1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Derrick L. Span, No. CV-23-02233-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Pinal County Community College District,
13 Defendant. 14 15 At issue is Defendant Pinal County Community College District’s Motion for 16 Summary Judgment (“Motion”) (Doc. 63, MSJ), to which Plaintiff Dr. Derrick Span filed 17 a Response (Doc. 80, Resp.) and Defendant filed a Reply (Doc. 81, Reply). Defendant 18 supports its Motion with a Statement of Facts (Doc. 64, SOF), and Plaintiff supports his 19 Response with a Controverting Statement of Facts (Doc. 74, CSOF). For the reasons set 20 forth below, the Court grants Defendant’s Motion. 21 I. BACKGROUND1 22 In 2011, Plaintiff was hired by Defendant as a full-time professor in the Social and 23 Behavioral Sciences Division (“Division”). (Span Dep. at 19:24–20:4; Span Decl. ¶ 6.) 24 Plaintiff became a “visible advocate for equity and inclusion” at the College by challenging 25 College policies that negatively affected people of color, creating the first diversity and 26 equity committee, advocating for a Chief of Diversity and Equity position within the 27 1 The following facts are uncontested or—to the extent they are contested—are drawn from 28 Plaintiff’s own deposition testimony (SOF at 15–45, Span Dep.), declaration (Doc. 75-1, Span Decl.), and other documents that Plaintiff submitted in response to the Motion. 1 President’s cabinet, organizing a virtual platform to discuss social issues. (Span Decl. ¶¶ 9– 2 10.) 3 Between 2020 and 2024, Plaintiff served a three-year term as the Division Chair. 4 (SOF ¶ 3; CSOF ¶ 3.) During his tenure, Plaintiff reported directly to Dean Atteberry, who 5 in turn would report to Vice President Gilliland, who then reported to President Elliot. 6 (SOF ¶ 5; CSOF ¶ 5; Span Dep. at 23:9–25:21.) Plaintiff’s responsibilities as the Division 7 Chair included “acting as an intermediary between College administration and Division 8 faculty,” staffing, programming, scheduling, responding to student concerns and 9 complaints, and supervising faculty. (SOF ¶ 4; CSOF ¶ 4.) 10 In his time as Division Chair, faculty member Dr. Liz Baroi shared her concerns 11 about Dr. Carol Johnson, another faculty member with whom Plaintiff shared a friendly 12 and previously romantic relationship. (SOF ¶¶ 27–28; CSOF ¶¶ 27–28.) Plaintiff responded 13 that, per College policy, he was unable to investigate Dr. Johnson for the reasons given by 14 Dr. Baroi because he received no student complaints against her. (SOF ¶ 29; CSOF ¶ 29; 15 Span Dep. at 94:16–96:2.) Plaintiff asked Dr. Baroi to provide him with the student 16 complaints she referenced, but she never did. (Span Dep. at 69:20–71:12.) 17 While Division Chair, Plaintiff generally experienced his staff “going around him” 18 to the Dean or Vice President to complain about Plaintiff’s management or enforcement of 19 College policies. (SOF ¶ 19; CSOF ¶ 19; Span Dep. at 37:10–17.) The evidence provided 20 by Plaintiff shows that this issue predated March 10, 2020.2 Plaintiff was also concerned 21 about the Division being assigned the color brown on the College’s website and being 22 called the “Brown division.” (SOF ¶¶ 64–67; CSOF ¶¶ 64–67.) That color was coded to 23 the Division as a part of the College’s “Guided Pathways” process, which streamlined the 24 students’ graduation process and color coded each area of study. (Span Dep. at 55:20– 25 56:1.) According to Plaintiff, this color coding occurred “somewhere again around 2020 or 26 2 Dr. Dawn Conley, one of Plaintiffs’ direct reports, submitted her own internal complaint 27 on November 6, 2019. In the written investigation report dated March 10, 2022, the investigator documented that Dr. Conley complained of another staff member 28 circumventing Plaintiff—who was Dr. Conley’s direct supervisor—to raise concerns directly to College leadership. (Doc. 75-6 at 6.) 1 2021.” (Span Dep. at 56:2–7.) The choice of color was “stereotypical” because Plaintiff is 2 an African American man and the Division had the highest concentration of minorities. 3 (Span Dep. at 48:22–50:3, 60:10–25.) Plaintiff directly heard one person refer to the 4 Division as the “Brown Division” and believed an anonymous survey comment referencing 5 “Brown people” was directed towards the Division because of its assigned color. (SOF 6 ¶¶ 66–68; CSOF ¶¶ 66–68; Span Dep. at 50:10–14, 54:10–20, 52:8–15.) He raised his 7 concerns to leadership about the color “for some two years, close to three years,” but 8 nothing changed during his tenure as the Division Chair. (Span Dep. at 49:18–20.) Around 9 this time, Plaintiff knew of other lawsuits brought by his African American colleagues 10 asserting racial discrimination, but he refused to join in those lawsuits because he did not 11 feel personally affected. (Span Dep. at 66:14–25.) 12 On October 21, 2021, the Dean and Vice President informed Plaintiff that the Dean 13 would become involved in the Division to improve visibility of the program. (Span Decl. 14 ¶ 14; Doc. 75-1; Doc. 76-5.) Plaintiff was told that the Division would be the “guinea pig” 15 for the new initiative. (SOF ¶¶ 14–16; CSOF ¶¶ 14–16.) He expressed concern that this 16 would make it look like he was not able to do his job and would further weaken his 17 authority over faculty members. (SOF ¶ 19; CSOF ¶ 19; Span Decl. ¶ 17.) 18 On October 26, 2021, Dr. Baroi emailed the Vice President and two students 19 detailing those students’ complaints about Dr. Johnson’s teaching abilities. (Doc. 77-1 at 20 4.) The students responded to the email chain confirming Dr. Baroi’s account. (Id. at 2–3.) 21 Plaintiff was not included in these emails. 22 On October 27, 2021, the Dean and Vice President met with Plaintiff and four 23 faculty members that directly reported to Plaintiff. (Span Decl. ¶ 18.) At the meeting, 24 Plaintiff asked “why the Social & Behavioral Sciences Division was singled out for their 25 intervention” and purportedly received criticism in response for his “objections.” (Id. at 26 ¶ 19.) 27 On October 28, 2021, Dr. Baroi sent an email to the Dean and Plaintiff that 28 “welcomed” the Dean to the Division and detailed concerns she had with instructors who 1 taught introductory psychology courses at the college. (Doc. 76-6; Span Decl. ¶ 20.) 2 According to Plaintiff, Dr. Baroi’s concerns targeted Dr. Johnson. (Span Decl. ¶¶ 20–21.) 3 Around this time, Plaintiff met with the President and voiced his concerns about his 4 staff “going around” him, the assignment of the color brown to the Division, and the 5 pending lawsuits of other College employees. (SOF ¶¶ 8–10; CSOF ¶¶ 8–10; Span Decl. 6 ¶¶ 22–23.) Shortly afterwards, the Dean called Plaintiff to ask why he met with the 7 President and whether he raised any concerns he had with the Dean or Vice President, to 8 which Plaintiff said he did not. (SOF ¶¶ 11–12; CSOF ¶¶ 11–12; Span Decl. ¶¶ 24–25.) 9 During the same conversation, the Dean asked Plaintiff to investigate the “Blackboard 10 account”—an institutional platform used by faculty—of Dr. Johnson because there were 11 some student complaints against her. (SOF ¶ 13; CSOF ¶ 13.) Plaintiff responded that he 12 knew of no complaints against Dr. Johnson, so he had no reason to investigate her. (Span 13 Dep. at 72:13–73:10.) After his meeting with the President, the Dean conducted less 14 frequent meetings with Plaintiff as opposed to his colleagues who were having frequent or 15 monthly meetings with their respective dean. (SOF ¶ 58; CSOF ¶ 58; Span Dep. at 62:9– 16 24.) 17 On November 29, 2021, Dr. Baroi sent an email only to the Dean and Vice President 18 with the subject line “Updated information regarding current investigation.” (Doc. 77-2 at 19 4.) Dr. Baroi listed numerous complaints against Plaintiff, including that he instructed her 20 against raising concerns about Dr. Johnson to the Dean or Vice President and against 21 issuing course evaluations. (Id.) The same day, the Vice President responded to Dr. Baroi 22 and copied Plaintiff, stating, “I’m concerned that [Plaintiff] told you specifically not to go 23 to the Dean or the VP . . . If you have concerns, and he doesn’t agree, I think it is valid to 24 bring them forward.” (Id. at 3.) Plaintiff then responded that he was “shocked” to learn that 25 there was “apparently some investigation of me in my division.” (Id. at 2.) 26 Soon after this email exchange, Plaintiff filed a harassment and discrimination 27 complaint form and an incident reporting form (“Internal Complaint”) against the Dean, 28 Vice President, and Dr. Baroi, claiming they were “involved in this unwarranted and 1 provocative investigation [that] involves racism and gender discrimination.” (SOF ¶¶ 39– 2 40; CSOF ¶¶ 39–40.) In his Internal Complaint, Plaintiff requested “[n]o supervisory 3 interaction between me and the Dean.” (SOF ¶ 41; CSOF ¶ 41.) After filing the Internal 4 Complaint, the Dean stopped conducting monthly meetings with Plaintiff altogether. (Span 5 Dep. at 63:1–5.) 6 Plaintiff submitted his Internal Complaint during a time in which the College’s 7 Chief of Police, Gregory Roberts, oversaw the functions of the Human Resources 8 department due to a staffing vacancy. (SOF ¶ 42; CSOF ¶ 42.) Chief Roberts assigned the 9 Internal Complaint to Laura Arnold, a police technician within the College. (SOF ¶ 43; 10 CSOF ¶ 43.) On March 24, 2022, Ms. Arnold emailed Plaintiff notifying him that she 11 received the investigation packet and “hope[s] to schedule an interview with [Plaintiff] in 12 the next couple of weeks.” (Doc. 78-7.) 13 On April 7, 2022, Plaintiff filed a charge of discrimination with the Equal 14 Employment Opportunity Commission (“EEOC”) alleging violations of Title VII of the 15 Civil Rights Act of 1964, specifically alleging discrimination based on race. (Doc. 78-6.) 16 Plaintiff describes the November 29, 2021 email exchange regarding the “secret 17 investigation,” the assignment of the color brown to the Division, the lack of supervisory 18 meetings since filing his Internal Complaint, and the inadequate investigation of his 19 Internal Complaint as the grounds for his EEOC Charge. (Id. at 3.) 20 On April 20, 2022, Plaintiff emailed Ms. Arnold regarding ongoing issues with 21 Dr. Baroi routing student complaints directly to Vice President Gilliland rather than to him. 22 (Doc. 77-4 at 2.) Ms. Arnold responded that she added his email to his file and noted that 23 she “would still need to get some times when it would be convenient for [Plaintiff] and 24 [her] to speak . . .” (Id.) Plaintiff subsequently responded with his ongoing availability for 25 an interview. (Doc. 78-4 at 2.) Ms. Arnold responded several days later but did not schedule 26 an interview with Plaintiff. (Id.) Aside from these emails, no other evidence by either party 27 is offered to show additional contact between Ms. Arnold and Plaintiff. 28 . . . 1 Later, Ms. Arnold authored a three-page preliminary investigation report based on 2 her review of certain emails, Plaintiff’s Internal Complaint, and written responses from the 3 Vice President and Dr. Baroi. (Doc. 78-5 at 2.) Ms. Arnold sent the preliminary report on 4 July 27, 2022 to Chief Roberts and noted that it was “not submitted yet, as [she] needed to 5 talk with Dr. Span.” (Id.) A copy of the preliminary report was not provided to Plaintiff 6 until it was attached in Defendant’s position statement in response to Plaintiff’s EEOC 7 Charge. (SOF ¶ 49; CSOF ¶ 49.) Neither party suggests that the investigation into 8 Plaintiff’s Internal Complaint was formally closed. 9 In or around December 2022, the Dean passed away. (Span Dep. at 63:6–22.) The 10 College opened the dean position and Plaintiff applied. (Span Decl. ¶ 34.) Plaintiff inquired 11 whether it was possible to report to someone else other than the Vice President if he was 12 offered the position, given that his Internal Complaint was still pending against her. (Id. 13 ¶ 37.) The College answered in the negative, and Plaintiff withdrew his application. (Id. 14 ¶¶ 37–38.) Plaintiff went on to apply to another dean position that reported to a different 15 vice president and was denied that position. (Id. ¶ 38.) Plaintiff completed his third term as 16 the Division Chair and decided to not run for that position again. (Span Dep. at 25:22– 17 27:12.) He remains a full-time professor in the Division. (Span Dep. at 19:24–20:4.) 18 On July 28, 2023, the EEOC issued Plaintiff a Notice of Right to Sue. (Doc. 1, 19 Compl., ¶ 11.) On October 27, 2023, Plaintiff filed suit in this Court alleging two violations 20 of Title VII for disparate treatment based on his race and retaliation.3 (Id. ¶¶ 38–48.) 21 II. LEGAL STANDARD 22 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 23 when the movant shows that there is no genuine dispute as to any material fact and the 24 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 25 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the 26 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 27 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA,
28 3 Plaintiff also brought a Title VII claim for hostile work environment as Count One but now stipulates to dismiss that claim (Resp. at 16 n.2). 1 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 2 242, 248 (1986)). The court must view the evidence in the light most favorable to the 3 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 4 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). “The Court need not ‘comb 5 the record’ looking for other evidence; it is only required to consider evidence set forth in 6 the moving and opposing papers and the portions of the record cited therein.” New Leaf 7 Publ'g, Inc. v. Top Innovations LLC, No. 2:24-cv-04676-MEMF-SSC, 2025 U.S. Dist. 8 LEXIS 208363, at *5 (C.D. Cal. Oct. 21, 2025) (citing Fed. R. Civ. P. 56(c)(3), (e)(2); 9 Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)). 10 The moving party “bears the initial responsibility of informing the district court of 11 the basis for its motion, and identifying those portions of [the record] . . . which it believes 12 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232. 13 When the moving party does not bear the ultimate burden of proof, it “must either produce 14 evidence negating an essential element of the nonmoving party’s claim or defense or show 15 that the nonmoving party does not have enough evidence of an essential element to carry 16 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 17 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party does so, the nonmoving party 18 must produce evidence to support its claim or defense. Id. at 1103. Summary judgment is 19 appropriate against a party that “fails to make a showing sufficient to establish the existence 20 of an element essential to that party’s case, and on which that party will bear the burden of 21 proof at trial.” Celotex, 477 U.S. at 322. 22 In considering a motion for summary judgment, the court must regard as true the 23 nonmoving party’s evidence if it is supported by affidavits or other evidentiary material. 24 Anderson, 477 U.S. at 255. The nonmoving party may not merely rest on its pleadings; it 25 must produce some significant probative evidence tending to contradict the moving party’s 26 allegations, thereby creating a material question of fact. Id. at 256–57 (holding that the 27 plaintiff must present affirmative evidence to defeat a properly supported motion for 28 summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A 1 summary judgment motion cannot be defeated by relying solely on conclusory allegations 2 unsupported by factual data.”) (internal citation omitted). 3 III. DISCUSSION 4 A. Disparate Treatment 5 Plaintiff brings a claim for disparate treatment under Title VII, alleging Defendant 6 discriminated against him because of this race and color under 42 U.S.C. § 2000e-2(a). 7 (Compl. ¶¶ 38–43.) Title VII makes it unlawful for an employer “to fail to refuse to hire or 8 to discharge any individual, or otherwise to discriminate against any individual with respect 9 to [his] compensation, terms, conditions, or privileges of employment” or “to limit, 10 segregate, or classify his employees or applicants for employment in any way which would 11 deprive or tend to deprive any individual of employment opportunities or otherwise 12 adversely affect his status as an employee” because of such individual’s race or color. 13 42 U.S.C. § 2000e-2(a). 14 Disparate treatment claims require the plaintiff to prove that the employer acted with 15 conscious intent to discriminate against the plaintiff based on his protected characteristic. 16 Costa v. Desert Palace, 299 F.3d 838, 854 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003). At 17 this stage, a plaintiff need only make a prima facie case “established by proof of facts 18 supporting an inference of intentional discrimination.” Gay v. Waiters’ & Dairy 19 Lunchmen’s Union, 694 F.2d 531, 538 (9th Cir. 1982). “The requisite degree of proof 20 necessary to establish a prima facie case for Title VII . . . claims on summary judgment is 21 minimal and does not even need to rise to the level of a preponderance of the evidence.” 22 Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). This initial burden of 23 production “is met upon a showing of actions taken by the employer from which one can 24 infer, if such actions remain unexplained, that it is more likely than not that such action 25 was based upon race or another impermissible criterion.” Gay, 694 F.2d at 538. “Evidence 26 can be in the form of the McDonnell Douglas prima facie case, or other sufficient 27 evidence—direct or circumstantial—of discriminatory intent.” Costa, 299 F.3d at 855. 28 “[T]he court must make a sensitive inquiry into the direct and circumstantial evidence of 1 discrimination offered by the plaintiff in order to determine if the facts so proved allow a 2 legally-permissible inference of discriminatory intent.” Gay, 694 F.2d at 538. 3 Direct evidence establishing a prima facie case, “if believed, proves the fact [of 4 discriminatory animus] without inference or presumption.” Vasquez v. Cnty. of Los 5 Angeles, 349 F.3d 634, 640 (9th Cir. 2006) (modification in original). Circumstantial 6 evidence, on the other hand, requires a fact finder to draw inferences or presumptions of 7 discriminatory intent. 8 A party may evoke the burden-shifting McDonnell Douglas framework, which is 9 “the traditional framework for evaluating disparate-treatment claims that rest on 10 circumstantial evidence.” Ames v. Ohio Dep't of Youth Servs., 605 U.S. 303, 306 (2025). 11 Under the McDonnell Douglas framework, a plaintiff must establish: (1) the plaintiff 12 belongs to a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff 13 was subject to an adverse employment action; and (4) similarly situated individuals outside 14 the plaintiff’s protected class were treated more favorably. McDonnell Douglas Corp. v. 15 Green, 411 U.S. 792, 802 (1973). While a useful “tool to assist plaintiffs at the summary 16 judgment stage so that they may reach trial, nothing compels the parties to invoke the 17 McDonnell Douglas presumption.” Costa, 299 F.3d at 855. 18 If the plaintiff establishes a prima facie case, the burden shifts to the defendant who 19 must articulate legitimate, non-discriminatory reasons for the challenged action. 20 McDonnell Douglas Corp., 411 U.S. at 802. If the defendant meets this burden, the plaintiff 21 must finally show that the “reason is pretextual either directly by persuading the court that 22 a discriminatory reason more likely motivated the employer or indirectly by showing that 23 the employer’s proffered explanation is unworthy of credence.” Davis v. Team Elec. Co., 24 520 F.3d 1080, 1089 (9th Cir. 2008) (internal citation and quotations omitted)). 25 1. McDonnell Douglas Framework 26 Both parties evoke the McDonnell Douglas framework. Defendant does not dispute 27 that Plaintiff can establish the first two elements. (MSJ at 13.) Rather, the parties argue 28 whether Plaintiff can establish a genuine issue of material fact that he was subjected to an 1 adverse employment action or that similarly situated individuals outside his protected class 2 were treated more favorably. (MSJ at 13–14; Resp. at 16–18; Reply at 7–9.) 3 An adverse employment action is one that materially affects the compensation, 4 terms, conditions, or privileges of employment. Davis, 520 F.3d at 1089. “Adverse 5 employment actions may include not only actions an employer affirmatively takes against 6 an employee (e.g., firing or demoting the employee) but also situations in which the 7 employer denies an employee a material employment benefit or opportunity that was 8 otherwise available to her,” such as the denial of a promotion or a transfer. Campbell v. 9 State Dep’t of Educ., 892 F.3d 1005, 1013 (9th Cir. 2018). Depriving a person of support 10 services that were previously available to them may also constitute an adverse employment 11 action. Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (citing Knox v. Indiana, 93 12 F.3d 1327, 1334 (7th Cir. 1996)). The harm from an employment action need not be 13 significant to be adverse. See Muldrow v. City of St. Louis, 601 U.S. 346, 357, 357 (2024). 14 Still, actions that are trivial or have no tangible job consequence, such as a reprimand or 15 low performance review without more, may not rise to the level of adverse. Gildersleeve 16 v. City of Sacramento, No. 2:22-cv-02145-JAM-AC, 2025 U.S. Dist. LEXIS 144069, *6 17 (E.D. Cal. Jul. 28, 2025). 18 Defendant argues that Plaintiff can establish no genuine issue of material fact that 19 he was subjected to an adverse employment action from the College. (MSJ at 13–14.) 20 Plaintiff retorts that he has shown evidence of three adverse employment actions. (Resp. at 21 17.) First, Plaintiff expresses that the Vice President and Dean “grossly interfered with his 22 basic job duties by coming into his division and compromising his ability to succeed in his 23 position as Division Chair.” (Id.) Neither party disputes that the Dean and Vice President 24 met with Plaintiff and told him that they would be working with his division to “get them 25 out to the school community,” or that Plaintiff expressed the involvement would “weaken 26 his authority as the Chair.” (SOF ¶ 14–15, 19; CSOF ¶ 14–15, 19.) According to Plaintiff, 27 these events inspired “fear” in him about destabilization of the Division that would “blur 28 college policies regarding chain-of-command, and ultimately undercut his authority.” 1 (Resp. at 9–10.) But Plaintiff sets forth no evidence that his compensation, terms, 2 conditions, or privileges of his position were materially affected by these events. For 3 example, Plaintiff remained in his position as the Division Chair for the remainder of his 4 term (Span Dep. at 25:22–27:12) and maintained the same pay (see Doc. 77-4 (email from 5 pay system manager to Plaintiff on December 6, 2021, noting no changes to pay 6 assignment).) Plaintiff even concedes that faculty members were already “going around” 7 him to the Dean and Vice President prior to the Dean’s involvement in his Division, which 8 undercuts a finding that any material change occurred. (SOF ¶ 19; CSOF ¶ 19; Doc. 75-6 9 at 6.) 10 Second, Plaintiff states that the Vice President and Dean colluded with Dr. Baroi 11 “to solicit student complaints out of the chain of command and undermine his ability to 12 carry out his duties.” (Resp. at 17.) It is undisputed that Dr. Baroi emailed the Dean and 13 Vice President directly to “update” them about her conversations with Plaintiff, titling the 14 email “Updated information regarding current investigation.” (SOF ¶ 30; CSOF ¶ 30; Doc. 15 77-2.) While Plaintiff claims that the Vice President unintentionally copied Plaintiff on the 16 email that alerted him to the “secret investigation,” Plaintiff admits that claim is “pure 17 speculation.” (Span Dep. at 43:15–45:11.) Speculation without more is insufficient to 18 defeat a motion for summary judgment. Taylor, 880 F.2d at 1045. Plaintiff also fails to 19 produce evidence that this secret investigation materially affected aspects of his job. As 20 discussed above, the record indicates that Plaintiff maintained his position, pay, and 21 responsibilities relative to what he had prior to the “secret investigation.” (SOF ¶ 19; CSOF 22 ¶ 19; Span Dep. at 25:22–27:12; Doc. 77-4.) 23 Third, Plaintiff asserts that the College assigning his Internal Complaint to campus 24 police and leaving “that investigation open indefinitely” constitutes an adverse 25 employment action because it “constructively render[ed] him permanently ineligible for 26 promotion.” (Resp. at 17.) Plaintiff offers evidence that his colleagues Dr. Dawn Conley 27 and Ms. Veronika Mosley, both of whom are African American women who filed an 28 internal complaint for racial discrimination, were subjected to an investigation process 1 conducted by a third-party company that included a direct interview and a complete report. 2 (Docs. 75-6, 76-1). Plaintiff’s complaint, on the other hand, was investigated internally 3 (see Doc. 78-2), the investigator failed to interview him despite Plaintiff’s attempts to share 4 his availability (see Doc. 78-4), and did not result in a formal, complete report. The Court 5 need not determine whether this internal investigation constituted an adverse employment 6 action, though, because Dr. Conley and Ms. Mosley are both African American and belong 7 to the same protected class as Plaintiff.4 Therefore, this action, even if adverse, does not 8 survive the fourth element of the McDonnell Douglas framework. 9 The only other change in his employment conditions identified by Plaintiff was the 10 cessation of meetings with the Dean after he filed his Internal Complaint. (Span Dep. at 11 64:23–65:3; Doc. 78-6.) According to Plaintiff, these meetings are “crucial” to advance 12 into a deanship. (Span Dep. at 62:9–63:5.) However, it is undisputed that Plaintiff requested 13 “no supervisory interaction” with the Dean (SOF ¶ 41; CSOF ¶ 41), and Plaintiff provides 14 no evidence or testimony that he sought out other supervisory support as the Division Chair 15 and was denied. Plaintiff also does not attribute his promotion ineligibility to the reduction 16 of supervisory meetings; rather, he attributes it to the incomplete investigation of his 17 Internal Compliant. (Resp. at 17.) Therefore, the reduction of supervisory meetings is 18 immaterial to whether Plaintiff was “constructively render[ed] permanently ineligible for 19 promotion” and does not constitute an adverse employment action. 20 2. Other Circumstantial Evidence 21 While Plaintiff does not establish a prima facie case under the McDonnell Douglas 22 framework, he may set forth other circumstantial evidence of discriminatory intent. Costa,
23 4 To the extent Plaintiff’s disparate treatment claim raises gender-based discrimination, the Court lacks subject matter jurisdiction to consider it. Vasquez, 349 F.3d at 644 (“To 24 establish subject matter jurisdiction over his Title VII retaliation claim, [the plaintiff] must have exhausted his administrative remedies by filing a timely charge with the EEOC.”). 25 Nowhere in his EEOC Charge (Doc. 78-6) or Complaint does Plaintiff allege gender-based discrimination. While subject matter jurisdiction may extend “over all allegations of 26 discrimination that either fell within the scope of the EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of 27 discrimination,” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002), there is no evidence or argument from Plaintiff suggesting that gender-based discrimination 28 fell within the scope of the EEOC’s actual investigation or was reasonably expected to grow out of the EEOC Charge that exclusively alleged race-based discrimination. 1 299 F.3d at 854. Plaintiff asserts that he “has produced substantial circumstantial evidence 2 of discriminatory intent,” which includes evidence of: (1) a “lengthy history of 3 discriminating against African American faculty and staff” by the College; (2) Plaintiff’s 4 “long history of raising concerns of discrimination at [the College]”; (3) the College’s 5 targeted interference and disruption of the Division; and (4) the College’s inadequate 6 investigation of Plaintiff’s Internal Complaint. (Resp. at 18.) The result was “Dr. Span’s 7 career [being] in perpetual limbo—unable to advance to any Academic Dean position 8 without forcing direct oversight by the target of his unresolved grievance.” (Id.) 9 Plaintiff offers his testimony that he had a long history of challenging discriminatory 10 policies of the college (Span Decl. ¶ 9), which included contesting the College’s 11 assignment of the color brown to the Division. These advocacy efforts, however, were 12 “never met with direct action against” him. (Id. ¶ 13.) In fact, despite his distinct advocate 13 role at the College, he did not personally experience disparate treatment before Fall of 2021 14 and even refused to join his colleagues’ racial discrimination lawsuits “because at that time 15 I had nothing that I felt happen to me specifically.” (Span Dep. at 66:22–25.) Those 16 lawsuits that Plaintiff refused to join, each of which settled short of trial (Docs. 76-2, 76- 17 4), arose from internal complaints filed by African American women that were closed by 18 a third-party investigator who found no credible evidence of discriminatory motives (Doc. 19 75-6 at 17, 42, 45, 47; Doc. 76-1 at 3). Plaintiff does not attempt to construe these events 20 as evidence of discrete discriminatory acts against him—nor could he. The lawsuits do not 21 involve him at all, and Plaintiff could recall no obstruction of or consequence for his earlier 22 advocacy efforts. At most, this evidence serves only as relevant background evidence5 to 23 put Plaintiff’s disparate treatment claims in context. AMTRAK v. Morgan, 536 U.S. 101, 24 113 (2002) (a plaintiff may use “the prior acts as background evidence in support of a 25 timely claim” under Title VII). When viewed in a light most favorable to Plaintiff, this
26 5 Defendant argues that this evidence is “plainly inadmissible” and should not be considered. (Reply at 5.) Evidence of discrimination that is untimely for a Title VII action 27 may be used as background evidence so long as it is admissible. Lyons v. England, 307 F.3d 1092, 1110 (9th Cir. 2002). The Court need not reach the issue of admissibility, 28 however, because Plaintiff ultimately fails to establish a prima facie case of disparate treatment even with consideration of this background evidence. 1 background evidence shows that the College had a history of being accused of racial 2 discrimination and that the College’s policies and programming could be improved—and 3 were improved by Plaintiff—to be more equitable to people of color. But it does not show 4 that the College did, in fact, discriminate against its staff based on race. 5 While not present in his EEOC Charge, Plaintiff now argues that the College’s 6 disparate treatment of him began with the Dean and Vice President “targeting” the Division 7 to be a “guinea pig” for a new program designed to promote the Division to the 8 community.6 (Resp. at 18; Span Decl. ¶¶ 13–17.) According to Plaintiff, this action was 9 taken because Plaintiff is African American. (Span Dep. at 48:22–49:8.) However, the 10 Court cannot make that inference from the simple fact that the Division happened to be 11 selected as the first to try the College’s new program, especially when Plaintiff admits that 12 he experienced no direct action or disparate treatment personally prior to this event. (Span 13 Decl. ¶ 13; Span Dep. at 66:22–25.) 14 As described in his EEOC Charge, Plaintiff’s disparate treatment claim more 15 directly arises from the November 29, 2021 email chain started by Dr. Baroi, which 16 purportedly shows that the College led a “secret investigation” against him. (Doc. 78-6 at 17 3.) However, according to Plaintiff himself, Dr. Baroi was the “architect” of the secret 18 investigation—not the Dean or Vice President—and was targeting Plaintiff because of the 19 way he responded to Dr. Baroi’s concerns about Dr. Johnson. (Span Dep. at 69:7–72:8.) 20 As discussed earlier, Plaintiff offers no evidence that the Dean or Vice President were 21 involved in Dr. Baroi’s “secret investigation,” and admits that claim is “pure speculation.” 22 (Span Dep. at 43:15–45:11.) Even assuming the College led this secret investigation, 23 Plaintiff’s only evidence that this action was based on race was that he was one of a few 24 African American faculty at the school. (Span Dep. at 74:3–23; SOF ¶ 25; CSOF ¶ 25.) 25
26 6 Plaintiff does not address whether this action “fell within the scope of the EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to grow out of 27 the charge of discrimination.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). Therefore, it is unclear whether this action is properly within the ambit of 28 this Court’s review. Still, the Court will view this evidence in the light most favorable to Plaintiff and draw all reasonable inferences in his favor. Torres, 648 F.3d at 1123. 1 This conclusory allegation, without more, is insufficient to defeat a motion for summary 2 judgment. Taylor, 880 F.2d at 1045. 3 Plaintiff also asserts that the way his Internal Complaint was handled amounts to 4 circumstantial evidence of discriminatory intent based on his race. From Plaintiff’s 5 perspective, his internal complaint should have included an interview of Plaintiff, been 6 investigated by a third-party, and formally closed. (Resp. at 14–15.) Even assuming that 7 the investigation was insufficient, Plaintiff’s own evidence refutes the presence of 8 discriminatory intent. That evidence includes copies of the finalized, third-party 9 investigation reports of his African American colleagues’ complaints, which are the kind 10 of investigation that Plaintiff believes should have been afforded to him. (Docs. 75-6, 76- 11 1.) It cannot be inferred from these facts that the College’s insufficient investigation of 12 Plaintiff’s Internal Complaint was more likely than not based on his race. Gay, 694 F.2d at 13 538. 14 In sum, evidence of the College’s actions, which include its selection of the Division 15 for a new program, “secret investigation” of Plaintiff, and inadequate investigation of 16 Plaintiff’s Internal Complaint, do not give rise to a reasonable inference of unlawful 17 discrimination even when combined with the background evidence of Plaintiff’s 18 colleague’s lawsuits against the College. After viewing this evidence in a light most 19 favorable to Plaintiff and drawing all reasonable inferences in his favor, Torres, 648 F.3d 20 at 1123, Plaintiff cannot establish a prima facie case of disparate treatment and Defendant 21 is entitled to summary judgment on this claim. 22 B. Retaliation 23 Plaintiff brings a claim of retaliation under Title VII, 42 U.S.C. § 2000e-3, alleging 24 that Defendant retaliated against him after notifying College leadership about alleged racial 25 discrimination. (Compl. ¶¶ 44–48.) Under the retaliation provision of Title VII, “an 26 employer may not take action against an employee for bringing or aiding a Title VII 27 charge.” Muldrow, 601 U.S. at 357 (citing 42 U.S.C. § 2000e-3). This provision “applies 28 only when the retaliatory action is materially adverse, meaning that it causes significant 1 harm.” Id. (citation and quotation marks omitted). This standard is intended “to capture 2 those (and only those) employer actions serious enough to dissuade[ ] a reasonable worker 3 from making or supporting a charge of discrimination . . . If an action causes less serious 4 harm . . . it will not deter Title VII enforcement; and if it will not deter Title VII 5 enforcement, it falls outside the purposes of the ban on retaliation.” Id. (internal citation 6 and quotation marks omitted.) 7 Parties may evoke the McDonnell Douglas burden-shifting framework to establish 8 a prima facia case of retaliation. See Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 9 784 (9th Cir. 1986). The McDonnell Douglas framework requires a plaintiff to show (1) 10 that he engaged in protected activity; (2) that his employer subjected him to an adverse 11 employment action; and (3) a causal link between the protected activity and the adverse 12 action. Ray, 217 F.3d at 1240. If the plaintiff makes such a showing, the burden shifts to 13 the defendant to articulate a legitimate, nondiscriminatory reason for the adverse 14 employment action. Id. And if the defendant does so, the burden shifts back to the plaintiff 15 to show that the defendant’s proffered reason was pretext for a discriminatory motive. Id. 16 Here, both parties evoke the McDonnell Douglas framework. (MSJ at 14–15; Resp. 17 at 18–19.) Defendant does not dispute that Plaintiff engaged in a protected activity when 18 he filed his Internal Complaint, or when he discussed his concerns about the “Brown 19 Division” issue with the President during their meeting. (MSJ at 15.) Rather, Defendant 20 argues that Plaintiff cannot establish that he suffered an adverse employment action. (MSJ 21 at 15.) For his part, Plaintiff asserts that he suffered three adverse employment actions: (1) 22 “College Administrators interfered in his department and worked with his direct reports to 23 go around him and undercut his authority”; (2) the College “ensured assignment of his 24 complaint to an untrained investigator”; and (3) the College failed to completely investigate 25 his internal complaint, “making it a practical impossibility for him to be promoted to a dean 26 position without a special exception allowing him to report to someone other than Vice 27 President Gilliland.” (Resp. at 19.) 28 . . . 1 “Not every employment decision amounts to an adverse employment action,” and 2 “only non-trivial employment actions that would deter reasonable employees from 3 complaining about Title VII violations will constitute actionable retaliation.” Brooks v. 4 City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000); see also Ray, 217 F.3d at 1243 (“[A]n 5 action is cognizable as an adverse employment action if it is reasonably likely to deter 6 employees from engaging in protected activity.”). The Ninth Circuit “take[s] an expansive 7 view of the type of actions that can be considered adverse employment actions.” Id. at 8 1241. “Termination, negative employment references, undeserved negative performance 9 reviews, and denial of promotions qualify as adverse employment actions.” Foraker v. 10 Apollo Grp., Inc., 427 F. Supp. 2d 936, 941 (D. Ariz. 2006). 11 Plaintiff cites to Chuang v. University of Cal. Davis, 225 F.3d 1115 (9th Cir. 2000), 12 for the proposition that “actions that impair an employee’s ability to satisfactorily perform 13 their jobs, as well as actions that impede an employee’s ability to advance in their career” 14 are adverse employment actions. (Resp. at 19.) In Chuang, the plaintiff made several 15 requests to be promoted into a position, and was even promised that he would receive that 16 position once it became available. Id. at 1124. That position became available numerous 17 times over many years, but each time it was given to someone else. Id. at 1125. During this 18 time, the employer forcibly relocated the plaintiff’s laboratory, which disrupted his 19 research and resulted in research grants being withheld and experimental subjects being 20 lost. Id. at 1125–26. 21 The employment actions discussed in Chuang are markedly different from those 22 identified by Plaintiff here. Unlike the plaintiff in Chuang whose work was directly 23 disrupted by the employer’s interference in relocating his laboratory, Plaintiff’s purported 24 work disruption (e.g., staff “going around him” and undermining his authority) occurred 25 before the College’s interference with his Division. (SOF ¶ 19; CSOF ¶ 19; Doc. 75-6 at 26 6.) Plaintiff was also not promised and subsequently denied a promotion like the plaintiff 27 in Chuang. Rather, Plaintiff voluntarily withdrew his application after the College would 28 not make “a special exception” for him to report to someone other than the Vice President. 1 (Resp. at 19; Span Decl. ¶¶ 34–38.) Plaintiff offers no evidence or testimony that the 2 College represented to him that he would receive a deanship, or that the College had made 3 the exception requested by Plaintiff for others but not for him. Plaintiff also produces 4 nothing more than his opinion that the College was required to obtain a third-party 5 company to investigate his Internal Complaint rather than handle it internally. 6 Aside from citing Chuang, Plaintiff does not elucidate how these three purported 7 employment actions deterred him—or would have deterred other reasonable employees— 8 from engaging in a protected activity. See Muldrow, 601 U.S. at 357–58 (discussing 9 deterrence as a critical element of a retaliation claim). The record indicates that Plaintiff 10 was not deterred at all. He voiced his concerns about the College’s involvement in his 11 Division multiple times (Span Decl. ¶¶ 17, 19, 22), immediately expressed his discontent 12 to the Vice President about Dr. Baroi’s November 29, 2021 email (Doc. 77-2 at 2), 13 promptly filed his Internal Complaint (SOF ¶¶ 37–40; CSOF ¶¶ 37–40), made public 14 statements about his grievances with the College (Doc. 77-7), filed his EEOC Charge 15 without noting any remark or action by the College to obstruct or dissuade him, and applied 16 to two deanships7 in the time that his Internal Complaint was pending. 17 For the sake of argument, even if these three employment actions are adverse, 18 Plaintiff fails to set forth evidence supporting the third McDonnell Douglas element. First, 19 he broadly refers to his history of advocacy at the College and the fact that he “supervised— 20 and ultimately supported—multiple African American employees” as protected activities. 21 (Resp. at 19.) Plaintiff’s advocacy-related activities varied in type and occurred over 22 several years even before he became the Division Chair (Span Decl. ¶¶ 9–10), which makes 23 it impractical for the Court to infer with any level of clarity a causal relationship between 24 those general activities and the employment actions that began in Fall 2021. 25 Assuming that the protected activity was the filing of Plaintiff’s Internal 26 Complaint—which is the only activity Plaintiff mentioned in his EEOC Charge (Doc. 78-
27 7 Plaintiff separately applied to a deanship that reported to a different vice president within the College and was denied that position. (Span Decl. ¶ 38.) But Plaintiff does not assert 28 that this denial was due to disparate treatment or retaliation, so the Court will not analyze it as such. || 6)—Plaintiff does not identify a causal relationship between that activity and any one of 2 || the employment actions he listed. Instead, Plaintiff advises the Court that it “need not labor || over the third factor: Dr. Span has cited to ample evidence to permit a jury to find a causal 4|| relationship between his protected activity and CAC’s retaliatory conduct,” but does not || point out which evidence does so. And while temporal proximity is the customary || circumstantial evidence a party uses to establish a prima facie case of causation for retaliation claims, Bell v. Clackamas Cnty., 341 F.3d 858, 865—66 (9th Cir. 2003), Plaintiff 8 || does not allude to time as a relevant index at all. “The Court need not ‘comb the record’ 9|| looking for other evidence,” New Leaf Publ’g, Inc., 2025 U.S. Dist. LEXIS 208363, at *5, 10 || so it ends the inquiry here given Plaintiff's failure to meaningfully set forth his evidence 11 |} supporting the third McDonnell Douglas element. IV. CONCLUSION 13 Even viewing the evidence in a light most favorable to Plaintiff and drawing all 14|| reasonable inferences in his favor, Torres, 648 F.3d at 1123, Plaintiff fails to establish a 15 || prima facie case of disparate treatment or retaliation under Title VII. Accordingly, the Court will enter summary judgment on Plaintiff's claims in favor of Defendant. 17 IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary 18 || Judgment (Doc. 63). 19 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in 20 || Defendant’s favor and close this case. 21 Dated this 19th day of November, 2025. CN 22 “wok: 73 Unifgd State#District Judge 24 25 26 27 28
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