RICHARD A. JONES, District Judge.
This matter comes before the Court on cross-motions for summary judgment by Plaintiff Shaun Robinson (Dkt. # 28) and Defendants
This matter is not particularly complex. It involves a tenacious Plaintiff who is a male applicant to the University's Accelerated Bachelor's of Science Degree in Nursing ("ABSN") program.
Much of the dispute in this case revolves around Plaintiff's 2015 application.
Application to the University's ABSN program is highly competitive; an applicant has a roughly 25% chance of getting one of the 48 spots. See Dkt. # 31 (Chow Decl.) ¶ 6. In evaluating applications, the University considers five areas of admissions emphasis: (1) academic record, (2) personal statements, (3) letters of recommendation, (4) resumes, and (5) a proctored essay. Id. ¶ 7. Applications are typically first screened for minimum qualifications and are then forwarded to the ABSN admissions committee, with two members individually rating each component of their assigned applications from 1-5 (5 being the highest). See id. ¶ 8. The applications are then analyzed for inter-rater reliability and then ranked on a list that determines offers of acceptance, waitlist placement, and denials of admission. Id.
Plaintiff's academic record was subpar.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the opposing party must set forth specific facts showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).
The bulk of Plaintiff's claims pertain to the University's alleged gender discrimination in admissions.
It is not clear how Plaintiff intends to proceed. Much of his analysis — perhaps all of it — comes in the form of statistical evidence. See Dkt. # 28. In this sense, it is plausible that Plaintiff is proceeding on a theory of "direct or circumstantial evidence," rather than the McDonnell Douglas burden-shifting framework. See Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013). Under this method, courts are instructed to turn to the multi-factor inquiry outlined in Arlington Heights v. Metro. Housing Corp., 429 U.S. 252, 266 (1977). Id. (citing Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 550 (9th Cir. 1982)). Under this analysis, "a court analyzes whether the defendant's actions were motivated by a discriminatory purpose by examining (1) statistics demonstrating a `clear pattern unexplainable on grounds other than' discriminatory ones, (2) `[t]he historical background of the decision,' (3) `[t]he specific sequence of events leading up to the challenged decision,' (4) the defendant's departures from its normal procedures or substantive conclusions, and (5) relevant `legislative or administrative history.'" Id. at 1158-59 (quoting Arlington Heights, 429 U.S. at 266-68; citing Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009)).
As best as this Court can tell, Plaintiff relies solely on statistical evidence.
Still, Plaintiff's disparate impact theory is comparable to the situation in Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002). In that case, the court addressed whether summary judgment was appropriately entered against the plaintiffs, a group of female postal inspector team leaders who applied for promotions, on their claims of employment discrimination on the basis of sex. Id. at 1121. There were five open positions and 38 applicants, including six women. Id.
The court first cautioned that "the probative value of any statistical comparison is limited by the small available sample." Id. at 1123 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 996 (1988); Morita v. S. Cal. Permanente Med. Grp., 841 F.2d 217, 220 (9th Cir. 1976)). Reaching the merits, the court noted that the first step in statistical analysis is to identify the base population for comparison — generally "the applicant pool or relevant labor market from which the positions at issue are filled." Id. The composition of that pool is then compared to the composition of successful applicants. Id. (citing Wards Cove Packing Co., Inc. v. Antonio, 490 U.S. 642, 650 (1989); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977)). The court found no significant statistical disparity, noting that female applicants comprised 13.3% of those interviewed and 15.8% of the original applicant pool. Id. The slight difference between those two numbers was insubstantial. Id.
The relevant base population for comparison here is the overall pool of applicants for the University's 2015 Summer Quarter cohort.
The long and short of it is that Plaintiff's statistical analysis makes much ado about nothing. The statistics do not show a clear pattern of anything, much less discriminatory intent akin to the systematic exclusion in Yick Wo. See Gay, 694 F.2d at 552-53 ("the legal question is whether that impact is sufficiently gross or stark that a court must infer that it was intended by the defendant").
Plaintiff also invokes the four-fifths rule to argue his case, but that rule actually highlights the degree to which he misapplies the law and statistical evidence. The Stout court suggested the four-fifths rule as a "rule of thumb" for considering whether a selection practice has a disparate impact. See id. at 1124 (citing Clady v. Los Angeles Cnty., 770 F.2d 1421, 1428 (9th Cir. 1985)). That rule provides "that a selection practice is considered to have a disparate impact if it has a `selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate of the group with the highest rate.'" Id. (quoting 29 C.F.R. § 1607.4(D)).
Here, the selection rate for males was actually higher than that for females. Out of 159 total applicants for the 2015 Summer Quarter cohort, 17 were male and 142 were that filling non-matriculated spots with applicants with "dubious prospects for success" is simply unacceptable. See Dkt. # 38 (Chow Decl.) ¶ 16. female. See Dkt. # 31 (Chow Decl.) Ex. N at 53. And out of 71 total offers of admission for the 2015 Summer Quarter cohort, 10 were male and 61 were female. Id. In other words, male applicants had a selection rate of roughly 59% (10 out of 17) while female applicants had a selection rate of roughly 43% (61 out of 142). In other words, the rate of offers for male applicants was roughly 137% of the offer rate for females, much higher than the 80% rule of thumb.
In the absence of such direct or circumstantial proof of discriminatory intent, the Court turns to the McDonnell Douglas burden shifting approach — a framework the Parties appear to endorse. See Dkt. # 30 at 8; Dkt. # 39 at 17. Numerous courts have held that Title VII's framework applies to (or at least informs) analysis of Title IX claims. See e.g., Bowers v. Bd. of Regents of Univ. of Ga., 509 F. App'x 906, 910 (11th Cir. 2013) (applying Title VII framework to assess Title IX disparate treatment claim); Emeldi II, 698 F.3d at 724 (applying Title VII burden-shifting framework for retaliation claims to Title IX retaliation claim); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 617 n.1 (1999) ("This Court has also looked to its Title VII interpretations of discrimination in illuminating Title IX") (Thomas, J., dissenting).
Under this framework, Plaintiff first bears the burden of establishing a prima facie case of disparate treatment. To do so, Plaintiff must show (1) that he belonged to a protected class, (2) he submitted a satisfactory application, (3) he was subjected to an adverse admissions decision, and (4) similarly situated applicants not in his protected class received more favorable treatment. See Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002) (citing Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000)). The amount of proof necessary to establish a prima facie case on summary judgment is minimal. See Emeldi v. Univ. of Oregon ("Emeldi I"), 673 F.3d 1218, 1223 (9th Cir. 2012) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)).
Before proceeding further, the Court notes that the fact that Plaintiff was admitted to the University's 2014 Summer Quarter cohort weakens his case. See Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996)) (explaining the same-actor rule — "the principle that an employer's initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs"); see also Schechner v. KPIX-TV, 686 F.3d 1018, 1026-27 (9th Cir. 2012) (explaining that same-actor inference may arise when the favorable action and adverse action were as much as years apart). In this Court's view, however, this is not necessarily dispositive. The reviewers of Plaintiff's 2015 application were different than for his 2014 application. See Dkt. # 31 (Chow Decl.) Ex. A & E.
Whatever the case, it is clear that Plaintiff cannot establish a prima facie case because he neither submitted a satisfactory application nor has identified an adequate comparator who received more favorable treatment.
The University has explained how Plaintiff's 2015 application was substantially deficient — he had mediocre grades and his recommendation and other written submissions were weak.
Plaintiff similarly has not shown that a female comparator was treated better. To be sure, that applicant had a similar academic record as Plaintiff — a 2.99 cumulative GPA and 3.78 science GPA. See Dkt. # 39-3. However, her application was superior to Plaintiff's in almost every other respect. For example, she received ratings of 4.0 and 4.75 on the resume portion of her application (in contrast to Plaintiff's 4.0 and 3.0 ratings). Id. Likewise, her personal statement portion received a 4.0 and 4.17 average rating, as compared to Plaintiff's 3.0 and 2.83 ratings. See id. Perhaps most problematic for Plaintiff, the comparator received 5.0 ratings for her recommendation letter, in contrast to the 4.0 and 2.0 he received (and which he acknowledged was weak). Id.
In order to establish the fourth element for a prima facie case, Plaintiff must establish that he is similarly situated to the individual receiving more favorable treatment "in all material respects." See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (citing cases). "Although material characteristics vary from case to case, in termination and discipline cases, the Ninth Circuit looks to factors such as whether the proposed comparator and the plaintiff were subject to the same policies, worked at the same jobs, committed similar violations, and had similar disciplinary records." McDaniels v. Grp. Health Co-op, 57 F.Supp.3d 1300, 1311 (W.D. Wash. 2014) (collecting cases). Simply put, Plaintiff's chosen comparator was not similarly situated to him in all material respects. Her application was superior to Plaintiff's in almost every material respect other than their respective GPAs. See Dkt. # 39-3.
In short, Plaintiff has not established a prima facie case of disparate treatment in admissions because he has not shown he was qualified for admission or that a comparator was more favorably treated.
Whatever the case, Plaintiff's disparate treatment claim would still fail even assuming he could establish a prima facie case. If a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the challenged action." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (citing McDonnell Douglas, 411 U.S. at 802); see also Emeldi I, 673 F.3d at 1224 (citing Davis, 520 F.3d at 1089). A relatively weak application is a legitimate nondiscriminatory reason for rejecting an applicant. See Gant v. S. Methodist Univ. Sch. of Law, No. CIVA305CV1455K, 2006 WL 2691301, at *3 (N.D. Tex. Sept. 19, 2006) (finding that defendant articulated a legitimate nondiscriminatory reason for denying application for admission where it stated that plaintiff's LSAT score was in the bottom 2 percentile); Weser v. Glen, 190 F.Supp.2d 384, 400-01 (E.D.N.Y. 2002) (holding that a low LSAT score and low GPA were legitimate nondiscriminatory reasons for rejecting a law school applicant); cf. Pierce v. Owens-Corning Fiberglas Corp., No. 80-2013, 1982 WL 413, at *3 (D. Kan. Oct. 20, 1982) (finding that difference in quality of letters of recommendation was a legitimate, nondiscriminatory reason for rejecting job application). Given the deficiencies in Plaintiff's application, the Court finds that the University has adequately proffered a legitimate, nondiscriminatory reason for denying him admission.
The question, then, is whether Plaintiff can establish pretext. Shelley v. Green, 666 F.3d 599, 609 (9th Cir. 2012) (quoting Chuang, 225 F.3d at 1124) ("The plaintiff can prove pretext `(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.'"). "Where evidence of pretext is circumstantial, rather than direct, the plaintiff must produce `specific' and `substantial' facts to create a triable issue of pretext." Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (citing cases).
Plaintiff mostly relies upon his statistical claims. Statistical evidence may serve as indirect evidence of unlawful discrimination. See Day v. Sears Holdings Corp., 930 F.Supp.2d 1146, 1172 (C.D. Cal. 2013) (citing Carden v. Chenega Sec. & Protection Services, LLC, No. CIV. 2:09-1799 WBS CMK, 2011 WL 1807384, *6 (E.D.Cal. May 10, 2011)). But as discussed, supra, Plaintiff's statistical analysis is misguided and unhelpful in almost every way.
Differing treatment of comparators may also act as evidence of pretext. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (citing Gerdom v. Cont'l Airlines, Inc., 692 F.2d 602, 609 (9th Cir. 1982); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001)). But Plaintiff's argument on this point, as with his statistical analysis, fails because he has not selected a similarly situated comparator (and also because he could not seriously show he was clearly superior to his chosen comparator). Cf. Hargrave v. Univ. of Wash., 113 F.Supp.3d 1085, 1102 (W.D. Wash. 2015) (finding that plaintiff had not shown pretext because no reasonable finder of fact could conclude that plaintiff's qualifications were "clearly superior" to that of his comparators).
One final point merits mention. Plaintiff contends that he has established pretext by showing that the University's reasons for denying his application are without "credance [sic]." See Dkt. # 39 at 5. It is possible to show pretext where a defendant changes its reasons for its actions over time. See Villiarimo, 281 F.3d at 1063. But despite Plaintiff's best efforts to show otherwise, there is simply no evidence that the University has changed its reasons for denying his application. The University's previous email to Plaintiff explaining its denial of his 2015 application rested upon the same explanations it offers now: his letter of recommendation was "thin," and that the reviewers found his proctored and personal essays to be problematic. See Dkt. # 39-25 at 2. The University simply has not shifted (or even properly supplemented) its reasons for denying his application. See Villiarimo, 281 F.3d at 1063 (citing Johnson v. Nordstrom, Inc., 727, 733-34 (7th Cir. 2001); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997)) (explaining that a plaintiff does not show pretext where the evidence shows that defendant offered two reasons plaintiff was discharged that were not inconsistent at the same time).
But beyond this, even if Plaintiff attacks the basis for the University's reasons for denying his application, he must do more than show that its proffered justifications were false — he must show that the University did not honestly believe its proffered reasons. See Villiarimo, 281 F.3d at 1063. He has not done so, especially as the only evidence for his argument is an hour long online information session aimed at providing applicants with additional information about common application pitfalls.
In short, the Court finds that summary judgment must be granted in favor of the University on Plaintiff's various disparate treatment theories. Simply put, the Court finds that the undisputed facts present no genuine issues of material fact. Plaintiff has neither presented direct evidence of discrimination nor met his burden (at any stage) under the McDonnell Douglas framework.
Beyond Title IX, Plaintiff has also brought a claim under 42 U.S.C. § 1983 for violations of the Equal Protection Clause of the Fourteenth Amendment. See Compl. ¶¶ 63-69. Of course, "[a] plaintiff who fails to establish intentional discrimination for purposes of Title VII . . . also fails to establish intentional discrimination for purposes of § 1983." Sischo-Nownejad v. Merced Cmty. College Dist., 934 F.2d 1104, 1112-13 (9th Cir. 1991) (citing cases); see also Hess v. Multnomah Cnty., 216 F.Supp.2d 1140, 1152 (D. Or. 2001) (citing cases).
One final point merits mention. The Parties appear to dispute whether the University is immune to Plaintiff's due process or equal protection challenge under section 1983 by virtue of the Eleventh Amendment. Courts in this judicial district have noted that state universities — including the University — are an arm of the state entitled to Eleventh Amendment immunity. See Lindsay v. Sockey, No. C15-47-MJP, 2015 WL 3473475, at *3 (W.D. Wash. June 2, 2015) (citing Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984) (holding that the University was immune from section 1983 claim by virtue of the Eleventh Amendment); Chester v. Univ. of Wash., No. C11-5937 BHS, 2012 WL 3599351, at *5 (W.D. Wash. Aug. 21, 2012); Robinson v. Green River Cmty. Coll., No. C 10-0112-MAT, 2010 WL 3947493, at *4 (W.D. Wash. Oct. 7, 2010) (collecting cases). Despite his best efforts, Plaintiff has not shown any shortcomings in this analysis, much less a clear declaration by the State of Washington that it intends to submit to federal jurisdiction. See Demshki v. Monteith, 255 F.3d 986, 989 (9th Cir. 2001) (quoting College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985)) ("Federal courts find a waiver if the state makes a `clear declaration that it intends to submit itself to [federal] jurisdiction.' Statutes or constitutional provisions expressing a general waiver of sovereign immunity, without expressly subjecting the state to suit in federal court, do not waive Eleventh Amendment immunity.") (citation omitted). The University is an arm of the state of Washington and enjoys Eleventh Amendment immunity to Plaintiff's constitutional claims under section 1983.
After all is said and done, the Court concludes that summary judgment for Defendants is appropriate. As a result, the Court
