PHYLLIS J. HAMILTON, District Judge.
Defendants Rudolph and Sletten, Inc.'s ("defendant Rudolph & Sletten") and Service West, Inc.'s ("defendant Service West") (collectively, "defendants") motion for summary judgment came on for hearing before this court on September 25, 2019. Pro se plaintiff Georgette G. Purnell ("plaintiff") filed an opposition to the motion but failed to appear at the hearing. Defendants appeared through their counsel, Mark Divelbiss and Kristin Hutchins. At the court's request, defendants filed supplemental briefing concerning plaintiff's employment discrimination claims on October 22, 2019 (Dkt. 152), which plaintiff subsequently responded to on November 12, 2019 (Dkt. 159). Having read the papers filed by the parties and carefully considered their argument, proffered evidence, and relevant legal authority, and good cause appearing, the court hereby
On August 21, 2019, defendants filed this combined motion for summary judgment or, in the alternative, partial summary judgment. In it, defendants purport to challenge "each and all [] causes of actions" brought by plaintiff in both
Defendant Service West is a privately-owned interior construction company. Dkt. 121 ¶¶ 1-2. Defendant Rudolph & Sletten is a general contracting firm. Dkt. 124 ¶¶ 1-2. Defendant Rudolph & Sletten served as the general contractor on the "AC2" project.
In August 2016, defendant Service West's non-supervisory employees working on the AC2 project were transferred to Rudolph & Sletten's payroll and became employees of defendant Rudolph & Sletten. Dkt. 121 ¶¶ 14-15. Defendant Service West supervisors continued to manage such employees, including plaintiff.
On July 6, 2016, plaintiff received a verbal warning for arriving late to work. Dkt. 121 ¶ 10, Ex. D. On August 3, 2016, plaintiff received a written warning for failure to attend work several other days in late July.
In late July or early August 2016, plaintiff was reassigned to a different area of the AC2 Project. Dkt. 138 ¶ 4. Michael Jones ("Jones"), another employee of defendant Rudolph & Sletten, also worked in that area of the project.
On January 5, 2017, Jones complained to defendant Rudolph & Sletten's human resources department about an incident with plaintiff, whereby plaintiff purportedly took gloves from a work box. Dkt. 118 ¶ 2, Ex. A. On January 12, 2017, plaintiff met with defendant Rudolph & Sletten human resources personnel, Julie Jacobs, to discuss this incident; at that time, plaintiff complained about Jones' comments on the job site referring to her sex and race.
Following the investigation, plaintiff and Jones were assigned to different work areas and teams; however, for a single day, on February 24, 2017, plaintiff and Jones were assigned to work on the same section of the project. Dkt. 137 at 6; Dkt. 120 ¶ 3. They encountered one another that day.
Following that departure, plaintiff did not return to work. Dkt. 118 ¶ 14. More than a month later, in either late March or early April 2017, plaintiff was terminated from her employment. Dkt. 138 ¶ 13; Dkt. 118 ¶¶ 16-17, Ex. C.
On December 26, 2017, the EEOC dismissed plaintiff's charge and issued plaintiff a right-to-sue letter. Dkt. 14 at 21. Plaintiff initiated both
In her FAC, plaintiff alleges that defendant Rudolph & Sletten discriminated against her in violation of Title VII by terminating her on the basis of her race, sex, and national origin. Dkt. 14 at 2 ("Exhibits A and B attached will disclose the following facts where defendants discriminated and/or caused discrimination to take effect upon plaintiff where plaintiff was wrongfully terminated without reasons based upon plaintiff's race . . . sex . . . and national origin in violation of Title VII of the Civil Rights Act of 1964"). Exhibit A of the FAC includes a table detailing multiple meeting notes written by plaintiff's supervisors and union representatives concerning their investigation into incidents between plaintiff and Jones. Dkt. 14 at 7-14. Exhibit A also includes a series of plaintiff's timesheets, detailing the number of hours she had worked for select weeks between September 2016 and February 2017. Dkt. 14 at 15-20.
Further, in the charge filed by plaintiff with the EEOC on June 20, 2017, plaintiff adds a claim for harassment, Dkt. 14 at 24 ("I believe I was harassed because of my race . . . because of my national origin . . . and because of my sex . . . in violation of Title VII of the Civil Rights Act"), as well as a claim for retaliation,
Summary judgment is proper where the pleadings, discovery, and affidavits show 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). Material facts are those which may affect the outcome of the case.
Courts recognize two ways for a moving defendant to show the absence of genuine dispute of material fact: (1) proffer evidence affirmatively negating any element of the challenged claim or (2) identify the absence of evidence necessary for plaintiff to substantiate such claim.
"Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or by the depositions, answers to interrogatories, and admissions on file, come forth with specific facts to show that a genuine issue of material fact exists."
The court must view the evidence in the light most favorable to the nonmoving party: if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.
Lastly, the Ninth Circuit recognizes that "an ordinary pro se litigant, like other litigants, must comply strictly with the summary judgment rules."
Discrimination and retaliation claims brought under Title VII are subject to a unique burden-shifting analysis.
If met, the employer then must articulate a legitimate non-discriminatory reason for its challenged employment decision.
If the employer does so, "[t]he plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to whether the employer's proffered nondiscriminatory reason is merely a pretext for discrimination. . . .The plaintiff may show pretext either (1) by showing that unlawful discrimination more likely motivated the employer, or (2) by showing that the employer's proffered explanation is unworthy of credence because it is inconsistent or otherwise not believable."
Unlike its discrimination and retaliation counterparts, claims under Title VII for a hostile work environment are subject to ordinary principles of summary judgment review.
Title VII's prohibition on discrimination "extends to the creation of a hostile work environment."
To determine whether conduct was sufficiently severe or pervasive to violate Title VII, courts in the Ninth Circuit "consider all circumstances, with a particular focus on issues such as the frequency and severity of the conduct, whether the conduct was physically threatening or humiliating, and the extent to which it unreasonably interfered with [the employee's] work performance."
The Ninth Circuit in
Even if a hostile work environment is shown, a claim against the employer for such environment is cognizable only if the employee establishes that the employer is liable for the harassment that caused the hostile work environment.
Here, defendants do not dispute that plaintiff was subjected to verbal conduct because of her ethnicity as an African American or that the racial slurs she suffered were unwelcome. The issues, then, are whether plaintiff showed that (1) the hostile conduct she suffered was "sufficiently severe or pervasive" and (2) whether defendants may be held liable for such conduct. Analyzed below, plaintiff demonstrated a triable issue of fact that she endured a hostile work environment, but, because of the uncontested evidence showing that defendants promptly remediated Jones' conduct toward plaintiff, plaintiff failed to show that defendants may be held liable for a hostile work environment claim.
Plaintiff demonstrated a triable issue of fact that the hostile conduct she suffered was sufficiently severe and pervasive. With respect to racially derogatory remarks, plaintiff testifies that she publicly endured epithets by Jones "to the tune of calling [her] a black bitch." Dkt. 138 ¶¶ 5, 7-8, 11. With respect to sex-based derogatory remarks, plaintiff conclusively states in an exhibit to her declaration that she was moved from "crew to crew so that boys can pick at [her]." Dkt. 138 at 7. More significantly, as Exhibit A of her FAC, plaintiff attaches what appears to be a set of internal notes by defendants' human resources department memorializing numerous specific instances of race- and gender-based hostile statements toward plaintiff. Defendants do not expressly contest such statements, which include the following:
Here, if true, the racial epithets endured by plaintiff are reprehensible. The term "nigger" carries a distinct sense of oppression deeply rooted in our country's history. The sex-based comments, particularly the term "bitch" (much less any suggestion that a woman does not "belong" in some line of employment) amplify the hostility plaintiff faced in her work environment. While the court appreciates that showing a hostile work place is a high bar—particularly under the sort of racist remarks and conduct considered in
Here, plaintiff failed to show a triable issue of fact that defendants failed to promptly correct the hostile conduct plaintiff purportedly endured. On that score, plaintiff's strongest piece of evidence is her statement that several supervisors were present during Jones' "escalation of the racial behavior." Dkt. 138 ¶¶ 10-11. Plaintiff's remaining statements on this point only conclusively state that she made numerous complaints to her supervisors and that all were ignored.
Defendants provided evidence showing that human resources took disciplinary action against Jones soon after plaintiff's complaint about his racial slurs was brought to its attention. Dkt. 124 ¶ 14, Exh. D; Jacobs Decl. ¶ 9. Plaintiff's own declaration confirms that event. Dkt. 138 ¶ 6. Plaintiff's statement about Jones' escalated racial behavior does
Moreover, plaintiff does not contest defendants' assertion that, following the investigation, plaintiff and Jones were assigned to different work stations. Dkt. 120 ¶ 3. Plaintiff also does not contest that, except for a brief encounter her last day at the jobsite, neither Jones nor plaintiff reported any further incidents involving one another. Dkt. 118 ¶ 10. Given that plaintiff has offered no evidence showing that the racial slurs by Jones continued
Title VII provides a cause of action for certain employment-related discrimination based on a protected trait. To establish a prima facie case of discrimination, a plaintiff must allege that (1) she is a member of a protected class; (2) she was qualified for her position and performing her job satisfactorily; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action that give rise to an inference of discrimination.
Here, plaintiff alleges discrimination on three distinct bases: race, sex, and national origin. With respect to stating a prima facie claim under any such basis, defendants challenge only plaintiff's ability to show that (1) she was qualified for her position and performing her job satisfactorily and (2) similarly situated individuals outside the protected class were treated more favorably.
Here, under any proffered basis (race, sex, or national origin), plaintiff failed to show a prima facie discrimination claim. Significantly, plaintiff failed to provide evidence that she was qualified for her position and had been performing it satisfactorily or that other similarly situated individuals outside her protected classes (African-American, female, Haitian descent) were treated more favorably.
"Although the requisite level of proof necessary for a plaintiff to establish a prima facie Title VII case at the summary judgment stage is minimal and does not even need to rise to the level of a preponderance of the evidence," a plaintiff "still must produce evidence, not just pleadings or argument."
Here, plaintiff presented evidence demonstrating that she was qualified for her job; however, all such evidence were self-assessments by plaintiff. In her supplemental opposition, plaintiff argues that she was qualified and performing her job satisfactorily because "just 2 months before her termination, plaintiff was promoted from an installer to that of a Quality Control Personell [sic] by Managers Dave Ehampenez, and Paula Sakukuka." Dkt. 159 at 2. In her FAC, plaintiff attaches a letter to an unspecified recipient stating that, prior to her interaction with Jones, she "was climbing up in management rerated to a 3rd period within 2-3 months because of all the overtime and double time I was committing to every single week it was offered." Dkt. 14 at 5. In her charge of discrimination letter from the Equal Employment Opportunity Commission ("EEOC"), plaintiff states "[o]n or about June 13, 2016, I was hired as Drywall/Inspector and was subsequently promoted to Quality Control Management." Dkt. 14 at 24.
Each of these statements concerning her prior promotions was made by plaintiff. While these statements do go to show that plaintiff had some record of adequately performing her responsibilities, each effectively amounts to a "self-assessment," which, without more, is insufficient to satisfy the second prong of a discrimination claim.
In any event, plaintiff's proffered self-assessments concern only her performance in her prior role as an installer. Her assessments are noticeably silent about her performance as a member of the Quality Control Management team. Aside from these self-assessments, plaintiff fails to identify any other evidence showing that she was qualified for her job and had been performing it satisfactorily, either at the time of her termination or any purported demotion. Indeed, as further discussed below, defendants proffered substantial evidence of job abandonment affirmatively negating any such showing. Significantly, such evidence shows that plaintiff failed to appear for work (or otherwise call-in her absence) for eight scheduled shifts in near consecutive order immediately prior to her termination. Dkt. 118 ¶ 14; Dkt. 121 ¶ 19, Ex. K. (internal employee incident report showing plaintiff's "no call no-show" status for March 20-24 and March 27-29). Unrebutted by plaintiff, such evidence effectively bars her ability to establish a prima facie showing of adequate job performance. As a result, summary judgment of plaintiff's discrimination claim is proper on this ground alone.
To make a prima facie showing of the fourth prong of a discrimination claim, a plaintiff must offer evidence of a comparable employee outside her protected class who is otherwise similarly situated in all material respects, including similar jobs and conduct.
Here, plaintiff failed to identify any evidence of a similarly situated employee outside her protected class who displayed similar conduct, much less one treated more favorably. To the contrary, plaintiff presented evidence that defendants imposed equal expectations concerning workplace civility upon her and other employees outside her protected class. Dkt. 14 at 7 (attaching defendant supervisor notes stating "I told [plaintiff] that the expectation is that everyone acts professionally and politely and admonished her to not use profanity. (I called Mike Jones and told him the same thing . . . be professional until the matter is concluded)."). As a result, summary judgment of plaintiff's discrimination claim is proper on this ground as well.
Here, defendants proffered a legitimate non-discriminatory reason to terminate plaintiff—namely, plaintiff abandoned her job. To substantiate this justification, defendants outline the following timeline between plaintiff's last workplace appearance and termination, as well as such timeline's supporting evidence:
This sequence of events is consistent with plaintiff's own recognition in her EEOC charge of discrimination that "I was told I was discharged because I missed a meeting.
Plainly, there is nothing inherently discriminatory about terminating an employee because she abandoned her job. Such action serves a fair business interest and, as the above sequence of events reflect, was the reasonable result of failures by plaintiff to attend work or other required meetings. Given that, defendants have shown that their proffered justification for plaintiff's termination—that she abandoned her job—is legitimate and nondiscriminatory. Given such showing, plaintiff may not maintain a discrimination claim unless she demonstrates that defendants' proffered justification served as a pretext for their alleged unlawful discrimination.
Here, plaintiff failed to produce any evidence showing that defendants' proffered justification for her termination was a pretext for unlawful discrimination. Instead, with respect to defendants' proffered reason, plaintiff provides only her testimony concerning two related but distinct topics.
First, plaintiff testifies that she was unaware of the scheduled meetings that defendants base their legitimate nondiscriminatory justification upon. In particular, plaintiff testifies to the following:
This statement fails to show how plaintiff's termination for job abandonment qualifies as a pretext for the alleged unlawful discrimination. Plainly, it provides no direct evidence of any racial-, sex-, or national origin-based animus by defendants. While plaintiff's testimony does call into question the veracity of defendants' proffered justification (i.e., that, despite defendants' attempted to reach out but plaintiff ignored them, therefore giving them ground to believe that she abandoned her job), such a question does not serve as any circumstantial evidence of improper discriminatory intent. At best, it creates a dispute of fact of whether defendants actually contacted her, but plaintiff provides no authority to support the position that showing such dispute satisfies her burden under the
In any event, even accepting plaintiff's version of the story (i.e., that defendants never informed plaintiff about the required attendance that formed the purported basis for her termination), plaintiff provides no reason to suggest that such a failure by defendants arose from their intent to discriminate against her on the basis of race, sex, or national origin. Moreover, plaintiff's failure to appear for eight scheduled work days—separate and apart from her failure to attend the required meetings—forms the gravamen of her job abandonment. Even if plaintiff did not receive notification of such meetings, plaintiff still fails to provide any explanation for missing work nearly eight days in a row without so much of a phone call.
Second, plaintiff testifies that her termination resulted from her complaints to the employers about Jones. In particular, plaintiff testifies to the following:
While the above statements may serve as evidence that defendants' proffered justification was a pretext
Title VII further provides that it is unlawful "for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). "To establish a claim of retaliation, a plaintiff must prove that (1) the plaintiff engaged in a protected activity, (2) the plaintiff suffered an adverse employment action, and (3) there was a causal link between the plaintiff's protected activity and the adverse employment action."
Here, plaintiff states in her declaration that she repeatedly complained to her supervisors and managers about Jones' hostile conduct. Dkt. 138 ¶¶ 4, 9. As shown in the hostile work environment analysis section above, such conduct is barred under Title VII. Defendants do not dispute that plaintiff engaged in a protected activity. As a result, plaintiff has satisfied her prima facie showing on this element of her retaliation claim.
"An adverse employment action is any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity."
Here, plaintiff identified numerous employment decisions that could constitute adverse employment actions. Such actions include the following: (1) her termination, Dkt. 138 ¶ 12; (2) a demotion,
However, defendants do contest that plaintiff suffered a reduction in her work schedule. Defendants provide a near complete record of her timesheets showing that her overtime hours regularly fluctuated. Dkt. 121 ¶ 13, Ex. G; Dkt. 124 ¶ 9, Ex. C (attaching all timesheets between August 27, 2016 and February 25, 2017, except for the week ending January 21, 2017). Plaintiff failed to contest or otherwise explain any such regular fluctuation. As a result, plaintiff failed to establish her prima facie claim for retaliation on a theory of reduced hours.
To establish causation, a plaintiff must show that engaging in the protected activity was one of the reasons for the adverse employment decision and that but-for such activity the decision would not have been made.
In her declaration, the only evidence that plaintiff provides to link her complaints about Jones' conduct to her termination is a conclusory statement that "[s]uch complaints, and grievances [about Jones' conduct] was indeed the basis of my termination." Dkt. 138 ¶¶ 13-14. Without more, plaintiff cannot show the necessary but-for causation linking her complaints to her termination. With respect to her purported demotion, plaintiff provides only her conclusory statement that "I was demoted, I believe due to the Complaint."
Even if plaintiff satisfied her prima facie showing of causation, defendants provided substantial evidence of a legitimate non-retaliatory reason for plaintiff's termination— namely, that she effectively abandoned her job by failing to appear for work for nearly eight consecutive days and ignoring two requests to meet with human resources. Dkt. 121 ¶ 19, Ex. K; Dkt. 120 ¶ 9-11, Ex. D; Dkt. 118 ¶¶ 16-17, Ex. C. While plaintiff generally asserts that defendants terminated her for her "complaint and grievances," Dkt. 138 ¶ 14, she fails to provide any evidence showing such pretext. Further, the several month passage of time between plaintiff's complaint concerning Jones' conduct (January 5, 2017) and her ultimate termination (late March/early April 2017) undermines any inference of such pretext.
For the foregoing reasons, the court grants defendants' motion for summary on all claims.