Opinion
No. C 01-01886 CRB
December 21, 2001
MEMORANDUM AND ORDER
This employment discrimination action arises from the failure to hire plaintiff, Robert R. Walker ("Walker"), as a letter carrier at the Monterey Post Office. Defendant, John E. Potter, is the Postmaster General. Plaintiff alleges that he was not hired in retaliation for his Equal Employment Opportunity ("EEO") complaints to the United States Postal Service ("USPS"). Now before the Court is defendant's motion for summary judgment. After carefully considering the pleadings filed by the parties, and giving the parties the opportunity for oral argument, defendant's motion for summary judgment is GRANTED.
BACKGROUND
The USPS hired Walker as a casual carrier in its Monterey Post Office on October 23, 1999. This was non-career position that expired on March 30, 2000. On February 28, 2000, before the appointment expired, James Korthof ("Korthof"), Postmaster of the Monterey Post Office, fired Walker for conduct unbecoming a postal employee. Walker was allegedly involved in a shouting match with a supervisor. On March 9, 2000, Walker requested EEO counseling in relation to his termination.
In March 2000, plaintiff was appointed to a casual carrier position at the Pacific Grove Post Office. This non-career position was to expire on June 8, 2000.
In the spring of 2000, three career letter carrier positions became available at the Monterey Post Office. Walker applied for one of these positions on March 1, 2000. Six applicants applied for the openings, including plaintiff — all were interviewed. By letter dated April 19, 2000, Walker withdrew his original EEO complaint (regarding his termination by Korthof), stating that he had "been offered a position" with the Monterey Post Office. The letter proceeded to state that: "I understand that if I am not hired . . ., I will have the option of re-opening my EEO complaint, based upon the basis of retaliation." Nonaka Decl., Ex. 3. Walker had not been offered a position when he sent the letter
Korthof did not select any of the six candidates for the openings. Instead, Korthof reassigned other career USPS employees. All of the reassigned employees were career employees and veterans. All six of the candidates were notified by letters dated May 19, 2000 that the positions were filled by reassignment of current career USPS employees.
On May 22, 2000, Walker requested an appointment with an EEO counselor. On May 30, 2000, Walker completed an EEO Request for Counseling form. That form alleged that he was not hired for the career Monterey position in retaliation for his EEO actions in March 2000 (regarding his termination as a casual carrier). Plaintiff filed a formal EEO Complaint of Discrimination in the Postal Service on June 29, 2000. The complaint again alleged that he was not selected as a career letter carrier in retaliation for his EEO actions. The complaint also stated that the retaliation was in response to a letter he wrote to his Congressman and his seeking a private attorney after he was fired.
On February 22, 2001, the USPS issued a Notice of Final Action. That notice adopted the decision of the Administrative Judge granting summary judgment in favor of defendant. The Administrative Judge had concluded that Walker failed to establish a causal connection between his prior EEO activity and the hiring decision. Walker appealed to the Equal Employment Opportunity Commission's Office of Federal Operations. They affirmed the decision on May 18, 2001. Four days previous, on May 14, 2001, Walker filed this action. Defendant has moved for summary judgment.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when 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). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
II. THE RETALIATION CLAIM
A. The Burdens of Proof
To establish a prima fade claim of retaliation, plaintiff must show "(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). See also, Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). With respect to the third element, the Ninth Circuit has explained that "[t]o show the requisite causal link, the plaintiff must present evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action. . . . Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity." Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (emphasis added).
Once a plaintiff has met his prima facie burden, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. See Brooks, 229 F.3d at 928. "Once the employer carries this burden, plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext. Only then does the case proceed beyond the summary judgment stage." Id. "`The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citation omitted).
B. Whether Plaintiff Has Met His Prima Facie Burden
Defendant contends that plaintiff has failed to establish a prima facie case because there is no evidence of a causal link between plaintiff's EEO actions and the alleged retaliation — Korthof's failure to hire plaintiff for one of the career position openings at the Monterey Post Office.
"Absent direct evidence of retaliation, — the third element of a retaliation claim — a causal link may be established by showing that the adverse employment decision occurred proximate in time to the protected activity, and that the person who made the adverse employment decision knew of the protected activity." Maurey v. University of So. Cal., 87 F. Supp.2d 1021, 1033 (9th Cir. 1999). Plaintiff presents the following evidence that Korthof knew about the complaints Walker made after his termination. In his opposition brief, which takes the form of a declaration, Walker states:
Mr. Korthof knew full well that I had contacted an Equal Employment Opportunity Counselor (Paul Woods) and claimed that I had been wrongfully terminated. In addition, [sic] aware that I had written to Congressman Sam Farr concerning my complaint of "wrongful" termination against Mr. James Korthof.
Opposition ¶ 5. In response to the question of whether the relevant official was aware of the prior EEO activity, Walker's request for EEO counseling states: "Very much so. Paul Woods, of EEO, notified Mr. Korthof, of the prior EEO activity concerning wrongful termination. Tried redress — to no avail (in no timely manner)." The EEO file contains a similar allegation.
The Court has addressed the evidence from the EEO file even though it is probably inadmissible hearsay because the plaintiff is pro per.
None of the evidence above is competent to establish that Korthof knew about Walker's previous complaints. The statements are nothing more than conclusory allegations. Walker asserts absolutely no basis for his personal knowledge that Korthof knew of the previous complaints. Without competent evidence establishing Korthof's knowledge of Walker's complaint, plaintiff cannot rely on that knowledge (and its temporal proximity to the adverse action) to establish the required causal link. There is no other evidence of the required causal link. As a result, the plaintiff has failed to meet his prima facie burden. Therefore defendant is entitled to summary judgment.
But defendant has also come forward with a legitimate reason for not hiring Walker. Accordingly, even assuming that plaintiff has met his prima facie burden — as the rest of this order does — defendant is entitled to summary judgment as a matter of law.
C. Defendant Has Met Its Burden of Production
It is undisputed that defendant has come forward with a legitimate reason for not hiring Walker. That reason is supported by substantial evidence in the record. Korthof interviewed six candidates. None of them was hired. Instead, all of the vacancies were filled by reassigned career USPS employees. Two of the vacancies were filled by career employees already working at the Monterey Post Office. The other vacancy was filled by a career employee that requested a transfer from Sonoma, California.
Besides already being career employees, all of the reassigned employees were veterans. Veterans receive a preference in hiring and placement at the USPS. Walker was neither a career employee nor a veteran. It also appears that Walker had the lowest rating of the six candidates that were interviewed for the job — again, none of whom was selected.
D. Plaintiff Has Not Shown the Stated Reasons to be Pretext
Because the defendant has met its burden of offering a legitimate nondiscriminatory reason for its actions, the burden shifts back to plaintiff to show a genuine issue of material fact exists for trial as to whether that reason is pretext.
In order to show that defendant's stated reasons are pretext a plaintiff must adduce either direct or indirect evidence that the defendant's motive was in fact retaliation. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). A plaintiff need only adduce "very little" direct evidence to create a triable issue of fact. See id. "`Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.'" Id. (citation omitted). Plaintiff has proffered no direct evidence.
"In those cases where direct evidence is unavailable, however, the plaintiff may come forward with circumstantial evidence that tends to show that the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Id. at 1222; see also Reeves v. Sanderson Plumbing Prod. Inc., 120 S.Ct. 2097, 2108 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive"). "Such evidence of `pretense' must be `specific' and `substantial' in order to create a triable issue with respect to whether the employer intended to discriminate." Godwin, 150 F.3d at 1222.
The only arguable circumstantial evidence of retaliation Walker presents is his unsubstantiated allegations that Korthof knew about his EEO complaints — allegations found in his declaration. This is not substantial circumstantial evidence; it does not raise a triable issue. "When the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact." Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); see also, Tarin v. County of Los Angeles, 123 F.3d 1259, 1265 ("Because [plaintiff] points to nothing in the record, other than her own conclusory statements, to refute the County's explanations for its decisions, we affirm the district court's grant of summary judgment to defendants with respect to [plaintiff's] claims of unlawful retaliation.")
There is no evidence before the Court undermining defendant's stated legitimate reasons for the decision to not hire plaintiff. Indeed, there is substantial evidence supporting those reasons. Even if, arguendo, plaintiff has established a prima facie case, more evidence is required at the stage of showing pretext. See Godwin, 15f0 F.3d at 1220. Plaintiff has offered none. Therefore, Walker has not met his burden of showing a genuine issue remains for trial, and defendant is entitled to summary judgment as a matter of law.
III. Other Claims of Retaliation
Plaintiff's declaration, filed in opposition to the instant motion, alludes to several other allegations of retaliation. If indeed, plaintiff is attempting, in his opposition brief, to bring other claims, those claims are barred because he has failed to exhaust his administrative remedies. See Ong v. Cleland, 642 F.2d 316, 318 (9th Cir. 1981). Plaintiff pursued an administrative remedy only for his claim that the Korthof's failure to hire him at the Monterey Post Office was in retaliation for his earlier EEO complaints. The other allegations in plaintiffs opposition refer to acts of alleged retaliation by different actors. Furthermore, these additional claims are nothing more than conclusory allegations that fail to state a prima facie case.
The declaration appears to allege retaliation by the Pacific Grove Post Office and a subsequent Monterey Post Office Postmaster, Robert Spadoni.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED.