Opinion
CASE NO: 04-CV-2074 W (BLM).
October 25, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On October 15, 2004 Heidi Barajas ("Plaintiff") commenced this employment discrimination action under Title VII of the Civil Rights Acts of 1964. On September 2, 2005 Gordon R. England, acting in his role as Secretary of the Navy, ("Defendant") moved for summary judgment. The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court GRANTS in part and DENIES in part Defendant's summary judgment motion. I. BACKGROUND
In September 1990 Plaintiff began working at the San Diego Space and Naval War Systems Center ("SPAWAR"). By August 25, 2002 Plaintiff had attained the position of Supervisor of the Management Programs Support Division ("Supervisor Position") in SPAWAR's Executive Officer and Management Support department. ( Deposition of Heidi A. Barajas "Barajas Depo" at 17:14-16). In this capacity, Plaintiff supervised seven people in the areas of Command Evaluation ("CE"), material control, travel services, audit control and management control. Id. at 19:6; 20:19-21. From August 2002 until February 2004, Catherine Neeb ("Neeb"), Captain Patricia Miller ("Capt. Miller") and Captain Tim Flynn ("Capt. Flynn") were Plaintiffs first, second and third line supervisors respectively. ( Declaration of Heidi A. Barajas "Barajas Decl." at ¶ 3).
From November 2001 through April 2002, Plaintiff interacted daily with Capt. Miller, working at times on complex and "high visibility" assignments. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 64:24-65). During this time, Capt. Miller, acting as interim Commanding Officer, publically praised Plaintiff, nominated her for an exemplary award and gave her the highest possible rating of "Outstanding" on her 2002 annual performance evaluation. Id. at 68:16-69:2; 67:18-25. These accolades were due in large part to Plaintiff's work on these high profile assignments. Id.
In May 2002 Capt. Flynn assumed the duties as Commanding Officer of SPAWAR. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 374). In addition to his Commanding Officer duties, Capt. Flynn was also in charge of the Equal Employment Opportunity ("EEO") program for the command. ( Barajas Decl. at ¶ 3). As Capt. Flynn's Executive Officer, Capt. Miller was now second in command but remained Plaintiff's second-line supervisor. Id. Shortly after Capt. Flynn took command, Neeb filed an EEO discrimination complaint against Capt. Miller and others. ( Barajas Decl. at ¶ 5). Plaintiff served as a favorable witness on Neeb's behalf during this investigation. ( Barajas Decl. at ¶ 5). On March 12, 2003, Capt. Miller was notified that Plaintiff would be at witness in Neeb's complaint. ( EEO Investigation Report Excerpts, Notice of Lodgment, Exhibit C at 357).
On May 8, 2003 Plaintiff filed an EEO complaint containing three discrimination and retaliation claims. Id. at 5. In her EEO complaint, Plaintiff alleged that Capt. Flynn and Capt. Miller discriminated against her, basing her claims on reprisal and disparate treatment theories. Id. at 43.
Plaintiff's failure to include her failure to promote claim in her EEO complaint is the subject of Defendant's summary judgment motion.
A. REALIGNMENT OF THE CE FUNCTION
On April 10, 2003, in a written memorandum, Capt. Flynn announced that he was realigning the CE function to another department that was under his direct supervision and directed Capt. Miller to develop a duty description for the realigned position. Id. at 491. The CE function had been one of Plaintiff's primary duties and following the realignment she would no longer have supervision of the CE function. A woman was selected to fill this position. Id., Ex. B at 6.
B. PLAINTIFF'S 2003 PERFORMANCE RATING
On July 18, 2003 Capt. Miller met with Neeb to discuss Plaintiff's 2003 rating and they agreed that Plaintiff's rating should be "Outstanding." ( Deposition of Catherine Neeb "Neeb Depo." at 100). On July 18, 2003 Plaintiff's rating was entered as "Outstanding" in SPAWAR's database and remained that way through 2:18 p.m. on July 21, 2003. ( Barajas Depo., Ex. 1 at 2). According to SPAWAR's 2003 Performance Rating Calendar, on July 21, 2003 the database closed, giving Directors and Department Heads "read-only" access to the final ratings. Id. at 2.
On July 22, 2003 Capt. Miller met with an EEO counselor concerning Plaintiff's discrimination claim against her and Capt. Flynn. At some time between 2:18 p.m. on July 21, 2003 and 12:58 p.m. on July 23, 2003, Capt. Miller changed Plaintiff's 2003 performance rating from "Outstanding" to a lower rating of "Superior" and re-allocated her pay and bonus points. ( Barajas Decl., Ex. 1). According to Capt. Miller, Plaintiff's rating of "Superior" was appropriate because Plaintiff had some deficiencies during the 2002-2003 performance year. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 363).
C. DEFENDANT'S INVESTIGATION AND FACT-FINDING INQUIRY
On May 22, 2003 Plaintiff became aware that "an immediate family member" had been hired by a SPAWAR contractor. Seeing a potential conflict of interest, Plaintiff notified Neeb and other managers informing them that she was recusing herself from any "ongoing or future activity" involving that contractor. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 642. Neeb informed Scott Miller, SPAWAR's legal counsel, advising him of the relevant facts and that Plaintiff had recused herself.Id. at 643.
On September 18, 2003 Scott Miller received additional notification about Plaintiff's activity and potential conflict of interest. Id. At 644. As SPAWAR's counsel, Scott Miller thought that Plaintiff's activity would probably be considered "covered activity" under conflict of interest regulations but he needed more facts. Id. Scott Miller contacted Commander John E. McDonald ("McDonald") at the Office of the Inspector General ("IG") and asked him to investigate the potential conflict of interest and to ascertain the wording and terms of Plaintiff's recusal. Id. at 414-417. McDonald's investigation found that the allegation of a potential ethics violation was unsubstantiated but also noted that had Plaintiff consulted with Scott Miller, the IG investigation would not have been necessary.Id. at 649.
In November 2003 Capt. Miller received three complaints regarding Plaintiff's alleged unprofessional conduct. She then ordered Neeb to conduct a formal fact-finding inquiry about these allegations. After interviewing witnesses and ascertaining the facts surrounding the incidents, Neeb sent Capt. Miller her final report which concluded that the allegations were unfounded. Id. at 836. No disciplinary action was taken against Plaintiff. Id. D. THE PROMOTION TO DP-IV
In September 2003, Plaintiff was eligible for, but was not selected for promotion to DP-IV. Neeb and Capt. Miller presented Plaintiff and another candidate to the nomination panel for consideration. ( Neeb Depo. at 137). Both candidates had "Superior" performance ratings for 2003. ( Barajas Decl., Ex. 4 at 139). Ultimately the board voted and chose the other nominee as their top candidate to go forward for promotion. ( Tooks Decl., Ex. 4 at 137). As a result, Plaintiff was not promoted to DP-IV. Id. II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See FED.R.CIV.P.56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. Summary judgment is appropriate when a party cannot meet an essential element of its claim or defense. Nissan Fire Marine Ins. Co v. Fritz Cos., 210 F.3d 1099, 1103 (9th Cir. 2000).
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must not weigh the evidence, draw legitimate inferences or make credibility determinations in evaluating a motion for summary judgment. See Anderson, 477 U.S. at 255. The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein, nor is the court obligated to scour the record in search of an issue of triable fact. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).
III. DISCUSSION
Plaintiff has alleged three separate employment actions she contends are discriminatory, each based on disparate treatment and retaliation theories and one allegedly discriminatory employment action founded solely on retaliation. Specifically, Plaintiff claims that Defendant lowered her 2003 performance rating from "Outstanding" to "Superior", initiated an ethics investigation and a fact-finding inquiry into her alleged unprofessional conduct and did not promote her because of her gender and in retaliation for her participation in EEO activity against Defendant. Additionally, Plaintiff contends that Defendant removed the CE function from her supervision in retaliation for her EEO activity. Defendant now moves for summary judgment, asserting that as a matter of law, Plaintiff cannot establish a prima facie case for her claims and that Defendant's reasons for its employment actions rebut any presumption of discrimination. A. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S GENDER DISCRIMINATION CLAIM
The Court notes that Plaintiff does not claim that the realignment of the CE function was based on her gender.
Plaintiff alleges that because of her gender, Defendant discriminated against her by giving her a lower than deserved 2003 performance rating, by initiating an ethics investigation and fact-finding inquiry against her and by failing to select her for promotion to DP-IV. Defendant argues that Plaintiff has failed to establish a prima facie case and that Defendant is therefore entitled to summary judgment. Defendant also contends that even if Plaintiff has established a prima facie case, Defendant's employment actions had nothing to do with Plaintiff's gender. Thus, Defendant contends that summary judgment is appropriate.
1. PLAINTIFF FAILS TO ESTABLISH A PRIMA FACIE DISPARATE TREATMENT CASE BASED ON HER "SUPERIOR" PERFORMANCE RATING
Plaintiff contends that Defendant gave her a lower than expected performance rating in 2003 because she was female. ( Complaint, ¶ 24). Defendant contends that the rating was a fair assessment of Plaintiff's performance during that year and was not based on Plaintiff's gender. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 363).
Along with the rating of "Superior," Defendant also awarded Plaintiff one continuing pay point and two bonus points. Plaintiff asserts that in addition to a higher rating, two males received two continuing pay points and one bonus point. Plaintiff and the other males all received a total of three points. Plaintiff has not explained why one type of point is more valuable than another or why allocation of these points matters. Since Plaintiff has failed to provide an explanation, the Court assumes they have equal value and that Plaintiff's second cause of action is based solely on her 2003 performance rating.
As a threshold matter, Plaintiff must establish a prima facie employment discrimination case for disparate treatment based on gender. Specifically, Plaintiff must demonstrate that: (1) she was a member of a protected group; (2) she was adequately performing her job; and (3) she suffered an adverse employment action. McDonnell Douglas, 411 U.S. at 802; Kortan v. California Youth Authority, 217 F.3d 1104, 1113 (9th Cir. 2000).
Defendant does not contest that Plaintiff, a female, is a member of a protected class under Title VII. Furthermore, the evidence suggests that Plaintiff was adequately performing her job at the time she brought her claim. Thus, Plaintiff has satisfied the first two prongs of the McDonnell Douglas test. However, Plaintiff fails to establish her prima facie case because her lower than expected performance evaluation does not constitute an adverse employment action actionable under Title VII as a matter of law.
Courts define an adverse employment action as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a significant change in benefits." Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 877 (9th Cir. 2001) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The plaintiff must also demonstrate a loss of a valuable benefit or privilege. Hyland, 972 F2d at 1136. Standing alone, average or better performance evaluations do not constitute adverse employment actions. Kortan, F.3d at 1112-1113 (holding that average performance evaluations did not constitute negative employment actions); Primes v. Reno, 190 F.3d 765, 767 (6th Cir. 1999) (receipt of a mid-range performance evaluation that is lower than an employee feels is warranted is not an adverse employment action sufficient to state a claim).
Although Plaintiff felt she deserved (and thus expected) the highest rating of "Outstanding," she received a rating of "Superior." Neeb had recommended the higher rating, but in the end Capt. Miller had the final authority and rated Plaintiff "Superior." Plaintiff's "Superior" rating is neither mid-range nor below average. On the contrary, a "Superior" rating at SPAWAR is considered a "very good rating." ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 451). Put simply, Plaintiff felt she deserved a higher rating and her supervisor disagreed. Under established Ninth Circuit precedent, average or better than average performance ratings do not constitute adverse employment actions. See Kortan, F.3d at 1112-1113. The employee's subjective expectations of receiving a higher rating do not change this rule.
Thus, because her performance rating does not constitute an adverse employment action, Plaintiff fails to establish her prima facie case for this claim. Accordingly, the Court GRANTS summary judgment against Plaintiff's gender discrimination claim based on her 2003 performance evaluation.
2. BECAUSE PLAINTIFF FAILS TO PRODUCE SUFFICIENT EVIDENCE TO ESTABLISH THAT DEFENDANT'S REASONS FOR INITIATING THE IG INVESTIGATION AND FACT-FINDING INQUIRY WERE PRETEXTUAL, DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM OF GENDER DISCRIMINATION
Plaintiff also claims that, because of her gender, Defendant initiated an IG investigation into her alleged conflict of interest and ordered a fact-finding inquiry into her alleged unprofessional conduct. ( Complaint, ¶ 35). Plaintiff contends that Defendant's reasons for investigating her activity were pretext for its discriminatory animus towards women. Id. Defendant argues that it had the right to perform this inquiry even though Plaintiff had recused herself and that her recusal did not obviate the need to investigate the allegations. ( Defendant's Reply at 7). Defendant asserts that Plaintiff has not shown, as she must, that these actions constituted adverse employment actions necessary to establish her prima facie case and that her evidence of gender discrimination is insufficient to show that Defendant's reasons for its employment actions were pretextual.
As with her first claim, Plaintiff must first establish a prima facie disparate treatment case. As discussed earlier, Plaintiff has satisfied the first two requirements. As for the final requirement, the Ninth Circuit has yet to address the question of whether mere initiation of an ethics investigation constitutes an adverse employment action sufficient for a plaintiff to establish a prima facie employment discrimination case. Because Plaintiff has failed to provide sufficient evidence that Defendant's reasons for initiating the investigation were mere pretext for its alleged discrimination against women, the Court need not decide whether initiation of an ethics investigation constitutes an adverse employment action.
Considering the evidence under the "burden shifting" analysis as articulated in McDonnell Douglas, once a Plaintiff meets his or her initial burden, a presumption of discrimination arises and the burden of production shifts to the defendant. McDonnell Douglas, 411 U.S. at 802. To rebut this presumption of discrimination, a defendant must articulate a legitimate, non-discriminatory reason for the challenged employment action.Id. If the defendant satisfies this burden the burden shifts back to the plaintiff who must come forward with evidence that the defendant's proffered non-discriminatory reason is pretextual. As with all employment discrimination claims, the ultimate burden of persuasion remains with the plaintiff.Burdine, 450 U.S. at 253.
Here, Defendant asserts that Scott Miller initiated the investigation because the initial facts indicated that it was a clear conflict of interest and such activity may have implicated criminal statutes. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 644). Scott Miller was unsure if the statues applied and needed to gather more facts. Id. Although not a requirement, Scott Miller asserts that the normal process would have been for Plaintiff to contact him to get guidance in such matters. Id. at 418. Neeb informed Scott Miller that Plaintiff had recused herself but because he did not know what the recusal said, he wanted someone else to "look into the situation." Id. This evidence is more than sufficient to establish a non-discriminatory reason for Defendant's initiation of the investigation and shifts the burden to Plaintiff to come forward with evidence that Defendant's proffered non-discriminatory reason is pretextual.
The only evidence of pretext Plaintiff offers is the assertion that instead of initiating an investigation, Miller should have asked Plaintiff or Neeb to show him the recusal email which would have been the "reasonable, rational thing to do." ( Defendant's Opposition at 20). Plaintiff also contends that because McDonald found that the allegations were unsubstantiated that the investigation itself was unnecessary. Id. None of this "evidence" demonstrates that Defendant's actions were undertaken because Plaintiff is a woman and fails to establish that Defendant's reasons for initiating the investigation were pretextual.
The facts show that Scott Miller was unaware of Plaintiff's email to Neeb until the investigation was complete. Id. Moreover, the adverse action in question is Defendant's initiation of the investigation — the investigation's ultimate finding is irrelevant to its initiation. Thus, Plaintiff's evidence is insufficient to establish that Defendant's articulated reasons for investigating Plaintiff's activities are pretextual. Thus, Defendant is entitled to summary judgment for this claim.
Plaintiff also argues that Defendant's fact-finding inquiry into allegations of her unprofessional conduct was undertaken because of her gender. Defendant contends that this was done because of specific complaints against her by coworkers. As with her claim regarding the IG investigation, the Court need not decide whether Defendant's conducting a fact-finding inquiry constitutes an adverse employment action because Plaintiff has failed to show that Defendant's reasons for initiating that inquiry were pretextual.
Defendant contends that Capt. Miller ordered Neeb to investigate Plaintiff's alleged unprofessional behavior because of official complaints against her. In November 2003 Capt. Miller was apprised of three allegations of Plaintiff's unprofessional behavior. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 649). The alleged behavior included using an abrasive tone and hanging up on a co-worker during a telephone conversation, leaving a "livid" voicemail for another and demonstrating abrasive conduct during an audit of her department.Id. at 665-60. Because Capt. Miller felt that Neeb had dealt with prior allegations about the Plaintiff in appropriately, she formally ordered Neeb to conduct a fact finding inquiry into the new allegations. Id. Defendant has articulated legitimate, non-discriminatory reasons for conducting the inquiry. Thus, the burden now shifts to the Plaintiff who must offer sufficient evidence to show that Defendant's reasons were pretextual.
Plaintiff argues that the inquiry was inappropriate because Neeb "had all the facts" before she started the investigation and the process was unusually "formal." Id. Plaintiff also contends that because Capt. Miller corresponded with and provided notes to the persons who complained about Plaintiff's behavior, that this proves she was biased against women when she ordered Neeb to conduct the inquiry. ( Plaintiff's Opposition at 21). Plaintiff also asserts that having a second-level supervisor conduct a fact-finding inquiry was highly unusual for a routine inquiry and that the perception of Plaintiff's behavior as unprofessional was due to the fact that one of the witnesses was biased against women. Id. Finally, Plaintiff offers Neeb's findings that each of the complaints was unsubstantiated. Id.
In response to Neeb's inquiry regarding Plaintiff's alleged unprofessional behavior, the witness said that he had "not been spoken to like that by a female in all his years on the job."Id.
Although Plaintiff offers several pieces of evidence in an attempt to establish that Defendant's reasons for the inquiry were pretextual, Plaintiff fails to carry her burden. Defendant has offered legitimate reasons for its actions. First, as Plaintiff's supervisor, Capt. Miller had a right and a duty to investigate allegations of unprofessional conduct by one of her subordinates. Second, Capt. Miller felt that Neeb hadn't addressed similar complaints sufficiently in the past, and because Plaintiff represented SPAWAR in Congressional inquires and as an audit liaison, she wanted the matter "properly addressed." ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 653).
Plaintiff fails to establish that any of Defendant's actions against Plaintiff were undertaken because of her gender. The fact that Neeb ultimately concluded in her final report that the allegations were unsubstantiated does not mean Capt. Miller was motivated by a discriminatory motive when she ordered the inquiry. The only evidence offered to support this proposition is Neeb's subjective views of gender bias which is insufficient to establish Defendant's pretext.
In light of these facts, the Court concludes that Plaintiff has fallen well short of carrying her McDonnell Douglas burden to establish that Defendant's reasons for initiating both the IG investigation and fact-finding inquiry against her were pretextual.
Accordingly, the Court GRANTS summary judgment against these disparate treatment claims.
3. BECAUSE PLAINTIFF FAILS TO PRODUCE SUFFICIENT EVIDENCE TO ESTABLISH THAT DEFENDANT'S REASONS FOR NOT PROMOTING PLAINTIFF WERE PRETEXTUAL, DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM OF GENDER DISCRIMINATION
Plaintiff contends that although she was the most qualified candidate for promotion to DP-IV, she was not selected for promotion because she was female. ( Complaint, ¶ 40). Defendant contends that although Plaintiff was nominated for promotion, she was not selected for promotion simply because she was not the nominating panel's first choice for recommendation to the Commanding Officer. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 377).
As with her other claims, Plaintiff must establish her prima facie case. As discussed earlier, she has satisfied the first two requirements. As for the third requirement, Defendant's failure to promote Plaintiff constitutes an adverse employment action as a matter of law. Nichols, F.3d at 877 (citingBurlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). Thus, Plaintiff has established a prima facie gender discrimination case and the Court must move on to McDonnell Douglas' burden-shifting analysis.
Defendant asserts that Plaintiff was not promoted because she was not the nominating panel's first choice, not because of a bias against women. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 377-378). Capt. Miller submitted her name and that of another candidate to the panel and Plaintiff was "fairly close to the top" of the list of candidates. ( Neeb Depo. at 142). These facts successfully shift the burden to Plaintiff to establish pretext. Plaintiff attempts to establish that Defendant's reasons are pretextu al by offering direct evidence of Defendant's discriminatory motivation. ( Plaintiff's Opposition at 15).
A plaintiff creates a triable issue of fact as to the actual motivation of the employer when the plaintiff offers a "very little" amount of direct evidence as to the employer's actual motive. Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). In employment discrimination cases, direct evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer. See e.g., Cordova v. State Farm Ins., 124 F.3d 1145, 1149 (9th Cir. 1997) (deeming "direct" evidence that the employer had referred to an employee other than the plaintiff as a "dumb Mexican").
Plaintiff offers as direct evidence the following statements by Capt. Miller to prove her "discriminatory animus towards women:" Capt. Miller's reference to female employees as "the girls" or "those women;" her reference to an employee's maternity leave as "baby leave;" and her remark to Plaintiff that she "had too many women" working in her department and she needed the name of a male to contact for his resume. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 353-354; Neeb Depo. at 153; Barajas Decl. at ¶ 9). Additionally, Plaintiff offers as direct evidence Capt. Miller's tone and body language that "came across as derogatory" to Neeb when she uttered the word "female" during a staff meeting. ( Plaintiff's Notice of Lodgment, Ex. C at 353-354).
Each of these statements pale in comparison to the statement inCordova, and are anything but "clearly sexist." These comments by Capt. Miller constitute stray remarks that were unconnected to the decisions at issue and do not establish pretext. See, e.g. Nesbit v. PepsiCo, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (finding that a stray remark was "uttered in an ambivalent manner and not tied directly" to plaintiff's termination); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) ("[S]tray remarks are insufficient to establish discrimination"). Moreover, Plaintiff's evidence regarding Capt. Miller's tone and body language not only lacks specificity but also falls well short of the "clearly sexist" standard. Thus, Plaintiff has failed to offer any direct evidence sufficient to establish a triable issue of fact as to the Defendant's motivation for not promoting Plaintiff.
Plaintiff also contends that she has provided sufficient circumstantial evidence to establish a triable issue of fact as to Defendant's actual motivation. When a plaintiff relies on circumstantial evidence to raise a genuine issue of material fact, that evidence must be "specific and substantial" to defeat the employer's motion for summary judgment. Coughlin, 413 F.3d at 1096 (citing Godwin, 150 F.3d at 1221).
Primarily, Plaintiff offers as circumstantial evidence the fact that Capt. Miller offered "different reasons at different times" for changing Plaintiff's 2003 performance rating but did not change the ratings of two other males whom she supervised to show that Defendant's actual motivation was a discriminatory one. ( Plaintiff's Opposition at 17; Neeb Depo. at 97; EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 363).
When an employer gives multiple reasons for its employment actions, those reasons are pretext only if they are inconsistent.Aragon v. Republic Silver State Disposal, 292 F.3d 654, 661-62 (9th Cir. 2002) (holding that pretext is not inferred from the fact that an employer had two, different, although consistent, reasons for firing an employee); and Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997) (holding that different justifications for an employment action is not sufficient to defeat summary judgment when the reasons are "not incompatible").
Capt. Miller told Neeb that she changed Plaintiff's rating because Plaintiff "was not outstanding." ( Neeb Depo. at 97). In her declaration, Capt. Miller cited Plaintiff's alleged abrasive emails and failure to keep the chain of command informed as reasons for changing Plaintiff's rating. ( Defendant's Lodgment of Exhibits, Ex. C at 362-365). Finally, at a DP-IV nomination meeting Capt. Miller said she changed Plaintiff's rating to compensate for the need to properly allocate and budget bonus points. ( Neeb Depo. at 138). In the instant case, Capt. Miller's reasons are not inconsistent: Capt. Miller's concern about point allocation and Plaintiff's alleged work problems may well have factored into her determination that Plaintiff was not outstanding. The fact that she gave different, possibly incomplete, reasons at different times may merely reflect the circumstances under which she answered these questions rather than an pretextual attempt to cover for her alleged discriminatory actions against women. Thus, Plaintiff's circumstantial evidence fails to meet the "specific and substantial" standard required to raise a genuine issue of material fact. Having offered insufficient direct and circumstantial evidence, Plaintiff has failed to establish Defendant's discriminatory motives when it did not select Plaintiff for promotion. Thus, as a matter of law, summary judgment is appropriate for this claim.
Accordingly, because Plaintiff has failed to submit evidence sufficient to establish a prima facie case or prove that Defendant's adverse employment actions were discriminating based on gender, the Court GRANTS summary judgment to Defendant on causes of action two, three and four as asserted under a disparate treatment theory under Title VII.
B. PLAINTIFF IS ENTITLED TO PRESENT HER FIRST AND FOURTH RETALIATION CLAIMS To A JURY
In her complaint, Plaintiff asserts that Defendant significantly changed her job duties by removing the CE function from her supervision. ( Complaint, ¶ 17). She contends that this reorganization was done in reprisal and retaliation for being a witness in Neeb's EEO complaint and for pursuing an EEO grievance of her own. Id. Plaintiff also contends that Defendant lowered her 2003 performance rating, initiated an ethics investigation and fact-finding inquiry into her activities and did not select her for promotion in retaliation for her participation in Neeb's EEO complaint. Id. at ¶¶ 17, 25, 35, 40.
1. PLAINTIFF IS ENTITLED TO PROCEED TO A JURY ON HER CLAIM THAT DEFENDANT REMOVED THE CE FUNCTION FROM HER JOB RESPONSIBILITIES IN RETALIATION FOR HER PROTECTED EEO ACTIVITY
Plaintiff claims that Defendant's realignment of the CE function without also realigning her was done in retaliation for her participation in Neeb's EEO complaint. Defendant contends that summary judgment is appropriate because Plaintiff cannot establish a prima facie case — specifically, that Plaintiff cannot establish that her EEO activity caused Defendant to take retaliatory action against her.
To succeed in a employment retaliation claim, a plaintiff must establish a prima facie case by demonstrating that (1) she was engaged in a protected activity; (2) that she suffered an adverse employment decision; and (3) that there was a causal link between her activity and the employment decision. Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997). Once a plaintiff has established a prima facie case, the McDonnell Douglas order and allocation of proof that governs disparate treatment claims also governs retaliation claims — the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Yartzoff, 809 F.2d 1371, 1375 (9th Cir. 1987). Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another discriminatory motive. McDonnell Douglas, 411 U.S. 792 at 805. See Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 784 (9th Cir. 1986). The ultimate burden of persuasion remains with the plaintiff. Burdine, 450 U.S. at 253. Thus, Defendant "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Miller, 797 F2d at 731 (quoting Burdine, 450 U.S. at 257).
Plaintiff has established a prima facie case for her retaliation claim regarding the reorganization of the CE function. First, Plaintiff was engaged in "protected activity." Under 42 U.S.C. § 2000e-3(a)'s "participation clause," an employer may not discriminate "against an employee. . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a) ( emphasis added). Plaintiff was serving as a witness in Neeb's Title VII EEO investigation when Defendant decided to realign the CE function. Thus, Plaintiff's participation in Neeb's complaint constitutes "protected activity" specifically contemplated by § 2000e-3 (a).
Plaintiff claims that when Defendant decided not to move her with the CE function during its realignment, she suffered an adverse employment action. Transfers of significant job duties are cognizable adverse employment actions under Title VII.Yartzoff v. Thomas, 809 F. 3d 1371, 1376 (9th Cir. 1987). Prior to the realignment, supervision of the CE function was one of Plaintiff's primary responsibilities. ( Lodgment of Exhibits, Ex. A at 19:6; 20:19-21). Following the realignment, the supervision and oversight of the CE program was transferred away from her. Construing the facts in the light most favorable to the Plaintiff, the realignment of the CE function constituted an adverse employment action, thus satisfying the second prong of Plaintiff's prima facie case.
The issue then becomes whether Plaintiff has produced enough evidence to warrant the inference that the realignment of the CE function was causally related to her protected activity. Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activity. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 730 (9th Cir. 1986).
Defendant contends that when Capt. Flynn made the decision to realign the CE function, he was not aware of Plaintiff's protected EEO activity. Defendant argues that the chronology of the events makes causation impossible because one cannot retaliate against someone for an action they have not yet taken.Cohen, 686 F.2d at 796 (stating that an employer's awareness is essential to establishing a causal link). However, Plaintiff has presented evidence that suggests Capt. Flynn knew or should have known about Plaintiff's EEO activity at the time he decided to move the CE function, as well as his inconsistent testimony regarding the realignment. Defendant has not produced sufficient undisputed evidence to establish, as a matter of law, that Capt. Flynn decided to realign the CE function without also moving Plaintiff before he learned about Plaintiff's protected activity. Plaintiff has therefore successfully raised an inference that her protected activity and the realignment of the CE function without her are causally connected and satisfies the third prong of her prima facie case.
Having established a prima facie case, the Court proceeds to the second step of McDonnell Douglas' burden-shifting analysis. Defendant has articulated a legitimate, non-retaliatory explanation for its decision. Specifically, Defendant argues that because Capt. Flynn's decision to move the CE function predated Plaintiffs protected activity, any inference of retaliation is negated. ( Defendant's Motion for Summary Judgment at 23). Defendant offers evidence that suggests that Capt. Flynn had expressed a desire to move the CE function under his direct supervision when he first assumed command in May 2002. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 373-85, 423-30, 491-92). On April 10, 2003 Flynn issued a memorandum directing that the CE function be made a separate division and report directly to him.Id. at 491-92. Capt. Flynn contends that he was not aware of Plaintiff's involvement in Neeb's EEO case until July 2003 when he was interviewed by the EEO counselor. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C at 375). This evidence provides a non-discriminatory reason sufficient to shift the burden back to Plaintiff.
Plaintiff correctly asserts that it is the decision not to move Plaintiff with the CE function and not the decision to move the CE function itself that is controlling and serves as the basis for her cause of action. Plaintiff has offered material facts that create a genuine issue as to Capt. Flynn's alleged lack of knowledge of Plaintiff's EEO activity.
In December 2002, Capt. Flynn spoke with Neeb about her complaint and expressed a desire to see it resolved through mediation. ( Plaintiff's Declaration, ¶ 10). Moreover, evidence shows that on September 13, 2002 Capt. Flynn was asked to move the CE function by one of Plaintiff's subordinates and his response to the inquiry was that it was operating effectively in its present organization and he was not inclined to move it. ( Plaintiff's Declaration, ¶ 4). This statement is inconsistent with Capt. Flynn's other statements about when he first thought about moving the CE function. Furthermore, on March 12, 2003 both his chief counsel Scott Miller and his Executive Officer, Capt. Miller, knew that Plaintiff was involved in Neeb's EEO action.See ( EEO Investigation Report Excerpts, Plaintiff's Lodgment of Exhibits, Ex. C at 357). A rational trier of fact could conclude that as head of the command's EEO program, Capt. Flynn was briefed, or at least had some knowledge of the EEO activity in his command. Capt. Flynn's credibility is an issue for the jury, not this Court. Accordingly, Defendant's motion for summary judgment on Plaintiff's first cause of action is DENIED.
2. PLAINTIFF FAILS TO ESTABLISH A PRIMA FACIE RETALIATION CASE BASED ON HER "SUPERIOR" PERFORMANCE RATING.
Plaintiff contends that Defendant changed her 2003 performance rating from "Outstanding" to a lower grade of "Superior" in retaliation for her participation in Neeb's EEO claim. Defendant counters that Plaintiff has not established a prima facie case for this claim and even if she can, Defendant offers other non-discriminatory reasons for her lower performance rating. ( Reply at 4).
Although Plaintiff was engaged in protected activity, thus satisfying the first requirement of her prima facie case, her receipt of a "Superior" performance rating rather than an "Outstanding" does not constitute an adverse employment action as a matter of law. As discussed earlier, standing alone, an average or better performance evaluation does not constitute an adverse employment action. Kortan, F.3d at 1112-1113. Since Plaintiff has failed to establish that Defendant's action constituted an adverse employment action, she fails to establish a prima facie case making any burden shifting analysis unnecessary. Thus, because Plaintiff cannot establish her prima facie case, summary judgment is appropriate and the Court GRANTS Defendant's motion for summary judgment on this claim.
3. BECAUSE PLAINTIFF FAILS TO PRODUCE SUFFICIENT EVIDENCE TO ESTABLISH THAT DEFENDANT'S REASONS FOR INITIATING THE IG INVESTIGATION AND THE FACT-FINDING INQUIRY WERE PRETEXTUAL, DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM OF RETALIATION
Plaintiff contends that Defendant retaliated against her for her EEO activity by initiating an investigation and fact-finding inquiry. ( Complaint, ¶ 35). Defendant argues that it took the action because it had real concerns about Plaintiff's potential conflict of interest and because it had received official complaints of her alleged unprofessional conduct.
As with Plaintiff's similar gender discrimination claim discussed above, the Court need not decide whether Plaintiff has established that initiation of an IG investigation or a fact finding inquiry constitutes an adverse employment action because even if Plaintiff can establish a prima facie retaliation case, she has not established that Defendant's proffered reasons are pretextual. Defendant contends that as Plaintiff's supervisor Capt. Miller had a responsibility to investigate allegations of unprofessional conduct just as Scott Miller, serving in his role as SPAWAR's Ethics Officer, had a right and duty to investigate allegations of Plaintiff's ethics violations. Although Plaintiff was engaged in protected activity at the time these investigations took place, employers "should not be paralyzed into inaction if employees are able to rely on Title VII activity as a "get out of jail free" card to avoid consequences of job misconduct) Brooks v. City of San Mateo, 229, F3d 917, 928 (9th Cir. 2000).
As discussed earlier, Plaintiff's evidence to counter this presumption of non-discrimination is insufficient. Plaintiff merely argues that the investigation and fact-finding inquiry were not necessary because their final reports ultimately concluded that the allegations were unsubstantiated. Moreover, Plaintiff's assertions that these investigations could have been avoided had certain parties acted differently does not make Defendant's reasons for the investigations pretextual. Accordingly, the Court GRANTS summary judgment on these claims based on a retaliation theory.
4. PLAINTIFF HAS ESTABLISHED AN ISSUE OF MATERIAL FACT REGARDING HER FAILURE TO PROMOTE RETALIATION CLAIM
Finally, Plaintiff contends that Defendant's failure to promote her to DP-IV was in retaliation for her participation in Neeb's Title VII investigation. ( Complaint, ¶ 40). Defendant contends that it did not retaliate against her because the members who were on the promotion panel did not know she was involved in the EEO activity and that the other candidate was the more qualified.
As an initial matter, Defendant claims that this cause of action is time-barred because Plaintiff failed to include an allegation of promotion in her administrative complaint. However, Plaintiff has offered evidence that she did not become aware of why she was not promoted until after September 16, 2004, when the Report of Investigation containing what occurred at the DP-IV nomination meeting was mailed to her. This was well after the deadline for administrative action. Thus, Plaintiff was prevented from filing a timely complaint. Furthermore, the Court finds that Plaintiff's claim of failing to promote is "like or reasonably related to" her other EEO claims. Weighing this evidence in the light most favorable to the Plaintiff, as the Court must at the summary judgment stage, the Court finds that Plaintiff is not time barred from bringing this claim.
Defendant has requested leave to identify additional witnesses, produce additional documents and file another summary judgment motion against this claim in the event the Court finds that this claim is not time-barred. As the Court has ruled that this claim is not time-barred, Defendant may request leave to engage in additional discovery and file another summary judgment motion against this claim. However, the Court declines to rule on the issue at this juncture — if Defendant wishes to pursue the issue it may file a regularly noticed motion to amend this Court's scheduling order.
As with her other retaliation claims, Plaintiff must establish a prima facie case. Plaintiff easily satisfies the first two requirements for establishing her prima facie case: First, Plaintiff was involved in a protected activity at the time of the alleged retaliatory discrimination — she was serving as a witness in Neeb's EEO complaint against Defendant. Second, and as addressed above in her disparate treatment claim, Defendant's failure to promote Plaintiff constitutes an adverse employment action as a matter of law. Nichols, F.3d at 877 (citingBurlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). At issue is whether Plaintiff has produced enough evidence to warrant the inference that Defendant's failure to promote her was causally related to her protected activity. The Court finds that it was.
Plaintiff argues that Capt. Miller lowered her 2003 performance rating from "Outstanding" to "Superior" because Plaintiff had filed EEO charges against her and that this lower rating had a direct impact on her potential for the DP-IV promotion. ( Plaintiff's Opposition at 18-19). Defendant contends that it did not promote Plaintiff simply because she was not the promotion panel's first choice for the position. ( EEO Investigation Report Excerpts, Lodgment of Exhibits, Ex. C. at 377). In support of this theory, Defendant offers the fact that the promotion board was made up mostly of individuals who have never been accused of discriminating against Plaintiff and had no knowledge of her EEO activity. Defendant argues that any nexus between Plaintiff's 2003 rating and her promotion is tangential and speculative and that Plaintiff fails to offer "competent evidence" to prove this assertion. Id.
Defendant is wrong.
Plaintiff offers material evidence to establish this proposition. First, Neeb's affidavit testimony asserts that Capt. Miller's lowering of Plaintiff's rating to Superior "affected [Plaintiff's] potential DP-IV promotion." ( EEO Investigation Report Excerpts, Plaintiff's Lodgment of Exhibits, Ex. C at 332). Neeb was Plaintiff's first line supervisor, and would have sufficient knowledge about the nomination and promotion process to offer such an opinion. Plaintiff also offers evidence that the rating caused at least some confusion among the nomination board members who expressed concern that a rating of Superior seemed inconsistent with Plaintiff's summary of accomplishments and job potential. ( EEO Investigation Report Excerpts, Plaintiff's Lodgment of Exhibits, Ex. C at 332). Additionally, since Plaintiff's 2003 rating was lower than the previous two years, a reasonable juror could find that the nomination board saw this as the beginning of a declining performance trend and as a result, selected another candidate who had a similar rating that year as their number one nominee.
Defendant contends that this evidence is inadmissible hearsay. ( Reply at 4). However, it appears that this evidence may fall within FRE 801(d)(2)'s "party admission" hearsay exception. While FRCP Rule 56(e) mandates that all evidence for summary judgment be admissible, the substance for such evidence is more important that the form. At the summary judgment stage, the Court does not focus on the admissibility of the evidence's form. Instead, the Court focuses on the admissibility of its contents. Block v. City of Los Angeles, 253 F.3d 410, 418-419 (9th Cir. 2001).
Moreover, the fact that Capt. Miller changed Plaintiff's rating either the day of or the day after she became aware of Plaintiff's EEO claim against her is highly suspicious. "Temporal proximity" alone is insufficient to establish a defendant's pretext. See Manatt v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003). However, in addition to the timing of Capt. Miller's actions, Plaintiff offers evidence from which a reasonable juror could find that Defendant was acting out of retaliation. Specifically, the evidence suggests that Capt. Miller had an adversarial and acrimonious relationship with Plaintiff from at least May 2002 until August 2003. ( EEO Investigation Report Excerpts, Plaintiff's Lodgment of Exhibits, Ex. C at 379). Additionally, Capt. Miller and Neeb agreed that Plaintiff would receive a rating of "Outstanding" a few days earlier. Finally, the database containing the final ratings was scheduled to be closed on July 21, 2003 yet Capt. Miller changed Plaintiff's rating at some point after that.
Defendant offers an explanation for why Capt. Miller had access to the database contained in Capt. Miller's Supplemental Declaration. The Court declines to consider this evidence because it is untimely. See Lujan v. National Wildlife Federation, 497 U.S. 871, 895 (1990).
Under McDonnell Douglas' burden-shifting analysis, Plaintiff has successfully established a presumption of discrimination which Defendant must overcome. Defendant's evidence to rebut this presumption comes from Capt. Miller's assertion that Plaintiff was "not outstanding" and her concerns about her professional conduct. Defendant has carried this burden.
However, based on Plaintiff's evidence, the Court concludes that there is an issue of material fact from which a reasonable juror could find that Capt. Miller entered the database and changed Plaintiff's 2003 performance rating in retaliation against Plaintiff's EEO activity and that rating adversely affected her candidacy for promotion to DP-IV. Drawing all inferences from these facts in favor of Plaintiff, as the Court must on this summary judgment motion, it is clear that Plaintiff has presented a triable issue of material fact regarding her fourth cause of action. The proximity between Capt. Miller learning of Plaintiff's EEO activity as well as the circumstances surrounding her changing Plaintiff's rating suggest that Capt. Miller may have considered Plaintiff's EEO claim when she changed the performance rating. Accordingly, Defendant's motion for summary judgment on Plaintiff's third and fourth causes of action must be DENIED.
IV. CONCLUSION AND ORDER
In light of the forgoing, the Court GRANTS Defendant's summary judgment motion for Plaintiff's second, third, and fourth cause of action under a disparate treatment theory and Plaintiff's second and third causes of action under a retaliation theory. The Court DENIES Defendant's motion for summary judgment for Plaintiff's first and fourth causes of action under a retaliation theory.
IT IS SO ORDERED.