1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paulina Buhagiar, No. CV-19-05761-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Wells Fargo Bank NA,
13 Defendant. 14 15 At issue is Defendant Wells Fargo Bank NA’s (“Wells Fargo”) Motion for 16 Summary Judgment (Doc. 51, Mot.), to which Plaintiff Paulina Buhagiar (“Ms. Buhagiar”) 17 filed a Response1 (Doc. 53, Resp.), and Defendant filed a Reply (Doc. 56, Reply). The 18 Court has reviewed the parties’ briefs and finds this matter appropriate for decision without 19 oral argument. See LRCiv 7.2(f). For the reasons set forth below, the Court grants 20 Defendant’s Motion. 21 I. BACKGROUND 22 Plaintiff, who is Filipino, began working for Defendant in Tempe, Arizona, on 23 May 1, 2017 as an Operations Processor 2 for Defendant’s Repossession Administration 24 1 Plaintiff’s Response is 22 pages in length, in violation of the Court’s Rule that “[u]nless 25 otherwise permitted by the Court … the response [to a motion] including its supporting memorandum, may not exceed seventeen (17) pages, exclusive of attachments and any 26 required statement of facts.” LRCiv 7.2(e)(1). Plaintiff did not obtain leave of Court to exceed the page limit. Non-compliance with the Rule “may be deemed a consent to the 27 denial or granting of [a] motion and the Court may dispose of the motion summarily.” LRCiv 7.2(i). The Court will not grant Defendant’s Motion on this basis, but the Court will 28 disregard pages 18 through 22 of Plaintiff’s Response. 1 team. (Defendant’s Separate Statement of Facts2 (“SOF”) ¶ 1, 31.) Less than a year later, 2 Plaintiff requested to transfer to Salt Lake City, Utah. (SOF ¶ 2.) Plaintiff’s transfer request 3 was approved, and on September 13, 2018 she began working as an Account Resolution 4 Specialist 2 for the Education Financial Services department at Defendant’s Salt Lake City 5 location. (SOF ¶ 2). Less than two months later, Plaintiff requested to transfer back to 6 Arizona, which Defendant approved. (SOF ¶ 3-5.) On November 5, 2018, Plaintiff began 7 working as an Operations Processor 3 in the Auto Loss Recovery Operations department 8 at Defendant’s Chandler, Arizona branch, where she reported to Annette Badon 9 (“Ms. Badon”). (SOF ¶ 6-7.) 10 In her role as an Operations Processor 3, Plaintiff was tasked with entering 11 transactions into a record system, balancing general ledger accounts, resolving complex 12 customer issues, and processing returned mail.3 (SOF ¶¶ 10, 21-22.) Defendant contends 13 that Plaintiff exhibited performance issues in this role. (SOF ¶¶ 12-24; Resp. at 2-3.) In 14
15 2 Plaintiff did not file a Controverting Statement of Facts as required by Local Rule of Civil Procedure 56.1(b). The Rule sets the following parameters: 16 (1) for each paragraph of the moving party’s separate statement of facts, a 17 correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific 18 admissible portion of the record supporting the party’s position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material 19 fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a separately numbered paragraph and must 20 refer to a specific admissible portion of the record where the fact finds support. 21 LRCiv 56.1(b). While Plaintiff failed to comply with this Rule, she nonetheless directed the Court to the facts she disputes in her Response. Thus, in its discretion, the Court will 22 not order Plaintiff to submit a Controverting Statement of Facts. See LRCiv 56.1(g). But the Court notes that Plaintiff’s counsel took an oath upon admission to practice in this Court 23 to uphold and follow all applicable rules, including the Local Rules, and he did not do so here. 24 3 Plaintiff takes inconsistent positions as to whether processing returned mail was one of 25 her job functions. On the second page of Plaintiff’s Response, she acknowledges that her job duties included “processing returned mail.” (Resp. at 2.) However, on the fourth page, 26 she writes that she was sent “to the mail room to process mail, which was not a function of her role.” (Resp. at 4.) Plaintiff admitted during her deposition that she was never moved 27 to a mail room, so it is unclear whether she is taking the position that processing mail in a mail room was not part of her role, or whether processing mail in general was not part of 28 her role. (See SOF Ex. 11, Deposition of Paulina Buhagiar (“Buhagiar Dep.”) 176:17-25.) Regardless, the Court can resolve the issues at hand without clarification from Plaintiff. 1 part, Defendant attributes Plaintiff’s performance issues to the fact that she was working 2 too quickly, and also that she was not taking notes during trainings. (SOF ¶¶ 15-17.) As a 3 result, Defendant claims that Ms. Badon confronted Plaintiff about the quality of her work 4 and told her to slow down. (SOF ¶¶ 18-19.) Plaintiff, on the other hand, denies that she was 5 making errors or otherwise disrupting her department, and denies that she was confronted 6 by Ms. Badon. (Resp. at 2.) 7 On January 9, 2019, following a January 84 meeting with Ms. Badon and her other 8 team members, Plaintiff met with Randy Richardson (“Mr. Richardson”), her second level 9 manager, to discuss her feelings of being “harassed, singled out, and chastised.” (SOF ¶¶ 25- 10 26; Resp. at 3.) Plaintiff alleges that after her complaint to Mr. Richardson, she was assigned 11 to process mail. (Resp. at 3, Pl.’s Ex. 2 at 1.) That same day Plaintiff also filed an “eForm” 12 requesting a consultation with Human Resources regarding “a concern with another team 13 member or manager.” (SOF ¶ 27.) On January 11, 2019, Plaintiff spoke with Wells Fargo 14 HR Specialist James Bufford (“Mr. Bufford”), and alleged a harassing work environment, 15 that her peers were upset because she was a fast worker, that her peers gossiped at work and 16 ignored her, and that she had been demoted to mail duty by Ms. Badon, which she believed 17 was in retaliation for her complaint to Mr. Richardson. (SOF ¶ 28; Resp. at 4.) Defendant 18 investigated Plaintiff’s concerns, concluded her allegations were unsubstantiated, and closed 19 the investigation. (SOF ¶¶ 29-30, 32-33; Resp. at 4.) 20 On January 28, 2019, Plaintiff informed Ms. Badon that she was experiencing chest 21 pain and having a hard time breathing. (SOF ¶ 34.) Ms. Badon called 9-1-1, and paramedics 22 arrived and took Plaintiff to the Emergency Room. (SOF ¶ 34; Resp. at 4.) Plaintiff was 23 treated for cardiac arrythmias and was prescribed medications. (Resp. at 5.) Plaintiff texted 24 Ms. Badon a photograph of a Return to Work Release from the hospital, which identified 25 her medical condition and stated that she could return to work once she was cleared by a 26 4 The precise dates are unclear from the record. In her Response, Plaintiff alleges the team 27 meeting took place on January 9, 2019, and she requested a meeting with Mr. Richardson following that meeting. (Resp. at 3.) However, when Plaintiff was deposed, she stated that 28 she submitted her complaint to Mr. Richardson on January 8, right after the team meeting on that day. (Buhagiar Dep. 127:20-128:16.) 1 primary care doctor or cardiologist. (SOF ¶ 35; Resp. at 5.) Ms. Badon replied, “Ok no 2 problem just get better.” (SOF ¶ 35.) With her cardiologist’s approval, Plaintiff returned to 3 work on January 31, 2019. (SOF ¶ 36.) Plaintiff claims that she “immediately sought 4 accommodation based on her medical condition,” but was unaware of the process. (Resp. 5 at 5.) When she asked Ms. Badon how to go about seeking accommodation, she claims that 6 she was advised to “call the sick line every day she needed accommodation.” (Resp. at 5.) 7 Defendant contends that on January 8, 2019, before her hospital visit, Plaintiff had 8 requested a personal leave of absence from late March through early April to go to the 9 Philippines and resolve some personal issues, which Ms. Badon approved. (SOF ¶¶ 40-41.) 10 Subsequently, Plaintiff requested multiple changes to the start date of her leave, all of 11 which Ms. Badon approved. (SOF ¶¶ 41, 45-48, 50-52, 55-56.) Ultimately, Ms. Badon 12 approved a six-month leave of absence for Plaintiff. (SOF ¶ 51.) Plaintiff disputes 13 Defendant’s account and claims that Plaintiff requested a Family and Medical Leave Act 14 (“FMLA”) leave of absence to commence January 28, 2019, the same day she was taken 15 to the Emergency Room. (Resp. at 5.) Plaintiff alleges that she received an FMLA leave of 16 absence for six months, set to terminate on August 6, 2019. (Resp. at 6.) Plaintiff also 17 completed intake with the EEOC on January 29, 2019, alleging discrimination by 18 Defendant. (Resp. at 5.) On February 21, 2019, Plaintiff filed a Charge of Discrimination 19 with the EEOC. (Resp. at 6, Pl.’s Ex. 3.) 20 On February 1, 2019, Ms. Badon transferred out of Plaintiff’s department and Jami 21 Butler (“Ms. Butler”) was assigned as Plaintiff’s new supervisor. (SOF ¶¶ 9, 54.) On 22 February 4, 2019, Defendant claims that Plaintiff informed Ms. Butler that she was going 23 on her leave of absence starting February 8, 2019. (SOF ¶ 55.) After February 4, 2019, 24 Plaintiff did not return to work. (SOF ¶ 56.) 25 In March 2019, Plaintiff moved in with her daughter in Utah, where she worked for 26 two other companies. (SOF ¶¶ 71-75.) Plaintiff contends that she sought employment 27 elsewhere because her leave was unpaid, and she needed income to survive. (Resp. at 6.) 28 1 When Plaintiff’s leave of absence concluded on August 6, 2019, she did not return 2 to work. (SOF ¶ 61.) Beginning on August 15, 2019, Ms. Butler called Plaintiff multiple 3 times to inquire whether she intended to return to work, and Defendant’s leave 4 administrator sent Plaintiff a letter informing her that her time away from work beyond 5 August 6, 2019, was unapproved leave. (SOF ¶¶ 62-64.) Plaintiff explains that she 6 mistakenly understood her FMLA letter to confirm that she was on leave through 7 January 27, 2020. (Resp. at 6.) She was also waiting for a response from the EEOC before 8 returning to work. (Resp. at 6.) On October 10, 2019, Defendant sent Plaintiff a letter 9 explaining that as of that date, it had not received any information regarding her plans to 10 return to work, resulting in the termination of her employment effective October 17, 2019. 11 (SOF ¶ 66.) 12 The EEOC issued a Notice of Right to Sue on September 24, 2019. (Doc. 20, 13 Plaintiff’s Second Amended Complaint (“Compl.”) ¶ 7.) On December 7, 2019, Plaintiff 14 initiated the present action, alleging claims under Title VII, 42 U.S.C. § 1981, the 15 Americans with Disabilities Act (“ADA”), the FMLA, and also intentional infliction of 16 emotional distress. (Compl.) On August 4, 2020, Plaintiff’s counsel stipulated to dismissal 17 of the FMLA claims. (Doc. 29.) Defendants now move for summary judgment on all of 18 Plaintiff’s remaining claims. 19 II. LEGAL STANDARD 20 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 21 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 22 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 23 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 24 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 25 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 26 of the suit under governing [substantive] law will properly preclude the entry of summary 27 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 28 1 of material fact arises only “if the evidence is such that a reasonable jury could return a 2 verdict for the nonmoving party.” Id. 3 In considering a motion for summary judgment, the court must regard as true the 4 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 5 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party 6 may not merely rest on its pleadings; it must produce some significant probative evidence 7 tending to contradict the moving party’s allegations, thereby creating a material question 8 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 9 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 10 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 11 “A summary judgment motion cannot be defeated by relying solely on conclusory 12 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 13 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 14 sufficient to establish the existence of an element essential to that party’s case, and on 15 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 16 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 17 III. ANALYSIS 18 The parties have stipulated to dismiss Plaintiff’s FMLA claims, so six causes of 19 action alleged in Plaintiff’s Second Amended Complaint remain: (1) national origin/race 20 discrimination in violation of Title VII; (2) retaliation in violation of Title VII; (3) violation 21 of 42 U.S.C. § 19815; (4) disability discrimination in violation of the ADA; (5) retaliation
22 5 Plaintiff alleges that Defendant denied her “the protections against race discrimination and retaliation provided by Section 1981,” indicating that she brings both retaliation and 23 discrimination claims under the statute. (Compl. ¶ 44.) However, in her Response, Plaintiff also suggests that she is bringing a harassment claim under 42 U.S.C. § 1981. (Resp. at 13- 24 14.) Plaintiff may not raise a new claim for the first time in her Response, so the Court addresses it only here. Even if Plaintiff had appropriately pled a harassment claim on the 25 face of her Complaint, it would fail. To state a 42 U.S.C. § 1981 claim of harassment based on a hostile work environment, Plaintiff must raise a triable issue of fact as to whether 26 (1) Defendant subjected her to verbal or physical conduct based on her race; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the 27 conditions of her employment and create an abusive working environment. v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). Even if Plaintiff can meet the first and 28 second factors, as a matter of law Plaintiff cannot show that the harassment was severe or pervasive enough to alter the conditions of her employment. See, e.g., Kortan v. Cal. Youth 1 in violation of the ADA; and (6) intentional infliction of emotional distress (“IIED”). (See 2 generally Compl.) Plaintiff also seeks punitive damages. 3 A. Plaintiff’s Discrimination Claims 4 Title VII prohibits employers from discriminating against an individual based on 5 race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). Similarly, § 1981 6 prohibits discrimination in the “benefits, privileges, terms, and conditions of employment.” 7 42 U.S.C. § 1981(b). The standards for analyzing § 1981 claims are the same as those 8 applicable in Title VII disparate treatment cases. Surrell v. Cal. Water Serv. Co., 518 F.3d 9 1097, 1103 (9th Cir. 2008). However, Title VII requires that the Plaintiff exhaust 10 administrative remedies, such as filing a claim with the EEOC, before bringing a private 11 action for damages, while § 1981 does not have the same requirement. Id. 12 Because Plaintiff asserts, and Defendants do not dispute, that she filed a charge with 13 the EEOC on February 21, 2019, and the EEOC provided Plaintiff with a Notice of Right 14 to Sue on September 24, 2019, the Court finds that Plaintiff meets the requirements of Title 15 VII exhaustion. (See Compl. ¶ 7.) Accordingly, the Court moves forward to discuss the 16 merits of Plaintiff’s claims. 17 Plaintiff brings discrimination claims under both Title VII and 42 U.S.C. § 1981. 18 The standards for a prima facie discrimination claim are the same under § 1981 and Title 19 VII. Surrell, 518 F.3d at 1105 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 20 802 (1973)). 21 Under Title VII, an employer may not “discriminate against an individual with 22 respect to [her] . . . terms, conditions, or privileges of employment” because of her race, 23 color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). “This provision makes 24 ‘disparate treatment’ based on [race, color, religion, sex, or national origin] a violation of 25 federal law.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061–62 (9th Cir. 2002). 26 27 Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (no hostile work environment where on several 28 occasions the supervisor referred to females as “castrating bitches,” “Madonnas,” or “Regina” in front of the plaintiff, and directly referred to the plaintiff as “Medea”). 1 A plaintiff may present either direct or circumstantial evidence to prove her 2 employment discrimination case. Direct evidence is “evidence which, if believed, proves 3 the fact [of discriminatory animus] without inference or presumption.” Vasquez v. Cnty. of 4 L.A., 349 F.3d 634, 640 (9th Cir. 2006). If the plaintiff fails to produce direct evidence, the 5 Court may evaluate circumstantial evidence using the burden-shifting framework that the 6 Supreme Court established in McDonnell Douglas Corp. v. Green. 433 U.S. 792, 802–805 7 (1973). Under that framework, first, the plaintiff must establish a prima facie case of 8 unlawful discrimination by showing that (1) she belongs to a protected class; (2) she was 9 performing her job satisfactorily (or was qualified for a position for which she applied); (3) 10 she was subjected to an adverse employment action; and (4) similarly situated [individuals 11 outside her protected class] were treated more favorably.” Cozzi v. Cnty. of Marin, 787 F. 12 Supp. 2d 1047, 1057 (N.D. Cal. 2011) (citing Chuang v. Univ. of Cal. Davis, Bd. of 13 Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000); Coleman v. Quaker Oats Co., 232 F.3d 14 1271, 1281 (9th Cir. 2000)). The degree of proof necessary to establish a prima facie case 15 for a Title VII claim on summary judgment “is minimal and does not even need to rise to 16 the level of a preponderance of the evidence.” Id. (internal citations and quotations 17 omitted). 18 “If the plaintiff establishes a prima facie case, the burden of production—but not 19 persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory 20 reason for the challenged action . . . . If the employer does so, the plaintiff must show that 21 the articulated reason is pretextual ‘either directly by persuading the court that a 22 discriminatory reason more likely motivated the employer or indirectly by showing that 23 the employer’s proffered explanation is unworthy of credence.’” Villiarimo, 281 F.3d at 24 1062 (internal citations and quotations omitted). A plaintiff may rely on circumstantial 25 evidence to demonstrate pretext, but such evidence must be both specific and substantial. 26 Id. 27 28 1 1. Plaintiff Cannot Establish a Prima Facie Case of Title VII or 42 U.S.C. § 1981 Race or National Origin Discrimination 2 Under the McDonnell Douglas framework, “[t]he requisite degree of proof 3 necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal 4 and does not even need to rise to the level of a preponderance of the evidence.” Chuang, 5 225 F.3d at 1124 (citation omitted). The parties do not dispute that Plaintiff was part of a 6 protected class based on her race and sex, or that she was subject to an adverse employment 7 action when she was terminated. Defendant instead argues that Plaintiff cannot show that 8 she was meeting its legitimate expectations. (Mot. at 6; Reply at 2.) 9 Defendant alleges that Plaintiff failed to meet its legitimate expectations when she 10 refused to return to work after “an exceedingly generous 6 month leave of absence,” and 11 therefore cannot establish a prima facie case. (Mot. at 6; SOF ¶¶ 62-64.) Defendant notes 12 that it did not hear from Plaintiff at all after her departure, and Plaintiff was “even reminded 13 that her leave had expired.” (Mot. at 6; SOF ¶¶ 62-64.) 14 Plaintiff argues that the evidence shows that she was performing to Defendant’s 15 legitimate expectations for the purposes of her prima facie case because she was advanced 16 from Operations Processor 2 to Operations Processor 3. (Resp. at 8; Def.’s Exs. 1, 3.) This 17 argument fails. The exhibits Plaintiff cites to support her claim do not contain any 18 information with respect to her performance—they are simply Defendant’s offer letters for 19 the Operations Processor 2 and Operations Processor 3 positions. A plaintiff’s bare 20 assertion that she was meeting her employer’s legitimate expectations is not sufficient to 21 raise a genuine issue of material fact as to this prong. See Bradley v. Harcourt, Brace and 22 Co., 104 F.3d 267, 270 (9th Cir. 1996) (“[A]n employee’s subjective personal judgments 23 of [her] competence alone do not raise a genuine issue of material fact.”). Further, as 24 Defendant points out, Ms. Badon, Plaintiff’s former supervisor, not only testified that 25 Plaintiff made substantial errors and failed to improve with instruction, but Ms. Badon’s 26 log also reflects that Plaintiff had numerous performance deficiencies. (Reply at 3; Def.’s 27 Ex. 9, Declaration of Annette Badon (“Badon Dec.”) ¶¶ 7-11; Def.’s Ex. 15.) 28 1 Plaintiff cannot succeed in establishing a prima facie case because she cannot show 2 she was performing in accordance with Defendant’s legitimate expectations, so the Court 3 does not consider her argument that her placement on “mail room duty” following her 4 complaint to Mr. Richardson was also an adverse action. (Resp. at 8). Nor does it consider 5 her argument that the “similarly situated” prong of her prima facie case is satisfied because 6 Charlotte White, one of her colleagues, also exhibited performance issues and was never 7 placed on “mundane mail room duty.” (Resp. at 9.) 8 2. Even if Plaintiff Could Establish a Prima Facie Case, Defendant 9 Has Articulated a Legitimate, Non-Discriminatory Reason for the Adverse Employment Action and Plaintiff Has Not Shown that 10 Defendant’s Reason Could be Pretext 11 As discussed supra, Defendant has met its burden by explaining that Plaintiff was 12 terminated because of her failure to return to work after her leave of absence had ended. 13 (Mot. at 6-7.) An employee can prove pretext either: (1) “directly, by showing that unlawful 14 discrimination more likely motivated the employer”; or (2) “indirectly, by showing that the 15 employer’s proffered explanation is unworthy of credence because it is internally 16 inconsistent or otherwise not believable.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 17 374 F.3d 840, 849 (9th Cir. 2004) (internal quotation marks omitted) (quoting Lyons v. 18 England, 307 F.3d 1092, 1113 (9th Cir. 2002)). “[A] disparate treatment plaintiff can 19 survive summary judgment without producing any evidence of discrimination beyond that 20 constituting his prima facie case, if that evidence raises a genuine issue of material fact 21 regarding the truth of the employer’s proffered reasons.” Chuang, 225 F.3d at 1127. 22 Plaintiff attempts to rebut Defendant’s proffered reasons for her termination by 23 raising a constructive discharge argument—she alleges that she would not have failed to 24 return to work but for Defendant’s “unabated harassing and discriminatory behavior 25 resulting in a hostile work environment to which a reasonable person would have been 26 forced to resign in lieu of termination.” (Resp. at 9-10.) 27 There are several problems with Plaintiff’s constructive discharge claim. First, 28 Plaintiff’s constructive discharge argument does not appear anywhere in her Second 1 Amended Complaint or MIDP disclosures. Her EEOC charge also does not mention 2 constructive discharge or allege any facts to support such a claim. 3 Second, as Defendant observes in its Reply, Plaintiff never expressly or implicitly 4 resigned, as would be required for a constructive discharge. See Green v. Brennan, 578 5 U.S. 547, 550 (2016) (“an employee who was not fired but resigns in the face of intolerable 6 discrimination…[i]s ‘constructive[ly]’ discharge[d].”). The parties have never disputed 7 that Plaintiff was terminated. (See generally Compl.) Finally, Plaintiff fails to articulate 8 how exactly her constructive discharge argument goes to show that Defendant’s reason for 9 her termination is internally inconsistent or unworthy of credence, as required to show 10 pretext. 11 A reasonable fact-finder could not find that race was a “motivating factor” in 12 Defendant’s decision-making, nor could a reasonable fact-finder conclude that race was 13 the motivating factor in Defendant’s decision-making, as required under 42 U.S.C. § 1981. 14 42 U.S.C. 2000e-2(m); 42 U.S.C. § 1981. Compare Comcast Corp. v. Nat’l Assn. of 15 African American-Owned Media, 140 S. Ct. 1009 (2020) with Bostock v. Clayton Cnty., 16 140 S. Ct. 1731 (2020). Plaintiff has not met her burden to prove pretext. Plaintiff has failed 17 to present evidence that creates a genuine issue of material fact as to whether Defendant 18 discriminated against her because of her race or national origin. 42 § U.S.C. 2000e-2(a)(1); 19 42 U.S.C. § 1981. Defendant’s Motion for Summary Judgment is therefore granted as to 20 Plaintiff’s Title VII and 42 U.S.C. § 1981 discrimination claims. Celotex, 477 U.S. at 323. 21 B. Plaintiff’s Retaliation Claims 22 Title VII also makes it an unlawful employment practice for an employer to retaliate 23 against an employee because she has opposed any practice made unlawful by Title VII or 24 because she has made a charge, testified, assisted, or participated in any manner in an 25 investigation under Title VII. 42 U.S.C. § 2000e–3(a). 26 27 28 1 1. Plaintiff Has Established a Prima Facie Case of Title VII or 42 U.S.C. § 1981 Retaliation 2 3 The McDonnell Douglas burden-shifting framework may also be applied to Title 4 VII retaliation claims. See Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 784 (9th 5 Cir. 1986.) A plaintiff may establish a prima facie case of retaliation by showing that (1) 6 she engaged in a protected activity; (2) her employer subjected her to an adverse 7 employment action; and (3) a causal link exists between the protected activity and the 8 adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The burden then 9 shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse 10 employment action. Id. Finally, the burden shifts back to the plaintiff to show that the 11 defendant’s proffered reason was pretext for a discriminatory motive. Id. 12 Defendant argues that Plaintiff’s prima facie case fails because she cannot establish 13 the requisite causal nexus. (Mot. at 8.) In University of Texas Southwestern Medical Center 14 v. Nassar, the Supreme Court decided that a plaintiff has a heightened standard for proving 15 causation in retaliation claims—she must show that her engagement in a protected activity 16 was a “but-for” cause of the defendant’s imposition of an adverse employment action. 17 570 U.S. 338, 362 (2013). 18 According to Defendant, Plaintiff cannot show that her employment was terminated 19 soon after any alleged protected activity. (Mot. at 8.) Plaintiff’s complaint to 20 Mr. Richardson was in January 2019, and she was not terminated until October 2019, 21 roughly nine months after her complaint and eight months after she took her leave of 22 absence. (Mot. at 8-9.) The Court agrees with Defendant that such a substantial time lapse 23 between her complaint and termination indicates that Plaintiff cannot establish the requisite 24 causal nexus. See Coleman v. Home Health Resources Inc., 269 F. Supp. 3d 935, 945 25 (D. Ariz. 2017) (“An inference of retaliation is not plausible where eight months have 26 elapsed.”) (citations omitted). 27 On the other hand, Plaintiff, without citing a single case to support her argument, 28 contends that her placement in the mail room constitutes a demotion that falls “within the 1 definition of an adverse employment action.” (Resp. at 12.) Plaintiff observes that she 2 complained to Mr. Richardson on January 9, 2019, and was moved to the mail room that 3 same day. 4 Plaintiff stated in her deposition that while her desk was never actually moved to 5 the mail room, she was taking mail out of the room back out to her desk. (Buhagiar Dep. 6 176:17-25.) Even though processing mail was one of Plaintiff’s job duties, a reasonable 7 jury could find that Plaintiff’s relegation to mail processing was a retaliatory adverse 8 action. See Burlington, 548 U.S. at 70-71 (“Almost every job category involves some 9 responsibilities and duties that are less desirable than others. Common sense suggests that 10 one good way to discourage an employee . . . from bringing discrimination charges would 11 be to insist that she spend more time performing the more arduous duties and less time 12 performing those that are easier or more agreeable.”). Because Plaintiff alleges that her 13 complaint to Mr. Richardson took place either the same day or the day before she was 14 asked to process mail, the Court finds sufficient temporal proximity to satisfy Plaintiff’s 15 burden at this stage. 16 2. Defendant Has Articulated a Legitimate, Non-Discriminatory 17 Reason for the Adverse Employment Action and Plaintiff Has Not Shown that Defendant’s Reason Could be Pretext 18 19 As discussed above, Defendant contends that Plaintiff was making substantial errors 20 that were disrupting her department when performing other job duties, in part because she 21 was working so quickly. (Badon Dec. ¶¶ 9-10.) Ms. Badon, Plaintiff’s supervisor, 22 determined that processing returned mail was a task that Plaintiff could “easily complete 23 with speed and accuracy.” (Badon Dec. ¶ 12.) 24 Because Defendant has articulated a legitimate, non-discriminatory reason for 25 assigning Plaintiff to process mail, the burden shifts back to Plaintiff to show that 26 Defendant’s reason could be pretext. The Court applies the same standard for pretext to 27 Plaintiff’s retaliation claim that it used for her discrimination claim, discussed supra. 28 1 Plaintiff fails to draw the Court’s attention to any evidence to rebut Defendant’s 2 proffered reasons for its adverse actions. In fact, Plaintiff does not address pretext at all in 3 her Response. (See Resp. at 11-12.) Even if Plaintiff had raised arguments on pretext, 4 however, they would fail. Defendant has produced substantial evidence to show that its 5 reasons for moving Plaintiff to process mail were not internally inconsistent or unworthy 6 of credence. As discussed above, Ms. Badon’s log reflects that Plaintiff had numerous 7 performance deficiencies. (Reply at 3; Badon Dec. ¶¶ 7-11; Def.’s Ex. 15.) Plaintiff has 8 produced no evidence to the contrary. Accordingly, no genuine issues of material fact 9 remain, and summary judgment is appropriate for Plaintiff’s Title VII or 42 U.S.C. § 1981 10 retaliation claims. 11 C. Plaintiff Cannot Establish a Prima Facie Case of ADA Discrimination or Retaliation 12 13 The ADA provides that “[n]o covered entity shall discriminate against a qualified 14 individual with a disability because of the disability of such individual in regard to . . . 15 discharge of employees . . . and other terms, conditions, and privileges of employment.” 16 42 U.S.C. § 12112(a). 17 To establish a prima facie case of disability discrimination, a plaintiff must show 18 she (1) is disabled; (2) is a qualified individual; and (3) has suffered an adverse employment 19 action because of her disability. Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 20 2015); see 42 U.S.C. § 12111(8). “The term ‘disability’ means, with respect to an 21 individual – (A) a physical or mental impairment that substantially limits one or more 22 major life activities of such individual; (B) a record of such an impairment; or (C) being 23 regarded as having such an impairment.” 42 U.S.C. § 12102(1)(A)–(C); Nunies v. HIE 24 Holdings, Inc., 908 F.3d 428, 433 (9th Cir. 2018). To trigger the employer’s duty to engage 25 in the ADA “interactive process,” an employee must first notify its employer of the need 26 for an accommodation. Nunies, 908 F.3d at 433. The employee “must make clear that the 27 employee wants assistance for his or her disability.” Taylor v. Phoenixville Sch. Dist., 28 184 F.3d 296, 313 (3d Cir.1999). 1 Defendant argues that Plaintiff’s ADA claims fail for several reasons. First, 2 Defendant alleges that Plaintiff cannot show that she was disabled. Not only did Plaintiff 3 fail to inform Defendant that she had a disability as defined by the ADA, meaning that its 4 duty to engage in the “interactive process” was never triggered, but Plaintiff’s Complaint 5 also fails to identify the type of accommodation she requested. (Mot. at 13.) Because 6 Plaintiff has not presented any evidence to this effect, Defendant argues she cannot prevail 7 on her ADA discrimination claim. (Mot. at 13.) 8 Plaintiff may argue that in sending a photograph of her Return to Work Release 9 from the hospital to Ms. Badon, she put Defendant on notice of her condition, triggering 10 the ADA’s interactive process. (SOF ¶ 35; Resp. at 5.) However, Plaintiff’s actions were 11 not sufficient to put Defendant on notice of her disability or her desire for accommodations. 12 “In general … it is the responsibility of the individual with a disability to inform the 13 employer that an accommodation is needed.” 29 CFR to Part 1630 Interpretive Guidance 14 on Title I of the Americans With Disabilities Act (Code of Federal Regulations (2021 15 Edition)). Nor does the evidence indicate that Plaintiff’s alleged disability was a “physical 16 or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. 17 § 12102(1)(A). Further, the fact that Plaintiff worked for two separate companies in Utah 18 during her leave of absence—and Plaintiff has presented no evidence to show that she 19 requested or received any accommodations for either of these positions—militates against 20 Plaintiff’s position that she was disabled within the meaning of the ADA. 21 Second, Defendant alleges that Plaintiff cannot show she was qualified for her job 22 because: (1) she refused to return to work, and (2) she showed an inability to perform the 23 functions of her job. The only evidence Plaintiff cites anywhere in her Response to show 24 that she was qualified is her offer letter for the Operations Processor 3 position. (See Def.’s 25 Ex. 3.) Although the Court found the offer letter insufficient to show that Plaintiff was 26 performing to Defendant’s legitimate expectations, it could help support Plaintiff’s 27 argument that she was qualified for her position. However, other facts undercut Plaintiff’s 28 qualifications. Most obviously, Plaintiff’s refusal to return to work, her move to Utah, and 1 her employment with two other companies during her leave of absence show that she was 2 not qualified to work for Defendant. Plaintiff’s proffered reasons for her failure to return 3 to work are immaterial—a pending EEOC charge does not excuse her failure to return, nor 4 did Plaintiff inform Defendant that she was refusing to return to work for this reason. 5 (DSOF ¶ 63.) 6 As to Plaintiff’s ADA retaliation claim, Plaintiff bears the initial burden of proving 7 “that the desire to retaliate was the but-for cause of the challenged employment action.” 8 Nassar, 570 U.S. at 352. Defendant alleges that Plaintiff cannot establish the requisite 9 causal connection because she has offered no evidence to support her claim that 10 Defendant’s adverse actions were driven by discriminatory or retaliatory motives. (Mot. at 11 13.) The Court agrees. Plaintiff was directed to process returned mail on January 9, 2019, 12 but her hospital visit was not until January 28, 2019. (SOF ¶¶ 23, 34.) It is therefore 13 impossible that Plaintiff’s medical condition was the but-for cause of her assignment to 14 process mail. Likewise, Plaintiff cannot show that her alleged disability was the but-for 15 cause of her termination. Plaintiff never claimed that she needed additional leave to address 16 her medical issues—as discussed in the preceding paragraph, she simply refused to return 17 to work. Even viewing the facts in the light most favorable to Plaintiff, no reasonable jury 18 could find Defendant’s actions to be retaliatory. Plaintiff’s ADA discrimination and 19 retaliation claims fail as a matter of law. 20 D. Plaintiff’s Intentional Infliction of Emotional Distress Claim 21 To prevail on a claim for IIED under Arizona law, a plaintiff must show: (1) that 22 the defendant committed extreme and outrageous conduct; (2) that the defendant intended 23 to cause emotional distress or recklessly disregarded the near certainty that such distress 24 would result from his conduct; and (3) that severe emotional distress occurred as a result 25 of the defendant’s conduct. Citizen Publ’g Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005). 26 In Arizona, the trial court decides whether the alleged acts are sufficiently outrageous to 27 state a claim for relief. Johnson v. McDonald, 3 P.3d 1075, 1080 (Ariz. Ct. App. 1999). A 28 plaintiff must show that the defendant’s conduct was “so outrageous in character, and so 1 extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as 2 atrocious and utterly intolerable in a civilized community.” Id. (internal quotes and 3 citations omitted). It is “extremely rare to find conduct in the employment context that will 4 rise to the level of outrageousness necessary to provide a basis for recovery for the tort of 5 intentional infliction of emotional distress.” Cox v. Keystone Carbon Co., 861 F.2d 390, 6 395 (3d Cir.1988), cert. denied, 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990). 7 Defendant relies on Mintz v. Bell Atlantic Sys. Leasing Int’l, Inc. to support its 8 position. 905 P.2d 559, 563 (Ariz. App. 1995). There, the plaintiff brought an IIED claim 9 arising from several acts by her employer, which included failing to promote the plaintiff 10 and forcing her to return to work before she was prepared to do so. Id. at 563. The Mintz 11 Plaintiff even alleged that her employer hand delivered a warning concerning her 12 employment status while she was in the hospital. Id. Nonetheless, the court found that the 13 employer’s actions did not go “beyond all possible bounds of decency even if it was 14 motivated by sex discrimination or retaliation.” Id. 15 Plaintiff’s allegations, even if taken as true, do not go “beyond all possible bounds 16 of decency.” See Johnson, 3 P.3d at 1080. Plaintiff alleges that her emotional distress was 17 caused by: (1) warnings from her supervisor that she worked too fast and needed to slow 18 down; (2) her co-worker receiving preferential treatment despite making numerous 19 mistakes; (3) being sent to work in the mail room; (4) becoming the “butt of jokes” because 20 of her alleged demotion to the mail room; and (5) her co-workers not speaking to her. 21 (Compl. ¶ 11.) As a matter of law, these allegations are insufficient to support an IIED 22 claim. Defendant’s Motion for Summary Judgment is granted as to Plaintiff’s IIED claim. 23 Because Defendant is entitled to prevail as a matter of law on all of Plaintiff’s 24 claims, the Court does not reach the issue of punitive damages. 25 IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary 26 Judgment in its entirety. (Doc. 51.) 27 28 1 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly and close this matter. 3 Dated this 19th day of July, 2022. CN 4 “wok: Unie States#District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-18-