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finding that certain incidents are not part of the same work environment where "[the plaintiff] admits that she had entirely new supervisors and co-workers at the Richmond facility . . . she does not assert any links between either the personnel or the events at the Richmond and Oakland facilities other than the fact that both are run by the postal service"
Summary of this case from Caldwell v. Boeing Co.Opinion
No C-01-1363 VRW
February 13, 2003
ORDER
Before the court are plaintiff's motions for entry of default and default judgment against one of the defendants and defendants' motion for summary judgment. Plaintiff Bessie Fairley commenced this action on April 6, 2001, alleging various employment discrimination-related claims. See Compl (Doc #1). She seeks entry of default and moves for default judgment against defendant Cleother Willis. See Docs ##24, 27. Defendant John Potter, the postmaster general, opposes these motions on behalf of Willis. The postmaster also moves for summary judgment on all of Fairley's claims. See Doc #34. For the reasons set forth below, the court DENIES Fairley's motions for entry of default and default judgment against Willis (Docs ##24, 27) and GRANTS the postmaster's motion for summary judgment on Fairley's Title VII claims (Doc #34)
I
The following factual summary comes from the parties' submissions. In December 1996, Fairley began work for the United States Postal Service at the Seventh Street Oakland main post office as a "Christmas casual," a type of casual employee. See Fairley Depo (Doc #36, Exh A), at 15:5-15. As a casual employee, Fairley was hired for 90-day appointments at a time. Id at 16:4-5. Fairley was appointed to numerous 90-day appointments and worked essentially continuously until May 2000. At the time of the events giving rise to this case, Fairley worked on the loading dock as a mail handler. See Fairley Depo (Doc #36, Exh A), at 18:10-19. Her job was to assemble mail into large containers, which were then loaded on mail delivery trucks. Id.
Fairley states that on April 27, 2000, Willis touched one of her breasts and commented that he could suck on them all night. See Fairley Depo (Doc #36, Exh A), at 38:20-39:1. Fairley claims the incident pushed her to tears, and she promptly reported that night what had happened to her supervisor, Garnett Oliver. Id at 39:5-9. Oliver advised that she speak to Dan Harris, another supervisor. Id at 39:12-17. Harris, Oliver and Vontina Swygert, Willis's direct supervisor, investigated the incident that evening, interviewing both Fairley and Willis. Id. After Willis denied Fairley's charges, Swygert and Oliver asked them for written statements. See Swygert Depo (Doc #36, Exh B), at 40:11-13; Fairley Depo (Doc #36, Exh A), at 42:11-18. Over the next several days, Swygert continued to investigate Fairley's allegations, including interviewing all witnesses named by Fairley. See Swygert Depo (Doc #36, Exh B), at 50:11-15.
During the investigation, Fairley alleged that Willis had previously made offensive comments to her as early as 1999. See Fairley Depo (Doc #41, Exh A), at 47:15-18. She claimed Willis had looked at and talked to her "nasty" and asked whether she had "any red panties" and "what color panties" she was wearing. Id. Fairley admits, however, not reporting these statements to anyone prior to the investigation. See id at 47:22-23.
On May 3, 2000, Swygert completed and submitted the results of her investigation. See Swygert Depo (Doc #36, Exh B), at 47:6-10. Her investigation was "inconclusive." Id at 37-10-38:14. Swygert ultimately determined that there was insufficient evidence to take disciplinary action against Willis. See id. In so concluding, Swygert found that when Fairley initially complained, she did not appear upset or stressed. See Swygert Depo (Doc #36, Exh B), at 27:21-28:8; 32:17-25. In addition, there was no reason for Fairley to have been in Willis's work area. See id at 36:11-18, 39:6-23. Changes in Fairley's own story also cast doubt on her credibility: According to Swygert's investigation, Fairley had originally claimed the incident occurred at 12:50am. See Swygert Depo (Doc #36, Exh B), Exh 1, Atts B, H. But when it became apparent that Willis had been on break at that time, Fairley claimed the incident occurred at 2:50am instead. See id. Moreover, none of the witnesses identified by Fairley confirmed her account. See id at 46:17-21. On the other hand, neither Swygert nor any other supervisor recalled ever receiving a complaint of harassment against Willis. See id at 42:25-43:8; 43:19-44:16.
Even though Swygert determined there was insufficient evidence to discipline Willis more harshly, the postal service nevertheless took action by warning Willis to stay out of Fairley's work area and by making sure that Fairley was not required to come into contact with Willis for any reason. See Fairley Depo (Doc #36, Exh A), at 43:15-44:6. Fairley was also instructed to stay away from Willis. See id at 44:10-13.
After Swygert completed her investigation, another employee, Francine Coleman, submitted a written statement on May 4, 2000, that Willis had made "distasteful comments" on several occasions to her and Fairley. See Coleman Decl (Doc #36), Exh B, at Exh 1, Att G. In particular, Willis allegedly said, "Why-don't you let me come with you; [sic] You didn't say that last night; Don't cover [your breasts] up." Id. Coleman wrote, "Perhaps the most irritating thing is when [Willis] * * * says: All you need is a young stud" while "look[ing at them] up and down like [they were] a piece of meat." Id. In response, Swygert had a discussion with Willis regarding Coleman's allegations but did not pursue further action in relation to her concluded investigation. See Swygert Depo (Doc #41, Exh B), at 61:23-63:8.
Approximately two weeks after Coleman made her statement, the postal service chose not to appoint Fairley to another 90-day casual appointment after her term ended on May 18, 2000. See Fairley Depo (Doc #41 Exh A), at 15:16-19. Fairley does not know who made the decision, but the postal service explains that at the time it simply had no need for as many workers. Fairley admits that no other casual worker assigned to her supervisor was appointed to another term in May 2000. See Fairley Depo (Doc #36, Exh A), at 36:6-20, 37:1-16.
On May 23, 2000, Fairley sought EEO counseling and subsequently filed a formal EEO complaint on August 22, 2000, based on the breast-touching incident and verbal remarks previously made by Willis.
Two days after Fairley commenced EEO counseling, on May 25, 2000, another co-worker, Ginger Dillahunty came forward with a statement that Willis had also made inappropriate remarks to her and Fairley "on numerous occasions from about June 1999 through * * * November 1999." See Dillahunty Decl (Doc #39), ¶¶ 4-5; Pl's Opp (Doc #39), at 3:17-18. When Dillahunty came forward with this statement, she was allegedly told that she should have complained in a more timely manner. Dellahunty Decl (Doc #39), ¶ 7.
The EEO investigator, Leon Nelson, determined that postal officials had responded adequately to Fairley's complaint. In so doing, however, he did not investigate complaints by Coleman or Dillahunty made after the postal service's investigation was complete. Fairley's attorney requested a final agency decision, which was issued on January 25, 2001. See Compl (Doc #1), Exh A. Fairley did not at any time, however, initiate an administrative process based on a tort theory of battery or sexual battery. See Breault Decl (Doc #34, Exh B).
Although the EEO investigative report and final agency decision focus exclusively on Willis's alleged conduct, Fairley also identifies in her moving papers several other instances of harassment by three additional co-workers other than Willis. First, Fairley claims that between August and December 1999, another co-worker, Sam Santos, had called her a "pussy" and "cunt" and that postal officials failed to respond when she complained to several supervisors. See Fairley Depo (Doc #41, Exh A), at 51:20-53:24.
Another co-worker, "Chris," with whom Fairley has not worked since 1998 and whose last name she is unable to remember, allegedly showed explicit nude photographs of himself to her and other co-workers. See id at 56:13-15. Fairley states she complained to a supervisor who apparently did not believe her. See id at 57:7-18.
Finally, Fairley asserts that a third co-worker, Sam Tobias, had frequently called her and another co-worker, Betty Johnson, a "pussy," "cunt" and "slut" between August and October 1999. See id at 58:15-60:6; Johnson Depo (Doc #41, Exh D), 28:3 When she and Johnson reported the conduct, their supervisors at first failed to take action. Subsequently, in spring 2000, after they approached another supervisor, Tobias was told he could not speak to other co-workers in that manner and was warned that failure to comply would result in termination of his employment. See Davis Decl (Doc #41, Exh F), 23:1-24:15.
In the meantime, on August 23, 2000, Fairley was appointed to a 90-day casual appointment at the Richmond bulk mail center, where she worked until she resigned on January 19, 2001, allegedly due to the postal service's constructive termination. See Fairly Depo (Doc #41, Exh A), at 16:8-25. Fairley filed a second EEO complaint on March 2, 2001, alleging the postal service continued to subject her to a hostile work environment at the Richmond mail center when supervisors there failed to take adequate measures in response to another co-worker's inappropriate remark. See Final Agency Dec (Doc #50); Fairley Affidavit (Doc #41, Exh H) This complaint was dismissed on June 11, 2001. because the agency concluded that Fairley's second complaint raised the same issues pending in this litigation, which was commenced on April 6, 2001. See id; Compl (Doc #1). Following the agency's final decision on her second EEO complaint, Fairley did not amend her complaint in the present action to include additional allegations contained in her second EEO complaint.
II
The court first considers Fairley's motions for entry of default and for default judgment against Willis. Fairley's complaint alleges that "Willis at all times herein mentioned was acting within the course and scope of this [sic] duties as an employee of [the postmaster.]" Compl (Doc #1), ¶ 8. Hence, Willis is being sued in an official capacity. See Mitchell v. Los Angeles Comm College Dist, 861 F.2d 198, 201-02 (9th Cir 1988)
FRCP 4(i) governs service of process on employees of the United States sued in their official capacity. To effect service, copies of the summons and complaint must be served on the United States in the manner prescribed by FRCP 4(i)(1) and sent by registered or certified mail to the employee. See FRCP 4(i)(2)(A). According to Fairley's proof of service, she left copies of the service papers with an employee relations representative at Willis's workplace and mailed another set to Willis via first-class mail, which is not an acceptable means of service under FRCP 4(i)(1). See Doc #26. While Fairley provides certified mail receipts as to service on the United States Attorney and Attorney General, she does not provide such proof as to Willis. On the record before the court, because it does not appear that Willis has been properly served, there is no basis for the court to enter default judgment against Willis.
Accordingly, Fairley's motion for entry of default is DENIED. Because the court declines to enter default, the court also DENIES Fairley's application for default judgment.
Notably, the postal service proceeds on the presumption that Fairley has sued Willis in his individual capacity, notwithstanding the plain language of the complaint as just described. Even if the court were to assume that Willis is being sued in his individual capacity, entry of default would be improper because a person sued in an individual capacity for acts which occurred in connection with government employment has 60 to respond before default may be entered. See FRCP 12(a)(3)(B).
In this case, according to Fairley's amended proof of service (Doc #26), copies of the process papers were left with an employee relations representative at Willis's workplace and were mailed to Willis on July 2, 2002. Under California law, assuming the papers were properly left with the employee relations representative, a question the court does not address here, service on Willis is deemed complete as of July 12, 2002, the tenth day after mailing. See Cal CCP § 415.20. Willis moved to dismiss on August 21, 2002, within the sixty day response period. See Doc #28. Accordingly, even if Willis were sued in an individual capacity, entry of default would be unwarranted.
III
In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. The burden of establishing that there is no genuine issue of material fact lies with the moving party.Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)
The evidence presented by the nonmovant "is to believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 US at 255. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id at 249.
A
The court first considers defendants' arguments, made in connection with their summary judgment motion, that the court lacks subject matter jurisdiction over all of Fairley's tort claims because she has failed to exhaust her administrative remedies, as required by the Federal Tort Claims Act (FTCA). "Without jurisdiction the court cannot proceed at all in any cause." Steel Co v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Ex Parte McCardle, 7 Wall 506, 514 (1868)). "The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States' and is "inflexible and without exception.'" Id at 94-95 (quotingMansfield, C LMR Co v. Swan, 111 U.S. 379, 382 (1884))
The FTCA provides a cause of action against the United States for injuries caused by the tortious activity of a federal employee when the employee was "acting within the scope of his office or employment." 28 U.S.C. § 1346 (b)(1). The Federal Employees Liability Reform and Tort Compensation Act, more commonly known as the Westfall Act, amended the FTCA by immunizing government employees for negligent and wrongful acts committed within the scope of their employment. See 28 U.S.C. § 2679 (b)(1); Clamor v. United States, 240 F.3d 1215, 1219 (9th Cir 2001). Even if a plaintiff commences suit against a federal employee in an individual capacity, the Attorney General may certify that the defendant employee was acting within the scope of his employment at the time of the incident out of which the claim arose. Upon this certification, the civil action "shall be deemed an action against the United States * * * and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679 (d)(1)
As noted earlier, the complaint alleges that Willis acted at all times "within the course and scope of [his] duties [as] a government employee," id, ¶ 8, and the postmaster has certified pursuant to 28 U.S.C. § 2679 (d)(1) that Willis was acting within the scope of his employment, Doc #29. Fairley does not dispute the certification. Her tort claims against Willis are in effect claims against the United States.
The FTCA is a limited waiver of the federal government's sovereign immunity for certain torts. See 28 U.S.C. § 2671 et seq. The FTCA requires exhaustion of administrative remedies before suit can be filed. See McNeil v. United States, 508 U.S. 106, 113 (1993) In particular, the FTCA states:
An action shall not be instituted upon a claim against the United States for money damages for injury * * * or personal injury * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing * * * The failure of an agency to make final disposition of a claim within six months after it is filed shall * * * be deemed a final denial of the claim * * *28 U.S.C. § 2675 (a). "The statutory procedure is clear." Caton v. United States, 495 F.2d 635, 638 (9th Cir 1974). This claim requirement is jurisdictional in nature and cannot be waived. . . Jerves v. United States, 966 F.2d 517, 519 (9th Cir 1992)
While Fairley filed a complaint of sexual harassment with the postal service, she has not filed a claim seeking compensation for sexual battery or intentional infliction of emotional distress. While the postal service investigated factual allegations that Fairley was the target of unwelcome touching and distasteful comments, Compl (Doc #1), Exh A, at 1, nothing in the final agency decision, which is attached to the complaint, mentions or discusses any tort claims separate from her allegation of sexual harassment. Nor does Fairley's EEO complaint, which the parties supplied following the hearing on this matter, allege any tort claims. See EEO Compl (Doc #52). In addition, the postal service provides evidence that Fairley has not filed any administrative tort claims with the postal service. See Breault Decl (Doc #34, Exh B).
Fairley does not dispute that she has not filed any administrative tort claims. Instead, she argues (1) that the FTCA does not apply to her tort claims and (2) that her EEOC complaint suffices to satisfy the exhaustion of administrative remedies requirement of the FTCA.
In support of her first argument, Fairley relies on Sommatino v. United States, 255 F.3d 704 (9th Cir 2001) and Arnold v. United States, 816 F.2d 1306 (9th Cir 1987). Her reliance on these cases is mistaken, however, because both cases actually illustrate that a plaintiff must first comply with the administrative requirements of FTCA before bringing suit. In Sommatino, the plaintiff had complied with the filing requirements of the FTCA before commencing her action in district court. 255 F.3d at 706-07. In addition, Arnold was decided before passage of the Westfall Act. At the time Arnold was decided, the FTCA did not serve as the exclusive remedy for these claims, and plaintiffs could maintain tort actions against a government official separate from the auspices of the FTCA. But the following year, Congress passed the Westfall Act, Pub L 100-694, which immunized government officials for acts committed within the scope of their employment and essentially made the FTCA the exclusive remedy for such claims. See 28 U.S.C. § 2679; House Rpt No 100-700, published at 1998 USCCAN 5945. Because Willis is being sued for acts committed within the scope of his employment, Fairley must comply with the FTCA's administrative exhaustion requirement. See Compl (Doc #1), ¶ 8; Gov't Section 2679 Certification (Doc #29).
Fairley's second argument, that she may maintain a separate tort action in spite of the FTCA by virtue of exhausting her administrative remedies under Title VII, is also mistaken. First, as noted above, Fairley's EEOC complaint cannot be said to serve as notice of her tort claims. Second, regardless whether Fairley's Title VII claim may support recovery for damages resulting from emotional distress, it is clear she may not allege and recover separately for tort claims without first complying with the FTCA's mandatory administrative procedures.
As the Supreme Court noted, "[e]very premature filing of an action under the FTCA imposes some burden on the judicial system and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims." McNeil, 508 US at 112. As a result, a prematurely commenced action is to be dismissed for lack of subject matter jurisdiction. Id at 113; Jerves, 966 F.2d at 519;Caton, 495 F.2d at 638-39.
Because Fairley seeks recovery for torts allegedly committed by United States employees within the scope of their employment, she must first comply with the administrative procedures of the FTCA before commencing suit on those claims. Her failure to do so here requires the court to GRANT defendants' motion for summary judgment on Fairley's tort claims for lack of subject matter jurisdiction.
Because the court has determined that it lacks jurisdiction over Fairley's tort claims, the court declines at this juncture to consider Willis's arguments that Title VII provides the exclusive remedy for the allegations in the complaint.
B
The court next turns to Fairley's remaining claims for sexual harassment and retaliation, both of which are prohibited by Title VII. At the outset, the court considers whether Fairley's complaint alleges sexual harassment against Willis, in addition to the postmaster, and if so, whether such a claim is sustainable as a matter of law. Unlike Fairley's claim of sexual battery, her claim for sexual harassment is not captioned specifically against Willis. Nevertheless, the complaint states that "defendants, and each of them, subjected plaintiff to constant sexual harassment (hostile environment)." Id, ¶ 27. Accordingly, for the purposes of the pending motions, the court assumes that Fairley alleges sexual harassment against Willis.
Under Title VII, employers may be strictly liable for sexual harassment based on the actions of supervisory employees. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Alternatively, employers may be liable for negligence by failing to take proper remedial measures when informed of objectionable actions by non-supervisory employees. SeeLittle v. Windermere Relocation. Inc, 301 F.3d 958, 968 (9th Cir 2002). But co-workers who are not supervisors may not be sued under Title VII. See Miller v. Maxwell's Int'l Inc, 991 F.2d 583, 587-88 (9th Cir 1993) Here, Willis is not alleged to be a supervisor in the complaint; indeed, he is described merely as a "co-worker." Compl (Doc #1), ¶ 17. Accordingly, insofar as Fairley's complaint seeks to state a sexual harassment claim against Willis, it would be barred. In any event, at the hearing on this motion, Fairley represented to the court that she was not suing Willis for sexual harassment in his official capacity. Thus, the court GRANTS summary judgment on Fairley's sexual harassment claim to the extent it is asserted against Willis as an individual.
This leaves Fairley's claims of discrimination and retaliation under Title VII against the postmaster.
1
Fairley's discrimination claim fails as a matter of law because even if the court assumes that Fairley's co-workers subjected her to harassment severe enough to support a hostile work environment claim, there is no genuine issue concerning the adequacy of the postal service's subsequent investigation and actions. The postal service's failure to ratify the conduct complained of is fatal to Fairley's claim.
Under Title VII of the Civil Rights Act of 1964, it is unlawful for "an employer * * * to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc, 510 U.S. 17, 21 (1993)
If the conduct at issue is "not severe or pervasive enough to create an objectively hostile or abusive work environment[,] an environment that a reasonable person would find hostile or abusive," then no violation has occurred. Id at 21-22. "[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances." Id at 23.
[A]n isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship. * * * [I]f the employer takes appropriate corrective action, it will not have ratified the conduct. In such circumstances, it becomes difficult to say that a reasonable victim would feel that the terms and conditions of her employment have changed as a result of the misconduct.Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir 2000)
Swenson v. Potter, 271 F.3d 1184 (9th Cir 2001), is particularly instructive in this case. Swenson involved allegations of sexual harassment by the postal service stemming from co-worker misconduct and the postal service' s alleged failure to conduct an adequate investigation or take sufficient remedial measures to put an end to the harassment. The plaintiff in Swenson faulted the postal service for flaws in its investigation, notably its failure to inquire into or interview any third-party witnesses. Id at 1207. A jury found in favor of plaintiff, but the Ninth Circuit reversed the jury's verdict, finding that the postal service, as a matter of law, was not liable because it had taken sufficient action in response to the plaintiff's allegations:
Where, as here, the employer takes prompt steps to stop the harassment, liability cannot be premised on perceived inadequacies in the investigation.
Id at 1198.
In so holding, the Ninth Circuit found that the alleged deficiencies in the investigation, so long as they were not allegedly the result of a "design to reach a predetermined result," ultimately did not matter. Id at 1197, 1197 n15.
Even assuming that the investigation was less than perfect, the Postal Service nevertheless took prompt action to remedy the situation. The harassment stopped. The only possible consequence of a better investigation could have been to make out a stronger case for disciplining [the alleged harasser]. But the purpose of Title VII is remedial — avoiding and preventing discrimination — rather than punitive.
Id at 1197.
In the case at bar, Fairley's supervisors launched an immediate investigation, as in Swenson, asking for written statements from both sides. In both cases, the postal service immediately separated the two employees directly involved, warned the alleged harassers regarding inappropriate behavior and ordered them to stay away from the victims.Swenson, 271 F.3d at 1192. In both cases, investigators allegedly failed to explore all pertinent avenues and failed to find sufficient evidence to take disciplinary action. But even assuming all of Fairley's allegations are true, the investigation into Fairley's claim was completed in a much more expeditious and complete fashion. Instead of months, the investigation here was completed within days. In addition, Swygert interviewed several co-workers and witnesses identified by Fairley. See Swenson, 271 F.3d at 1207 (investigator did not interview any co-workers and investigation took over four months to complete) (W Fletcher, J, dissenting). In light of Swenson, the court finds that the postal service cannot as a matter of law be liable given its response to Fairley's complaint concerning Willis.
Fairley asserts that Swygert "knowingly concealed the fact that defendant Willis had sexually harassed" Coleman and Dillahunty. See Pl Opp (Doc #38), at 4. But Fairley presents no evidence to support her conclusory allegation; she shows only that Swygert failed to follow up properly in her investigation, which had already been concluded. AsSwenson holds, perceived deficiencies in an investigation cannot support a hostile work environment claim if the employer quickly takes action to prevent further harassment from occurring. Here, there is no dispute that the postal service took actions essentially identical to the one inSwenson in preventing further harassment pending an investigation. Nor does Fairley allege that Willis continued to harass her after he was warned to stay out of her work area.
Furthermore, Fairley may not base her discrimination claim, at least in these proceedings, on the postal service's alleged failure to respond to her (and others') reports of sexual harassment by other co-workers prior to April 27, 2000. In general, a victim of sexual harassment must commence the pursuit of administrative remedies within 300 days of the discriminatory conduct. In the context of a hostile work environment claim:
It does not matter * * * that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability.National R R Passenger Corp, 122 S.Ct 2061, 2074 (9th Cir 2002). As is clear from the quoted passage, the act allegedly occurring within the filing period must be actionable. Id at 2076. Because the court has found that the postal service's response to Fairley's complaint regarding Willis's conduct is not actionable, the court may not consider other alleged incidents that occurred prior to her EEOC complaint to support a hostile work environment practice.
Moreover, the alleged failures of the postal service to respond to her earlier complaints are not properly before the court. To establish federal subject matter jurisdiction, Fairley is required to exhaust her administrative remedies before seeking adjudication of her Title VII claim. See 42 U.S.C. § 2000e-5 (b); B K B v. Maui Police Dept, 276 F.3d 1091, 1099 (9th Cir 2002).
Here, Fairley has not pursued her administrative remedies regarding these failures. See Final Agency Decision (Doc #1, Exh A). Nor does Fairley dispute that she did not exhaust administrative procedures on these claims. Instead, she argues that because they are part of a continuing prohibited practice, they may be considered. But as explained above, while exhaustion of administrative remedies for previous discriminatory acts is not required in order for the court to consider those acts in connection with a continuing practice claim, Fairley must present an actionable claim which is part of the alleged practice and meets pertinent timeliness and exhaustion requirements. Because the court finds that the only claim she has administratively exhausted is not actionable, the other incidents cannot be sustained as part of the same alleged practice.
Finally, Fairley's allegations concerning her treatment at the Richmond mail center are insufficient to rescue Fairley from summary judgment. As earlier noted, Fairley filed her second EEO complaint concerning the Richmond mail center one month before commencing the present case. The agency issued its final decision on Fairley's second EEO complaint on June 11, 2001. But Fairley failed to file suit within the relevant time period following the agency's second final decision. See 29 C.F.R. § 1601.28. To the extent Fairley attempts to rely on the present action to assert claims stemming from events at the Richmond facility, that is also unavailing, as Fairley failed to amend her complaint to include allegations concerning her treatment at Richmond on a timely basis. See id.
Moreover, insofar as Fairley attempts to allege that events in Richmond constitute part of a single continuing violation, the court notes that Fairley's own submissions to the court bar application of the doctrine. Under the continuing violation doctrine, events otherwise time-barred may be considered as a basis for a claim "so long as those events are part of an ongoing unlawful employment practice." Draper v. Coeur Rochester, Inc, 147 F.3d 1104, 1107 (9th Cir 1998). In this case, however, Fairley admits that she had entirely new supervisors and co-workers at the Richmond facility; she does not assert any links between either the personnel or the events at the Richmond and Oakland facilities other than the fact that both are run by the postal service. See Fairley Depo (Doc #41, Exh A), at 51:1-3; Fairley Affidavit (Doc #41, Exh H). Particularly in light of the postal service's adequate handling and investigation of her complaint, Fairley's assertions lack merit. Compare Draper, 147 F.3d at 1108 (continuing violation "premised upon a series of closely related similar occurrences that * * * stemmed from the same source") with National RR Passenger Corp, 122 S.Ct at 2075 (no continuing violation if an act had "no relation" beyond the fact that it involved the same employer or if employer had taken "certain intervening action" after the first act such that the second act "was no longer part of the same * * * claim")
Accordingly, the court GRANTS the postmaster's motion for summary judgment on Fairley's Title VII discrimination claim.
2
Fairley's retaliation claim fails because she has not exhausted her administrative remedies regarding the postal service's decision not to appoint her to a consecutive 90-day appointment during May 2000. As earlier explained, exhaustion of administrative remedies is a jurisdictional prerequisite. Fairley does not dispute that she did not update her original EEOC discrimination complaint with charges of retaliation. As such, the court lacks jurisdiction to consider this claim.
But even if the court assumes that it has jurisdiction, Fairley's retaliation claim would fail because she is unable to demonstrate that the postal service's non-discriminatory reason for not appointing her to another temporary term was pretextual. At the outset, the court notes that both parties fail to discuss in a manner more than passing whether failure to appoint to another temporary position constitutes adverse employment action. Nonetheless, as the Ninth Circuit has explained, an adverse employment action, for Title VII purposes, is one which might deter employees from engaging in protected activity. See Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir 2000). Assuming that failure to appoint qualifies as an adverse employment action, Fairley's retaliation claim nonetheless fails.
To establish a prima facie case of retaliation, Fairley must show that (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action and (3) there was a causal link between the protected activity and the employer's action. Pool v. VanRheen, 297 F.3d 899, 910 (9th Cir 2002). If the employer rebuts the inference of retaliation, the plaintiff bears the burden to show that the employer's proferred explanation is mere pretext. See Winarto v. Toshiba Am Electronics Components, Inc, 274 F.3d 1276, 1284 (9th Cir 2001)
In this case, Fairley relies on an alleged remark by Yvonne Davis, another supervisor, to establish a causal link between the protected activity and the postal service's decision not to appoint her immediately to another temporary term. In particular, Fairley alleges that Davis stated that if she continued to complain about sexual harassment, she would be the "first one up out of there," apparently a reference to terminating her employment. See Fairley Depo (Doc #41, Exh A), at 55:1-11.
But even if the court assumes that Fairley has established a prima facie case of retaliation, she has not offered sufficient evidence to rebut the postmaster's legitimate and non-discriminatory reason for not appointing her to another 90-day casual employee appointment. As the primary reason for "casual employees" is the non-permanence of their positions, which grants flexibility in meeting staffing requirements, the postal service has offered a legitimate explanation that Fairley was not immediately reappointed because her services were not needed at that time. Indeed, Fairley admits that she was not aware of any other casual employees under her supervisor who were re-appointed at the end of their term in May 2000. In addition, the court notes that Fairley was given another temporary appointment in August 2000.
To show pretext, Fairley must show that a discriminatory motive more likely than not motivated the postal service or that its prof erred explanation is unworthy of credence. Winarto v. Toshiba America Electronics Components, Inc, 274 F.3d 1276, 1284 (9th Cir 2001). While Davis may have made the alleged remark, Fairley has put forward no evidence showing that Davis was involved in the decision not to reappoint Fairley. See Bergene v. Salt River Project Agr Imp and Power Dist, 272 F.3d 1136, 1141 (9th Cir 2001) ("Even if a manager was not the ultimate decisionmaker, that manager's retaliatory motive may be imputed to the company if the manager was involved in the hiring decision.") In this regard, Fairley has not produced the "specific and substantial" evidence required to create a genuine issue concerning pretext.Villiarimo v. Aloha Island Air, Inc, 281 F.3d 1054, 1062 (9th Cir 2002)
Hence, the court GRANTS the postmaster's motion for summary judgment on Fairley's retaliation claim.
IV
In sum, the court DENIES Fairley's motions for entry of default and default judgment against Willis (Docs ##24, 27) and GRANTS the postmaster's motion for summary judgment on all claims (Doc #34) The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.