Jenkins v. Kerry

MOTION for Summary Judgment Defendant's Notice of Motion and Motion for Summary Judgment; [Proposed] Order

N.D. Cal.December 1, 2016

DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIAN J. STRETCH (CABN 163973) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division ROBIN M. WALL (CABN 235690) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7071 Fax: (415) 436-6748 Robin.Wall@usdoj.gov Attorneys for Federal Defendant UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ANGELA JENKINS, Plaintiff, v. JOHN KERRY, SECRETARY, UNITED STATES DEPARTMENT OF STATE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 15-cv-01921-RS (JCS) DEFENDANT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; [PROPOSED] ORDER Hearing Date: January 5, 2017 Time: 1:30 p.m. Courtroom: 3, 17th Floor 450 Golden Gate Avenue San Francisco, California Hon. Richard Seeborg Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 1 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................................... ii NOTICE OF MOTION AND MOTION .....................................................................................................1 RELIEF REQUESTED ................................................................................................................................1 ISSUES TO BE DECIDED .........................................................................................................................1 MEMORANDUM OF POINTS AND AUTHORITIES .............................................................................1 I. INTRODUCTION ...........................................................................................................................1 II. FACTS AND PROCEDURAL BACKGROUND...........................................................................3 A. Plaintiff’s employment at the San Francisco Passport Agency ...........................................3 B. Letter of reprimand ..............................................................................................................4 C. One-day suspension .............................................................................................................6 D. Three-day suspension ...........................................................................................................8 E. 2013 performance evaluation ...............................................................................................9 F. Other background.................................................................................................................9 G. Procedural history ..............................................................................................................10 III. SUMMARY JUDGMENT STANDARD......................................................................................11 IV. ARGUMENT .................................................................................................................................11 A. Plaintiff has not established a prima facie case of discrimination. ....................................11 B. Plaintiff has not established a prima facie case of retaliation. ...........................................13 C. Even if plaintiff could establish a prima facie case of discrimination or retaliation, defendant is entitled to summary judgment. ....................................................15 1. Defendant had legitimate, non-discriminatory, and non-retaliatory reasons for the actions taken. .................................................................................15 2. Plaintiff cannot show that these reasons were pretextual. .....................................18 D. The workplace conduct alleged by plaintiff was not severe or pervasive and thus cannot constitute a hostile work environment. ...........................................................21 E. Plaintiff failed to exhaust her administrative remedies for the three-day suspension or any constructive discharge claim. ...............................................................22 V. CONCLUSION ..............................................................................................................................24 Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 2 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................................................ 11 Aragon v. Republic Silver State Disp., Inc., 292 F.3d 654 (9th Cir. 2002) .............................................................................................................. 18 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) .............................................................................................................. 23 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................................................................ 11 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115 (9th Cir. 2000) ............................................................................................................ 19 Coghlan v. Am. Seafoods Co., 413 F.3d 1090 (9th Cir. 2005) ............................................................................................................ 19 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018 (9th Cir. 2006) ...................................................................................................... 13, 14 Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008) ............................................................................................................ 13 Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027 (9th Cir. 2005) ............................................................................................................ 22 E.E.O.C. v. Boeing Co., 577 F.3d 1044 (9th Cir. 2009) ...................................................................................................... 19, 20 Emeldi v. Univ. of Oregon, 698 F.3d 715 (9th Cir. 2012) .............................................................................................................. 14 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ............................................................................................................................ 22 FTC v. Publishing Clearinghouse, Inc., 104 F.3d 1168 (9th Cir. 1997) ............................................................................................................ 11 Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472 (9th Cir. 1989) ............................................................................................................ 23 Hahn v. Executive Jet Management, Inc., 615 F.3d 1151 (9th Cir. 2010) ............................................................................................................ 12 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .............................................................................................................................. 21 Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997) .............................................................................................................. 13 Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 3 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Joki v. Rogue Community College, 544 Fed. Appx. 679 (9th Cir. 2013) .............................................................................................. 19, 22 Maffei v. N. Ins. Co. of New York, 12 F.3d 892 (9th Cir. 1993) ................................................................................................................ 11 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................................................................................................... passim Moran v. Selig, 447 F.3d 748 (9th Cir. 2006) .............................................................................................................. 12 Nelson v. Pima Community Coll., 83 F.3d 1075 (9th Cir. 1996) .............................................................................................................. 11 Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996) .............................................................................................................. 19 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) .............................................................................................................................. 21 Ong v. Cleland, 642 F.2d 316 (9th Cir. 1981) .......................................................................................................... 2, 23 Peterson v. Hewlett–Packard Co., 358 F.3d 599 (9th Cir. 2004) .............................................................................................................. 12 Satterwhite v. Smith, 744 F.2d 1380 (9th Cir.1984) ............................................................................................................. 23 Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406 (9th Cir. 1996) .............................................................................................................. 23 Schuler v. Chronicle Broad. Co. Inc., 793 F.2d 1010 (9th Cir. 1986) ............................................................................................................ 19 Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978) .............................................................................................................. 13 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) ............................................................................................................................ 18 Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir. 1983) .............................................................................................................. 19 Surrell v. Cal. Water Serv. Co., 518 F.3d 1097 (9th Cir. 2008) ............................................................................................................ 21 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ............................................................................................................................ 15 Univ. of Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) ............................................................................................................... 2, 14, 15 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) ....................................................................................................... passim Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 4 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Villarimo v. Aloha Air Inc., 281 F.3d 1054 (9th Cir. 2002) ............................................................................................................ 14 Watson v. Nationwide Ins. Co., 823 F.2d 360 (9th Cir. 1987) .............................................................................................................. 23 Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) ............................................................................................................ 14 Statutes 42 U.S.C. § 2000e ....................................................................................................................................... 1 42 U.S.C. § 2000e-3 .................................................................................................................................. 13 42 U.S.C. § 2000e-16 .................................................................................................................................. 1 Rules Fed. R. Civ. P. 56 ...................................................................................................................................... 11 Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 5 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE THAT on January 5, 2017, at 1:30 p.m. in Courtroom 5, located on the 17th Floor of 450 Golden Gate Avenue, San Francisco, California, the Honorable Richard Seeborg presiding, defendant John Kerry, Secretary, United States Department of State, by and through his attorney, Robin M. Wall, Assistant United States Attorney, will move this Court for an order granting summary judgment in defendant’s favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motion is based on this notice of motion and motion; defendant’s memorandum of points and authorities, the declarations of Tiffany Bartish, James W. Herman, CarrieLyn Guymon, and Robin M. Wall and the exhibits attached thereto; the Court’s files and records in this matter, any other matters of which the Court may take judicial notice; and any oral argument that may be presented to the Court. RELIEF REQUESTED Defendant seeks an order granting summary judgment on all of plaintiff Angela Jenkins’s claims as alleged in her complaint. ISSUES TO BE DECIDED 1. Whether plaintiff has established a prima facie case of discrimination on the grounds of race or color pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. 2. Whether plaintiff has established a prima facie case of retaliation pursuant to 42 U.S.C. § 2000e–3. 3. Whether a genuine dispute of material fact exists with respect to defendant’s legitimate, non-discriminatory reasons for the disciplinary actions taken against plaintiff. 4. Whether a genuine dispute of material fact exists as to whether the workplace harassment plaintiff alleges was sufficiently severe and pervasive as to violate Title VII. 5. Whether any claim based on plaintiff’s three-day suspension or for constructive discharge is precluded by plaintiff’s failure to exhaust her administrative remedies. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Angela Jenkins is a former employee of the United States Department of State. Ms. Jenkins retired in June 2014. She has brought this action pursuant to Title VII of the Civil Rights Act, Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 6 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42 U.S.C. § 2000e et seq. (“Title VII”). Plaintiff was disciplined for performance and conduct issues in 2013 and 2014. She also received an unsatisfactory performance review in 2013. Plaintiff claims that these actions constituted discrimination on the basis of her race and/or color—she is African American—and were taken in retaliation for her protected EEO activity. Plaintiff also claims that these actions and other conduct in the workplace created a hostile work environment. Defendant seeks summary judgment on the grounds that defendant has well-documented and legitimate reasons for the challenged disciplinary actions and performance review. The disciplinary decisions were all made by a disinterested senior official in Washington, D.C., who was not even aware of plaintiff’s race, color, or prior protected activity until the end of the progressive discipline process in 2014. Similarly, plaintiff’s 2013 performance review was the result of a year-long process during which plaintiff’s performance strengths and weaknesses were identified in detail; and she was provided an opportunity to address any problems. Accordingly, plaintiff cannot establish a prima facie case for discrimination or retaliation, much less evidence of pretext to rebut the legitimate, non-discriminatory, and non-retaliatory reasons for the discipline and performance rating that are documented in the record. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff’s retaliation claim also fails because she cannot establish a causal link between any protected activity and the disciplinary actions or her performance review. To prevail on her retaliation claims, plaintiff must show that “her protected activity was a but-for cause of the alleged adverse action[s]” by defendant; but that is a hurdle she cannot overcome. University of Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013). Plaintiff’s hostile work environment claim fails for the same reason: plaintiff cannot show that the alleged workplace conduct occurred because of her race or any prior protected activity. Moreover, plaintiff has not alleged conduct that is sufficiently severe or pervasive such that it altered the conditions of her employment and created an abusive work environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). Finally, to the extent that plaintiff is asserting a claim in connection with her three-day suspension or for constructive discharge in connection with her 2014 retirement, those claims are Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 7 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 precluded because they were not asserted in the EEO administrative proceedings. See Ong v. Cleland, 642 F.2d 316, 319-320 (9th Cir. 1981) (excluding constructive discharge claim). For the reasons set forth herein, defendant respectfully requests that the Court grant summary judgment in favor of defendant on all of plaintiff’s claims. II. FACTS AND PROCEDURAL BACKGROUND A. Plaintiff’s employment at the San Francisco Passport Agency Plaintiff Angela Jenkins worked in the San Francisco Passport Agency from January 1996, until June 30, 2014, when she retired from federal service. (Declaration of Robin M. Wall., Ex. A (March 6, 2015, Deposition of Angela Jenkins) (hereinafter “Jenkins Depo.”) at 12:5-13; 13:21-25.) The San Francisco Passport Agency is part of the Office of Passport Operations, which is a component of the U.S. Department of State’s Bureau of Consular Affairs. (Declaration of Tiffany Bartish (hereinafter “Bartish Decl.”) ¶ 1.) Ms. Jenkins joined the Passport Agency as a Passport Specialist. Passport specialists have a number of duties, including examining and adjudicating passport applications and staying alert for and reporting potential fraud. (Bartish Decl. at ¶ 8.) Passport specialists are expected to have a thorough working knowledge of the statutes, rules, regulations, and departmental policies and procedures that govern the examination and adjudication of passport applications. (Id.) In 2012 and 2013, there were approximately 28 passport specialists in the San Francisco Passport Agency. (Id.) In August 2008, Ms. Jenkins was promoted to the position of Supervisory Passport Specialist. (Jenkins Depo. at 15:2-3.) As a supervisory passport specialist, Ms. Jenkins was responsible for, among other things, supervising a team of five to eight passport specialists. (Bartish Decl. at ¶ 7.) The supervisory passport specialists report to the Adjudication Manager. (Id. at ¶ 5.) From the middle of 2011 until December 31, 2013, Tiffany Bartish was the Adjudication Manager for the San Francisco Passport Agency. (Id. at ¶¶ 5, 74-76; Jenkins Depo. at 10:1-17.) While Ms. Bartish was the Adjudication Manager, there were four to five supervisory passport specialists in the San Francisco Passport Agency. (Id. at ¶ 5.) Ms. Bartish served as the Adjudication Manager until January 1, 2014, when she took a new position—Program Coordinator under the Managing Director of Passport Services. (Id. at ¶ 74.) After Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 8 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ms. Bartish transferred out of the Adjudication Manager position, a number of managers rotated through the position, until Ms. Elizabeth Norris was permanently named as the Adjudication Manager. (Id. at ¶ 77.) During the time of the events alleged in plaintiff’s complaint, the Adjudication Manager reported to the Assistant Director of the Passport Agency. Until February 2013, Belinda Berry was the Assistant Director. (Id. at ¶¶ 9-10.) In February 2013, Qui Nguyen was promoted to the position. (Id.) The Assistant Director in turn reported to the Passport Agency’s Director. Susan Moorse held this position during the time of the relevant events. (Id. at ¶ 11.) The Bureau of Consular Affairs—including the San Francisco Passport Agency—uses a progressive discipline system to help correct employee performance and conduct problems. (Declaration of James W. Herman (“Herman Decl.”) ¶ 5.) If an employee has performance issues, those issues are first addressed by his or her supervisor with a warning or counseling. (Id.) If the performance issue does not improve, the supervisor can refer the issue to the Human Resources division of the Office of the Executive Director for possible discipline. (Id. at ¶¶ 3-5.) That division is located in Washington, D.C., and is responsible for disciplinary matters for the Bureau’s 2,700 domestic Civil Service employees at 28 passport agencies and other offices. (Id. at ¶ 4.) In 2012 and early 2013, Ms. Bartish counseled Ms. Jenkins regarding a number of performance and conduct issues. (Bartish Decl. ¶¶ 12-21.) Those issues included conflicts with a passport adjudicator on her team (id. at ¶ 15); failure to accept criticism and participate in her 2012 mid-year performance review (id. at ¶ 17); inappropriately handling conflict with a contract worker (id. at ¶ 18); and a failure to pursue discipline with a passport specialist on her team. (Id. at ¶ 20.) In 2013 and early 2014, Ms. Jenkins was disciplined for performance and conduct issues, including a letter of reprimand, a one-day suspension, and a three-day suspension. She also received an unsatisfactory performance review in 2013. These disciplinary measures and the 2013 performance review are at the core of Ms. Jenkins’s lawsuit. B. Letter of reprimand In early February 2013, Ms. Bartish was working with Ms. Jenkins on the performance evaluations for Ms. Jenkins’s team. Ms. Bartish reviewed and provided edits to the draft performance Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 9 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evaluations that Ms. Jenkins had prepared. (Bartish Decl. ¶ 22.) Without inputting the edits, Ms. Jenkins posted the draft performance evaluations to the Bureau’s online personnel database, called the Global Employment Management System (“GEMS”).1 (Id. at ¶ 23.) Posting the draft evaluations to GEMS allowed each of Ms. Jenkins’s team members to review his or her draft evaluation—in this case, before the evaluations were ready. (See id.) Because the drafts did not reflect the requested edits and did not support the stated evaluations, Ms. Bartish had to ask the Consular Affairs Human Resources Division to pull the draft performance evaluations back from GEMS. (Id. at ¶ 24.) On February 8, 2013, Ms. Bartish asked Ms. Jenkins to revise the evaluations to address the issues that she had identified and then to provide the revised evaluations to Mr. Nguyen no later than noon on February 11, 2013. (Id. at ¶ 25.) Ms. Jenkins provided updated evaluations to Mr. Nguyen on February 11, but the evaluations did not resolve the issues that Ms. Bartish had identified. (Id. at ¶ 26.) Mr. Nguyen provided additional edits to Ms. Jenkins and asked her to incorporate his edits. Again Ms. Jenkins submitted the draft evaluations to GEMS without revising the evaluations to include Mr. Nguyen’s edits. (Id. at ¶ 27.) On February 13, 2012, Ms. Bartish sent an email to the Bureau’s Employee Relations team, seeking advice regarding what to do about Ms. Jenkins’s repeated failure to follow instructions regarding the performance evaluations. (Id. at ¶ 28, Ex. E.) In a second incident in mid-February, Ms. Jenkins provided the manager override for a $30 passport application fee, but she did not provide the necessary explanation for the override in the agency’s electronic tracking system. (Id. at ¶ 29.) Fee waivers must be approved by a Supervisory Passport Specialist—like Ms. Jenkins—so the waivers can be tracked and audited to prevent fraud and other potential misconduct. (Id. at ¶ 30.) When Mr. Nguyen asked Ms. Jenkins to explain the basis for the fee override, Ms. Jenkins could not. Instead of providing an explanation, Ms. Jenkins reached out to the passport applicant, leaving “several voicemail messages.” (Id. at ¶ 31.) On March 13, 2013, Ms. Jenkins received a letter of reprimand charging her with failure to 1 GEMS is the primary human resources management application and centralized personnel database for the Department. GEMS was designed to track the progress of a personnel action from its initial request until it is completely processed and made a part of the employee’s permanent job history record. (Bartish Decl. ¶ 23.) Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 10 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 follow instructions and conduct demonstrating poor judgment in connection with her team’s performance evaluations and the undocumented fee waiver. (Id. at ¶ 32.) The letter of reprimand was issued by the Executive Director for Consular Affairs, James Herman, who was located in Washington, D.C. (Id. at ¶ 33; Herman Decl. ¶ 13.) The decision to issue the letter of reprimand was based on documentation provided by the San Francisco Passport Agency. (Herman Decl. at ¶ 14.) The letter was not based on Ms. Jenkins’s race, color, or prior protected activity, because Mr. Herman—who sat in Washington, D.C.—was not aware of those things. (Id. at ¶ 15.) Ms. Jenkins responded to the letter of reprimand with an “Informal Grievance” addressed to Consular Affairs’ Principal Deputy Assistant Secretary Michele Bond. At the time, Ms. Bond was also located in Washington, D.C. (Bartish Decl. at ¶ 34.) In the informal grievance, Ms. Jenkins claimed that the discipline was “retaliatory” in response to Ms. Jenkins’s “requests for a next level meeting to work through [her] concerns” (as opposed to prior protected activity). (Id. at ¶ 34, Ex. L.) Ms. Bond denied the informal grievance. (See id. at ¶ 34.) Ms. Jenkins then filed a formal grievance, which was investigated; and on July 31, 2013, Principal Deputy Assistant Secretary for the Office of the Director General for Human Resources Linda Taglialatela instructed the Bureau of Consular Affairs to reissue the letter of reprimand with certain changes. (Id. at ¶ 35, Ex. K.) The letter of reprimand was reissued by Mr. Herman on August 8, 2013. (Id. at ¶ 36, Ex. L.) The reissued letter of reprimand stated: Your repeated failure to follow supervisory instructions on the incorporation of edits on three separate occasions is unacceptable. … Your decision to override a payment of $30 without properly investigating the charge or understanding the reason for the override is conduct that illustrates your poor judgment. (Herman Decl., Ex. L.) C. One-day suspension On June 28, 2013, Ms. Bartish provided Ms. Jenkins with an electronic copy of a memorandum from the Office of Management Analysis and Coordination2 (“MAC”) related to the issuance of a passport in error by one of Ms. Jenkins’ subordinates, Mr. Gerald Bareikis. (Bartish Decl. ¶ 37.) Ms. 2 MAC is a component of the passport issuance operations within the Bureau and fulfills a number of business analysis and communications functions. (Bartish Decl. ¶ 37.) Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 11 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bartish instructed Ms. Jenkins not to share the memorandum with her subordinate without receiving clearance from MAC, because portions of the memorandum were confidential and only for management review. (Id. at ¶ 38, Ex. M.) Nonetheless, Ms. Jenkins shared the memorandum with her subordinate without receiving clearance to do so. (Id. at ¶ 39.) On July 2, 2013, Ms. Bartish contacted the Consular Affairs Employee Relations team, seeking advice regarding how to deal with the latest incident. (Id. at ¶ 40, Ex. N.) In a second incident on July 23, 2013, the office was looking for a lost passport application. Because passport applications contain personal information, including original documentation of U.S. citizenship, such as original certified birth certificates, the loss of a passport application is considered a serious matter. (Id. at ¶¶ 41.) Ms. Bartish instructed Ms. Jenkins to provide her with status updates concerning the search for the missing passport application and to notify her when the application was found or to provide an update at the close of business if the passport had not yet been located. (Id. at ¶¶ 41-42, Ex. O.) Again, Ms. Jenkins failed to follow instructions and did not notify her supervisor when the application was found. (Id. at ¶ 43.) Ms. Bartish referred this incident to the Consular Affairs Employee Relations team. (Id. at ¶ 44.) On September 10, 2013, Ms. Jenkins received notice of a proposed one-day suspension without pay for failure to follow instructions in connection with the unauthorized transmission of the MAC memo on June 28, 2013, and the failure to report that the missing passport had been located on July 23, 2013. (Id. at ¶ 45, Ex. P; Herman Decl. ¶¶ 17-19, Ex. D.) Ms. Jenkins responded to the notice on September 18, 2013. (Herman Decl. ¶ 20, Ex. E.) On October 18, 2013, Mr. Herman issued a decision upholding the proposed suspension on both charges—the failure to follow instructions regarding the MAC memo and the search for the missing passport application. (Id. at ¶ 20-21, Ex. F.) The decision found that: Based on the evidence, I find Ms. Bartish clearly instructed you not to provide the information referenced to the employee and you failed to follow her instructions. Therefore, specification 1 is sustained. … The evidence supports that your supervisor gave you clear instructions to follow in the email sent on July 23, 2013 (11:43 a.m.) and you failed to follow them. Therefore, specification 2 is sustained. (Id.) In reaching his decision, Mr. Herman reviewed the information presented to him concerning Ms. Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 12 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jenkins’s conduct, including her written response. Mr. Herman also considered the penalties imposed in similar cases. Mr. Herman noted that Ms. Jenkins accused Ms. Bartish of “nefarious behavior” and “intimidation and reprisal” without any substantiating evidence. Mr. Herman concluded that the seriousness of Ms. Jenkins’s conduct, coupled with the fact that she failed to accept any responsibility for her actions, warranted a one-day suspension without pay. (Id.) The decision was not based on Ms. Jenkins’s race, color, or prior protected activity, because again Mr. Herman was not aware of those things. (Id. at ¶ 23.) D. Three-day suspension In September 2013, the San Francisco Passport Agency implemented a new process to review the issuance of certain Information Request Letters (“IRLs”). IRLs are standardized letters that are sent out to passport applicants to request additional information, documentation, or action needed to process the passport application. (Id. at ¶ 55.) The new review process was explained to Ms. Jenkins on a number of occasions by her supervisor and the office’s Fraud Prevention Manager, Tracy Graff. (Id. at ¶ 56, Ex. X.) In November 2013, Ms. Jenkins failed to follow the instructions and sent a suspended passport application to the wrong desk for review. (Id. at ¶ 57.) In a second incident on November 21, 2013, Ms. Bartish walked into her office for an afternoon meeting with Ms. Jenkins and found Ms. Jenkins reading a document on her desk related to an employee performance improvement plan (“PIP”). (Id. at ¶ 58.) Ms. Bartish was concerned because Ms. Jenkins was looking through the documents on her desk and because the type of document that Ms. Jenkins reviewed—the PIP document—could have included confidential performance information related to another employee. (Id., Ex. Y.) Instead of accepting responsibility for the incident, Ms. Jenkins blamed Ms. Bartish for leaving the document on her desk. (Id. at ¶ 59.) Ms. Bartish referred these incidents to the Consular Affairs Employee Relations team. (Id. at ¶ 60.) On January 22, 2014, Ms. Jenkins received a notice of a proposed three-day suspension. (Herman Decl. at ¶ 25, Ex. G.) The decision to issue the notice was made by Mr. Herman; and at the time he issued the notice, he remained unaware of Ms. Jenkins’s race, color, or prior protected activity. (Id. at ¶¶ 26-27.) On March 21, 2014, Mr. Herman issued his decision upholding the proposed suspension. (Id. at ¶¶ 28-29, Ex. H.) The decision stated in support of the suspension that: Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 13 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It concerns me that you have not accepted responsibility for your misconduct, which leads me to question your willingness to correct your behavior and your potential for rehabilitation. … In addition, in your role as a supervisor, you lead by example and your misconduct has eroded your ability to discipline your subordinates when they fail to adhere to instructions or established standards of conduct. (Id., Ex. H.) By the time that Ms. Jenkins received the notice of the proposed three-day suspension, Ms. Bartish was no longer her supervisor. As of January 1, 2014, Ms. Bartish had taken a new position as Program Coordinator in the Passport Services Directorate. (Bartish Decl. at ¶¶ 73-75.) E. 2013 performance evaluation Ms. Bartish provided Ms. Jenkins mid-year performance reviews in May and August 2013. The reviews noted areas for improvement. (Bartish Decl. ¶¶ 49-50, Exs. R-S.) On December 10, 2013, Ms. Bartish solicited input from the Supervisory Passport Analysts—including Ms. Jenkins—for their performance evaluations. Specifically, Ms. Bartish asked the supervisors to provide a list of their accomplishments for the year to be considered in connection with their annual performance ratings. (Id. at ¶ 52.) Ms. Jenkins did not respond by the official deadline, and Ms. Bartish followed up, asking Ms. Jenkins to submit her list as soon as possible. (Id., Ex. U.) As of December 20, 2013, Ms. Jenkins had not provided a list of her accomplishments. Ms. Bartish submitted Ms. Jenkins’s draft performance appraisal to GEMS and asked Ms. Jenkins to meet with her to review the evaluation. (Id. at ¶ 53, Exs. V-W.) Ms. Jenkins declined to meet to discuss the draft evaluation. (Id. ¶ 54.) F. Other background In February 2013, Ms. Jenkins attended a training conference for Bureau supervisors in Los Angeles, California. The conference had multiple sessions, and Ms. Jenkins had chosen to attend the February session. (Id. at ¶ 62.) While the conference was underway, Ms. Jenkins requested leave from the conference so that she could fly to San Francisco for personal reasons—specifically, to attend an interview in connection with an outside leadership training program. (Id. at ¶ 63.) Ms. Bartish denied Ms. Jenkins’s last-minute leave request, because the agency had committed time and resources to give Ms. Jenkins the training opportunity; and supervisors nationwide were expected to attend unless they Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 14 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had a compelling excuse, such as a serious illness or a legal obligation, such as jury duty. (Id. at ¶ 64.) In June 2013, it was discovered that one of Ms. Jenkins’s subordinates, Mr. Gerald Bareikis, had issued a passport in error that may have been procured through fraud. (Id. at ¶ 65.) The Office of Passport Operations has procedures to address an issuance in error, which is referred to as an “IIE” within the agency. Per agency policy, an IIE automatically triggers an audit of the employee who issued the passport. (Id. at ¶ 66.) As Mr. Bareikis’s supervisor, Ms. Jenkins was responsible for conducting the audit. (Id. at ¶ 67.) On June 18, 2013, Ms. Bartish instructed Ms. Jenkins to begin a 30-day audit of 100 percent of Mr. Bareikis’s work. (Id. at ¶¶ 67-68.) During the audit, Mr. Bareikis committed a number of significant errors. After consulting with senior officials in Washington, D.C., regarding the situation, Ms. Bartish instructed Ms. Jenkins to extend her subordinate’s audit. (Id. at ¶¶ 69-70, Ex. Z.) G. Procedural history On September 30, 2013, Ms. Jenkins filed a formal complaint of discrimination with the State Department’s Office of Civil Rights alleging discrimination based on race, color, age, and retaliation. (See Declaration of CarrieLyn Guymon (“Guymon Decl.”) at ¶ 4, Ex. A.) On November 15, 2013, Ms. Jenkins’s complaint was accepted with respect to her claims of discrimination and retaliation based on (1) the letter of reprimand; (2) the one-day suspension; and (3) an alleged hostile work environment, including “inappropriate comments, lack of support, extra scrutiny of work, and intimidation.” (Id. at ¶ 6, Ex. B.) Ms. Jenkins’s claims were subsequently amended and revised on December 17, 2013, and January 8, 2014, to include a claim of discrimination and retaliation in connection with the December 4 notification of her “Not Successful” rating. (Id. at ¶¶ 7-8, Ex. B.) On April 9, 2015, the agency filed a motion for summary judgment. (Id. at ¶ 10.) On May 6, 2015, EEOC Administrative Judge David Kelley notified the agency that the case was being closed due to the fact that Ms. Jenkins had filed a lawsuit in federal district court. (Id. at ¶ 10.) Ms. Jenkins’s administrative claim was never amended to include the three-day suspension or any claim in connection with her voluntary retirement on June 30, 2014. (See Guymon Decl. ¶¶ 12-13.) Ms. Jenkins filed this lawsuit on April 29, 2015. (Dkt. 1.) Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 15 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. SUMMARY JUDGMENT STANDARD A principal purpose of summary judgment is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986). A fact is “material” if it might affect the outcome of the case. Id. at 248. In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Id. at 255. Summary judgment is proper if the non-moving party fails to produce any evidence on any element of a claim on which she will bear the burden of proof at trial. Celotex, 477 U.S. at 325; Maffei v. N. Ins. Co. of New York, 12 F.3d 892, 899 (9th Cir. 1993). Once the moving party points out this absence of evidence, the non-moving party must come forward with specific evidence to show that there is a genuine issue for trial. Celotex, 477 U.S. at 322-23; Maffei, 12 F.3d at 899. If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. Summary judgment is also proper if the non-moving party fails to produce sufficient evidence on any element of her case. Id. at 322. The bare existence of a “scintilla” of evidence in support of the non-moving party’s position is not sufficient. Anderson, 477 U.S. at 252. A party’s assertion that a fact is genuinely disputed must be supported with citations to specific admissible evidence, including depositions, documents, or declarations. Fed. R. Civ. P. 56(c)(1)(A); FTC v. Publishing Clearinghouse, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self- serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”). On summary judgment, speculation does not create a genuine dispute of fact. Nelson v. Pima Community Coll., 83 F.3d 1075 (9th Cir. 1996). IV. ARGUMENT A. Plaintiff has not established a prima facie case of discrimination. Discrimination claims are analyzed using a burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-4 (1973). Plaintiff bears the initial burden of articulating a prima Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 16 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facie case by putting forth facts that would give rise to an inference of discrimination based on race or retaliation for protected activity. Id. at 802. To establish a prima facie case of discrimination, the plaintiff must show: (1) membership in a protected class; (2) she was qualified for her position and performing her job satisfactorily; (3) an adverse employment action; and (4) that the employer treated similarly situated employees outside her classification more favorably. Id.; Hahn v. Executive Jet Management, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citing Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). Since plaintiff offers no direct evidence of discrimination, her claim should be analyzed under the McDonnell Douglas burden shifting framework. Plaintiff cannot state a prima facie case for two reasons: first, she cannot show that she was performing her job satisfactorily. Defendant has provided substantial documentation detailing plaintiff’s performance and conduct issues, some of which plaintiff has admitted. (See, e.g., Herman Decl., Ex. H at 2 (“[Y]ou did not deny your failure to follow instructions … .”).) The evidence of plaintiff’s performance and conduct issues was reviewed by a senior agency official who decided, after reviewing the documentation and hearing from plaintiff, that discipline was appropriate. (Id. at ¶¶ 14, 22, 29.) Second, plaintiff has not shown that similarly situated employees outside her classification were treated more favorably. See Hahn, 615 F.3d at 1156. In fact, the office that imposed plaintiff’s discipline has taken “disciplinary action against other Bureau employees for infractions that were the same or similar to those committed by [plaintiff].” (Herman Decl. ¶ 10.) For her claim to survive, however, plaintiff must show that other agency employees who were similarly situated in “all material respects” received more favorable treatment. Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Ms. Jenkins has not identified with specific evidence any supervisors who engaged in similar pattern of conduct, but were not counseled, reprimanded, or otherwise subject to discipline. The comparators that plaintiff has identified are not similarly situated in all material respects. For example, plaintiff complains that she was denied leave from a training seminar and “criticized” for requesting the day off, whereas “non African-American coworkers missed such training days without any consequences.” (Compl. ¶ 9(d).) In her deposition, however, plaintiff could not identify a similarly situated comparator. Plaintiff testified that Lauren Hartwood—who is not a supervisor—missed training and “was not disciplined”; but plaintiff did not know why Ms. Hartwood missed the training—“[t]he Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 17 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rumor was she got ill and failed to report for training”—and plaintiff did not know what training Ms. Hartwood was supposed to be attending. (Jenkins Depo. at 88:6-18.) Even if plaintiff’s speculation based on rumors is taken at face value, Ms. Hartwood’s circumstances are not similar and do not show that plaintiff was treated unfairly. Because plaintiff has failed to state a prima facie case of discrimination, her claim should be dismissed and judgment granted in favor of defendant. B. Plaintiff has not established a prima facie case of retaliation. Plaintiff’s claim that defendant retaliated against her for her prior protected activity fails as a matter of law because plaintiff has no evidence—direct nor circumstantial—other than her own speculation to link any protected activity with any adverse employment action. Title VII makes it unlawful “for an employer to discriminate against any of his employees … because [s]he has opposed any practice made an unlawful employment practice by this title … or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title … .” 42 U.S.C. § 2000e-3(a). Employees may engage in protected activity if they (1) participate in the “machinery set up by Title VII to enforce its provisions” or (2) oppose conduct made unlawful by Title VII. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997); Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978). To establish a prima facie case of retaliation, plaintiff must show (1) that she engaged in a protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and the adverse employment action. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006); Vazquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003) (same). If plaintiff meets this burden, defendant must put forth a legitimate, nonretaliatory reason for the adverse employment action. Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008). If defendant can do so, plaintiff must then show that the stated reason is pretext. Id. The undisputed material evidence shows that there is no causal link between plaintiff’s alleged protected activity and the disciplinary actions and performance evaluation at issue. To establish causation, plaintiff must show by a preponderance of the evidence that but for her protected activity, she would not have suffered the alleged adverse employment actions. See Villarimo v. Aloha Air Inc., 281 Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 18 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d 1054, 1064-65 (9th Cir. 2002). “Title VII retaliation claims must be proved according to traditional principles of but-for causation,” requiring “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013). On summary judgment, causation “may be inferred from circumstantial evidence, such as the employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). However, “mere speculation cannot raise an issue of fact.” Emeldi v. Univ. of Oregon, 698 F.3d 715, 728 (9th Cir. 2012). Plaintiff cannot show that the disciplinary actions were retaliatory, because the deciding agency official did not know that plaintiff had engaged in prior protected activity. (Herman Decl. ¶¶ 15, 23, 27.) Plaintiff claims that Mr. Herman was aware of her prior protected activity, but she has no evidence to support her speculation. (See Jenkins Depo. at 46:6-47:18.) With respect to her 2013 performance evaluation, plaintiff has nothing but speculation to argue for a causal link to any protected activity. (See Compl. ¶¶ 20-21.) Plaintiff also has no evidence to support her claim that she faced retaliation for her conduct in connection with the 2013 audit of her subordinate, Mr. Bareikis. Ms. Jenkins claims that “she supported another worker’s claim that [Ms.] Bartish was discrimination [sic] against him based on his age.” (Compl. ¶ 20.) Presumably plaintiff is referring to Mr. Bareikis; however, there is no direct or circumstantial evidence of retaliation. Mr. Bareikis never lodged a grievance or EEO complaint regarding the audit (see Bartish Decl. ¶ 70), so it is not clear why plaintiff believes that she was “pursu[ing] his complaint.” (See Jenkins Depo. at 24:22-26:5.) Moreover, there is no evidence that the audit was discriminatory. The audit was implemented pursuant to agency policy and extended in consultation with senior agency officials after serious performance issues were discovered in Mr. Bareikis’s work. (Bartish Decl. ¶¶ 64-69.) There is no evidence that these valid reasons were pretextual. Moreover, it is not clear how the progressive discipline could be a response to the audit in June and July, given that plaintiff received her first formal discipline from Mr. Herman—the letter of Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 19 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reprimand—on March 13, 2013, which was three months before Mr. Bareikis’s IIE was discovered and the audit ordered on June 18, 2013. (Bartish Decl. ¶¶ 31, 64-67.) Because the timing does not work out, plaintiff claims that the letter of reprimand was retaliation for her earlier advocacy for No FEAR Act training, but there is no evidence of any link even if advocacy for such training qualified as protected activity. (See, e.g., Jenkins Depo. at 28:24-29:17; 46:6-17.) In sum, plaintiff has not raised a genuine issue of material fact regarding whether her alleged prior protected activity was the but-for cause of the workplace conduct she is complaining about. See Univ. of Texas S.W. Med. Ctr., 133 S.Ct. at 2533. Accordingly, judgment should be granted in defendant’s favor. C. Even if plaintiff could establish a prima facie case of discrimination or retaliation, defendant is entitled to summary judgment. 1. Defendant had legitimate, non-discriminatory, and non-retaliatory reasons for the actions taken. Plaintiff was disciplined on the basis of her performance and conduct after review by a disinterested senior official in Washington, D.C. Thus, even if plaintiff states a prima facie case for discrimination or retaliation, defendant is entitled to summary judgment because the basis for the discipline was legitimate, non-discriminatory, and non-retaliatory. Under the McDonnell Douglas burden-shifting framework, if plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802-04. Defendant need not persuade the court that it was actually motivated by the proffered reason, but must provide a legally-sufficient explanation to justify a judgment in its favor. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981). Defendant has provided significant, well-documented evidence that it disciplined plaintiff for legitimate performance and conduct issues; and that the discipline was proportionate to that handed out to other employees. The notices and letters from Mr. Herman identify the legitimate (and non-discriminatory and non-retaliatory) basis for each disciplinary action:  The letter of reprimand was issued to plaintiff because of plaintiff’s “repeated failure to follow supervisory instructions on the incorporation of edits on three separate occasions” and “decision to override a payment of $30 without properly investigating the charge or understanding the reason for the override.” (Herman Decl., Ex. C at 1-2.) The letter was issued Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 20 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against a background of counseling for “instances of failure to follow directions, failure to use good judgment, and failure to act professionally.” (Id. at 2.)  The one-day suspension without pay was imposed because plaintiff “failed to follow instructions” by providing a confidential memorandum to a subordinate and in connection with a missing passport application. (Herman Decl., Ex. F at 2-3). A number of aggravating factors were cited in support of the decision, including the fact that plaintiff was a supervisor at the time and “[f]ailing to follow instructions … undermines your credibility with your subordinates and negatively impacts your ability to lead”; the fact that plaintiff “did not accept any responsibility for [her] actions”; and the fact that plaintiff responded to the proposed discipline by making unsubstantiated claims that Ms. Bartish had engaged in “nefarious behavior.” (Id. at 3.)  The three-day suspension without pay was imposed because plaintiff admittedly failed to follow instructions and engaged in “disrespectful behavior” when she was caught reading documents on her supervisor’s desk and then responded by blaming her supervisor for “fail[ing] to secure sensitive information.” (Herman Decl., Ex. H at 2. In reaching the decision to impose disciplinary action, Mr. Herman independently reviewed and gave full consideration to all of the materials related to the discipline, including plaintiff’s written responses. (See, e.g., Herman Decl., Exs. C, F at 4, and H at 3.) Mr. Herman also considered similar cases and penalties imposed. (See, e.g., Herman Decl., F at 4, and H at 3.) Plaintiff’s performance evaluations also articulate a legitimate, non-discriminatory basis for plaintiff’s 2013 rating. The evaluations are detailed, identify specific performance strengths and deficits, and are based wholly on non-discriminatory factors. Beginning in 2012, plaintiff’s supervisor counseled plaintiff on a number of performance and conduct issues, including “failing to pursue progressive discipline with a Passport Adjudicator as directed.” (See Bartish Decl. ¶¶ 13-20.) In 2013, Ms. Bartish provided a mid-year review that identified plaintiff’s strengths and weaknesses, including:  “Angela still seems to struggle with disciplinary conversations or escalating unacceptable performance.” (Bartish Decl., Ex. R at 1.) The review also directed plaintiff to focus on scheduling issues:  “To further grow her resource management skills, in the coming quarter would like to see Angela pay particular attention to keeping her team together during scheduling, accurately completing scheduling functions when drafting, maintaining appropriate staffing at the counter and coming to the morning scheduling meeting prepared with his requests and suggestions based on the day’s staffing.” Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 21 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id. at 1-2.) Plaintiff’s second mid-year review echoed both of these issues in greater detail:  “Angela sometimes struggles in initiating disciplinary action; however, she will do so if directed. She does not always keep upper management informed of developing employee relations or performance problems and must be approached about them first.”  “Angela does not propose initiating increased audits when necessary and must be directed to do so. She sometimes struggles to explain why to the adjudicator and needs specific direction or assistance in doing so. This is an area of improvement for Angela which affects her performance and could impact her 1 B rating if not improved.”  “Angela struggles with aligning staff and resources and consistently planning and assigning work. Angela’s schedules often require multiple corrections and she often does not appropriately assign team members based on her team’s assignment.” (Bartish Decl., Ex. S at 2-3.) The second mid-year review identified additional performance issues as well:  “Angela sometimes struggles to appropriately protect sensitive information. She has had two instances this year of sending personnel sensitive information, including performance information, to the wrong employee.”  “Angela struggles with independently developing equitable, fair, and accurate performance ratings of employees. Her drafts of awards and evaluations require multiple revisions and in one case inadmissible comments were submitted despite edits directing her to remove them.” (Id. at 3-4.) This review also provided specific examples of plaintiff’s successes and failures during the year. Significantly, the review gave plaintiff an opportunity to address the shortcomings in her performance. As Ms. Bartish wrote in a cover email, “I want to underscore, this review is a snapshot of where you now stand. Performance ratings could go up or down depending on adjustments made between now and the end of the year.” (Id. at 1.) Plaintiff’s draft 2013 performance review identified the same issues that had been documented throughout the year. For example, the review noted that plaintiff “struggles to identify disciplinary issues and hold employees accountable,” providing specific examples. (Bartish Decl., Ex. W at 6.) As another example, the review stated that “Angela struggles with independently developing equitable, fair Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 22 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and accurate performance ratings for employees.” (Id. at 7.) Moreover, plaintiff was given multiple opportunities to provide examples of her accomplishments in 2013, but declined to do so. (See Bartish Decl. ¶¶ 51-53.) In sum, the mid-year and draft final performance evaluations for 2013 are detailed documents that list specific examples of strong and weak performance and provide a wholly non- discriminatory basis for plaintiff’s ratings. Because defendant has established legitimate non-discriminatory reasons for the challenged workplace conduct, plaintiff’s claims for disparate treatment and retaliation fail as a matter of law if plaintiff cannot show that the defendant’s stated reasons are pretextual. Vasquez v. City of Los Angeles, 349 F.3d 634, 647 (9th Cir. 2003) (affirming summary judgment on claims for disparate treatment, hostile work environment and retaliation where employer showed legitimate non-discriminatory reason for action and no pretext). 2. Plaintiff cannot show that these reasons were pretextual. Plaintiff claims that all of the documentation of her performance and conduct issues, including the stated basis for the discipline decisions by a disinterested senior agency official, was all pretext for what was actually discriminatory and retaliatory motives. But plaintiff has no actual evidence to show that the real reason for her discipline or her performance review was because of racial bias or retaliation for protected activity. Absent evidence raising a genuine issue of material fact, plaintiff’s claims must fail. Because defendant has provided legitimate, non-discriminatory reasons for all of the actions challenged by plaintiff, any presumption of discrimination “simply drops out of the picture,” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510 (1993), and the burden shifts back to plaintiff to demonstrate that defendant’s stated reasons were a “pretext” or cover-up for unlawful discrimination and retaliation. McDonnell Douglas, 411 U.S. at 802-4; see also Aragon v. Republic Silver State Disp., Inc., 292 F.3d 654, 658-59 (9th Cir. 2002). Plaintiff has not created a genuine dispute of material fact regarding defendant’s reasons for the discipline and performance evaluation. Plaintiff can prove pretext either “(1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 23 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Univ. of Cal. Davis, 225 F.3d 1115, 1127 (9th Cir. 2000). Direct evidence “is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption,” and it “typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094-95 (9th Cir. 2005); see also Vasquez, 349 F.3d at 640 (9th Cir. 2004) (citation omitted). Plaintiff can provide no direct evidence of discrimination here. Accordingly, she must show pretext by indirect evidence. In order to show pretext indirectly, a plaintiff must put forth “specific and substantial evidence challenging the credibility of the employer’s motives.” Vasquez, 349 F.3d at 642; E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (circumstantial evidence must be “specific and substantial to defeat the employer’s motion for summary judgment”) (citation and internal quotation marks omitted). Employers may act for many reasons, good or bad, but unless they act for a forbidden reason, summary judgment is appropriate. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (evidence of pretext must be sufficiently probative). Subjective feelings or beliefs that the employer was improperly motivated by animus do not qualify as specific and substantial evidence of pretext. See Schuler v. Chronicle Broad. Co. Inc., 793 F.2d 1010, 1011 (9th Cir. 1986); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). Plaintiff has no “specific” and “substantial” evidence of pretext. The complained of conduct— denial of a leave request, performance criticisms in emails, and instructions to audit a subordinate’s passport adjudications following the issuance of a passport in error and subsequent SKEs (see, e.g., Jenkins Depo. at 75:24-76:16; see generally Jenkins Depo. at 66:9-80:2; 82:23-106:6)—constitutes “ordinary and reasonable responses” to issues in the workplace. See Joki v. Rogue Community College, 544 Fed. Appx. 679, 680 (9th Cir. 2013) (unpublished). On its face, none of this conduct has anything to do with race or retaliation. Plaintiff’s allegations regarding comments made about African American events and speakers also fall well short of providing evidence of improper animus on the part of anyone, much less Ms. Bartish or Mr. Herman. In her deposition, plaintiff testified that San Francisco Passport Agency Director Susan Moorse was “reticent” regarding a Juneteenth celebration in 2013 (Jenkins Depo. at 74:16-75:7), but even if true this would not constitute specific and substantial evidence of animus in an Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 24 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 office that regularly celebrated Black History Month. (Bartish Decl. ¶ 71.) Plaintiff alleges a number of other stray comments, including the suggestion that the office use $200 in funds “left over” from the Black History Month celebration for the upcoming Asian-Pacific Islander Month celebration (see Jenkins Depo. at 99:5-17); the proposed limitation of a single speaker’s time (see id. at 70:3-19 (discussing proposed limitation of time from 20 to 15 minutes or from 45 or 30 to 15 minutes)); and Ms. Moorse’s alleged comments about not wanting speakers who “made white people feel guilty” in response to a Black History Month speaker in 2010—more than three years before the discipline at issue. (See, e.g., Jenkins Depo. at 70:14-71:7). These allegations do not provide the “specific and substantial” circumstantial evidence that is required to establish improper motive with respect to workplace conduct in 2013 and 2014. For example, in E.E.O.C. v. Boeing, the Ninth Circuit held that a supervisor’s frequent “demeaning and derogatory comments about women” were sufficient to create an inference of discriminatory motive. 577 F.3d at 1050. There is nothing like that here. Instead, plaintiff points to the type of “‘ambivalent’ ‘stray remark[s]’” that the court has “previously held insufficient to establish such an inference.” Id. (citations omitted). Moreover, it is not clear why the alleged comments by Ms. Moorse should raise any issue about the conduct of Ms. Bartish or Mr. Herman, who referred plaintiff’s conduct and decided to take disciplinary measures, respectively. Finally, plaintiff’s claim that “[i]n 2013, during a period when plaintiff was planning events in connection with Black History Month, Tiffany Bartish deliberately increased her workload to an unmanageable and level” is not supported by the facts. (See Compl. ¶ 9(g).) What the record actually shows is that in June 2013, plaintiff’s subordinate was found to have issued a passport in error. (Bartish Decl. ¶¶ 64-70, Ex. Z.) The Office of Passport Operations has procedures to address an issuance in error (referred to as an “IIE” within the agency). Per agency policy, an IIE triggers an audit of the employee who issued the passport. Pursuant to this policy, Ms. Bartish instructed plaintiff to begin auditing her subordinate for 30 days beginning on June 18, 2013. (Id. at ¶ 67.) When that audit revealed significant knowledge errors by the subordinate—following consultation with Passport Headquarters on July 8, 2013—the audit was extended, again consistent with agency policy. (Id. at ¶¶ 68-69.) There is no evidence whatsoever that the audit or the extension of the audit was a “deliberate[]” effort to interfere with the Juneteenth celebration planning. Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 25 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because plaintiff cannot show that the stated reasons for the workplace actions were pretext, plaintiff’s discrimination and retaliation claims fail as a matter of law. D. The workplace conduct alleged by plaintiff was not severe or pervasive and thus cannot constitute a hostile work environment. To survive summary judgment on her hostile work environment claim, plaintiff must raise a triable issue of fact regarding whether (1) she was subjected to verbal (or physical) conduct because of her race or any prior EEO activity; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003); see also Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). Plaintiff cannot carry her burden on these factors, and thus judgment should be entered in favor of defendant on this claim. As an initial matter, plaintiff has no direct or circumstantial evidence that the complained of conduct was racial or retaliatory in nature. As discussed above, neither the workplace conduct at issue nor the alleged comments regarding African American events and speakers provide specific and substantial evidence of discriminatory animus or retaliation. For this reason alone, plaintiff’s hostile environment claim fails. Vasquez, 349 F.3d at 642. With regard to the third factor, plaintiff also cannot show the alleged workplace conduct was sufficiently pervasive or severe as to constitute a hostile work environment. The environment must be hostile and abusive from both a subjective and an objective perspective. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (whether a reasonable person would find the environment to be hostile or abusive). Courts look at the alleged conduct in the totality of the circumstances, including frequency, severity, and whether the conduct interfered with work performance. Harris, 510 U.S. 17, 23-24 (1993). “‘Simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1034 (9th Cir. 2005) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted)). The conduct alleged here does not even rise to that (insufficient) level. Here, it is not clear why much of the challenged conduct should even be called harassment. For Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 26 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 example, in her deposition plaintiff complained about emails “accusing me of poor judgment, accusing me of inappropriate requesting leave for a civic engagement,” and “not following instructions.” (Jenkins Depo. at 67:23-68:13; 69:1-7.) With respect to Mr. Nguyen, she complained that: Consistently he backed Tiffany Bartish’s accusations of my performance or discipline, saying I was doing something wrong. Severe and pervasive. (Id. at 76:12-14.) Of course, the fact that Mr. Nguyen agreed with Ms. Bartish regarding plaintiff’s performance issues is not harassment, much less “[s]evere and pervasive” harassment. The fact that plaintiff may have difficulty accepting criticism does not render that criticism harassment. Similarly, plaintiff’s allegations regarding comments made about events and speakers also fall well short of providing evidence of severe and pervasive harassment. The allegations of Ms. Moorse’s “reticence,” the suggestion regarding the use of “left over” funds, the proposed time allotted for a speaker, and the concern regarding making “white people feel guilty”—all in connection with a diversity celebration that Ms. Moorse approved—do not add up to severe and pervasive harassment that changed the terms of conditions of plaintiff’s employment. See Dominguez, 424 F.3d at 1034. In sum, no reasonable person of plaintiff’s race would find that the workplace conduct at issue rose to the level of pervasive or severe harassment. The majority of the supposed harassment identified by plaintiff was merely “ordinary and reasonable responses” to her performance and conduct issues. See Joki v. Rogue Community College, 544 Fed. Appx. 679, 680 (9th Cir. 2013) (unpublished). Taken together, the conduct at issue did not change the conditions of plaintiff’s employment. See, e.g., Vazquez, 349 F.3d at 643-44. Accordingly, the Court should enter judgment in favor of defendant on this claim. E. Plaintiff failed to exhaust her administrative remedies for the three-day suspension or any constructive discharge claim. Plaintiff did not bring a claim related to the three-day suspension or her June 2014 retirement in the administrative claim process, nor did she argue that she was “constructively discharged.” While plaintiff amended her administrative claim a number of times, she did not amend it to add a claim related to the three-day suspension or her voluntary retirement. (See Guymon Decl. ¶¶ 5-8, 12.) Even after plaintiff retained counsel in the administrative proceeding, she still did not amend her claim. (See id.) Because the claims were not presented administratively, they should not be considered here. See Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 27 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ong v. Cleland, 642 F.2d 316, 319-320 (9th Cir. 1981) (excluding constructive discharge claim). The general rule is that incidents of discrimination that are not included in an EEOC or state agency charge may not be considered by a federal court unless “the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1475-1476 (9th Cir. 1989). While the three-day suspension was the third of three disciplinary actions, it was based on two new performance and conduct issues. The issue of constructive discharge was not presented to the agency at all and therefore the agency did not have a chance to consider it before this Title VII lawsuit was filed. “The failure to raise an issue administratively subverts the procedures and policies of Title VII and justifies precluding its presentation in federal court.” Ong, 642 F.2d at 320 (citation omitted). Because the administrative charge did not encompass plaintiff’s three-day suspension and her retirement, she failed to exhaust her administrative remedies and those claims should be precluded here. Id. Even if plaintiff could bring a claim for constructive discharge, she has not established a factual basis for the claim. “[C]onstructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become ‘sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.’” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (citation omitted). That is, “when, looking at the totality of circumstances, ‘a reasonable person in [the employee’s] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.’” Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir.1984)). To survive summary judgment on a claim for constructive discharge, plaintiff must show that “there are issues of fact as to whether a reasonable person in her position would have felt that she was forced to quit because of intolerable or discriminatory work conditions.” Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1411 (9th Cir. 1996). Here, the circumstances were not objectively “intolerable” when plaintiff decided to retire. Plaintiff describes a difficult relationship with her supervisor in 2013, but by January 1, 2014, Ms. Bartish was no longer the Adjudication Manager and no longer had any supervisory responsibility over plaintiff. (Bartish Decl. ¶¶ 72, 74.) (While plaintiff did receive a 3-day suspension in 2014, the Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 28 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 underlying conduct had taken place in 2013.) Plaintiff did not retire until June 30, 2014, when her supervisor—and thus her work conditions—would have been different. V. CONCLUSION For the foregoing reasons, defendant respectfully asks the Court to grant summary judgment in his favor. Dated: December 1, 2016 Respectfully submitted, BRIAN J. STRETCH United States Attorney /s/ Robin M. Wall ROBIN M. WALL Assistant United States Attorney Attorneys for Federal Defendant Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 29 of 30 DEF.’S MOTION FOR SUMMARY JUDGMENT 15-CV-01921 RS (JCS) 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER Having considered defendant’s motion for summary judgment, the parties’ briefs, and oral argument on the motion, and the pleadings and other papers on file in this action, the Court hereby GRANTS the defendant’s motion for summary judgment on the ground that plaintiff has not stated a prima facie case of discrimination or retaliation under Title VII; defendant had legitimate, non-discriminatory, and non-retaliatory reasons for the challenged actions; plaintiff has not established a hostile work environment claim; and plaintiff’s claims related to her three-day suspension and alleged constructive discharge are precluded, because they were not raised in the administrative proceedings. SO ORDERED. Dated: ________________, 2017 HON. RICHARD SEEBORG United States District Judge Case 3:15-cv-01921-RS Document 41 Filed 12/01/16 Page 30 of 30