Schroeder v. DeJoy

Opinion

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

9 Sonja Schroeder, et al., No. CV-17-01301-PHX-JJT

10 Plaintiffs, ORDER

11 v.

12 Megan J. Brennan,

13 Defendant. 14 15 At issue is Defendant Megan J. Brennan’s Motion for Summary Judgment on 16 Plaintiff Daniel Walker’s Claim for Retaliation (Doc. 74, “MSJ”), to which Plaintiff Daniel 17 Walker filed a Response (Doc. 78, “Resp.”), and Defendant filed a Reply (Doc. 87, 18 “Reply”). The Court finds these matters appropriate for decision without oral argument. 19 See LRCiv 7.2(f). For the reasons that follow, the Court finds that Plaintiff has shown that 20 genuine issues of material fact exist as to his substantive retaliation claim, and Defendant 21 is not entitled to summary judgment on that claim. However, Plaintiff has presented no 22 evidence to create a genuine issue of material fact regarding equitable relief. Therefore, 23 summary judgment is appropriate on the issue of equitable relief for Plaintiff’s retaliation 24 claim. 25 I. BACKGROUND 26 Plaintiff was hired by the United States Postal Service (“USPS”) as a Rural Carrier 27 Associate (“carrier”) at the Peoria Main Post Office (the “Peoria post office”) in January 28 1 2016. In March 2016, Plaintiff was dating his co-worker Sonja Schroeder, who was also a 2 carrier at the Peoria post office. Both were supervised by Lynn McLuty. 3 A. Supervisor Lynn McLuty’s Treatment of Female Employees 4 Female carriers who worked under the supervision of Mr. McLuty at the Peoria post 5 office testified that Mr. McLuty frequently used offensive and intimidating words and 6 behavior towards them. Linda Miano testified that Mr. McLuty was abusive towards 7 female carriers. (Doc. 82, Ex. 7, Deposition of Linda Miano (Miano Dep.) at 37:25–38:2.) 8 She said that Mr. McLuty singled out female carriers for criticism—at times reducing them 9 to tears—and “routinely called women bitches.” (Miano Dep. at 38:12–38:20; 61:19– 10 61:24.) On the other hand, Ms. Miano said that Mr. McLuty “wouldn’t harass the guys” 11 and “wrote up very little discipline for male carriers.” (Miano Dep. at 63:11; 112:12– 12 112:13.) Alegria Arment testified that Mr. McLuty called female carriers “crybabies[,]” 13 “pussy[,]” and “spoiled bitches.” (Doc. 82, Ex. 9, Deposition of Amber Alegria (Alegria 14 Dep.) at 15:15–15:20.) She said that she never witnessed Mr. McLuty “invade [male 15 carriers’] personal space[] as he would the women [or] call a male carrier by any other 16 name than what their name was[.]” (Alegria Dep. at 16:7–16:12.) 17 Barbara Feno, a rural carrier who had worked for USPS for 18 years, testified that 18 Mr. McLuty “tormented [her] life for so long[.]” (Doc. 82, Ex. 10, Deposition of Barbara 19 Jean Feno (Feno Dep.) at 16:9–16:10.) Ms. Feno said that Mr. McLuty used words that 20 were gender specific and offensive, including “bitch” and “the F word.” (Feno Dep. at 21 24:15-25:3.) She testified that Mr. McLuty previously had to leave a different post office 22 “because of the way he treated women.” (Feno Dep. at 33:7-33:8.) She described 23 Mr. McLuty as a “bully” who would “get right in [the] face” of women. (Feno Dep. at 24 38:16-38:25.) Ms. Feno said that if “you were a man, [Mr. McLuty] wasn’t going to mess 25 with you[,] but he targeted “[w]eak women mostly[.]” (Feno Dep. at 43:13-43:17.) In 26 addition, Ms. Feno said that Mr. Zavala, the Acting Postmaster at the time, and Mr. McLuty 27 were “like two peas in a pod,” except that Mr. Zavala knew “how to control himself better” 28 than Mr. McLuty did. (Feno Dep. at 39:15-39:16.) 1 B. Sonja Schroeder’s Informal Hostile Work Environment Complaint 2 On December 17, 2015, Ms. Schroeder made an informal complaint to USPS of a 3 hostile work environment. Mr. Zavala interviewed Ms. Schroeder, Mr. McLuty, and two 4 witnesses and completed a USPS hostile work environment packet. (Doc. 73, Ex. 2-A, 5 Hostile Work Environment Packet at 47–62.) Ms. Schroeder provided a statement alleging 6 that she and Mr. McLuty had a verbal altercation that day and that Mr. McLuty pulled her 7 “cage,” causing an injury—a scratch—on her left side. Ms. Schroeder also alleged that 8 Mr. McLuty directed her to leave the premises. Mr. Zavala immediately sent the Hostile 9 Work Environment packet and interview notes to the Phoenix District Office’s Human 10 Resources (“HR”) department but never received a response. 11 C. Management’s Enforcement of “Large Bag” Rule against Sonja Schroeder 12 13 Mr. McLuty stated that in March 2016, his managers told him that he needed to start 14 enforcing a USPS rule that prohibited employees from having large personal items on the 15 workroom floor. (Doc. 73, Ex. 1, Declaration of Lynn McLuty (McLuty Decl.) ¶ 18.) On 16 March 22, 2016, Mr. McLuty told Ms. Schroeder to remove her backpack from the 17 workroom floor. (McLuty Decl. ¶ 19.) Ms. Schroeder went to Mr. Zavala, who confirmed 18 that the instruction was coming from him. (McLuty Decl. ¶ 19; Ex. 1-E; Ex. 1-F.) 19 Ms. Schroeder took her backpack to her car and returned with a smaller bag. (McLuty Decl. 20 ¶ 19; Ex. 1-E; Ex. 1-F.) 21 On March 25, 2016, Ms. Schroeder again had her backpack in the workroom and 22 was reprimanded by Mr. McLuty. The parties disagree about exactly what occurred. 23 According to Ms. Schroeder, she was outside on a break when her coworker came to tell 24 her that Mr. McLuty had kicked her backpack, causing its contents to fall out. (Doc. 73, 25 Ex. 5, Deposition of Sonja Schroeder (Schroeder Dep.) at 26:3–26:7.) Ms. Schroeder said 26 she relayed the incident to Mr. Zavala, who allegedly told her that if she “didn’t want to be 27 bothered by Lynn McLuty, [she] needed to carry a clear plastic purse or see-through bag.” 28 (Schroeder Dep. at 28:11–28:18.) According to Defendant, Ms. Schroeder claimed that her 1 backpack was not a personal item because it contained work materials. (McLuty Decl. ¶ 2 19, 22; Ex. 1-F.) Defendant alleges that Ms. Schroeder then went to Mr. Zavala and told 3 him she needed to keep her medicine at her work station. (Doc. 73, Ex. 2, Declaration of 4 Albert Zavala (Zavala Decl.) ¶ 12.) Mr. Zavala told Ms. Schroeder that she could keep her 5 medicine at her work station in a clear bag. (Zavala Decl. ¶ 12.) Plaintiff reports that 6 Ms. Schroeder approached him crying and told him that a member of management had 7 dumped her purse out onto the floor. 8 D. Termination of Plaintiff 9 Shortly thereafter, Mr. Zavala and Plaintiff had a conversation—the details of which 10 are disputed. Plaintiff had just walked Ms. Schroeder out of the building. (Doc. 79, Ex. 3, 11 Deposition Excerpts of Daniel Walker (Walker Dep.) at 40:14–40:18.) According to 12 Plaintiff, Mr. Zavala approached him “in good spirits and just kind of said, hey, what’s 13 up.” (Walker Dep. at 40:11–40:24.) In response, Plaintiff asked Mr. Zavala “why Sonja 14 [Schroeder] was being treated so much differently than everybody else.” (Walker Dep. at 15 34:15–34:21.) Mr. Zavala told Plaintiff that he could not talk to Plaintiff about another 16 employee. (Walker Dep. at 42:9–42:10.) Then Plaintiff asked him a second question in a 17 “friendly” way about why Ms. Schroeder was crying. (Walker Dep. at 43:6–43:10.) 18 Plaintiff said that his demeanor was “respectful” and that he never raised his voice. (Walker 19 Dep. at 43:11–43:15.) Mr. Zavala asked Plaintiff to follow him into his office and had the 20 City Manager, Greg Valenzuela, come too. (Walker Dep. at 42:10–42:12; 43:16–43:22.) 21 Mr. Zavala asked Plaintiff to repeat what he had said in front of Mr. Valenzuela. (Walker 22 Dep. at 43:14–43:15.) After Plaintiff repeated himself, Mr. Zavala “looked over to 23 Mr. Valenzuela and told him that [Plaintiff] obviously doesn’t care about his job and [has] 24 to go.” (Walker Dep. at 49:16–49:18.) Mr. Zavala asked Plaintiff for his badge, and he and 25 Mr. Valenzuela escorted Plaintiff off the property. (Walker Dep. at 50:4–50:16.) Plaintiff 26 knew he was being terminated. (Walker Dep. at 54:1–54:2.) 27 In Mr. Zavala’s version of events, he passed Plaintiff in the hallway and “said hello 28 or asked him how things were going[.]” (Doc. 75-2, Ex. 1, Declaration of Albert Zavala 1 (Zavala Decl.) ¶ 12.) Plaintiff started walking towards him and asked why he had yelled at 2 Ms. Schroeder. (Zavala Decl. ¶ 13.) Mr. Zavala knew that Plaintiff and Ms. Schroeder 3 “were dating.” (Zavala Decl. ¶ 13.) Mr. Zavala told Plaintiff that his “conversation with 4 Ms. Schroeder was not his business[] and instructed him to head out on his route.” (Zavala 5 Decl. ¶ 14.) Plaintiff was “upset and tense,” and he asked twice more why Mr. Zavala had 6 yelled at Ms. Schroeder. (Zavala Decl. ¶ 14.) Mr. Zavala then instructed Plaintiff to go the 7 Postmaster's office, where he advised Plaintiff “that he was a probationary employee, that 8 his conduct was inappropriate, and that he had to carry out a supervisor's instructions, even 9 if he disagreed with them.” (Zavala Decl. ¶¶ 14–15.) After Plaintiff asked again why 10 Mr. Zavala had yelled at Ms. Schroeder, Mr. Zavala terminated him for bad conduct. 11 (Zavala Decl. ¶ 15.) 12 Defendant now moves for summary judgment on Plaintiff’s Title VII retaliation 13 claim and a portion of Plaintiff’s damages. 14 II. LEGAL STANDARD 15 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 16 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 17 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 18 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 19 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 20 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 21 of the suit under governing [substantive] law will properly preclude the entry of summary 22 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 23 of material fact arises only “if the evidence is such that a reasonable jury could return a 24 verdict for the nonmoving party.” Id. 25 In considering a motion for summary judgment, the court must regard as true the 26 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 27 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party 28 may not merely rest on its pleadings; it must produce some significant probative evidence 1 tending to contradict the moving party’s allegations, thereby creating a material question 2 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 3 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 4 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 5 “A summary judgment motion cannot be defeated by relying solely on conclusory 6 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 7 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 8 sufficient to establish the existence of an element essential to that party’s case, and on 9 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 10 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 11 III. ANALYSIS 12 In Count II of his Complaint, Plaintiff alleged that Defendant engaged in workplace 13 retaliation in violation of Title VII. (Doc. 1, Compl. ¶¶ 22–24.) Title VII makes it an 14 unlawful employment practice for an employer to retaliate against an employee because he 15 has opposed any practice made unlawful by Title VII. 42 U.S.C. § 2000e–3(a). A plaintiff 16 may establish a prima facie case of retaliation by showing that (1) he engaged in a protected 17 activity; (2) his employer subjected him to an adverse employment action; and (3) a causal 18 link exists between the protected activity and the adverse action. Ray v. Henderson, 217 19 F.3d 1234, 1240 (9th Cir. 2000). The burden then shifts to the defendant to articulate a 20 legitimate, nondiscriminatory reason for the adverse employment action. Id. Finally, the 21 burden shifts back to the plaintiff to show that the defendant’s proffered reason was pretext 22 for a discriminatory motive. Id. 23 A. Plaintiff Has Established a Prima Facie Case of Unlawful Discrimination 24 Under the McDonnell Douglas framework, “[t]he requisite degree of proof 25 necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal 26 and does not even need to rise to the level of a preponderance of the evidence.” Chuang v. 27 Univ. of Cal. Davis, Bd. Of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (citation 28 omitted). The parties do not dispute the fact that Plaintiff was subjected to an adverse 1 employment action when he was terminated. Defendant instead argues that Plaintiff did 2 not engage in a protected activity, and that even if he did, causation cannot be established. 3 (MSJ at 4–7.) 4 1. Protected Activity 5 Plaintiff contends that the evidence “clearly establishes that he was terminated for 6 questioning the treatment of Ms. Schroeder in a manner that was distinct (differential) and 7 retaliatory.” (Resp. at 7.) Defendant asserts that “asking why another employee is being 8 treated ‘differently’ is not sufficient to have engaged in protected conduct” and that 9 “[n]othing in the record supports Plaintiff’s assertion that he complained that 10 Ms. Schroeder was being discriminated against for her gender.” (Reply at 5–6.) 11 A plaintiff in a retaliation claim must show that he engaged in a statutorily protected 12 activity, such as opposing unlawful employment discrimination directed against employees 13 protected by Title VII. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994). “Courts have not 14 imposed a rigorous requirement of specificity in determining whether an act constitutes 15 ‘opposition[.]’” E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983). 16 “[A]n employee's complaints about the treatment of others is considered a protected 17 activity, even if the employee is not a member of the class that he claims suffered from 18 discrimination, and even if the discrimination he complained about was not legally 19 cognizable.” Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000). “When an 20 employee reasonably believes that discrimination exists, opposition thereto is opposition 21 to an employment practice made unlawful by Title VII even if the employee turns out to 22 be mistaken as to the facts.” Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th 23 Cir. 1978). “[A] person can ‘oppose’ by responding to someone else’s question just as 24 surely as by provoking the discussion[.]” Crawford v. Metro. Gov’t of Nashville & 25 Davidson Cty., Tennessee, 555 U.S. 271, 277 (2009). “Making an informal complaint to a 26 supervisor is . . . a protected activity.” Ray, 217 F.3d at 1240 n.3. 27 The question of whether Plaintiff has demonstrated that he engaged in protected 28 expression is a close call. Plaintiff reasonably believed that Ms. Schroeder was being 1 treated “differently,” but he did not verbalize what he believed to be the cause of her 2 differential treatment—whether it was her gender or something else. When asked during 3 his deposition to clarify what he meant by “differently,” Plaintiff said he was referring to 4 the backpack incident of that day. (Walker Dep. at 37:8–37:12.) He also said he believed 5 that Ms. Schroeder was “under attack constantly by management.” (Walker Dep. at 36:6– 6 35:9.) That evidence does not clarify whether Mr. Walker’s opposition was based on a 7 reasonable belief of the existence of sex discrimination. Sias, 588 F.2d at 695. 8 Plaintiff also argues that he is protected by his status “as what Albert Zavala and 9 Greg Valenzuela refer to . . . as Ms. Schroeder’s ‘fiancé.’” (Resp. at 7.) In Thompson v. 10 North American Stainless, LP, the petitioner and his fiancé were both employees of the 11 respondent. 562 U.S. 170, 172 (2011). The respondent fired the petitioner three weeks after 12 learning that his fiancé had filed a charge to the Equal Employment Opportunity 13 Commission alleging sex discrimination. Id. The Supreme Court decided that the firing of 14 the petitioner constituted unlawful retaliation because “a reasonable worker might be 15 dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” 16 Id. In declining to identify a fixed class of relationships for which third-party reprisals are 17 unlawful, the Supreme Court noted that “the significance of any given act of retaliation 18 will often depend upon the particular circumstances.” Id. at 175 (citing Burlington N. & 19 Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006)). Plaintiff’s Response mischaracterizes 20 the relationship status between himself and Ms. Schroeder. In his deposition, Plaintiff 21 described Ms. Schroeder as his “significant other at the time” and said they were “a couple” 22 but not engaged. (Walker Dep. at 35:1–35:10.) Nevertheless, their relationship status is still 23 relevant because the Supreme Court did not delineate a fixed class of relationships for 24 which third-party retaliation claims are unlawful. Thompson, 562 U.S. at 175. 25 Taken together, the evidence of Plaintiff’s informal comments to Mr. Zavala and 26 his relationship status as Ms. Schroeder’s significant other is sufficient for a reasonable 27 fact-finder to determine that his termination was retaliatory. Thompson, 562 U.S. at 175; 28 Ray, 217 F.3d at 1240 n.3. In viewing the evidence most favorably to Plaintiff, 1 Ms. Schroeder filed an informal hostile work complaint and was subsequently 2 discriminated against by Peoria post office management. When Plaintiff—who Mr. Zavala 3 knew was dating Ms. Schroeder—voiced his opposition to the way management treated 4 her, he was promptly terminated. Plaintiff has established that genuine issues of material 5 fact exist as to the “protected activity” prong for his prima facie case of retaliation. 6 2. Causation 7 In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court 8 decided that a plaintiff has a heightened standard for proving causation in retaliation 9 claims—he must show that his engagement in a protected activity was a “but-for” cause of 10 the defendant’s imposition of an adverse employment action. 570 U.S. 338, 362 (2013). 11 Defendant argues that Plaintiff’s statements to Mr. Zavala were not the but-for cause of his 12 termination. (MSJ at 6.) Instead, “Plaintiff’s approach to the matter, including his failure 13 to follow Mr. Zavala’s instruction to get back to work, was the cause of his termination.” 14 (MSJ at 6–7.) Plaintiff argues that causation can be established by timing alone because 15 “when adverse employment decisions are taken within a short period of time after protected 16 conduct has occurred[,] retaliatory intent is inferred.” (Resp. at 9.) 17 “Causation . . . may be inferred from circumstantial evidence, such as the 18 employer’s knowledge that the plaintiff engaged in protected activities and the proximity 19 in time between the protected action and the allegedly retaliatory employment decision.” 20 Yartzoff v. Thomas, 809 F. 2d 1371, 1376 (9th Cir. 1997). An “inference of a causal link is 21 strengthened by the closeness in time between particular events.” Id. Plaintiff has produced 22 evidence that his statements to Mr. Zavala—his alleged protected activity—were uttered 23 minutes before he was terminated. Based on the temporal proximity between Plaintiff’s 24 statements to Mr. Zavala and his termination, Plaintiff has created a genuine factual issue 25 as to whether his engagement in protected activity was the but-for cause of his termination. 26 . . . . 27 . . . . 28 . . . . 1 B. Defendant Has Articulated a Legitimate, Non-Discriminatory Reason for the Adverse Employment Action 2 3 Once the plaintiff has established a prima facie case of retaliation, the burden of 4 production shifts to the defendant to articulate a legitimate, nonretaliatory explanation for 5 its decisions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). “The 6 defendant need not persuade the court that it was actually motivated by the proffered 7 reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to 8 whether it discriminated against the plaintiff.” Id. at 254–55. 9 Defendant has articulated two reasons for its termination of Plaintiff—Plaintiff’s 10 overall poor job performance and Plaintiff’s “insubordinate and disruptive” conduct 11 towards Mr. Zavala on March 25. (MSJ at 8–9.) As a new USPS carrier, Plaintiff was 12 required to complete a probationary period lasting either 90 working days or 365 calendar 13 days, whichever occurred first. (Doc. 75, Ex. 2, Declaration of Lynn E. McLuty (McLuty 14 Decl.) ¶ 6.) Mr. McLuty, Plaintiff’s supervisor, was responsible for evaluating his job 15 performance at 30, 60, and 80 days. (McLuty Decl. ¶¶ 12, 16.) According to Mr. McLuty, 16 around the time that Plaintiff’s 60-day probationary evaluation was to occur, he told 17 Mr. Zavala that he was “not likely to recommend that [Plaintiff] be retained unless he 18 demonstrated significant improvement in performance and conduct.” (McLuty Decl. 19 ¶¶ 25–26.) Since “poor job performance” constitutes “a legitimate, nondiscriminatory 20 reason for terminating” an employee, Defendant has at least met its burden of production. 21 Aragon v. Repub. Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002). 22 C. Plaintiff Has Shown that Defendant’s Reason Could Be Pretext 23 Finally, the burden of production shifts back to the plaintiff “to demonstrate that the 24 proffered reason was not the true reason for the employment decision.” Burdine, 450 U.S. 25 at 256. The plaintiff “may succeed in this either directly by persuading the court that a 26 discriminatory reason more likely motivated the employer or indirectly by showing that 27 the employer’s proffered explanation is unworthy of credence.” Id. A plaintiff “can survive 28 summary judgment without producing any evidence of discrimination beyond that 1 constituting his prima facie case, if that evidence raises a genuine issue of material fact 2 regarding the truth of the employer's proffered reasons.” Chuang v. Univ. of Cal. Davis, 3 Bd. Of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). Plaintiff’s evidence—that he was 4 terminated immediately after confronting Mr. Zavala about management’s treatment of his 5 significant other, Ms. Schroeder—shows that Defendant’s proffered explanation may be 6 unworthy of credence. Burdine, 450 U.S. at 256. Thus, material questions of fact remain 7 for Plaintiff’s retaliation claim, and Defendant is not entitled to summary judgment on 8 Plaintiff’s claim. 9 D. Damages 10 Defendant also asserts that summary judgment is appropriate on Plaintiff’s demand 11 for “actual damages” because Plaintiff has provided no evidence to quantify or substantiate 12 his demand. (MSJ at 9.) Plaintiff responds that “the recovery of back pay” is “a task 13 reserved to the trial court for computation.” (Resp. at 10.) 14 There are three types of relief available for successful Title VII plaintiffs—equitable 15 relief, compensatory damages, and punitive damages. See Gotthardt v. National R. R. 16 Passenger Corp., 191 F.3d 1148, 1153–54 (1999). Originally, plaintiffs were limited to 17 equitable relief under Title VII section 706(g), which allowed a court to “enjoin the 18 respondent from engaging in [the] unlawful employment practice” and “order such 19 affirmative action as may be appropriate, which may include, but is not limited to, 20 reinstatement or hiring of employees, with or without back pay[], or any other equitable 21 relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1). In 1991, Congress passed 22 42 U.S.C. § 1981(a), which authorized compensatory and punitive damages for Title VII 23 claims. See Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999). Compensatory 24 damages were defined as “future pecuniary losses, emotional pain, suffering, 25 inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses[.]” 26 42 U.S.C. § 1981a(b)(3). Compensatory damages exclude “backpay, interest on backpay, 27 or any other type of relief authorized under section 706(g)[.]” 42 U.S.C. § 1981a(b)(2). 28 1 The Court first must determine which category of damages—equitable or || compensatory—the parties are referring to when they use the term “actual damages.”! The || Court interprets Defendant’s use of the term “actual damages” as referring to equitable 4|| relief because Defendant argues that Plaintiff did not provide evidence of his “lost wages, 5|| back pay, or front pay[.]” (MSJ at 11.) Indeed, that is how Plaintiff seems to interpret the 6 || argument. Plaintiff contends that USPS is “well aware” of the amount Plaintiff would have earned if he had not been terminated and of Plaintiff's “limited employment” since his 8 || termination. (Resp. at 10.) 9 Plaintiff is obligated to produce evidence under Rule 56 demonstrating a genuine 10 || issue of material fact to avoid summary judgment on equitable relief. See Anderson, 477 11] U.S. at 256-57; Santos v. TWC Admin. LLC, 2014 WL 12558274, at *7 (C.D. Cal. Nov. 3, || 2014) (“[T]o survive summary judgment, [the plaintiff] must come forward with evidence 13 || raising triable issues concerning the fact that she suffered damage.”’) Because Plaintiff has 14]| presented no genuine dispute of material fact regarding backpay or any other equitable 15 || relief requested under section 706(g) in response to Defendant’s motion, summary 16 || judgment is appropriate on his request for equitable relief only. 17 IT IS THEREFORE ORDERED granting in part and denying in part Defendant’s 18 || Motion for Summary Judgment (Doc. 74). Defendant is not entitled to summary judgment on Plaintiffs Title VII retaliation claim but is entitled to summary judgment on □□□□□□□□□□□ 20 || request for equitable damages. 21 IT IS FURTHER ORDERED that the Court will set a pretrial status conference || by separate order. 23 Dated this 10th day of September, 2019. CN oe i / ‘eh: 29 Ui State istrict Jndee 26 27 28 ' Plaintiff has not requested punitive damages, which are not available in Title VII claims against government entities. See 42 U.S.C. § 1981a(b)(1). -12-