2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 LEANN ARCHULETA; AND MICHAEL Case No. 2:15-cv-01608-MMD-VCF DICKENS, an individual, 7 ORDER Plaintiffs, 8 v. 9 CORRECTIONS CORPORATION OF AMERICA, A MARYLAND 10 CORPORATION DOING BUSINESS AS NEVADA SOUTHERN DETENTION 11 CENTER, 12 Defendant. 13 14 I. SUMMARY 15 Plaintiff Leann Archuleta1 brought this employment dispute asserting claims under 16 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). (ECF No. 17 33.) The sole issue before the Court is whether Defendant Corrections Corporation of 18 America is entitled to summary judgment on Plaintiff’s remaining retaliation claim. The 19 Court finds in the affirmative because Plaintiff fails to meet her prima facie burden. Thus, 20 the Court grants Defendant’s motion for summary judgment (“Motion”). (ECF No. 81.)2 21 /// 22 /// 23 /// 24 /// 25 /// 26 1As indicated by the case caption, Michael Dickens was also a Plaintiff in this case. However, the Court previously dismissed Dickens’ claims with prejudice. (See ECF No. 27 80.) 28 2The Court has reviewed Plaintiff’s response (ECF No. 84) and Defendant’s reply (ECF No. 88). 2 The following facts are undisputed. 3 This case chiefly arises from Defendant’s termination of Plaintiff for purportedly 4 ordering subordinate officers to identify themselves to a detainee as being the reason why 5 that detainee would not be removed from the segregation unit of the Nevada Southern 6 Detention Center (“NSDC”). (See, e.g., ECF No. 33 at 4, 8; ECF No. 81-17.) As relevant 7 here, Plaintiff claims that her termination was in retaliation of her opposition to sexual 8 harassment. (ECF No. 33, ECF No. 84 at 25.) 9 Plaintiff began working for Defendant at NSDC in 2010, although she had worked 10 for Defendant since 1994. (ECF No. 84-1 at 2; ECF No. 81-3 at 5.) At the time of her 11 termination, in June 2014, she was employed as the Chief of Unit Management. (ECF No. 12 84-1 at 2.) Her responsibilities included providing training on the Prison Rape Elimination 13 Act (“PREA”). (ECF No. 81-3 at 18.) Her direct supervisor was her former co-plaintiff, 14 Michael Dickens, who reported to NSDC’s Warden, Charlotte Collins. (Id. at 15–16, 19– 15 20.) 16 While visiting Nevada in summer 2013, Defendant’s Chief Operating Officer and 17 Executive Vice President, Harley Lappin, took a tour of NSDC. (Id. at 21–23.) Collins and 18 Plaintiff were among those also on the tour. (Id. at 23–24, 26.) At some point during the 19 tour, Lappin reached for Plaintiff’s hand. (ECF No. 84-1 at 2–3.) Anticipating a handshake, 20 Plaintiff put her hand out toward Lappin. (Id.) Lappin took Plaintiff’s hand and put his hand 21 on top of her hand, stating “Boy, he must really love you”—looking at Plaintiff’s ring. (Id.; 22 ECF No. 81-3 at 25.) Plaintiff pulled her hand away and said it was a cheap ring. (Id.) The 23 exchange lasted for roughly six seconds. (ECF No. 81-3 at 43.) 24 Plaintiff and Collins made jokes about the incident. (ECF No. 81-8 at 2–3; ECF No. 25 81-7 at 2; ECF No. 81-5 at 4 (stating that Plaintiff was making a “mockery of the situation”).) 26 Plaintiff also obtained a copy of a photo from video surveillance which captured her 27 exchange with Lappin. (ECF No. 84-1 at 3; ECF No. 81-8 at 3.) Collins concluded that 28 /// 2 4.) 3 Ultimately, the incident was investigated on September 3, 2013 (the 4 “Investigation”). (ECF No. 81-9 at 2.) Notably, Dickens issued Plaintiff a discipline, dated 5 August 30, 2013, for a violation of PREA for failure to report two PREA allegations. (ECF 6 No. 81-19 at 2; ECF No. 81-3 at 44–45.) Plaintiff claims she did not receive the discipline 7 until September 9, after she was interviewed as part of the Investigation. (ECF No. 84-1 8 at 4.) Plaintiff also provided written statements to the investigator, wherein she essentially 9 disavowed believing she was sexually harassed. (See, e.g., ECF No. 81-3 at 28-41; ECF 10 No. 81-10.) Upon interviewing several individuals, the investigator determined that nothing 11 inappropriate occurred in the interaction between Lappin and Plaintiff and the Investigation 12 was closed. (ECF No. 81-9 at 2–3.) 13 In early 2014, two of Plaintiff’s subordinates—Harry Harland and Michael Donlon— 14 filed incident reports complaining about a separate matter involving a detainee who had 15 requested to be transferred out of segregation. (ECF Nos. 81-13, ECF No. 81-14.) Harland 16 reported that Plaintiff had instructed him to tell the detainee that he would not be 17 transferred out of segregation because Harland and Donlon were opposed to it. (ECF No. 18 81-13 at 3.) Plaintiff insists that she only told Harland to tell the detainee “the truth” about 19 why he would not be transferred from segregation because Dickens directed her to do so. 20 (ECF No. 84-1 at 9.) In March 2014, Plaintiff was placed on administrative leave. (Id. at 21 5.) 22 Thereafter, an investigator concluded that there was sufficient evidence supporting 23 a finding that Plaintiff ordered Harland to disclose to the detainee as Harland reported in 24 his incident report. (ECF No. 81-17 at 18.) Among other things, the investigator also 25 concluded that enough evidence supported that the directed disclosure was “based solely 26 on retaliation by [Dickens] and [Plaintiff] for their perception that the officers had 27 undermined their authority in making transfer decisions and in retaliation for their 28 perception that [Harland and Donlon] reported their safety concerns [about the detainee’s 2 supports a conclusion that Plaintiff and Dickens acted in “reckless disregard” for the safety 3 of subordinate officers by exposing then to potential inmate violence. (Id. at 19.) Defendant 4 terminated Plaintiff and Dickens, citing to the detainee-incident as a violation of 5 Defendant’s code of conduct. (ECF No. 81-20 at 2; ECF No. 81-5 at 13–14; ECF No. 88- 6 5.) 7 Plaintiff and Dickens brought this action in August 2015. (See, e.g., ECF No. 45 at 8 1–2 (explaining the allegations); ECF No. 1.) For her part, Plaintiff alleged unlawful 9 retaliation claims under Title VII and for filing a worker’s compensation claim. (ECF No. 33 10 at 9–11, 13–15.) Plaintiff also alleged that Defendant negligently hired, trained, and 11 supervised its employees. (Id. at 18–19.) The Court dismissed all claims. (ECF Nos. 45, 12 46.) Plaintiff and Dickens appealed. (ECF Nos. 47, 52.) The Ninth Circuit affirmed the 13 Court’s ruling in part but reversed the Court’s dismissal of Plaintiff and Dickens’ retaliation 14 claims under Title VII and Dickens’ race discrimination claim. (ECF No. 52 at 2–4.) 15 Dickens’ claims were dismissed with prejudice on April 23, 2019. (ECF No. 80.) Thus, the 16 only claim remaining is Plaintiff’s retaliation claim under Title VII. 17 III. LEGAL STANDARD 18 “The purpose of summary judgment is to avoid unnecessary trials when there is no 19 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 20 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 21 the discovery and disclosure materials on file, and any affidavits “show that there is no 22 genuine issue as to any material fact and that the moving party is entitled to a judgment 23 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 24 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 25 find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 26 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 LEANN ARCHULETA; AND MICHAEL Case No. 2:15-cv-01608-MMD-VCF DICKENS, an individual, 7 ORDER Plaintiffs, 8 v. 9 CORRECTIONS CORPORATION OF AMERICA, A MARYLAND 10 CORPORATION DOING BUSINESS AS NEVADA SOUTHERN DETENTION 11 CENTER, 12 Defendant. 13 14 I. SUMMARY 15 Plaintiff Leann Archuleta1 brought this employment dispute asserting claims under 16 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). (ECF No. 17 33.) The sole issue before the Court is whether Defendant Corrections Corporation of 18 America is entitled to summary judgment on Plaintiff’s remaining retaliation claim. The 19 Court finds in the affirmative because Plaintiff fails to meet her prima facie burden. Thus, 20 the Court grants Defendant’s motion for summary judgment (“Motion”). (ECF No. 81.)2 21 /// 22 /// 23 /// 24 /// 25 /// 26 1As indicated by the case caption, Michael Dickens was also a Plaintiff in this case. However, the Court previously dismissed Dickens’ claims with prejudice. (See ECF No. 27 80.) 28 2The Court has reviewed Plaintiff’s response (ECF No. 84) and Defendant’s reply (ECF No. 88). 2 The following facts are undisputed. 3 This case chiefly arises from Defendant’s termination of Plaintiff for purportedly 4 ordering subordinate officers to identify themselves to a detainee as being the reason why 5 that detainee would not be removed from the segregation unit of the Nevada Southern 6 Detention Center (“NSDC”). (See, e.g., ECF No. 33 at 4, 8; ECF No. 81-17.) As relevant 7 here, Plaintiff claims that her termination was in retaliation of her opposition to sexual 8 harassment. (ECF No. 33, ECF No. 84 at 25.) 9 Plaintiff began working for Defendant at NSDC in 2010, although she had worked 10 for Defendant since 1994. (ECF No. 84-1 at 2; ECF No. 81-3 at 5.) At the time of her 11 termination, in June 2014, she was employed as the Chief of Unit Management. (ECF No. 12 84-1 at 2.) Her responsibilities included providing training on the Prison Rape Elimination 13 Act (“PREA”). (ECF No. 81-3 at 18.) Her direct supervisor was her former co-plaintiff, 14 Michael Dickens, who reported to NSDC’s Warden, Charlotte Collins. (Id. at 15–16, 19– 15 20.) 16 While visiting Nevada in summer 2013, Defendant’s Chief Operating Officer and 17 Executive Vice President, Harley Lappin, took a tour of NSDC. (Id. at 21–23.) Collins and 18 Plaintiff were among those also on the tour. (Id. at 23–24, 26.) At some point during the 19 tour, Lappin reached for Plaintiff’s hand. (ECF No. 84-1 at 2–3.) Anticipating a handshake, 20 Plaintiff put her hand out toward Lappin. (Id.) Lappin took Plaintiff’s hand and put his hand 21 on top of her hand, stating “Boy, he must really love you”—looking at Plaintiff’s ring. (Id.; 22 ECF No. 81-3 at 25.) Plaintiff pulled her hand away and said it was a cheap ring. (Id.) The 23 exchange lasted for roughly six seconds. (ECF No. 81-3 at 43.) 24 Plaintiff and Collins made jokes about the incident. (ECF No. 81-8 at 2–3; ECF No. 25 81-7 at 2; ECF No. 81-5 at 4 (stating that Plaintiff was making a “mockery of the situation”).) 26 Plaintiff also obtained a copy of a photo from video surveillance which captured her 27 exchange with Lappin. (ECF No. 84-1 at 3; ECF No. 81-8 at 3.) Collins concluded that 28 /// 2 4.) 3 Ultimately, the incident was investigated on September 3, 2013 (the 4 “Investigation”). (ECF No. 81-9 at 2.) Notably, Dickens issued Plaintiff a discipline, dated 5 August 30, 2013, for a violation of PREA for failure to report two PREA allegations. (ECF 6 No. 81-19 at 2; ECF No. 81-3 at 44–45.) Plaintiff claims she did not receive the discipline 7 until September 9, after she was interviewed as part of the Investigation. (ECF No. 84-1 8 at 4.) Plaintiff also provided written statements to the investigator, wherein she essentially 9 disavowed believing she was sexually harassed. (See, e.g., ECF No. 81-3 at 28-41; ECF 10 No. 81-10.) Upon interviewing several individuals, the investigator determined that nothing 11 inappropriate occurred in the interaction between Lappin and Plaintiff and the Investigation 12 was closed. (ECF No. 81-9 at 2–3.) 13 In early 2014, two of Plaintiff’s subordinates—Harry Harland and Michael Donlon— 14 filed incident reports complaining about a separate matter involving a detainee who had 15 requested to be transferred out of segregation. (ECF Nos. 81-13, ECF No. 81-14.) Harland 16 reported that Plaintiff had instructed him to tell the detainee that he would not be 17 transferred out of segregation because Harland and Donlon were opposed to it. (ECF No. 18 81-13 at 3.) Plaintiff insists that she only told Harland to tell the detainee “the truth” about 19 why he would not be transferred from segregation because Dickens directed her to do so. 20 (ECF No. 84-1 at 9.) In March 2014, Plaintiff was placed on administrative leave. (Id. at 21 5.) 22 Thereafter, an investigator concluded that there was sufficient evidence supporting 23 a finding that Plaintiff ordered Harland to disclose to the detainee as Harland reported in 24 his incident report. (ECF No. 81-17 at 18.) Among other things, the investigator also 25 concluded that enough evidence supported that the directed disclosure was “based solely 26 on retaliation by [Dickens] and [Plaintiff] for their perception that the officers had 27 undermined their authority in making transfer decisions and in retaliation for their 28 perception that [Harland and Donlon] reported their safety concerns [about the detainee’s 2 supports a conclusion that Plaintiff and Dickens acted in “reckless disregard” for the safety 3 of subordinate officers by exposing then to potential inmate violence. (Id. at 19.) Defendant 4 terminated Plaintiff and Dickens, citing to the detainee-incident as a violation of 5 Defendant’s code of conduct. (ECF No. 81-20 at 2; ECF No. 81-5 at 13–14; ECF No. 88- 6 5.) 7 Plaintiff and Dickens brought this action in August 2015. (See, e.g., ECF No. 45 at 8 1–2 (explaining the allegations); ECF No. 1.) For her part, Plaintiff alleged unlawful 9 retaliation claims under Title VII and for filing a worker’s compensation claim. (ECF No. 33 10 at 9–11, 13–15.) Plaintiff also alleged that Defendant negligently hired, trained, and 11 supervised its employees. (Id. at 18–19.) The Court dismissed all claims. (ECF Nos. 45, 12 46.) Plaintiff and Dickens appealed. (ECF Nos. 47, 52.) The Ninth Circuit affirmed the 13 Court’s ruling in part but reversed the Court’s dismissal of Plaintiff and Dickens’ retaliation 14 claims under Title VII and Dickens’ race discrimination claim. (ECF No. 52 at 2–4.) 15 Dickens’ claims were dismissed with prejudice on April 23, 2019. (ECF No. 80.) Thus, the 16 only claim remaining is Plaintiff’s retaliation claim under Title VII. 17 III. LEGAL STANDARD 18 “The purpose of summary judgment is to avoid unnecessary trials when there is no 19 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 20 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 21 the discovery and disclosure materials on file, and any affidavits “show that there is no 22 genuine issue as to any material fact and that the moving party is entitled to a judgment 23 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 24 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 25 find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 26 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 27 The moving party bears the burden of showing that there are no genuine issues of 28 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the 2 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 3 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 4 produce specific evidence, through affidavits or admissible discovery material, to show 5 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), 6 and “must do more than simply show that there is some metaphysical doubt as to the 7 material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting 8 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 9 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 10 Anderson, 477 U.S. at 252. Moreover, a court views all facts and draws all inferences in 11 the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach & 12 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 13 IV. DISCUSSION3 14 The Court finds that Plaintiff fails to meet her burden of advancing a prima facie 15 case of unlawful retaliation. In particular, Plaintiff fails to establish the first prong of a prima 16 facie case—to show that she engaged in protected activity. Because the Court reaches 17 this conclusion, the Court does not consider whether Plaintiff has satisfied the other 18 prongs. 19 To prevail on a retaliation claim under Title VII, a plaintiff must first establish a prima 20 facie case of retaliation by demonstrating: (1) she engaged in a protected activity; (2) she 21 suffered a materially adverse employment action taken by the employer; and (3) a causal 22 link exists between these two events—the protected activity and adverse employment 23 action. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002); see 24 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (requiring “material 25 /// 26 3In its reply, Defendant raises evidentiary objections to Plaintiff’s Exhibits 21 and 22, which Plaintiff filed in support of her response (see ECF Nos. 84-21, 84-22). (ECF No. 27 88 at 3–4.) Defendant contends that these exhibits are unauthenticated and therefore cannot be considered on summary judgment under Orr v. Bank of America, NT & SA, 285 28 F.3d 764, 773 (9th Cir. 2002). The exhibits are not relevant to the Court’s ruling and thus the Court does not specifically address Defendant’s evidentiary concerns. 2 participation clause of Title VII. See, e.g., Crawford v. Metropolitan Gov’t of Nashville, 555 3 U.S. 271, 274, 276 (2009). An employee acts under the former when she opposes any 4 unlawful employment practice as identified in the statute. Id.; 42 U.S.C. § 2000e-3(a). An 5 employee acts under the latter where “[she] has made a charge, testified, assisted, or 6 participated in any manner in an investigation, proceeding, or hearing under this 7 subchapter.” 42 U.S.C. § 2000e-3 (a) (emphasis added). 8 Only if a plaintiff establishes a prima facie case of unlawful retaliation does the 9 burden shift to the defendant employer “to offer evidence that the challenged action was 10 taken for legitimate, non-discriminatory reasons.” Dawson v. Entek, 630 F.3d 928, 936 11 (9th Cir. 2011) (citation omitted). If the employer does so, “the plaintiff must show that the 12 defendant’s explanation is merely a pretext for impermissible discrimination.” Id. (citation 13 omitted). 14 Here, Plaintiff relies only on the opposition clause in the First Amended Complaint 15 (“FAC”). (E.g., ECF No. 33 at 9; see also ECF No. 84 at 25 (Plaintiff’s arguments directly 16 addressing the first prong arguing only “protected activity in opposition . . .”).)4 Plaintiff 17 argues that she engaged in opposition activity and that the Ninth Circuit’s decision which 18 reversed this Court’s previous finding at the Rule 12(b)(6) stage—that Plaintiff did not 19 engage in protected activity (see ECF Nos. 45, 46, 52)—supports her position at this 20 stage. (E.g., ECF No. 84 at 2, 20–21, 25.) Defendant counters that the Ninth Circuit’s 21 reversal merely supports that Plaintiff’s claim was sufficiently pleaded to survive dismissal 22 /// 23 4At times in her response to the Motion, it nonetheless appears that Plaintiff 24 attempts to bring the participation clause back into discussion. (E.g., ECF No. 84 at 13, 22.) The Court is confined to Plaintiff’s allegations in the FAC which alleges the opposition 25 clause, as noted, and is assured by Plaintiff’s limited argument focused on “opposition.” Even if Plaintiff had also relied on the participation clause, the Ninth Circuit Court of 26 Appeals has limited that clause to participation in an investigation before the Equal Employment Opportunity Commission. See, e.g., Vasconcelos v. Messe, 907 F.2d 111, 27 113 (9th Cir. 1990) (“Accusations made in the context of charges before the Commission are protected by statute; charges made outside of that context are made at the accuser’s 28 peril.”). It is undisputed that Plaintiff has only participated in an internal investigation. Thus, the participation clause is inapplicable. 2 investigator undermine a finding that she engaged in opposition activity. (ECF No. 88 at 3 2–3, 10–11.) The Court agrees with Defendant. 4 To “oppose” ordinarily means “[t]o resist or antagonize . . .; to contend against; to 5 confront; resist; withstand.” Crawford, 555 U.S. at 276 (citations order). “[A]n ostensibly 6 disapproving account of . . . sexually obnoxious behavior” may also constitute opposition 7 activity. Id. And, there is no “reason to doubt that a person can ‘oppose’ by responding to 8 someone else’s question just as surely as by provoking the discussion.” Id. at 277. To be 9 sure, the act that Plaintiff claims to oppose here is a single incident of purported sexual 10 harassment—based on her claim that Lappin “grasped and fondled her hand.” (E.g., ECF 11 No. 84 at 25; see also ECF No. 84-1 at 3; ECF No. 84-8 (photos).) Plaintiff’s claim of 12 protected activity is that she spoke with an investigator about the incident and 13 characterized the incident as “odd” and “uncomfortable.” (E.g., ECF No. 84 at 25; id. at 26 14 (stating that “[Plaintiff] suffered serious adverse job actions after she spoke to the sexual 15 harassment investigator”).) 16 However, the evidence of Plaintiff’s written statement to the investigator is the 17 antithesis of opposition activity. Regarding the hand-grasping incident, Plaintiff stated: 18 It is insane that somebody reported this event as somehow being inappropriate. If I felt it was inappropriate, I would have filed a written report. 19 I understand the reporting process. I have no problem with my interactions with Mr. Lappin. 20 I know how to report concerns at work. I felt absolutely nothing inappropriate 21 had happened with Mr. Lappin. I was not concerned about my interactions with Mr. Lappin at all. I thought it was strange that he reached out for my 22 hand and asked me about my ring. It was surprising but I certainly did not feel that it was inappropriate. Had I felt it was inappropriate, I would have 23 gone to HR immediately or my superior. I understand the chain of command and how to report concerns. I am nothing if not open in my communications 24 with respect to what is reportable and I have no concerns whatsoever regarding my interactions with Mr. Lappin. 25 . . . 26 I do not believe that I have been the victim of any sort of sexual harassment 27 while working at CCA. Again, I understand the reporting process and would have reported any concern if I believe that I had experienced sexual 28 harassment of any sort. 2 I am upset that anyone reported my interaction with Mr. Lappin as a concern or “inappropriate” because I have no concerns regarding that interaction at 3 all. 4 (ECF No. 81-10.) 5 Plaintiff’s words constitute a most unambiguous rebuke of any conclusion that she 6 believed her interaction with Lappin was sexually harassing. Further, Plaintiff testified 7 during her deposition that she prepared the statement herself. (E.g., ECF No. 81-3 at 37.) 8 She does not claim that anyone told her what to say or that she felt coerced to write the 9 statement as is. Plaintiff’s statement is unequivocal in establishing that she did not 10 complain about Lappin’s conduct and therefore did not engage in any opposition activity. 11 To be clear, Plaintiff expressed “[i]t is insane that somebody reported this event.” Id. 12 Considering Plaintiff’s written statement, this Court cannot find that Plaintiff 13 engaged in opposition activity when she gave her “account” of the relevant incident to the 14 investigator. Nor is the Court’s conclusion undermined my Plaintiff’s claim in her 15 supporting affidavit that she informed the investigator that she felt “uncomfortable” and 16 that the incident was “odd” although admitting she did not report “‘sexual harassment per 17 se.” (ECF No. 84-1 at 4; see also id. at 11 (stating she used the same words with Warden 18 Collins).)5 At most, Plaintiff’s statement that the interaction was “uncomfortable” and/or 19 “odd” amounts to tepid words not conveying the kind of “disapproving account,” Crawford, 20 555 U.S. at 276, needed to support a finding of opposition. At worst for Plaintiff, these 21 words are undermined by her own subsequent written statement to the investigator, which 22 excluded the words and otherwise unequivocally denied that Plaintiff felt the incident was 23 “inappropriate” (ECF No. 81-10). (See ECF No. 81-3 at 28, 37 (Plaintiff testifying that she 24 /// 25 5Plaintiff cites to Johnson v. Napolitano, 686 F. Supp. 2d 32, 37 (D.D.C. 2010) as supporting the proposition that an employee need not “actually” engage in protected 26 activity so long as the employer “perceived” the employee as having engaged in protected activity. (ECF No. 84 at 22.) The Court does not apply Johnson here because that decision 27 is not binding on this Court and the Court sees no reason to apply it to the facts of this case. 28 1 || wrote the statement after her in-person interview with the investigator).) Accordingly, even 2 || drawing material inferences in Plaintiff's favor, the Court concludes that the evidence does 3 || not support that Plaintiff engaged in protected opposition activity. For that reason alone, 4 || the Court grants Defendant’s Motion.® V. CONCLUSION 6 The Court notes that the parties made several arguments and cited to several cases 7 || not discussed above. The Court has reviewed these arguments and cases and determines 8 || that they do not warrant discussion as they do not affect the outcome of the issues before Q || the Court. 10 It is therefore ordered that Defendant’s motion for summary judgment (ECF No. 81) 11 || is granted because Plaintiff fails to demonstrate that she engaged in protected activity, as 12 || required under Title VII. 13 The Clerk of the Court is directed to enter judgment accordingly and close this case. 14 DATED THIS 25' day of November 2019.
16 MIRANDA M. DU 17 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 a7 ®The Court makes no finding as to whether Plaintiff in fact suffered retaliation in 28 || some form. The Court solely concludes that Plaintiff has not shown that she is entitled to Title VII’s protection.