Lucas v. Tempe Union High School District

• Court: District Court, D. Arizona
• Decided: July 15, 2019
• Docket: 2:17-cv-02302
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Tammy Lucas, et al., No. CV-17-02302-PHX-JAT

10 Plaintiffs, ORDER

11 v.

12 Tempe Union High School District,

13 Defendant. 14 15 Pending before the Court is Defendant Tempe Union High School District’s 16 (“Defendant”) Motion for Summary Judgment (“Motion,” Doc. 57). The Court now rules 17 on the Motion. 18 I. BACKGROUND 19 On September 14, 2018, Defendant filed the pending Motion (Doc. 57). Plaintiffs 20 filed a timely Response (Doc. 62) on November 5, 2018. Defendant then filed a timely 21 Reply on December 3, 2018 (Doc. 69). 22 The operative, seven-count Complaint (Doc. 25) alleges claims for race- and age- 23 based employment discrimination. (Doc. 25 at 2). 24 A. Facts 25 Plaintiff Tammy Lucas (“Plaintiff”) brought this action against Plaintiff’s former 26 employer. (Doc. 25 at 1). Plaintiff’s husband, Paul Lucas, is also listed as a plaintiff in this 27 case, but only Plaintiff maintained an employment relationship with Defendant at any 28 relevant time. (Id.); see supra Part III. The following facts are either undisputed or 1 recounted in the light most favorable to the non-moving party.1 2 Plaintiff is a 51-year-old African-American woman. (Defendant’s Statement of 3 Facts (“DSOF”), Doc. 58 ¶ 1; Plaintiff’s Statement of Facts (“PSOF”), Doc. 66 ¶ 1; see 4 also Doc. 62 at 2). Plaintiff began working as a receptionist at Marcos de Niza High School 5 (“MDN”) in 2014 under the supervision of the Assistant Principal, who is Hispanic. (DSOF 6 ¶¶ 2–3, 6; PSOF ¶¶ 2–3, 6). At the time, she was the only African-American in the front 7 office at MDN. (PSOF at 13). Plaintiff’s contract was renewed for the school years 8 beginning in 2015 and 2016, but not renewed for the school year beginning in 2017. (DSOF 9 ¶¶ 8, 44; PSOF ¶¶ 8, 44). Plaintiff initially received “good” performance evaluations from 10 Defendant, but Defendant asserts that her performance began to suffer in 2016. (DSOF ¶¶ 11 10–12; PSOF ¶¶ 10–12). Defendant states, and Plaintiff disputes, that Plaintiff’s 12 performance suffered because she neglected her duties of answering the school phone and 13 took personal calls on her cell phone during business hours. (DSOF ¶ 15; PSOF ¶ 15). 14 In March of 2016, Plaintiff applied for a Student Services position at MDN, but was 15 not selected for the position. (DSOF ¶¶ 24, 27; PSOF ¶¶ 24, 27). Defendant selected a 16 Hispanic individual over Plaintiff. (DSOF ¶ 27; PSOF ¶ 27). Plaintiff states, and Defendant 17 disputes, that she began facing harassing conduct from her Hispanic co-workers 18 immediately after she applied for the Student Services position. (DSOF ¶ 32; PSOF ¶ 32). 19 Plaintiff lodged complaints with the Assistant Principal and other superiors regarding the 20 conduct she encountered, which led to several meetings with superiors. (DSOF ¶¶ 33– 35; 21 PSOF ¶¶ 33–35). Plaintiff suffered negative health events following these meetings and 22 began seeing a therapist. (PSOF at 19). Plaintiff states that her Hispanic co-workers 23 continued their harassing behavior, which included providing false notes about Plaintiff’s 24 alleged misbehavior at work to superiors. (PSOF at 20). Plaintiff eventually filed an EEOC

25 1 While this Order cites specific paragraphs of the parties’ respective statement of facts when possible, it can only do so where Plaintiff followed the applicable District of 26 Arizona Local Rule (“Local Rule”). See District of Arizona Local Rule Civil 56.1(b) (In a party’s required statement of facts, “[e]ach additional fact must be set forth in a separately 27 numbered paragraph”). Where Plaintiff failed to comply with the Local Rules, this Order refers to page numbers in PSOF citations that do not include the applicable paragraph 28 symbol. 1 charge against Defendant on November 22, 2016. (DSOF ¶ 42; see also Doc. 25 at 8). 2 In March of 2017—after Plaintiff filed her EEOC charge—Plaintiff was placed on 3 a performance improvement plan (“PIP”), citing continued performance-related issues. 4 (DSOF ¶ 42; PSOF ¶ 42). Following the end of that school year, Defendant decided not to 5 renew Plaintiff’s employment contract for the subsequent year. (DSOF ¶ 44; PSOF ¶ 44). 6 II. LEGAL STANDARD 7 Summary judgment is appropriate when “there is no genuine dispute as to any 8 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 9 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that 10 assertion by . . . citing to particular parts of materials in the record, including depositions, 11 documents, electronically stored information, affidavits, or declarations, stipulations . . . 12 admissions, interrogatory answers, or other materials,” or by “showing that materials cited 13 do not establish the absence or presence of a genuine dispute, or that an adverse party 14 cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus, 15 summary judgment is mandated “against a party who fails to make a showing sufficient to 16 establish the existence of an element essential to that party’s case, and on which that party 17 will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 18 Initially, the movant bears the burden of demonstrating to the Court the basis for the 19 motion and the elements of the cause of action upon which the non-movant will be unable 20 to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non- 21 movant to establish the existence of material fact. Id. A material fact is any factual issue 22 that may affect the outcome of the case under the governing substantive law. Anderson v. 23 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply 24 show that there is some metaphysical doubt as to the material facts” by “com[ing] forward 25 with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. 26 Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)). A 27 dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return 28 a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant’s 1 bare assertions, standing alone, are insufficient to create a material issue of fact and defeat 2 a motion for summary judgment. Id. at 247–48. However, in the summary judgment 3 context, the Court construes all disputed facts in the light most favorable to the non-moving 4 party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). 5 At the summary judgment stage, the Court’s role is to determine whether there is a 6 genuine issue available for trial. There is no issue for trial unless there is sufficient evidence 7 in favor of the non-moving party for a jury to return a verdict for the non-moving party. 8 Liberty Lobby, Inc., 477 U.S. at 249–50. “If the evidence is merely colorable, or is not 9 significantly probative, summary judgment may be granted.” Id. (citations omitted). 10 A. Admissibility of Evidence at the Summary Judgment Stage 11 Although previously silent on the issue of admissibility of evidence at summary 12 judgment, the 2010 revision to Federal Rule of Civil Procedure (“Federal Rule”) 56 13 clarified that “materials cited to support or dispute a fact need only be capable of being 14 ‘presented in a form that would be admissible in evidence.’” LSR Consulting, LLC v. Wells 15 Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R. Civ. P. 56(c)(2)); 16 see also Maurer v. Indep. Town, 870 F.3d 380, 384 & n.1 (5th Cir. 2017) (noting that the 17 2010 amendment effectively overruled prior Fifth Circuit precedent that required 18 admissible evidence to oppose summary judgment). 19 Consistent with the applicable Federal Rules, the Ninth Circuit historically applies 20 a double standard to the admissibility requirement for evidence at the summary judgment 21 stage. See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 22 & Procedure § 2738 (3d ed. 1998). With respect to the movant’s evidence offered 23 in support of a motion for summary judgment, Ninth Circuit precedent required that it be 24 admissible both in form and in content. See Canada v. Blains Helicopters, Inc., 831 F.2d 25 920, 925 (9th Cir. 1987) (“This court has consistently held that documents which have not 26 had a proper foundation laid to authenticate them cannot support a motion for summary 27 judgment” (emphasis added); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 28 (9th Cir. 1976) (“Exhibits which have not had a proper foundation laid to authenticate them 1 cannot support a motion for summary judgment” (emphasis added)). “Because verdicts 2 cannot rest on inadmissible evidence and a grant of summary judgment is a determination 3 on the merits of the case, it follows that the moving party’s affidavits must be free of 4 hearsay.” Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1121 (E.D. Cal. 5 2006) (internal quotation marks and citations omitted; emphasis in original). 6 With respect to the non-movant’s evidence offered in opposition to a motion for 7 summary judgment, the Ninth Circuit stated that the proper inquiry is not the admissibility 8 of the evidence’s form, but rather whether the contents of the evidence are admissible. 9 Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (holding that, at summary 10 judgment, the district court should consider unsworn, inadmissible hearsay statements 11 written by the plaintiff in a diary about her diabetes symptoms to support an ADA 12 discrimination claim); see also Celotex Corp., 477 U.S. at 324 (“We do not mean that 13 the nonmoving party must produce evidence in a form that would be admissible at trial in 14 order to avoid summary judgment” (emphasis added)). Accordingly, the Ninth Circuit 15 consistently holds that a non-movant’s hearsay evidence may establish a genuine issue of 16 material fact precluding a grant of summary judgment. See Fraser, 342 F.3d at 1036- 17 37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001) (reasoning 18 that, at summary judgment in an employment discrimination suit, a plaintiff’s declaration 19 that a school official “did make [an inflammatory] statement would be enough to establish 20 a genuine issue of fact” despite concerns over hearsay and double hearsay). Thus, 21 “[m]aterial in a form not admissible in evidence may be used to avoid . . . summary 22 judgment[.]” Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993) 23 (emphasis in original)). 24 Additionally, “unlike objections to foundation and hearsay, objections that evidence 25 is not relevant or is misleading are superfluous at the summary judgment stage.” Quanta 26 Indem. Co. v. Amberwood Dev. Inc., No. CV-11-01807-PHX-JAT, 2014 WL 1246144, at 27 *2–3 (D. Ariz. Mar. 26, 2014) (internal quotation marks and citations omitted). 28 “‘Objections to evidence on the ground that it is irrelevant, speculative, and/or 1 argumentative, or that it constitutes an improper legal conclusion are all duplicative of the 2 summary judgment standard itself’ and are thus ‘redundant’ and unnecessary to consider 3 here.” Patterson v. Reliance Standard Life Ins. Co., 986 F. Supp. 2d 1140, 1144 (C.D. Cal. 4 2013) (quoting Burch, 433 F. Supp. 2d at 1119). 5 III. PRELIMINARY ISSUES 6 A. Defendant’s Evidentiary Objections 7 As a preliminary matter, Defendant objects to several of Plaintiff’s exhibits and 8 statements of fact (or evidence underlying the statements) on the grounds that they are 9 inadmissible. (Doc. 69 at 1–3).2 As detailed herein, however, a non-moving party may 10 establish a genuine issue of material fact at the summary judgment stage by relying on 11 evidence that is not in an admissible form. See supra Part II(A). To the extent Plaintiff 12 relies on hearsay evidence to support her claims at this stage, that evidence “could be 13 presented in an admissible form at trial—namely, the plaintiff [or appropriate individual] 14 could testify from her personal knowledge.” Cook v. Lee, No. CV-17-02569-PHX-DGC 15 (JFM), 2019 WL 2525373, at *3 (D. Ariz. June 19, 2019) (citing Fraser, 342 F.3d at 1036). 16 Accordingly, Defendant’s evidentiary objections are overruled without prejudice to raise 17 any appropriate objections at trial. Just as Defendant’s Reply (Doc. 69) “attempt[s] to 18 object” to various facts offered by Plaintiff “in the context of its legal argument,” the Court 19 will do the same in its analysis. (Doc. 69 at 3).3 20 B. Derivative Claims 21 Next, Defendant points out that the operative Complaint (Doc. 25) “does not allege 22 facts to support any claim by Plaintiff’s husband, Paul Lucas, and [it] does not assert any 23 claim personal to him.” (Doc. 57 at 7). Plaintiffs confirm that “[Paul] Lucas has not and 24 did not intend to bring a derivative claim.” (Doc. 62 at 2). Consequently, “[Plaintiff]

25 2 Specifically, Defendant objects to Plaintiff’s Exhibits 3, 4, 5, and 8 on the grounds that each exhibit lacks foundation and contains inadmissible hearsay. (See Doc. 69 at 1). 26 3 The Court notes that “statements in declarations based on speculation or improper 27 legal conclusions, or argumentative statements, are not facts and likewise will not be considered on a motion for summary judgment. Objections on any of these grounds are 28 simply superfluous in this context.” Burch, 433 F. Supp. 2d at 1119. 1 concedes that [Paul] Lucas’s claim . . . should be dismissed.” (Id.). To the extent the 2 Complaint (Doc. 25) could be read to state a claim by Paul Lucas, Defendant is entitled to 3 summary judgment on any such claim brought by Paul Lucas. 4 C. Punitive Damages 5 Additionally, the Complaint (Doc. 25) seeks punitive damages for Counts I through 6 VI. (See Doc. 25 at 10–14). Defendant points out that “[t]he only defendant here is Tempe 7 Union High School District,” and “[p]ublic entities are not subject to punitive damages 8 under federal or state law.” (Doc. 57 at 14 (citing 42 U.S.C. § 1981a(b)(1); Ariz. Rev. Stat. 9 § 12-820.04)). Likewise, Plaintiff “concedes” that “the punitive damages claim should be 10 dismissed.” (Doc. 62 at 2). Accordingly, the Court finds that Defendant—a public entity 11 cannot be subject to punitive damages in this case. 12 D. Pinpoint Citations 13 Finally, Defendant argues that Plaintiff’s Response (Doc. 62) violates Federal Rule 14 56(c)(1)(A) by failing to cite “particular parts of materials in the record” in “asserting that 15 a fact cannot be or is genuinely disputed.” (See Doc. 69 at 3–4 (citing Fed. R. Civ. P. 16 56(c)(1)(A)). Here, Plaintiff states in her Response (Doc. 62) that she “presented 17 admissible relevant evidence in her [PSOF, ] which is incorporated herein by reference 18 because of page limits.” (Doc. 62 at 5). Plaintiff then fails to provide any pinpoint citations 19 to particular parts of the record throughout her entire Response (Doc. 62). (See generally 20 id.). Page limits do not excuse a party from providing pinpoint citations in the body of a 21 brief or memorandum. See Fed. R. Civ. P. 56(c)(1)(A). Defendant argues that “[t]his 22 omission alone should entitle Defendant to summary judgment.” (Doc. 69 at 3). Federal 23 Rule 56(c)(3) states that “[t]he court need consider only the cited materials, but it may 24 consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). Despite Plaintiff’s failure 25 to comply with the Federal Rules or Local Rules regarding citations, the Court nevertheless 26 “cull[s] through the record to try to locate evidence for Plaintiff on each claim” where it 27 may be found. (Doc. 69 at 4); see supra n.1.4

28 4 While the Court, in its discretion, chose to do so in this instance, it notes that it is under no obligation to consider materials not cited with particularly in the future. Mason v. 1 IV. DISCUSSION 2 Plaintiff asserts four types of claims on the basis of race under Title VII of the Civil 3 Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981: hostile 4 work environment, disparate treatment, retaliation, and failure to hire. (See Doc. 25 at 2). 5 Plaintiff also asserts a single claim under 29 U.S.C. § 623 for failure to hire on the basis of 6 age. (See id.). “The Court notes at the outset that legal principles applicable to the Title VII 7 claims apply with equal force to the claims brought under § 1981.” See Newton v. Suncrest 8 Healthcare Ctr., LLC, No. CV-08-711-PHX-DGC, 2009 WL 4151180, at *1 (D. Ariz. Nov. 9 23, 2009) (citing Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 851 (9th Cir. 10 2004) (disparate treatment)); Mannatt v. Bank of Am., NA, 339 F.3d 792, 798, 800–01 (9th 11 Cir. 2003) (hostile work environment and retaliation)). 12 A. Disparate Treatment Claims (Counts I and VI) 13 Plaintiff asserts disparate treatment claims under 42 U.S.C. § 1981 and Title VII. 14 (See Doc. 25 at 2 (Counts I and VI, respectively)). 15 1. Legal Standard 16 Title VII makes it unlawful for an employer to discriminate against any individual 17 with respect to her “compensation, terms, conditions, or privileges of employment, because 18 of such individual’s race[.]” 42 U.S.C. § 2000e–2(a)(1). “Similarly, § 1981 prohibits [race] 19 discrimination in the ‘benefits, privileges, terms and conditions’ of employment.” Surrell 20 v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (quoting 42 U.S.C. § 21 1981(b)).5 22 Under the United States Supreme Court’s McDonnell Douglas burden-shifting 23 framework, a plaintiff carries the initial burden to establish “a prima facie case of racial 24 Ryan, No. CV 17-08098-PCT-DGC (MHB), 2019 WL 1382468, at *2 (D. Ariz. Mar. 27, 25 2019) (citing Fed. R. Civ. P. 56(c)(3); and doing the same). 26 5 “Claims of disparate treatment arising under Title VII and section 1981 are parallel because both require proof of intentional discrimination. The same standards are used to 27 prove both claims, and facts sufficient to give rise to one are sufficient to give rise to the other.” Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985) (internal citations 28 omitted). 1 discrimination.” Scott v. City of Phoenix, No. CV-09-0875-PHX-JAT, 2011 WL 3159166, 2 at *4 (D. Ariz. July 26, 2011) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 3 802 (1973)). “Absent direct evidence of discrimination,” as here, “a Title VII plaintiff may 4 prove [her] case through circumstantial evidence, following the burden-shifting framework 5 established in McDonnell Douglas.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 6 2002). To establish a prima facie case under Title VII, the plaintiff must show: 7 (1) that the plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff performed his or her job 8 satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the plaintiff’s employer 9 treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as 10 the plaintiff. 11 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citing 12 McDonnell Douglas, 411 U.S. at 802). 13 The burden then shifts to the defendant to articulate some “legitimate, 14 nondiscriminatory reason” for the challenged employment action. Id. If the defendant 15 carries its burden, then the plaintiff “is afforded an opportunity to demonstrate that the 16 assigned reason was a pretext or discriminatory in its application.” Washington v. Garrett, 17 10 F.3d 1421, 1432 (9th Cir. 1993), as amended on denial of reh’g (Jan. 26, 1994) (internal 18 quotation marks and citation omitted). “At the summary judgment stage, the plaintiff does 19 not have to prove that the [defendant’s] reason for firing her was pretext for discrimination, 20 but the plaintiff must introduce evidence sufficient to raise a genuine issue of material fact 21 as to whether the [defendant’s] reason was pretextual.” Drottz v. Park Electrochemical 22 Corp., No. CV 11-1596-PHX-JAT, 2013 WL 6157858, at *6 (D. Ariz. Nov. 25, 2013) 23 (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000)). 24 2. Analysis 25 a. Prima Facie Case 26 First, it is undisputed that Plaintiff is African-American. (DSOF ¶ 1; PSOF ¶ 1). 27 Thus, it is undisputed that Plaintiff belongs to a class of persons protected by Title VII. See 28 42 U.S.C. § 2000e–2(a)(1). 1 Second, it is undisputed that Plaintiff received positive performance evaluations at 2 the beginning of her employment. (DSOF ¶¶ 9–11; PSOF ¶¶ 9–11). Beginning in 2016, 3 Defendant contends that Plaintiff’s performance began to decline. (DSOF ¶ 12). 4 Conversely, Plaintiff contends that “students and teachers were praising [her] 5 performance” throughout her employment, and she only received negative performance 6 evaluations after she applied, and was not selected, for the student services position. (PSOF 7 ¶ 12 (citing Doc. 67-7 at 3, 9 (noting that Plaintiff received an “Employee of the Month” 8 award from staff in 2017))). Plaintiff continues that these negative evaluations were based 9 on “untrue statements” from Plaintiff’s Hispanic co-workers who were agitated by her 10 efforts to obtain the student services position over a Hispanic applicant. (PSOF ¶ 12 (citing 11 Doc. 67-7 at 3)). Thus, the Court finds that Plaintiff makes a prima facie showing of 12 satisfactory performance. See Ellison, 357 F.3d at 1075. Defendant’s conflicting depiction 13 demonstrates that there is a disputed issue of fact regarding Plaintiff’s level of performance. 14 Third, “[f]or claims of disparate treatment under Title VII, an adverse employment 15 action is one that materially affects the compensation, terms, conditions, or privileges of 16 employment.” Campbell v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) 17 (internal quotation marks and citation omitted). Here, Defendant concedes that Plaintiff 18 alleges “three actions that could qualify as ‘adverse employment actions’: (a) Plaintiff was 19 not selected for the Student Services position, (b) she was given unfair write-ups and was 20 placed on a PIP, and (c) her contract was not renewed.” (Doc. 57 at 7–8). “The Court agrees 21 that each of the actions constituted an adverse employment action under Title VII.” See, 22 e.g., France v. Johnson, 795 F.3d 1170, 1172 (9th Cir. 2015), as amended on reh’g (Oct. 23 14, 2015) (reasoning that a plaintiff established a prima facie case of discrimination when 24 not selected for a promotion); E.E.O.C. v. Evergreen All. Golf Ltd., LP, No. CV 11-0662- 25 PHX-JAT, 2013 WL 4478870, at *10 (D. Ariz. Aug. 21, 2013) (“placing [the plaintiff] on 26 a PIP was an adverse employment action”); Okonkwo v. Arizona State Univ., No. CIV 01- 27 1231-PHX-SRB, 2003 WL 26117561, at *9 (D. Ariz. Dec. 22, 2003), aff’d, 124 Fed. Appx. 28 510 (9th Cir. 2005) (“the expiration of a contract without renewal . . . likely would be 1 considered an adverse employment action”). Accordingly, Plaintiff satisfies the third prong 2 of a prima facie case under Title VII. 3 Fourth, Plaintiff argues that she was treated differently than her Hispanic co- 4 workers based on her race. (See Doc. 62 at 14). Regarding the Student Services position, 5 Defendant argues that Plaintiff was not similarly situated to the Hispanic individual who 6 got the job because “Spanish fluency was a job requirement, and Plaintiff does not speak 7 Spanish.” (Doc. 57 at 8 (Defendant does not provide a citation for this point in its 8 Motion)).6 Conversely, Plaintiff “denies that Spanish was a requirement” and states that 9 Defendant “advertised the job as Spanish preferred but not required.” (PSOF ¶ 24 (citing 10 Doc. 67-7 at 7)). Moreover, Plaintiff contends that the individual hired over her for the 11 Student Services position “did not speak fluent Spanish and asked for help with [] Spanish.” 12 (PSOF ¶ 24). Plaintiff next claims that the successful candidate’s immediate predecessor 13 also did not speak Spanish. (Id.). Defendant represents that the individual it hired for the 14 position “was nearly fluent in Spanish,” which does not meet its own purported 15 requirement of fluency. (Doc. 57 at 8 (emphasis added)).7 The Court finds that there are 16 disputed issues of fact regarding the job requirements for the Student Services position and 17 qualification distinctions between Plaintiff and the successful candidate.8 In viewing the 18 evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff makes a prima 19 facie case that she was treated differently than the successful Student Services candidate 20 6 At oral argument, however, Defendant’s counsel stated that Defendant “preferred 21 … someone in that position to be able to speak Spanish.” (Oral Argument Transcript (“Tr.”) at 42:8–9 (emphasis added)). The Court observes this is inconsistent with 22 Defendant’s briefing. (Compare id., with Doc. 57 at 3, 8 (stating that Spanish fluency was a “requirement”)). 23 7 At oral argument, Defendant similarly conceded that the individual it hired over 24 Plaintiff “is not fluent, but [is] conversational.” (Tr. at 42:11 (emphasis added)). 25 8 The parties also present different positions on which computer programs the position required candidates be familiar with. (Compare PSOF ¶ 24 (“The most important 26 aspect of the job was knowledge of a computer program called Synergy . . . [the interviewer] did not [ask] about Microsoft”), with Doc. 57 at 8 (arguing that the successful 27 candidate also got the position because the candidate “knew different computer programs” than Plaintiff), and Doc. 68 at 6 (citing the successful candidate’s “knowledge of . . . the 28 entire Microsoft Office suite” as a distinguishing credential)). 1 who does not belong to her protected class. 2 Regarding the PIP, Plaintiff contends that her Hispanic co-workers engaged in the 3 same conduct without facing similar discipline. (See Doc. 62 at 14). Defendant contends 4 that Plaintiff was written up and placed on a PIP, in part, because “no one socialized or 5 misused their cell phone as much as Plaintiff did.” (Doc. 69 at 5). Conversely, Plaintiff 6 contends that “[h]er Hispanic coworkers could socialize, freely use their cell phones and 7 take notes without being written up.” (Doc. 62 at 14 (citing Doc. 68-1 at 5 (a former co- 8 worker supports Plaintiff’s contention that she was not “on her personal calls in an 9 excessive manner”))). The Court finds that there are disputed issues of fact regarding 10 Plaintiff’s conduct in the workplace and how Plaintiff’s conduct compares to that of her 11 Hispanic co-workers who were not disciplined for the alleged conduct. 12 Regarding the non-renewal of Plaintiff’s contract, Defendant contends that 13 “Plaintiff cannot establish that she was doing her job satisfactorily when she was non- 14 renewed[, which] defeats her disparate treatment claim.” (Doc. 57 at 8). Consistent with 15 the reasoning herein, the finding that there is a disputed issue of fact regarding Plaintiff’s 16 performance defeats the premise of Defendant’s argument. See supra Part IV(A)(2)(a).9 In 17 viewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff 18 establishes all four elements of a prima facie case of disparate treatment under Title VII. 19 b. Burden-Shifting Framework 20 In analyzing Plaintiff’s prima facie case, the Court examined the “legitimate, 21 nondiscriminatory reasons” provided by Defendant for the challenged employment actions. 22 Cornwell, 439 F.3d at 1028; see also supra Part IV(A)(2)(a). Specifically, Defendant 23 argues that Plaintiff was not selected for the Student Services position because she lacked 24 the required skills possessed by the successful candidate. (See Doc. 57 at 8). Plaintiff, 25 however, contends that Spanish fluency was not required and that the successful candidate 26 was nonetheless not fluent in Spanish either. (PSOF ¶ 24). The Court cannot conclude

27 9 Plaintiff also provides an example of another co-worker whose contract was renewed despite being on a PIP, and a Hispanic co-worker who was transferred to another 28 school “when issue[s] arose with his work,” rather than non-renewed. (Doc. 62 at 8). 1 which position is most credible at the summary judgment stage, particularly without a copy 2 of a job description. See Liberty Lobby, Inc., 477 U.S. at 255 (“Credibility determinations, 3 the weighing of the evidence, and the drawing of legitimate inferences from the facts are 4 jury functions, not those of a judge” at the summary judgment stage). Accordingly, the 5 Court finds that Plaintiff raises a genuine issue of material fact as to whether Defendant’s 6 proffered reason for selecting another candidate for the Student Services position was 7 pretextual. See Drottz, 2013 WL 6157858, at *6 (citation omitted). 8 Similarly, Plaintiff raises genuine issues of fact as to Defendant’s “legitimate, 9 nondiscriminatory reasons” for placing Plaintiff on a PIP and not renewing her contract, 10 respectively. Cornwell, 439 F.3d at 1028; see also supra Part IV(A)(2)(a). First, Plaintiff 11 contends that she acted in like manner with her Hispanic co-workers—with the support of 12 a corroborating witness—who were not placed on PIPs and did not receive discipline for 13 similar actions. (See Doc. 62 at 14 (citing Doc. 68-1 at 5)). Next, in an effort to negate 14 Defendant’s position that performance was the reason for her non-renewal, Plaintiff 15 contends that her performance was indeed satisfactory, and complaints were based on false 16 information provided by her Hispanic co-workers. (See PSOF ¶ 12 (citing Doc. 67-7 at 3 17 9)). Accordingly, the Court finds that Defendant is not entitled to summary judgment on 18 Plaintiff’s disparate treatment claims.10 19 B. Hostile Work Environment Claims (Counts I and VI) 20 Plaintiff similarly asserts hostile work environment claims under 42 U.S.C. § 1981 21 and Title VII. (See Doc. 25 at 2 (Counts I and VI, respectively)).11

22 10 Additionally, Defendant argues that “the actors who non-renewed Plaintiff were the same actors who had hired her,” thus creating a “strong inference” of no discriminatory 23 motive. (Doc. 57 at 9 (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) (holding that a strong inference applies when “both actions occur within a short 24 period of time;” there, the first action occurred in April with the adverse action occurring the same August))). Here, Plaintiff was non-renewed “three years” after she was initially 25 hired by Defendant and there was at least some turnover among those involved in the interviewing and non-renewal processes. (See id. at 2, 9 (the Assistant Principal who 26 interviewed Plaintiff appeared to no longer be involved at the point at which Plaintiff was non-renewed and the new Assistant Principal, who did not interview Plaintiff, was directly 27 involved with the non-renewal decision)). Accordingly, the Court finds this inference does not overcome the genuine issues of fact identified herein. 28 11 Although the Complaint (Doc. 25) does not distinguish between Plaintiff’s 1 1. Legal Standard 2 To prevail on a hostile work environment claim on the basis of race, a plaintiff must 3 show: “(1) that [s]he was subjected to verbal or physical conduct of a racial [] nature; (2) 4 that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or 5 pervasive to alter the conditions of the plaintiff’s employment and create an abusive work 6 environment.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as 7 amended (Jan. 2, 2004) (citation omitted). “The working environment must both 8 subjectively and objectively be perceived as abusive.” Fuller v. City of Oakland, Cal., 47 9 F.3d 1522, 1527 (9th Cir. 1995), as amended (Apr. 24, 1995). To determine if the conduct 10 was sufficiently severe or pervasive to support a claim, “the Court should look at all the 11 circumstances; including, the frequency of the discriminatory conduct, the severity of the 12 conduct, whether the conduct is physically threatening or humiliating; and whether the 13 conduct unreasonably interferes with employee’s work performance.” Drottz, 2013 WL 14 6157858, at *10 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). 15 2. Analysis 16 Here, Plaintiff provides several examples of conduct that she argues gave rise to a 17 hostile work environment. Specifically, Plaintiff claims that her co-workers excluded her 18 from office events, spoke Spanish to each other in the office—which she did not speak— 19 and looked at her and laughed, and left a photograph of Hispanic co-workers on her desk 20 labeled, “Smile every day, 100 Burrito Nation.” (See Doc. 57 at 9–10; PSOF ¶ 19). Plaintiff 21 states that she “believed her co-workers placed the ‘Burrito Nation’ picture on her 22 workstation as part of a plan to get rid of her” in delineating who was and was not (her) 23 part of the group. (PSOF ¶ 19; DSOF ¶ 19 (Plaintiff testified in her deposition that the 24 caption “meant that Hispanics rule, that ‘we’re 100 percent Hispanic nation, and you’re not 25 one of us.’”)).12 Plaintiff claims that the allegedly unwelcomed acts occurred only after she

26 “hostile work environment and/or disparate treatment” claims, the Court will do so herein. (See Doc. 25 at 2). 27 12 The Ninth Circuit periodically uses the website “Urban Dictionary” to provide 28 additional context for slang terms. See, e.g., Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1044 n.13 (9th Cir. 2015). Urban Dictionary defines the term 1 applied for the Student Services position ultimately attained by a Hispanic individual. 2 (PSOF at 17–18). Plaintiff continues that her co-workers advanced their alleged plan to rid 3 her from the office by lodging false complaints against her, which led to contentious 4 meetings. (PSOF ¶¶ 13, 23). 5 a. Elements (1) and (2) 6 First, Plaintiff implicitly argues that the conduct at issue was of a “racial nature” by 7 the fact that she was the only African-American in the office and all of the co-workers who 8 allegedly targeted her are Hispanic. (PSOF at 13). Next, Plaintiff argues that the conduct 9 was unwelcomed based on her complaints to management regarding the “Burrito Nation” 10 picture and other alleged instances of bullying, which Plaintiff claims were disregarded 11 without proper consideration or remedial action. (PSOF at 18). Plaintiff further alleges the 12 conduct was so unwelcomed that she “took physically ill” as a result of workplace 13 confrontations and “began seeing a therapist to cope with the hostility at work.” (PSOF at 14 19). Defendant does not substantively contest Plaintiff’s arguments as to the first two 15 elements, but rather confines its arguments to the third element of hostile work 16 environment claims. (See Doc. 57 at 9–10). Accordingly, the Court finds that Plaintiff 17 satisfies the first two elements of her hostile work environment claims at this stage. 18 b. Element (3) 19 As to the third element, Defendant argues that “[t]hese incidents do not come close 20 to the severe, pervasive conduct required to support a hostile work environment claim.” 21 (Doc. 57 at 10). “In assessing whether a work environment is sufficiently hostile, the 22 [C]ourt examines the frequency of the discriminatory conduct; its severity; whether it is 23 physically threatening or humiliating, or a mere offensive utterance; and whether it 24 unreasonably interferes with an employee’s work performance.” Reynaga v. Roseburg 25 Forest Products, 847 F.3d 678, 687 (9th Cir. 2017) (internal quotation marks and citation 26 omitted). “The required level of severity or seriousness varies inversely with the 27 “100” as follows: “to stay true; to be real; straight up.” 100, Urban Dictionary, 28 https://www.urbandictionary.com/define.php?term=100 (last visited June 20, 2019). 1 pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 2 864, 872 (9th Cir. 2001) (internal quotation marks and citation omitted). The “objective 3 severity of harassment should be judged from the perspective of a reasonable person in the 4 plaintiff’s position, considering ‘all the circumstances.’” Id. at 872 (citing Oncale v. 5 Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998)). 6 Defendant points out that “Title VII is not ‘a general civility code for the American 7 workplace.’” Porter v. California Dept. of Corr., 419 F.3d 885, 893 (9th Cir. 2005) 8 (quoting Oncale, 523 U.S. at 80). “Simple teasing, offhand comments, and isolated 9 incidents (unless extremely serious) are not sufficient to create an actionable claim under 10 Title VII, but the harassment need not be so severe as to cause diagnosed psychological 11 injury.” Reynaga, 847 F.3d at 687 (internal quotation marks and citation omitted). “It is 12 enough if such hostile conduct pollutes the victim’s workplace, making it more difficult 13 for her to do her job, to take pride in her work, and to desire to stay in her position.” Id. 14 (internal quotation marks and citation omitted). 15 Several of the incidents Plaintiff raises bear on civility, rather than actionable 16 employment discrimination. The Ninth Circuit has held that excluding a co-worker from 17 office events, in isolation, does not rise to the level of actionable discrimination. See, e.g., 18 Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (“Because an employer 19 cannot force employees to socialize with one another, ostracism suffered at the hands of 20 coworkers cannot constitute an adverse employment action” (citing Strother v. Southern 21 Cal. Permanente Med. Group, 79 F.3d 859 (9th Cir. 1996) (“mere ostracism in the 22 workplace is not enough to show an adverse employment decision”))). Likewise, the fact 23 that Plaintiff’s Hispanic co-workers allegedly made fun of Plaintiff by speaking Spanish to 24 each other and laughing in front of Plaintiff does not rise to the level of a Title VII violation. 25 See, e.g., Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (finding that 26 occasional, race-based jokes told behind the back of a minority employee—“while 27 offensive and inappropriate”—were insufficient to support a hostile work environment 28 claim); Jordan v. Clark, 847 F.2d 1368, 1374–75 (9th Cir. 1988) (finding no hostile work 1 environment where “off-color” jokes were told in workplace). 2 Conversely, Plaintiff argues that the fact that she was repeatedly singled out as the 3 only member of her race in the office contributed to a hostile work environment. (See Doc. 4 62 at 13). Plaintiff cites the “Burrito Nation” incident as a turning point in her employment 5 experience. (PSOF ¶ 20 (Plaintiff “took the Burrito Nation [picture] as a threat”)). While 6 Plaintiff described the incident as an act of “bullying,” Defendant does nothing to provide 7 an alternative explanation for the photograph beyond announcing that its investigation 8 concluded that “the photograph was neither discriminatory nor bullying towards Plaintiff.” 9 (Doc. 57 at 12; see also Doc. 69 at 8 n.4). In viewing the evidence in the light most 10 favorable to Plaintiff, and without the benefit of an alternative explanation, the Court 11 cannot conclude that the “Burrito Nation” photograph would not be seen as discriminatory 12 to a reasonable person in Plaintiff’s position. 13 Next, Plaintiff contends that following her complaints of the “Burrito Nation” 14 incident, the District Associate Superintendent only “half-heartedly conducted an 15 investigation into [Plaintiff’s] complaints” and did not interview principal actors who were 16 members of his same race. (Doc. 62 at 6). In turn, Plaintiff’s Hispanic co-workers allegedly 17 “began keeping false notes on [Plaintiff’s] workday,” which turned into complaints against 18 Plaintiff, “hostile meetings” with supervisors, and Defendant placing Plaintiff on a PIP. 19 (Id. at 7; see also PSOF ¶ 21; Doc. 67-2 at 2–15). At one such meeting, Plaintiff contends 20 that a superior “became physically threatening to the point where [another superior] had to 21 restrain [the first].” (Doc. 62 at 13). Plaintiff argues that she was specifically singled out 22 for placement on a PIP and subjected to different rules than her Hispanic co-workers, which 23 included an order that she not speak to a friendly co-worker. (Id. at 6 (Plaintiff’s supervisors 24 “made special rules that applied only to her,” while her Hispanic co-workers allegedly 25 engaged in similar activities without discipline)). The negative health effects Plaintiff 26 suffered further demonstrates the severity of the conduct. (See PSOF at 19); see also 27 Reynaga, 847 F.3d at 687. 28 All together, the confluence of circumstances demonstrates the pervasiveness of the 1 allegedly discriminatory conduct. See Drottz, 2013 WL 6157858, at *10. The fact that 2 Plaintiff was the only African-American in her office and subjected to allegedly hostile 3 conduct also strengthens her claim. See, e.g., Cornwell, 439 F.3d at 1023 (reversing a grant 4 of summary judgment on a racial discrimination claim, in part based on the fact that the 5 plaintiff was singled out as the “only African American member” of her work team); 6 Washington, 10 F.3d at 1434 (finding “that an atmosphere of racial tension existed in the 7 office” to support an employment discrimination action when the plaintiff was singled out 8 as “the only black person” in an office where members of other races were allegedly treated 9 more favorably). Viewing the evidence in the light most favorable to Plaintiff, the Court 10 finds that a reasonable trier of fact could conclude that the conduct endured by Plaintiff 11 was sufficiently severe or pervasive to create a hostile work environment. Accordingly, 12 Defendant is not entitled to summary judgment on Plaintiff’s hostile work environment 13 claims. 14 C. Failure to Hire Claims on the Basis of Race (Counts III and IV) 15 Next. Plaintiff asserts claims for “failure to hire based upon race” under 42 U.S.C. 16 § 1981 and Title VII. (See Doc. 25 at 2 (Counts III and IV, respectively)). These claims are 17 functionally identical to Plaintiff’s disparate treatment claims because “a claim for failure 18 to hire [is] based on disparate treatment.” Ting v. Adams & Associates, Inc., No. 2:16-CV- 19 01309-TLN-KJN, 2017 WL 4422508, at *5 (E.D. Cal. Oct. 5, 2017); see also Carroll v. 20 City of Tempe, No. 2:10-CV-01425 JWS, 2010 WL 5343311, at *2 (D. Ariz. Dec. 22, 2010) 21 (addressing a claim for “failure to promote” as a disparate treatment claim). 22 “A court may dismiss duplicative claims in its discretion.” W. Veg-Produce, Inc. v. 23 Lexy Group, No. 2:18-CV-00180-ODW (AGRs), 2018 WL 1804689, at *5 (C.D. Cal. Apr. 24 16, 2018) (citation omitted); see also Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 25 81 (D.D.C. 2010) (“As a matter of judicial economy, courts should dismiss a claim if it is 26 duplicative of another claim in the suit.”). Claims are duplicative when they “stem from 27 identical allegations, that are decided under identical legal standards, and for which 28 identical relief is available.” Wultz, 755 F. Supp. 2d at 81; see also Grismore v. Capital 1 One F.S.B., No. CV 05-2460-PHX-SMM, 2007 WL 841513, at *6 (D. Ariz. Mar. 16, 2007) 2 (dismissing the duplicative claim upon recognizing an “attempt to yield two separate yet 3 identical claims out of one incident”). Because Plaintiff relies on the same underlying 4 adverse employment actions and related allegations to establish her disparate treatment 5 claims (Counts I and VI) and failure to hire on the basis of race claims (Counts III and IV), 6 the Court will dismiss the latter claims as duplicative. 7 D. Retaliation (Counts II and V) 8 Plaintiff also asserts retaliation claims under 42 U.S.C. § 1981 and Title VII. (See 9 Doc. 25 at 2 (Counts II and V, respectively)). 10 1. Legal Standard 11 To establish a prima facie case of retaliation under 42 U.S.C. § 1981 or Title VII, a 12 plaintiff must establish: “(1) that [s]he engaged in a protected activity; (2) that [s]he 13 suffered an adverse employment decision; and (3) that a causal link exists between the 14 protected activity and the employment decision.” Romero v. UPS, No. CV 04 1787 PCT 15 JAT, 2007 WL 779693, at *4 (D. Ariz. Mar. 12, 2007) (citing Lyons v. England, 307 F.3d 16 1092, 1118 (9th Cir. 2002)). Notably, “the causal link between the protected activity and 17 the employer's action in a retaliation claim under Title VII must be proved according to 18 traditional principles of but-for causation.” Drottz, 2013 WL 6157858, at *14 (citing Univ. 19 of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). 20 “If [the plaintiff] establishes a prima facie case, then the burden shifts to [the 21 defendant] to establish a non-retaliatory reason for the adverse employment decision.” Id. 22 (citing Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)). “If [the defendant] 23 offers a legitimate, non-retaliatory reason, then the burden returns to [the plaintiff] to show 24 that the reason is a pretext for retaliation.” Id. (citing Brooks, 229 F.3d at 928). 25 2. Analysis 26 First, Plaintiff engaged in a protected activity by filing an EEOC charge. See, e.g., 27 Gil v. JPMorgan Chase Bank, N.A., No. CIV 07-0181-PHX-SMM, 2009 WL 166930, at 28 *6 (D. Ariz. Jan. 26, 2009) (filing an EEOC charge establishes the first element of a prima 1 facie claim for retaliation). Second, Plaintiff suffered the adverse employment actions of 2 being placed on a PIP and later non-renewed after she filed the EEOC charge. See, e.g., 3 Isom v. JDA Software Inc., No. CV-12-02649-PHX-JAT, 2015 WL 3953852, at *11 (D. 4 Ariz. June 29, 2015) (reasoning that a plaintiff “suffered adverse employment actions when 5 she was placed on the [PIP]” and later terminated). Third, Plaintiff implicitly argues that 6 there is a causal link between her filing an EEOC charge and placement on a PIP because 7 Defendant “did not put her on a PIP until after [Plaintiff] filed an EEOC charge.” (PSOF ¶ 8 42). 9 “With respect to causation, Plaintiff presents no direct evidence that her complaints 10 or filing of the EEOC charge were the but-for cause of an adverse employment action.” 11 Isom, 2015 WL 3953852, at *12; (see also PSOF). “This raises the issue as to whether 12 temporal proximity alone can support a causal link between a protected activity and an 13 adverse employment action.” Id. While previously sufficient under Ninth Circuit law, the 14 Supreme Court recently clarified “that proximity in time combined with knowledge of the 15 protected activity is insufficient for the Court to find a disputed issue of fact on causation.” 16 Id. (citing Drottz, 2013 WL 6157858, *15 (internal quotation marks omitted)). Because 17 “Plaintiff’s contentions rest entirely on the temporal proximity between these actions and 18 her complaints [and] Plaintiff offers no evidence showing that retaliation was a motivating 19 factor for these actions, much less their but-for cause,” Plaintiff fails to satisfy element 20 three of a prima facia case for retaliation under Title VII. Accordingly, the Court finds that 21 Defendant is entitled to summary judgment on Plaintiff’s claims for retaliation. 13

22 13 The operative Complaint (Doc. 25) scantly mentions the term “retaliation.” (See Doc. 25 at 5, 8). Because Plaintiff did not set forth the facts upon which each specific claim 23 is based, nor does Plaintiff address the specifics of her retaliation claims in her Response (Doc. 62), the Court can only hypothesize about the basis for her retaliation claims. (See 24 generally id.). 25 The Court best understands Plaintiff’s retaliation claims to relate to the protected activity of filling an EEOC charge because Plaintiff indicates that Defendant acted in 26 “retaliation” after she filed the charge. (See id. at 8). Elsewhere, Plaintiff complains that Defendant’s inability to take sufficient action “to rectify [Plaintiff’s] situation” in response 27 to Plaintiff’s complaints was a form of “retaliation against employees that report bullying.” (Id. at 5). To the extent Plaintiff alleges Defendant retaliated against Plaintiff for reporting 28 discrimination elsewhere by failing to act with appropriate swiftness or sternness, the Court finds that such a response by Defendant does not rise to the level of an adverse employment 1 E. Failure to Hire Claim on the Basis of Age (Count VII) 2 Finally, Plaintiff asserts a claim for “failure to hire based upon age” under the Age 3 Discrimination in Employment Act of 1967, 29 U.S.C. § 623 (“ADEA”). (See Doc. 25 at 4 2 (Count VII)). 5 1. Legal Standard 6 The ADEA makes it “unlawful for an employer to fail or refuse to hire or to 7 discharge any individual [who is at least forty years of age] . . . because of such individual’s 8 age.” 29 U.S.C. §§ 623(a)(1), 631(a). In “disparate treatment” cases such as this, where the 9 plaintiff alleges she was singled out for discrimination, “liability depends on whether the 10 protected trait (under the ADEA, age) actually motivated the employer’s decision. That is, 11 the plaintiff’s age must have actually played a role in the employer’s decision-making 12 process and had a determinative influence on the outcome.” Reeves v. Sanderson Plumbing 13 Prods., Inc., 530 U.S. 133, 141 (2000) (internal quotation marks and citations omitted). 14 Courts “evaluate ADEA claims that are based on circumstantial evidence of discrimination 15 by using the three-stage burden-shifting framework laid out in McDonnell Douglas.” Diaz 16 v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing McDonnell 17 Douglas Corp., 411 U.S. at 792); see supra Part IV(A)(1). 18 “A plaintiff makes out a prima facie case of intentional discrimination under the 19 ADEA if [s]he demonstrates that [s]he was within the protected class of individuals 20 between forty and seventy years of age, that [s]he applied for a position for which [s]he 21 was qualified, and that a younger person with similar qualifications received the position.” 22 Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). Despite the intermediate 23 burden shifting, “the ultimate burden of proof remains always on [the 24 plaintiff].” Coleman, 232 F.3d at 1281; see also Texas Dep’t. of Cmty. Affairs v. 25 Burdine, 450 U.S. 248, 253 (1981).

26 decision, and thus fails to satisfy prong two of a prime facie case of retaliation. See Day v. LSI Corp., 705 Fed. Appx. 539, 541 (9th Cir. 2017) (unpublished) (finding that a district 27 court properly granted summary judgment on a retaliation claim because, even if true, the plaintiff did not establish an adverse employment decision through allegations that the 28 defendant “fail[ed] to investigate complaints of discriminatory comments”). 1 2. Analysis 2 Here, it is undisputed that Plaintiff is 51 years old. (Doc. 62 at 2). Thus, Plaintiff 3 falls within the ADEA’s protected class of individuals. See 29 U.S.C. § 631(a). As reasoned 4 herein, there is a disputed issue of fact as to whether Plaintiff was qualified for the Student 5 Services position and whether the successful candidate had similar or superior 6 qualifications. See supra Part IV(A)(2)(a)–(b). It is also undisputed that Defendant believes 7 the successful Student Services candidate to be younger than Plaintiff. (PSOF ¶ 29 (citing 8 Doc. 68 at 17 (estimating that the successful candidate was “less than 40 [years old]”))). 9 Unlike Plaintiff’s claims on the basis of race, Plaintiff does not identify, nor does 10 the Court find, any evidence whatsoever that her age “actually motivated” any of 11 Defendant’s employment decisions. (See generally PSOF; Doc. 62). Rather, Defendant 12 asserts evidence, and Plaintiff identifies nothing to contest, that when interviewing 13 candidates for the Student Services position, the Assistant Principal “did not ask anyone’s 14 age and did not know anyone’s age.” (DSOF ¶ 29 (citing Doc. 58 at 62)). Without pointing 15 to any evidence in the record to indicate whether age was a factor in Defendant’s decision- 16 making process, Plaintiff cannot carry her burden to show that Defendant’s legitimate, non- 17 discriminatory reasons regarding qualifications and performance could be mere pretext for 18 age discrimination. See Reeves, 530 U.S. at 141. Accordingly, Defendant is entitled to 19 summary judgment on Plaintiff’s claim for failure to hire based upon age. 20 V. CONCLUSION 21 Based on the foregoing, 22 IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 57) is 23 GRANTED in part, and DENIED in part. Summary Judgment is granted to Defendant 24 on Plaintiff’s claims for retaliation (Counts II and V) and failure to hire on the basis of age 25 (Count VII), but denied as to Plaintiff’s claims for disparate treatment (Counts I and VI) 26 and hostile work environment (also Counts I and VI). 27 IT IS FURTHER ORDERED that Plaintiff’s claims for failure to hire on the basis 28 of race (Counts III and IV) are dismissed as duplicative. 1 IT IS FURTHER ORDERED that Defendant is entitled to summary judgment on || any claims for punitive damages and any claims brought by Paul Lucas. The Clerk of the 3 || Court shall not enter judgment at this time. 4 Dated this 15th day of July, 2019. 5 6 '

a James A. CO 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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