Opinion
NO. CV-04-3004-RHW.
September 26, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant's Motion for Summary Judgment (Ct. Rec. 16). Plaintiff Roberto Gutierrez is suing his employer, Washington Department of Social and Health Services ("DSHS"), for violations of Title VII, Title VI, and 42 U.S.C. §§ 1983 and 1981. Specifically, Plaintiff alleges he was discriminated against in three adverse employment actions (failure to promote, failure to provide salary increases, intentional restriction of duties and authority) on the basis of his national origin and in retaliation for making claims of improper governmental conduct to the Office of Civil Rights ("OCR") of the Department of Health and Human Services ("HHS").
Plaintiff was born in the United States, and considers his national origin Hispanic American and his race as Hispanic. Defendant concedes that Hispanics are a protected class under Title VII, and that Plaintiff's claim involves discrimination on the basis of race, not national origin. For the reasons outlined below, the Court grants Defendant's motion for summary judgment on Plaintiff's claims under 42 U.S.C. §§ 1981 and 1983, on Plaintiff's Title VI employment discrimination claim and Title VI retaliation claim arising out of his involuntary transfer, and on his Title VII discrimination and retaliation claims based on his involuntary transfer and the alleged restriction of duties. Pursuant to Rule 56(d), the Court preserves for trial judgment on the following issues: Plaintiff's claims of Title VI retaliation based on the failure to promote and restriction of duties, and Plaintiff's Title VII claim arising out of the failure to promote.
STANDARD OF REVIEW
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial," then the trial court should grant the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When considering a motion for summary judgment, a court may neither weigh the evidence nor assess credibility; instead, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS
The following facts are undisputed, unless otherwise indicated:
Plaintiff has worked at DSHS for approximately 30 years. He worked as an affirmative action officer for about three years, and, for the next 14 years he worked as a human resources manager. In July 2000, Plaintiff was appointed the Yakima/Kittitas Community Service Office Administrator. Plaintiff was laterally transferred to the position of Deputy Regional Administrator for the DSHS Community Services Division, Region 2, near December 2000. Plaintiff's salary and benefits were unchanged in his new position, and he claims this transfer was involuntary.
I. First Alleged Adverse Employment Action: Transfer
This transfer is the first of three alleged adverse employment actions. Plaintiff claims this transfer was in retaliation for his complaints to supervisors that DSHS was not properly administering federal programs for Limited English Proficiency ("LEP") clients. Plaintiff states that he did not receive a salary increase. Additionally, Plaintiff asserts that the duties normally associated with the position of Deputy Regional Administrator were not afforded to him. Defendant maintains that the position is "highly flexible, and the responsibilities are adapted to meet the strengths of the particular deputy in light of the needs of the regional administrator." (Ct. Rec. 17, ¶ 8.)
Plaintiff states that in May 2001 and July 2002 he sent letters to Liz Dunbar, Deputy Secretary of DSHS that, among other things, mentioned his concerns about DSHS's treatment of LEP and Hispanic clients. On August 6, 2002, Plaintiff filed a complaint with OCR alleging DSHS discrimination against Hispanics and LEP clients and retaliation against him for advocating their rights. OCR forwarded Plaintiff's complaint to the EEOC in October 2002, but it appears that the EEOC did not make a record of the complaint until the OCR inquired into its status in early June 2003. There is no evidence that the EEOC investigated this complaint further.
II. Second Alleged Adverse Employment Action: Failure to Promote
Plaintiff's second claimed adverse employment action is Defendant's failure to promote him to Regional Administrator. Mr. Gutierrez applied for the position of Regional Administrator for DSHS, Community Services Division, Region 2, in September 2002. He passed the initial screening processes, and his name and application materials were forwarded to an interview panel, along with those of five other candidates. After Plaintiff's interview, the interview panel did not include Mr. Gutierrez among those it recommended for the job. The interview panel had five members: Bobbi Hickox, executive assistant of the Community Services Division; Karl Allison, administrator of the Grant/Adams County Community Service Office; Jesse Garza, director of the Northwest Community Action Center; Billie Hartline, Regional Administrator of Community Services Division Region 6; and Palsy Martin, acting director of the Human Services Division — Yakima Nation.
Michael Masten, the Director of the Community Services Division of DSHS, informed Plaintiff that he would not be considered in the final decision-making process by letter on November 21, 2002. David Rendon, who is also Hispanic, was hired for the position in December 2002. Plaintiff asserts that Mr. Rendon did not meet the qualifications for the position, and that Plaintiff did not learn that he was less qualified until February 3, 2003.
Mr. Gutierrez filed a complaint directly with the EEOC on June 23, 2003. This was 142 days after February 3, 2003, when Plaintiff discovered Mr. Rendon was not qualified for the position of Regional Administrator, and 216 days after Plaintiff received the letter informing him he was no longer under consideration for the position. The State Fair Employment Practices Agency ("FEPA") sent a notice declining jurisdiction on June 26, 2003. In his EEOC complaint, Plaintiff claimed that he was denied promotion to Regional Administrator on the basis of national origin and in retaliation for his opposition to unlawful employment practices. The EEOC issued a right to sue letter to Mr. Gutierrez dated October 15, 2003. This letter addressed only Plaintiff's failure to promote claim.
III. Third Alleged Adverse Employment Action: Restriction of Duties
Plaintiff's third alleged adverse employment action is that Defendant intentionally restricted the duties and authority normally granted to a Deputy Regional Director. On September 27, 2004, Plaintiff received a favorable performance evaluation. On October 4, 2004, Plaintiff sent an email to Mr. Rendon, his supervisor, complaining of his managerial practices and of the high turnover of Hispanic staff. Mr. Gutierrez wrote about his "concerns" and "problems" with Mr. Rendon's directions to staff, including staff under Plaintiff's direct supervision, and various training needs. Plaintiff also expressed concern that some of Mr. Rendon's decisions were in violation of rules or department policies.
In his emailed response, Mr. Rendon declared that he found Plaintiff's email to be "accusatory and threatening," leading him to "seriously question [Plaintiff's] judgment and erod[ing] [his] level of trust with [Plaintiff]." Mr. Rendon gave three directives to Plaintiff in this email:
1. I am directing you to forward all client complaints received by you or your staff to Ron or Joanne for processing.
2. I am directing you to refer all staff complaints to their chain of command, personnel, or if they wish to discuss the issue with someone in Region, to me.
3. I am directing you to not involve yourself in personnel issues that are not in your chain of command.
(Ct. Rec. 18, at 10). Mr. Rendon further limited Plaintiff's duties in an October 19, 2004 email:
I've decided to take over the supervisory responsibility of all staff that currently report to you. I am doing this because I want to deal with differing perceptions of flexibility and team work in the delivery of region office services. I think I can best address these issues by establishing a closer working relationship with staff as their direct supervisor. This change is effective immediately.
(Id. at 9). Plaintiff claims that this action was taken in retaliation for filing his complaint with the EEOC three and one half months earlier.
Mr. Rendon returned duties and responsibilities to Plaintiff by letter dated November 15, 2004, except for supervision of the training staff. Defendant contends that, in Mr. Rendon's opinion, he and Plaintiff "saw the role of regional training staff differently. In Mr. Rendon's opinion, Mr. Gutierrez had been inflexible and had been dictating to the other community service office administrators what training will be provided to their staff." Mr. Rendon also believed that the high rate of turnover for Hispanic employees was explained by legitimate, non-discriminatory reasons.
Lastly, Plaintiff alleges that he has been the subject of "a spurious whistleblower allegation which he claims is in direct retaliation for having filed this lawsuit." This assertion does not appear in Plaintiff's complaint, so it is not properly before the Court and will not be discussed here.
DISCUSSION
I. Plaintiff's § 1983 Claim
Mr. Gutierrez asserts a violation of his civil rights under 42 U.S.C. § 1983. "One of the requisite elements for stating a claim under § 1983 is that the violation [of civil rights] was committed by a `person' acting under color of state law." Cortez v. Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002) (citing Will v. Dep't of State Police, 491 U.S. 58, 71 (1989)). States, state agencies, and state officials sued in their official capacity "are not considered `persons' within the meaning of § 1983, due to the sovereign immunity generally afforded states by the Eleventh Amendment." Id. Here, Plaintiff chose to sue only the DSHS, a Washington state agency, so the Court dismisses his § 1983 claim.
Plaintiff's complaint refers to "20 U.S.C. § 1983," but the Court interprets this as a claim under 42 U.S.C. § 1983 due to the reference to "color of law."
II. Plaintiff's § 1981 Claim
Plaintiff claims that Defendant has violated 42 U.S.C. § 1981. Section 1981 provides that "all persons," regardless of race or ethnicity, "shall have the same right . . . to make and enforce contracts. . . ." 42 U.S.C. § 1981(a). In Judie v. Hamilton, the Ninth Circuit explained that in Washington, "the terms of public employment, other than pension rights, do not create contractual expectancies. Rather, they are part of a system of personnel administration." 872 F.2d 919, 923 (9th Cir. 1989) (citing Wash. Fed'n of State Employees v. State, 101 Wash. 2d 536, 682 P.2d 869, 872 (1984)). However, Judie involved a claim invoking contractual rights from a job description, whereas Mr. Gutierrez is making a claim of denial of promotion. In an unpublished opinion, the Ninth Circuit has held that Judie "does not suggest that a promotion claim brought by a civil service employee should be barred by the statutory nature of his employment," and that state employees may invoke the protections of § 1981 for denial of promotion claims. Ramirez v. Kroonen, 44 Fed. Appx. 212, 218-19 (9th Cir. 2002).
Nevertheless, Mr. Gutierrez's § 1981 claim should be dismissed for the same reason he cannot state a claim under § 1983: Actions against the state or state agencies under § 1981 are barred by the Eleventh Amendment. See Fed'n of African Am. Contractors v. Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) (holding that § 1981 suits are permissible against municipalities if the injury was the result of a "policy or custom," similar to § 1983 claims, but not contemplating the issue whether a § 1981 action could be brought against a state); Pittman v. Oregon, 2005 WL 1899379, at *4 (D. Or. Aug. 8, 2005) (holding that allowing suit under § 1981 against the state would impose "a substantive change on federal civil rights law" and that "§ 1981(c) does not contain clear or unmistakable language that reflects Congress `faced, and intended to bring into issue' a plaintiff's right to bring an action against the state under § 1981"). Because Plaintiff sued only DSHS, a state agency, Mr. Gutierrez's § 1981 claim is dismissed.
III. Plaintiff's Title VI Claim
A. Employment Discrimination under Title VI
Mr. Gutierrez also claims that Defendant's conduct was a violation Title VI of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000d. Title VI states, in pertinent part: "No person . . . shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Plaintiff's allegations that he suffered employment discrimination do not state a claim under Title VI, for Title VI only prohibits employment discrimination in programs "where a primary objective of the Federal financial assistance is to provide employment." 42 U.S.C. § 2000d-3; see Temengil v. Trust Territory of Pac. Islands, 881 F.2d 647, 653 (9th Cir. 1989); see also Johnson v. Transp. Agency, 480 U.S. 616, 628 n. 6 (1987) (commenting that Title VI was not intended to impinge on Title VII). The DSHS does not fall into this category.
B. Retaliation Claims under Title VI
In spite of Defendant's assertion to the contrary, retaliation claims are recognized under Title VI. In March of this year, the Supreme Court considered whether there was an implied cause of action under Title IX for retaliation. Jackson v. Birmingham Bd. of Educ., ___ U.S. ___, ___, 125 S. Ct. 1497 (2005). The language of Title IX was patterned after that in Title VI, and the Supreme Court has interpreted the two consistently. Cannon v. Univ. of Chicago, 441 U.S. 677, 694-99 (1979) (reasoning that a finding based on the statutory language of Title VI should logically extend to Title IX). Therefore, the holding in Jackson based on Title IX applies to claims under Title VI as well. The Supreme Court in Jackson held:
Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action. Retaliation is, by definition, an intentional act. It is a form of "discrimination" because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination "on the basis of sex" because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional "discrimination" "on the basis of sex," in violation of Title IX.Jackson, 125 S. Ct. at 1504.
1. Title VI Statute of Limitation
Before examining the merits of Mr. Gutierrez's Title VI claim, the Court must determine whether his claim is barred by the statute of limitation. Claims brought under Title VI "are governed by the same state statute of limitations period applicable to claims brought under § 1983." Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 713 (9th Cir. 1993). The state personal injury statute of limitation governs § 1983 claims. Id. at 711 (citing Wilson v. Garcia, 471 U.S. 261, 275 (1985)). In Washington, the personal injury statute of limitation and, thus, the statute of limitation for § 1983 and Title VI actions, is three years. Hayes v. Seattle, 76 Wash. App. 877, 880, 888 P.2d 1227, 1229 (1995). Mr. Gutierrez filed this complaint on January 8, 2004, and his first alleged adverse employment action, involuntary transfer, took place between September 2000 and December 1, 2000. A Title VI claim based on this action would, therefore, be time-barred. However, Plaintiff's other retaliation claims, based on the adverse employment actions that allegedly occurred in 2003 and 2004, are properly before the Court.
2. Plaintiff's Title VI Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); Chandamuri v. Georgetown Univ., 274 F. Supp. 2d 71, 84 (D.D.C. 2003) (applying this analysis to a retaliation claim under Title VI). If Plaintiff meets his burden in asserting a prima facie retaliation claim, the burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for its decision. Ray, 217 F.3d at 1240. If Defendant articulates such a reason, Plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive. Id. When adverse employment decisions closely follow complaints of discrimination, retaliatory intent may be inferred. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (holding that the causal link between a protected activity and the alleged retaliatory action "can be inferred from timing alone" when there is a close proximity between the two); Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003) (holding that proximity in time may, by itself, constitute circumstantial evidence of retaliation).
For the analysis of Plaintiff's Title VI retaliation claim, the Court extrapolates and applies requirements for a retaliation claim under Title VII.
i. Prima Facie Case
To establish the first element of a prima facie case of retaliation, Mr. Gutierrez need only show that he had a "reasonable belief" that the practice opposed was unlawful under Title VI. Trent v. Valley Elec. Ass'n, 41 F.3d 524, 526 (9th Cir. 1994); Chandamuri, 274 F. Supp. 2d at 84. Plaintiff's correspondence with Ms. Dunbar regarding DSHS's treatment of Hispanic and LEP clients, his complaint to the OCR, and his emails to Mr. Rendon clearly illustrate he held a "reasonable belief" that Defendant was violating Title VI.
Next, the Court must consider whether the denial of a promotion and temporary limitation of duties were adverse employment actions. Under Ninth Circuit case law, an employment action qualifies as adverse "if it is reasonably likely to deter employees from engaging in protected activity." Ray, 217 F.3d at 1243. Denial of a promotion certainly falls under this definition, but a temporary limitation of duties may not. The Ninth Circuit has held that transfers of job duties, if proven, could constitute adverse employment decisions. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). But in a more recent, unpublished opinion, the circuit court held that a temporary loss of duties, for a period of less than three months, was not an adverse employment action. Toy v. San Francisco, 221 F.3d 1349, 2000 WL 658039, at *1 (9th Cir. 2000). Mr. Gutierrez alleges a loss of duties for a period of approximately one and one half months — they were taken away in emails dated October 5 and October 19, 2004, and, according to Defendant, returned in a letter from Mr. Rendon dated November 15, 2004. The question whether Defendant's action amounted to an adverse employment action is material, and there appears to be a genuine issue of fact. While contemplating a motion for summary judgment, the Court should accept Plaintiff's facts as true and draw justifiable inferences. Therefore, the Court assumes Plaintiff has satisfied this element of his prima facie case at this stage of the proceedings.
The final element of a prima facie case of retaliation is causation. Causation "may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision." Ray, 217 F.3d at 1244; see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (indicating that where "mere temporal proximity" is the only evidence of causation, the proximity must be "very close"). Mr. Gutierrez's promotion denial occurred one and one half years after his first letter to Ms. Dunbar, four months after his second letter to her, and three months after he filed a complaint with the OCR. The reduction of Plaintiff's responsibilities came days after his emailed complaint to Mr. Rendon. Thus, both satisfy the temporal proximity test. Although Defendant urges that there is no evidence that the interview panel knew of Plaintiff's complaints, Plaintiff has raised a genuine issue of material fact by illustrating the close proximity of the protected activity and the alleged retaliatory acts. Therefore, Mr. Gutierrez has established a prima facie case of retaliation under Title VI for the adverse employment acts of promotion denial and restriction of duties.
ii. Burden Shifting
However, the inquiry does not end here. Defendant may now introduce legitimate, nonretaliatory reason for its adverse employment decisions. Yartzoff, 809 F.2d at 1376. "The employer need not persuade the court that it was actually motivated by the proffered reasons: `It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.'" Id. (citation omitted). Here, DSHS states that Mr. Rendon and Mr. Gutierrez's names were both forwarded to the interview panel for consideration for the position of Regional Administrator, and that the panel did not include Mr. Gutierrez among its top recommended candidates. The panel's decision to reject Mr. Gutierrez, who was one of 30 candidates for the job, after an in-person interview, is a legitimate, non-retaliatory reason. Defendant's explanation for its decision to temporarily restrict Plaintiff's duties and responsibilities is Mr. Rendon's eroded trust in Plaintiff and their difference in opinion of the role of regional training staff. This also satisfies Defendant's burden of production.
What remains is a determination of whether Mr. Gutierrez has produced sufficient evidence supporting his allegation that the non-retaliatory reasons proffered by DSHS are pretexts. Id. at 1377. In the Title VII context, the Ninth Circuit "has observed that a grant of summary judgment, though appropriate when evidence of discriminatory intent is totally lacking, is generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case because of the `elusive factual question' of intentional discrimination." Id. (citations omitted). The same reasoning applies to retaliation claims under Title VI. Withholding judgment on the ultimate merit of his Title VI claims, Mr. Gutierrez's establishment of a prima facie case of retaliation for protected Title VI activities raises a genuine issue of material fact, making summary judgment dismissal inappropriate.
IV. Plaintiff's Title VII Claim
Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In his complaint, Plaintiff alleges that he was discriminated against on the basis of race and that he was retaliated against for complaining of discrimination on the basis of race, in violation of Title VII.
A. Exhaustion of Administrative Remedies
To establish federal subject matter jurisdiction over Title VII claims, a plaintiff is required to exhaust his administrative remedies before filing a complaint. Lyons v. England, 307 F.3d 1092, 1103-04 (9th Cir. 2002). Defendant asserts that Plaintiff failed to meet the exhaustion prerequisites for filing a claim of discrimination under Title VII. Under 42 U.S.C. § 2000e-5, plaintiffs cannot seek relief under 42 U.S.C. § 2000e-5(a) until they have filed a claim with the state or local authority and 60 days have passed, unless such proceedings have been earlier terminated. Moreover, all charges must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. In Mohasco Corp. v. Silver, the Supreme Court held that the practical effect of the above provisions is, in states with fair employment practices agencies over one year old, to render untimely any charge originally filed with the EEOC more than 240 days after the act complained of (since the remaining 60 days is needed to provide the state authority with an opportunity to adjudicate the charges), unless the state agency actually disposes of the referred charge before a total of 300 days has elapsed. 447 U.S. 807, 814 n. 16 (1980).
In Washington State, the Washington State Human Rights Commission has authority to grant relief from unlawful employment practices and is a qualifying "state or local authority" under 42 U.S.C. § 2000e-5(c), and is more than one year old. See Wash. Stat. Ann. § 49.60 et seq.; and National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
Plaintiff did not file a charge with the EEOC regarding the first alleged adverse employment action, his involuntary transfer. Mr. Gutierrez states he sent a letter to the OCR alleging retaliation on August 6, 2002, but this was well over 300 days after he was officially appointed Deputy Regional Administrator on December 1, 2000. Therefore, had the EEOC investigated Plaintiff's charge and it related back to his original filing with the OCR, Plaintiff's Title VII claim for the involuntary transfer still would be time-barred.
Plaintiff filed a complaint with the EEOC that covers his second claim, denial of promotion, on June 25, 2003. The Washington State Human Rights Commission signed a notice declining jurisdiction on June 26, 2003, thereby actually disposing of Plaintiff's charge. Because the state agency disposed of Plaintiff's complaint, the 300-day time limit applies. Plaintiff satisfied this requirement whether the Court counts from February 3, 2003, as Plaintiff asserts it should, or from November 21, 2002, as Defendant does. Plaintiff received a right to sue letter from the EEOC on October 15, 2003, and then had 90 days in which to initiate suit against Defendant. Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984). Mr. Gutierrez filed his complaint with this Court on January 8, 2004, 85 days later. Plaintiff satisfied the exhaustion requirements for his denial of promotion claim under Title VII.
Plaintiff did not file another EEOC complaint for his third claim of retaliation, which occurred in October 2003. The Court has subject matter jurisdiction over all claims that fall within the scope of the EEOC's actual investigation or an EEOC investigation "that could reasonably be expected to grow out of the charge." Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004). Mr. Gutierrez's EEOC complaint only claimed retaliation and discrimination for the denial of promotion, so the Court must determine whether his claim of restriction of duties and responsibilities is reasonably related to his EEOC charge. In doing so, the Court may consider several factors: "the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, [and] perpetrators of discrimination named in the charge. . . ." Id.
Plaintiff alleged in his EEOC complaint that "[o]n or about February 3, 2003, I was denied promotion," and that he was "highly qualified" for the position (Ct. Rec. 18, at 7). He declared that he was discriminated against because of his national origin and in retaliation for his opposition to employment practices "made unlawful by Title VII." Id. Based on this charge, the EEOC would have no reason to investigate Mr. Rendon, the successful candidate for the promotion Plaintiff was denied. The restrictions Mr. Rendon placed on Plaintiff's duties are unrelated to his denial of promotion. Additionally, the restrictions took place contemporaneously with the EEOC's issuance of a right to sue letter, after its investigation was complete. Because the operative facts regarding Plaintiff's claim of limitation of duties are not related to the facts in his EEOC charge, Mr. Gutierrez did not exhaust his administrative remedies for his third claim. Vasquez, 349 F.3d at 645. Therefore, the Court has no jurisdiction to hear Plaintiff's claim that Defendant retaliated against him by restricting his duties and responsibilities.
Plaintiff has failed to exhaust his administrative remedies for his first and third Title VII claims, so these are not properly before the Court. Plaintiff's second claim of discrimination and retaliation, involving the denial of promotion, is considered below.
In his response brief, Plaintiff raises for the first time a "hostile work environment" claim: "Plaintiff asserts that he has had a retaliatory cloud over him at all times since he voiced his concerns regarding violation of the DSHS's own requirements to be Title VII compliant in the year 2000." (Ct. Rec. 25, at 15). However, in the case cited by Plaintiff, the Supreme Court explained "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Hostile work environment claims, on the other hand, involve "repeated conduct" and arise "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 1151-6. Clearly, Plaintiff's allegations involve discrete acts, and not a hostile work environment.
B. Merits of Plaintiff's Title VII Denial of Promotion Claim
1. Plaintiff's Title VII Discrimination Claim
In order to prevail in his racial discrimination claim, Plaintiff must establish a prima facie case of discrimination. Vasquez, 349 F.3d at 638. To do so, Plaintiff must offer evidence that gives rise to an inference of unlawful discrimination, either through the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or with direct or circumstantial evidence of discriminatory intent. Id. Under the McDonnell Douglas framework, unlawful discrimination is presumed if the plaintiff can show that "(1) she belongs to a protected class, (2) she was performing according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing McDonnell Douglas Corp., 411 U.S. at 802). Direct evidence is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Id. at 1221 (alteration in original).
If Plaintiff succeeds in establishing a prima facie case, then the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct. Vasquez, 349 F.3d at 638. If Defendant provides such a reason, the burden shifts back to Plaintiff to show that Defendant's reason is a pretext for discrimination. Id. Plaintiff can show pretext directly by showing that discrimination more likely motivated Defendant, or indirectly, by showing that the Defendant's explanation is unworthy of credence. Vasquez, 349 F.3d at 641.
Mr. Gutierrez claims that he was not hired as Regional Administrator because he is Hispanic. The successful candidate for the position is also Hispanic, but this does not mean Plaintiff cannot state a claim of discrimination. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 n. 10 (1999) (stating that one can prove discrimination by demonstrating that "one member of a particular protected group has been favored over another member of that same group"). It appears Mr. Gutierrez has established a prima facie case of discrimination on the basis of race: (1) He is Hispanic; (2) he was performing according to DSHS's legitimate expectations, (3) he suffered an adverse employment action (see analysis above), and (4) other employees with qualifications similar to his own were treated more favorably. Defendant contends Mr. Gutierrez was not chosen as Regional Administrator after a lengthy selection process by an impartial interview panel. To avoid summary judgment, Plaintiff must show that this reason is a pretext for discrimination.
As evidence of pretext, Mr. Gutierrez asserts that Mr. Rendon was not qualified for the position of Regional Administrator. This is a question of fact, and, because it goes to establishing pretext, it is material. Although the parties have provided Mr. Rendon's application materials, whether Mr. Rendon was qualified for the Regional Administrator position is not properly resolved by this Court. Therefore, summary judgment on Plaintiff's Title VII discrimination claim is not appropriate.
2. Plaintiff's Title VII Retaliation Claim
Title VII prohibits employers from discriminating against an employee because that employee "has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. Ray, 217 F.3d at 1240.
If Plaintiff meets his burden in asserting a prima facie retaliation claim, the burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for its decision. Id. If Defendant articulates such a reason, Plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive. Id. When adverse employment decisions closely follow complaints of discrimination, retaliatory intent may be inferred. Villiarimo, 281 F.3d at 1065 (holding that the causal link between a protected activity and the alleged retaliatory action "can be inferred from timing alone" when there is a close proximity between the two); Bell, 341 F.3d at 865-66 (holding that proximity in time may, by itself, constitute circumstantial evidence of retaliation). Making an informal complaint to a supervisor, as well as making a formal complaint with the EEOC, are protected activities. Ray, 217 F.3d at 1240 n. 3.
Mr. Gutierrez's letters to Liz Dunbar and to the OCR, in which he reported Title VII violations, qualify as protected activities. As discussed above, the denial of promotion was an adverse employment action, and the temporal proximity of the two events establishes causation. Thus, Plaintiff has established a prima facie case of retaliation. As shown in the Title VI retaliation claim discussion and the Title VII discrimination discussion, a genuine issue of material fact exists as to whether Defendant's reasons for denying promotion were pretext, so summary judgment is not appropriate for Plaintiff's retaliation claim under Title VII, either.
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED:
1. Defendant's Motion for Summary Judgment (Ct. Rec. 16) is GRANTED as to Plaintiff's §§ 1981 and 1983 claims; Plaintiff's Title VI employment discrimination claim; Plaintiff's Title VI retaliation claim arising out of his alleged involuntary transfer; and Plaintiff's Title VII discrimination and retaliation claims arising out of his alleged involuntary transfer and restriction of duties.
2. Defendant's Motion for Summary Judgment (Ct. Rec. 16) is DENIED as to Plaintiff's Title VI retaliation claims arising out of the failure to promote and restriction of duties; and Plaintiff's Title VII discrimination and retaliation claims arising out of the failure to promote.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward copies to counsel.