FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

Presently pending before this court is defendant's motion for summary judgment, filed March 24, 2014. In light of discovery matters decided after the motion and opposition were filed, the court permitted plaintiff to file a supplemental opposition and defendant to file a reply after those motions were decided and discovery produced. Having reviewed all of the briefing,1 the court now issues the following findings and recommendations.2

INTRODUCTION AND SUMMARY

This action concerns plaintiff's claim for wrongful termination based on racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act.3 While at times discrimination and retaliation claims will relate to entirely separate incidents, the complaint in this case makes clear that both claims are directed to plaintiff's termination from work due to a layoff. In this sense, the discrimination and retaliation claims are one in the same claim.

In its summary judgment motion, defendant represents that plaintiff was terminated, aka laid off, due to budget cuts in the County, and job eliminations in particular in the Employment and Economic Development Department ("EEDD") department where plaintiff worked. Plaintiff asserts that defendant's excuse of business necessity due to funding loss as the basis for its decision was a pretext for his termination.

Although there are many facts presented by both parties and fleshed out through the court's review, only a few significant and undisputed facts form the lynchpin for the court's recommendation, to wit: Plaintiff's seniority was not affected by his one unsatisfactory performance evaluation. The County had a racially neutral policy for layoffs which was based on seniority only. That policy was followed and seniority was the only basis for the County's decision in the layoffs which resulted in plaintiff's termination. The layoffs occurred as a result of budget reductions and decreased funding to the department where plaintiff worked. All of the other allegations and disputed facts relating to discrimination/pretext had no bearing on plaintiff's layoff which was based strictly on seniority. Because the material facts are undisputed, defendant's motion for summary judgment should be granted.

BACKGROUND

I. The Complaint4

According to the complaint, filed November 13, 2012, plaintiff, an African-American, was employed by the County of San Joaquin ("County") in a civil service position from 1998 to 2011. (Compl. at 2.) Plaintiff alleges that defendant Solis, the EEDD Director, targeted plaintiff for dismissal even though plaintiff had more seniority than forty other employees. He further alleges that the EEOC found no basis for his two complaints, filed in 2003 and 2007, and then prevented his appeals from being heard. (Id.) Plaintiff asserts that he received an unsatisfactory evaluation in December, 2009, for writing only one OJT (on the job training) contract and four job orders, but he claims that in fact he wrote four OJT contracts and fourteen job orders. As a result, plaintiff refused to sign the evaluation, and filed another EEO complaint on January 26, 2010. As a result of the unsatisfactory evaluation, plaintiff claims he lost "seniority hours," and was selected for termination by Director Solis on May 31, 2011. Plaintiff then filed another EEO complaint for retaliation on September 16, 2011. (Id. at 3.)

The complaint further alleges that defendants then developed criteria to permit lay-offs in the event of staff reductions based on consideration of individuals who had received unsatisfactory evaluations regardless of seniority. According to the complaint, this criteria was not applied to plaintiff's peers who were not African-American. (Id. at 4.) Plaintiff asserts that defendants' excuse of business necessity due to funding loss was a pretext for his termination. Although the complaint contains evidentiary submissions to support the claim for wrongful pretext, e.g., a promotion denied to him in the distant past as a result of an alleged discriminatory evaluation, the claims going forward after resolution of defendants' motion to dismiss are for discrimination and retaliation under Title VII of the Civil Rights Act. The County is the sole remaining defendant. Again, a review of the complaint discloses that the two claims are but one seeking a remedy for the alleged wrongful layoff.5

II. Defendant's Undisputed Facts6

Plaintiff began his employment with the County in July, 1998 and was initially hired as Employment Specialist I in the EEDD. He was promoted to Specialist Level II on August 2, 1999. His employment ended on July 4, 2011. Disputed but asserted by defendant is the reason for the termination, a reduction in work force. (Def.'s Statement of Undisputed Facts ("SUF") ¶ 1.) The County underwent budget reductions between 2008 and 2011, eliminating 1,000 of the County's 6,200 positions during this time. (Id. ¶ 2.) Although the County does not state how many of those 1,000 positions were in the EEDD, EEDD Director Solis did eliminate six positions in March, 2011, none of which were job developer positions. In May of 2011, Solis was forced to eliminate an additional 13 positions, due to less funding than anticipated. Of those 13 positions, six were job developer positions. (Id. ¶¶ 2-4.) In total during the 2011-2012 fiscal year, EEDD eliminated 31 positions.7 (Goodman Dec.; ¶ 13, ECF No. 53 at 3.) The County's Layoff Policies and Procedures, which are ultimately undisputed,8 outline the criteria to determine who is laid off, and is based on seniority only. (SUF ¶ 5; Goodman Dec., Ex. P; ECF No. 53-15.) Plaintiff was laid off because he had less seniority than other employees and did not have bumping rights.9 (SUF ¶ 7.)

Plaintiff filed his first complaint of discrimination based on race, political affiliation and union position as shop steward, through a Civil Service Rule 20 complaint in March, 2004, alleging denial of promotion. (Id. ¶ 30.) After the Civil Service Commission found against plaintiff, and his appeal was adversely decided, he filed an EEOC complaint in 2004. (Id. ¶ 31.)

EEDD positions were deleted in the 2005-2006 year; however, plaintiff's position was not eliminated. (Id. ¶ 32.) In 2005, plaintiff was transferred from the Tracy Center to the Stockton Center. Maria Castellanos became his supervisor at this time, and Allet Williams was Ms. Castellanos' superior. (Id. ¶¶ 33, 36.) Plaintiff was angry and threatening toward Ms. Castellanos. He stayed late on one occasion until he and Ms. Castellanos were the only employees in the building. He followed her to the parking lot, acting in an intimidating manner.10 (Castellanos Dec. ¶ 4.)

Businesses assigned to plaintiff also complained about him. For example, one company flew in from out of state for a job fair, only to learn that its application had not been processed properly and it did not have a spot reserved at the fair. This company requested to be transferred to a different job developer. (SUF ¶ 39.) When Ms. Castellanos informed plaintiff of the transfer, he stated that her email was threatening. (Id. ¶ 40.) When Ms. Castellanos requested a job report which included statistics from plaintiff, he complained that it was inappropriate. He further complained that a separate report entitled "report card" was inappropriate. (Id. ¶¶ 42-44.)

Plaintiff filed another Civil Service Rule 20 complaint in 2007 alleging that Ms. Castellanos harassed, accused, and threatened him, which the County found to be unsubstantiated. (Id. ¶ 45.)

In February, 2010, plaintiff filed an EEOC charge for retaliation relating to his 2009 performance review. (Id. ¶ 24; Goodman Dec., Exs. K, L.) Plaintiff filed another EEOC charge for retaliation on September 20, 2011. (Id. ¶ 8; Goodman Dec., Ex. Q.) He filed an additional charge for discrimination and retaliation on January 12, 2012. (Id.)

Plaintiff's performance review in December, 2009 rated him as unsatisfactory based on his development of substantially less OJT contracts than his counterparts.11 (SUF ¶¶ 10-15.) During this same period, a Hispanic employee also received an unsatisfactory review. (Id. ¶ 16.) Although plaintiff's supervisor, Teresa Parker, received complaints from two businesses about plaintiff's work, she did not include them in the review because they were outside the pertinent time period. (Id. ¶ 17.) This negative evaluation resulted in no loss of seniority credits. (Id. ¶ 20.)

Plaintiff's special performance review to assess his progress, covering the period December 18, 2009 to March 18, 2010 was satisfactory. Plaintiff refused to sign it. (Id. ¶ 22.) Plaintiff's regular performance review, covering the period November, 2009 to November, 2010, was satisfactory, but again he refused to sign it. (Id. ¶ 23.)

III. Findings of Fact

The aforementioned facts have been fleshed out, along with plaintiff's version of the facts as raised in his oppositions. The court finds the following ultimate facts to be significant to the decision and undisputed.

1. The County's Layoff Policy was based on seniority only. (SUF ¶ 5.)

2. Plaintiff did not lose seniority as a result of his unsatisfactory evaluation in 2009. (SUF ¶ 20.)

3. The County's layoff policy based on solely on seniority was implemented in plaintiff's layoff in 2011. (SUF ¶ 7.)

4. Plaintiff was laid off because he had less seniority than other employees and did not have bumping rights. (SUF ¶ 7.)

5. Budget cuts and lack of funding caused the round of layoffs which resulted in plaintiff's separation. (SUF ¶¶ 2-4.)

DISCUSSION

I. Summary Judgment Standard

The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when it is demonstrated that there exists "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under summary judgment practice, the moving party

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita, 475 U.S. at 585-86. In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Matsushita, 475 U.S. at 586. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248.

In the endeavor to establish the existence of a factual dispute, the non-moving party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. The evidence of the non-moving party is to be believed and all justifiable inferences are to be drawn in its favor. See Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 586-87 (internal citation and quotation omitted).

II. Analysis

A. Race Discrimination Under Title VII12

Title VII provides that an employer may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . or national origin." 42 U.S.C. § 2000e-2(a)(1). In disparate treatment cases, plaintiffs can prove intentional discrimination through direct or indirect evidence. "Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (citation and internal quotation and editing marks omitted). Because direct proof of intentional discrimination is rare, disparate treatment claims may be proved circumstantially. See Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005). To do so, plaintiff must satisfy the burden-shifting analysis set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). Dominguez-Curry, 424 F.3d at 1037.

Plaintiff has provided no direct evidence of racial discrimination or harassment that, if believed, proves the fact of discriminatory animus without inference or presumption. Thus, plaintiff's claims for race discrimination and retaliation under Title VII are subject to the McDonnell Douglas burden-shifting analysis used at summary judgment to determine whether there are triable issues of fact for resolution by a jury. See McDonnell Douglas, 411 U.S. 792. Under McDonnell Douglas,

Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n. 3, 124 S.Ct. 513 (2003) (citations omitted).

Plaintiff has the burden of establishing a prima facie case by showing that "(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). The Ninth Circuit has held that a plaintiff's burden in establishing a prima facie case of discrimination is "minimal." Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).

If plaintiff proffers sufficient evidence to establish genuine issues of material fact, the burden shifts to defendant. Raytheon Co., 540 U.S. at 50. Defendant's burden is to articulate a legitimate, nondiscriminatory reason for its employment action. Id. If defendant meets its burden, the only remaining question would be whether plaintiff could prove sufficient evidence from which a jury could conclude that defendant's stated reason was in fact pretext. Id. at 51. Under the McDonnell Douglas framework, "[t]he burden of persuasion, as opposed to production, however, remains with the plaintiff at all times." Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir.2004). Plaintiff must ultimately show that his race or national origin was the "motivating factor" for the challenged employment practice. 42 U.S.C. § 2000e-2(m); Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1191 (2011).

"[A] plaintiff can prove pretext in two ways: (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. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)). Plaintiffs may rely on the same evidence used to establish a prima facie case or put forth additional evidence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000); see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 (9th Cir. 1994). "[I]n those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglas, plaintiff has failed to raise a triable issue of fact." Wallis, 26 F.3d at 890. When plaintiffs present direct evidence that the proffered explanation is a pretext for discrimination, "very little evidence" is required to avoid summary judgment. EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.2009). In contrast, when plaintiffs rely on circumstantial evidence, "`that evidence must be specific and substantial to defeat the employer's motion for summary judgment.'" Id. (quoting Coghlan, 413 F.3d at 1095).

The Ninth Circuit has instructed that district courts must be cautious in granting summary judgment for employers on discrimination claims. See Lam v. Univ. of Hawai`i, 40 F.3d 1551, 1564 (9th Cir. 1994) ("`We require very little evidence to survive summary judgment' in a discrimination case, `because the ultimate question is one that can only be resolved through a "searching inquiry"—one that is most appropriately conducted by the factfinder.'") (quoting Sischo-Nownejad, 934 F.2d at 1111.

1. The Only Adverse Action in This Case Was Plaintiff's Layoff

As a preliminary matter in regard to the third prong, what constitutes an adverse action in this case must be defined, as the parties dispute whether plaintiff's unsatisfactory evaluation in 2009 was an adverse action. Although plaintiff alleges that he lost seniority credits as a result of that evaluation, he has pointed to no evidence in support. Meanwhile, defendant points to plaintiff's deposition in which he finally conceded that he did not lose seniority hours as a result of this evaluation, based on a list of seniority hours prepared by Human Resources for this time period, reflecting no loss of seniority hours. (Bossuat Dec., Ex. A at 91-92; ECF No. 52-1 at 27-28.) Defendant has separately provided evidence that plaintiff lost no seniority hours as a result of this evaluation. (Goodman Dec., ¶ 11, Exs. M, N, O; ECF No. 53 at 3.)

Plaintiff, on the other hand, has provided Civil Service Rule 13, which provides for uses of Employee Performance Reports:

ECF No. 66 at 78.)

Plaintiff has also submitted a document entitled, "Employee Performance Guidelines," which states in part that "performance evaluations are necessary" to "document employee performance and provide support for merit increases, promotions, or terminations." (Id. at 79.)

To the extent that defendant objects to plaintiff's evidence as lacking foundation and/or inadmissible hearsay, these objections must be overruled insofar as they are made to plaintiff's submission of objective evidence such as the documents referenced above. Evidence which is not admissible, but which could be admissible at trial, must be considered. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (considering evidence on summary judgment which could be presented in an admissible form at trial); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (considering pro se plaintiff's evidence at summary judgment where it is "based on personal knowledge and set[s] forth facts that would be admissible in evidence, and where [plaintiff] attested under penalty of perjury that the contents of the motions or pleadings are true and correct").13 However acceptance of plaintiff's speculation, opinion, or evidence for which plaintiff has no personal knowledge is another matter. Nothing in the above cited cases permits ipse dixit by plaintiff to become admissible to defeat summary judgment. Plaintiff must demonstrate that his assertions are more than mere speculation or opinion. And, of course, even if plaintiff has submitted evidence which could be made admissible, the evidence must be material to the issues considered.

Accordingly, plaintiff's otherwise inadmissible objective evidence may be considered for purposes of summary judgment. Superficially these rules and guidelines appear to contradict defendant's evidence that the 2009 performance evaluation was not considered in the layoff determination. Nevertheless, when read in proper context, the guidelines refer to those situations where termination is based on cause; it does not appear to relate to the circumstance of a layoff. Plaintiff concedes, both in his deposition and in his supplemental opposition, that he did not lose seniority credits on account of the evaluation at issue.14 (ECF Nos. 52-1 at 27-28, 106 at 7.) The court so finds.

Plaintiff does assert that in any event, based on the civil service rules, defendant must have had an "invidious" purpose in giving him an unsatisfactory evaluation, even though it failed to report the evaluation to HR. (ECF No. 106 at 7.) Plaintiff has provided no basis for this conclusory allegation.15 Therefore, the court finds as an established fact that plaintiff's unsatisfactory performance evaluation in 2009 was not an adverse action in the context of the termination/layoff because it had no effect on his termination.16 The only adverse action at issue in this case is plaintiff's termination, aka layoff.

2. Plaintiff's Prima Facie Case

Plaintiff is an African-American who was terminated/laid off, thus satisfying the first and third elements for prima facie race discrimination. Defendant does not assert that plaintiff failed to meet the second prong — whether plaintiff was qualified for his position. Defendant does argue, however, that plaintiff cannot meet the fourth prong of the test because there is no evidence that his layoff was based on his race. Therefore, defendant argues, plaintiff has not met his initial burden. Defendant also contends that because it offers evidence justifying plaintiff's layoff, the burden shifts back to plaintiff to show pretext, and plaintiff has failed to meet that burden.

Despite plaintiff's pro se status and the minimal burden to establish a prima facie case of discrimination, see Coghlan, 413 F.3d at 1094, this Court finds that plaintiff's unsworn allegations in the complaint are insufficient to meet the showing required by the fourth prong of the McDonnell Douglas analysis. Plaintiff contends that defendant applied criteria and work rules to plaintiff, the only African-American, which were not applied to his non-African-American peers. (ECF No. 1 at 4.) He further alleges that although he had more seniority, he was laid off in lieu of one Hispanic and two Caucasian employees despite their lack of seniority. (ECF No. 66 at 3.) However, plaintiff's unsworn allegations do not indicate that he had any personal knowledge of the conclusions he alleges. Similarly, plaintiff has not submitted any material, objective evidence to back up the assertions. Thus, plaintiff has not set forth a prima facie case, that similarly situated individuals outside his protected class were treated more favorably. For ease of analysis, however, and because the fourth prong of the McDonnell Douglas test mirrors the pretext analysis, the court will continue to discuss the case as if plaintiff had satisfied his prima facie case, and the dispositive analysis is pretext.

3. Defendant has Articulated Legitimate, Nondiscriminatory Reasons for Plaintiff's Layoff and Plaintiff has Failed to Show Pretext

Even assuming plaintiff has demonstrated a prima facie discrimination claim, defendant has provided legitimate non-discriminatory reasons for its layoff decision which resulted in plaintiff's termination. The County began suffering budget cuts in 2008, which continued through 2011, resulting in the layoff of 1,000 positions during this time period. (ECF No. 53, ¶ 13.) In particular, EEDD, the department where plaintiff worked, lost funds in 2011, which resulted in the layoff of six positions in March, 2011, and thirteen positions in May, 2011. Six of those positions in the May, 2011 layoff were job developer positions which included plaintiff's position. (ECF No. 53, ¶ 13; ECF No. 54, 16.)

The policy in place at the time which guided the 2011 layoffs was based on seniority only. (ECF No. 53-15.) Mr. Solis' declaration states that when he deleted six job developer positions for the 2011-2012 fiscal year, he did not know which individuals would be affected. (ECF No. 54, ¶ 17.) Because seniority is based on total time with the County and not time with the individual department, Solis states he did not know, and did not try to guess who would be impacted by this decision, and in particular he did not know plaintiff would be laid off when he made his decision. (Id.) Plaintiff was laid off at this time because he had less seniority than other employees, and did not have bumping rights. (ECF No. 53, ¶ 13.) Plaintiff did not lose seniority as a result of his unsatisfactory performance evaluation in 2009. (Id. ¶ 11.) Defendant has articulated legitimate, non-discriminatory reasons based on business justifications for its layoff decision in plaintiff's case.

Plaintiff provides numerous arguments in his attempts to show pretext; however, none of them have merit as they could never have been the cause of the layoffs, which were based solely on budget and seniority— nothing else.17

Plaintiff first disputes, with immaterial evidence, that defendant suffered a reduction in funding, and contends that its adverse action in laying him off was discriminatory or a pretext. Since five other job developers were laid off at the same time as plaintiff, the fact that plaintiff may have been the only African-American laid off reduces the materiality of this fact to inconsequential status.

In regard to the decreased funding numbers, plaintiff argues that in fact expenditures in 2011-2012 fiscal year were the same as expenditures in the previous fiscal year, 2010-2011. (ECF Nos. 66 at 19, 106 at 8.) Plaintiff has attached budget numbers for the fiscal years 2007-2008 to 2013-2014. (ECF No. 66 at 82-86.) The years most pertinent to plaintiff's layoff are 2010 to 2011. Total actual expenditures in fiscal year 2010-2011 were $19,266,995. (Id. at 85.) Expenditures for fiscal year 2011-2012 decreased to $14,125,218. (Id. at 86.) Plaintiff was laid off as a result of a May, 2011 decision, after allocations made by the state and federal government were less than anticipated. (Solis Dec., ECF No. 54, ¶ 16.) The staff allocations between these two fiscal time periods were also reduced. In fiscal year 2010-2011, there were 116 allocated positions, and 48.1 temporary positions. (ECF No. 66 at 85.) The following fiscal year, 2011-2012, there were only 91 allocated positions, and 1.9 temporary positions. (Id. at 86.)

The other set of figures that plaintiff uses to make his point, regarding services and supplies, also indicate a decrease in funding rather than an increase. In fiscal year 2009-10, actual services and supplies were $13.5 million. (Id. at 84.) In 2010-11, actual services and supplies were reduced to $9 million. (Id. at 85.) In 2011-12, actual services and supplies were just under $6 million. (Id. at 86.) Plaintiff discusses a theory that the figures do not reflect separate installments of A.R.R.A. (American Recovery and Reinvestment Act) funding; (ECF No. 106 at 8), however, the budget reports submitted by plaintiff do not confirm this assertion, and plaintiff has submitted no other evidence to support it. Based on the evidence submitted, there is no material dispute of fact that the County incurred a decrease in funding and positions between 2010 and 2012.

Plaintiff next disputes Mr. Solis' motive in the layoff by arguing that this EEDD director chose a certain number of positions to be eliminated in order to ensure that plaintiff would be among that number, and that Solis also knew how much seniority each employee had to ensure that plaintiff would certainly be laid off. He has submitted no evidence to support this assertion. The EEOC fact finding notes submitted by plaintiff actually contradict his position, however. Mr. Solis stated at that conference:

(ECF No. 66 at 27.) (Emphasis added). These statements are consistent with Mr. Solis' declaration.

Since it has already been established that the layoffs were determined by seniority only, by use of an objective mechanism for establishing the objective fact of seniority, it was not possible for the seniority determinations to be affected by discrimination.18

Plaintiff contends that he had more seniority than employees in other job classifications, such as case managers and business and retention specialists, but those non-African-American employees were not laid off. (ECF No. 66 at 3, 16.) This argument also fails because the only employees similarly situated to plaintiff at the time of his layoff were job developers. (ECF No. 54, ¶ 16.) Moreover, plaintiff's own evidence, the EEOC fact finding testimony, indicates that five Hispanics in plaintiff's classification were laid off at the time plaintiff was laid off.19 (ECF No. 66 at 27.)

Also important is the fact that plaintiff has failed to produce any evidence that his position was filled shortly after his layoff by anyone, let alone a non-African-American. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 900 (9th Cir. 1994). See also Leichihman v. Pickwick International, 814 F.2d 1263, 1270 (8th Cir. 1987) (no adverse inference is drawn where duties are completely eliminated); Viteri-Butler v. University of California, Hastings College of the Law, 2014 WL 1022174, *7 (N.D. Cal. Mar. 13, 2014) (noting prima facie case requires showing that after terminating employee, employer sought replacement employee outside protected class with equal or lesser qualifications). Although plaintiff alleges that "within months of terminating plaintiff claiming reduction of funding, Solis promoted several individuals, and had recalled several others to Civil Service positions, all either Hispanic and/or White and all of whom had less seniority than Plaintiff at the time of termination . . .," (ECF No. 66 at 19), plaintiff has provided no evidence to support this assertion.20 Plaintiff's argument that the remaining job developers took over plaintiff's duties, and therefore his position was not eliminated, does not help his case unless he can show that race was a determining factor in his termination. See Leichihman, 814 F.2d at 1270. Even if this allegation is true, defendant has articulated a legitimate, nondiscriminatory business reason for its reduction in staff, which was based upon an objective computerized determination of seniority. Plaintiff has not produced evidence to show that this objective articulation was not correct.

Nor is plaintiff's further assertion that the duties of six laid off job developers were absorbed by the remaining three job developers supported by any evidence, while defendant has provided evidence that these six positions were completely eliminated. (ECF No. 54, ¶ 16.)

Plaintiff's conclusory statement that within days and weeks after the layoffs, defendant promoted several individuals and returned several others to the Department, is unsupported. (ECF No. 106 at 8.) As defendant points out, although plaintiff has provided interrogatory responses indicating that eleven employees returned to EEDD after the July, 2011 layoff, the seniority of these employees in relation to plaintiff's seniority is unknown. (ECF No. 66 at 36.)

The County's re-employment policy is based on the employee's seniority in the particular class from which he or she was laid off. (Goodman Supp. Dec.; ECF No. 110-3, ¶ 3.) Furthermore, the employees re-employed pursuant to the response to interrogatory number 9 received job titles on their return for which plaintiff may not have been qualified, and he has not shown otherwise. Plaintiff was employed as an Employment Services Specialist II (SUF ¶ 1), and none of the jobs to which other employees returned were for this position or Specialist I.

Furthermore, these interrogatories cannot be considered to determine who was laid off in July, 2011, at the same time as plaintiff, because they only include employees who returned, not all employees who were laid off. (ECF No. 66 at 33-38.)

Based on defendant's re-employment policy which is based strictly on seniority, and Ms. Goodman's declaration that the policy was followed in this case, plaintiff is unable to show pretext in this regard.

Plaintiff states that he can produce a witness, Peter Brown, an "EEO Analyst I" who performed the preliminary investigation, to testify regarding his discovery in 2008 that "Defendant has no desire to protect African-Americans from prejudice and bigotry expressed by Defendant employees like Castellanos and more importantly Defendant is extremely prejudiced against African-Americans who make charges of discrimination summarily terminating any and all African-Americans who make and/or allege discrimination." (ECF No. 66 at 15.) Plaintiff has produced no evidence whatsoever of what this witness might say, other than plaintiff's own conclusion. This bald hearsay allegation does not even meet the minimum standards of Jones and Fraser. In any event, such testimony could not refute the reason for plaintiff's termination which defendant has shown to be based on a neutral policy which considers seniority only.

Finally, plaintiff contends that he was not promoted on two occasions as a result of his unsatisfactory evaluation in 2009, and that these actions are evidence of pretext for his layoff. (ECF No. 106 at 6.) The only hint he provides is his allegation that when Dan Maloney retired, plaintiff was not promoted to that position. (ECF No. 66 at 7-8.) In regard to this event, defendant has provided evidence that when Mr. Maloney retired, Mr. Solis did not fill this position but divided the job duties among other employees, including Teresa Parker, who received no pay increase for these added duties. (SUF ¶¶ 26-27.) The remaining duties were split among three other employees, who also did not receive additional compensation. (Id. at ¶ 28.) Plaintiff has provided no evidence to dispute these facts. More importantly, however, is that these allegations are irrelevant to the adverse action, his layoff, which was based on non-discriminatory objective reasons. Plaintiff cannot possibly show that these allegations, or any others, were the cause of his layoff.21

Plaintiff's argument that Human Resources' decision was discriminatory in finding him unqualified to sit for a promotional exam for EEDD Division Manager based on his limited prior supervisory experience, is not supported by any evidence, and is rejected as irrelevant to the layoff, for the reasons repeated above. (ECF No. 66 at 14.)

Plaintiff alleges that other African-American employees were discriminated against when they were not promoted. He cites Vernell Hill as an example of a qualified and more experienced African-American who was not selected for a position. (ECF No. 66 at 12.) He also points to Allet Williams as the only African-American promoted by Mr. Solis in the last ten years. (Id. at 14, 21.) Plaintiff has failed to supply any evidence supporting these allegations, and in any event they are irrelevant to the cause of his layoff, funding decreases, and the objective basis used in determining his layoff, seniority.

Defendant has met its burden by articulating legitimate, nondiscriminatory reasons for its employment actions which were not a pretext. Plaintiff has failed to produce any material facts to dispute the reason for his layoff, and the criteria used in determining who was laid off. He has not demonstrated a material issue of fact that his race was the "motivating factor" for the layoff. See Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1191 (2011). Therefore, defendant should be granted summary judgment on plaintiff's claim of discrimination in regard to his termination.

B. Retaliation Under Title VII

Defendant also moves for summary judgment as to plaintiff's claims of retaliation under Title VII. "Title VII prohibits, among other things, retaliation against an employee for making a charge or otherwise participating in a Title VII proceeding." Nilsson v. City of Mesa, 503 F.3d 947, 953 (9th Cir.2007) (citing 42 U.S.C. § 2000e-3(a)). Without direct evidence of retaliation, the burden shifting framework of McDonnell Douglas applies. "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." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); accord Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir.2008). If the plaintiff establishes a prima facie case of retaliation, "the burden shifts to the defendant to set forth a legitimate, non-retaliatory reason for its actions; at that point, the plaintiff must produce evidence to show that the stated reasons were a pretext for retaliation." Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir.2008); accord Nilsson, 503 F.3d at 954.

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." Ray, 217 F.3d at 1242-43. The adverse action must be non-trivial in nature and would deter reasonable employees from complaining of civil rights violations. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).

"Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013); Campbell v. Hagel, 536 Fed.Appx. 733 (9th Cir.2013).

In regard to the retaliation claim, defendant asserts that plaintiff cannot demonstrate a genuine dispute of material fact addressed to the causal link between plaintiff's protected activities and his layoff.

Causation can be inferred by a temporal proximity between the protected activity and the adverse action, that the action follows "close on the heels" of the complaint. Ray, 217 F.3d at 1244. Although a plaintiff may permissibly proceed on a temporal theory of causation, see, e.g., Davis, 520 F.3d at 1094, the temporal proximity between an employer's knowledge of protected activity and an adverse employment action must be "very close" to support a theory of causation based on timing alone. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (holding that an adverse employment action taken 20 months after the protected conduct "suggests, by itself, no causality at all"); accord Davis, 520 F.3d at 1094 ("We have held that causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.") (citation and quotation marks omitted). The Court of Appeals has held that time gaps of nine and eighteen months between protected activity and alleged retaliatory action were too long to support a finding of causation based on timing alone. See Manatt v. Bank of Am., 339 F.3d 792, 802 (9th Cir.2003) (nine months); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002) (eighteen months). However, it has found sufficient causation in retaliation claims involving a time gap of seven weeks, and has found gaps of nearly two months and three months probative of causation. See Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir.2004) (seven weeks); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (less than three months).

The undisputed facts are that plaintiff engaged in protected activity in 2004 when he filed a Civil Service Rule 20 complaint and an EEO claim, in 2007 when he filed a Civil Service Rule 20 complaint, on December 18, 2009 when he filed a grievance with the union, and in February, 2010, when he filed an EEO claim.22 (SUF ¶ 24; Goodman Dec., Ex. K.) The decision to eliminate plaintiff's position was made in May, 2011. As plaintiff's 2009 unsatisfactory employment evaluation was determined not to be an adverse action, the only adverse action remaining is plaintiff's 2011 layoff, which did not follow "close on the heels" of his preceding protected activity in late 2009 and early 2010. In fact, the layoff decision occurred approximately a year and three months after his February, 2010 complaint. In fact, as pointed out by defendant, during this time period plaintiff was given two satisfactory reviews, on March 18, 2010 and December 1, 2010. (SUF ¶¶ 22, 23.) Based on these facts, plaintiff has not demonstrated causation by timing alone.

Even if plaintiff could establish a prima facie case, the parties' arguments in connection with the second and third prongs of the burden shifting test as fleshed out above in regard to plaintiff's race discrimination claim are relied on here, and result in the same conclusion. The undersigned already found that defendant met its burden to provide legitimate nondiscriminatory reasons for the layoff, and that plaintiff failed to create a genuine dispute of material fact in regard to pretext. Plaintiff has failed to show that defendant's desire to retaliate was the "but-for cause" of his termination. Accordingly, defendant is entitled to summary judgment with respect to plaintiff's retaliation claim.

CONCLUSION

Accordingly, IT IS HEREBY RECOMMENDED that: defendant's March 24, 2014 motion for summary judgment, (ECF No. 51), be GRANTED, and judgment be entered in favor of defendant.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).