1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 William Campbell, Case No. 2:23-cv-01375-CDS-NJK
4 Plaintiff Order Granting Defendant’s Motion for Summary Judgment and Closing Case 5 v.
6 University Medical Center, [ECF No. 25]
7 Defendant 8 9 This is a disability, race, and age discrimination action brought by pro se plaintiff 10 William Campbell against his former employer, University Medical Center (UMC). On April 19, 11 2024, UMC filed a motion for summary judgment, arguing that Campbell’s claims fail as a 12 matter of law. Mot. for summ. j., ECF No. 25. Campbell opposes the motion.1 Opp’n, ECF No. 29. 13 This matter is now fully briefed. See Reply, ECF No. 30. For the reasons set forth herein, UMC’s 14 motion for summary judgment is granted. 15 I. Legal standard 16 Summary judgment is appropriate when the pleadings and admissible evidence “show 17 that there is no genuine issue as to any material fact and that the movant is entitled to judgment 18 as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 19 56(c)). The court’s ability to grant summary judgment on certain issues or elements is inherent 20 in Federal Rule of Civil Procedure 56. See Fed. R. Civ. P. 56(a). “By its very terms, this standard 21 provides that the mere existence of some alleged factual dispute between the parties will not 22 defeat an otherwise properly supported motion for summary judgment; the requirement is that 23 there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 24 (1986). A fact is material if it could affect the outcome of the case. Id. at 249. At the summary 25 1 UMC argues that Campbell’s opposition was untimely. The opposition to the summary judgment 26 motion was due May 13, 2024. Min. order, ECF No. 26. Campbell did not file his opposition until May 14, 2024. Given Campbell’s pro se status, the court declines to strike Campbell’s opposition for being one day late. 1 judgment stage, the court must view all facts and draw all inferences in the light most favorable 2 to the nonmoving party. Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 3 1986). The movant need only defeat one element of a claim to garner summary judgment on it 4 because “a complete failure of proof concerning an essential element of the nonmoving party’s 5 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322. 6 The party moving for summary judgment in their favor bears the initial burden of 7 identifying those portions of the pleadings, discovery, and affidavits which demonstrate the 8 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has 9 met its burden of production, the nonmoving party must go beyond the pleadings and, by its 10 own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. 11 Id. If the nonmoving party fails to produce enough evidence to show a genuine issue of material 12 fact, the moving party wins. Id. Conclusory, speculative testimony in affidavits and moving 13 papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Pub. 14 Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). 15 II. Summary of the allegations 16 As set forth in his complaint, Campbell alleges UMC discriminated against him based on 17 his disability, his race, and his age, and because of that discrimination, he was terminated from 18 his position within UMC’s IT Office.2 See Compl., ECF No. 3. Specifically, Campbell alleges that: 19 (1) UMC failed to engage in the interactive process with him as required under the ADA and 20 that UMC failed to provide an accommodation for his disability (Claim I); (2) after engaging in 21 protected activity by requesting a medical accommodation, UMC retaliated against him (Claim 22 II); (3) UMC discriminated against him because he is Black and failed to investigate his 23 discrimination claim (Claim III and IV) and has similarly discriminated against other former 24 Black employees (Claim III); and (4) UMC discriminated against him because of his age (Claim 25 V). Id at 3–8. UMC refutes Campbell’s allegations. Answer, ECF No. 9.
26 2 Unless otherwise noted, citations to the complaint and/or answer do not serve as a finding of facts, but only to provide background information. 1 III. Discussion 2 UMC argues they are entitled to summary judgment on all claims because the evidence 3 demonstrates that Campbell was terminated “as a result of his own actions,” based on Campbell’s 4 failure to respond to discovery requests, including requests for admissions (RFAs). ECF No. 25 5 at 2. UMC argues that it is “an acute care hospital with most [employees] working on-site, with 6 limited exception made for remote workers, even in the I.T. department.” ECF No. 25 at 3. It 7 argues that Campbell was terminated for being a sub-par performer and violating numerous 8 policies,3 not because of any alleged discrimination based on disability, race, or age. Id. at 3–4. It 9 further argues that employees were able to work remotely during the COVID-19 pandemic but 10 in early 2021, when virus transmission rates in the community decreased, UMC employees were 11 ordered to return to the office. Id. at 3. Campbell was given two extensions to UMC’s return to 12 office requirement. See Def.’s Ex. B, Emails discussing Campbell’s request for a telework 13 accommodation and Campbell’s two extensions from the work-to-work requirement, ECF No. 14 25-2 at 7–9. Finally, UMC argues that because Campbell failed to respond to its RFAs,4 those 15 matters are deemed admitted. ECF No. 25 at 2. 16 In opposition, Campbell argues that the summary judgment motion should be denied 17 because he was discriminated against by UMC. See generally ECF No. 29. Campbell does not 18 provide any points and authorities or any exhibits or affidavits in support of his opposition. Id. 19 As a threshold matter, the court addresses Campbell’s failure to respond to UMC’s 20 RFAs. Federal Rule of Civil Procedure 36(a)(3) states that “[a] matter is admitted unless, within 21 30 days after being served, the party to whom the request is directed serves on the requesting 22 party a written answer or objection addressed to the matter and signed by the party or its 23 attorney.” If admitted, the matter “is conclusively established unless the court, on motion, 24 3 See Def.’s Ex. E, UMC Employee Performance Improvement Plan (PIP) for Campbell, ECF No. 25-5; 25 Def.’s Ex. H, UMC Corrective Counseling Notice for Campbell dated Oct. 15, 2021, ECF No. 25-8 at 3; Def.’s Ex. I, Campbell Case Summary Action Log and Second Corrective Counseling Notice dated Nov. 3, 26 2021, ECF No. 25-9. 4 See Def.’s Ex. A, Def.’s Requests for admission, ECF No. 25-1. 1 permits the admission to be withdrawn or amended.” Fed. R. Civ. P. 36(b). That same rule also 2 “permits the district court to exercise its discretion to grant relief from an admission made 3 under Rule 36(a) only when (1) the presentation of the merits of the action will be subserved, 4 and (2) the party who obtained the admission fails to satisfy the court that withdrawal or 5 amendment will prejudice that party in maintaining the action or defense on the merits.” Conlon 6 v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (internal quotation marks and citations 7 omitted); Fed. R. Civ. P. 36(b). Under the second prong of this test, “[t]he party relying on the 8 deemed admission has the burden of proving prejudice.” Id. at 622 (citing Fed. R. Civ. P. 36(b)). 9 Campbell does not dispute that he failed to respond to the RFAs, rather, he attempts to shift the 10 blame for his lack of response by claiming UMC has failed to respond to his discovery requests. 11 ECF No. 29 at 1. Because Campbell is pro se, the court liberally construes this claim as a motion 12 to compel. See Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) (directing courts to 13 construe pro se pleadings liberally). However, “[a]lthough pro se, [Campbell] is expected to 14 abide by the rules of the court in which he litigates.” Carter v. Comm’r, 784 F.2d 1006, 1008 (9th 15 Cir. 1986). In the District of Nevada, any filed motion “must be supported by a memorandum of 16 points and authorities.” LR 7-2(a). Campbell failed to support his motion to compel with a 17 memorandum of points and authorities; instead, he made an unsupported allegation that UMC 18 failed to comply with his own discovery requests. “The failure of a moving party to file points 19 and authorities in support of the motion constitutes a consent to the denial of the motion.” LR 7- 20 2(d). Consequently, Campbell’s failure to file a memorandum of points and authorities in 21 support of his motion to compel constitutes a consent to the denial of the motion under Local 22 Rule 7-2(d). It is denied accordingly. 23 Because “[a]ny matter admitted under this rule is conclusively established unless the 24 Court on motion permits withdrawal or amendment of the admission,” Fed. R. Civ. P. 36(a), and 25 there is no pending motion to withdraw or amend Campbell’s admissions, the RFAs filed as 26 1 Defendant’s Exhibit A (ECF No. 25-1 at 3–9) are deemed conclusively established.5 2 Consequently, based on Campbell’s admissions and the other evidence provided by UMC, 3 together with the lack of evidence provided to refute UMC’s claims, each of Campbell’s claims 4 fail as a matter of law. 5 A. UMC is entitled to summary judgment on Campbell’s ADA violation claim. 6 Campbell alleges that UMC failed to engage in the interactive process with him as is 7 required under the ADA, and further, that UMC failed to provide an accommodation for his 8 disability. ECF No. 3 at 3–4. First, under the ADA, any employer’s failure to provide a reasonable 9 accommodation to a qualified individual with a disability6 constitutes discrimination. 42 U.S.C. 10 § 12112(b)(5)(A); Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232 (9th Cir. 2003). “The term 11 ‘reasonable accommodation’ may include . . . job restructuring, part-time or modified work 12 schedules, reassignment to a vacant position, . . . training materials or policies, . . . and other 13 similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9); see also 29 C.F.R. § 14 1630.2(o) (same). If an employee requests an accommodation, “the employer must engage in an 15 interactive process with the employee to determine the appropriate reasonable 16 accommodation.” EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1110 (9th Cir. 2010) (internal 17 citation omitted). This interactive process requires: “(1) direct communication between the 18 employer and employee to explore in good faith the possible accommodations; (2) consideration 19 of the employee’s request; and (3) offering an accommodation that is reasonable and effective.” 20 Id. at 1110–11; Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). If a defendant fails to 21 engage in an interactive process, summary judgment is available only if a reasonable finder of 22 fact has no choice but to conclude that there would have been no reasonable accommodation. 23 Dark v. Curry Cnty., 451 F.3d 1078, 1088 (9th Cir. 2006). However, there is not an independent 24
25 5 The court notes that Campbell filed a motion to compel (ECF No. 27), however that motion was denied as untimely. Order, ECF No. 28. Campbell did not appeal that decision. 26 6 There does not appear to be any disagreement that Campbell’s migraine condition constituted a disability as defined by the ADA. See 42 U.S.C. § 12102(2). 1 cause of action under the ADA for failing to engage in an interactive process. See, e.g., Kramer v. 2 Tosco Corp., 233 F. App’x. 593, 596 (9th Cir. 2007); Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 292 3 (7th Cir. 2015). Rather, an employer who fails to engage in the interactive process in good faith 4 faces “liability for the remedies imposed by the statute if a reasonable accommodation would 5 have been possible.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137–38 (9th Cir. 2001). 6 There is no dispute Campbell had a disability based on his migraine condition. See Def.’s 7 Ex. C, Letter from Campbell’s doctor, ECF No. 25-3; ECF No. 25-4 at 5.7 Rather, UMC’s argues 8 that they are entitled to summary judgment on Campbell’s ADA claim because the evidence 9 shows that it complied with the ADA’s requirement to engage with Campbell to accommodate 10 his disability (the migraine condition). ECF No. 25 at 6–7. I agree. The emails provided by UMC 11 show that it first accommodated Campbell by extending his ability to telework twice after 12 employees were directed to return to work. See ECF No. 25-2 at 8–9. Those same emails reveal 13 that UMC’s Human Resources department disclosed that after the second extension, Campbell 14 was (1) asked for documentation of the medical impairments he was suffering from to ensure 15 compliance with the ADA and to address an accommodation request, and (2) was also provided 16 additional information regarding taking FMLA to allow him time to address his medical 17 concerns. Id. at 3. There is no evidence before the court that Campbell provided the requested 18 medical documentation. Instead, on April 12, 2021, Campbell emailed the human resources 19 department and asked to move to another cubicle for medical reasons. Id. at 2. The human 20 resources representative, Anna Caputo, replied within hours and advised Campbell that they 21 would need to discuss his request if it was for medical reasons, to which Campbell responded 22 “Ok – thank you.” Id. Campbell also submitted an email request to telework. Def.’s Ex. 3, ECF 23 No. 25-3 at 2–3. Between April and June of 2021, Campbell and UMC’s human resources 24
25 7 Exhibits C and D (ECF Nos. 25-3 and 25-4) violate Local Rule IC 6-1 as they contain Campbell’s personal-data identifiers. Defendant must file corrected images of the exhibits, with the personal 26 identifying information redacted, within forty-eight hours of this order. The corrected, redacted versions must be filed using the “notice of corrected image” event to link them to the existing filings. 1 exchanged several emails regarding Campbell’s accommodation request, the medical 2 documentation regarding Campbell’s medical condition, exploring using FMLA, and other 3 accommodations other than remote work (such as using noise cancelling headphones). Def.’s Ex. 4 D, ECF No. 25-4. One email discusses a meeting between Campbell and the human resources 5 representative, Caputo. Following that meeting, on June 14, 2021, Caputo sent an email to 6 Campbell that stated: 7 As I stated in the interview, if multiple effective accommodations are possible, the employer gets to choose the accommodation which least affects operations. Your 8 position is not a remote position, so if we can accommodate you on-site and effectively manage the migraine triggers which you described, then there is no need 9 for remote work. The idea is that allowing you to wear a noise canceling headset and instructing other staff to contact you via messenger or email whenever possible 10 should reduce the noise down to the same level it would be if you were teleworking. You indicated that moving to your old cubicle is the ‘best option’ and 11 that you would give that a try and then let me know about the headset, which 12 would suggest that you also find that to be an effective accommodation. If at any point in the future we need to reevaluate the accommodation for effectiveness, you 13 can certainly let me know. 14 ECF No. 25-4 at 6–7. 15 The emails reveal it was unclear to Campbell what accommodation, if any, he was 16 granted. Id. at 6–8. However, on June 17, 2021, Caputo clarified the status via email and advised 17 Campbell that he could move back to his old cubicle. Id. at 6; see also Def.’s Ex. H, ECF No. 25-8 at 18 2 (Sept. 24, 2021 email from Caputo to another human resources employee stating the only 19 accommodation accepted by Campbell was moving back to his old desk). 20 Then, in August 2021, Campbell reached out to Caputo and asked for an “ADA 21 Reasonable Accommodation Form. Def.’s Ex. F, ECF No. 25-6 at 3. Campbell and Caputo engage 22 in another series of emails where Caputo is inquiring about Campbell’s medical condition, 23 documentation related his condition,8 and asking if there was anything else he needed at work. 24
25 8 See Hoang v. Wells Fargo Bank, N.A., 724 F. Supp. 2d 1094, 1105–06 (D. Or. 2010) (recognizing that under ADA, employers may periodically ask for reasonable documentation on the need for reasonable 26 accommodations); see also Brooks v. Agate Res., Inc., 2019 WL 2635594, at *7–8 (D. Or. Mar. 25, 2019), adopted, 2019 WL 2156955 (D. Or. May 14, 2019) (recognizing the employer may request that employee 1 Id. at 2–3. An email dated September 29, 2021 from Caputo to Campbell states: 2 As to your ADA request, one thing for you to consider is that we are allowed to require that an accommodation be medically ‘necessary.’ Based on my assessment, 3 the at-work accommodations I offered you after your first request for continued telework, which you declined (wearing ear phones and asking your colleagues to 4 only contact you via electronic or telephonic means when possible), are a 5 reasonable alternative to telework in your case, which makes telework unnecessary. We could also consider allowing you to listen to music with earbuds, 6 if you don’t want to try the noise canceling headphones because of the potential for your ears getting moist. If you want to discuss again what additional measures 7 we could take to make your work area more comfortable for you, such as putting up an additional sliding barrier like you had mentioned, we can do so if you’d like. 8 If you are willing to try the above alternatives to telework, please let me know.9 9 10 Def.’s Ex. G, ECF No. 25-7 at 2. 11 “The interactive process requires communication and good-faith exploration of possible 12 accommodations between employers and individual employees, and neither side can delay or 13 obstruct the process.” Humphrey, 239 F.3d at 1137. Based on the emails provided by UMC alone, 14 the court cannot conclude that UMC failed to engage in the good-faith interactive process for a 15 reasonable accommodation for Campbell when over the course of months, the defendant did 16 engage with him. Although the emails show some delay in responding to a couple of emails from 17 Campbell to Caputo, those delays were limited. Further, the evidence shows that Campbell was 18 granted his requested accommodation of moving to a different cubicle. The emails reveal that 19 Campbell’s preferred accommodation was telework. But an “employer is not obligated to 20 provide an employee the accommodation he requests or prefers, the employer need only provide 21 some reasonable accommodation.” Zivkovic, 302 F.3d at 1089; see also Moore v. Computer Assocs. Int’l, 22 Inc., 653 F. Supp. 2d 955, 964 (D. Ariz. 2009) (the ADA does not guarantee an employee an 23 accommodation of his or her choosing, only a reasonable one). 24
25 provide medical records to support reasonable accommodation requests and ask for additional information when consistent with business necessity). 26 9 The court notes that there seems to be a missing email(s) from Campbell to Caputo. This exhibit only contains Caputo’s responses to Campbell. 1 The email evidence, together with Campbell’s admission that UMC did engage with him 2 regarding a reasonable accommodation,10 demonstrates that UMC engaged with Campbell to 3 find a reasonable accommodation. See Ellis v. Vial Fotheringham LLP, 2019 WL 1553676, at *9–10 (D. 4 Or. Feb. 1, 2019), adopted, 2019 WL 1553671 (D. Or. Mar. 5, 2019) (holding where employee failed 5 to identify facts to rebut employer’s evidence, employee did not create genuine issue of fact). 6 Accordingly, UMC is entitled to summary judgment on Claim I. 7 B. Campbell fails to meet his burden on his retaliation claim. 8 “To establish a prima facie case of retaliation under the ADA, an employee must show 9 that: (1) he or she engaged in a protected activity; (2) suffered an adverse employment action; 10 and (3) there was a causal link between the two.” Pardi v. Kaiser Permanente Hosp. Inc., 389 F.3d 11 840, 849 (9th Cir. 2004); 42 U.S.C. § 12203(a). If the plaintiff makes a prima facie case of 12 retaliation, “[t]he burden then shifts to the employer to provide a legitimate, [nonretaliatory] 13 reason for the adverse employment action.” Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 14 2014). If the employer does so, the burden shifts back to plaintiff to demonstrate that the 15 employer’s articulated reason is a pretext for unlawful discrimination. See Texas Dep’t of Cmty. Affs. 16 v. Burdine, 450 U.S. 248, 256 (1981). A plaintiff may demonstrate pretext either directly, by 17 showing that unlawful discrimination more likely than not motivated the employer, or 18 indirectly, by showing that the employer’s proffered explanation is unworthy of credence 19 because it is internally inconsistent or otherwise not believable. Aragon v. Republic Silver State 20 Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002) (emphasis in original). The plaintiff’s “evidence 21 must be both specific and substantial to overcome the legitimate reasons put forth by” his 22 employer. Id. 23 Campbell makes a prima facia showing of disability discrimination. He alleges he 24 engaged in protected activity (seeking a reasonable accommodation for his medical condition11 25 10 ECF No. 25-1 at 8–9. 26 11 See Pardi, 389 F.3d at 850 (holding that pursuing one’s rights under the ADA constitutes a protected activity) (citing McAlindin v. Cnty. of San Diego, 192 F.3d 1226, 1238 (9th Cir. 1999) (stating that “vigorously 1 and filing a discrimination complaint), he was terminated after engaging in protected activity,12 2 and there is a causal link between the two.13 See Compl., ECF No. 3 at 5. UMC argues that 3 Campbell was not terminated for discriminatory reasons, but rather for misconduct. ECF No. 25 4 at 3–4. As set forth in UMC’s motion, Campbell was placed on a Performance Improvement Plan 5 (PIP) in July 2021 due to subpar work performance such as an inability to prioritize and 6 multitask, failing to complete work in a timely manner, and submitting inaccurate and 7 incomplete work assignments. Id. at 3 (referencing Def.’s Ex. E, ECF No. 25-5). UMC further 8 avers that in October of 2021, Campbell was suspended pending an investigation for concerns 9 related to possible theft of time. Id. at 4 (citing Def.’s Ex. H, ECF No. 25-8). That investigation 10 revealed the following: 11 (1) Campbell routinely conducted personal non-UMC business while at work and on the clock; 12 (2) Campbell forwarded an unsecured email containing protected health information to his personal email account and retained several personal 13 documents on his work computer, including pornography; (3) used UMC equipment while off the clock and without authorization; and 14 (4) kept non-UMC related work documents on his work computer including eBay 15 mailing labels, real estate transactions, lease agreement, tax documents, condo association documents, another person’s driver’s license, expense records for 16 various properties. 17 See Def.’s Ex. I, Case summary of investigation into Campbell, ECF No. 25-9 at 4–7. 18
19 asserting [one’s] rights” under the ADA and other state and federal discrimination laws constitutes protected activity) and Hashimoto v. Dalton, 118 F.3d 671, 679–80 (9th Cir. 1997) (determining that meeting 20 with an Equal Employment Opportunity counselor to discuss sex and race discrimination constitutes protected activity)). 21 12An act is considered an “adverse employment action,” if it “materially” affects the compensation, terms, conditions or privileges of the plaintiff’s employment. See Jefferson v. Time Warner Cable Enters., LLC, 584 F. 22 App’x. 520, 522 (9th Cir. 2014). Termination is an adverse employment action. 13 Causation may be inferred based on the temporal proximity between the protected activity and the 23 alleged retaliation, see Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003), but the connection in time must be “very close,” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). This circuit has “required 24 temporal proximity of less than three months between the protected activity and the adverse employment action for the employee to establish causation based on timing alone.” Mahoe v. Operating 25 Eng’rs Local Union No. 3, 2014 WL 6685812, at *8 (D. Haw. Nov. 25, 2014) (citing Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)); see Miller v. Fairchild Indus. Inc., 885 F.2d 498, 505 (9th Cir. 1989) (two months 26 sufficient). Here, Campbell had again engaged with UMC’s HR department regarding his pursuit of a reasonable accommodation in September of 2021 and he was terminated in November of 2021. 1 Because UMC proffered legitimate, nondiscriminatory reasons for Campbell’s 2 termination, the burden shifts back to Campbell to demonstrate that UMC’s articulated reason 3 for termination is pretextual. Campbell fails to meet his burden. First, because Campbell failed 4 to respond to the RFAs, he admits to certain acts of misconduct, including having pornography 5 on his work computer, manipulating his work computer to make it appear like he was working 6 when he was not, using his work equipment for personal, non-work-related tasks, and that he 7 stole time from UMC during work hours. ECF No. 25-1 at 8–9. He also admitted that he was 8 terminated because of his own actions. Id. at 9. Admissions aside, Campbell’s opposition fails to 9 provide specific and substantial evidence to overcome UMC’s legitimate reasons for his 10 termination. Instead, he only offers argument that he and another African American employee 11 were discriminated against and makes an unsubstantiated argument that UMC did not provide 12 discovery. ECF No. 29 at 2. This argument however shifts Campbell’s alleged retaliation based 13 on disability to being based on race,14 and is wholly insufficient to meet his burden. See Villiarimo 14 v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2022) (noting that courts refuse to find a 15 genuine issue of fact where the only evidence presented is uncorroborated and self-serving). 16 Accordingly, UMC’s motion for summary judgment on Campbells retaliation claim (Claim II) is 17 granted. 18 C. Campbell’s race and age discrimination claims also fail. 19 Title VII makes it unlawful for employers to “fail or refuse to hire or to discharge any 20 individual or otherwise to discriminate against any individual with respect to his compensation, 21 terms, conditions, or privileges of employment, because of such individual’s race . . . .” 42 U.S.C. § 22 2000e-2(a)(1). To establish a prima facie case of discrimination under Title VII for race 23 14 Although the outcome is the same, the court notes the failure to respond to this argument potentially 24 defeats Campbell’s prima facia case of disability discrimination. See Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (plaintiff abandoned claims by not raising them in opposition to motion for 25 summary judgment); Scott v. City of Phoenix, 2011 WL 3159166, at *10 (D. Ariz. July 26, 2011) (failure to oppose statute of limitations argument constituted waiver); Foster v. City of Fresno, 392 F. Supp. 2d 1140, 26 1147 n.7 (E.D. Cal. 2005) (“[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.”). 1 discrimination, a plaintiff must produce evidence of discriminatory treatment or impact. Garcia v. 2 Spun Steak Co., 998 F.2d 1480, 1484 (9th Cir. 1993). “A person suffers disparate treatment in his 3 employment ‘when he or she is singled out and treated less favorably than others similarly 4 situated on account of race.’” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 5 2006) (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) (internal quotations 6 omitted)). A plaintiff may demonstrate discrimination under a theory of disparate treatment. See 7 Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012). Disparate treatment occurs “where an 8 employer has treated a particular person less favorably than others because of a protected trait.” 9 Id. 10 The Age Discrimination in Employment Act (ADEA) makes it unlawful “to fail or refuse 11 to hire or to discharge any individual or otherwise discriminate against any individual with 12 respect to his compensation, terms, conditions, or privileges of employment, because of such 13 individual’s age.” 29 U.S.C. § 623(a)(1). This prohibition applies to “individuals who are at least 14 40 years of age.” 29 U.S.C. § 631(a). Like his Title VII claim, Campbell alleges he was 15 discriminated under the ADEA under a theory of disparate treatment. See ECF No. 3 at 7–8. 16 “Proof of disparate treatment requires a showing that the employer treats some people less 17 favorably than others because of their age.” Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 18 1990). 19 Campbell alleges disparate treatment in his complaint. See ECF No. 3 at 6–7 (alleging 20 PIPs are only given to Black employees and that employees of other races are treated more 21 favorably). But Campbell’s allegations alone are insufficient to survive summary judgment. See, 22 e.g., Carderella v. Napolitano, 471 F. App’x 681, 682–83 (9th Cir. 2012) (affirming district court’s 23 finding that plaintiff failed to establish a prima facie case of employment discrimination where 24 plaintiff acknowledged that he had “no information regarding the race or national origin of the 25 individuals ultimately selected for the vacant . . . positions.”). To prove a Title VII or ADEA 26 violation, a plaintiff must produce direct evidence that their employer had a discriminatory 1 intent or motive. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005) 2 (“Direct evidence is ‘evidence, which, if believed, proves the fact of discriminatory animus 3 without inference or presumption’ and ‘typically consists of clearly sexist, racist, or similarly 4 discriminatory statements or actions by the employer.’”) (citing Godwin v. Hunt Wesson, Inc., 150 5 F.3d 1217, 1221 (9th Cir. 1998)). Or in the absence of such evidence, a plaintiff may rely on the 6 McDonnell Douglas v. Green framework. No matter the approach, the plaintiff retains the burden of 7 persuasion. See Rose, 902 F.2d at 1420. 8 Campbell fails to produce direct evidence or to rely upon the McDonnell Douglas burden 9 shifting framework. Indeed, Campbell failed to produce any evidence, direct or otherwise, to 10 overcome summary judgment. Campbell’s opposition to summary judgment makes conclusory 11 arguments, such as he is likely the only disabled person in UMC’s IT department and that UMC 12 only administered PIPs to one other African American employee who ultimately quit. ECF No. 13 29 at 2, 3. Such argument is insufficient to overcome summary judgment. Further, Campbell’s 14 opposition is wholly silent as to how he was discriminated against based on his age. The party 15 opposing summary judgment (Campbell) must present significant and probative evidence to 16 support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th 17 Cir. 1991). Uncorroborated allegations and “self-serving testimony,” such as the mere arguments 18 in an opposition, will not create a genuine issue of material fact. Villiarimo, 281 F.3d at 1061; see 19 also Weil v. Citizens Telecom Servs. Co. LLC, 922 F.3d 993, 1003 (9th Cir. 2019) (citing Wallis v. J.R. 20 Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (a plaintiff must produce evidence, not just pleadings 21 or argument). The record is devoid of any discriminatory intent by UMC. The only admissible 22 evidence shows that Campbell was terminated for performance issues, and Campbell admitted 23 as much in his RFA. Because Campbell has not produced any evidence, direct or indirect, of race 24 or age discrimination, Claims III, IV, and V fail and UMC is entitled to summary judgment on 25 each. 26 IV. Conclusion 2 IT IS HEREBY ORDERED that defendant UMC’s motion for summary judgment [ECF No. 25] is GRANTED. 4 IT IS FURTHER ORDERED that UMC must file redacted versions of Exhibits C and D (ECF Nos. 25-3 and 25-4) by December 18, 2024. Once the reacted versions are filed as corrected images, UMC must file a notice indicating that it has complied with this order. The Clerk of 7|| Court will thereafter seal ECF No. 25-3 and ECF No. 25-4 pursuant to LR IC 6-1 and Fed. R. Civ. 8}| P. 5.2. 9 The Clerk of Court is kindly instructed to enter judgment accordingly and to close this 10] case. /) Ul Dated: December 16, 2024 12 fe A —— Cristina D. Silva 5 Unie States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26