidence 1 the role, the role was never approved or funded, the role was not filled by any other person, the 2 Egyptian Department was downsizing, and DLI ultimately terminated the entire Egyptian 3 Department. Ahmed thus cannot introduce specific and significantly probative evidence 4 demonstrating that the Egyptian Testing Project role existed, and he does not demonstrate a triable 5 issue of fact. 6 Accordingly, the Court GRANTS Wormuth’s motion as to Ahmed’s Title VII retaliation 7 claim based on the Egyptian testing project position. 8 F. Miscellaneous Arguments in Opposition 9 In addition to the four positions at issue in this lawsuit, Ahmed raises several arguments in 10 his Opposition. 11 1. Hostile Work Environment 12 Ahmed argues there is a “pattern of retaliation” at issue. Opp’n at 15-17. Although 13 unclear, this appears to be an attempt to raise a hostile work environment claim.9 But Ahmed has 14 not alleged a retaliatory hostile work environment claim. As the Court observed in its order 15 dismissing the original complaint, “[b]ased on how the Complaint is written, the Court determines 16 that Plaintiff is alleging discrete acts of discrimination, not a hostile work environment.” ECF No. 17 21 at 5; Ahmed, 2023 WL 2309776, at *3. And to the extent Ahmed may have wished to assert a 18 retaliatory hostile work environment in his amended complaints, he failed to do so—indeed, the 19 operative Second Amended Complaint does not include the words “hostile,” “harassment,” or 20 “pattern,” or any other words that would have placed Wormuth on notice that he sought to assert a 21 hostile work environment claim. It would be improper to allow Ahmed to assert such a claim for 22 the first time now. See Ellis v. SmithKline Beecham Corp., 2008 WL 3166385, at *12 (W.D. 23 Wash. Aug. 5, 2008), aff’d, 363 F. App’x 481 (9th Cir. 2010) (“Plaintiff attempts to transmute her 24 various disparate treatment claims into harassment and hostile work environment claims. Plaintiff 25

26 9 “An employer is liable under Title VII for conduct giving rise to a hostile environment where the employee proves (1) that [she] was subjected to verbal or physical conduct of a harassing nature, 27 (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive 1 may not do so.”); see also Adrian v. Cnty. of Storey, 2018 WL 1413383, at *3 (D. Nev. Mar. 21, 2 2018) (“A hostile work environment comprises unwelcome verbal or physical conduct—not 3 prototypical adverse employment actions such as termination and loss of privileges.”). Further, to 4 the extent Ahmed claims the non-selections at issue occurred because of his protected activity, the 5 Ninth Circuit requires a plaintiff to demonstrate hostile verbal or physical conduct that occurred 6 “because of” his claimed protected characteristics. Manatt v. Bank of Am., 339 F.3d 792, 798 (9th 7 Cir. 2003); see also Perez, 2024 WL 4844383, at *9 (“[T]he alleged conduct underlying 8 [plaintiff’s] hostile work environment claim is ‘identical’ to her disparate treatment and retaliation 9 claims, save for adding the word ‘continually’ to her allegations. . . . Because discrete acts may 10 not be ‘cobbled together’ to a cognizable hostile work environment claim, Perez’s claim must also 11 be dismissed on this ground.”). 12 2. Events Prior to July 20, 2021 13 Ahmed argues he “applied for at least 12 jobs . . . yet received not one interview[.]” Opp’n 14 at 5-6, 17. However, the Court already dismissed without leave to amend any claims “based on 15 agency conduct prior to July 20, 2021.” ECF No. 32 at 13-14; Ahmed, 2023 WL 4205765, at *7. 16 The only claims remaining in this lawsuit relate to the four discrete non-selections discussed 17 above, and Ahmed’s conclusory assertions about other non-selections are not properly before the 18 Court. 19 3. Settlement Agreement 20 Ahmed argues DLI breached the parties’ July 2021 settlement agreement by excluding him 21 from vacancy notifications which would have enabled him to apply for such vacancies. Opp’n at 22 17. However, the Court already rejected this claim at the pleading stage, holding it “does not have 23 subject matter jurisdiction over claims for breach of a Title VII settlement agreement.” ECF No. 24 32 at 12; Ahmed, 2023 WL 4205765, at *6 (“[T]he fact that Plaintiff administratively exhausted 25 his breach of settlement claim does not provide the Court the ability to hear his claims related to 26 the underlying discrimination claims resolved in the July 16, 2021 agreement.”). 27 V. CONCLUSION 1 PART Wormuth’s motion for summary judgment. The Court GRANTS Wormuth’s motion as to 2 || Ahmed’s Title VII discrimination and retaliation claims based on the Hebrew teaching position at 3 Fort Eisenhower, Ahmed’s Title VII retaliation claim based on the Assistant Dean of UAA 4 || position, Ahmed’s Title VII retaliation claim based on the Levantine Team Leader position, and 5 Ahmed’s Title VII retaliation claim based on the Egyptian testing project position. The Court 6 || DENIES Wormuth’s motion as to Ahmed’s Title VII discrimination claim based on the Assistant 7 Dean of UAA position. 8 The parties are referred to Judge Kim for a further settlement conference. The Court shall 9 conduct a further case management conference on January 9, 2025 at 10:00 a.m. by Zoom video 10 || conference. The webinar link and instructions are located at 11 https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/, This conference shall be attended by lead 12 || trial counsel. By January 2, 2025, the parties shall file an updated joint case management 13 statement containing the information in the Standing Order for All Judges in the Northern District 14 || of California, available at the link above. The Joint Case Management Statement form may be 3 15 obtained at: http://cand.uscourts.gov/civilforms. a 16 IT IS SO ORDERED.

18 |) Dated: December 10, 2024 19 AN. Lj, — THOMAS S. HIXSON 20 United States Magistrate Judge 21 22 23 24 25 26 27 28