Peck v. Tucson, City of

• Court: District Court, D. Arizona
• Decided: January 4, 2021
• Docket: 4:20-cv-00017
• Status: Unknown

Opinion

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

9 William Peck, No. CV-20-00017-TUC-LCK

10 Plaintiff, ORDER

11 v.

12 City of Tucson,

13 Defendant. 14 15 Pending before the Court is Defendant City of Tucson’s Motion for Summary 16 Judgment and supporting Statement of Facts. (Docs. 32, 33.) Plaintiff filed a Response, 17 separate Statement of Facts, and Controverting Statement of Facts (Docs. 34, 38, 42); and 18 Defendant replied (Doc. 45). 19 BACKGROUND 20 Plaintiff William Peck worked for Defendant City of Tucson from 2014-2019 as 21 an I.T. administrator. He filed a Second Amended Complaint on April 3, 2020, alleging 22 that the City discriminated against him in the terms and conditions of his employment 23 based on his sex in violation of Title VII. (Doc. 22.) Plaintiff alleges a hostile work 24 environment and retaliation. After the close of discovery, Defendant filed a motion for 25 summary judgment as to both claims. 26 SUMMARY JUDGMENT STANDARD 27 In deciding a motion for summary judgment, the Court views the evidence and all 28 reasonable inferences therefrom in the light most favorable to the party opposing the 1 motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Ins. 2 Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if 3 the pleadings and supporting documents “show that there is no genuine issue as to any 4 material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. 5 Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need 6 not produce evidence of a genuine issue of material fact but may satisfy its burden by 7 “pointing out . . . that there is an absence of evidence to support the nonmoving party’s 8 case.” Celotex Corp., 477 U.S. at 325. Material facts are those “that might affect the 9 outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A genuine 10 issue exists if “the evidence is such that a reasonable jury could return a verdict for the 11 nonmoving party.” Id. 12 13 FACTS 14 Defendant submitted a Statement of Facts and Plaintiff submitted a Controverting 15 Statement of Facts, as required by this District’s Local Rules. LRCiv 56.1(a), (b). For 16 Plaintiff to dispute a fact presented by Defendant, he must show that the cited materials 17 do not establish the absence of a genuine dispute, demonstrate that the evidence cited is 18 not admissible, or cite to contrary record evidence such as depositions, documents, or 19 declarations. Fed. R. Civ. P. 56(c). Plaintiff disagreed or objected to some extent to the 20 facts set forth in Defendant’s paragraphs 9, 12, and 14. (Doc. 42 ¶¶ 9, 13, 15.) However, 21 Plaintiff provided no evidentiary support for his disagreement. (Id.) Therefore, the Court 22 accepts Defendant’s statements in those paragraphs, which the City supported with 23 admissible evidence. (Doc. 33 ¶¶ 9, 12, 14.) As to Defendant’s paragraphs 13 and 15-18, 24 Plaintiff stated that there was nothing to agree or disagree with in the statements. (Doc. 25 42 ¶¶ 14, 16-19.) Those paragraphs are based on a declaration by John Burross and 26 exhibits thereto. (Doc. 33, Ex. A.) Because Plaintiff has offered no controverting facts 27 28 1 supported by evidence in the record, there is not a material factual dispute as to their 2 content and the Court accepts them as undisputed. 3 Plaintiff references four exhibits in his Controverting Statements of Facts. In 4 paragraph 9, he references a recording attached as Exhibit A; in paragraph 10, he 5 references evaluations that evidence his stellar work (prior to 2017) and cites an Exhibit 6 1; in paragraph 21, he cites Exhibit 1 as evidence that “Plaintiff was terrorized by 7 Defendant for months and about a of [sic] several months if not an entire year”; and, in 8 paragraph 22, Plaintiff cites a Notice of Intent to Discharge filed as Exhibit 2. (Doc. 42.) 9 The only evidence Plaintiff submitted was the Notice of Intent to Discharge, attached to 10 his Controverting Statement of Facts as Exhibit A. (Doc. 42, Ex. A.) It is unclear if the 11 references to other exhibits was an error or if counsel erred in failing to attach intended 12 documents. After completing its review of the filed materials, the Court concluded that 13 additional exhibits of the type referenced in Plaintiff’s Controverting Statement of Facts 14 would not alter the Court’s decision. For that reason, the Court did not believe offering 15 Plaintiff the opportunity to supplement his filing was warranted. Below, the Court sets 16 forth the undisputed facts established by the parties’ statements of fact. 17 In Fall 2014, Plaintiff heard Mr. Herring state that a female co-worker’s “dress 18 showed a lot of skin [and] her hair flowed over her shoulders in a sexy fashion.” In that 19 20 same meeting, Plaintiff also heard Mr. Herring state, of another female co-worker, that 21 “he didn’t understand the need for a woman in her late 40’s to have braces on her teeth 22 because it wasn’t like she was going to get married and have children at that point.” (Doc. 23 22 ¶ 12;1 Doc. 33 ¶ 1; Doc. 42 ¶ 1.) At three IT manager’s meetings in 2017 (on or about 24 June 21, July 5, and July 19), Mr. Herring “referred to plaintiff as ‘Pecker,’ an obvious 25 sexual reference to a commonly known nickname for ‘penis’” and also “joked to Peter 26 Johnson, an IT supervisor, stating something along the lines of Peter Johnson’s name 27 1 Defendant cited the wrong paragraph number from the Second Amended 28 Complaint numerous times. Plaintiff did not object on that basis and the Court corrected the citations for this Order. 1 being two words for ‘penis.’” (Doc. 22 ¶¶ 20-22; Doc. 33 ¶ 3; Doc. 42 ¶ 3.) At the third 2 meeting, Mr. Herring told the attendees that “making those sorts of jokes was 3 inappropriate, as they had all just been reminded by Human Resources.” (Doc. 22 ¶ 23; 4 Doc. 33 ¶ 3; Doc. 42 ¶ 3.) During a one-on-one meeting with Mr. Herring, in late July or 5 early August 2017, Mr. Herring addressed Plaintiff as “Bill Pecker” and went on to state, 6 “I know you have a friend named Glasscock” and “I wonder what his wife thought about 7 his glass cock.” (Doc. 22 ¶ 24; Doc. 33 ¶ 5; Doc. 42 ¶ 5.) 8 During a one-on-one meeting, on or about August 25, 2017, Plaintiff reminded 9 Mr. Herring that he had an upcoming procedure to treat back pain that would cause him 10 to miss work. In response, Mr. Herring described another employee who just dealt with 11 his back pain, adding, “Why can’t you just be a man like Kurt and suck it up?” (Doc. 22 12 ¶ 25; Doc. 33 ¶ 6; Doc. 42 ¶ 6.) Plaintiff filed a formal internal complaint about Mr. 13 Herring with the City’s Office of Equal Opportunity Programs on September 21, 2017. 14 (Doc. 22 ¶ 32; Doc. 33 ¶ 7; Doc. 42 ¶ 7.) 15 On February 27, 2018, the Director of the IT Department issued a directive to all 16 IT Department management, including Plaintiff, regarding work hours and time recording 17 procedures. (Doc. 33, Ex. A ¶ 7.) The directive stated: “All ITD management should 18 align their work hours to mirror the Cities [sic] often mentioned business hours of 8:00 19 20 a.m. to 5:00 p.m. Monday through Friday. You should start your workday (in office) 21 between 7:00 a.m. and 8:00 a.m. daily.” (Doc. 33, Ex. A to Ex. A.) 22 John Burross became Plaintiff’s direct supervisor in December 2017 and was 23 responsible for providing Plaintiff with feedback as necessary and an annual written 24 performance appraisal. (Doc. 33, Ex. A ¶ 6.) According to Plaintiff, beginning in 25 February 2018, Mr. Burross “became extremely critical” and commented: “I’m very 26 frustrated,” “you’re not following my directions,” and “you’re not doing what I asked 27 you to,” etc. (Doc. 33, Ex. B at 9-10; Doc. 33 ¶ 10; Doc. 42 ¶ 11.) In March 2018, 28 Plaintiff received a “Document of Verbal Counseling” from Mr. Burross memorializing 1 the content of an in-person counseling session. (Doc. 33, Ex. A ¶¶ 8-9.) A Document of 2 Verbal Counseling, a tool used by Mr. Burross with all his direct reports, is a written 3 summary of a verbal counseling session used to ensure that feedback regarding 4 expectations, procedures, and standards of conduct is clearly communicated and 5 documented in writing. (Id.) The three topics of the counseling session were: (1) the 6 importance of, and process for, reporting after-hours service interruptions to the service 7 desk; (2) how to track service interruptions in a status report; and (3) the importance of, 8 and process for, marking unscheduled leave in the City’s time management software. (Id. 9 ¶ 8).2 Subsequently, Mr. Peck sent emails to the IT Department Director, David Scheuch, 10 requesting a meeting to discuss the verbal counseling because he felt he had been singled 11 out for simple clerical errors and “insanely silly reasons.” (Doc. 33, Ex. A ¶ 10 & Ex. B.) 12 As required by City policy, Mr. Burross completed an annual performance 13 appraisal of Plaintiff in June 2018. (Doc. 33, Ex. A ¶¶ 11, 12; Exs. C, D.) Mr. Burross 14 based Plaintiff’s appraisal on his professional judgment, personal observations, and 15 feedback from coworkers. (Doc. 33, Ex. A ¶ 13.) The appraisal noted numerous skills and 16 positive attributes; however, Plaintiff was given an overall “needs improvement 17 evaluation because he had mixed results in meeting expectations and goals for the year 18 and was resistant to feedback from management and his peers.3 (Id., Ex. A ¶ 14; Ex. B at 19

20 2 Plaintiff objected to Defendant’s fact statements that relied upon paragraphs 8 and 9 of Mr. Burross’s declaration. First, Plaintiff argued that Mr. Burross’s statements 21 did not establish what actually happened. (Doc. 42 ¶ 12.) If Plaintiff wanted to dispute Mr. Burross’s version of events, he was required to submit admissible evidence showing 22 a genuine issue of fact. Fed. R. Civ. P. 56(c). He did not do so. Second, Plaintiff contends that Mr. Burross’s declaration has not been subject to examination by the Court. (Doc. 42 23 ¶ 13.) Although party declarations are often self-serving, a court may rely upon them if they are not conclusory and contain admissible facts based on personal knowledge. See 24 Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497-98 (9th Cir. 2015). Mr. Burross’s declaration satisfies this requirement and Plaintiff has not argued otherwise. 25 3 Defendant’s Fact Statement 18 provided: “Plaintiff felt ‘this evaluation was full 26 of demonstrably false and misleading statements that were more of a personal attack on my abilities and my character’ and constituted ‘a clear and deliberate attempt to destroy 27 my reputation.’ (Ex. B at 14).” (Doc. 33 ¶ 18.) Neither Exhibit B nor any other attachment to Defendant’s Statement of Facts supports this statement. Plaintiff did not 28 object on that basis; however, the Court does not include it as Defendant failed to provide supporting evidence. 1 4.) On July 24, 2018, Plaintiff sent an email to Mr. Burross stating: “And when I disagree 2 with you, you immediately claim I have trouble accepting management. That is not the 3 case. I have trouble accepting poor management.” (Doc. 33, Ex. E to Ex. A.) 4 On January 9, 2019, Defendant issued to Plaintiff a Notice of Intent to Discharge, 5 which scheduled a review meeting and offered Plaintiff the opportunity to present reasons 6 to dispute the proposed action. (Doc. 42, Ex. A.) 7 DISCUSSION 8 Plaintiff has alleged that his employer discriminated against him based on his sex, 9 which is prohibited by Title VII. 42 U.S.C. § 2000e-2(a)(1). Plaintiff alleged two forms 10 of discrimination, hostile work environment and retaliation. 11 Hostile Work Environment / Sexual Harassment 12 “An employer is liable under Title VII for conduct giving rise to a hostile 13 environment where the employee proves (1) that he was subjected to verbal or physical 14 conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the 15 conduct was sufficiently severe or pervasive to alter the conditions of the victim's 16 employment and create an abusive working environment.” Kortan v. Cal. Youth Auth., 17 217 F.3d 1104, 1109-10 (9th Cir. 2000) (quoting Pavon v. Swift Trans. Co., Inc., 192 18 F.3d 902, 908 (9th Cir. 1999)); see also Manatt v. Bank of Am., NA, 339 F.3d 792, 798 19 (9th Cir. 2003) (“teasing, offhand comments, and isolated incidents” are not sufficient). A 20 plaintiff must establish that he believed the conduct to be abusive and that a reasonable 21 person would find it so; thus, the working conditions must be subjectively and objectively 22 offensive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The Court finds 23 two factors to be dispositive of this claim: whether the conduct in question was gender- 24 based, and if it was sufficiently pervasive to qualify as a hostile work environment. 25 Was the Conduct Based on Plaintiff’s Sex? 26 When evaluating same-sex harassment, the Court must keep in mind that a Title 27 VII claim requires that “members of one sex [were] exposed to disadvantageous terms or 28 conditions of employment to which members of the other sex [were] not exposed.” 1 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. 2 Forklift Sys., Inc., 510 U.S. 17, 25 (1993). Plaintiff did not offer evidence to satisfy any 3 of the types of same-sex harassment articulated in Oncale, 523 U.S. at 80-81 – same-sex 4 sexual desire, general hostility to members of one’s own sex, or lesser treatment of 5 workers of the same sex as the harasser. Nor did Plaintiff offer evidence of same-sex 6 discrimination of another type. Plaintiff argued that Mr. Herring’s comments were of a 7 sexual nature and were “sexually charged commentary.” That comments involve 8 offensive sexual connotations does not in itself establish sex-based discrimination. Id. at 9 81 (requiring a plaintiff to “prove that the conduct at issue was not merely tinged with 10 offensive sexual connotations, but actually constituted ‘discrimina[tion] . . . because of . . 11 . sex.’”) As set forth in the facts, in a prior year, Plaintiff overheard Mr. Herring offer 12 sexually tinged commentary about female employees as well. The mere nature of Mr. 13 Herring’s statements does not in itself demonstrate that he discriminated against Plaintiff 14 because he was male. 15 Second, Plaintiff argues that Mr. Herring discriminated against him for failing to 16 conform to male stereotypes. Specifically, that Plaintiff’s use of medical leave due to 17 back pain was considered unmasculine by his supervisor. If Mr. Herring harassed 18 Plaintiff “because of” his gender or failure to conform with a male stereotype (even if 19 there were other factors), that would be sufficient to establish that the harassment was 20 based on his sex. Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989); see Nichols v. 21 Azteca Rest. Enters., Inc., 256 F.3d 864, (9th Cir. 2001) (applying Price Waterhouse’s 22 holding, that actions based on sex stereotyping qualify as discrimination based on gender, 23 to a man’s claim of harassment for behavior deemed too feminine). 24 As evidentiary support, Plaintiff cites the June 21, July 5, and July 19, 2017 25 meetings, during which Mr. Herring referred to him as pecker in front of numerous other 26 employees. Also, he cites the one-on-one meeting, several weeks later, in which Mr. 27 Herring referred to him as Bill Pecker and remarked on his friend’s name of Glasscock. 28 And, in late Summer 2017, in response to a reminder that Plaintiff would be absent for a 1 procedure to treat his back pain, Mr. Herring asked, “Why can’t you just be a man like 2 Kurt and suck it up?”4 Only the last incident, on its face, indicates that Mr. Herring’s 3 actions were based on Plaintiff failing to conform to a male stereotype (presumably of not 4 exhibiting physical weakness). 5 Plaintiff made a conclusory statement that the pecker references amounted to sex- 6 stereotyping but did not explain the basis for this argument. Absent other evidence or 7 explanation, the Court sees no use of a male stereotype in Mr. Herring referring to 8 Plaintiff with a slang term for a penis. Mr. Herring made a related reference to another 9 employee, and Plaintiff presented no basis to conclude he was using a stereotype also as 10 to Peter Johnson. Mr. Herring’s comments are in stark contrast to those at issue in 11 Nichols, where other employees referred to the plaintiff with female pronouns, mocked 12 his body movements, and called him sexually offensive terms for a woman. See Nichols, 13 256 F.3d at 870. While Mr. Herring’s remarks may have been inappropriate, they do not 14 reveal discriminatory conduct based on Plaintiff’s gender. 15 Was the Conduct Severe or Pervasive? 16 The Court must evaluate the totality of the circumstances, including the 17 “frequency of the discriminatory conduct; its severity; whether it is physically threatening 18 or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with 19 an employee’s work performance.” Faragher, 524 U.S. at 787-88 (quoting Harris, 510 20 U.S. at 23). Title VII is not a “general civility code”; thus, “the sporadic use of abusive 21 language, gender-related jokes, and occasional teasing” do not reach the extreme level 22 required to state a claim. Id. at 788 (quoting Oncale, 523 U.S. at 80; B. Lindemann & D. 23 Kadue, Sexual Harassment in Employment Law 175 (1992)). 24 Mr. Herring’s conduct amounts merely to sporadic offensive comments. Mr. 25 Herring’s singular remark based on gender was a one-off teasing remark that did not rise 26 to the level of a hostile work environment. Even if the Court considered the other

27 4 In his response brief, Plaintiff asserts that the alleged harassment began after Plaintiff sought time off under the Family and Medical Leave Act for neck and back 28 problems, in May 2017. (Doc. 38 at 5.) The Court does not rely upon this factual assertion because Plaintiff failed to provide any evidentiary support for it. 1 remarks, the conduct was not sufficiently extreme to state a claim. Although the pecker 2 references could have been embarrassing or even humiliating, the remarks did not 3 constitute severe discriminatory conduct. Plaintiff cites five remarks made over a two- 4 month period, which is not at a frequency level that evidences extreme conduct. Cf. 5 Nichols, 256 F.3d at 874 (noting Plaintiff was subjected to remarks every week and 6 sometimes multiples times a day). Additionally, Plaintiff presented no evidence that Mr. 7 Herring’s treatment of him interfered with his ability to perform his work. And, other 8 than the fact of his lawsuit, he has not averred that he found the conduct offensive. 9 Plaintiff argued that it is important to examine the “social aspects of different 10 workplace situations”; however, he has presented no evidence on point. He argues only 11 that a management-level employee with the City should not be subjected to “any sexually 12 charged commentary from a supervisor.” That is not the standard for a Title VII claim, 13 which protects an employee only from extreme conduct not gender-based jokes or 14 sporadic abusive language. Mr. Herring’s conduct did not rise to the level of a hostile 15 workplace under the law. 16 Conclusion 17 Plaintiff established only one action by Defendant based on a gender stereotype. 18 That singular remark was not severe or pervasive and was insufficient to establish a 19 hostile work environment in violation of Title VII. The remaining remarks were not 20 based on Plaintiff’s sex and were not the type of severe or pervasive conduct Title VII 21 was intended to protect against. Therefore, Plaintiff has failed to establish a hostile work 22 environment based on sexual harassment as alleged in Claim 1. Because there is no 23 genuine issue of fact, Defendant is entitled to summary judgment on this claim. 24 Retaliation 25 Plaintiff alleges he was retaliated against for opposing Defendant’s conduct and 26 filing a charge of discrimination. To prove a retaliation claim, Plaintiff must show that he 27 engaged in a protected activity, he was subjected to an adverse employment decision, and 28 the adverse action was causally linked to his protected activity. See Hashimoto v. Dalton, 1 118 F.3d 671, 679 (9th Cir. 1997). Defendant argues Plaintiff cannot meet any of the 2 three required elements for a retaliation claim. 3 In its summary judgment motion, Defendant chronicled six internal complaints 4 filed by Plaintiff with the City. (Doc. 32 at 2-6.) In response, Plaintiff agreed that he filed 5 internal complaints on the identified dates and asserted that he also filed an August 2018 6 complaint with the Arizona Civil Rights Division. (Doc. 38 at 11-12.) Plaintiff contends 7 all the complaints constitute “protected activity” (id.), while Defendant argues none of 8 them qualify (Doc. 32 at 13-14). Neither party submitted any evidentiary support to 9 substantiate the content of the complaints. For that reason, the Court does not evaluate 10 whether Plaintiff engaged in protected activity. Instead, the Court finds the retaliation 11 claim is most expediently resolved by assessing whether Plaintiff was subjected to any 12 adverse employment action. 13 Plaintiff alleges the following adverse employment actions: (1) his work schedule 14 was changed; (2) his supervisor was extremely critical and gave him a verbal counselling; 15 (3) he received a needs improvement annual appraisal; (4) his work location was moved 16 to another building; and (5) Defendant issued him a January 9, 2019 Notice of Intent to 17 Discharge. (Doc. 32 at 15; Doc. 38 at 12-13.) 18 “[A] plaintiff must show that a reasonable employee would have found the 19 challenged action materially adverse, ‘which in this context means it well might have 20 dissuaded a reasonable worker from making or supporting a charge of discrimination.’” 21 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. 22 Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Trivial employment actions that would 23 not have a deterrent effect do not qualify; however, examples of qualifying actions are 24 “termination, dissemination of a negative employment reference, issuance of an 25 undeserved negative performance review and refusal to consider for promotion.” Brooks 26 v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir. 2000). Whether a particular action 27 by an employer “is materially adverse depends upon the circumstances of the particular 28 case, and ‘should be judged from the perspective of a reasonable person in the plaintiff's 1 position, considering all the circumstances.’” Burlington, 548 U.S. at 71 (holding that 2 reassignment of job duties not automatically actionable but materially adverse when 3 evidence shows new duties were more arduous, less prestigious, and considered a lesser 4 job) (quoting Oncale, 523 U.S. at 81). 5 Plaintiff argues that Defendant erred in summarily dismissing the alleged adverse 6 actions. However, in response, Plaintiff offered no case law to support finding that 7 Defendant’s actions qualified as adverse employment actions. Additionally, Plaintiff 8 argues that retaliation claims must be evaluated within the context in which they 9 occurred, considering the totality of the circumstances. While true, Plaintiff has offered 10 no context for the adverse actions upon which he relies. Thus, the Court’s evaluation 11 must be premised on the mere fact of certain employer actions and the limited context 12 provided by Defendant. The Court reviews the five alleged actions individually. 13 Work Schedule 14 All managers in Plaintiff’s department were informed, in February 2018, that they 15 needed to arrive at work between 7 and 8 a.m. Plaintiff has presented no evidence to 16 demonstrate that this constituted a change in his schedule; however, Defendant accepts 17 his allegation that he previously had been arriving at work at 9 a.m. Typically, a change 18 in schedule will not constitute an adverse employment action. See Arakaki v. Brennan, 19 771 F. App’x 783, 784 (9th Cir. 2019). The Supreme Court has recognized, however, that 20 a schedule change could be adverse to a particular employee facing specific 21 circumstances. See Burlington, 548 U.S. at 69 (citing, in dicta, a mother with school-age 22 children as an example). Plaintiff alleged in the Second Amended Complaint that, for 23 four years prior to February 2018, he had permission to begin work at 9:00 a.m. in order 24 to take his daughter to school. (Doc. 22 ¶ 48.) However, in responding to the motion for 25 summary judgment, Plaintiff did not substantiate this allegation with evidence or provide 26 other evidence to demonstrate that a schedule change was adverse based on his particular 27 circumstances. Absent such evidence, there is no basis to find that a reasonable employee 28 would have found the schedule change to be materially adverse. 1 Supervisor Criticism & Verbal Counselling 2 Defendant accepts Plaintiff’s allegation that his supervisor was critical of him and 3 conducted a verbal counselling. Plaintiff offered no evidence that the criticism or 4 counselling led to further consequences or impacted the terms of his employment. The 5 Ninth Circuit and this Court have held that “scolding” or criticizing an employee does not 6 qualify as an adverse employment action. Nunez v. City of Los Angeles, 147 F.3d 867, 7 874 (9th Cir. 1998); Hellman v. Weisberg, No. CV-06-1465-PHX-FJM, 2007 WL 8 4218973, at *6 (D. Ariz. Dec. 3, 2007), aff’d, 360 F. App’x 776 (9th Cir. 2009). 9 Annual Appraisal 10 Plaintiff’s supervisor rated him “needs improvement” on his annual performance 11 appraisal. Plaintiff has offered no evidence that the evaluation was unfounded or that 12 Defendant relied upon the evaluation in making decisions impacting the terms of 13 Plaintiff’s employment. A mediocre performance evaluation, standing alone, is not an 14 adverse employment action. See Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002); 15 Hardin v. Wal-Mart Stores, Inc., 604 F. App’x 545, 548 (9th Cir. 2015) (finding a 16 negative evaluation that was not relied upon to alter the terms of employment was not an 17 adverse employment action). 18 Change in Work Location & Department 19 In responding to the motion, Plaintiff alleged that his work location was moved to 20 a different department in another building. First, Plaintiff did not provide any evidence to 21 establish that a transfer of work location occurred. Second, because he provides no 22 contextual information, there is no basis to find that it was an adverse employment action 23 to move his work location. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) 24 (requiring nonmoving party to oppose a motion for summary judgment with “affidavits or 25 other sources of evidence that ‘set forth specific facts showing that there is a genuine 26 issue for trial,’” because mere denials or allegations are insufficient) (citing Fed. R. Civ. 27 P. 56(e)). In the abstract, there is no ground to find that working in a different building or 28 department is materially adverse to a reasonable employee. See Nidds v. Schindler Elev. 1|| Corp., 113 F.3d 912, 915, 919 (9th Cir. 1996) (finding departmental transfer, without 2 || change in compensation, not an adverse employment action). 3 Notice of Intent to Discharge 4 In January 2019, Defendant issued to Plaintiff a Notice of Intent to Discharge, which included setting a meeting and the opportunity to refute the proposed action. 6|| Plaintiff offered no additional evidence regarding this Notice, such as whether it was 7\| unfounded or if subsequent actions were taken by Defendant with respect to □□□□□□□□□□□ 8 || employment. Without more, a threatened dismissal is not an adverse employment action. See Nunez, 147 F.3d at 874; Hellman, 2009 WL 5033643, at *2; Martines v. Las Vegas Metro. Police Dep’t, No. 2:12-CV-01441-LDG, 2014 WL 1307235, at *5 (D. Nev. Mar. 28, 2014) (finding a pre-termination hearing notice did not qualify as an adverse 12 || employment action). 13 Conclusion 14 Plaintiff has not established that he was subjected to an adverse employment 15} action for engaging in protected activity. Therefore, Plaintiff has failed to establish that Defendant retaliated against him in violation of Title VII as alleged in Claim 2. Because 17 || Plaintiff has not demonstrated a genuine issue of fact, Defendant is entitled to summary 18 || judgment on this claim. 19 Accordingly, 20 IT IS ORDERED that Defendant City of Tucson’s Motion for Summary || Judgment (Doc. 32) is GRANTED. The Clerk of Court should enter judgment for || Defendant and close this case. 23 Dated this 4th day of January, 2021. 24 25 Lifunieel 0. type □ onorable Lynnette C. Kimrmuns 27 United States Magistrate Judge 28

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