Kathleen Mulligan v. Jenny Yang

NOTICE OF MOTION AND MOTION for Summary Judgment , NOTICE OF MOTION AND MOTION for Summary Adjudication , Memorandum of Points and Authorities

C.D. Cal.September 23, 2016

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 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division DAVID PINCHAS (Cal. Bar No. 130751) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-2920 Facsimile: (213) 894-7819 E-mail: david.pinchas@usdoj.gov Attorneys for Defendant Chairperson Jenny Yang UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION KATHLEEN MULLIGAN, Plaintiff, v. JENNY YANG, Defendant. No. CV 15-712 DDP (AJWx) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES Hearing Date: October 24, 2016 Hearing Time: 10:00 a.m. Courtroom: 3, U.S. Courthouse Hon. Dean D. Pregerson 1. DEFENDANT JENNY YANG’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES; 2. MEMORANDUM OF POINTS AND AUTHORITIES; 3. DECLARATIONS OF THOMAS PROFIT; ARLETHIA MONROE; AND DAVID PINCHAS. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 1 of 22 Page ID #:280 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 DESCRIPTION PAGE TABLE OF AUTHORITIES ............................................................................................. ii NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ..................... iv MEMORANDUM OF POINTS AND AUTHORITIES ................................................... 1 I. STATEMENT OF FACTS ...................................................................................... 1 II. STANDARDS OF REVIEW ................................................................................... 4 III. ARGUMENT ........................................................................................................... 4 A. 1. Plaintiff Cannot Recover for Untimely Discrete Acts .............................. 4 B. There is No Basis to Apply Tolling in this Case ........................................... 7 C. Plaintiff Cannot Establish an Actionable Hostile Work Environment ......... 8 D. Plaintiff May Not Recover for Per Se Retaliation ...................................... 12 E. Plaintiff Cannot Raise a Material Issue of Fact Regarding Retaliation ...... 13 IV. CONCLUSION ...................................................................................................... 16 Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 2 of 22 Page ID #:281 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 DESCRIPTION PAGE CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................................................................. 4 Branch v. McDonald, 2015 WL 7874763 at *3 (N.D. Cal. Dec. 4, 2105) ................................................. 5 British Airways Board v. Boeing Co., 585 F.2d 946 (9th Cir. 1978) ................................................................................... 4 Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)................................................................................................. 13 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................................. 4 Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003) ............................................................................. 5, 7 Clark County School Dist. V. Breeden, 532 U.S. 268 (2001)............................................................................................... 13 Cramblett v. McHugh, 2014 WL 2093600 at * 14; (D. Ore. May 19, 2014) ............................................. 13 EEOC v. Go Daddy Software, 2006 WL 1791295 at 7 (D. Ariz. June 27, 2006) .................................................. 13 Faragher v. City of Boca Raton, 524 U.S. 775 (1998)......................................................................................... 10, 11 Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177 (9th Cir. 2005) ............................................................................... 14 INS v. Miranda, 459 U.S. 14 (1982)................................................................................................... 8 Jaa v. United States Immigration and Naturalization Service, 779 F.2d 569 (9th Cir. 1986) ................................................................................... 8 Kapu v. Sears, Roebuck & Co., 2000 WL 2943339, at *9 (D. Hawaii) (July 27, 2010) ......................................... 12 Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000) ..................................................................... 9, 12, 14 Lorena v. U.S. Dept. of State, 105 F.3d 548 (9th Cir. 1997) ................................................................................... 8 Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 3 of 22 Page ID #:282 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 Manatt v. Bank of America, NA, 339 F.3d 792 (9th Cir. 2003) ................................................................................. 11 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)................................................................................................. 5 Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1988) ................................................................................. 14 Okello v. Dominguez, 2006 WL 3065573 at * 5 (N.D. Cal. Oct. 27, 2006) ............................................. 14 Porter v. Calif. Dept. of Corrections, 419 F.3d 885 (9th Cir. 2004) ................................................................................... 8 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) ............................................................................... 13 Sanchez v. City of Santa Anna, 936 F.2d 1027 (9th Cir. 1990) ............................................................................... 12 Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) ................................................................................. 8 T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 (9th Cir. 1987) ................................................................................... 4 Thornhill Pub’lg Co. v. GTE Corp., 594 F.2d 730 (9th Cir. 1979) ................................................................................... 4 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) ................................................................................. 12 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)................................................................................................. 5 STATUTES 29 U.S.C. § 701 et seq. ....................................................................................................... 5 RULES AND REGULATIONS 29 C.F.R. § 1614.105(a) ................................................................................................. 6, 7 Fed.R.Civ.P. 30(b)(6) ......................................................................................................... 6 Fed.R.Civ. P. 56(a) ........................................................................................................ iv, 4 Fed.R.Civ. P. 56(g) ........................................................................................................... iv Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 4 of 22 Page ID #:283 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 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT PLEASE TAKE NOTICE that on October 24, 2016, or as soon thereafter as may be heard, Defendant Jenny Yang, Chairperson of the United States Equal Employment Opportunity Commission (“EEOC”) will, and hereby does, move this Court for an order granting summary judgment, or in the alternative, for partial summary judgment or summary adjudication of issues.1 This motion will be made before the Honorable Dean D. Pregerson, United States District Judge, in Courtroom 3 of the Spring Street Courthouse located at 312 N. Spring Street, Los Angeles, CA 90012. Defendant Yang brings this motion pursuant to Federal Rule of Civil Procedure 56(a) on the grounds that there is no material genuine issue of fact herein and Defendant is entitled to judgment as a matter of law, or, in the alternative, partial summary judgment or summary adjudication of issues pursuant to Fed.R.Civ.P. 56(g). This motion is made upon this Notice, the attached Memorandum of Points and Authorities, declarations and exhibits, and all pleadings, records, and other documents on file with the Court in this action, including the transcript of Plaintiff’s April 19, 2016 deposition (“TR”), and upon such oral argument as may be presented at the hearing of this motion. // // // // // // // // 1 Defendant does not seek summary judgment as to Plaintiff’s claims for delay in granting her October 23, 2012 request for an ergonomic workstation and her March 29, 2013 request for certain clerical support, as accommodations for her disabilities under the Fifth Claim for relief in Plaintiff’s Complaint. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 5 of 22 Page ID #:284 v 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 This motion is made following the conference of counsel pursuant to Local Rule 7-3 which was held in April 2016 and on August 26, 2016. Dated: September 23, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ David Pinchas DAVID PINCHAS Assistant United States Attorney Attorneys for Defendant Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 6 of 22 Page ID #:285 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 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS Plaintiff is a GS-14 Attorney-Examiner (also called an Administrative Judge) employed at the EEOC’s Los Angeles District Office (“LADO”). See Complaint ¶ 6. As an Attorney-Examiner, Plaintiff is responsible for the adjudication of complaints of discrimination brought by federal agency employees located within the geographic area covered by the LADO. Id. ¶ 6. On or about 2004, Plaintiff claims she began to experience arm and hand pain. Complaint ¶ 28; TR at 87:8-9 (Exhibit 1 to attached Pinchas declaration). According to Plaintiff, the cause of this pain was rheumatoid arthritis. Id. at lines 12-16. However, Plaintiff purposely chose not to start the “reasonable accommodation process” from her employer, the EEOC, because she did not want to be known as disabled. Id. 88:17-23. After the EEOC paid for an ergonomic assessment of Plaintiff’s workstation in 2005, the EEOC provided Plaintiff with an Elite keyboard; a Logitech mouse; a Pantronics headset and remote headset lifter, as recommended in the assessment. Id. 107:5-7; 108:3-11; 109:6-8. Plaintiff contends that she requested clerical support for filing in 2005 but this request was denied. Id. 115:17-25. At various times, however, Plaintiff was provided clerical assistance by her supervisor Christine Siegel. See Siegel deposition transcript 20:1-24; 49:5-25 (Exhibit 10 to attached Pinchas declaration). In addition, while Plaintiff testified that she considered the failure to provide her the clerical support she sought to be a denial of a request for accommodation and a violation of EEOC policy, id. 115:18-116:16, Plaintiff admits she never requested the EEOC to provide her full- time clerical support. TR 111:21-23. Furthermore, as discussed below, Plaintiff made no administrative complaint regarding this alleged denial until December 2012. Although Plaintiff may have preferred for the EEOC to provide her a typist, the EEOC did provide her with several versions of Dragon Dictation, a voice activated Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 7 of 22 Page ID #:286 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 software program, along with training in its use. Id. 102:2-4; 110:1-8.2 Nevertheless, Plaintiff was unwilling to use this program. Id.3 Ultimately, Plaintiff found it more useful to use her iPad and iPhone to dictate her work and email it to a clerk to format. Id. 102:23-103:10. Plaintiff also considers the failure to provide her a new desk and computer table in 2005 to be a violation of her rights, but again failed to initiate the administrative EEO process until December 2012.4 In 2007, Plaintiff was provided, at her request, with new filing cabinets as an accommodation. Id. 249:20-25; Complaint ¶ 52. In 2009, Plaintiff requested an “ergonomically appropriate” chair and received it within a few months of her request. See Complaint ¶ 54; TR 149:17-21. Plaintiff complains that in 2011 there was a delay in allowing her to work at home following surgery as an accommodation. During that period, Plaintiff’s doctor had issued written restrictions that she could not work at all. Id. 167:8-13. In November, 2012, Plaintiff renewed her request for an ergonomic evaluation of her work station. See Exhibit 3 to Pinchas declaration. In response, in December 2012, the EEOC paid for a second ergonomic assessment of Plaintiff’s workstation, to determine whether adjustments were needed. TR. 278:10-18. In February 2013, 2 Plaintiff did utilize a program called Quik Words in which regularly used phrases or citations were set up as templates. Id. 124:1-17. Plaintiff found it to be more useful to use her iPad and iPhone to dictate her work and email it to her assistant to format. Id. 102:23-103:10. 3 Plaintiff’s coworker, Leslie Troope, successfully used Dragon Dictation throughout her career as an Attorney-Examiner and testified that in order to use that software “it’s a pretty steep learning curve…and some folks don’t have the patience for that….” Troope deposition transcript at 42:9-43:14 (Exhibit 2 to Pinchas declaration). 4 Plaintiff also complains of a failure to accommodate her with respect to premium seating on a work-related trip to Asia. However, Plaintiff admits that she never actually went on that trip. TR 199:2-9. Plaintiff admits that she did not timely seek EEO counseling on that issue because she believed the EEO process to be a “farce.” Id. 201: 21-25. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 8 of 22 Page ID #:287 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 Plaintiff provided pictures of new furniture that she requested the EEOC’s disability program manager, Dr. Donna Walton to provide to her. See Exhibit 4 to Pinchas declaration. Thus, Plaintiff complains of an approximately four-month delay in the processing of this request until Defendant’s District Resources Manager, Tom Profit, took action regarding this request. See declaration of Thomas Profit ¶11. There is no dispute that Mr. Profit arranged for Plaintiff to sit in another office within the LADO for a few days to try out the furniture in that office. Id. ¶ 8. During this period, there was some further delay in this process due to a mandatory office move for refurbishing the LADO offices and a new illness that Plaintiff suffered. Id. ¶9. On or about July 25, 2013, Plaintiff approved the EEOC’s proposal for a new workspace including a u-shaped desk and keyboard platform with mouse pad and drawers. Id. ¶10. After discussing the matter with the EEOC’s disability program manager, Mr. Profit located a vendor who could supply the furniture Plaintiff had approved. Id. ¶11. Mr. Profit obtained a price quote from the vendor, obtained authorization for payment and ordered the furniture in September 2013. Id. The vendor shipped the furniture to the LADO in early November and it was installed on or about November 8, 2013. Id. Plaintiff is satisfied with this furniture. Complaint ¶ 57. A key point on this Motion is that Plaintiff did not initiate the EEO process until December 7, 2012. See Complaint ¶ 12. Plaintiff admits that she did not initiate the EEO process until the end of 2012 because she was dissatisfied with the outcome of her prior EEO complaint in a different office in 2000.5 TR. 126: 1-9. Plaintiff further testified that she had decided not to initiate another EEO complaint until her “life depended on it.” Id. In December 2012, Plaintiff finally felt her “life, in the sense of her professional life, did depend on it” due to disparaging remarks made by her supervisor, Christine Siegel, in October 2012. Id. 132:24-25. As will be discussed below, this is important because Plaintiff seeks to recover for numerous discrete acts that 5 A copy of the EEOC’s decision in Plaintiff’s previous EEO complaint filed in the EEOC’s San Diego office is found as 2003 WL 21485280 (EEOC June 19, 2003). Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 9 of 22 Page ID #:288 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 allegedly took place between 2003 and 2011 that are time-barred due to Plaintiff’s belated resort to the administrative process, which is a prerequisite to this action. II. STANDARDS OF REVIEW Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(a). The moving party bears the burden of establishing that there is no genuine issue of material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). After the moving party makes a properly supported motion, the responding party must present specific facts showing that a triable of fact exists. See British Airways Board v. Boeing Co., 585 F.2d 946, 950-52 (9th Cir. 1978). To defeat a motion for summary judgment, the responding party must present evidence sufficient to establish the existence of any elements that are essential to that party’s case and for which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. The evidence presented by both sides is to be viewed in the light most favorable to the non-moving party. See T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987). However, it is not enough for the responding party to point to the mere allegations or denials contained in the pleadings. Instead, the responding party must set forth, by admissible evidence, specific facts demonstrating the existence of an actual issue for trial. See Thornhill Pub’lg Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). The evidence must be more than a mere “scintilla”; the responding party must show that the trier of fact could reasonably find in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). As explained below, Plaintiff is unable to satisfy her burden of proof as to some or all of her claims in this action. III. ARGUMENT A. 1. Plaintiff Cannot Recover for Untimely Discrete Acts A prerequisite to filing an EEO complaint is that an employee must make contact with an EEO counselor “within 45 days of the date of the matter alleged to be Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 10 of 22 Page ID #:289 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 discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.” See 29 C.F.R. 1614.105(a); see also Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003) (holding that failure to contact an EEO counselor within 45 days is “fatal to a federal employee’s discrimination claim”) (internal citations omitted); Branch v. McDonald, 2015 WL 7874763 at *3 (N.D. Cal. Dec. 4, 2015)(citing Cherosky with approval and finding that a Plaintiff’s claims are limited to those occurring within 45 days of her contact with an EEO counselor). The 45-day EEO contact requirement is treated like a statute of limitations requiring dismissal where the complainant fails to comply with the applicable deadline. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). The Cherosky case is particularly instructive. There, the Court ruled that an alleged failure to accommodate a disability under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., is a discrete act which requires timely consultation with an EEO counselor before filing suit in District Court. Cherosky, 330 F.3d at 1247. The Cherosky Court cited National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) for the proposition that the Supreme Court “reject[ed] the application of the continuing violations doctrine to…a ‘serial violation.’” Instead, under Morgan, each discrete discriminatory act starts a new clock for filing discrimination charges. Id. at 122 (“discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges”). In Cherosky, 330 F.3d at 1248, the plaintiffs sought to circumvent the filing requirements of Title VII of the Civil Rights Act of 1964 by claiming that that the Postal Service’s denial of their requests to wear respirators was taken pursuant to a discriminatory policy that was still in effect during the limitations period. Nevertheless, the Cherosky Court found that the employees’ claims were time-barred because they did not initiate contact with a counselor within 45 days of the denial of their requests as Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 11 of 22 Page ID #:290 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 required by 29 C.F.R. § 1614.105(a)(1)6. In discovery in this action, Plaintiff resisted Defendant’s attempts to determine which of her accommodations she intended to raise in this action. Pinchas decl. ¶ 2. In June 2016, Plaintiff finally revealed the requests for the accommodations at issue in this action in the parties’ “Joint Stipulation Re Issues in Dispute Re: Plaintiff’s Notice of Deposition of the EEOC Pursuant to F.R.Civ.P. 30(b)(6)” at pages 8-9 (“the Joint Stipulation”). (Dkt. # 32-1). In that document, Plaintiff finally identified each of her requests for accommodations at issue in this case: 1) November 21, 2003 request for keyboard, chair and desk (Dkt. # 32-5)7; 2) November 17, 2004 request for ergonomic evaluation (Dkt # 32-6); 3) May 31, 2005 ergonomic suggestions from evaluation performed (Dkt. # 32-7); 4) December 14, 2006 request for filing cabinets (Dkt # 32-8)8; 5) September 21, 2009 request for ergonomic chair (Dkt # 32-9);9 6 In her administrative EEO complaint, Plaintiff purposely did not raise a claim for failure to accommodate her disabilities. See Exhibit 5 (“There is one ISSUE in this case, retaliatory hostile work environment”). Nevertheless, the Complaint in the instant action contains a Claim 5 for “Violation of the duty of reasonable accommodation.” 7 Plaintiff claimed her “first” request for accommodations sought a keyboard, chair and table and cited to her Exhibit D (Dkt # 32-5), a 2005 email confirming that Plaintiff was not “trying to start the reasonable accommodation process” in 2003. Indeed, Plaintiff’s own Complaint affirms that her first request for accommodation took place in 2005, not 2003. See Complaint ¶¶ 4, 50, 111. 8 There is no dispute that cabinets were provided to Plaintiff in June, 2007. See Profit decl. ¶ 6. 9 There is no dispute that Plaintiff was provided the ergonomic chair in November or December of 2009. TR: 149:20-22. Plaintiff has described this delay as “[b]y far, not the worst delay at all.” Id. 149:22. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 12 of 22 Page ID #:291 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 6) January 20, 2011 request to telework (Dkt # 32-10);10 7) June 28, 2011 request for clerical assistance (Dkt # 32-12);11 8) July 2011request for ergonomic work station (Dkt # 32-11);12 9) October 23, 2012 request for work assessment and equipment (Dkt # 32-13);13 and 10) March 29, 2013 request for clerical assistance (Dkt # 32-14).14 Because Complainant initiated contact with an EEO counselor only on December 7, 2012, any alleged failure to accommodate a disability that occurred prior to October 23, 2012 is untimely. See 29 C.F.R. § 1614.105(a)(1). Thus, Plaintiff’s claims that her requests for accommodation numbered 1-8 above, were delayed or denied, and any other such untimely claims, should be dismissed as a matter of law. See Cherosky, 330 F.3d at 1246. B. There is No Basis to Apply Tolling in this Case Plaintiff has indicated that she will seek to avoid the time bar to her claims by relying on the doctrines of equitable tolling and equitable estoppel. See Joint Stipulation 10 The actual date of Plaintiff’s telework request was February 15, 2011. See Exhibit 6 to Pinchas declaration. An interactive process with Plaintiff’s supervisor ensued, but Plaintiff chose not to pursue the matter further. See TR: 182:7-21. 11 Plaintiff’s Exhibit K (Dkt # 32-12) is an email in which Plaintiff explains that her dominant arm will be in a sling for several weeks following future shoulder surgery. It cannot be fairly construed as a request for clerical support as an accommodation. 12 Plaintiff’s Exhibit J (Dkt # 32-11), offered by Plaintiff in the Joint Stipulation as evidence of her request for accommodation, establishes that the EEOC’s disability program manager attempted to provide Plaintiff with updated Dragon dictation software, an adjustable keyboard tray and an ergonomic keyboard and mouse. Exhibit J also establishes that Plaintiff refused to accept these items. 13 There is no dispute that another ergonomic assessment was provided to Plaintiff in December 2012. See TR 278:10-18. 14 There is also no dispute that Plaintiff was provided additional clerical support later in 2013. TR 110:15-25; 113:24-114:4. With respect to Plaintiff’s difficulties conducting hearings due to her sporadic back spasms, Plaintiff created her own accommodation by reducing the number of hearings she held unless she had an extern present and otherwise cutting down on her work. See TR 304:1-305:24. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 13 of 22 Page ID #:292 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 at 11. These doctrines are clearly inapplicable to the instant action. Equitable tolling requires a finding that, “despite all due diligence, [the party invoking tolling] is unable to obtain vital information bearing on the existence of the claim.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc) (citations omitted). Here, Plaintiff, who is both a lawyer and an administrative expert on matters of discrimination and federal time limits for prosecuting such claims, admits that she knew of the existence of her claims and her legal rights but chose not to pursue whatever claims she might have had between 2003-2011 because of some dissatisfaction with the EEOC’s handling of her prior EEO complaint. See TR 126:1-9. Plaintiff cannot rely on the doctrine of equitable tolling on this motion because her own testimony establishes that she was aware of her rights and made a conscious decision not to pursue them. See Lorena v. U.S. Dept. of State, 105 F.3d 548, 551 (9th Cir. 1997) (equitable tolling does not apply when a party has the “means of knowledge” of her rights and the law’s requirements). The doctrine of equitable estoppel is also unavailable to Plaintiff because it requires a finding, by clear and convincing evidence, of affirmative misconduct on the part of the government, beyond mere delay. See Jaa v. United States Immigration and Naturalization Service, 779 F.2d 569, 572 (9th Cir. 1986) (citing INS v. Miranda, 459 U.S. 14, 18-19 (1982)). There is no evidence of such conduct in this case. C. Plaintiff Cannot Establish an Actionable Hostile Work Environment Plaintiff’s complaint mentions a “hostile work environment” but does not contain a separate cause of action thereto. See Complaint at title page and ¶ 5. To the extent that Plaintiff seeks to include her time-barred claims for a delay in the reasonable accommodation of her disabilities in a hostile environment claim, she cannot do so as a matter of law. See Porter v. Calif. Dept. of Corrections, 419 F.3d 885, 893 (9th Cir. 2004) (refusing to mix untimely discrete acts with timely ones under a hostile work environment theory). Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 14 of 22 Page ID #:293 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 With respect to Plaintiff’s remaining allegations, including items (9) and (10), supra, she can establish neither a severe nor pervasive hostile work environment. Plaintiff’s claim for ergonomic desk (item (9) above) is explained in her February 6, 2013 email to Dr. Walton (exhibit 4 hereto). According to Plaintiff, the mouse on her keyboard sometimes falls because there is not enough room on her keyboard tray and she would like more storage space. Id. Defendant submits that this claim not sufficiently severe to create a hostile work environment. See Kortan v. California Youth Authority, 217 F.3d 1104, 1110 (9th Cir. 2000) (courts should determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance). Plaintiff’s claim for “clerical assistance” (item 10 above) is explained in her email to her supervisor Diane Gross dated April 5, 2013 (Dkt # 32-14). For the Court’s convenience, another copy of this email is attached hereto as Exhibit 12. In that exhibit, Plaintiff explains that she seeks accommodation in case her symptoms get to the point that she is unable to carry any files to her courtroom, or help escort witnesses at breaks in hearings. As Plaintiff admits, the need for such an accommodation is somewhat hypothetical. See TR 304:1-305:20. Plaintiff also complains that it is difficult for her to take notes during hearings. There is no dispute, however, that Plaintiff has access to a written transcript of every hearing she conducts. See Pinchas declaration ¶ 15. Once again, even taken together, these issues are not so severe as to create a hostile work environment. Plaintiff also complains that her supervisor Christine Siegel made derogatory comments to her on a sporadic basis over several years. For example, Plaintiff claims that in 2004, Siegel made a comment about a slide show presentation Plaintiff planned to share with a Bar group: “Good slides. Looks like a good conference if you’re a pig defense lawyer.” Exhibit 7 to Pinchas declaration. Plaintiff also complains that in 2006, Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 15 of 22 Page ID #:294 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 Siegel told her to “see if you can get another unit to take you” because Plaintiff told Siegel to wait when she came to her office to speak with her. Id. 239:11-240:2. Plaintiff further alleges that in September 2012, she asked Siegel for a modification of her already glowing performance appraisal and Siegel stated “I am so sick of you” but then immediately said to Plaintiff “I shouldn’t have said that.” See Exhibit 8 hereto (page 9 of Plaintiff’s EEO rebuttal affidavit). It should be noted that each of the above statements, while annoying, was neutral as to any protected characteristic or activity. Furthermore, the sporadic nature of these incidents militates sharply against a finding that the alleged harassment was pervasive. See Faragher v. City of Boca Raton, 524 U.S. 775, 787 & n. 1 (1998) (incidents must be more than episodic to establish hostile work environment). Plaintiff also alleges that, on one occasion in late October 2012, when she was not present, Siegel referred to her as an “ungrateful fucking bitch” to her coworker, Lesley Troope. Complaint ¶ 5. Troope recalls that Siegel had asked Plaintiff to speak about her work on a complicated class action case at an awards ceremony but Plaintiff had indicated she might not attend.15 Troope deposition transcript at 116:23-117:3 (Exhibit 2 to Pinchas declaration). Troope had advised Plaintiff to take this “victory lap” but Plaintiff appears to have been somehow offended by Siegel’s request and was unwilling to do so. Id. 122:3-21. Troope also recalled that during this time, Plaintiff was upset that she “only got 14 hours of time off award” even though Troope, and at least one other coworker, did not receive any award whatsoever. See Exhibit 2 at 123:4-9. Troope noted that both she and Siegel, as well as Plaintiff herself, commonly used profanity, or as Troope put it, “everyone in the unit has a potty mouth.” Id. 117:22-24; 131:14-18. Troope also noted that Plaintiff felt betrayed, as a friend,16 when she learned 15 Plaintiff refers to this speech as “an additional task that is not an essential function of an administrative judge.” Complaint ¶ 69. 16 Although the Complaint alleges that Plaintiff was subjected to a hostile work environment by Siegel, their personal emails throughout the years show a different story: Plaintiff and Siegel were actually very friendly. See Exhibit 9 to Pinchas declaration. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 16 of 22 Page ID #:295 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 of Siegel’s comments in November 2012. Id. 138:24-139:5. Troope also testified that Siegel was mercurial and that she treated all her employees in a manner similar to that of which Plaintiff complains. See id. at 66:25-67:12; 73:20-25 84:6-8. The “standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’” Faragher, 524 U.S. at 781. Properly applied, these standards should filter out complaints attacking the “ordinary tribulations of the workplace, such as the sporadic use of abusive language… and occasional teasing.” Faragher, 524 U.S. at 788 (citations omitted). Sporadic harsh comments by Siegel do not create an actionable hostile work environment under Title VII of the Civil Rights Act of 1964 or the Rehabilitation Act. Otherwise, these statutory schemes would become the “civility code” expressly forbidden by the Supreme Court in Faragher. To be actionable, the conduct must be so extreme to amount to a change in the terms and conditions of employment and the environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Faragher, 524 U.S. at 786-87. Here, Plaintiff admits that she still wanted Siegel to continue as her supervisor, even after learning of her remarks to Troope. Id. 145:9-15. Nevertheless, Siegel resigned from her supervisory position after learning of Plaintiff’s 2012 EEO filing. See Siegel deposition transcript at 114:12-23 (Exhibit 10 to Pinchas declaration). Therefore, Siegel’s statements, even though harsh, were insufficient to alter the terms of Plaintiff’s employment, even from Plaintiff’s perspective, and certainly so from the perspective of a reasonable person. Indeed, Plaintiff’s allegations pale in comparison to several cases in which the Ninth Circuit did not find severe or pervasive harassment. Compare, for example, Plaintiff’s allegations to those in Manatt v. Bank of America, NA, 339 F.3d 792 (9th Cir. 2003). There, the Ninth Circuit affirmed summary judgment in favor of the employer where the plaintiff, an employee of Chinese descent who was demoted, observed co- workers and/or her supervisor: Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 17 of 22 Page ID #:296 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 • make comments such as “I am not a China man, I’m not like China man with their eyes like that;” “I’ve had the worst kind of trouble with your countrymen,” “communists from Beijing;” • pull their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians; and • where plaintiff was publically mocked and humiliated for her pronunciation because she was a “China woman.” Id. 339 F.3d 795-96. Similarly, in Vasquez v. County of Los Angeles, 349 F.3d 634, 643-44 (9th Cir. 2003), the Ninth Circuit affirmed a finding that a hostile work environment had not been established where the plaintiff was told that he should consider transferring to work in the field because “Hispanics do good in the field,” that he had a “typical Hispanic macho attitude,” a co-worker made false complaints about the plaintiff to his supervisor, plaintiff’s job duties were changed, and plaintiff was yelled at in front of others. See also Sanchez v. City of Santa Anna, 936 F.2d 1027 (9th Cir. 1990) (affirming directed verdict in favor of employer in action in which employer allegedly made racially offensive slurs, kept illegal personnel files on the plaintiffs because they were Latinos, posted racially offensive cartoons, and targeted Latinos when enforcing the rules); and Kortan, 217 F.3d at 1112 (holding supervisor’s reference to women as “castrating bitches,” a dispute between plaintiff and supervisor about a work matter, and a downgraded performance evaluation insufficient to establish a hostile work environment). Accordingly, to the extent Plaintiff has even raised a cause of action for a hostile work environment, and that it was timely administratively exhausted, it should be dismissed as a matter of law. D. Plaintiff May Not Recover for Per Se Retaliation The Third and Fourth Claims of Plaintiff’s Complaint seek to recover for “Retaliation Per Se”, that is, retaliation that does not require any proof other than a statement itself. The Ninth Circuit has not recognized this type of claim. See Kortan, Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 18 of 22 Page ID #:297 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 28 217 F.3d at 1112 (supervisor’s laughing and stating that plaintiff “got him on sexual harassment charges” did not preclude summary judgment of retaliation claim); EEOC v. Go Daddy Software, 2006 WL 1791295 at 7 (D. Ariz. June 27, 2006) (declining to recognize per se retaliation); Cramblett v. McHugh, 2014 WL 2093600 at * 14; (D. Ore. May 19, 2014) (“there is no legal support for the proposition that any expression of skepticism by an employer of the merits of an employee’s EEO Complaint constitutes retaliation”). Indeed, the concept of “per se” retaliation appears to conflict with the Supreme Court’s ruling in Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006), that “context matters” when assessing the significance of any given act of alleged retaliation. Accordingly, Plaintiff’s Third and Fourth Claims should be dismissed. E. Plaintiff Cannot Raise a Material Issue of Fact Regarding Retaliation In order to state a prima facie case of retaliation, Plaintiff must establish (1) she engaged in prior protected activity; (2) Defendant subjected her to an adverse employment action; and (3) a causal link between the protected activity and the adverse action. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Although it is not disputed that Plaintiff engaged in protected activity in 2000, Plaintiff cannot establish the remaining elements of a retaliation claim.17 In order to excuse her failure to seek EEO counseling regarding alleged retaliation on a timely basis, Plaintiff contends that she was unaware of the retaliatory motive until 17 The Supreme Court has held that courts that accept mere temporal proximity, between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality, hold that the temporal proximity must be “very close.” Clark County School Dist. V. Breeden, 532 U.S. 268, 273 (2001). Here, the delay was as much as nine years. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 19 of 22 Page ID #:298 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 she learned of the alleged comments of Christine Siegel to Leslie Troope disparaging Plaintiff’s EEO complaint filed thirteen years prior.18 Plaintiff’s contention lacks merit. In the first place, the accommodation delays of which Plaintiff complains were the responsibility of Defendant’s disability program managers, not Christine Siegel. See Defendant’s Directives Transmittal # 0-560.003 (Exhibit 11 to Pinchas declaration). There is no evidence to impute Siegel’s alleged retaliatory motive of Siegel to these other managers. Furthermore, delays in processing reasonable accommodation requests can only be considered adverse employment actions for purposes of retaliation if the delay was in bad faith, as opposed to bureaucratic negligence. See Okello v. Dominguez, 2006 WL 3065573 at * 5 (N.D. Cal. Oct. 27, 2006) (granting summary judgment on plaintiff’s retaliation claim where plaintiff failed to present evidence that his accommodation request was delayed intentionally and in bad faith). Here, there is no evidence that Defendant’s disability program managers delayed action on Plaintiff’s requests in bad faith or for purposes of retaliation. In addition, Siegel’s alleged rude comments to and about Plaintiff do not rise to the level of an “adverse employment action.” See Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1189 (9th Cir. 2005), amended on other grounds 438 F.3d 672 (9th Cir. 2006) (affirming summary judgment on claims of retaliation for “snide comments and threats”); Kortan, 217 F.3d at 1112 (affirming summary judgment on retaliation despite supervisor’s reference to employee’s prior EEO activity and supervisor’s hostility and increased criticism); Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1988) (bad mouthing and threats do not establish an adverse action). Plaintiff also contends that her position was not upgraded to a higher pay grade, from GS-14 to GS-15, due to retaliation for having made requests for accommodation 18 Troope claims that Siegel mentioned that she had taken Plaintiff into the LADO hearings unit in 2001 despite her prior EEO activity in San Diego and that Siegel said she “always [gave] award[s to] Kathleen [Mulligan] because she is the best.” Exhibit 2 at 117:13-20. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 20 of 22 Page ID #:299 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 for her disabilities. See Complaint ¶ 87. However, Plaintiff cannot establish any causation from retaliation because she abandoned her administrative request. Plaintiff had filed a request for the higher classification to the Office of Personnel Management (“OPM”), but, she testified, she later decided not to pursue the matter with OPM and instead to “move it into this [District Court] case.” TR 282:7-16. Plaintiff contends that she did so because she believed that she would not get a fair administrative decision. Id. 282:15-19.19 As explained in the attached declaration of Arlethia D. Monroe, the Assistant Director-Operations Service, of the EEOC’s Office of the Chief Human Capital, the EEOC cannot unilaterally reclassify Plaintiff’s position to the GS-15 level. See Monroe declaration at ¶10. Only OPM, which is not a party to this case, can do so. Id. ¶ 5. Plaintiff does not dispute this. See TR 286:29-287:19. Because OPM is not a party to this action and there can be no basis to grant Plaintiff relief in the form of reclassifying her position to that of GS-15 or paying her as if her position had been upgraded. Accordingly, Defendant requests summary judgment on this claim as well. // // // // // // // // // 19Plaintiff further contends that Defendant attempted to pressure her new supervisor, Diane Gross, to provide a false statement in the EEOC’s response to her classification request. Id. 282:21-24. However, she admits that this alleged pressure was unsuccessful and her supervisor not only did not “capitulate” but actually supported her request for a higher pay grade. Id. 283:2-7. Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 21 of 22 Page ID #:300 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 IV. CONCLUSION For all the above reasons, Defendant requests that the Court grant summary judgment in her favor. If for any reason the Court cannot grant complete summary judgment, Defendant requests partial summary judgment, or summary adjudication of those facts that Plaintiff does not controvert with admissible evidence. Dated: September 23, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ David Pinchas DAVID PINCHAS Assistant United States Attorney Attorneys for Defendant Case 2:15-cv-00712-DDP-AJW Document 41 Filed 09/23/16 Page 22 of 22 Page ID #:301 17 PROFIT DECLARATION Case 2:15-cv-00712-DDP-AJW Document 41-1 Filed 09/23/16 Page 1 of 3 Page ID #:302 18 PROFIT DECLARATION Case 2:15-cv-00712-DDP-AJW Document 41-1 Filed 09/23/16 Page 2 of 3 Page ID #:303 19 PROFIT DECLARATION Case 2:15-cv-00712-DDP-AJW Document 41-1 Filed 09/23/16 Page 3 of 3 Page ID #:304 20 MONROE DECLARATION Case 2:15-cv-00712-DDP-AJW Document 41-2 Filed 09/23/16 Page 1 of 3 Page ID #:305 21 MONROE DECLARATION Case 2:15-cv-00712-DDP-AJW Document 41-2 Filed 09/23/16 Page 2 of 3 Page ID #:306 22 MONROE DECLARATION Case 2:15-cv-00712-DDP-AJW Document 41-2 Filed 09/23/16 Page 3 of 3 Page ID #:307