Greenlaw v. Su

• Court: District Court, N.D. California
• Decided: January 27, 2025
• Docket: 5:18-cv-04932
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 ROSEMARY GREENLAW, Case No. 18-cv-04932-VKD

9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY 11 JULIE SU, JUDGMENT 12 Defendant. Re: Dkt. Nos. 119, 120, 121

13 14 Plaintiff Rosemary Greenlaw filed this action against the Secretary of Labor (“Secretary”), 15 alleging, among other things, discrimination on the basis of age and disability and retaliation for 16 engaging in protected conduct. See Dkt. Nos. 1, 8. The Secretary now moves for summary 17 judgment. Dkt. Nos. 120, 128. Ms. Greenlaw opposes the motion. Dkt. No. 127. Upon 18 consideration of the moving and responding papers, as well as the oral arguments presented, the 19 Court grants the Secretary’s motion for summary judgment in part and denies the motion in part. 20 I. BACKGROUND 21 A. Factual Background 22 Unless otherwise indicated, the following facts are undisputed. 23 1. Request for Reasonable Accommodation 24 After retiring from prior federal service, Ms. Greenlaw sought to re-enter civil service. On 25 April 4, 2016, she began working in the U.S. Department of Labor (“DOL”) as an Administrative 26 Assistant for the Occupational Safety and Health Administration (“OSHA”) in OSHA’s Region 9 27 office in San Francisco. See Dkt. No. 8, ¶¶ 12, 13; Dkt. No. 120-4, Ex. A (Greenlaw Dep. at 1 59:10-24; 77:8-14). According to Loren Delicana, Ms. Greenlaw’s supervisor,1 Ms. Greenlaw’s 2 primary role as Administrative Assistant was to “assist the Regional Administrator’s office,” 3 though her duties also included “support[ing] the other units in the office.” Dkt. No. 120-4, Ex. B 4 (Delicana Dep. at 17:18-21). 5 Ms. Greenlaw says that she is older than 40 and has a disability. See Dkt. No. 8 ¶¶ 2, 14, 6 18, 36. Although that disability is not identified in her operative first amended complaint (see 7 generally Dkt. No. 8), in this litigation Ms. Greenlaw identified her disability as cancer. See Dkt. 8 No. 120-4, Ex. A (Greenlaw Dep. at 94:10-21; 181:22-182:2). Ms. Greenlaw did not tell anyone 9 at DOL that she had cancer. See id. (Greenlaw Dep. at 182:3-16). 10 On April 5, 2016, Ms. Greenlaw began bringing her dog Tippi, a Bedlington Terrier, to 11 work. See id. (Greenlaw Dep. at 97:13-16); see also Dkt. No. 127-2 at ECF 13, 37. On April 11, 12 2016, Ms. Greenlaw completed a reasonable accommodation request form, asking for permission 13 to bring Tippi to work. See Dkt. No. 127-2 at ECF 8-10; see also Dkt. No. 120-4, Ex. A 14 (Greenlaw Dep. at 100:25-101:22). In the request form, Ms. Greenlaw identified Tippi as her 15 “therapy dog” and stated that the reason for her request was “[t]o assist with comfort and 16 productivity in the work place.” Dkt. No. 127-2 at ECF 8. Ms. Greenlaw’s request included a 17 letter from her doctor, stating that Ms. Greenlaw “has a chronic medical condition that causes pain 18 and anxiety” and that she “has a therapy service animal who helps in times of stressors[.]” Id. at 19 ECF 9. The letter requests that Ms. Greenlaw “be allowed to bring her pet with her as allowed by 20 policy.” Id. Aside from a reference to her doctor’s note, in deposition Ms. Greenlaw testified that 21 Tippi is not certified by any organization as a service animal. See Dkt. No. 120-4, Ex. A 22 (Greenlaw Dep. at 93:21-94:9). 23 Ms. Greenlaw says that around April 14, 2016, she was verbally informed that her request 24 to bring Tippi to work was granted, followed by a formal memo dated May 16, 2016, confirming 25 1 At the time Ms. Greenlaw was hired, Ms. Delicana (Team Leader for Administrative Programs) 26 was serving as the acting Assistant Regional Administrator while Ms. Delicana’s supervisor, James Dement, was on a temporary assignment. Josh Paul (the then acting Team Leader for 27 Administrative Programs) initially served as Ms. Greenlaw’s supervisor until around June 2016 1 the approval of her requested accommodation. See Dkt. No. 8 ¶ 36; Dkt. No. 127-2 at ECF 11; see 2 also Dkt. No. 120-4, Ex. A (Greenlaw Dep. at 106:14-25). 3 Unbeknownst to Ms. Greenlaw, Ms. Delicana, began keeping written notes about Tippi 4 from the day Ms. Greenlaw began her employment with OSHA. See Dkt. No. 127-2 at ECF 13- 5 17. The notes include an April 6, 2016 entry regarding staff concerns about “the dog smell”; a 6 report that “Tippi made a mess on the first day and [Ms. Greenlaw] did not clean it up”; and 7 instances when Tippi barked, “jumped up,” or was seen without a leash. See id. Ms. Greenlaw 8 points out that Ms. Delicana’s notes also indicate that on April 11, 2016, “Tippi had a bath and is 9 clean.” Id. at ECF 13. Additionally, in deposition, Ms. Delicana stated that she did not know if 10 Ms. Greenlaw knew of the mess Tippi made, and acknowledged that Ms. Greenlaw would clean- 11 up after Tippi on other occasions. See Dkt. No. Dkt. No. 127-4 (Delicana Dep. at 90:7-20). 12 Ms. Delicana’s notes reflect that in Ms. Greenlaw’s July 14, 2016 mid-year review, Ms. 13 Delicana discussed Tippi with her, including whether there were any updates regarding Ms. 14 Greenlaw’s accommodation and whether Ms. Delicana could provide any other assistance; 15 building facility requirements that Tippi must be under Ms. Greenlaw’s control at all times and 16 that Ms. Greenlaw was responsible for cleaning up after Tippi; and confirmation by Ms. Delicana 17 that there were no recent reports from staff about Tippi. Dkt. No. 127-2 at ECF 14; see also id. at 18 ECF 22. There is no indication that Ms. Greenlaw’s mid-year review addressed any topics other 19 than Tippi. 20 Ms. Delicana’s notes also document a July 22, 2016 incident when a visitor to the OSHA 21 office was startled by Tippi. See Dkt. No. 127-2 at ECF 15. The visitor was in the office talking 22 with Ms. Greenlaw for about five minutes before she noticed Tippi, screamed, and then fell, at 23 which point Tippi barked. When asked what happened, the visitor stated that she was not hurt, 24 and was surprised to see a dog in the office because she was from an Asian country where that was 25 uncommon, but said that Tippi was cute. See id. 26 On August 4, 2016, Ms. Delicana sent an email to Dr. Janet Callwood, a point of contact 27 who worked in the DOL Reasonable Accommodation Office. See Dkt. No. 127-2 at ECF 22-23; 1 22, 2016 incident involving Tippi and the office visitor and stated, “When we last spoke, you 2 indicated that you would speak to [Ms.] Greenlaw about a service versus comfort dog as it relates 3 to [the] ADA. Also, with this most recent incident, I would appreciate your guidance on the next 4 steps for handling [Ms.] Greenlaw’s reasonable accommodation.” Dkt. No. 127-2 at ECF 22-23. 5 Ms. Delicana testified that she sought guidance from Dr. Callwood “to make sure that [Ms. 6 Delicana] aligned with whatever was agreed upon between Dr. Callwood, Ms. Greenlaw, and the 7 accommodation,” and that “the accommodation . . . was working for Ms. Greenlaw” and also for 8 the office. See Dkt. No. 120-4, Ex. B (Delicana Dep. at 151:14-25); Dkt. No. 127-4 (Delicana 9 Dep. at 126:14-127:18). 10 In a subsequent email sent to Dr. Callwood on August 23, 2016, Ms. Delicana noted that 11 her supervisor, James Dement (Assistant Regional Administrator of OSHA Region 9), received 12 information from the building’s management regarding “complaints about Tippi’s barking and/or 13 jumping on people.” Dkt. No. 127-2 at ECF 21. Ms. Delicana further noted, “We let them know 14 we are working with you on this.” Id. When Dr. Callwood responded that she would “contact 15 [Ms. Greenlaw] concerning the possible need to remove the animal from the workplace,” Mr. 16 Dement replied, “Your message appears to indicate that management is prepared to remove the 17 animal from the workplace—this is not correct. At this time, we are not asking for the animal to 18 be removed.” Id. at ECF 19. Mr. Dement also separately reached out to another contact, Christina 19 Peterson, regarding the distinction between a service animal and an emotional/support animal. See 20 Dkt. No. 120-4, Ex. V. Mr. Dement testified that the inquiries to Dr. Callwood and Ms. Peterson 21 were made so that they could educate themselves and make sure that they were providing the right 22 level of support and meeting their obligations. See Dkt. No. 120-4, Ex. I (Dement Depo. at 23 196:11-198:19, 199:4-11, 200:11-20). There is no indication that DOL ever told Ms. Greenlaw 24 that she was not allowed to bring Tippi to work, or that DOL modified or changed her requested 25 accommodation. See Dkt. No. 120-4, Ex. A (Greenlaw Dep. at 107-1-9, 108:1-4). 26 2. Whistleblower Investigator Position 27 Meanwhile, around June 2016, Ms. Greenlaw applied for a position as a Whistleblower 1 No. 8 ¶ 14 & Ex. B at 1. Although she was interviewed, Ms. Greenlaw was not selected for the 2 investigator position. See Dkt. No. 119-1 ¶¶ 8, 10. Records submitted by the Secretary indicate 3 that, of the 11 applicants were who interviewed and evaluated for the Whistleblower Investigator 4 position,2 Ms. Greenlaw received the lowest overall score. See Dkt. No. 119-2 ¶ 11, Ex. L. 5 3. Staff Assistant Position 6 After her unsuccessful application to be a Whistleblower Investigator, Ms. Greenlaw says 7 she was asked to perform the duties of a different position, Staff Assistant, but was not given the 8 higher pay grade and compensation associated with that position. See Dkt. No. 8 ¶ 15. Ms. 9 Greenlaw requested a desk audit, i.e., an evaluation of her work in accordance with various pay 10 grades. The desk audit would have been conducted by OASAM (Office of the Assistant Secretary 11 for Administration and Management), the human resources division within DOL. Ms. Delicana 12 testified that she referred Ms. Greenlaw’s request for a desk audit to OASAM. See Dkt. No. 120- 13 4, Ex. B (Delicana Dep. at 145:15-146:20). Ms. Greenlaw did not receive an audit. Ms. Greenlaw 14 also requested a promotion to the Staff Assistant position (after the individual who held that 15 position was hired as a Whistleblower Investigator). Her request was denied. See Dkt. No. 8 ¶ 15; 16 Dkt. No. 119-2 ¶¶ 13-14. According to DOL, the Staff Assistant position was not filled by anyone 17 due to a hiring freeze. See Dkt. No. 120-4, Ex. B (Delicana Dep. at 145:1-10); see also Dkt. No. 18 119-2 ¶ 15. 19 4. Alleged Performance and Conduct Issues 20 The Secretary maintains that Ms. Greenlaw performed her Administrative Assistant job 21 poorly and that there were also issues with her conduct. The alleged performance issues 22 concerned (1) Ms. Greenlaw’s failure to start meetings on time, (2) Ms. Greenlaw’s failure to 23 2 The Court finds compelling reasons to grant the Secretary’s motion to seal portions of the 24 declarations of Mark Marchione and Kathleen McCormick that reveal the names, scores, and background information of the other applicants, as that information implicates those individuals’ 25 personal privacy interests. Dkt. No. 119; Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (“Those who seek to maintain the secrecy of documents attached to 26 dispositive motions must meet the high threshold of showing that ‘compelling reasons’ support secrecy.”). In any event, none of that information bears on the resolution of the present motion for 27 summary judgment. This order otherwise publicly discloses information from the declarations of 1 properly keep meeting minutes, and (3) issues with Ms. Greenlaw’s prioritization of tasks and 2 failure to update a department “tracker” or “log” of tasks. The alleged conduct issues concerned 3 Ms. Greenlaw using her personal phone to record meetings, and an August 2, 2016 incident 4 involving the building’s security personnel. 5 a. Weekly meetings 6 As part of her duties as Administrative Assistant, Ms. Greenlaw was tasked with setting up 7 weekly executive Webex meetings and conferences. See Dkt. No. 120-4, Ex. (Greenlaw Dep. at 8 141:23-142:15); Id., Ex. B (Delicana Dep. at 26:24-27:9). Ms. Greenlaw agreed that she was 9 “informally trained” on how to set up those meetings and conferences, stating that she “was shown 10 how the system worked . . . and from time to time fixes when it didn’t work.” Dkt. No. 120-4, Ex. 11 A (Greenlaw Dep. at 142:2-7, 12-15). Ms. Delicana testified that although she and Ms. Greenlaw 12 would “practice and rehearse several times so that Ms. Greenlaw [could] get used to it,” Ms. 13 Greenlaw “struggled” to set up the meetings, which led to delays in the 9:00 a.m. meeting start 14 time. Ms. Delicana testified that the delays were “really embarrassing” because “[t]he Regional 15 Administrator was there,” and “[Ms. Delicana] had to explain the delays.” See Dkt. No. 120-4, 16 Ex. B (Delicana Dep. at 26:25-27:14, 27:24-28:14). According to Ms. Delicana, although she met 17 informally with Ms. Greenlaw, “maybe two or three times a week,” to discuss “[Ms. Greenlaw’s] 18 concerns . . ., if she needed assistance, how [Ms. Delicana] could help her” in order for Ms. 19 Greenlaw to “do this task without any assistance,” “it got to the point where [Ms. Delicana] had to 20 be there right with her” and “help [Ms. Greenlaw] out during meetings.” Id. (Delicana Dep. at 21 28:9-10, 15-16, 29:13-20). Additionally, Ms. Delicana says that “[t]here were times where, 22 despite discussion of the importance of these meetings, sometimes [Ms. Greenlaw] was late.” See 23 id. (Delicana Dep. at 28:16-18). Although she could not identify the number of times Ms. 24 Greenlaw was not able to set up the weekly meetings and conferences, Ms. Delicana testified that 25 she “worked with [Ms. Greenlaw] one on one, around late June. We were still having the issues in 26 September.” See id. (Delicana Dep. at 28:21-29:9). 27 Kimberly Nelson (then Acting Deputy Regional Administrator) also testified that, based on 1 have the video going and the microphone so that you could communicate, you know, virtually,” 2 and that there were “several occasions” when Ms. Nelson “watched [Regional Administrator] 3 Barbara [Goto] basically just do it because [Ms. Greenlaw] couldn’t get it done.” Dkt. No. 120-4, 4 Ex. J (Nelson Dep. at 61:77-62:12, 70:21-71:12). Ms. Nelson also testified there was one 5 occasion when Ms. Greenlaw did not show up to start the meeting at all. Id. (Nelson Dep. at 6 62:10-12, 72:10-18). 7 Mr. Dement testified that for “the vast majority of the time” she was employed by OSHA, 8 Ms. Greenlaw did not start the executive meetings on time, which reflected poorly on the Regional 9 Administrator. Dkt. No. 120-4, Ex. I (Dement Dep. at 44:24-46:18). Although Mr. Dement could 10 not quantify how often the meetings started late, he stated that it happened “frequently enough that 11 it was an irritation to the management that participated in those meetings” and that when Ms. 12 Greenlaw was responsible for setting up the meetings, “it was not a surprise that she would not do 13 it on time, and it required a lot of active effort to try to remind her to be on time.” See id. (Dement 14 Dep. at 48:17-24, 251:22-25). 15 With respect to the weekly executive meetings and conferences, Ms. Greenlaw testified 16 that it was “[n]ot a problem with [her] setting it up”; rather, “[t]he system often didn’t work.” Dkt. 17 No. 120-4, Ex. A (Greenlaw Dep. at 142:21-23). Additionally, she maintains that the Secretary’s 18 sole documentation of a failure to timely start a meeting shows that Ms. Delicana sent her emails 19 at 9:30 p.m. on the Sunday before the Monday morning meeting, knowing that Ms. Greenlaw 20 would not be online at that time, and without providing Ms. Greenlaw with the meeting link. Ms. 21 Greenlaw says that she did not receive the meeting login information until 8:50 a.m. the next day 22 when Mr. Dement sent it to her. See Dkt. No. 127-2 at ECF 27-28; Dkt. No. 127-4 (Delicana Dep. 23 at 193:17-19). In other words, Ms. Greenlaw contends that the one documented failure to start a 24 meeting on time was entirely attributable to Ms. Delicana. 25 b. Meeting minutes 26 In deposition, Ms. Greenlaw agreed that one of her responsibilities as an Administrative 27 Assistant was to record the minutes for the executive meetings and conferences. See Dkt. No. 1 with [Ms. Greenlaw] to train her, make sure she understood the importance of it, taking the 2 minutes. . . . we spent basically a lot of time together to try to get her to do this task well,” 3 including work on “the format” and “the expectation of the minutes,” which “had to be released 4 within a day or two of the meeting.” Dkt. No. 120-4, Ex. B (Delicana Dep. at 27:10-14, 31:7-9). 5 According to Ms. Delicana, “this progressed over several months.” Id. (Delicana Dep. at 31:10). 6 Ms. Delicana testified that Ms. Greenlaw missed action items and points of discussion, which “are 7 important to the Regional Administrator’s office to share with the leadership team.” Id. (Delicana 8 Dep. at 31:14-19). As a result, Ms. Delicana testified that she spent time reviewing and editing 9 Ms. Greenlaw’s minutes. Id. (Delicana Dep. at 31:24-32:2). 10 Mr. Dement testified that his expectation was that the minutes “were posted and accurate,” 11 meaning that the minutes should be “accurate, complete” and “available for others to view.” Dkt. 12 No. 120-4, Ex. I (Dement Dep. at 128:14-15, 22-23). He ordinarily was not involved in the 13 preparation of the minutes, as that “would be a discussion that [Ms. Delicana] and [Ms. Greenlaw] 14 would have one-on-one.” Id. (Dement Dep. at 128:11-13). His understanding of Ms. Greenlaw’s 15 performance regarding meeting minutes is based on reports from Ms. Delicana. Id. (Dement Dep. 16 at 128:15-17, 129:12-15). Mr. Dement testified that “[o]n at least one occasion,” he observed that 17 Ms. Delicana posted the meeting minutes. When he asked Ms. Delicana why she did that, Ms. 18 Delicana “commented that she had to correct the notes after [Ms. Greenlaw] worked on them.” Id. 19 (Dement Dep. at 129:4-8). 20 According to Ms. Greenlaw, she was not trained on how to record the meeting minutes. 21 See Dkt. No. 120-4, Ex. A (Greenlaw Dep. at 139:6-12). Nor does she recall that anyone ever told 22 her that they were not satisfied with the way she prepared the minutes and that she should prepare 23 the minutes in a different way. Id. (Greenlaw Dep. at 139:20-24). She testified that there were 24 “not discussions per se” regarding issues with her recording of the minutes; rather, she says that 25 “[a]fter [she] created the minutes, they were circulated for any additions, corrections.” Id. 26 (Greenlaw Dep. at 139:13-18). She denies that anyone prepared the minutes for her. Id. 27 (Greenlaw Dep. at 141:8). Additionally, she points out that the Secretary has presented no 1 She also notes that Mr. Dement’s knowledge of her performance regarding the minutes is based 2 solely on reports from Ms. Delicana. 3 c. Task management 4 The Secretary presents testimony that she says demonstrates that Ms. Greenlaw was 5 disorganized and had task management issues. Ms. Nelson testified that Ms. Greenlaw was 6 “ineffective” in keeping a department log or “tracker” of tasks updated, and the information in the 7 tracker “was either not current, not accurate, or there wasn’t information in it that should have 8 been in it.” Dkt. No. 120-4, Ex. J (Nelson Dep. at 48:24-49:7, 54:8-12). According to Ms. 9 Nelson, this was a concern because the department used the log to track the status of work coming 10 into the office, including “responses to congressionals” or “something needed from a directorate in 11 the national office.” Id. (Nelson Dep. at 43:13-25). Ms. Nelson recalls speaking to Mr. Dement 12 “three to four times” about this issue, and that he responded that Ms. Nelson was not the only one 13 who expressed the same concerns. Id. (Nelson Dep. at 56:2-18). 14 The Secretary also presents testimony from Ms. Delicana, Ms. Nelson, and Mr. Dement, 15 who all expressed that Ms. Greenlaw required a significant amount of work to manage. Ms. 16 Nelson recalled an occasion when Ms. Greenlaw could not properly attach a document to an 17 email, and that Ms. Delicana had to have “more oversight of [Ms. Greenlaw]” to ensure that the 18 department tracker was updated. See Dkt. No. 120-4, Ex. J (Nelson Dep. at 56:15-18, 86:18-87:3, 19 90:25-91:24). Ms. Delicana testified that there were also concerns about “the priority tasks that 20 we wanted [Ms. Greenlaw] to do,” stating that she noticed that Ms. Greenlaw would work for the 21 whistleblower unit, and that the department “struggle[ed] again with her being able to complete 22 the task of support for the Regional Administrator’s office,” including keeping the department 23 tracker updated. Consequently, Ms. Delicana says that she “had to check in regularly with her on 24 the status,” to “make sure we were aligned in the tasks that she would be working on.” Dkt. No. 25 120-4, Ex. B (Delicana Dep. at 27:15-20); Dkt. No. 127-4 (Delicana Dep. at 43:20-45:14). Ms. 26 Delicana testified that she also received complaints from Ms. Goto and Mr. Dement about Ms. 27 Greenlaw’s performance. See Dkt. No. 127-4 (Delicana Dep. at 215:17-24). 1 19, 2016 email from Josh Paul, her former supervisor, stating that in connection with a particular 2 project, Ms. Greenlaw worked “independently” and “diligently,” went “above and beyond,” and 3 was “a big part of the successful roll-out of” the project. See Dkt. No. 127-2 at ECF 25, 41. 4 Additionally, another OSHA employee, Patricia Gaydos, noted that Ms. Greenlaw had “scanned 5 documents, done some mailing, and some editing” and did a “good job with a minimum of 6 direction,” and “also was instrumental in getting [Ms. Gaydos’s] budget revisions in.” Dkt. No. 7 127-2 at ECF 24. Ms. Gaydos further noted that Ms. Greenlaw’s performance was “not 8 exemplary, but highly effective to date.” Id. 9 d. Recording meetings 10 Ms. Delicana testified that she observed that Ms. Greenlaw used her personal cellphone to 11 record the weekly executive meetings. See Dkt. No. 120-4, Ex. B (Delicana Dep. at 32:20-22). 12 Ms. Delicana asked Mr. Dement whether a personal cellphone could be used to record OSHA’s 13 internal meetings, and Mr. Dement suggested that the department should get a digital recorder for 14 Ms. Greenlaw to use instead. See id. (Delicana Dep. at 32:22-33:1). According to Ms. Delicana, 15 “[t]his is a policy that we have consistently told among our staff, not to use personal devices for 16 OSHA-related business.” Id. (Delicana Dep. at 35:7-9). 17 Ms. Delicana gave Ms. Greenlaw a department-issued digital recorder to use during 18 internal meetings. See id. (Delicana Dep. at 33:2-8). However, Ms. Delicana became “really 19 concerned” when Mr. Dement subsequently told her that he observed that Ms. Greenlaw continued 20 to use her personal cellphone to record OSHA’s meetings. See id. (Delicana Dep. at 33:8-11, 21 38:22-39:1). Ms. Delicana testified, “When I spoke to Ms. Greenlaw about this, that this was a 22 concern, she had told me that ‘I delete it anyway.’ That was not the point. The point was that she 23 could not save federal OSHA meeting discussions on a personal [cellphone].” Id. (Delicana Dep. 24 33:12-16). According to Mr. Dement’s testimony, he saw that Ms. Greenlaw was using a personal 25 cellphone to record a meeting, and asked Ms. Delicana to look into it. Mr. Dement says that Ms. 26 Delicana told him that Ms. Greenlaw denied using her phone to record the meeting. See Dkt. No. 27 120-4, Ex. I (Dement Dep. at 212:22-214:20). Mr. Dement testified that this was one of two 1 in making statements.” Id. (Dement Dep. at 213:3-8). 2 Ms. Greenlaw points out that Ms. Delicana agreed that the use of a recording device by an 3 administrative assistant is not unusual; that the only concern Ms. Delicana identified about using a 4 personal cellphone was that a personal device might have to be produced in response to a FOIA 5 request; Ms. Delicana testified that she had never actually produced a physical recording device in 6 response to a FOIA request; and Ms. Delicana was not aware that Ms. Greenlaw had ever used the 7 recordings she made for an improper purpose. See Dkt. No. 127-4 (Delicana Dep. at 33:25-34:2, 8 35:1-36:10, 36:21-37:3, 37:25-38:19). 9 e. August 2, 2016 incident 10 According to the Secretary, on August 2, 2016 Ms. Greenlaw caused a security incident in 11 the federal building where the OSHA Region 9 office is located. There is no dispute that an 12 incident involving Ms. Greenlaw and the building’s security occurred. However, the parties 13 diverge somewhat in describing how the incident unfolded. 14 On the day in question, Ms. Greenlaw took a cart of supplies (which were to be donated to 15 an outside organization) to the lobby. According to Ms. Delicana, Ms. Greenlaw told her that she 16 was approached by building security personnel who said that she could not leave the supplies 17 unattended, but Ms. Greenlaw told Ms. Delicana not to worry about it because she “hid” the cart. 18 Ms. Delicana told Ms. Greenlaw that she did not think that was a good idea and that they needed 19 to go get the cart, and Ms. Greenlaw said she would take care of it. Ms. Delicana says that a few 20 minutes later, she received a call from OASAM advising that security offers reported that Ms. 21 Greenlaw did not follow their instructions and that it could have resulted in shutting down the 22 building because she left the supplies unattended. See Dkt. No. 120-4, Ex. B (Delicana Dep. at 23 47:15-49:19). 24 The incident was escalated to Mr. Dement. He does not recall how he learned about it, 25 although Ms. Delicana testified that he approached her about the incident after attending a meeting 26 with General Services Administration (“GSA”), which manages the federal building. See Dkt. No. 27 120-4, Ex. B (Delicana Dep. at 49:22-50:2); Id., Ex. I (Dement Dep. at 216:15-18). Mr. Dement’s 1 follow their instructions, and left the supplies unattended in the building. After reviewing 2 statements from Ms. Greenlaw, the security guards involved, and GSA employee Michelle 3 Daniels, Mr. Dement believed that Ms. Greenlaw had omitted material information from her 4 statement. See Dkt. No. 120-4, Ex. I (Dement Dep. at 217:22-222:25). 5 In deposition, Ms. Greenlaw did not recall leaving the cart with supplies unattended for 6 any period of time. See Dkt. No. 127-5 (Greenlaw Dep. at 136:2-18). However, she argues that 7 the salient facts from the August 2, 2016 incident are that Ms. Daniels, who purportedly saw the 8 cart of supplies unattended in the lobby, (1) did nothing about it at the time, (2) documented the 9 incident only after being asked to provide a statement, and (3) in her email statement, addressed to 10 Ms. Delicana, Ms. Daniels pointed out that she “notice[d] that Ms. Greenlaw was without her 11 service dog and was informed by the guards that during the cart encounter she did not have her 12 service dog with her.” See Dkt. No. 127-7 (Daniels Dep. at 24:18-22); see also Dkt. No. 127-2 at 13 ECF 32. Ms. Greenlaw says that Tippi was with her when she was moving the cart around the 14 building (see Dkt. No. 127-5 (Greenlaw Dep. at 136:2-18), and argues that Ms. Daniels’s 15 comment about Tippi not being with her in the lobby is gratuitous and entirely irrelevant to the 16 August 2, 2016 incident. Additionally, Ms. Greenlaw points out that in deposition, Mr. Dement 17 initially testified that she omitted information about “being advised by security that she can’t leave 18 the boxes . . . on the outside, and that she left the boxes out in the public area, even though she was 19 told not to.” See Dkt. No. 127-10 (Dement Dep. at 219:16-220:10). He later acknowledged that 20 he was incorrect, and clarified that Ms. Greenlaw omitted information that she left the cart of 21 supplies in the lobby area. See id. (Dement Dep. at 227:2-14). Mr. Dement also noted in 22 deposition that Ms. Daniels’s statement reported that Ms. Greenlaw did not have Tippi with her. 23 See id. (Dement Dep. at 220:9-25). Although Mr. Dement testified that the comment about Tippi 24 was not something he weighed against Ms. Greenlaw, Ms. Greenlaw contends that the 25 inconsistency in his testimony regarding omissions from her statement call into question Mr. 26 Dement’s credibility. 27 5. Termination 1 Assistant position. Mr. Dement attests that he made the decision to terminate Ms. Greenlaw due 2 to “poor performance and misconduct.” In deposition, he testified that Ms. Greenlaw was not “the 3 right fit for the position,” and that “[n]othing about the dog was considered in deciding to” 4 terminate her employment. Dkt. No. 120-3 ¶ 11; Dkt. No. 120-4, Ex. I (Dement Dep. at 189:3-4, 5 210:25-212:1); see also Dkt. No. 127-4 (Delicana Dep. at 25:22-26:2). 6 In deposition, OASAM employee Lenada Bell testified that she was a relatively new 7 OASAM employee around the Fall of 2016 when Ms. Delicana reached out to her regarding issues 8 about Ms. Greenlaw. Ms. Bell subsequently communicated with Ms. Delicana and Mr. Dement, 9 and met with them once regarding Ms. Greenlaw. Ms. Bell could not recall many details about the 10 situation, or what evidence Ms. Delicana or Mr. Dement may have provided. Ms. Bell mainly 11 recalls that Ms. Delicana and Mr. Dement reported that things were not working out with respect 12 to Ms. Greenlaw’s performance, that she was not getting along with other employees, and that 13 they did not think Ms. Greenlaw was a good fit for the office. While Ms. Bell noted that an 14 employee cannot be terminated without “some sort of justification in writing” or “proof,” she 15 stated that as Ms. Greenlaw was an at-will or at-risk employee, not a lot of information was 16 required for the termination of her employment. See Dkt. No. 120-4, Ex. E (Bell Dep. at 30:10- 17 22, 31:24-32:19, 33:3-9, 35:8-24, 38:6-39:5, 40:6-18, 51:25-52:11). Ms. Bell did not know that 18 Ms. Greenlaw had a dog. See id. (Bell Dep. at 76:22-25). 19 B. Procedural History 20 On November 15, 2016, Ms. Greenlaw appealed her non-selection for the Whistleblower 21 Investigator position to the Merit Systems Protection Board (“MSPB”). See Dkt. No. 120-4, Ex. 22 O.3 On December 22, 2016, the MSPB denied Ms. Greenlaw’s appeal for lack of jurisdiction. See 23 3 The Court grants the Secretary’s request for judicial notice of records from Ms. Greenlaw’s 24 administrative proceedings, namely (1) her two MSPB appeals, (2) the MSPB’s two initial decisions, (3) Ms. Greenlaw’s formal and informal Complaints of Discrimination; (4) the EEOC’s 25 order dismissing Ms. Greenlaw’s complaint; and (5) the MSPB’s two final orders. Dkt. No. 121; Dkt. No. 120-4 Exs. O-S, U. Ms. Greenlaw has not opposed the request for judicial notice or 26 questioned the authenticity of the subject documents. Fed R. Evid. 201; see also Singh v. U.S. Postal Serv., No. 17-cv-02211-DMR, 2017 WL 11471761, at *4 n.3 (N.D. Cal. Oct. 10, 2017) 27 (taking judicial notice of MSPB decisions); Blackman-Baham v. Kelly, No. 16-CV-03487-JCS, 1 id., Ex. P. 2 On November 15, 2016, Ms. Greenlaw also appealed her termination to the MSPB, 3 alleging discrimination and retaliation. See Dkt. No. 120-4, Ex. Q. The MSPB dismissed that 4 appeal for lack of jurisdiction. See id., Ex. R. 5 On December 1, 2016, Ms. Greenlaw filed an informal complaint asserting discrimination 6 and reprisal with DOL’s Civil Rights Center, followed by a formal discrimination and reprisal 7 complaint on December 19, 2016. See id., Ex. S. The EEOC dismissed Ms. Greenlaw’s claims. 8 Id. Ex. U. 9 Ms. Greenlaw filed the present action on August 14, 2018, and filed an amended complaint 10 (the operative pleading) on September 4, 2018. The amended complaint references Title VII of 11 the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), the Age 12 Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634 (“ADEA”), the 13 Rehabilitation Act, 29 U.S.C. §§ 791 et seq. (“Rehabilitation Act”), and the Freedom of 14 Information (“FOIA”) and Privacy Acts, 5 U.S.C. § 552, et seq., and also makes passing reference 15 to the “Americans with Disabilities Act,” Dkt. No. 8 at ECF 6-7. The amended complaint 16 asserted federal claims for “Age Discrimination,” “Disability Discrimination,” “Retaliation,” and 17 under the “FOIA and Privacy Act,” as well as state law tort claims alleging that “[t]he conduct by 18 Defendants constitutes an abuse of process, negligent and intentional infliction of emotional 19 distress, conversion, [and] breach of the covenant of good faith and fair dealing.” Id. ¶ 52. 20 On May 17, 2019, the Court granted the Secretary’s motion to dismiss Ms. Greenlaw’s 21 Title VII, ADEA, and Rehabilitation Act claims for failure to exhaust administrative remedies. 22 Dkt. No. 37.4 Ms. Greenlaw appealed that decision to the Ninth Circuit. Dkt. No. 72. While that 23 of public records from EEOC proceedings “whose accuracy is not in dispute”). The Court also 24 takes judicial notice of Ms. Greenlaw’s own description of the discrimination alleged in the subject documents. See Pringle v. Wheeler, 478 F. Supp. 3d 899, 905 n.1 (N.D. Cal. 2020). 25 However, the Court does not accept as true any disputed facts contained in these records. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). 26

4 The Court also granted the Secretary’s motion to dismiss Ms. Greenlaw’s state law claims for 27 relief and to strike her request for punitive damages. Dkt. No. 37 at 10. The Court subsequently 1 appeal was pending, the MSPB issued its final decisions regarding her claims. Accordingly, the 2 Ninth Circuit vacated this Court’s judgment on the Title VII, ADEA, and Rehabilitation Act 3 claims and remanded the matter to this Court for further proceedings. Dkt. No. 75. 4 Following remand, the Court ordered supplemental briefing from the parties on the 5 question of what further administrative proceedings, if any, were required with respect to Ms. 6 Greenlaw’s remaining claims under Title VII, the ADEA, and the Rehabilitation Act. Dkt. No. 83. 7 Upon consideration of the parties’ supplemental briefing, the Court concluded that administrative 8 exhaustion did not implicate the Court’s subject matter jurisdiction “with respect to Ms. 9 Greenlaw’s Title VII claim, or . . . her Rehabilitation Act claim, as to which Title VII remedies, 10 rights, and procedures apply[.]” Dkt. No. 90 at 2 (citing 29 U.S.C. § 794a(a)(1)). The Court also 11 found that the Secretary did not identify a basis to preclude Ms. Greenlaw from proceeding with 12 her ADEA claim. Id. Accordingly, Ms. Greenlaw was permitted to proceed with her remaining 13 claims in this litigation. Id. at 3. 14 * * * 15 The Secretary now moves for summary judgment, renewing her argument that Ms. 16 Greenlaw did not administratively exhaust her claims and that this Court lacks subject matter 17 jurisdiction over any remaining claims for relief. Even assuming Ms. Greenlaw administratively 18 exhausted her claims, the Secretary contends that Ms. Greenlaw does not have sufficient evidence 19 to proceed to a jury trial and that her claims fail as a matter of law. 20 II. LEGAL STANDARD 21 A motion for summary judgment should be granted if there is no genuine issue of material 22 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial 24 burden of informing the court of the basis for the motion, and identifying portions of the 25 pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the 26 absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In 27 1 order to meet its burden, “the moving party must either produce evidence negating an essential 2 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 3 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 4 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 5 If the moving party meets its initial burden, the burden shifts to the non-moving party to 6 produce evidence supporting its claims or defenses. See id. at 1102. The non-moving party may 7 not rest upon mere allegations or denials of the adverse party’s evidence, but instead must produce 8 admissible evidence that shows there is a genuine issue of material fact for trial. See id. A 9 genuine issue of fact is one that could reasonably be resolved in favor of either party. A dispute is 10 “material” only if it could affect the outcome of the suit under the governing law. Anderson, 477 11 U.S. at 248-49. 12 III. DISCUSSION 13 A. Withdrawal of ADEA Claim 14 In response to the Secretary’s summary judgment motion, Ms. Greenlaw did not offer any 15 argument or evidence with respect to the ADEA. Instead, Ms. Greenlaw stated that she 16 “withdraws her claims based on age discrimination” and requests that the Court deny as moot the 17 Secretary’s summary judgment motion on those issues. Dkt. No. 127 at 1. The Secretary does not 18 oppose the withdrawal of the ADEA claim in principle. However, the Secretary argues that the 19 Court should grant her motion for summary judgment on the ADEA claim, arguing that Ms. 20 Greenlaw has conceded the motion on the merits. See Dkt. No. 128 at 1 n.1. 21 “Federal Rule of Civil Procedure 15(a) is the appropriate mechanism where a plaintiff 22 desires to eliminate an issue, or one or more but less than all of several claims, but without 23 dismissing as to any of the defendants.” Hells Canyon Pres. Council v. U.S. Forest Serv., 403 24 F.3d 683, 688 (9th Cir. 2005) (cleaned up); see also Ethridge v. Harbor House Rest., 861 F.2d 25 1389, 1392 (9th Cir. 1988). That rule provides that “[t]he court should freely give leave [to amend 26 a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). In determining whether 27 amendment should be permitted, courts consider whether the amendment would cause the 1 undue delay. Foman v. Davis, 371 U.S. 178, 182 (1962). Prejudice to the opposing party is the 2 “touchstone of the inquiry under [R]ule 15(a)” and “carries the greatest weight” among the factors 3 identified in Foman. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) 4 (per curiam). The decision whether to grant leave to amend is committed to the sound discretion 5 of the trial court. Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981). 6 “The district court may, in its discretion, impose ‘reasonable conditions’ on a grant of 7 leave to amend a complaint.” Int’l Ass’n of Machinists & Aerospace Workers v. Republic 8 Airlines, 761 F.2d 1386, 1391 (9th Cir. 1985) (citation omitted). “In determining whether to 9 impose conditions, the factors that are relevant to determining whether to grant leave initially may 10 be considered.” Id.; see also Upek, Inc. v. Authentec, Inc., No. 10-424-JF PVT, 2010 WL 11 2681734, at *4 (N.D. Cal. July 6, 2010) (“In the exercise of sound discretion, the granting of leave 12 to amend can be conditioned in order to avoid prejudice to the opposing party.”) (cleaned up). 13 Such conditions may include “that claims contained in the original complaint but not included in 14 the amended complaint be considered dismissed with prejudice.” Vanguard Logistics Servs. 15 (USA), Inc. v. Groupage Servs. of New England, LLC, No. CV 18-517 DSF (GJSx), 2021 WL 16 4520969, at *1 (C.D. Cal. Jan. 4, 2021) (quoting Matlink, Inc. v. Home Depot U.S.A., Inc., No. 07- 17 cv-1994 DMS (BLM), 2008 WL 11338407, at *1 (S.D. Cal. July 10, 2008)). 18 The Court construes Ms. Greenlaw’s statement of withdrawal as a motion for leave to 19 amend her complaint to drop her ADEA claim. See Dkt. No. 127 at ECF 5 (citing Hells Canyon). 20 Although the Secretary does not oppose withdrawal of that claim, the Secretary argues 21 persuasively that in these circumstances, it would not be fair or proper to dispose of Ms. 22 Greenlaw’s ADEA claim in a way that leaves open the possibility that she could reassert it again 23 later. The parties have litigated this matter for years and conducted considerable discovery. It was 24 only after the Secretary presented her evidence and arguments in her opening summary judgment 25 brief that Ms. Greenlaw withdrew her claim. Ms. Greenlaw has not substantively responded to the 26 Secretary’s summary judgment motion on the ADEA claim or presented any argument or evidence 27 that would preclude summary adjudication on that claim. Under these circumstances, a dismissal 1 Secretary. See AF Holdings, LLC v. Navasca, No. 12-cv-02396-EMC, 2013 WL 1748011, at *4 2 (N.D. Cal. Apr. 23, 2013) (finding legal prejudice where dismissal without prejudice would 3 deprive defendant “at the very least, of the benefit of rulings favorable to him.”). 4 Accordingly, the Court grants Ms. Greenlaw’s motion for leave to amend her complaint to 5 withdraw her claim for age discrimination under the ADEA, on the condition that the claim shall 6 be considered dismissed with prejudice. 7 B. Remaining Claims 8 There is no indication that Ms. Greenlaw’s remaining claims arise under Title VII, which 9 prohibits discrimination on the basis of an individual’s “race, color, religion, sex, or national 10 origin.” 42 U.S.C. § 2000e-2(a). Nothing in the record suggests that her allegations are based on 11 any of those protected classifications. Indeed, at the motion hearing, the parties agreed that Ms. 12 Greenlaw’s remaining claims are for disability discrimination under the Rehabilitation Act, and 13 that the alleged discrimination is based on (1) the failure to hire her for the Whistleblower 14 Investigator position; (2) the failure to promote her to the Staff Assistant position; and (3) the 15 termination of her employment as Administrative Assistant. See Dkt. No. 133. Additionally, at 16 the motion hearing, Ms. Greenlaw confirmed that the only retaliation claim that she asserts is 17 retaliation for filing an EEOC complaint. The alleged retaliation arises out of a performance 18 review Ms. Delicana gave to the Census Bureau around March 2020, several years after Ms. 19 Greenlaw was terminated from her employment with OSHA. See Dkt. No. 127 at ECF 7; see also 20 Dkt. No. 133. 21 1. Retaliation Claim 22 The parties disagree about whether Ms. Greenlaw’s retaliation claim arises under Title VII 23 or the Rehabilitation Act, and whether the claim is properly part of this lawsuit. The Secretary 24 contends that, as Ms. Greenlaw’s allegations do not implicate any protected classifications under 25 Title VII, her retaliation claim can only arise under the Rehabilitation Act. See Dkt. No. 120 at 26 ECF 29 (quoting McCarthy v. Brennan, No. 15-cv-03308-JSC, 2016 WL 946099, at *12 (N.D. 27 Cal. Mar. 14, 2016) (“[A] plaintiff may bring a retaliation claim only under the statute under 1 reprisal for engaging in prior protected activity reporting race, religion, gender, and national origin 2 discrimination; an ADEA retaliation claim can only allege reprisal for engaging in prior protected 3 activity reporting age discrimination; and so on.”). As noted above, the Secretary maintains that 4 Ms. Greenlaw has not administratively exhausted any of her claims for relief. See Dkt. No. 120 at 5 ECF 21-22; Dkt. No. 128 at ECF 7-8. Although Ms. Greenlaw’s briefing indicates that her 6 retaliation claim arises under the Rehabilitation Act (see, e.g., Dkt. No. 127 at ECF 16), at the 7 motion hearing she argued that her retaliation claim may arise under either the Rehabilitation Act 8 or Title VII, as both statutes contain anti-retaliation provisions. See Dkt. No. 133. She argues that 9 the issue of exhaustion is “irrelevant” and maintains that she administratively exhausted her 10 remedies by filing an EEOC complaint. See Dkt. No. 127 at ECF 16-17. 11 Ms. Greenlaw’s allegations do not implicate any protected classifications under Title VII, 12 and she has not demonstrated that her retaliation claim arises under that statute. Her amended 13 complaint does not allege retaliation for filing an EEOC complaint. See generally Dkt. No. 8. 14 Nor has she sought to amend her complaint to assert such a claim. Accordingly, the Secretary’s 15 summary judgment motion on Ms. Greenlaw’s retaliation claim is granted. 16 2. Rehabilitation Act: Disability Discrimination 17 The Secretary maintains that Ms. Greenlaw has never administratively exhausted any of 18 her claims, including under the Rehabilitation Act, and that the Court therefore lacks subject 19 matter jurisdiction over any claims for relief. See Dkt. No. 120 at ECF 21-22; Dkt. No. 128 at 20 ECF 7-8. As noted above, Ms. Greenlaw argues that the issue of exhaustion is “irrelevant” and 21 maintains that she administratively exhausted her remedies by filing an EEOC complaint. See 22 Dkt. No. 127 at ECF 16-17. When the Court asked the Secretary at the motion hearing about the 23 bases for her position regarding exhaustion, the Secretary stated that she had nothing to add to her 24 briefing, but asserted the Court need not reach the exhaustion issue. The Secretary stated that she 25 prefers that the Court proceed with the merits of Ms. Greenlaw’s Rehabilitation Act claim. See 26 Dkt. No. 133. 27 As discussed above, the Court has already concluded that the administrative exhaustion 1 Rehabilitation Act claim. See Dkt. No. 90. As nothing in the Secretary’s present motion compels 2 a different conclusion, and in view of the Secretary’s stated preference for the Court to address the 3 merits of Ms. Greenlaw’s Rehabilitation Act claim, the Court now does so. 4 a. Burden-Shifting Framework 5 The Rehabilitation Act provides the exclusive remedy for disability discrimination in 6 federal employment. See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985). As 7 discussed above, Ms. Greenlaw does not claim a failure to accommodate, but rather disparate 8 treatment based on her disability. To establish a prima facie case of disparate treatment under the 9 Rehabilitation Act, “a plaintiff must demonstrate that (1) she is a person with a disability, (2) who 10 is otherwise qualified for employment, and (3) suffered discrimination because of her disability.” 11 Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), superseded by statute on other 12 grounds. Because such claims are decided using the same standards as claims under Title I of the 13 ADA, see 29 U.S.C. § 791(f), Ms. Greenlaw must show that that her disability was a but-for cause 14 of the adverse employment action, i.e., “that the adverse employment action would not have 15 occurred but for the disability.” Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019); see 16 also Gunzenhauser v. Garland, No. 22-cv-03406-WHO, 2023 WL 2167387, at *4 (N.D. Cal. Feb. 17 21, 2023) (same). 18 Disability discrimination claims are subject to the burden-shifting analysis set forth in 19 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Mattioda v. Nelson, 98 F.4th 1164, 20 1178 (9th Cir. 2024) (applying McDonnell Douglas framework to Rehabilitation Act claims). 21 Under the McDonnell Douglas framework, if a plaintiff establishes a prima facie case of disability 22 discrimination, “the burden shifts to the employer to provide a non-discriminatory reason for the 23 adverse action.” Id. The employer’s burden is one of production, not persuasion. Id. at 1179 24 (citing Opara v. Yellen, 57 F.4th 709, 725-27 (9th Cir. 2023)). “If the employer meets that 25 burden, then the employee must show that the employer’s reason is pretextual.” Id. at 1178. A 26 plaintiff can establish pretext “either (1) directly, by showing that unlawful discrimination more 27 likely than not motivated the employer, (2) indirectly, by showing that the employer’s proffered 1 believable,” or through “a combination of these two kinds of evidence.” Opara, 57 F.4th at 723 2 (cleaned up; quotations and citations omitted). Generally, “very little evidence is necessary to 3 raise a genuine issue of fact regarding an employer’s motive.” Id. at 723-24 (cleaned up; 4 quotations and citation omitted). “For instance, the Supreme Court has instructed that ‘a 5 plaintiff’s prima facie case, combined with . . . evidence . . . that the employer’s asserted 6 justification is false, may’ be enough.” Id. at 724 (quoting Reeves v. Sanderson Plumbing Prods., 7 Inc., 530 U.S. 133, 148 (2000)). “However, the plaintiff at all times retains the ultimate burden of 8 persuading the trier of fact that an employer’s contested action was due in part or in whole to 9 discriminatory intent.” Id. (cleaned up; quotations and citations omitted). “Accordingly, where 10 ‘abundant and uncontroverted independent evidence’ suggests that ‘no discrimination . . . 11 occurred,’ plaintiff’s ‘creat[ion of] only a weak issue of fact as to whether the employer’s reason 12 was untrue’ will not suffice.” Id. (quoting Reeves, 530 U.S. at 148). 13 For purposes of resolving the present summary judgment motion, the first element of the 14 prima facie case is not at issue. While the Secretary disputes that Ms. Greenlaw is a person with a 15 disability, she explicitly states that she is not raising that issue in the present motion. See Dkt. No. 16 120 at ECF 25 n.4. In addition, there can be no question that unfavorable hiring or promotion 17 decisions and termination of employment constitute adverse employment actions. However, the 18 Secretary argues that she is entitled to judgment as a matter of law because Ms. Greenlaw cannot 19 establish the other elements of a prima facie case, i.e., that she is otherwise qualified for 20 employment, and that her disability was the but-for cause of any adverse employment action. 21 Even assuming Ms. Greenlaw could establish a prima facie case of disability discrimination, the 22 Secretary contends that DOL had legitimate, nondiscriminatory reasons for each of the challenged 23 employment actions and that Ms. Greenlaw cannot show that DOL’s proffered reasons were mere 24 pretext for discrimination. 25 b. Failure to Hire for Whistleblower Investigator Position 26 Ms. Greenlaw contends that she was qualified for the Whistleblower Investigator position 27 because in her prior federal employment she held a position at a pay grade commensurate with that 1 127:1).. She also notes that she received praise for certain work she performed in connection with 2 a whistleblower program while employed as an Administrative Assistant. See Dkt. No. 127-2 at 3 ECF 25, 41; Dkt. No. 127-5 (Greenlaw Dep. at 122:25-123:3). She does not articulate or explain 4 how or why her prior federal experience qualified her for the Whistleblower Investigator position, 5 or how or why her performance of certain tasks qualified her to perform the Whistleblower 6 Investigator position as a whole. She also testified that she was referred for consideration for the 7 Whistleblower Investigator position as a “highly qualified” candidate. See id. (Greenlaw Dep. at 8 133:15-20). The basis for that assertion is not clear. 9 With respect to the issue of causation, the Secretary contends that Ms. Greenlaw cannot 10 show that her disability was the but-for reason she was not selected for the Whistleblower 11 Investigator position. The Secretary points out that Mark Marchione, who was at that time a 12 Regional Supervisory Investigator in the Region 9 Whistleblower Protection Program, is the 13 person who made the hiring decision. Mr. Marchione avers that he never knew that Ms. Greenlaw 14 was disabled or had cancer. See Dkt. No. 119-1 ¶¶ 4, 5, 11, 14-15. Additionally, the Secretary 15 notes that in deposition, Ms. Greenlaw testified that, aside from the fact that Tippi was with her, 16 she did not disclose anything about her disability during the interview process. See Dkt. No. 120- 17 4, Ex. A (Greenlaw Dep. at 129:9-22); Dkt. No. 127-5 (Greenlaw Dep. at 217:10-19). Ms. 18 Greenlaw has presented no evidence raising a triable issue as to those facts. 19 Ms. Greenlaw posits that a jury reasonably could infer that Ms. Delicana, whom she 20 alleges disliked Tippi, tainted the selection process for the Whistleblower Investigator position and 21 ruined her chance of being selected. See Staub v. Proctor Hosp., 562 U.S. 411, 413 (2011) 22 (describing cat’s paw theory as “circumstances under which an employer may be held liable for 23 employment discrimination based on the discriminatory animus of an employee who influenced, 24 but did not make, the ultimate employment decision.”); Mattioda, 98 F.4th at 1178 (“Even if a 25 biased employee was not the final decisionmaker, a plaintiff may rely on a ‘cat’s paw’ theory to 26 establish a causal link by proving that the biased non-decision-making employee ‘influenced or 27 was involved in the decision or decisionmaking process.’” (quoting France v. Johnson, 795 F.3d 1 on the following undisputed facts: (1) Ms. Delicana served on the 3-person selection panel, along 2 with Mr. Marchione and James Wulff (Assistant Regional Administrator for Enforcement 3 Programs), (2) each applicant’s score was determined collectively by the panel members,5 (3) Ms. 4 Delicana testified that Mr. Marchione considered the feedback of the panel in making his hiring 5 decision and that his hiring decision was consistent with the panel’s feedback; and (4) Tippi was 6 present with Ms. Greenlaw during the interview. See Dkt. No. 120-4, Ex. A (Greenlaw Dep. at 7 129:9-22); Dkt. No. 120-4, Ex. B (Delicana Dep. at 205:2-25); Dkt. No. 127-4 (Delicana Dep. at 8 224:1-6); Dkt. No. 127-5 (Greenlaw Dep. at 217:10-25). Missing from this analysis, however, is 9 any evidence that the panel deferred to Ms. Delicana or, more fundamentally, that any panel 10 member discussed or considered Tippi or Ms. Greenlaw’s disability during the selection process. 11 Ms. Greenlaw’s reliance on a cat’s paw theory appears to be based on nothing more than her own 12 speculation that Ms. Delicana must have influenced the panel against her based on her disability. 13 See Mattioda, 98 F.4th at 1178 (finding cat’s paw theory “dubious” absent evidence that panel 14 deferred to alleged bias employee and “where the only supporting evidence is [plaintiff’s] own 15 speculative declaration and evidence that [alleged biased employee] was initially appointed to the 16 selection panel and shared the candidates’ h-indices before recusing himself.”). Cf. France v. 17 Johnson, 795 F.3d 1170, 1176 (9th Cir. 2015) (reversing summary judgment where biased 18 employee created the positions at issue, would be supervising the successful applicants, and panel 19 members deferred to his recommendations). Accordingly, Ms. Greenlaw has not presented 20 evidence sufficient to create a triable issue regarding a prima facie case of disability discrimination 21 in her non-selection for the whistleblower position. 22 Even assuming that she presented evidence establishing a prima facie case of disability 23 discrimination, the Secretary offers a legitimate nondiscriminatory reason for Ms. Greenlaw’s 24 non-selection for the Whistleblower Investigator position, and Ms. Greenlaw has not presented 25 evidence demonstrating that the Secretary’s reason is pretextual. Mr. Marchione attests that all 26 5 Although it is not entirely clear from the record presented, at the motion hearing, defense counsel 27 confirmed his understanding that applicants’ scores reflected on charts appended to Ms. 1 applicants were evaluated “based on their likelihood to succeed in the position for which they 2 were applying based on their responses to the same questions, submission of a writing sample, and 3 scores that the interview panel and hiring committee determined on a scale of one to ten.” Dkt. 4 No. 119-1 ¶ 9. Mr. Marchione further states that “applicants other than Rosemary Greenlaw had a 5 greater likelihood of succeeding as a Whistleblower Investigator.” Id. ¶ 10. The Secretary 6 submits charts indicating that applicants were scored based on their interview, as well as a number 7 of other criteria, including a writing sample. See Dkt. No. 119-2 ¶ 11, Ex. L. Those charts 8 indicate that while Ms. Greenlaw scored higher than some other applicants on her writing sample 9 and in a category titled “State Plan,” she received the lowest scores in categories titled 10 “Multitask,” “Manageability,” “Critical Thinking,” and “Oral Com,” as well as the overall lowest 11 score of all applicants interviewed by the panel. See id. Mr. Marchione also presents evidence of 12 a contemporaneous email memo he sent to Mr. Wulff and Ms. Delicana, explaining his hiring 13 decision, including highlighting the successful applicants’ prior investigatory or whistleblower 14 program experience. See Dkt. No. 119-1 ¶ 12, Ex. T. Ms. Greenlaw does not appear to contend 15 that she had comparable experience, or articulate or explain how or why such an inference 16 reasonably could be drawn from the record presented. In deposition, Ms. Greenlaw testified that 17 she did not know if any other applicants have disabilities or what criteria was used to evaluate 18 applicants, and she acknowledged that there may have been “other highly qualified candidates.” 19 See Dkt. No. 120-4, Ex. A (Greenlaw Dep. at 132:21-24, 132:15-20). 20 Accordingly, the Court grants the Secretary’s motion for summary judgment with respect 21 to Ms. Greenlaw’s Rehabilitation Act claim based on her non-selection for the Whistleblower 22 Investigator position. 23 c. Failure to Promote to Staff Assistant Position 24 Ms. Greenlaw contends that she was qualified for the Staff Assistant position because she 25 held a position at a higher pay grade in her prior federal service; in her then-current position, she 26 performed tasks that fell within the Staff Assistant position; and she received praise for certain 27 work she says is relevant to that position. See Dkt. No. 127 at ECF 19; Dkt. No. 127-2 at ECF 25, 1 Assistant position. Ms. Greenlaw says that she believed that she performed such work. See Dkt. 2 No. 127 at ECF 11. The Secretary points out that Ms. Greenlaw testified that no one at DOL told 3 her that she was performing work beyond her pay grade as an Administrative Assistant. See Dkt. 4 No. 120-4, Ex. A (Greenlaw Dep. at 155:3-6). Even assuming that Ms. Greenlaw did perform 5 tasks that fell within the Staff Assistant position and received praise for that work, she fails to 6 present any evidence (or to even articulate or explain) what the Staff Assistant position entailed, 7 how or why her prior federal experience qualified her for that position, or how or why her 8 performance of certain tasks qualified her to perform the Staff Assistant position as a whole. 9 With respect to causation, Ms. Greenlaw presents no evidence creating a triable fact issue 10 that her requested promotion would not have been denied but for her disability. The record 11 reflects that after Ms. Greenlaw requested a promotion to the Staff Assistant position, she met with 12 Ms. Delicana, Mr. Wulff, and Barbara Goto to discuss her request. In deposition, Ms. Delicana 13 recalled that during the meeting, Ms. Goto indicated that there was a hiring freeze and Ms. 14 Greenlaw’s requested promotion could be considered in the future, but not at that time. See Dkt. 15 No. 127-4 (Delicana Dep. at 219:25-222:17). The Secretary also presents evidence that the Staff 16 Assistant position was never filled by anyone. See Dkt. No. 119-2 ¶ 15. Ms. Greenlaw argues that 17 the fact that the position was never filled “does not necessarily imply absence of discrimination in 18 failing to promote [her]” to the position. Dkt. No. 127 at ECF 19. However, Ms. Greenlaw 19 presents no evidence, in the first instance, indicating that her disability was the but-for cause of the 20 denial of her requested promotion. 21 Although the degree of proof necessary under the McDonnell Douglas framework to 22 establish a prima facie case on summary judgment has been described as “minimal,” see Chuang 23 v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000), Ms. Greenlaw has not 24 presented sufficient evidence establishing a prima facie case of disability discrimination with 25 respect to the Staff Assistant position. Accordingly, the Court grants the Secretary’s summary 26 judgment motion on Ms. Greenlaw’s Rehabilitation Act claim with respect to the Staff Assistant 27 position. 1 d. Termination of Employment as Administrative Assistant 2 There is evidence in the record from which a jury reasonably could find that Ms. Greenlaw 3 was qualified for the Administrative Assistant position for which she was hired. Ms. Delicana 4 testified that Ms. Greenlaw did well in her interview, and Ms. Delicana was one of the supervisors 5 who recommended Ms. Greenlaw for the Administrative Assistant position. See Dkt. No. 120-4, 6 Ex. B (Delicana Dep. at 206:6-8); Dkt. No. 127-4 (Delicana Dep. at 20:2-14). Additionally, Ms. 7 Greenlaw points out that during her employment with OSHA, she did receive praise for some of 8 her work. See Dkt. No. 127-2 at ECF 24; see also id. at ECF 25, 41. Although the Secretary 9 references certain matters in Ms. Greenlaw’s background, the Secretary presents no evidence or 10 argument that those matters would have disqualified Ms. Greenlaw from being hired for the 11 Administrative Assistant position. While the Secretary maintains that Ms. Greenlaw was not 12 qualified for the position in view of her performance issues, the Secretary appears to conflate the 13 minimal inference needed to establish a prima facie case with Ms. Greenlaw’s burden at the third 14 stage of the McDonnell Douglas inquiry to show that the proffered reasons for her termination 15 were pretextual. See Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 16 2002). 17 There is no direct evidence in the record of any discriminatory animus. However, there is 18 circumstantial evidence in the record from which a jury reasonably could conclude that Ms. 19 Greenlaw would not have been terminated from the Administrative Assistant position but for her 20 disability. See Dkt. No. 127-2 at ECF 11. As discussed above, there is evidence that Ms. 21 Delicana was aware that Ms. Greenlaw was permitted to bring Tippi to work as a reasonable 22 accommodation. See, e.g., Dkt. No. 127-2 at ECF 13-23. While Ms. Delicana testified that she 23 personally did not have any problems with Tippi (see Dkt. 120-4, Ex. B (Delicana Dep. at 83:6-8), 24 Ms. Greenlaw argues that a jury reasonably could reach the opposite conclusion based on Ms. 25 Delicana’s notes chronicling Tippi’s behavior and her inquiries to Dr. Callwood about Tippi. See 26 Dkt. No. 127-2 at 13-23. Ms. Greenlaw also points out that the only performance review she 27 received from Ms. Delicana focused entirely on matters pertaining to her dog or her need for 1 Secretary now relies. See Dkt. No. 127 at ECF 11; Dkt. No. 127-2 at ECF 14. Thus, there is at 2 least some evidence from which a jury could infer that Ms. Delicana was biased against Ms. 3 Greenlaw based on her disability, and that Ms. Delicana provided information that led to Ms. 4 Delicana’s termination. Thus, Ms. Greenlaw has carried her burden to establish a prima facie case 5 that she would not have been terminated but for her disability. 6 The Secretary points out that Mr. Dement, not Ms. Delicana, made the decision to 7 terminate Ms. Greenlaw’s employment, that he did so for (1) poor performance and (2) conduct 8 issues, and that “[n]othing about the dog was considered” in his decision to fire Ms. Greenlaw. 9 See Dkt. No. 120-3 ¶ 11; Dkt. No. 120-4, Ex. I (Dement Dep. at 189:3-4). The Secretary has 10 satisfied her burden to present a legitimate, nondiscriminatory reason for Ms. Greenlaw’s 11 termination. 12 Ms. Greenlaw’s arguments suggest that she is proceeding on a “cat’s paw” theory with 13 respect to her termination, i.e., that Ms. Delicana disliked Ms. Greenlaw’s having Tippi at work, 14 and that Ms. Delicana influenced Mr. Dement’s termination decision. See generally Dkt. No. 127 15 at ECF 11-14, 20-23. While the Secretary presents Mr. Dement’s declaration in which he attests 16 that “[t]hroughout the time that [he] worked with [Ms. Greenlaw], [he] never knew that she had 17 cancer” or “was disabled” (Dkt. No. 120-3 ¶¶ 8-9), Ms. Greenlaw presents evidence indicating 18 that Mr. Dement was aware that Tippi was in the office as a reasonable accommodation for Ms. 19 Greenlaw (see Dkt. No. 127-2 at ECF 37-40), and that both he and Ms. Delicana discussed Tippi 20 with DOL personnel responsible for reasonable accommodation issues (see id. at ECF 38-40). 21 While there is evidence that Mr. Dement’s termination decision was based in part on matters that 22 he personally observed or witnessed, there is also evidence that he relied on Ms. Delicana’s 23 reports of Ms. Greenlaw’s performance and conduct, including Ms. Delicana’s report that Ms. 24 Greenlaw prepared meeting minutes poorly, and that after Mr. Dement says he observed Ms. 25 Greenlaw using her personal cellphone to record internal meetings, Ms. Greenlaw denied doing so 26 when asked about it. See Dkt. No. 120-4, Ex. I (Dement Dep. at 129:12-15; 214:17-20). 27 Additionally, Ms. Greenlaw notes that the Secretary principally relies on testimony from Ms. 1 corroborating the alleged performance and conduct issues for which she was terminated. See Dkt. 2 No. 127-2 at ECF 14. A jury considering this record could certainly find that Ms. Greenlaw was 3 terminated for reasons wholly unrelated to Tippi or her disability. But while Ms. Greenlaw’s 4 evidence of pretext is very thin, viewing the record as a whole and in the light most favorable to 5 Ms. Greenlaw, the Court concludes that a jury reasonably could find that Mr. Dement’s 6 termination decision was not entirely independent of Ms. Delicana’s alleged discriminatory 7 animus, and thus, a jury reasonably could find that the Secretary’s legitimate, nondiscriminatory 8 reasons for terminating Ms. Greenlaw’s employment should not be credited. Opara, 57 F.4th at 9 723; see also Greisen v. Hanken, 925 F.3d 1097, 1117 (9th Cir. 2019) (concluding that reasonable 10 jury could find that biased employee’s actions were a causal factor in termination decision by 11 another employee, where evidence indicated that termination decision was based to some degree 12 on conduct of biased employee). Cf. Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 807 (9th 13 Cir. 2009) (reversing judgment for plaintiff where evidence showed that initial report of 14 misconduct came from presumably biased supervisor, but supervisor’s “subsequent involvement 15 in the disciplinary process was so minimal as to negate any inference that the investigation and 16 final termination decision were made other than independently and without bias.”). 17 Accordingly, the Secretary’s motion for summary judgment with respect to Ms. 18 Greenlaw’s Rehabilitation Act claim based on her termination from the Administrative Assistant 19 position is denied. 20 IV. CONCLUSION 21 Based on the foregoing, the Court grants the Secretary’s motion for summary judgment in 22 part and denies it in part as follows: 23 1. Ms. Greenlaw is given leave to amend her complaint to withdraw her claim for age 24 discrimination under the ADEA, on the condition that the claim shall be considered dismissed 25 with prejudice. 26 2. The Secretary’s motion for summary judgment is granted with respect to Ms. 27 Greenlaw’s Rehabilitation Act claim based on her non-selection for the Whistleblower 1 3. The Secretary’s motion for summary judgment is denied with respect to Ms. Greenlaw’s 2 || Rehabilitation Act claim based on her termination from the Administrative Assistant position. 3 IT IS SO ORDERED. 4 Dated: January 27, 2025 5 <«® 6 Virginia K. DeMarchi 7 United States Magistrate Judge 8 9 10 11 12

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