Unpublished Disposition, 902 F.2d 38 (9th Cir. 1987)

No. 87-3680.

United States Court of Appeals, Ninth Circuit.

Before NELSON, BOOCHEVER and BRUNETTI, District Judges.

MEMORANDUM^* 

Phyllis Dillinger appeals pro se from the district court's grant of summary judgment in favor of King County, Washington and several individuals presently or formerly employed in the King County Prosecutor's Office. Dillinger's suit alleged that she suffered employment discrimination on the basis of her age and race in violation of federal and state law. She also claimed that she suffered emotional distress, denial of pension rights, and retaliation as a result of asserting her claims. On appeal, she argues that genuine issues of material fact remain that should preclude summary judgment. We affirm the decision of the district court.

STANDARD OF REVIEW

This court reviews the district court's grant of summary judgment de novo. Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1484 (9th Cir. 1986). We view the evidence in the light most favorable to the party opposing the motion and accord that party's papers a liberal construction. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2738, at 484 (1983). The court must "assume the truth of the evidence set forth by the nonmoving party." T.W. Elec. Service v. Pacific Elec. Contractor, 809 F.2d 626, 631 (9th Cir. 1987). If "a rational trier of fact might resolve the issue in favor of the nonmoving party, summary judgment must be denied." Id. We examine very closely the materials available in light of the substantial federal interest in employment discrimination.

BACKGROUND

The statement of facts contained in appellees' brief varies occasionally but significantly from the facts available from certain other of appellees' documents introduced into the record. Additionally, the appellant's pro se efforts at discovery and briefing required this court to re-read the complete record several times. Cf. Estelle v. Gamble, 429 U.S. 97 (1976).

The King County Prosecutor's Office ("KCPO") hired Phyllis Regina Dillinger (Dillinger) as a permanent, but part-time, word processor. Dillinger was 46 years old when she began work on September 15, 1980. At that time the personnel manager, Phyllis Harris, informed her that her hourly compensation and cost-of-living adjustments would be identical to those of the KCPO's full-time word processor employees. King County law then defined a part-time employee as one who worked less than 35 hours per week.

Dillinger served under word processing center (WPC) supervisor Beverly Eikenberry until June 1981. During these ten months, Dillinger's performance earned the praise and encouragement of Eikenberry. Eikenberry was replaced by Ella Boss, a younger woman. Ella Boss also stated that she was pleased with Dillinger's work. Then Dillinger and Teri Giles, another word processor employee who was over 40 years old complained about their rate of pay in comparison to other employees, including certain younger word processor employees. They addressed these mid-June complaints to Boss and Michael Kranda. Kranda served King County Prosecutor, Norman Maleng, as administrative assistant and campaign manager.

Kranda did not respond to the complaints until Dillinger and Giles came to his office on July 20, 1981. Kranda then summoned Boss to join Dillinger, Giles, and himself for a meeting. Kranda's opinion was that these two older women were "in a unique class." He offered Dillinger and Giles raises that would not have made their salaries equal to the salaries of the other, later-hired word processors. Boss apparently became angry at the meeting and later told Dillinger that her complaints about the wage disparity were a hindrance to black progress. Dillinger and Giles found the atmosphere at the meeting to be unpleasant. After stating "I don't have to take this anymore," Dillinger left Kranda's office. Giles followed a moment later.

Kranda then sent Dillinger a written copy of the offer of a raise in pay and asked her to accept, sign, and return it to him. She declined. Subsequently, Dillinger's work responsibilities were changed. She, alone of all the employees, was required to telephone Boss daily to report her availability for work. Boss began calling Dillinger at home "dozens of times" during this period to discuss work. Dillinger also began receiving a number of vexing "emergency" assignments that required shifts every weekend.

During July and August 1981, Dillinger sent two letters describing her complaints and her treatment by Boss and Kranda to King County Prosecuting Attorney Norm Maleng. She specifically alleged that the supervisors had threatened her with dismissal unless she silenced her complaints. Maleng took no action other than to forward the letters to Kranda, one of the people about whom Dillinger had complained. Following Kranda's receipt of the letters, the KCPO found Dillinger's work less satisfactory and terminated her on October 2, 1981. Giles was terminated shortly thereafter.

The reasons stated for Dillinger's termination included: (1) her failure to "accept the explanation" of the wage disparity at the July 20, 1981 meeting; (2) her failure to return a signed acceptance of Kranda's July 20 offer; (3) her September 3 failure to notify Boss of her absence due to illness, a procedure that was not required of night shift workers; (4) her September 21 failure (the day that she sustained a job-related eye injury), to produce more than "a couple of pages" of word processing within a three hour period; and (5) her October 1 refusal to come to the office for an October 5 meeting at a time when she was on sick leave.

After alternative forms of dispute resolution proved unsuccessful, Dillinger initiated this suit in February 1983. She named as defendants King County, Norm Maleng, Michael Kranda, Ella Boss, Joseph Ellis (a claims officer for the King County Office of Safety and Workers Compensation), Lyness Siverson (a former KCPO employee), and Al Ross (King County Personnel Manager). Dillinger alleged that she was terminated from employment with KCPO because of her age, her race, and her opposition to alleged unlawful employment practices. She also alleged that she had been wrongfully excluded from certain pension benefits and that the defendants had acted in concert to refuse her avenues of redress and to retaliate against her. She claimed further that these actions caused her emotional distress.

In August 1986, defendants moved for summary judgment and dismissal with prejudice. The magistrate's report recommended that summary judgment was appropriate because of a lack of material issues of fact requiring trial of any of plaintiff's claims. The trial court adopted the magistrate's report and granted defendant's motion for summary judgment and dismissal by order dated February 8, 1987. Dillinger appealed. This court has jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Dillinger claims that "similarly situated" employees of the KCPO were allowed to participate in a pension program and that she was denied pension rights to which she was entitled. If a King County employee has earned compensation for at least ninety hours per month for five consecutive months, the county is required to contribute an amount on behalf of that employee to the Washington Public Employees Retirement System (PERS).

Dillinger claims that she qualified for this plan because she worked more than 90 hours a month for five consecutive months. However, this claim is presented through conclusory statements and not supported by evidence in the record. The appellees claim that Dillinger was not entitled to participate in PERS because she was a part-time employee and could not have worked 90 hours for 5 consecutive months. Since appellant has not produced evidence, either by reference or affidavit, contradicting this fact, we find that this is not a material fact in dispute. Therefore, we uphold the grant of summary judgment on this issue.

A plaintiff normally may establish a prima facie case of age discrimination by proving: first, that she was a member of the protected class (i.e. age 40 to 70); second, that she was performing her job in a satisfactory manner; third, that she was discharged; and fourth, that the plaintiff was replaced by a substantially younger employee with equal or inferior qualifications. Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981). To withstand a motion for summary judgment, the nonmoving party must produce "significant probative evidence" to support the material allegations in the complaint. T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). The nonmoving party may not avoid summary judgment by relying on "mere allegations" in the pleadings. Id.

Reliance on the mere allegations of the pleadings is precisely what appellant has done in this case. Dillinger, who was 46 years old, has not produced any material evidence to support the claim that she was replaced by a worker who was younger than her and of equal or inferior qualifications. At one point in a pleading, appellant claimed that she believes that she was replaced by a younger person. However, at deposition she claimed that she didn't know who had replaced her. Appellees submitted evidence that Dillinger was replaced by an older employee.

Since appellant has not presented any "significant probative evidence" that she was discharged as a result of age discrimination, and appellees have presented evidence to the contrary, we find that no genuine issue of material fact exists on the claims of age discrimination and we affirm summary judgment on this issue.

Title VII prohibits discrimination against an employee "because he has opposed any practice, made an unlawful employment practice by this chapter, or because he made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter." 42 U.S.C. § 2000(e). In order for a plaintiff's claim of retaliation under Title VII to survive a motion for summary judgment, the plaintiff must show that a material issue of fact exists as to whether the employee was engaged in protected activities of which the employer was aware; whether the employee was thereafter subjected to adverse employment decisions; and whether there was a causal link between the two. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). To show the requisite causal link, an employee must present evidence sufficient to raise the inference that her activity was the likely reason for the adverse action. Hagans v. Andrus, 651 F.2d 622, 636 (9th Cir. 1981). This inference may be made from circumstantial evidence such as the proximity in time between the action and the employer's alleged retaliatory actions. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731-32 (9th Cir. 1986); accord B. Schlei & P. Grossman, Employment Discrimination Law 559 n. 145 (2d ed. 1983).

While Dillinger made complaints about her employment situation, there is no evidence that she planned to sue KCPO for age or race discrimination, and therefore that she had engaged in protected activity. There is evidence that at one point she stated to Kranda that she intended to seek legal advice. However, she did not file a lawsuit at the time and did not threaten to sue for discrimination. Since appellant had not made any allegations of age or race discrimination at the time that she was discharged, we find that she was not terminated in response to her engagement in protected activities. Therefore, we affirm the summary judgment of the district court.

Dillinger claims that the KCPO treated her differently from black employees. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) and 42 U.S.C. § 1981 prohibit racial discrimination in employment against whites and non-whites alike. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 (1975). Dillinger claims that the KCPO paid higher wages to a black employee who performed the same work. The appellees responded to the disparate wage claim by asserting that the black employee was a union member. Dillinger made no response to this explanation for the disparity that would indicate that the explanation was pretextual. Accordingly, summary judgment was justified.

Dillinger also claims that she suffered emotional distress as a result of appellees' actions. Under Washington law, a plaintiff must show that her emotional distress was manifested by objective symptoms, that it was the reaction of a reasonable person, and that it was proximately caused by the unlawful actions of defendants. Miotke v. Spokane, 101 Wash.2d. 307, 332, 678 P.2d 803 (1984); Corrigal v. Ball & Dodd Funeral Home, 89 Wash.2d. 959, 962, 577 P.2d 580 (1978). Dillinger provided evidence that she was diagnosed as suffering from hypertension in 1984 or 1985. She provided no evidence that this hypertension was caused by her employment discharge and was the reaction of a reasonable person. Summary judgment is therefore appropriate with regard to Dillinger's independent claim of emotional distress.

This case has called upon the resources of the federal court system for more than five years. Dillinger's understandably cumbersome and deficient pro se efforts added to the litigation burdens imposed upon the court, the defendants, and Dillinger herself. 42 U.S.C. § 2000e-5(f) (1) permits the district court to appoint counsel for employment discrimination claims. "Three factors are relevant to the trial court's determination of whether to appoint counsel: (1) the plaintiff's financial resources; (2) the efforts made by the plaintiff to secure counsel on his own; and (3) the meritoriousness of the plaintiff's claim." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266 (9th Cir. 1982). The sound application of these factors results in an efficiency gain to the judicial system and to all parties.

In this case, the lower court used its discretion and, on June 29, 1984, reversed the magistrate's order denying Dillinger's motion for assignment of counsel. On September 17, 1985 the court vacated the order because, despite one year of effort, it could locate no attorney who would accept Dillinger's case. Dillinger submitted that the prospect of representing a client in an action against the KCPO was unattractive to potential counsel. The magistrate advanced an alternative argument that the merits of Dillinger's case were insufficiently attractive. Since we have not found merit in Dillinger's claims, we find that it was not an abuse of discretion for the magistrate to reach this conclusion and for the district court to fail to obtain counsel.

CONCLUSION

Summary judgment was appropriate because Dillinger failed to establish a prima facie case. In addition, we find that the district court did not abuse its discretion in denying the motion for appointment of counsel. In view of our disposition affirming the summary judgment, we need not address Dillinger's contention concerning the right to a jury trial. The decision of the district court is therefore AFFIRMED.