1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRETT GARDNER, Case No. 20-cv-2172-MMA (RBB)
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY 14 KENNETH J. BRAITHWAITE, JUDGMENT 15 Secretary, Department of the Navy, Defendant. [Doc. No. 28] 16 17 18 Plaintiff Brett Gardner (“Plaintiff”) brings this action against Defendant Carlos Del 19 Toro,1 in his official capacity as the Secretary of the Department of the Navy, 20 (“Defendant”) asserting (1) race, national origin, and/or ancestry discrimination; and 21 (2) retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 22 U.S.C. § 2000e, et seq. See Doc. No. 1 (“Compl.”). Defendant moves for summary 23 judgment in its entirety. See Doc. No. 28. Plaintiff filed an opposition, to which 24 Defendant replied. See Doc. Nos. 35, 36. The Court found this matter suitable for 25 determination on the papers and without oral argument pursuant to Civil Local Rule 26
27 1 Carlos Del Toro is now the Secretary of the U.S. Department of the Navy and is automatically 28 1 7.1.d.1. See Doc. No. 32 at 2. For the reasons set forth below, the Court GRANTS IN 2 PART and DENIES IN PART Defendant’s motion for summary judgment. 3 I. BACKGROUND2 4 The following facts are not reasonably in dispute.3 Plaintiff, a white, non-Hispanic 5 male, initiated this action for (1) race, national origin, and/or ancestry discrimination, and 6 (2) retaliation he allegedly experienced during his employment at Fleet Readiness 7 Southwest (“FRCSW”) in North Island, California. Doc. No. 36-1 (“Defendant’s 8 Separate Statement of Undisputed Material Facts” or “DSS”) at Nos. 1, 72. Plaintiff’s 9 claims center on the decision not to promote him to a Supervisory Electronics Engineer, 10 GS-14, position in July 2018. DSS at Nos. 14, 38. 11 During the relevant period, Plaintiff worked as an Avionics Engineer, GS-13, at 12 FRCSW. DSS at No. 1. As a Senior Avionics Engineer, Plaintiff was assigned to the 13 F/A-18 Hornet Fleet Support Team. DSS at No. 2. Plaintiff also had a collateral duty on 14 the Advanced Technology and Innovation (“ATI”) Team, which he eventually took over 15 as his primary role in 2016. DSS at No. 1. At the beginning of 2018, Plaintiff reported to 16 Avionics Division Manager David Okano. DSS at No. 3. Plaintiff’s second-line 17 supervisor was Claudia Garcia, who was the Department Head of Avionics (Code 4.5) 18 and Propulsion and Power (Code 4.4). Id. Plaintiff also reported to Chris Root on his 19
20 21 2 These material facts are taken from Defendant’s Separate Statement of Undisputed Material Facts and Plaintiff’s responses thereto, see Doc. No. 36-1 at 1–83, Plaintiff’s Statement of Undisputed Material 22 Facts and Defendant’s responses thereto, see Doc. No. 36-1 at 84–129, as well as the parties’ supporting declarations and exhibits. 23 3 In his response to Defendant’s Separate Statement of Undisputed Material Facts, Plaintiff disputes many of Defendant’s statements of fact. See Doc. No. 35-4. However, many of Plaintiff’s explanations 24 are largely irrelevant. For example, in response to the statement “Ms. Garcia provided a Memorandum 25 addressed to the [Advisory Panel] chairperson (David Okano), explaining the Advisory Panel’s duties, and enclosing a sample Advisory Panel recommendation memorandum that lists the top three candidates 26 in rank order, the applicable position description, and a checklist for advisory panel members[,]” Plaintiff states, “Undisputed that Garcia provided the memorandum. Disputed that the memorandum 27 comes anywhere close to immunizing the Defendant from liability.” DSS No. 20. This is not a valid basis for disputing the fact. To the extent Plaintiff purports to dispute a statement but does not provide a 28 1 ATI projects. Id. 2 Garcia is the “champion” of the Navy’s diversity action team called the Hispanic 3 Engagement Action Team (“HEAT”). DSS at No. 77. There are several different 4 diversity action teams at FRCSW, including, for instance, groups that represent African 5 American employees, Asian Pacific employees, disabled individuals, and members of the 6 LGBTQ community. DSS at No. 78. Each diversity action team consists of several 7 employees, who appoint a senior leadership member to help promote, among other 8 things, the growth and development of employees, and to serve as the main point of 9 contact for leadership. Id. 10 In July 2018, Plaintiff applied for a vacant Supervisory Electronics Engineer, GS- 11 14 position. DSS at No. 14. The selecting official for the position was Plaintiff’s 12 supervisor, Claudia Garcia. DSS at No. 3, 15. Garcia appointed an Advisory Panel. Id. 13 In general, the purpose of an Advisory Panel is to review the applicable position 14 description, review and score the applicants’ resumes, conduct and score the interviews, 15 and provide the selecting official with the panel’s recommendation based on the overall 16 scores of the candidates and documentation of their observed strengths and weaknesses. 17 DSS at No. 22. Garcia designated David Okano as the chairperson of the Advisory Panel 18 for the vacant Supervisory Electronics Engineer, GS-14 position. DSS at No. 16. Okano 19 selected David Rolke and Daniel Shockley to be on the Advisory Panel with him. Id. At 20 the time, Rolke was a Supervisory Electronics Engineer, GS-15, at Fleet Readiness 21 Center Southeast, located in Jacksonville, Florida, and Shockley was a Test Program Set 22 Development Team Leader, GS-14, at FRCSW. DSS at No. 17. Okano identifies as 23 Asian, and Rolke and Shockley identify as white Caucasian. DSS at No. 19. Garcia is 24 Hispanic. Doc. No. 36-1 at 111 (“Plaintiff’s Separate Statement of Undisputed Material 25 Facts and Defendant’s Response” or “PSS”) at No. 37. 26 Garcia provided a Memorandum addressed to Okano explaining the Advisory 27 Panel’s duties, and enclosing a sample Advisory Panel recommendation memorandum 28 that lists the top three candidates in rank order, the applicable position description, and a 1 checklist for the advisory panel members. DSS at No. 22. After the Advisory Panel 2 reviewed and scored the resumes, they selected two candidates to proceed with 3 interviews—Plaintiff and German Lopez, both of whom were GS-13 Engineers at the 4 time. DSS at No. 25. Lopez is Hispanic. PSS at No. 36. On July 17, 2018, Garcia 5 emailed Okano a draft of the interview questions. DSS at No. 26. In her email, she 6 stated “[f]eel free to modify as necessary.” Id. She also said he could change the order 7 of the questions. Id. 8 On the day of their interviews, Plaintiff and Lopez were provided four questions 9 fifteen minutes before their interviews. DSS at No. 32. Both were given twenty minutes 10 each to provide their interview responses to the Advisory Panel, including answering an 11 additional question that was asked live during the interview. Id. After completing the 12 interviews, the Advisory Panel tallied the resume and interview scores for both 13 applicants. DSS at No. 34. Plaintiff received a score of 83.3 for his resume and 58.8 for 14 his interview, with a total score of 142.1. Lopez received a score of 71.9 for his resume 15 and 85.0 for his interview, with a total score of 156.9. Id. 16 On July 19, 2018, the Advisory Panel provided a Memorandum to Garcia, 17 recommending the top two candidates, with German Lopez listed in first place and 18 Plaintiff in second place. DSS at No. 35. All three panelists signed the recommendation 19 form. Id. Garcia ultimately selected Lopez for the Supervisory Electronics Engineer, 20 GS-14, position. DSS at No. 38. Upon being contacted by Plaintiff for feedback, Okano 21 and Shockley told Plaintiff that Lopez scored higher on the interview question about the 22 Code 4.5 national strategies and initiatives and on the blind question. DSS at No. 40. 23 On August 7, 2018, Plaintiff initiated contact with an EEO counselor, alleging he 24 had been discriminated against based on race and ethnicity when he was not selected for 25 the Supervisory Electronics Engineer, GS-14, position. DSS at No. 58. 26 On August 17, 2018, Garcia, through her administrative assistant, sent an email to 27 relevant employees regarding the restructuring of the Avionics leadership team. DSS at 28 No. 41. Lopez was assigned to supervise the F/A-18 team, and Okano was moved to the 1 E-2/C-2 team. Id. Garcia also reassigned Plaintiff under her supervision, along with two 2 other employees who previously did not report directly to Garcia, John Manry and 3 German Lopez. DSS at No. 43. 4 On August 28, 2018, EEO Counselor Joseph Becker emailed Garcia. Id. The 5 subject line of the email was “ADR.” Id. On August 28, 2018, Plaintiff sent an email to 6 Donald McClenny, and carbon copied Garcia and other employees, stating that he was 7 “engaging my 4.5 avionics and 4.4 [power and propulsion] national leads . . .” DSS at 8 No. 44. On August 29, 2018, Garcia responded to Plaintiff’s email, stating that Plaintiff 9 needed to talk to her before contacting the 4.4 and 4.5 national leads, and stating “halt 10 your actions to move this forward until we meet.” DSS at No. 45. On August 30, 2018, 11 Garcia sent a follow-up email to Plaintiff, stating that she would like more coordination 12 and communication so that she is not left out of the loop, and that being copied on emails 13 after the fact is not sufficient. DSS at No. 46. On September 7, 2018, Garcia emailed 14 Chris Root, stating that she met with Plaintiff that day and told Plaintiff that she would 15 like to stop all new 4.4 and 4.5 ATI initiatives that are being considered by the ATI 16 Team. DSS at No. 47. 17 On November 13, 2018, Plaintiff filed his formal EEO Complaint. DSS at No. 67. 18 In his EEO complaint, Plaintiff alleged that he was subject to discrimination based on his 19 race when he was not promoted and that Plaintiff had been subject to reprisal based on 20 his EEO activity. See Doc. No. 28-3 (“Formal EEO Complaint of Discrimination”) Ex. 21 3. 22 Plaintiff never spoke to Ms. Garcia about his EEO claim. DSS at No. 66. Plaintiff 23 withdrew his EEO hearing request before the final decision and brought the instant civil 24 action on November 5, 2020. DSS at Nos. 70–72. 25 II. LEGAL STANDARD 26 “A party may move for summary judgment, identifying each claim or defense—or 27 the part of each claim or defense—on which summary judgment is sought. The court 28 shall grant summary judgment if the movant shows that there is no genuine dispute as to 1 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 2 P. 56(a). The party seeking summary judgment bears the initial burden of establishing 3 the basis of its motion and of identifying the portions of the declarations, pleadings, and 4 discovery that demonstrate absence of a genuine issue of material fact. See Celotex Corp. 5 v. Catrett, 477 U.S. 317, 323 (1986). The moving party has “the burden of showing the 6 absence of a genuine issue as to any material fact, and for these purposes the material it 7 lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S. 8 H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if it could affect the 9 “outcome of the suit” under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 10 242, 248 (1986). A dispute about a material fact is genuine if there is sufficient evidence 11 for a reasonable jury to return a verdict for the non-moving party. See id. 12 If the moving party meets its burden, the nonmoving party must go beyond the 13 pleadings and, by its own evidence or by citing appropriate materials in the record, show 14 by sufficient evidence that there is a genuine dispute for trial. See Celotex, 477 U.S. at 15 324. The nonmoving party “must do more than simply show that there is some 16 metaphysical doubt as to the material facts . . . .” Matsushita Elec. Indus. Co. v. Zenith 17 Radio Corp., 475 U.S. 574, 587 (1986). A “scintilla of evidence” in support of the 18 nonmoving party’s position is insufficient; rather, “there must be evidence on which the 19 jury could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252. 20 Moreover, “a party cannot manufacture a genuine issue of material fact merely by 21 making assertions in its legal memoranda.” S.A. Empresa de Viacao Aerea Rio 22 Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Further, in 23 assessing a party’s motion for summary judgment, a “district court need not examine the 24 entire file for evidence establishing a genuine issue of fact, where the evidence is not set 25 forth in the opposing papers with adequate references so that it could conveniently be 26 found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 27 2001); Fed. R. Civ. P. 56(c)(3) (a district court “need only consider only the cited 28 materials”); see also Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1 1988) (district courts are “not required to comb the record to find some reason to deny a 2 motion for summary judgment”). Rather, it is the obligation of each party to cite to 3 “particular parts of materials in the record” or otherwise show that “the materials cited do 4 not establish the absence or presence of a genuine dispute” in their briefing. Fed. R. Civ. 5 P. 56(c)(1). However, “[a]s a general matter, the plaintiff in an employment 6 discrimination action need produce very little evidence in order to overcome an 7 employer’s motion for summary judgment.” Schechner v. KPIX-TV, 686 F.3d 1018, 8 1022 (9th Cir. 2012). 9 III. DISCUSSION 10 Plaintiff claims that he was subjected to disparate treatment by Garcia on the basis 11 of his “race, national origin, and/or ancestry discrimination” when he was not selected for 12 a Supervisory Electronics Engineer, GS-0885-14 position.4 See Compl. ¶¶ 5, 9, 12. 13 Additionally, Plaintiff alleges that he was retaliated against by Garcia for initiating and 14 filing an EEO complaint against her. Id. ¶ 16. Defendant movies for summary judgment 15 in its entirety. See Doc. No. 28. Accordingly, the Court addresses each of Plaintiff’s 16 claims in turn. 17 A. Discrimination Under Title VII for Non-Selection 18 Title VII is the exclusive remedy for claims of employment discrimination by 19 federal employees. See Brown v. GSA, 425 U.S. 820, 829–35 (1976); Taylor v. Geithner, 20 703 F.3d 328, 333 (9th Cir. 2013). Title VII prohibits consideration of “race, color, 21 religion, sex, or national origin in employment practices,” thereby establishing protected 22 classes. 42 U.S.C. § 2000e-2(m). Discrimination in the form of disparate treatment 23 occurs when, predicated upon a particular trait, an employee receives treatment less 24 25 4 In his Complaint, Plaintiff alleges that he was discriminated against because of his “race, national 26 origin, and/or ancestry discrimination.” Compl. ¶ 22. However, during his sworn deposition, Plaintiff testified that his discrimination claim is based solely on him being white and non-Hispanic. See Doc. 27 No. 28-3 (“Plt. Depo.”) Ex. 1 at 180:22–25, 181:8–16. Moreover, the parties’ summary judgment filings only address race and not national origin or ancestry discrimination. The Court therefore analyzes 28 1 favorable than other employees. See Wood v. City of San Diego, 678 F.3d 1075, 1081 2 (9th Cir. 2012). In relevant part, Title VII’s disparate treatment provision provides: 3 “[A]n unlawful employment practice is established when the complaining party 4 demonstrates that race, color, religion, sex, or national origin was a motivating factor for 5 any employment practice, even though other factors also motivated the practice.” 42 6 U.S.C. § 2000e-2(m). 7 Under the McDonnell Douglas framework,5 “a plaintiff alleging disparate 8 treatment under Title VII must first establish a prima facie case of discrimination.” 9 Chuang v. University of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000) (citing 10 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “To establish a prima 11 facie case, plaintiffs must offer evidence that gives rise to an inference of unlawful 12 discrimination,” which they may do with 13 14 circumstantial evidence by showing: (1) that they are members of a protected class; (2) that they were qualified for their positions and performing their jobs 15 satisfactorily; (3) that they experienced adverse employment actions; and (4) 16 that similarly situated individuals outside their protected class were treated more favorably, or other circumstances surrounding the adverse employment 17 action give rise to an inference of discrimination. 18 19 Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citations, internal 20 quotation marks, and brackets omitted). “At the summary judgment stage, the requisite 21 22 23 5 “For a prima facie case of race discrimination and retaliation under Title VII, Plaintiff “must offer evidence that ‘gives rise to an inference of unlawful discrimination,’ either through the framework set 24 forth in McDonnell Douglas Corp. v. Green or with direct or circumstantial evidence of discriminatory 25 intent.” Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004). Here, Plaintiff has not produced “direct or circumstantial evidence of discriminatory intent demonstrating that a discriminatory 26 reason more likely than not motivated the employer.” See Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2009) (citation omitted). Moreover, Plaintiff appears to accede to the McDonnell Douglas framework 27 given that his opposition largely focuses on the issue of pretext. See generally Doc. No. 35. Accordingly, the Court assesses Plaintiff’s claims under the burden-shifting framework set forth in 28 1 degree of proof necessary to establish a prima facie case is minimal . . . .” Lyons v. 2 England, 307 F.3d 1092, 1112 (9th Cir. 2002) (citation and quotation marks omitted). If 3 Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce 4 evidence that Plaintiff “was rejected, or someone else was preferred for a legitimate, 5 nondiscriminatory reason.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 6 (1981). If Defendant meets this burden, Plaintiff must show that the articulated reason is 7 pretextual “‘either directly by persuading the court that a discriminatory reason more 8 likely motivated the employer or indirectly by showing that the employer’s proffered 9 explanation is unworthy of credence.’” Chuang, 225 F.3d at 1123–24 (quoting Texas 10 Dep’t of Community Affairs, 450 U.S. at 256). 11 1. Plaintiff’s Prima Facie Case of Discrimination 12 In the instant case, Defendant does not appear to dispute that Plaintiff pleads a 13 prima facie case of discrimination under Title VII: Plaintiff belongs to a protected class; 14 he was qualified for the position; he was rejected for the position; and Defendant filled 15 the position with another employee who was outside of Plaintiff’s protected class. See 16 Doc. No. 28 at 10. Instead, Defendant urges that “the Navy had legitimate, non- 17 discriminatory reasons for the non-selection.” Doc. No. 28 at 10. Plaintiff, in turn, urges 18 that “numerous factors show that Garcia’s explanation for selecting” Lopez instead of 19 Plaintiff is “a pretext for discrimination.” Doc. No. 35 at 9. The Court concludes that 20 Plaintiff has stated a prima face case of discrimination under Title VII, and therefore 21 focuses its analysis on the latter parts of the McDonnell Douglas framework— 22 Defendant’s proffered explanation for its non-selection of Plaintiff, and Plaintiff’s 23 proffered proof of pretext. 24 2. Defendant’s Evidence of a Legitimate, Non-Discriminatory Reason for Plaintiff’s Non-Selection 25 26 As evidence of a legitimate, non-discriminatory reason for the non-selection of 27 Plaintiff, Defendant urges that it “followed an established, objective, and documented 28 procedure for evaluating the applicants[,]” see Doc. No. 28 at 10 (citing DSS at No. 15), 1 and that Plaintiff’s combined score of both his resume and interview was lower than 2 Lopez’s, see id. at 12–13 (citing DSS at Nos. 34–37, 40). Specifically, Defendant points 3 to its procedures for scoring resumes and conducting and scoring interviews, and Okano 4 and Shockley’s explanation that Lopez “demonstrated a better knowledge and 5 understanding of Code 4.5 national strategies and initiatives during the interview, as well 6 as a better demonstration of a competency manager’s responsibilities” than Plaintiff. See 7 Doc. No. 28 at 11–14 (citing DSS at No. 40). The Court concludes Defendant has met its 8 burden to put forth evidence of a legitimate, nondiscriminatory reason for Plaintiff’s non- 9 selection. See, e.g., Sorrell v. Wilkie, No. 17-cv-1573 DMS (NLS), 2018 U.S. Dist. 10 LEXIS 212122, at *14 (S.D. Cal. Dec. 14, 2018) (“Defendant has advanced a legitimate 11 and nondiscriminatory reason for Plaintiff’s non-selection. Plaintiff’s scores based on her 12 written application, interview, and writing exercises were lower than those who were 13 hired.”); Wilborn v. Ashcroft, 222 F. Supp. 2d 1192, 1198 (S.D. Cal. 2002) (concluding 14 that an employer proffered a legitimate, nondiscriminatory reason for not promoting the 15 employee plaintiff where another applicant possessed more supervisory experience and 16 had superior interview skills). 17 3. Plaintiff’s Evidence of Pretext 18 Having decided that Defendant has met its burden regarding a legitimate, non- 19 discriminatory explanation for its decision, in order to survive summary judgment, 20 Plaintiff must provide evidence that Defendant’s proffered nondiscriminatory reason is 21 merely a pretext for discrimination. Chuang, 225 F.3d at 1123–24. Plaintiff may meet 22 this burden of showing pretext “‘either directly by persuading the court that a 23 discriminatory reason more likely motivated the employer or indirectly by showing that 24 the employer’s proffered explanation is unworthy of credence.’” Id. (quoting Texas 25 Dep’t of Community Affairs, 450 U.S. at 256). 26 “Direct evidence is evidence which, if believed, proves the fact [of discriminatory 27 animus] without inference or presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d 28 1090, 1095 (9th Cir. 2005) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 1 (9th Cir. 1998)) (citations and internal quotations omitted) (alteration in original). 2 “Direct evidence typically consists of clearly sexist, racist, or similarly discriminatory 3 statements or actions by the employer.” Id. (citations omitted). 4 Despite Plaintiff’s argument to the contrary, he presents no direct evidence of 5 pretext. See id. Plaintiff has not cited any evidence of “clearly . . . racist [ ] or similarly 6 discriminatory statements or actions by Defendant.” See id. Instead, he proffers 7 circumstantial evidence of pretext. 8 Circumstantial evidence, in contrast [to direct evidence], is evidence that 9 requires an additional inferential step to demonstrate discrimination. It can take 10 two forms. First, the plaintiff can make an affirmative case that the employer is biased. . . . Second, the plaintiff can make his case negatively, by showing 11 that the employer’s proffered explanation for the adverse action is “unworthy 12 of credence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). 13
14 Coghlan, 413 F.3d at 1095. When evidence of pretext is circumstantial, rather than 15 direct, the plaintiff must come forward with “‘specific’ and ‘substantial’ facts to create a 16 triable issue” of fact as to discrimination. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 17 1222 (9th Cir. 1998). 18 As circumstantial evidence of pretext, Plaintiff points to the destruction of the 19 selection panel’s interview notes, Shockley’s statement under deposition that he did not 20 feel free to change the interview questions provided by Garcia, the fact that both Garcia 21 and Lopez identify as Hispanic, and the fact that Garcia was the HEAT champion. See 22 Doc. No. 35 at 12–24; see also PSS at No. 28, 30, 31, 37, 39, 40; Doc. 35-1 (“Shockley 23 Depo.”) Ex. 5 at 19:12–23:16, 27:11–18.6 Plaintiff also contends that Defendant’s 24
25 26 6 Defendant argues that evidence regarding the promotional selection process is “immaterial” because the “quality of the selection process, separate from any racial discrimination, is not at issue.” See, e.g., 27 PSS at No. 1. To be sure, Plaintiff brings only two claims in the instant case—discrimination for non- selection and retaliation—pursuant to Title VII. See Compl. However, for reasons discussed in Section 28 1 proffered explanation is pretextual as there is “evidence of pretext in the form of written 2 statements by a Federal Government program (HEAT) which Garcia has developed and 3 for which she is the top leader at FRCSW.” Doc. No. 35 at 4. According to Plaintiff, 4 “the stated purpose [of] the HEAT program is to get Hispanics promoted at FRCSW.” 5 Id. As support, Plaintiff points to the depositions of Becker and Shockley. See id. at 16 6 (citing PSS at No. 41, 44, 45). Becker testified as follows regarding HEAT’s purpose: 7 A: Yeah, so like with all the other groups, they hold events and they discuss 8 diversity in the workplace, being treated fairly. They would put together like, 9 they’re called brown bags where the group would get together and they would go ahead and educate each other on writing resumes and share advice on how 10 to go ahead and move up in the community. 11 Q. How to move up – 12
13 A. Or to – correct.
14 Q. To get promoted. 15 A. Yes. To get – to get promoted. 16
17 See Doc. No. 28-3 (“Becker Depo.”) Ex. 36 at 11:11–12:6. As to Shockley, he stated the 18 following regarding HEAT: “I believe it’s like other minority groups that help push 19 minorities into job promotions, or help them in their career” and that “part of” what 20 HEAT does is “assisting [minorities] to get promoted.” Shockley Depo. at 10:11–24. 21 The HEAT pamphlet Plaintiff proffers states that the “Mission Statement” of HEAT is as 22 follows: “Established to enable career advancement of Hispanics by identifying, 23 addressing, and overcoming barriers to employment, development and retention.” Doc. 24 No. 35-1 (“HEAT Pamphlet”) Ex. 8. at 169, 172. 25 Mindful of the Ninth Circuit’s ruling that “it should not take much for plaintiff in a 26 discrimination case to overcome a summary judgment motion[,]” Nigro v. Sears, Robuck 27 & Co., 784 F.3d 495, 499 (9th Cir. 2015) (citations omitted), the Court concludes that 28 Plaintiff has met his burden to produce evidence sufficient to raise a genuine issue of 1 material fact as to pretext and overcome summary judgment on the discrimination claim. 2 Accordingly, the Court DENIES Defendant’s motion for summary judgment as to 3 Plaintiff’s discrimination claim. 4 B. Retaliation Under Title VII 5 Retaliation against persons who assert rights under Title VII is prohibited. 42 6 U.S.C. § 2000e-3(a). In relevant part, Title VII states “[i]t shall be an unlawful 7 employment practice for an employer to discriminate against any of his employees or 8 applicants for employment . . . because he has made a charge, testified, assisted, or 9 participated in any manner in an investigation, proceeding, or hearing under this title[.]” 10 Id. 11 The McDonnell Douglas framework also applies to Plaintiff’s Title VII retaliation 12 claim. Surrell v. California Water Serv., Co., 518 F.3d 1097, 1105–06 (9th Cir. 2008).7 13 To establish a prima facie case of retaliatory conduct, Plaintiff must show that: (1) he 14 engaged in a protected activity; (2) he suffered an adverse employment action; and 15 (3) there is a causal connection between the protected activity and the adverse 16 employment action. Davis v. Team Elec. Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008) 17 (citation omitted). If the prima facie case is established, the burden shifts to the 18 defendant to set forth a legitimate, non-retaliatory reason for its actions, after which the 19 plaintiff must produce evidence to show that the stated reasons were a pretext for 20 retaliation. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); McGinest v. GTE 21 Service Corp., 360 F.3d 1103, 1124 (9th Cir. 2004). 22 An individual engages in protected activity under Title VII when the individual has 23 a “reasonable belief” that the employment practice being opposed is prohibited under 24 Title VII. Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 526 (9th Cir. 1994). “[A]n 25 adverse employment action is adverse treatment that is reasonably likely to deter 26 27 28 1 employees from engaging in protected activity.” Ray, 217 F.3d at 1237. “Title VII 2 retaliation claims may be brought against a much broader range of employer conduct than 3 substantive claims of discrimination.” See Campbell v. State Dep’t of Educ., 892 F.3d 4 1005, 1021 (9th Cir. 2018) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 5 53, 67–68 (2006)). A causal connection “can be inferred from circumstantial evidence 6 such as [a defendant’s] knowledge of the protected activities and the proximity in time 7 between the protected activity and the adverse action.” Dawson v. Entek Int’l, 630 F.3d 8 928, 936 (9th Cir. 2011). 9 1. Newly Raised Allegations of Retaliatory Conduct 10 As an initial matter, the Court considers Defendant’s argument that Plaintiff failed 11 to properly exhaust four of his allegations of retaliatory conduct. See Doc. No. 28 at 24– 12 25. The four allegations identified by Defendant are as follows: (1) in December 2019, 13 Plaintiff heard there was a rumor that he was drunk at the 2017 Maintenance Symposium; 14 (2) management refused to sign off on Plaintiff’s disability paperwork related to a 15 workplace injury from December 2019; (3) in 2020, management delayed Plaintiff’s 16 ability to work on projects for the Naval Enterprise Sustainment Technology Team 17 (“NESTT”); and (4) in August 2020, management denied Plaintiff’s request to telework 18 during the Covid-19 pandemic. See id. at 25–26. 19 Retaliation claims are discrete claims that must be timely filed. See AMTRAK v. 20 Morgan, 536 U.S. 101, 113–14 (2002). “Each discrete discriminatory act starts a new 21 clock for filing charges alleging that act.” Id. at 113. “In order to bring a Title VII claim 22 in district court, a plaintiff must first exhaust [his] administrative remedies.” Sommatino 23 v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (citing 42 U.S.C. § 2000e—16(c)). 24 Exhaustion of administrative remedies requires that the plaintiff “file a timely charge 25 with the EEOC, thereby allowing the agency time to investigate the charge.” Lyons, 307 26 F.3d at 1104 (citing 42 U.S.C. § 2000e-5(b)). Specifically, the plaintiff “must consult a[n 27 EEO] Counselor prior to filing a complaint in order to try to informally resolve the 28 matter” and “initiate contact with a Counselor within 45 days of the date of the matter 1 alleged to be discriminatory.” Id. at 1104 (citing 29 C.F.R. § 1614.105(a)). 29 C.F.R. 2 § 1614.103(a) defines retaliation complaints as “complaints of discrimination” for 3 purposes of contacting an EEO counselor. 4 5 Although failure to file an EEOC complaint is not a complete bar to district court jurisdiction, substantial compliance with the exhaustion requirement is 6 a jurisdictional pre-requisite. The jurisdictional scope of the plaintiff’s court 7 action depends on the scope of the EEOC charge and investigation. The specific claims made in district court ordinarily must be presented to the 8 EEOC. However, the district court has jurisdiction over any charges of 9 discrimination that are “like or reasonably related to” the allegations made before the EEOC, as well as charges that are within the scope of an EEOC 10 investigation that reasonably could be expected to grow out of the allegations. 11 12 Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (citations omitted) (quoting Sosa v. 13 Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)). Charges filed before the EEO are to be 14 construed liberally due to “[t]he remedial purpose of Title VII and the paucity of legal 15 training among those whom it is designed to protect.” Stache v. Int’l Union of 16 Bricklayers & Allied Craftsmen, 852 F.2d 1231, 1233 (9th Cir. 1975). “In determining 17 whether the exhaustion requirement has been satisfied, it is appropriate to consider such 18 factors as the alleged basis of the discrimination, dates of discriminatory acts specified 19 within the charge, perpetrators of discrimination named in the charge, and any locations 20 at which discrimination is alleged to have occurred.” Freeman v. Oakland Unified Sch. 21 Dist., 291 F.3d 632 (9th Cir. 2002) (internal citations omitted). “The crucial element of a 22 charge of discrimination is the factual statement contained therein.” Id. 23 Here, Plaintiff first initiated contact with an EEO counselor on August 7, 2018 24 “alleging he had been discriminated against based on race and ethnicity when he was not 25 selected for the Supervisory Electronics Engineer, GS-14, position.” DSS at No. 58. 26 Plaintiff filed his formal EEO complaint on November 13, 2018 alleging discrimination 27 and reprisal. See DSS at No. 67. During his deposition, Plaintiff testified regarding four 28 additional allegations of retaliation that he states occurred between December 2019 and 1 September 2020. DSS at No. 84. Plaintiff did not contact an EEO counselor within 45 2 days of the date of any of the four 2019–2020 events. DSS at No. 85. The four newly 3 raised, allegedly retaliatory actions therefore occurred over a year after Plaintiff initiated 4 an informal EEO complaint and filed his formal EEO complaint. Additionally, Plaintiff 5 was no longer in Garcia’s chain of command during any of these four events. DSS at 6 No. 53. Moreover, Plaintiff fails to proffer any evidence of surrounding circumstances 7 that tend to show a retaliatory motive as to these allegations. The Court therefore 8 concludes that these four new retaliation allegations are not “like or reasonably related” 9 to the allegations contained in the EEO complaint “or within the scope of an EEOC 10 investigation that reasonably could be expected to grow out of the allegations.” See 11 Leong, 347 F.3d at 1122. 12 Accordingly, the Court concludes that Plaintiff failed to timely exhaust his 13 administrative remedies with respect to the four 2019 and 2020 retaliation allegations. 14 See Fort Bend County v. Davis, 139 S. Ct. 1843, 1846 (2019); see also Hollins v. Wilkie, 15 No. 19-cv-2201 DMS (JLB), 2021 U.S. Dist. LEXIS 90816, at *7 (S.D. Cal. May 12, 16 2021) (dismissing Title VII claims “that were not raised with an EEO counselor within 45 17 days of their occurrence, but were instead raised for the first time when Plaintiff sought to 18 amend his EEO complaint” for failure to exhaust administrative remedies); Poole v. 19 Garland, No. 20-cv-09379-PJH, 2022 U.S. Dist. LEXIS 47808, at *17 (N.D. Cal. Mar. 20 17, 2022) (dismissing Title VII claims due to lack of administrative exhaustion where the 21 “adverse actions described by plaintiff” were not “specifically tethered to the activities 22 described in the administrative complaint”). 23 2. Other Retaliatory Conduct 24 The Court turns to Plaintiff’s other allegations of retaliatory conduct. In his 25 Complaint, Plaintiff identifies three instances of allegedly retaliatory conduct: 26 (1) “[Ms. Garcia] required Plaintiff to report to her directly even though as a GS- 27 13 he should have remained under the supervision of a GS-14 as is customary. 28 She had no other GS-13s under her direct supervision, and she did it to 1 intim[id]ate him and send a message to other employees under her management not to complain about discrimination.” Compl. ¶ 16. 2
3 (2) “Ms. Garcia also instructed Plaintiff not to communicate with anyone outside of his code, which made his job nearly impossible to perform.” Id. 4
5 (3) “Furthermore, Ms. Garcia instructed Plaintiff not to forward emails that detailed disagreement up the chain.” Id. 6
7 Defendant concedes that “Plaintiff’s EEO complaint constitutes protected legal activity” 8 but challenges the “adverse employment action” and “causation” elements of Plaintiff’s 9 prima facie case, as well as Plaintiff’s arguments regarding pretext. Doc. No. 28 at 19. 10 The Court addresses each retaliation allegation individually. 11 a. Restructuring 12 Defendant argues that Garcia’s restructuring does not constitute an adverse 13 employment action. See Doc. No. 28 at 19–20. Specifically, Defendant argues that 14 “[t]he allegedly retaliatory comments and actions toward Plaintiff were personnel actions 15 and/or workplace disputes unrelated to any protected criterion, which simply do not 16 constitute harassment or retaliation as a matter of law.” Id. at 19–20. 17 In a Title VII retaliation case, “[a]n action is an adverse employment action if a 18 reasonable employee would have found the action materially adverse, which means it 19 might have dissuaded a reasonable worker from making or supporting a charge of 20 discrimination[.]” Ninth Circuit Civil Jury Instructions, 10.10 (citing Burlington N. & 21 Santa Fe Ry. Co., 548 U.S. at 68). Whether an action is materially adverse is judged by 22 an objective standard accounting for the particular circumstances under which the action 23 occurred. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. In the Title VII retaliation 24 context, to be materially adverse, an action need not rise to the level of an ultimate 25 employment action, such as discharge, change in job title, or reduction in pay. See Ray, 26 217 F.3d at 1242–43. Examples of adverse employment actions include “termination, 27 dissemination of a negative employment reference, issuance of an undeserved negative 28 performance review and refusal to consider for promotion.” Brooks v. City of San Mateo, 1 229 F.3d 917, 928 (9th Cir. 2000). 2 By way of Garcia’s restructuring, Plaintiff was placed directly under Garcia’s 3 supervision. DSS at No. 43. The Court cannot conclude that this would not “dissuade a 4 reasonable worker from making or supporting a charge of discrimination.” See 5 Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57; see also Brooks, 229 F.3d at 929 6 (stating that “[t]ransfers of job duties . . . if proven, would constitute adverse employment 7 decisions cognizable under Title VII”) (citation and internal quotations omitted); St. John 8 v. Employment Development Dep’t, 642 F.2d 273, 274 (9th Cir. 1981) (affirming a 9 district court’s conclusion that a transfer to another job of the same pay and status may 10 constitute an adverse employment action). 11 Defendant also argues that “there is no causal link between [Plaintiff’s] informal 12 EEO contact on August 7, 2018 and any alleged adverse employment action.” Doc. 13 No. 28 at 19–21. Specifically, Defendant urges that “the alleged adverse employment 14 actions occurred before Ms. Garcia learned of Plaintiff’s EEO claim.” Id. at 21. The 15 parties dispute when Garcia became aware of Plaintiff’s EEO activity. See DSS at Nos. 16 58–62. It is undisputed that Becker sent an email with the subject line “ADR” to Garcia 17 on August 28, 2018. See DSS at No. 59. Defendant contends that Garcia did not learn of 18 Plaintiff’s EEO complaint until Brian Frank notified her on September 11, 2018. See 19 DSS at No. 62. However, Garcia testified that she does not recall the specific date she 20 learned of Plaintiff’s EEO complaint. Doc. No. 28-3 (“Garcia Depo.”) Ex. 29 at 118:13– 21 119:20. Plaintiff asserts that Garcia learned of the EEO activity earlier. See Doc. No. 35 22 at 24–25; DSS at No. 59; PSS at No. 53. There is some evidence that Garcia may have 23 learned of Plaintiff’s intention to file an EEO complaint shortly after the July 27, 2018 24 selection. See Doc. No. 35-1 at 152–53, 164; see also Entler v. Gregoire, 872 F.3d 1031, 25 1042 (9th Cir. 2017) (quoting Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 685 26 F.2d 1149, 1156 n.3 (9th Cir. 1982)). Given the dispute, and that the evidence must be 27 viewed in Plaintiff’s favor, when Garcia was put on notice of Plaintiff’s EEO activity is a 28 determination best left to a jury. 1 Turning to the latter portions of the McDonnell Douglas framework, as evidence of 2 a legitimate, nondiscriminatory reason for the challenged action, Defendant urges that it 3 had “legitimate business reasons for each employment action it took against Plaintiff.” 4 See Doc. No. 28 at 18, 23. More specifically, Defendant states that the restructuring was 5 done “[t]o improve the supervisor-to-employee ratio[.]” Id. at 22 (citing DSS at No. 9– 6 10). As support, Defendant points to unrebutted evidence of the supervisor to employee 7 distribution within Plaintiff’s code, Okano’s “previously raised [ ] concern with [ ] Garcia 8 that he was overseeing a large number of GS-13 employees, while the other Supervisory 9 Electronics Engineer at the Time (Francisco Rios) did not have the same number of 10 employees reporting to him[,]” the fact that two other employees were moved under 11 Garcia’s command along with Plaintiff, and multiple other instances of GS-13 employees 12 reporting directly to a GS-15 supervisor. See id. at 22–23 (citing Doc. No. 28-3 (“Frank 13 Depo.”), Ex. 35 at 18:19–19:8; Doc. No. 28-3 (“Jarvis Depo.”) Ex. 34 at 16:15–17:2, 14 43:12–44:2, 71:3–10; DSS at No. 10, 42–43)). The Court concludes that Defendant 15 provides a legitimate, nondiscriminatory explanation for the restructuring. 16 Finally, as evidence of pretext, Plaintiff proffers the following in support of his 17 retaliation allegations:8 18 19 (1) “Defendant disingenuously contends that it is not unusual for a GS-13 to be under the direct supervision of a GS-15 in the organization” in light of Jarvis’s 20 testimony that “in the previous five years[,] he had known of only two GS- 21 13’s under the direct supervision of a GS-15” and those GS-13s were “supervisors themselves.” Doc. No. 35 at 26 (citing PSS at No. 59–60). 22
23 (2) “[P]rior to Plaintiff raising an EEO complaint with Harmon . . . Garcia promised Plaintiff that he would be placed under the direct supervision of the 24 GS-14 replacement for Rios or stay under Okano.” Id. at 27. 25
27 8 Plaintiff does not specify which retaliation allegation each of these facts purportedly supports. See 28 1 (3) Garcia “greatly reduc[ed] his ATI responsibilities [and] stripp[ed] him of public use of his high-status ATI designation, embar[r]assing him in front of 2 his peers, and many more other [sic] action.” Id. at 27 (citing PSS at No. 65). 3 4 Additionally, in his declaration, Plaintiff asserts that “Garcia told me that 5 after the selection process was over, I would be assigned to work under whomever 6 got the GS-14 position or continue under my then supervisor [ ] Okano. She did 7 not tell me that I would be working under her.” Doc. No. 35-2 (“Plt. Decl.”) ¶ 6. 8 But this does not undermine Defendant’s evidence and explanation that the 9 restructuring was not exclusive to Plaintiff, but instead was part of a larger effort to 10 balance the supervisor-to-employee ratio within Garcia’s chain of command. 11 Moreover, in an unrebutted email proffered by Defendant, which details the 12 conversation between Plaintiff and Garcia regarding who would be Plaintiff’s 13 future supervisor, Plaintiff himself states, “Perhaps now in hindsight, a better 14 policy may have been to have me report directly to you concerning the ATI 15 projects.” Doc. No. 28-3, Ex. 9 at 225. The Court therefore concludes that 16 Plaintiff has not produced sufficient evidence that supports his assertion that 17 Defendant’s neutral justifications for this action were pretextual. See Surrell v. 18 Cal. Water Serv., 518 F.3d 1097, 1108 (9th Cir. 2008) (concluding that a plaintiff 19 failed to raise a triable issue of fact as to retaliation where the defendant employer 20 “had ample basis” for its action and where Plaintiff “present[ed] no evidence 21 contradicting” Defendant’s explanation “other than [Plaintiff’s] unsubstantiated 22 statement”). 23 b. Instructions Regarding Communication Outside of Code and New Advanced Technology Initiatives 24 25 Defendant argues that Garcia’s instructions to Plaintiff not to communicate 26 with anyone outside of his code and to “stop working on new 4.4 and 4.5 advanced 27 technology initiatives” are not adverse employment actions. See Doc. No. 28 at 28 23–24. The Court disagrees. Coupled with Plaintiff’s factual assertion in his 1 declaration that discussion of “certain matters” outside of FRCSW “had always 2 been part of [Plaintiff’s] ATI duties[,]” see Plt. Decl. ¶ 9, and Plaintiff’s factual 3 allegations that Garcia “reduc[ed] his ATI responsibilities” and “stripp[ed] him of 4 public use of his high-status ATI designation,” see Doc. No. 35 at 27 (citing PSS at 5 No. 65), the Court concludes that these instructions could each “dissuade a 6 reasonable worker from making or supporting a charge of discrimination.” See 7 Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57; see also St. John v. Employment 8 Development Dep’t, 642 F.2d 273, 274 (9th Cir. 1981) (concluding that even a 9 transfer to another job of the same pay and status may constitute an adverse 10 employment action in the Title VII retaliation context). As to the causation 11 element of retaliation, the same analysis applied supra Section III.B.2.a applies. 12 The Court therefore concludes that Plaintiff has stated a prima facie case of 13 retaliation regarding these actions. 14 However, Defendant provides legitimate, nondiscriminatory explanations for 15 Garcia’s instructions. Defendant states that “Garcia’s instruction to Plaintiff not to 16 communicate with others outside of the Command resulted from instances wherein 17 management believed Plaintiff had overstepped his authority or otherwise 18 responded in an unprofessional manner.” See Doc. No. 28 at 23. As support, 19 Defendant points to an email Plaintiff sent to Donald McClenny, copying Garcia 20 and other employees, and subsequent emails between Garcia and Plaintiff in which 21 Garcia “state[ed] that she would like more coordination and communication so that 22 she is not left out of the loop.” See id. (citing DSS at Nos. 44–46). Additionally, 23 Defendant provides evidence that “Garcia’s instruction that Plaintiff stop working 24 on new 4.4 and 4.5 advanced technology initiatives was due to the limited staffing 25 in her departments, which Plaintiff acknowledged during his deposition[,]” that 26 “[t]here were already four ATI projects in the pipeline, and [ ] Garcia explained to 27 Plaintiff that her departments did not have the resources to support additional 28 projects at that time[,]” and that “Garcia contacted Chris Root to ensure that 1 Plaintiff had enough work given the reduction in ATI-related projects for her 2 departments.” Doc. No. 28 at 24 (citing DSS at No. 47, 48, 51). 3 Plaintiff does not point to any evidence that undermines these explanations. The 4 Court therefore concludes that Plaintiff has not produced sufficient evidence supporting 5 his assertion that Defendant’s neutral justifications for Garcia’s instructions were 6 pretextual. See Surrell v. Cal. Water Serv., 518 F.3d 1097, 1108 (9th Cir. 2008). 7 c. Forwarding Emails to Superiors 8 Defendant argues that Garcia’s instruction to Plaintiff not to forward emails 9 that detailed disagreement up the chain is not an “adverse employment action.” 10 See Doc. No. 28 at 19. Plaintiff does not provide, and the Court is unaware of, any 11 authority for the proposition that an instruction by an employee’s supervisor not to 12 circumvent that supervisor on work projects constitutes an “adverse employment 13 action.” See Burlington N. & Santa Fe Ry., 548 U.S. at 68–69 (stating that, in the 14 Title VII retaliation context, an “adverse employment action” is one that is 15 “materially adverse” and not a “trivial harm[]”). Accordingly, Plaintiff’s 16 retaliation claim fails as a matter of law as to the allegation regarding Garcia’s 17 instruction to Plaintiff not to forward emails to superiors. 18 d. Summary 19 In sum, as to Plaintiff’s retaliation theories regarding restructuring, communication 20 outside his code, and new advanced technology initiatives, Plaintiff has not produced 21 sufficient evidence that supports his assertion that Defendant’s race-neutral justifications 22 for these actions were pretextual. As to Plaintiff’s retaliation theory regarding 23 forwarding emails to superiors, Plaintiff fails to establish a prima facie case. 24 Accordingly, Defendant is entitled to summary judgment as to Plaintiff’s retaliation 25 claim. 26 IV. CONCLUSION 27 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 28 Defendant’s motion for summary judgment. In particular, the Court GRANTS summary 1 judgment in Defendant’s favor as to Plaintiff's retaliation claim. The Court DENIES 2 || Defendant’s motion as to Plaintiff's race discrimination claim. As Plaintiff’s race 3 || discrimination claim must proceed to trial, the Court will issue a scheduling order setting 4 || forth all relevant pretrial deadlines and hearings in due course. 5 IT IS SO ORDERED. 6 ||Dated: June 16, 2022
8 HON. MICHAEL M. ANELLO 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28