Devine v. Shulkin

• Court: District Court, E.D. California
• Decided: September 23, 2024
• Docket: 2:17-cv-02331
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KELLY DEVINE, No. 2:17-cv-02331-DJC-AC 12 Plaintiff, 13 v. ORDER GRANTING SUMMARY 14 JUDGMENT DENIS McDONOGH, Secretary of 15 Veterans Affairs, 16 Defendant. 17 18 In this action brought under Title VII, Plaintiff Kelly Devine alleges that she was 19 discriminated against on the basis of her gender and sexually harassed by her former 20 supervisor, Michael Molina, during the course of her employment with the 21 Department of Veterans Affairs (“the VA”). She also alleges that she was retaliated 22 against and wrongfully terminated after she filed a complaint about her supervisor’s 23 behavior. Defendant, the Secretary of Veterans Affairs,1 brought the instant Motion for 24 Summary Judgment which is now fully briefed. 25 //// 26

27 1 The former Secretary of Veterans Affairs against whom this case was originally brought, David J. Shulkin, has been substituted by Denis McDonough, the current Secretary of Veterans Affairs pursuant 28 to Fed. R. Civ. P. 25(d). 1 While a reasonable jury could find that Plaintiff experienced sexual harassment 2 in 2014, the Court concludes that the claims related to sexual harassment are time 3 barred due to Plaintiff not timely contacting an EEO Officer. See 29 C.F.R. 4 §§ 1614.103(a), 1614.105(a)(1). Although Plaintiff alleges a continuing violation, no 5 reasonable jury could conclude that the interactions Plaintiff had with Molina in 2016 6 were sexual in nature. As to her gender discrimination claim, the fact that Plaintiff 7 points to no similarly situated individuals outside her protected class who were 8 treated more favorably is fatal. That is particularly true when another similarly situated 9 woman was retained. Finally, as to her retaliation claim, while Plaintiff has made out a 10 prima facie case that she was fired in retaliation for complaining to an EEO Officer 11 about being exposed to sexually explicit material on her supervisor’s computer, 12 Defendant has offered a legitimate reason for Plaintiff’s termination — her failure to 13 meet objective productivity requirements — and she has failed to provide evidence 14 that this reason is pretextual. Accordingly, the Court GRANTS Defendant’s Motion for 15 Summary Judgement. 16 I. FACTUAL BACKGROUND 17 The following facts are undisputed. Plaintiff worked at the Sacramento 18 Veterans Center as a Readjustment Counselor for the Department of Veterans Affairs 19 starting in June 2014. She was hired as a temporary employee for a one-year term, 20 which was then extended for a second one-year term. Plaintiff provided individual 21 and group therapy to veterans and their families. From June 2014 through November 22 2014, Plaintiff’s supervisor was Michael Molina, the director of the Sacramento 23 Veteran’s Center. While Molina was deployed for a military assignment in 2015, 24 Plaintiff was supervised by another individual, but Molina resumed supervision of 25 Plaintiff in February 2016 and remained her supervisor until Plaintiff was terminated on 26 June 1, 2016 after her contract was not renewed. 27 Plaintiff’s claims revolve around several alleged acts that Plaintiff argues 28 constituted sexual harassment. Defendant does not deny that these events occurred 1 for purposes of the Motion for Summary Judgment, but rather contests their 2 significance. Each of these incidents occurred between June and November 2014: 3 • Molina sent Plaintiff a text message inviting her to Reno, NV where he was 4 spending the weekend, noting that there was a hot tub in the room. (Devine 5 Dep. 34:19–21.) 6 • Molina invited Plaintiff to join him for lunch or coffee, but she was the only 7 staff member Molina asked to do so. (First Am. Compl. (“FAC”) (ECF No. 12) 8 ¶ 12; Devine Dep. 38:18–41:12.) 9 • Molina would invite Plaintiff into his office to discuss work-related items 10 where a laptop would display naked women, a dating site used for “hooking 11 up,” and other inappropriate images. (Devine Dep. 44:20–45:22.) 12 • Molina asked Plaintiff about a tattoo on her wrist, and then noted that he 13 had a tattoo, which Plaintiff interpreted as a signal that she should ask to see 14 it, making her uncomfortable. (Id. 46:1–7.) At one point, Molina showed 15 Plaintiff a picture of a tattoo that covered the entirety of his back. (Id. 46:9– 16 13; 54:21–25; 56:17–24.) 17 • Molina commented that Plaintiff’s perfume smelled good and that a pair of 18 jeans Plaintiff was wearing “looked nice.” (Id. 59:21–25.) 19 • Molina asked that Plaintiff add him as a friend on Facebook; once she did, 20 he invited Plaintiff to “like” his Facebook photography page, which featured 21 a work study employee at the Veteran’s Center wearing “lingerie-type, 22 costume like, sexy-type attire.” (Id. 68:20–70:16.) 23 It is further undisputed that while Molina was deployed, Plaintiff did not see 24 him. (Id. 61:18-24.) Upon his return, however, Molina resumed supervision of Plaintiff 25 sometime in February 2016. At some point between February and March 2016, 26 Plaintiff raised a concern regarding a pay issue. (Id. 63:4–15.) On March 10, 2016, 27 Plaintiff overheard Molina making statements, which included foul language, to the 28 effect that Plaintiff had no tact, that she was stupid, and that she was replaceable. 1 (Devine Dep., Ex. D.) In response, the EEO manager suggested that Plaintiff and 2 Molina engage in a mediation, which resulted in an agreement that Molina was not to 3 speak about Plaintiff in the future. (Devine Dep., 81:18–82:14; 84:17-21.) 4 In April 2016, Plaintiff filed an anonymous, online complaint with the Veterans 5 Affairs Office of the Inspector General regarding Molina viewing pornography at work. 6 (Devine Dep., 99:11–15.) Molina’s supervisor, Regional Manager Steven Reeves, 7 assigned an Associate Regional Manager to investigate the allegations in the 8 complaint. (Boesch Decl. (ECF No. 30-3); Reeves Dep. 21:25–22-7.) As part of the 9 investigation, ten employees were interviewed, the names of which were included in a 10 report Manager Reeves received on May 10, 2016. (Reeves Depo, Ex. B.) The report 11 concluded that the allegation that Molina viewed inappropriate material during work 12 hours could not be substantiated (id. at 2), and Molina was not subject to discipline as 13 a result. (Devine Decl. (ECF No. 31-1) ¶ 28). 14 Around that time, Plaintiff’s temporary appointment was expiring, and was not 15 subject to renewal such that she would be terminated unless her position was made 16 permanent. (Devine Dep. 162:17–19; Id., Ex. G; Boesch Decl., Ex. 4 (Inman Decl.) at 3.) 17 In May 2016, Molina asked Regional Manager Reeves to make Plaintiff a permanent 18 employee, along with two other temporary readjustment counselors whose temporary 19 appointments were expiring. (Def.’s Separate Statement of Undisputed Facts (ECF 30- 20 2) No. 8.) While Plaintiff disputes this was the actual reason, Reeves testified that he 21 did not offer permanent positions to Plaintiff and another male counselor because 22 they failed to meet productivity standards for counselors. (See Def.’s Reply to Plf’s 23 Separate Statement of Disputed Material Facts and Additional Undisputed Material 24 Facts (ECF 33-1) No. 9.) As a result, Devine’s temporary appointment ended on July 1, 25 2016. 26 II. PROCEDURAL BACKGROUND 27 Relevant here, Plaintiff filed her First Amended Complaint on November 5, 28 2019 against both the VA and Molina. The Court dismissed the Third, Fifth, and 1 Seventh Causes of Action, and the Fourth Cause of Action as to Defendant Molina on 2 February 22, 2021, (ECF No. 24), and the case proceeded against the VA on the First 3 Cause of Action for gender discrimination, the Second Cause of Action for sexual 4 harassment, the Fourth Cause of Action for retaliation, and the Sixth Cause of Action 5 for wrongful termination, each alleging violations of Title VII. (See generally, FAC.) On 6 November 10, 2022, Defendants filed for summary judgment, (ECF No. 30), which is 7 fully briefed. (See Pl.’s Opp’n (ECF No. 31); Def.’s Reply (ECF No. 33)). The matter 8 was submitted without oral argument (ECF No. 32), and the case was later transferred 9 to the undersigned for decision (ECF No. 34). 10 III. LEGAL STANDARDS GOVERNING SUMMARY JUDGMENT 11 The Federal Rules of Civil Procedure provide that summary judgment is 12 appropriate when “there is no genuine dispute as to any material fact and the movant 13 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. 14 Catrett, 477 U.S. 317, 322 (1986). One of the key purposes of Rule 56 is to dispose of 15 factually unsupported claims or defenses. Celotex, 477 U.S. at 325. Therefore, the 16 “threshold inquiry” is whether “there are any genuine factual issues that properly can 17 be resolved only by a finder of fact because they may reasonably be resolved in favor 18 of either party[,]” or, conversely, “whether it is so one-sided that one party must prevail 19 as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–52 (1986). But 20 “the mere existence of some alleged factual dispute between the parties will not 21 defeat an otherwise properly supported motion for summary judgment[.]” Id. at 247– 22 48. “Only disputes over facts that might affect the outcome of the suit under the 23 governing law will properly preclude the entry of summary judgment.” Id. at 248. 24 On summary judgment, the moving party always bears the initial responsibility 25 of informing the court of the basis for the motion and identifying the portions of the 26 record “which it believes demonstrate the absence of a genuine issue of material fact.” 27 Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden 28 then shifts to the opposing party, which “must establish that there is a genuine issue of 1 material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 585 2 (1986). To meet its burden, either party must “(A) cit[e] to particular parts of materials 3 in the record, . . . or (B) show[ ] that the materials cited do not establish the absence or 4 presence of a genuine dispute, or that an adverse party cannot produce admissible 5 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 6 For the non-moving party to succeed and avoid summary judgment, the non- 7 moving party “must do more than simply show that there is some metaphysical doubt 8 as to the material facts.” Matsushita, 475 U.S. at 586. The non-moving party must put 9 forth more than “a scintilla of evidence in support of the [party’s] position . . . .” Liberty 10 Lobby, 477 U.S. at 252. Rather, the non-moving party must produce enough evidence 11 such that “the ‘specific facts’ set forth by the nonmoving party, coupled with 12 undisputed background or contextual facts, are such that a rational or reasonable jury 13 might return a verdict in its favor based on that evidence.” T.W. Elec. Serv., Inc. v. Pac. 14 Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, for the 15 moving party to succeed, the court must conclude that no rational trier of fact could 16 find for the non-moving party. Matsushita, 475 U.S. at 587. However, so as not to 17 “denigrate the role of the jury[,] . . . [c]redibility determinations, the weighing of the 18 evidence, and the drawing of legitimate inferences from the facts are jury functions,” 19 and so the court draws all reasonable inferences and views all evidence in the light 20 most favorable to the non-moving party. Liberty Lobby, 477 U.S. at 255; see 21 Matsushita, 475 U.S. at 587–88. 22 IV. ANALYSIS 23 A. Plaintiff’s Sexual Discrimination Claims Fail 24 Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment 25 practice for an employer to . . . discharge any individual, or otherwise to discriminate 26 against any individual with respect to his compensation, terms, conditions, or 27 privileges of employment, because of such individual’s race, color, religion, sex, or 28 national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). There are three types of sex 1 discrimination claims that arise under Title VII: “disparate treatment (adverse 2 employment actions motivated by sex); quid pro quo sexual harassment (conditioning 3 employment benefits on submission to sexual advances); and hostile work 4 environment harassment (unwelcome sexual advances so severe as to alter the terms 5 and conditions of employment).” Maner v. Dignity Health, 9 F.4th 1114, 1120 (9th Cir. 6 2021) (citations omitted). Plaintiff appears to allege a disparate treatment claim and a 7 hostile work environment claim. (Opp’n at 9.) 8 i. Disparate Treatment Claim 9 To establish a disparate treatment claim, Plaintiff must first show a prima facie 10 case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). 11 To make this showing, she must show that (1) she is a member of a protected class; (2) 12 she was qualified for the position; (3) she experienced an adverse employment action; 13 and (4) similarly situated individuals outside her protected class were treated more 14 favorably. Berry v. Dep’t of Soc. Servs., 477 F.3d 642, 656 (9th Cir. 2006). If Plaintiff 15 succeeds in making out a prima facie case, the burden shifts to Defendant to offer a 16 nondiscriminatory reason for its action, and if such a reason is offered, the burden 17 shifts back to Plaintiff to show that the proffered reason is a pretext for discrimination. 18 McDonnell Douglas, 411 U.S. at 804. As to the prima facie case, the parties only 19 disagree as to whether Plaintiff has shown that similarly situated individuals were 20 treated differently. 21 The Court concludes that Plaintiff has failed to show that similarly situated 22 individuals outside her protected class were treated more favorably. Plaintiff identifies 23 two other individuals who were, like Plaintiff, temporary counselors: Lee Field (male) 24 and Krista Van Zeyl (female). (Opp’n at 8.) Critically, while Defendant declined to 25 offer a permanent position to Field, Defendant did offer a permanent position to Van 26 Zeyl. Plaintiff does not point to a male candidate who was treated more favorably. 27 Plaintiff points out that her productivity percentage (82%) was much more favorable 28 than Field’s (22%) but both were refused a permanent position, while the other 1 woman, Van Zeyl, was offered a permanent position with a 106% productivity rating. 2 And while Plaintiff complains that she was not advised of performance expectations 3 when Van Zeyl was, that another female candidate was treated more favorably than 4 Plaintiff is irrelevant in establishing a prima facie case. That the other female 5 candidate received higher pay is similarly irrelevant to whether Plaintiff was treated 6 differently because of her sex. At bottom, Plaintiff cannot show that a similarly 7 situated individual outside of her protected class, that is Fields, was treated more 8 favorably. 9 In short, Plaintiff has failed to establish a prima facie case of disparate treatment 10 due to her sex, and the Court GRANTS summary judgement as to the First Cause of 11 Action related to disparate treatment. 12 ii. Plaintiff Failed to Timely Exhaust Her Administrative Remedies as 13 to the Hostile Work Environment Claim 14 Prior to bringing a suit for a hostile work environment, Title VII requires that a 15 plaintiff employed by an executive agency, including the Department of Veterans 16 Affairs (among other federal employers), contact an EEO Counselor within 45 days of 17 an alleged adverse action. 29 C.F.R. §§ 1614.103(a), 1614.105(a)(1). It is undisputed 18 that Plaintiff contacted her EEO Officer on June 22, 2016. (Devine Dep., Ex. D.) 19 Accordingly, any adverse action must have occurred on or after May 8, 2016. 20 In analyzing whether actions are timely, the Supreme Court has distinguished 21 between “discrete discriminatory acts and hostile work environment claims.” National 22 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). As to the former, a 23 “discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Id. 24 Furthermore, each discrete discriminatory act “starts a new clock for filing charges 25 alleging that act.” Id. at 113. Hostile work environment claims, however, by their 26 nature involve “repeated conduct” and can rarely be premised on a discrete act of 27 harassment. Id. at 103. Accordingly, so long as any act that contributes to the claim 28 1 falls within the limitations period, “the entire time period of the hostile environment 2 may be considered by a court for the purposes of determining liability.” Id. at 117. 3 Plaintiff argues two theories as to why her claims related to sex discrimination 4 are timely, both of which fail, albeit for different reasons. First, she alleges that the 5 VA’s refusal to extend a permanent position on May 18, 2016 is a discrete act of 6 discrimination that unquestionably happened within the limitations period. (Opp’n at 7 9.) While this claim is timely, as discussed above, she has failed to state a claim on that 8 basis. 9 Second, Plaintiff alleges that Molina created a hostile work environment, and 10 that at least one act that contributed to that environment occurred after May 8, 2016. 11 But Plaintiff has not shown any triable issue of fact by which a reasonable jury could 12 conclude this to be the case. While a reasonable jury might well conclude that the 13 actions that allegedly took place in 2014 were sufficient to create a hostile work 14 environment, Plaintiff fails to produce any evidence that any conduct that contributed 15 to a hostile work environment occurred after May 8, 2016. Plaintiff cites a declaration 16 she signed in support of her opposition to summary judgment, in which she states that 17 the specific incidents of harassment that took place in 2014 “continued until the end 18 of my two-year employment term.” (Devine Decl. ¶ 8.) But this self-serving, 19 conclusory, and generic statement—which conflicts with her prior deposition—is 20 insufficient to create a triable issue of material fact. See F.T.C. v. Publ'g Clearing 21 House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). 22 Moreover, the only specific incident that Devine claims occurred in 2016 does 23 not represent a continuation of the sexually-harassing conduct. Plaintiff states that 24 after Molina returned from his deployment, there was an incident in which Molina said 25 things such as “Who the fuck walks in their boss’s office like that with no tact;” “If she’s 26 too fucking stupid to put her leave in correctly. . . .”; “I get the impression she thinks 27 we don’t give a fuck about her pay;” and “I don’t need her, she’s replaceable.” 28 (Devine Decl. ¶ 18.) First, these comments occurred on March 10, 2016, outside of 1 limitations period. (Id.) Second, and more significantly, no reasonable trier of fact 2 could conclude that these comments are a component act of the hostile work 3 environment claim. In her deposition, Plaintiff discussed this incident related to her 4 pay, and did not testify that it was related to her sex or gender. Not only is there no 5 evidence that Plaintiff subjectively considered this sexual harassment, but there is 6 nothing inherent about the statements that a reasonable juror could objectively 7 conclude was sexual in nature. Cf. Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 8 687 (9th. Cir. 2017) (noting that a plaintiff “must show that the work environment was 9 both subjectively and objectively hostile”). Since there is “nothing to suggest 10 [Molina’s] statements . . . were sexually charged,” the alleged statements from 2016 11 are not enough to show that the sexually hostile environment that occurred in 2014 12 continued to March 2016, never mind to the limitations date of May 8, 2016. See 13 Porter v. California Dep't of Corr., 419 F.3d 885, 893 (9th Cir. 2005). Accordingly, the 14 claims are time-barred and the Court GRANTS summary judgment as to Plaintiff’s 15 Second Cause of Action related to sexual harassment. 16 B. Plaintiff’s Retaliation and Wrongful Termination Claims Fail 17 Title VII prohibits discrimination against an employee because that employee 18 has opposed an employment practice made unlawful by Title VII. 42 U.S.C.§ 2000e- 19 2(a); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006). Plaintiff alleges 20 that she was not offered a permanent position in retaliation for failing to submit to her 21 supervisor’s sexual demands and for filing a complaint related to her supervisor’s 22 inappropriate use of his computer to view sexually explicit material. (See FAC ¶¶ 44– 23 69, 82–93.) To make out a prima facie case of retaliation under Title VII, Plaintiff must 24 put forth evidence sufficient to show (1) that she engaged in a protected activity; (2) 25 she suffered an adverse employment action, and (3) that there was a causal 26 connection between the protected activity and the employment decision. Raad v. 27 Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196–97 (9th Cir. 2003). As with 28 the disparate impact claim, once Plaintiff has set out a prima facie claim, the burden- 1 shifting framework of McDonnell Douglas is appropriate, Villiarimo v. Aloha Island Air, 2 Inc., 281 F.3d 1054, 1064 (9th. Cir. 2002), such that burden shifts to the employer to 3 articulate some legitimate, nondiscriminatory reason for the adverse employment 4 decision. Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 5 1986). If the employer is successful, “the plaintiff must then prove by a 6 preponderance of the evidence that the proffered reasons are pretexts for retaliation 7 or that a discriminatory reason more likely motivated the employer's action.” Id. 8 i. Plaintiff Has Made Out a Prima Facie Case of Retaliation 9 In making out a prima facie case, Defendant does not argue that Plaintiff’s 10 complaint to the EEO officer regarding the sexually explicit material was a protected 11 activity, and that the failure to hire Plaintiff was an adverse employment action. Rather, 12 Defendant argues that Plaintiff has failed to put forward any evidence of a causal 13 connection between the two. (Opp’n at 19.) 14 Plaintiff has put forward sufficient evidence through which a jury could infer 15 causation. While a causal connection may be inferred from “proximity in time 16 between the protected action and the allegedly retaliatory decision,” Yartzoff v. 17 Thomas, 809 F.2d 1371, 1371 (9th Cir. 1987), “the plaintiff must make some showing 18 sufficient for a reasonable trier of fact to infer that the defendant was aware that the 19 plaintiff had engaged in protected activity,” Raad, 323 F.3d at 1197 (citing Cohen v. 20 Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)); see also Dawson v. Entek Int’l, 630 21 F.3d 928, 936 (9th Cir. 2011) (“The causal link can be inferred from circumstantial 22 evidence such as the employer’s knowledge of the protected activities and the 23 proximity in time between the protected activity and adverse action.”). 24 First, to the extent that Plaintiff’s claims were based on her failure to submit to 25 her supervisor’s sexual advances, given the significant amount of time between what 26 are alleged to have been his sexual advances and the adverse action — more than 15 27 months — this temporal proximity is too distant to establish a causal link. See Clark 28 Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (finding that 20 months is too 1 remote for establishing causation and citing cases in which even 3 and 4 months were 2 too remote). 3 To the extent that Plaintiff claims retaliation based on her complaint related to 4 her supervisor viewing sexually explicit material on his computer, while Plaintiff has 5 failed to provide any evidence that the decisionmaker – Reeves – knew that Plaintiff 6 was behind the complaint, there is evidence from which a jury could conclude that 7 Reeves knew that Plaintiff participated in the investigation of the complaint. It is 8 undisputed that the initial complaint was online and anonymous. (Def.’s SUF 3.) 9 While Reeves assigned an investigator, Christopher Shelby, to conduct a fact-finding 10 investigation (Reeves Dep. 22:3–7), Reeves testified in his deposition that he did not 11 learn that Plaintiff was the complainant until the EEO process for Plaintiff’s sexual 12 harassment and discrimination claims occurred (Reeves Dep. 22:5–23:1), which was 13 well after Plaintiff’s termination. 14 However, a reasonable jury could conclude that Reeves knew of Plaintiff’s 15 participation in the investigation about the anonymous complaint, and that she was 16 terminated as a result of that participation. Making statements in the context of an 17 EEO investigation is protected activity. 42 U.S.C. § 2000e-3(a). Here, it is undisputed 18 that “[Reeves] became aware of her involvement in the fact finding since he was the 19 management official who initiated it.” (Cline Decl. (ECF No. 31-2), Ex. 3 at 5.) While 20 the deposition itself does not indicate when Reeves learned of her involvement, in his 21 Declaration supporting the Motion for Summary Judgment, Reeves testifies that he 22 received a “May 10, 2016 report from Mr. Selby [the investigator] summarizing the fact 23 finding investigation.” (Reeves Decl. (ECF No. 30-4) ¶ 7; Reeves Dep., Ex. B.) That 24 report identifies the Plaintiff by name. (Reeves Dep., Ex. B.) And while the exact date 25 Reeves made the decision to terminate Plaintiff’s employment is unclear, it appears to 26 have been contemporaneous with reviewing this report. (See Reeves Decl. ¶ 8.) Thus, 27 a reasonable jury could conclude Reeves knew of Plaintiff’s participation in the 28 factfinding, and could infer from the fact that she was terminated shortly thereafter 1 that her participation in this protected activity was the cause of her termination. 2 Plaintiff has therefore set out a prima facie case of retaliation. 3 ii. Defendant Has Shown Legitimate, Nondiscriminatory Reasons for 4 Plaintiff’s Discharge 5 Having made out a prima facie case of retaliation, the burden shifts to the 6 defendant to “articulate some legitimate, nondiscriminatory reason for the employees’ 7 rejection.” McDonnell Douglas, 411 U.S. at 802. Defendant has met that burden. As 8 mentioned above there were three temporary readjustment counselors: Plaintiff, Lee 9 Field (male) and Krista Van Zeyl (female). While Molina recommended that Reeves 10 make all three permanent employees, Reeves only extended Van Zeyl’s contract. 11 According to Reeves’s deposition testimony, counselors had to spend 50 percent of 12 their work time on direct service with clients. (Reeves Dep. 25:17–25.) Moreover, 13 because therapy was often provided in a group setting, there were required to be 1.5 14 visits for every clinical hour worked to account for the two group sessions counsellors 15 were expected to conduct each week. (Id. 26:1–16.) Reeves testified that he “didn’t 16 convert people from temporary to permanent who were unable to meet the standards 17 of the job.” (Id. 52:2–4.) Of the 855 visits with clients that were required by these 18 policies, Plaintiff conducted 705, or 82% of her expected level of productivity. (Id. 19 49:12–22.) Field, who also failed to meet the standards with a productivity rate of 20 22% (id. 50:12), was also terminated. Only Van Zeyl, who had a productivity rate of 21 106% (id. 51:3), was hired to a permanent position. Job performance, of course, is a 22 legitimate reason to make an adverse employment decision. Pinder v. Emp. Dev. 23 Dep’t, 227 F. Supp. 3d 1123, 1148 (E.D. Cal. 2017) (citing Aragon v. Republic Silver 24 State Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002)). 25 iii. Plaintiff Fails to Meet Her Burden in Showing the Proffered Reasons 26 are Pretextual 27 Having offered a legitimate, nondiscriminatory reason to justify Plaintiff’s 28 termination, the burden shifts back to the Plaintiff to show that this justification is 1 pretextual. McDonnell Douglas, 411 U.S. at 804. Plaintiff tries to cast doubt on 2 Defendant’s proffered justification by pointing to a declaration filed in support of her 3 opposition to summary judgment in which she states, in accordance with her 4 statements to the EEO officer: 5 When I was originally hired, I was never trained on the agency’s RCSNet program which was used for self-reporting 6 productivity/time tracking software. There were instances, in the beginning of my employment when my productivity 7 score was negatively impacted because my time was not 8 accurately recorded on the RCSNet program, not due to a failure in job performance. Despite numerous requests from 9 supervisors for training [all of which were ignored], fellow employee Sandy Moreno taught me how to use the system 10 so I could correct the accounting errors. I brought this 11 concern to both Mr. Molina and Mr. Doyle Sivils. Mr. Sivils advised me that he requested Mr. Reeves change the 12 performance review to “Exceptional” due to the accounting 13 error. 14 (Devine Decl. ¶ 5; id., Ex. A.) Devine argues that the failure to train her, coupled with 15 Moreno’s failure to correct the accounting issues, “casts a shadow on the validity of 16 the productivity rates themselves and suggests that poor productivity was merely 17 pretext for unlawful discrimination or retaliation.” (Opp’n at 14.) 18 This information is not enough to show that Reeves’s decision to terminate 19 Plaintiff based on her insufficient productivity was pretextual. Notably, Plaintiff does 20 not offer evidence that her productivity was in fact at the expected levels. Moreover, 21 in her statement to the EEO attached to her Declaration as Exhibit A, Plaintiff states, “I 22 finally corrected the issue after reviewing my productivity data from the beginning of 23 my employment” (Devine Decl., Ex. 1), undermining any suggestion that the 24 productivity numbers relied on by Reeves were in fact inaccurate. Nor does Plaintiff 25 offer any evidence of temporary employees who were retained even though they 26 were at a similar level productivity as Plaintiff. 27 In short, Plaintiff has provided no evidence from which a jury could find that the 28 decision to terminate Plaintiff was pretextual. Accordingly, the Court GRANTS 1 summary judgment as to the Fourth and Sixth Causes of Action, the retaliation-based 2 | claims. 3] V. CONCLUSION 4 IT IS HEREBY ORDERED THAT: 5 1. Defendant's Motion for Summary Judgment (ECF No. 30) is GRANTED. 6 2. The Clerk of Court is directed to enter judgment for Defendants and to close 7 | this case. 8 9 IT IS SO ORDERED. 10 | Dated: _September 20, 2024 “Daal J CoO □□□□ Hon. Daniel alabretta " UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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