Boone v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: June 24, 2024
• Docket: 2:21-cv-01708
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Nellie Boone, No. CV-21-01708-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 City of Phoenix, et al.,

13 Defendants. 14 15 At issue are Defendant City of Phoenix’s Motion for Summary Judgment (Doc. 39, 16 MSJ), to which Plaintiff Nellie Boone aka Nellie Anderson filed a Response (Doc. 45, 17 Resp.) and Defendant filed a Reply (Doc. 50, Reply); and Defendant’s Objections and 18 Motion to Strike Plaintiff’s Statement of Facts and Exhibits Filed in Support of Plaintiff’s 19 Response to Defendant’s Motion for Summary Judgment (Doc. 49, Mot.), to which 20 Plaintiff did not respond. The Court finds these matters appropriate for resolution without 21 oral argument. LRCiv 7.2(f). 22 I. DEFENDANT’S OBJECTIONS AND MOTION TO STRIKE 23 As a threshold matter, the Court resolves Defendant’s objections to the purported 24 evidence Plaintiff submitted in opposition to Defendant’s summary judgment motion. 25 There are numerous problems with Plaintiff’s Response to Defendant’s Statement of Facts 26 (Doc. 46). To begin with, Plaintiff’s responsive Statement of Facts is 14 pages in length. 27 In the Scheduling Order, the Court stated: “Any party filing a motion for summary 28 judgment . . . or response thereto, shall not file a statement of facts or controverting 1 statement of facts exceeding 10 pages in length.” (Doc. 16 at 5.) Plaintiff neither complied 2 with this requirement nor requested leave to exceed it.1 Additionally, Plaintiff refers to 3 Exhibits by letter in her responsive Statement of Facts—for example, Plaintiff’s Statement 4 of Facts number 9 refers to Exhibit B (Doc. 46, Pl.’s Statement of Facts (PSOF) at 12 5 ¶ 9)—but none of the exhibits Plaintiff submitted are labeled. 6 Second, as Defendant points out, the first attachment to Plaintiff’s Statement of 7 Facts is titled “Declaration of Plaintiff Nellie Boone,” but it is not a sworn declaration, that 8 is, it contains no language that Plaintiff declares or affirms that the statements made in it 9 are true and it is not even signed by Plaintiff. (Mot. at 1–4.) Federal Rule of Civil Procedure 10 56(c)(4) states that “[a]n affidavit or declaration used to . . . oppose a motion [for summary 11 judgment] must be made on personal knowledge, set out facts that would be admissible in 12 evidence, and show that the affiant or declarant is competent to testify on the matters 13 stated.” (Emphasis added.) Federal Rule of Evidence 603 provides that any testifying 14 witness “must give an oath or affirmation to testify truthfully.” See also 28 U.S.C. § 1746 15 (providing requirements for making a declaration under penalty of perjury). Thus, “[t]o be 16 admissible, the testimony must be sworn.” Shuffle Master, Inc. v. MP Games LLC, 553 F. 17 Supp. 2d 1202, 1210 (D. Nev. 2008). “It clearly follows, and is well established, that an 18 unsworn [declaration] is inadmissible.” Id.; see also Young v. Allstate Co., 662 F. Supp. 3d 19 1066, 1073 (C.D. Cal. 2023) (disregarding unsworn declarations and stating “the penalty 20 of perjury requirement for declarations is more than a mere formality—it goes to the very 21 ability of the Court to consider testimony by declarants who do not stand in person before 22 the Court”); Epis, Inc. v. Fidelity & Guaranty Life Ins. Co., 156 F. Supp. 2d 1116, 1124 23 (N.D. Cal. 2001) (striking declarations in part because they are unsworn). 24

25 1 This is not the first time Plaintiff has failed to follow the applicable Rules and associated Court Orders in this case. In April 2023, the Court entered a monetary sanction 26 against Plaintiff for providing inadequate discovery responses to Defendant and for failing to follow the Court’s Scheduling Order. (Doc. 31.) Prior to that, the Court denied Plaintiff’s 27 first Motion to File First Amended Complaint because it did not even attempt to show that the proposed amendment was justified under Federal Rule of Civil Procedure 15(a)(2) and 28 did not comply with Local Rule 15.1(a). (Doc. 18.) 1 Plaintiff presents the “Declaration” in inadmissible form. In an instance such as this, 2 Federal Rule of Civil Procedure 56(e) provides: 3 If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court 4 may (1) give an opportunity to properly support or address the fact; (2) 5 consider the fact undisputed for purposes of the motion [for summary judgment]; (3) grant summary judgment if the motion and supporting 6 materials—including the facts considered undisputed—show that the movant 7 is entitled to it; or (4) issue any other appropriate order. 8 Here, Plaintiff had the opportunity to correct the defects in the “Declaration,” because 9 Defendant filed a motion to strike it, and Plaintiff could have responded but did not. Indeed, 10 Local Rule 7.2(i) provides that if a party “does not serve and file the required answering 11 memoranda . . . such non-compliance may be deemed a consent to the denial or granting 12 of the motion and the Court may dispose of the motion summarily.” Because it is 13 inadmissible and unreliable and Plaintiff made no effort to correct it, the Court will not 14 consider the “Declaration” as evidence in resolving Defendant’s summary judgment 15 motion and will consider Defendant’s evidence undisputed where Plaintiff controverted it 16 only with inadmissible evidence. 17 To the extent the “Declaration” reads as a continuation of Plaintiff’s responsive 18 Statement of Facts, the Court will not consider it in that context either. As stated supra, 19 Plaintiff exceeded the page limit in her Statement of Facts by four pages—a violation that 20 would already provide a basis for the Court to ignore the Statement of Facts in its entirety— 21 and the Court will not consider the additional four pages of the “Declaration” as an 22 additional Statement of Facts, nor did Plaintiff so request. In sum, the Court will disregard 23 the “Declaration” in its entirety. 24 Defendant next requests that the Court strike “Exhibit B” (Mot. at 4–5), which 25 appears from the Statement of Facts to be an “investigation of call out” (PSOF at 12 ¶ 9), 26 although as mentioned supra, Plaintiff failed to label any of the Exhibits. Similar to 27 Plaintiff’s “Declaration,” Defendant’s basis for moving to strike this exhibit is that it 28 contains unsworn testimony that lacks any foundation or reliability. The Court agrees. 1 Again, Plaintiff had the opportunity to cure the defects in this purported evidence by 2 responding to Defendant’s present motion, but Plaintiff failed to respond. Accordingly, the 3 Court will also disregard “Exhibit B.” 4 For these reasons, the Court will sustain Defendant’s objections and grant 5 Defendant’s Motion to Strike. As Defendant points out, in addition to disregarding the 6 “Declaration” and “Exhibit B,” the Court must also disregard Plaintiff’s Statements of Fact 7 that rely on those exhibits, namely, paragraphs 1 through 29 (with the exception of 8 references to other exhibits), and must disregard Plaintiff’s responses to Defendant’s 9 Statement of Facts, paragraphs 12, 15, 16, 35, 39, 45, 52, 53, 61–63, 65, 66, 70, and 71. 10 II. MOTION FOR SUMMARY JUDGMENT 11 A. Background 12 Plaintiff, a “Black female over the age of 40,” has been employed as a dispatcher 13 by Defendant since 2006. (Doc. 24, Second Am. Compl. (SAC) ¶ 2.) In her EEOC charge 14 and in the SAC, she alleges that Defendant discriminated against her when, between May 15 and June 2020, Defendant denied her a promotion based on her age and race.2 (Doc. 5-1; 16 SAC ¶¶ 35–41.) She also alleges that, after returning to work from leave under the Family 17 Medical Leave Act (FMLA), she “suffered adverse employment actions” and retaliation. 18 (SAC ¶¶ 98–99.) 19 Plaintiff raises three counts against Defendant, under: (1) the Age Discrimination in 20 Employment Act, 29 U.S.C. § 621 et seq. (ADEA); (2) Title VII of the Civil Rights Act of 21 1964, and (3) the FMLA, 29 U.S.C. § 2601 et seq. (SAC ¶ 5.) Defendant now moves for 22 summary judgment. 23 B. Legal Standard 24 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 25 when the movant shows that there is no genuine dispute as to any material fact and the 26 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 27 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the

28 2 In its previous Orders, the Court limited the basis of Plaintiff’s age and race discrimination claims to that identified in her EEOC charge. (Docs. 11, 23.) 1 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 2 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 3 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 4 242, 248 (1986)). The court must view the evidence in the light most favorable to the 5 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 6 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 7 The moving party “bears the initial responsibility of informing the district court of 8 the basis for its motion, and identifying those portions of [the record] . . . which it believes 9 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232. 10 When the moving party does not bear the ultimate burden of proof, it “must either produce 11 evidence negating an essential element of the nonmoving party’s claim or defense or show 12 that the nonmoving party does not have enough evidence of an essential element to carry 13 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 14 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden of 15 production, the nonmoving party must produce evidence to support its claim or defense. 16 Id. at 1103. Summary judgment is appropriate against a party that “fails to make a showing 17 sufficient to establish the existence of an element essential to that party’s case, and on 18 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 19 In considering a motion for summary judgment, the court must regard as true the 20 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 21 material. Anderson, 477 U.S. at 255. However, the non-moving party may not merely rest 22 on its pleadings; it must produce some significant probative evidence tending to contradict 23 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 24 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 25 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 26 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 27 conclusory allegations unsupported by factual data.” (citation omitted)). 28 1 C. Analysis 2 1. ADEA and Title VII Claims 3 Plaintiff’s age and race discrimination claims are based on her allegations that, in 4 early 2020, Defendant posted an opening for Police Communications Supervisor, that 5 Plaintiff “was more than qualified for this position” and “submitted all required 6 documents,” but that a supervisor named Court Hood informed her that he did not receive 7 the required documents and Plaintiff was thus disqualified from consideration for the 8 promotion. (SAC ¶¶ 35–41.) Plaintiff contends that Defendant’s decision not to promote 9 her was an act of discrimination based on her age and race. 10 A plaintiff may present either direct or circumstantial evidence to prove an 11 employment discrimination claim. Direct evidence is “evidence which, if believed, proves 12 the fact [of discriminatory animus] without inference or presumption.” Vasquez v. Cnty. of 13 L.A., 349 F.3d 634, 640 (9th Cir. 2006). If the plaintiff fails to produce direct evidence, the 14 Court may evaluate circumstantial evidence using the burden-shifting framework that the 15 Supreme Court established in McDonnell Douglas Corp. v. Green. 433 U.S. 792, 802–805 16 (1973). Under that framework, first the plaintiff must establish a prima facie claim of 17 unlawful discrimination by showing that (1) she belongs to a protected class, (2) she was 18 qualified for the position she held or sought, (3) she was subjected to an adverse 19 employment action, and (4) similarly situated individuals outside her protected class were 20 treated more favorably. Id. at 802. The burden then shifts to the defendant “to articulate 21 some legitimate, nondiscriminatory reason” for the adverse employment action. Id. Finally, 22 the burden shifts back to the plaintiff to show that the defendant’s proffered reason was 23 pretext. Id. at 804. 24 Beginning with the age discrimination claim, the ADEA makes it unlawful for an 25 employer “to discharge any individual or otherwise discriminate against any individual 26 with respect to his compensation, terms, conditions, or privileges of employment, because 27 of such individual’s age.” 29 U.S.C. § 623(a)(1). This protection applies to individuals who 28 are at least 40 years old. Id. § 631(a). To establish a prima facie claim of age discrimination 1 based on a failure to promote, Plaintiff must produce sufficient facts to show (1) she was 2 at least 40 years old; (2) she was qualified for a position for which she submitted an 3 application; (3) she was denied the position; and (4) the employer filled the position with 4 a substantially younger person. Shelley v. Green, 666 F.3d 599, 608 (9th Cir. 2012); 5 Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). 6 Although the evidence necessary at summary judgment to establish a prima facie 7 discrimination claim is “minimal,” Dominguez-Curry, 424 F.3d at 1037, Plaintiff does not 8 meet that standard. To begin with, Plaintiff does not produce evidence that she properly 9 submitted an application for the job she sought. Defendant proffers evidence that the 10 Department’s Transfer Opportunities Bulletin expressly stated that “[i]nterested applicants 11 must submit a Transfer Request, a resume, and copies of their last two [performance 12 evaluations] to Mr. Court Hood no later than 5 p.m., Sunday, May 31, 2020” as well as 13 apply through Defendant’s hiring portal, eChris. (Doc. 40, Def.’s Statement of Facts 14 (DSOF) ¶ 38, Ex. B ¶¶ 11, 12.) Plaintiff applied for the position via eChris but admits she 15 did not submit the required materials to Mr. Hood. (DSOF ¶¶ 40–42.) 16 Plaintiff now argues Mr. Hood could have accepted an incomplete application 17 (Resp. at 2), but she fails to demonstrate with any evidence whatsoever that Mr. Hood had 18 the discretion to accept an incomplete application, that he accepted incomplete applications 19 from other applicants, or that Defendant used some sort of “tap on the shoulder” process 20 in promoting employees, see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 371 (2011) 21 (Ginsburg, J., concurring in part and dissenting in part). In short, Plaintiff has produced no 22 evidence to controvert Defendant’s evidence that she did not properly submit an 23 application for the job she sought. 24 Even if Plaintiff offered evidence that she properly applied for the job, she has 25 produced no admissible evidence that Defendant filled the position with someone 26 substantially younger than her, as required in a failure-to-promote claim under the ADEA.3

27 3 Plaintiff’s Statement of Facts states, “Among the applicants for the ‘promotion’, all those chosen were younger than Plaintiff.” (PSOF at 14 ¶ 24.) In an attempt to provide 28 evidentiary support, that statement refers to the unsigned, unsworn “Declaration,” which simply repeats the same thing without evidentiary support. As the Court stated supra, the 1 Because Plaintiff has not established a prima facie age discrimination claim, Defendant is 2 entitled to summary judgment on that claim. 3 As for Plaintiff’s race discrimination claim, Title VII makes it unlawful for an 4 employer “to fail or refuse to hire or to discharge any individual, or otherwise to 5 discriminate against any individual with respect to [her] compensation, terms, conditions, 6 or privileges of employment, because of such individual’s . . . race[.]” 42 § U.S.C. 2000e- 7 2(a)(1). “[A]n unlawful employment practice is established when the complaining party 8 demonstrates that . . . race . . . was a motivating factor for any employment practice, even 9 though other factors also motivated the practice.” 42 § U.S.C. 2000e-2(m) 10 For the reasons discussed with respect to Plaintiff’s age discrimination claim, the 11 race discrimination claim also fails. Plaintiff cannot show Defendant took an adverse 12 employment action by not promoting her to a position she has no evidence she properly 13 applied for and no evidence that others who did not properly apply were hired for. 14 Likewise, Plaintiff has produced no admissible evidence that Defendant filled the position 15 with someone outside her protected class because she has produced no evidence regarding 16 who Defendant hired. Because Plaintiff has not established a prima facie claim of race 17 discrimination under Title VII, Defendant is entitled to summary judgment on that claim. 18 2. FMLA claim 19 Plaintiff’s last claim is based on her allegations that Defendant discriminated and 20 retaliated against her for taking FMLA leave. The FMLA provides that it is “unlawful for 21 any employer to discharge or in any other manner discriminate against any individual for 22 opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2); see also 23 Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) (distinguishing 24 between FMLA discrimination and retaliation claims on one hand and FMLA interference 25 claims on the other). The McDonnell Douglas burden-shifting framework can also be 26 applied to claims of FMLA discrimination. See Newell v. Ariz. Bd. of Regents, 2020 WL 27 Court must disregard the inadmissible “Declaration,” and no actual evidence in the record 28 supports the conclusion that Defendant filled the position Plaintiff applied for with someone substantially younger. 1 1694735, at *9 (D. Ariz. Apr. 7, 2020). As with her age and race discrimination claims, 2 Plaintiff fails to point to admissible evidence sufficient to establish a prima facie case of 3 FMLA discrimination or retaliation. 4 While Plaintiff argues Defendant discriminated against her for using FMLA leave, 5 the only adverse employment action she identifies with any specificity is the alleged failure 6 to promote her in early 2020. As discussed supra, Plaintiff’s claim that Defendant failed to 7 promote her, this time on account of her use of FMLA leave, fails for a lack of any 8 admissible evidence that Plaintiff properly applied for the promotion or that the person 9 Defendant hired was outside Plaintiff’s protected class. In her Response, Plaintiff states 10 that “her use of FMLA [leave] . . . resulted in various adverse employment actions” (Resp. 11 at 4–5), but she fails to identify any others, let alone point to admissible evidence to 12 substantiate them.4 13 Plaintiff also argues that Defendant retaliated against her for reporting that, for a 14 brief time, employees had access to a “call out list,” which showed what employees called 15 out from work and for what reason (including FMLA), and the alleged publication of which 16 Plaintiff alleges violated employees’ privacy rights. (Resp. at 2.) The call out list was 17 created for supervisors’ eyes only, but Plaintiff claims she discovered she could access it 18 on August 23, 2019, and she verbally reported the apparent breach to a department 19 commander. Information Technology (IT) employees resolved the issue within hours. Even 20 if the short-lived employee access to information including employees’ use of FMLA leave 21 constituted an unlawful practice on the part of Defendant—which Plaintiff does not 22 demonstrate—she does not proffer any evidence whatsoever that she suffered an adverse 23 employment action on the part of Defendant in retaliation for reporting that employees 24 could access the call out list. For the final time, she has failed to proffer admissible evidence 25 4 In the SAC, Plaintiff also broadly contends that Defendant discouraged employees 26 from using FMLA leave and told employees returning from FMLA leave to “disregard their doctors’ orders and remain at work.” (SAC ¶ 99.) But Plaintiff does not raise an 27 FMLA interference claim; she only claims discrimination and retaliation. Moreover, she offers no evidence that Defendant denied her FMLA leave, discouraged her from using 28 FMLA leave, or told her that she should disregard her doctors’ orders and remain at work. (See DSOF ¶¶ 3–10.) 1 || that Defendant denied her a promotion she properly applied for in 2020 or who Defendant 2|| hired instead. 3 For these reasons, Defendant is entitled to summary judgment on Plaintiff's claim of FMLA discrimination and retaliation. Because Plaintiff failed to provide evidence 5 || establishing a prima facie claim of discrimination under any of her alleged theories, the 6 || Court declines to consider Defendant’s numerous other arguments in support of its motion for summary judgment. 8 IT IS THEREFORE ORDERED sustaining Defendant’s Objections and granting 9|| Defendant’s Motion to Strike Plaintiff's Statement of Facts and Exhibits Filed in Support of Plaintiff's Response to Defendant’s Motion for Summary Judgment (Doc. 49). 11 IT IS FURTHER ORDERED granting Defendant’s Motion for Summary 12 || Judgment (Doc. 39). 13 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in 14]| favor of Defendant City of Phoenix and close this case. 15 Dated this 21st day of June, 2024. CN 16 “wok: 17 wef hlee— Unifga StatesDistrict Judge 18 19 20 21 22 23 24 25 26 27 28

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