ALLISON CLAIRE, Magistrate Judge.
Pending before the court is defendant Patrick R. Donahoe's December 18, 2013 motion for summary judgment. Plaintiff opposes the motion. On February 13, 2014, this matter was submitted on the briefs. Having reviewed the motion and the documents filed in support and opposition, THE COURT FINDS AS FOLLOWS:
In 2009, plaintiff Karamen Ballard, a member of the National Postal Mail Handlers Union, worked as a Part-Time Regular Mail Handler for the United States Postal Service ("USPS") in Stockton, California, at its Processing and Distribution Center. Garcia Decl. ¶ 5. Plaintiff worked with three other part-time mail handlers in loading, unloading, and moving mail from 7:00 p.m. to 1:00 a.m.
In early 2009, plaintiff took medical leave from his job. Ballard Dep. 24:22-24 (Boesch Decl. Ex. B). On March 25, 2009, after returning from leave, plaintiff made an informal Equal Employment Opportunity ("EEO") complaint, EEO Case No. 1F-953-0012-09, alleging that Sharif Estes, Manager of Distribution and Operations, refused to approve plaintiff's March 11, 2009 request for three days of light duty upon his return from medical leave and that this amounted to discrimination based on race and sex ("the Light-Duty Complaint"). Tam Decl. Ex. A; Ballard Dep. 24:22-29:23 (Boesch Decl. Ex. B), Ballard Dep. 148:13-152:7 (Boesch Decl. Ex. C); Boesch Decl. Ex. R. On May 27, 2009, the Light-Duty Complaint was resolved through internal mediation that resulted in an agreement to pay plaintiff $275. Tam Decl. Ex. A. Plaintiff alleges here that the retaliation now at issue is a product of the Light-Duty Complaint and mediation. Ballard Dep. 29:3-30:11 (Boesch Decl. Ex. B).
In the six weeks after his return to full duty from medical leave in early 2009, plaintiff had ten unscheduled full-day absences and one ¾-day absence. Garcia Decl. ¶ 7, Ex. B. Of these, the first seven were ultimately categorized as unscheduled Family Medical Leave Act absences (May 26-30, April 1-2).
Unscheduled absences create problems since they are not approved in advance by management and thus can cause staff shortages. Garcia Decl. ¶ 7, Exs. C-D. In addition to the unscheduled absences, plaintiff called into the USPS's automated ERMS Leave System on May 18, 2009 and left a message noting that he would be absent from consecutive shifts on May 15, 17, and 18, 2009. Garcia Decl. ¶ 10, Ex. E. When plaintiff called in, the ERMS Leave System instructed plaintiff that he may be required to provide documentation to support his request.
Plaintiff failed to submit any further documentation. Garcia Decl. ¶ 11. Accordingly, Garcia scheduled an investigative interview for May 27, 2009.
Neither plaintiff nor Garcia remember exactly how plaintiff was called to the May 27, 2009 investigative interview, though it was Garcia's practice to send a union shop steward to get the employee for such meetings. Garcia Decl. ¶ 12; Ballard Dep. 38:16-40:18 (Boesch Decl. Ex. E), Ballard Dep. 42:1-24 (
When plaintiff arrived at the interview, he was accompanied by a union steward and refused to answer any of Garcia's questions, a strategy he claims was based on a brief conversation he had with the union steward on his way to the interview. Garcia Decl. ¶ 12;
Though plaintiff does not remember what happened after this interview, Garcia declares that she granted plaintiff on-the-clock union time to consult with his union representative, as it is her practice to permit such consultations either before or after investigative interviews based on the employee's wishes. Ballard Dep. 46:7-16 (Boesch Decl. Ex. G); Garcia Decl. ¶ 13.
Either later on May 27, 2009 or the next day, on May 28, 2009, a union representative called Garcia to tell her that plaintiff wanted to apologize for his behavior during the interview (specifically, for not answering Garcia's questions). Garcia Decl. ¶ 13. Plaintiff explained in his deposition that when he spoke to Garcia, he only apologized for not providing her with documentation. Ballard Dep. 45:6-45:25 (Boesch Decl. Ex. G). After the call with plaintiff, Garcia granted him one more week to provide adequate documentation. Garcia Decl. ¶ 13. Plaintiff, however, again failed to submit acceptable documentation. Garcia Decl. ¶ 13, Ex. G; Ballard Dep. 45:6-45:25 (Boesch Decl. Ex. G); Ballard Dep. 127:3-128:3 (
In light of plaintiff's failure to submit adequate documentation concerning his May 15, 17, and 18, 2009 unscheduled absences, Garcia issued a Letter of Warning on June 8, 2009, charging plaintiff with "Failure to Follow Instructions — Failure to Provide Requested Documentation."
After plaintiff submitted a grievance challenging the propriety of the June 9, 2009 Letter of Warning,
Between April 28, 2009 and October 2009, plaintiff requested time for on-the-clock union consultations from all of his supervisors (Garcia, Manzana, and Mendoza). Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11. All three supervisors allowed him on-the-clock union time, not always immediately but usually within 24 hours of the request. Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11; Ballard Dep. 35:21-36:15 (Boesch Decl. Ex. M). Plaintiff's supervisors each handled his requests exactly as they handled similar ones by other employees.
On multiple occasions, plaintiff asked Garcia for on-the-clock consultations with a union shop steward. Garcia Decl. ¶ 17. Garcia sometimes granted plaintiff's requests immediately, though at other times she deferred the requests because work was busy or because a shop steward was unavailable.
Plaintiff's other supervisor, Mendoza, typically did not allow on-the-clock union time immediately, but did so within 24 hours of the request and scheduled around work needs. Mendoza Aff. ¶ 11. One time, Mendoza denied plaintiff's request for union time and immediately corrected her mistake. On June, 5, 2009, she called plaintiff in for an investigative interview.
Plaintiff's third supervisor, Eladio Manzana, typically provided union time to employees, including plaintiff, as soon as a steward was available. Manzana Aff. ¶¶ 10-12.
Plaintiff challenges these assertions, claiming that three of his requests for union time were denied by each of his supervisors. Plaintiff first requested union time from Garcia on October 19, 2009, a request she denied on the ground that a shop steward was unavailable.
Garcia and Manzana supervised the same mail handlers but at different points during a shift. Garcia Decl. ¶ 18; Manzana Aff. ¶ 5. In early 2009, employees could direct vacation and schedule-change requests to either Garcia or Manzana. Garcia Decl. ¶ 18. Eventually they ended up short-staffed one day as they had not coordinated their responses to such requests.
On June 19, 2009, Garcia asked plaintiff to submit the rest of his vacation requests for the year at that time, explaining that he had missed vacation sign-ups early in the year because he was out on leave and that he should put in the rest of his requests right away. Garcia Decl. ¶ 19. She did this to assist in planning, so she could ensure adequate mail-handling coverage for any additional vacation dates plaintiff requested.
In October 2009, plaintiff submitted a new vacation request. Garcia Decl. ¶ 20; Mendoza Aff. ¶ 23; Ballard Dep. 169:1-17 (Boesch Decl. Ex. L;
Between April 28, 2009 and October 2009, plaintiff submitted multiple schedule-change requests to both Garcia and Mendoza. Garcia Decl. ¶ 21; Mendoza Aff. ¶ 20. Some of these requests were approved and others were denied.
In early 2009, Garcia often saw plaintiff standing around instead of working, and, as she did with other employees, would sometimes urge him to work. Garcia Decl.¶¶ 22-23. Manzana also noticed that plaintiff was not completing work assigned to him. Manzana Aff. ¶ 13.
In the summer of 2009, Garcia noticed plaintiff and another mail handler, Lakveer Kaur, standing around talking instead of working. Garcia Decl. ¶ 23. Garcia asked why they were talking and asked if they did not have any work to do.
In the fall of 2009, Garcia went into the letter breakdown area and saw plaintiff and mail handler, Natalie Montes, standing around talking. Garcia Decl. ¶ 23. Garcia asked both employees whether they had checked for mail in two different areas and was told that they had.
As far as Garcia knows, neither Montes nor Kaur had any history of EEO activity.
On June 12, 2009, plaintiff contacted an EEO counselor about claims of retaliation and hostile work environment based on the Light-Duty Complaint and claims of discrimination based on race (African American) and sex (male). Boesch Decl. Ex. V.
Garcia was unaware of plaintiff's EEO activities until she attended an August 27, 2009 mediation regarding the complaint that led to this lawsuit. Garcia Decl. ¶ 24; Estes Decl. ¶ 4. Sharif Estes never discussed plaintiff's EEO activity with Garcia, Manzana, or Mendoza. Estes Decl. ¶ 4;
Since September 2009, plaintiff has filed multiple additional EEO complaints (January 2010, Case No. 1F-953-0013-10; March 2010, Case No. 1F-953-0020-10; March 2011, Case No. 1F-953-0020-10; and June 2013, Case No. 1F-957-0041-13).
Plaintiff filed a complaint against Patrick Donahoe, Postmaster General, on September 30, 2011, and is proceeding on a first amended complaint filed January 1, 2012. The amended complaint asserts that defendant retaliated against plaintiff after the latter filed an EEO complaint. ECF No. 4 at 1. Plaintiff alleges retaliation, as evidenced by Garcia's demand for documentation regarding plaintiff's unscheduled absences, Garcia's issuance of a Letter of Warning, his supervisors' refusal to grant his requests to meet with union representatives, and his supervisors' denial of his vacation and schedule-change requests. Plaintiff contends the supervisors treated him differently than other, similarly-situated employees. Plaintiff also asserts a claim for hostile work-environment based on alleged harassment that he experienced at the hands of his supervisors. Finally, plaintiff brings a claim for infliction of emotional distress and for "Failure to Take Steps to Prevent Harassment."
Following the closure of discovery, defendant moved for summary judgment on the grounds that plaintiff cannot show that his supervisors treated him differently from other employees. Specifically, defendant claims plaintiff fails to meet his burden of establishing a prima facie case of retaliation as he did not allege any adverse actions, provide evidence of causation, or show evidence of retaliatory intent. Even supposing plaintiff has met his burden, defendant alleges plaintiff is unable to rebut the USPS's legitimate, non-discriminatory reasons for its actions. Finally, defendant claims plaintiff's allegations of a hostile work environment fail as he cannot show evidence of harassment.
Federal Rule of Civil Procedure 56(a) allows the court to "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Initially, the moving party bears the burden of showing there exists no genuine issue of material fact, however "the moving party need only prove that there is an absence of evidence to support the non-moving party's case."
Once this has been met, the burden shifts to the opposing party to show a genuine issue as to any material fact does exist.
In order to meet these requirements, the non-moving party must show support by "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence."
In resolving a motion for summary judgment, the evidence of the opposing party is to be believed.
Plaintiff asserts four claims in his amended complaint: (1) his supervisors retaliated against him for his prior EEO activity, (2) his supervisors created a hostile work environment, (3) defendant inflicted emotional distress, and (4) the USPS failed to take steps to prevent harassment. Defendant seeks summary judgment only on plaintiff's retaliation and hostile work environment claims and argues that plaintiff's infliction of emotional distress claim is barred pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 2675(a). For the reasons set forth here, the undersigned will sua sponte recommend summary judgment pursuant to Federal Rule of Civil Procedure 56(f) on plaintiff's claim that defendant failed to take steps to prevent harassment.
Defendant maintains that (1) plaintiff's retaliation claim fails because he cannot meet his burden in showing that his supervisors retaliated against him, and (2) that plaintiff's hostile work environment claims fails because he cannot show that the supervisors' actions constituted harassment.
Title VII prohibits retaliation against a person who has exercised his rights under Title VII of the Civil Rights Act of 1964 ("the Act") by claiming discrimination or seeking to enforce the Act's provisions. 42 U.S.C. §2000e-3(a). "The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination."
If a plaintiff meets his burden of establishing a prima facie case, then the defendant bears the burden of production to show a plausible, legitimate, and nondiscriminatory purpose for the action taken against the employee.
Before addressing the merits of plaintiff's claim, defendant first argues that plaintiff is limited in his retaliation claim to those incidents that have been properly exhausted through administrative remedies. According to defendant, this amounts to allegations dating from April 28, 2009 through the end of October 2009.
Generally, employees of the federal government must exhaust administrative remedies before bringing a civil action. Absent exhaustion, federal courts lack jurisdiction. 42 U.S.C. 2000e-16(c). To properly exhaust a complaint against a federal employer, the employee "must first attempt to resolve the matter by filing an informal complaint that triggers counseling by an EEOC Counselor."
Defendant is correct that "to establish subject matter jurisdiction over his Title VII retaliation claim, [a plaintiff] must have exhausted his administrative remedies by filing a timely charge with the EEOC" before filing suit in court.
Plaintiff first requested counsel for his retaliation claim on June 12, 2009. The ALJ was limited by the applicable regulations to consideration of events that occurred within the preceding 45 days, or beginning on April 28, 2009. The ALJ noted that his ruling considered allegations existing through October 2009. Tam Decl. Ex. B USPS_002609. Because the administrative law judge considered events from April 28, 2009 through October 2009, only those matters are exhausted and can form the basis of plaintiff's civil claim. There is no evidence of waiver, estoppel, or equitable tolling here, and so consideration of plaintiff's allegations remains limited to those considered in the administrative proceedings.
Defendant also argues that plaintiff's claim for infliction of emotional distress is barred because he failed to exhaust the FTCA's administrative remedies. The FTCA requires plaintiffs to exhaust their administrative remedies before filing suit.
Turning now to plaintiff's retaliation claim, under the burden-shifting test outlined above, plaintiff must first show a prima facie case of Title VII retaliation. To meet this burden, he must prove three factors: (1) his involvement in a protected activity under Title VII proceedings; (2) his further mistreatment or discharge by the defendant-employer; and (3) the existence of a causal connection between the original Title VII action and the mistreatment or discharge.
Defendant does not dispute that plaintiff's EEO claim constitutes the requisite protected activity. Accordingly, plaintiff has satisfied the first factor. Defendant, however, argues that plaintiff fails to satisfy the remaining two factors — that is, plaintiff cannot show the existence of an adverse employment action and is further unable to provide evidence of causation.
The Ninth Circuit takes an expansive view of the types of action that qualify as an adverse employment action.
The EEOC Compliance Manual has defined "adverse employment action" under Title VII retaliation as "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." EEOC Compliance Manual Section 8, "Retaliation," ¶ 8008 (1998). The EEOC Guidelines are not binding on courts, but "they `constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'"
Plaintiff asserts four instances of adverse treatment: (1) receipt of the June 8, 2009 Letter of Warning, (2) participation in multiple investigate interviews, (3) the delayed receipt or non-receipt of union consultations, and (4) the denial of requests for vacations and schedule changes. Defendant argues that none of these actions caused plaintiff harm and thus would not have deterred any reasonable employee from EEO activity.
As to the June 8, 2009 Letter of Warning, the undisputed facts establish that (1) Garcia issued the Letter to address plaintiff's failure to follow instructions—namely, failure to provide requested documentation regarding his unscheduled absences on May 15, 17 and 18, 2009; (2) these three consecutive absences came after multiple unscheduled absences in the previous three months; and (3) this Letter of Warning was later reduced to an "official discussion."
Defendant moves for summary judgment on the ground that a Letter of Warning does not constitute an adverse action under Title VII. Numerous courts have held that such a letter, standing alone, does not constitute an adverse employment action.
Even if the court finds, as some courts have, that a Letter of Warning can constitute an adverse action because of its potential to be used for increased disciplinary action in the future,
Accordingly, the undersigned finds that because the Letter of Warning was later reduced to an "official discussion," it does not constitute an adverse employment action.
Defendant next asserts that the May 2009 and September 2009 investigative interviews were simply discussions regarding plaintiff's attendance issues and could not constitute an adverse action for purposes of a retaliation claim because they, in and of themselves, had no negative consequences for plaintiff.
Courts have consistently found that participation in investigative interviews, standing alone, does not constitute punishment or grounds for discipline and therefore would not deter a reasonable employee from engaging in protected activity.
Insofar as an investigative interview can be deemed adverse if it leads to an adverse consequence,
Perhaps recognizing that an investigative interview is not in and of itself adverse action,
Plaintiff next claims that, following the September 2009 investigative interview, Garcia threatened him with a seven-day suspension. But plaintiff again fails to show adverse action. It is true that threats may rise to the level of an adverse employment action if, under the particular circumstances, those threats would have deterred a reasonable employee from making or supporting a charge of discrimination.
Lastly, plaintiff contends that the frequency and harassing and punitive nature of the investigative interviews amounts to adverse action. In support, plaintiff claims that he was subjected to additional investigative interviews on October 16, 2009 and October 26, 2009 after being accused of being AWOL. Plaintiff fails to show any actual harm resulting from these interviews, fails to submit any evidence showing that the number of these interviews was excessive compared to other employees, and fails to submit any evidence showing that the interviews were unwarranted.
The undersigned therefore finds that the investigative interviews were not an adverse action.
Plaintiff also contends that defendant's failure to provide union consultations right away constituted adverse action. The undisputed facts before the court show that plaintiff's union consultations were at times granted immediately upon his request, and when they were not granted immediately, they were handled the same as all other employee requests for union consultation. Garcia Decl. ¶ 17; Manzana Aff. ¶ 10-12; Mendoza Aff. ¶10-11. Any delay in granting meetings was dictated by work needs and the availability of union stewards, but plaintiff was granted on-the-clock meeting time within 24-hours of his requests or at his next shift.
In opposition, plaintiff refers to his three back-to-back requests submitted on October 19, 21, and 22, 2009 to Garcia, Manzana, and Mendoza, respectively. Opp'n, Ex. 18. He claims that on October 19, 2009 he requested union time from Garcia, who purportedly denied the request on the ground that a shop steward was unavailable. Although plaintiff counters that a shop steward became available that night, he has not submitted any evidence to establish a dispute of fact. Plaintiff may not rest upon mere allegations or denials of defendant's evidence and must instead produce admissible evidence that shows a genuine issue of material fact exists for trial.
Plaintiff also claims that on October 21, 2009 he requested union time from Manzana, who purportedly said "maybe later" but failed to grant the request by the end of the shift. Opp'n, Ex. 18. Manzana disputes this account, declaring that plaintiff made his initial request on October 19, 2009, but because there were no union stewards available that day and because plaintiff was not scheduled to work on October 20, 2009, Manzana provided him with a union steward on his next shift, October 21, 2009. Manzana Aff. ¶ 10.
Assuming for purposes of this motion that Manzana failed, as plaintiff alleges, to provide union time to plaintiff on October 21, 2009, the evidence establishes that plaintiff's request was granted after he asked Mendoza for union time on October 22, 2009. Opp'n, Ex. 18. Although plaintiff claims that he did not receive the union time by the end of his shift, he admits that his request was granted, ostensibly within 24 hours of October 21, 2009.
But even assuming again that plaintiff's requests for union time were not granted in a timely manner (or at all, as he claims with regard to the May 2009 investigate interview with Garcia), the court will nonetheless recommend grant of defendant's motion due to plaintiff's failure to establish causation, discussed below.
Lastly, plaintiff asserts that the denials of his vacation and schedule-change requests amount to adverse action. Defendant argues that the denial of some scheduling change requests is a trivial employment action that would not deter a reasonable employee from EEO activity.
In any event, defendant argues that the record establishes that many of plaintiff's requests were last-minute and would have imposed a burden on the USPS. Plaintiff counters that the dates he requested were available and allocated for his vacation periods. Again, plaintiff submits no evidence in support of this assertion. Moreover, the undisputed facts establish that plaintiff's supervisors handled the schedule change requests of other employees in the same manner that plaintiff's requests were handled. Garcia Decl. ¶ 17; Manzana Aff. ¶ 10-12; Mendoza Aff. ¶¶ 10-11. Although plaintiff is dissatisfied that so many of his requests were denied, he has not established that the denial of those vacation and scheduling change requests constitute adverse action.
Even assuming that plaintiff can establish adverse action(s), the undersigned finds that he fails to establish a triable dispute of fact regarding causation. In order to show causation, plaintiff "must establish that his . . . protected activity was a but-for cause of the alleged adverse action by [defendant]."
The facts before the court establish that Sharif Estes never discussed plaintiff's EEO activity with plaintiff's supervisors, Garcia, Manzana, or Mendoza, and Garcia declares that she did not know of plaintiff's EEO activity until August 27, 2009. Estes Decl. ¶ 4; Garcia Decl. ¶ 24. Therefore, the May 2009 investigative interview and the events surrounding it, such as Garcia's alleged failure to provide a union consultation prior to the interview and the June 2009 Letter of Warning, occurred prior to Garcia's knowledge of plaintiff's protected activity and therefore could not have been caused by retaliatory intent. Similarly, Garcia's July 2009 denial of plaintiff's request for a union consultation also cannot be deemed retaliatory as it predated her knowledge of plaintiff's EEO complaint.
As to plaintiff's other supervisors, defendant points out that by December 2009, two months after the period at issue here, Eladio Manzana first heard that plaintiff filed an EEO complaint, but did not know any details. Manzana Aff. ¶¶ 8-9. Juanita Mendoza also did not know about the complaint until December 2009. Mendoza Aff. ¶¶ 8-9, 10. Since these supervisors were entirely unaware of plaintiff's protected activity during the relevant time period, they cannot be deemed to have acted in retaliation.
Defendant also asserts that plaintiff is unable to show causation because he was in fact given substantial leniency in light of his attendance and performance issues. Defendant emphasizes that plaintiff never received any formal discipline beyond a Letter of Warning despite "chronic absenteeism," and contends there is no evidence that plaintiff's prior EEO activity affected his managers at all, much less that it caused them to treat plaintiff more harshly than they otherwise would have.
In his opposition, plaintiff claims that Manzana was aware that plaintiff had prior EEO activity, but submits no evidence that the referenced EEO complaint is the Light-Duty Complaint at issue here.
In light of the foregoing, the undersigned finds that plaintiff fails to establish a prima facie case as he has not shown the required adverse action or causation.
Assuming arguendo that plaintiff did establish a prima facie case, defendant has put forth legitimate, nonretaliatory reasons for the complained-of actions.
As to plaintiff's requests for on-the-clock union consultations, defendant states that these were also handled in the same way as those of other employees, and that time was granted upon union steward availability and the pace of workflow. Garcia Decl. ¶17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶10-11. Similarly, plaintiff's requests for time off or schedule changes were handled according to operational needs. Garcia Decl. ¶ 21; Mendoza Aff. ¶ 22. Additionally, by providing examples of other employees without any known EEO activity whose union consultation requests were handled the same as plaintiff's requests, plaintiff's supervisors showed that they were not affected by his EEO activity, but rather were simply following protocol. Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11. With no "showing of disparate treatment," plaintiff is unable to assert retaliation.
In order to meet his final burden, plaintiff must demonstrate that defendant's asserted reasons for its actions were pretextual. Plaintiff fails to meet this burden. As a preliminary matter and as referenced earlier, the court finds that many of plaintiff's arguments lack evidentiary support. For example, in order to assert that a fact is genuinely disputed, Federal Rule of Civil Procedure 56(c) requires "citing to particular parts of materials in the record, including . . affidavits or declarations," and that such affidavits or declarations "must be made on personal knowledge [and] set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(c)(1)(A), (4). Plaintiff makes numerous assertions of fact, but fails to include them in a declaration or affidavit. Second, although the court may sometimes rely on facts presented in the opposition, the opposition must first be signed under penalty of perjury, which plaintiff failed to do. 28 U.S.C. §1746. Finally, many of the exhibits that plaintiff attaches to his opposition are not authenticated as he fails to attach them to affidavits per Federal Rule of Civil Procedure 56(c) or he fails to authenticate per any of the means listed in Federal Rule of Evidence 901. Because plaintiff does not submit an affidavit or declaration and because many of his exhibits are not authenticated, he is left with little admissible evidence.
Even if plaintiff's opposition and exhibits could be considered, however, plaintiff simply repeats the allegations in his amended complaint with little to no evidentiary support. Where he does elaborate, as discussed
Defendant's motion for summary judgment should therefore be granted as to plaintiff's retaliation claim. Plaintiff fails to show that any actions taken by defendant constituted mistreatment as he has not shown that the actions would have dissuaded a reasonable employee from engaging in protected activity, he has provided no evidence of causation, and he has failed to overcome defendant's legitimate, non-discriminatory reasons for the complained-of conduct.
Defendant also requests summary judgment as to plaintiff's hostile work environment claim. The Ninth Circuit has determined a three-part test for Title VII hostile work environment claims. Under this test, an employee "must show that (1) he was subject to verbal or physical conduct due to his membership in a protected class; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive or hostile work environment."
Plaintiff bases his hostile work environment claim on those occasions when he felt berated, humiliated, and harassed by his supervisors, with the at-issue conduct mirroring the allegedly retaliatory actions related to his Title VII retaliation claim.
On review, the undersigned finds that plaintiff fails to meet the three-part test for hostile work environment. He fails, for example, to present any evidence, direct or circumstantial, that any of the defendant's conduct was due to plaintiff's membership in a protected class. He also presents no evidence that the conduct was so severe or pervasive as to alter the conditions of his employment. The record simply does not support a claim for hostile work-environment.
Plaintiff has not produced any direct or circumstantial evidence of animus. Plaintiff has not shown discriminatory verbal or physical conduct while at work. His hostile work environment claim mimics his other claims in the lawsuit, but those allegations do not go to a claim for a hostile work environment. In the absence of any evidence that supports the elements of a hostile work environment claim, summary judgment must be granted on that count.
Plaintiff also presents a claim accusing defendant of failing "to take steps to prevent harassment," for which he seeks injunctive relief.
Plaintiff's claim for "Failure to Take Steps to Prevent Harassment" is construed as one arising under California Government Code § 12940(k), which makes it unlawful for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." To maintain a cause of action under this provision, plaintiff must establish that "(1) [he] was subjected to discrimination, harassment or retaliation; (2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm."
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
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.
On September 28, 2009, during his next scheduled shift, Garcia asked plaintiff why he did not call in. Garcia Decl. ¶ 16. Plaintiff did not respond to these questions; instead, his union representative told Garcia that plaintiff's medication had caused him to fall asleep.
