Maureen Uche-Uwakwe v. Eric K Shinseki et al, No. 5:2012cv01562 - Document 60 (C.D. Cal. 2013)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SHINSEKI'S MOTION FOR SUMMARY JUDGMENT by Judge Virginia A. Phillips: For the foregoing reasons, the Court DENIES IN PART Defendant's Shinseki's Motion for Summary Judgment as to P laintiff's retaliation claim, as Plaintiff has demonstrated a prima facie case and raised a triable issue regarding whether or not Defendant's proffered reason for transferring her to the outpatient pharmacy was pretextual. The Court GRANTS IN PART Defendant Shinseki's Motion for Summary Judgment as to Plaintiff's harassment/hostile work environment claim, as the Court does not have subject matter jurisdiction over the claim that has not been exhausted administratively. The Court hereby dismisses Plaintiff's harassment/hostile work environment claim for lack of subject matter jurisdiction. 49 (am)

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Maureen Uche-Uwakwe v. Eric K Shinseki et al Doc. 60 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 MAUREEN UCHE-UWAKWE, 11 12 13 14 15 16 ) ) Plaintiff, ) ) ) v. ) ) ERIC K. SHINSEKI, ) SECRETARY OF VETERANS AFFAIRS; BRIAN KAWAHARA, ) ) AN INDIVIDUAL, ) Defendants. ) ________________________ ) Case No. EDCV 12-01562 VAP (OPx) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SHINSEKI'S MOTION FOR SUMMARY JUDGMENT [Motion filed on August 19, 2013 ] 17 18 Defendant Eric K. Shinseki's Motion for Summary 19 Judgment came before the Court for hearing on September 20 16, 2013. After reviewing and considering all papers 21 filed in support of, and in opposition to, the Motion, as 22 well as the arguments advanced by counsel at the hearing, 23 the Court GRANTS IN PART AND DENIES IN PART the Motion. 24 25 26 I. BACKGROUND On September 12, 2012, Plaintiff Maureen Uche-Uwakwe 27 ("Plaintiff") filed a Complaint against Defendants Eric 28 K. Shinseki, in his official capacity as the Secretary of Dockets.Justia.com 1 Veterans Affairs ("VA"), and Brian Kawahara, alleging the 2 following claims: (1) retaliation, in violation of Title 3 VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e4 16, et seq. ("Title VII"), against Defendant Shinseki; 5 (2) race and ancestry discrimination in violation of 42 6 U.S.C. § 1981, against all Defendants; and (3) 7 "harassment/hostile work environment," in violation of 42 8 U.S.C. § 1981, against all Defendants. 9 No. 1.) (See Compl., Doc. The Complaint alleged, inter alia, that 10 Plaintiff was subjected to harassment at the Loma Linda 11 Veterans Affairs Medical Center ("LLVAMC"), where 12 Plaintiff was the only African-American pharmacist, 13 causing her to make numerous complaints both informally 14 and formally, including filing Equal Employment 15 Opportunity ("EEO") complaints and a federal lawsuit that 16 named her co-workers, supervisors, and the Chief of 17 Pharmacy Services, Brian Kawahara. (See Compl. ¶¶ 8-34.) 18 19 On December 5, 2012, Plaintiff filed a First Amended 20 Complaint ("FAC"), naming the same Defendants in the case 21 caption but directing the claims against only Defendant 22 Shinseki, for retaliation in violation of Title VII, and 23 for harassment/hostile work environment in violation of 24 Title VII. (See FAC, Doc. No. 18.) Plaintiff then filed 25 a "Joint Stipulation to Amend Amended Complaint" on 26 January 3, 2013, and filed a Second Amended Complaint 27 ("SAC") on January 8, 2013. (See Doc. Nos. 19, 20.) 28 2 1 In the SAC, Plaintiff alleged claims for retaliation 2 in violation of Title VII against Defendant Shinseki, and 3 "harassment/hostile work environment" in violation of 4 Title VII against Defendant Shinseki; despite naming 5 Kawahara as a Defendant, Plaintiff did not allege any 6 claims against him in the SAC. (See SAC.) 7 8 On January 14, 2013, Plaintiff filed a Notice of 9 Dismissal pursuant to Federal Rule of Civil Procedure 10 41(a)(1) as to Defendant Kawahara. (See Doc. No. 21.) 11 Defendant Shinseki filed an Answer to the SAC on January 12 24, 2013. (See Doc. No. 23.) 13 14 On August 19, 2013, Defendant Shinseki (hereinafter 15 "Defendant") filed a Notice of Motion and Motion for 16 Summary Judgment ("Motion"), along with the Declaration 17 of Cory Werdebaugh ("Werdebaugh Decl.") and attached 18 Exhibits 1 through 6, the Declaration of Indira Cameron19 Banks ("Cameron-Banks Decl.") and attached Exhibits 7 20 through 11, and a Statement of Uncontroverted Facts and 21 Law ("DSUF").1 (See Doc. No. 49.) On August 22, 2013, 22 23 24 25 26 27 28 1 In his DSUF, Defendant fails to cite to the relevant portions of deposition or hearing transcripts by page and line numbers, in violation of the Court's Standing Order. (See Doc. No. 13 at 3.) The Court reminds Defendant that "'judges are not like pigs, hunting for truffles buried in briefs.'" Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 987 (9th Cir. 2011) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)), cert. (continued...) 3 1 Defendant filed a Notice of Errata, attaching a corrected 2 version of Exhibit 8 to the Cameron-Banks Declaration.2 3 (See Doc. No. 50.) 4 5 On August 26, 2013, Plaintiff filed Opposition to the 6 Motion ("Opposition" or "Opp'n"), along with a Separate 7 Statement of Undisputed Facts in Support of Plaintiff's 8 Opposition ("PSUF"), the Declaration of Maureen Uche9 Uwakwe ("Uche-Uwakwe Decl.") and attached Exhibits A 10 through S, the Declaration of Joseph D. Curd ("Curd 11 Decl.") and attached Exhibits T through AA, Objections to 12 Evidence in Support of Opposition ("Pl. Evid. Obj."), and 13 Notice of Lodging of Authorities in Support of 14 Opposition.3 (See Doc. No. 51.) Plaintiff also filed a 15 16 1 (...continued) 423 (2012). The Court also notes denied, 133 S. 17 Defendant's useCt. brackets around the testimony uponthat of which is also required 18 which he relies,is at times inaccurate. by the Court's Standing Order, 19 2 The Exhibit 8 filed with the Errata contains what appears to be a separator page following page 8-5, 20 and then Exhibit 8 is repeated a second time, from pages 21 8-1 to 8-5. To the extent Defendant relies on pages 8-6 to 8-7 in his DSUF, the Court has not been provided with 22 those pages and cannot evaluate whether or not those pages support the factual assertions that rely upon them. 23 3 Plaintiff's Declarations and attached Exhibits are not separated by tabs, as required by Local Rule 1124 5.3. The Court notes, however, that Plaintiff includes a 25 footer on every page of her exhibits, to which she cites in her PSUF, which has assisted the Court when reviewing 26 the Opposition papers. The Court also notes that Plaintiff's Opposition memorandum fails to cite to 27 supporting evidence throughout the argument section. The Court provides the same reminder to Plaintiff as it has (continued...) 28 4 1 Notice of Errata, correcting the hearing time for the 2 Motion reflected on the cover page of her Opposition 3 papers. 4 5 On August 31, 2013, Defendant untimely4 filed a Reply 6 in support of his Motion, the Declaration of Cory 7 Werdebaugh in support of the Reply ("Supp. Werdebaugh 8 Decl.") and attached Exhibit 13, the Declaration of 9 Indira Cameron-Banks ("Supp. Cameron-Banks Decl.") and 10 attached Exhibits 14 and 15, and Evidentiary Objections 11 to the Uche-Uwakwe Declaration.5 12 13 14 15 3 (...continued) to Defendant, i.e., "'judges are not like pigs hunting 16 for truffles buried in briefs'." Guatay, 670 F.3d at 987 17 (citation omitted). 18 19 20 21 22 23 24 25 4 Defendant's Reply papers were due to be filed on Friday, August 30, 2013 because of the Labor Day holiday on Monday, September 2, 2013, i.e., the date the papers would have been due to be filed ordinarily, absent a holiday, give the hearing on the Motion set for September 16, 2013. See L.R. 6-1. The Court's Standing Order clearly states: "Any opposition or reply papers due on a holiday are due the preceding Friday, not the following Tuesday." (See Doc. No. 13 at 2.) Defendant's Reply papers, thus, are untimely. In the interest of justice, however, and in light of the absence of undue prejudice to Plaintiff in Defendant's filing the Reply papers one day late, the Court will consider the Reply papers when evaluating the instant Motion. 5 Defendant did not file any response to Plaintiff's Separate Statement of Undisputed Facts. 26 Accordingly, the Court deems these facts undisputed for 27 purposes of the Motion, to the extent they are sufficiently supported by the cited evidence. See Fed. 28 R. Civ. Proc. 56(e)(2); L.R. 56-3; (Doc. No. 13 at 5-6). 5 1 On September 3, 2013, Defendant filed a Notice of 2 Lodging the Table of Contents and Table of Authorities, 3 apparently inadvertently omitted from the Reply filing, 4 as well as a Notice of Lodging Proposed Order, apparently 5 also inadvertently not filed with the moving papers. 6 (See Doc. Nos. 57, 58.) 7 8 II. LEGAL STANDARD 9 A court shall grant a motion for summary judgment 10 when there is no genuine dispute as to any material fact 11 and the moving party is entitled to judgment as a matter 12 of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving 14 party must show that "under the governing law, there can 15 be but one reasonable conclusion as to the verdict." 16 Anderson, 477 U.S. at 250. 17 18 Generally, the burden is on the moving party to 19 demonstrate that it is entitled to summary judgment. 20 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) 21 (citing Anderson, 477 U.S. at 256-57); Retail Clerks 22 Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 23 1033 (9th Cir. 1983). The moving party bears the initial 24 burden of identifying the elements of the claim or 25 defense and evidence that it believes demonstrates the 26 absence of an issue of material fact. 27 Catrett, 477 U.S. 317, 323 (1986). 28 6 Celotex Corp. v. 1 Where the moving party has the burden at trial, "that 2 party must support its motion with credible 3 evidence . . . that would entitle it to a directed 4 verdict if not controverted at trial." 5 at 331. Celotex, 477 U.S. The burden then shifts to the non-moving party 6 "and requires that party . . . to produce evidentiary 7 materials that demonstrate the existence of a 'genuine 8 issue' for trial." Id.; Anderson, 477 U.S. at 256; Fed. 9 R. Civ. P. 56(a). 10 11 Where the non-moving party has the burden at trial, 12 however, the moving party need not produce evidence 13 negating or disproving every essential element of the 14 non-moving party's case. Celotex, 477 U.S. at 325. 15 Instead, the moving party's burden is met by pointing out 16 that there is an absence of evidence supporting the 17 non-moving party's case. Id. The burden then shifts to 18 the non-moving party to show that there is a genuine 19 dispute of material fact that must be resolved at trial. 20 Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 324; 21 Anderson, 477 U.S. at 256. The non-moving party must 22 make an affirmative showing on all matters placed in 23 issue by the motion as to which it has the burden of 24 proof at trial. 25 U.S. at 252. Celotex, 477 U.S. at 322; Anderson, 477 See also William W. Schwarzer, A. Wallace 26 Tashima & James M. Wagstaffe, Federal Civil Procedure 27 Before Trial § 14:144. 28 7 1 A genuine issue of material fact will exist "if the 2 evidence is such that a reasonable jury could return a 3 verdict for the non-moving party." 4 248. Anderson, 477 U.S. at In ruling on a motion for summary judgment, a court 5 construes the evidence in the light most favorable to the 6 non-moving party. Scott v. Harris, 550 U.S. 372, 378, 7 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th 8 Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. 9 Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). 10 11 12 III. EVIDENTIARY RULINGS Before setting forth the uncontroverted facts in this 13 action, the Court examines the admissibility of the 14 evidence offered by both sides in support of, and 15 opposition to, the Motion. 16 17 "A trial court can only consider admissible evidence 18 in ruling on a motion for summary judgment." Orr v. Bank 19 of America, 285 F.3d 764, 773 (9th Cir. 2002). 20 "Authentication is a 'condition precedent to 21 admissibility,' and this condition is satisfied by 22 'evidence sufficient to support a finding that the matter 23 in question is what its proponent claims.'" 24 (citation omitted). 25 26 27 28 8 Id. 1 A. Plaintiff's Objections 2 Plaintiff objects to portions of the Declaration of 3 Cory Werdebaugh filed in support of the Motion, as well 4 as to several DSUFs. 5 6 1. Objections to Werdebaugh Declaration 7 Plaintiff objects to a sentence in paragraph 7 of the 8 Werdebaugh Declaration, i.e., "I remember the Chief of HR 9 ... related to workers' compensation liability" on the 10 basis of hearsay, that it lacks foundation, and that it 11 calls for a legal conclusion. (See Pl. Obj. at 2.) The 12 Court sustains Plaintiff's hearsay objection and finds 13 the assertion inadmissible, as it is not offered against 14 a party opponent who made the statement. See Fed. R. 15 Evid. 801(d)(2). 16 17 Plaintiff objects to a sentence in paragraph 8 of the 18 Werdebaugh Declaration, i.e., "I believe that it was an 19 appropriate ... chronically understaffed at that time" on 20 the basis that it lacks foundation, and is irrelevant. 21 (See Pl. Obj. at 2.) The Court sustains Plaintiff's 22 lacks foundation objection and finds the assertion 23 inadmissible, as the declarant has not established any 24 personal knowledge of the staffing needs of the 25 outpatient pharmacy and she has not provided her personal 26 knowledge that she was familiar with the circumstances 27 under which Plaintiff had previously been reassigned or 28 9 1 how she know those issues were "no longer applicable." 2 See Fed. R. Evid. 602. 3 4 Plaintiff objects to another sentence in paragraph 8 5 of the Werdebaugh Declaration, i.e., "I also recall that 6 ... performance as an outpatient pharmacist" on the basis 7 of hearsay and that it lacks foundation. 8 at 3.) (See Pl. Obj. The Court sustains Plaintiff's hearsay objection 9 and finds the assertion inadmissible, as statements made 10 by Plaintiff's "line supervisor in the inpatient 11 pharmacy" are inadmissible hearsay and not offered 12 against a party opponent who made the statement. See 13 Fed. R. Evid. 801(d)(2). 14 15 Plaintiff objects to a portion of a sentence in 16 paragraph 9 of the Werdebaugh Declaration, i.e., "which 17 places an undue burden on the pharmacy service" on the 18 basis that it lacks foundation and personal knowledge. 19 (See Pl. Obj. at 3.) The Court sustains both objections, 20 as the declarant has not established the declarant's 21 personal knowledge of the staffing needs of the pharmacy 22 service. See Fed. R. Evid. 602. 23 24 2. 25 The Court sustains Plaintiff's objections to the Objections to Defendant's SUFs 26 following of DSUFs on the basis that the cited evidence 27 does not support the purported statement of fact: ¶¶ 3, 28 10 1 14, 19, 28, 33, 34, and 35. As to DSUF ¶ 3, the Court 2 finds a portion of the fact is supported by the cited 3 evidence, but the statement "but desired it as a personal 4 educational goal" is not supported; accordingly, the 5 Court will not consider that portion. Likewise, as to 6 DSUF ¶ 28, the Court finds a portion of the fact is 7 supported by the cited evidence, but the statement 8 "despite a direct request from a Privacy Officer" is not 9 supported and the Court will not consider it. Finally, 10 as to DSUF ¶ 35, the Court finds portions of the fact is 11 supported by the cited evidence: "At the time, Plaintiff, 12 as an outpatient pharmacist;" and "could not be properly 13 supervised or evaluated [by] the inpatient pharmacy 14 supervisor." 15 16 The Court overrules Plaintiff's objections to DSUFs 17 ¶¶ 7, 12, 40, and 41. 18 19 B. Defendant's Objections 20 Defendant objects to portions of the Maureen Uche- 21 Uwakwe Declaration. 22 23 Defendant objects to paragraph 2 of the Uche-Uwakwe 24 Declaration on the basis of relevance, undue prejudice, 25 and that the assertions contained therein are outside the 26 scope of the EEO complaints that gave rise to the present 27 action. (See Def. Evid. Obj. at 1.) 28 11 The Court sustains 1 Defendant's relevance objection as to the following 2 portion of paragraph 2 and finds this portion 3 inadmissible: "My first line supervisor at the ... apply 4 for a permanent, full-time pharmacist." The Court 5 overrules Defendant's remaining objections to this 6 paragraph. 7 8 Defendant objects to paragraph 3 of the Uche-Uwakwe 9 Declaration on the basis of relevance, undue prejudice, 10 speculation, and lacks foundation. 11 at 1-2.) (See Def. Evid. Obj. The Court sustains Defendant's relevance 12 objection as to the following portion of paragraph 3 and 13 finds this portion inadmissible: "I was trained as an 14 inpatient pharmacist ... Monday through Friday." The 15 Court overrules Defendant's remaining objections to this 16 paragraph. 17 18 Defendant objects to paragraph 4 of the Uche-Uwakwe 19 Declaration on the basis of relevance, undue prejudice, 20 hearsay, and that the assertions contained therein are 21 outside the scope of the EEO complaints that gave rise to 22 the present action. (See Def. Evid. Obj. at 2.) The 23 Court overrules Defendant's objections to this paragraph. 24 25 Defendant objects to paragraph 14 of the Uche-Uwakwe 26 Declaration on the basis that Plaintiff did not lay 27 sufficient foundation for her assertion that she "know[s] 28 12 1 you can be disciplined or lose your job if you are AWOL, 2 especially for that long a time." 3 at 2-3.) (See Def. Evid. Obj. Although Plaintiff did not expressly identify 4 her basis for this understanding, the Court overrules the 5 objection because Plaintiff has been employed at LLVAMC 6 for over ten years and this information reasonably falls 7 within the purview of employees, especially long term 8 employees such as Plaintiff. Defendant did not object to 9 Plaintiff's assertion in this paragraph about the 10 statement made to Plaintiff by Maryann Chamberlain, 11 identified as a payroll supervisor. (See Uche-Uwakwe 12 Decl. at ¶ 14 ("Ms Chamberlain advised me ... had been 13 for approximately one month.").) The Court nevertheless 14 finds this statement admissible for its non-hearsay 15 purpose of effect on the listener. See Fed. R. Evid. 16 801(c)(2); United States v. Payne, 944 F.2d 1458, 1472 17 (9th Cir. 1991). The statement is not admissible for the 18 truth of the matter asserted. 19 20 Defendant objects to paragraph 17 of the Uche-Uwakwe 21 Declaration on the basis that it lacks personal 22 knowledge, contains hearsay, is irrelevant, and unduly 23 prejudicial. (See Def. Evid. Obj. at 3.) The Court 24 sustains Defendant's hearsay and lack of personal 25 knowledge objections and finds the entire paragraph 26 inadmissible. 27 28 13 1 Defendant objects to paragraph 18 of the Uche-Uwakwe 2 Declaration on the basis that it lacks personal 3 knowledge, contains speculation, hearsay, and improper 4 lay opinion, is irrelevant and unduly prejudicial, and 5 that the assertions contained therein are outside the 6 scope of the EEO complaints that gave rise to the present 7 action. (See Def. Evid. Obj. at 4.) The Court sustains 8 Defendant's lack of personal knowledge and speculation 9 objections as to the following inadmissible assertion: 10 "Ms. Dahlan and Dr. Kawahara also encouraged Mr. Anthony 11 Fazio to falsify a Report of Contact against me." The 12 Court overrules Defendant's remaining objections to this 13 paragraph. 14 15 Defendant objects to paragraph 20 of the Uche-Uwakwe 16 Declaration on the basis that it lacks personal knowledge 17 and foundation, contains hearsay, mischaracterizes a 18 document that speaks for itself, and lacks authentication 19 for the attached Exhibit G. 20 5.) (See Def. Evid. Obj. at 4- The Court sustains Defendant's lack of personal 21 knowledge and foundation objections as to the following 22 portions of the paragraph which the Court considers 23 inadmissible: "After intervention ... and substitute then 24 with LWOP" and "Dr. Kawahara issued his own email ... by 25 EEO Program Specialist Tana Moreland."6 Moreover, the 26 6 "Email" is shorthand for electronic mail, which is a method of exchanging digital messages from an author (continued...) 28 27 14 1 Court sustains Defendant's authentication objection to 2 portions of Plaintiff's Exhibit G, as Plaintiff did not 3 write or receive the email dated June 4, 2009 from 4 Kawahara or the email dated June 19, 2009 from Samina 5 Sam, and Plaintiff cannot attest to those emails' 6 authenticity. See Orr, 285 F.3d at 774 ("a document can 7 be authenticated [under Rule 901(b)(1)] by a witness who 8 wrote it, signed it, used it, or saw others do so." 9 (internal quotations and citations omitted)). 10 Accordingly, the Court does not find those portions of 11 Plaintiff's Exhibit G admissible. The Court overrules 12 Defendant's remaining objections to this paragraph. 13 14 Defendant objects to paragraph 21 of the Uche-Uwakwe 15 Declaration on the basis that it lacks personal knowledge 16 and foundation, contains hearsay, mischaracterizes a 17 document that speaks for itself, and lacks authentication 18 for the attached Exhibit G. 19 6.) (See Def. Evid. Obj. at 5- The Court sustains Defendant's lack of foundation 20 and personal knowledge objections to the following 21 portion of the paragraph, which the Court finds 22 inadmissible: "Dr. Kawahara's email ... at their own 23 facility." As stated supra, the Court has already 24 sustained Defendant's authentication objection to the 25 26 27 6 (...continued) 28 to one or more recipients. 15 1 relevant portions of Plaintiff's Exhibit G. The Court 2 overrules the remaining objections to this paragraph. 3 4 Defendant objects to paragraph 22 of the Uche-Uwakwe 5 Declaration on the basis that it lacks personal knowledge 6 and foundation, contains hearsay, mischaracterizes a 7 document that speaks for itself, and lacks authentication 8 for the attached Exhibit G. 9 7.) (See Def. Evid. Obj. at 6- Again, as stated supra, the Court has already 10 sustained Defendant's authentication objection to the 11 relevant portions of Plaintiff's Exhibit G. The Court 12 overrules Defendant's hearsay objections as to the 13 statements made by Cory Werdebaugh because her 14 Declaration filed in support of the Motion provides 15 sufficient foundation regarding her position and job 16 responsibilities that show she could be considered an 17 agent of Defendant for purposes of finding her statements 18 in this regard to be vicarious admissions. See Fed. R. 19 Evid. 801(d)(2)(D); see also Woodman v. Haemonetics 20 Corp., 51 F.3d 1087, 1094 (1st Cir. 1995) (nature of 21 declarant's position within organization used to 22 determine whether or not her statement is admissible as 23 organization's vicarious admission); Johnson v. Weld 24 County, Colo., 594 F.3d 1202, 1208-09 (10th Cir. 2010) 25 (employee's statement considered admission against 26 employee if "the employee was involved in the decision27 making process affecting the employment action at 28 16 1 issue"); cf. Jacklyn v. Schering-Plough Healthcare Prod. 2 Sales Corp., 176 F.3d 921, 927-28 (6th Cir. 1999) 3 (statement made by defendant's district manager who was 4 not plaintiff's direct supervisor and was not involved in 5 negative appraisals of plaintiff's performance was not 6 within scope of agency or employment). Moreover, the 7 statements at issue were made during Werdebaugh's 8 employment, concerned matters within the scope of her 9 employment relationship, i.e., human resources matters 10 concerning an employee dispute, and Plaintiff is offering 11 these statements against Defendant; the statements are 12 not hearsay and are admissible. See Fed. R. Evid. 13 801(d)(2)(D); see also McDonough v. City of Quincy, 452 14 F.3d 8, 21 (1st Cir. 2006) ("The relevant inquiry [for 15 purposes of Federal Rule of Evidence 801(d)(2)(D)] is 16 whether the employee's statement was made within the 17 scope of employment."). 18 19 The Court sustains Defendant's hearsay objection as 20 to the statements made by Sam Maze contained in paragraph 21 22 and finds the following statement inadmissible: "EEO 22 Manager, Sam Maze advised me that I should confirm in 23 writing that it would be temporary." Plaintiff provides 24 the Court only with Maze's job title, which is ambiguous 25 as to his responsibilities and job duties. In doing so, 26 Plaintiff has not met her burden to provide evidence that 27 Maze can be considered an agent of Defendant or that his 28 17 1 statement was made within the scope of his employment, 2 sufficient to impute this statement as a non-hearsay 3 admission against Defendant. See United States v. Chang, 4 207 F.3d 1169, 1176 (9th Cir. 2000) (proponent of the 5 evidence has the burden to demonstrate its 6 admissibility); Bourjaily v. United States, 483 U.S. 171, 7 176 (1987) (applying preponderance of the evidence 8 standard to evaluation of evidence proffered as 9 admissible under Federal Rule of Evidence 801(d)(2)); 10 United States v. Bonds, 608 F.3d 495, 507 (9th Cir. 11 2010). The Court overrules the remaining objections to 12 this paragraph. 13 14 Defendant objects to paragraph 33 of the Uche-Uwakwe 15 Declaration on the basis that it lacks foundation for 16 Plaintiff's assertion that her "privacy was violated." 17 (See Def. Evid. Obj. at 7-8.) The Court overrules the 18 objection. 19 20 Defendant objects to paragraph 35 of the Uche-Uwakwe 21 Declaration on the basis that it lacks foundation and 22 misstates Plaintiff's prior testimony "regarding the date 23 AWOL designation was changed to LWOP." 24 Obj. at 8.) (See Def. Evid. The Court overrules the objections. In 25 fact, Defendant's objection about the misstatement of 26 Plaintiff's prior testimony is misplaced, as this 27 paragraph of the Declaration does not contain any 28 18 1 assertions regarding when Plaintiff's AWOL designation 2 was changed to LWOP. (See Uche-Uwakwe Decl. ¶ 35.) 3 4 Defendant objects to paragraph 41 of the Uche-Uwakwe 5 Declaration on the basis that it lacks personal knowledge 6 and foundation and contains hearsay. 7 Obj. at 8-9.) (See Def. Evid. The Court overrules Defendant's objections 8 to this paragraph. Although Plaintiff did not provide 9 the Court with Samineh Sam's job responsibilities, she 10 indicated Sam's job title was the "outpatient 11 supervisor." The Court infers from Sam's job title that 12 her statements to Plaintiff describing the staffing in 13 the outpatient pharmacy were made within the scope of her 14 employment and are not hearsay. See Fed. R. Evid. 15 801(d)(2)(D). 16 17 Defendant objects to paragraph 42 and 43 of the Uche- 18 Uwakwe Declaration on the basis of relevance, undue 19 prejudice, and that the assertions contained therein are 20 outside the scope of the EEO complaints that gave rise to 21 the present action. (See Def. Evid. Obj. at 9-10.) 22 First, the following statement contained in paragraph 42 23 is inadmissible hearsay and the Court will not consider 24 it: "and with the agreement of management at the 25 recommendation of the Administrative Board of 26 Investigation." The Court sustains Defendant's relevance 27 objection as to the following portions of paragraphs 42 28 19 1 and 43 which is inadmissible: "I tried several times ... 2 of other pharmacy employees" (paragraph 42); and "Ms. 3 Church-Harris insulted me ... and the Associate Director 4 regarding her harassment of me" (paragraph 43). The 5 remaining portions of paragraphs 42 and 43 are relevant 6 to Plaintiff's claim for retaliation here, as they 7 demonstrate the impact of her reassignment in February 8 2010 to the outpatient pharmacy which would have required 9 her to work with individuals with whom she had concerns 10 due to their past interactions. (See Uche-Uwakwe Decl. 11 ¶¶ 42, 43.) 12 13 The Court finds, however, the remaining assertions in 14 paragraphs 42 and 43 to be irrelevant and unduly 15 prejudicial, as this Court has entered summary judgment 16 against Plaintiff on her claims for hostile work 17 environment arising from those interactions with the 18 outpatient pharmacy staff in a related action, resulting 19 in final judgment on the merits, which the Ninth Circuit 20 has affirmed. See Uche-Uwakwe v. Nicholson, No. 21 5:05CV983(VAP) (C.D. Cal. Mar. 30, 2010); Uche-Uwakwe v. 22 Nicolson, 473 Fed. Appx. 544 (9th Cir. Mar. 30, 2012) 23 (finding plaintiff failed to raise a triable issue of 24 fact as to her claims for failure to promote and hostile 25 work environment, but finding she raised a triable issue 26 of fact as to her claim for disparate treatment and 27 retaliation). The assertions contained in this paragraph 28 20 1 concern the same "transactional nucleus of facts" as the 2 Court has previously determined on the merits in the 3 related litigation. Constantini v. Trans World Airlines, 4 681 F.2d 1199, 1201-02 (9th Cir. 1982) (finding 5 subsequent claim brought on the same cause of action that 6 had previously been determined in a final judgment on the 7 merits to be barred by doctrine of res judicata). 8 Moreover, the parties to the related action are the same 9 as here and the factual basis for Plaintiff's hostile 10 work environment claim concern the same facts as those 11 previously adjudicated in the related action. See 12 Blonder-Tongue Lab. v. Univ. of Ill., Found., 402 U.S. 13 313, 323-24 (1971) (discussing three factors necessary 14 for res judicata to apply, i.e., identity of claims, 15 final judgment on the merits, and identity or privity 16 between parties). Accordingly, these assertions are not 17 admissible here, as they are barred by the doctrine of 18 res judicata. See Western Radio Serv. Co., Inc. v. 19 Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997) ("Res 20 judicata, also known as claim preclusion, bars litigation 21 in a subsequent action of any claims that were raised or 22 could have been raised in the prior action"). 23 24 Defendant objects to paragraph 44 of the Uche-Uwakwe 25 Declaration on the basis of relevance, undue prejudice, 26 and that the assertions contained therein are outside the 27 scope of the EEO complaints that gave rise to the present 28 21 1 action. (See Def. Evid. Obj. at 11.) The Court 2 overrules Defendant's objections, but finds the following 3 portions to be inadmissible hearsay, as Plaintiff fails 4 to demonstrate that any statements quoting investigation 5 materials or statements made by the Administrative Board 6 of Investigation are admissible: "Dr. Kawahara had 7 charged that I altered ... Although I was exonerated;" 8 and, "It took five months ... given diversity training." 9 10 Defendant objects to paragraph 51 of the Uche-Uwakwe 11 Declaration on the basis of relevance, undue prejudice, 12 that the assertions contained therein are outside the 13 scope of the EEO complaints that gave rise to the present 14 action, and misstates a document that speaks for itself. 15 (See Def. Evid. Obj. at 11-12.) The Court overrules 16 Defendant's objections to this paragraph. Although some 17 of the assertions contained in this paragraph concern 18 events preceding the filing of the EEO complaints at 19 issue here, the assertions are directly relevant to 20 Plaintiff's claim of unlawful retaliation and provide 21 necessary evidentiary context to her claim. 22 23 Defendant purports to object to portions of paragraph 24 52 of the Uche-Uwakwe Declaration, but fails to 25 articulate any bases for his objection. Accordingly, the 26 Court will not rule on objections not properly before the 27 Court. 28 22 1 Defendant objects to paragraph 56(a)-(d) of the Uche- 2 Uwakwe Declaration on the basis of relevance, undue 3 prejudice, and that the assertions contained therein are 4 outside the scope of the EEO complaints that gave rise to 5 the present action. (See Def. Evid. Obj. at 13.) The 6 Court overrules Defendant's objections as to paragraph 7 56(a), (c), and (d) as none of these sub-paragraphs 8 contain information previously litigated before this 9 Court in a related action. The Court sustains 10 Defendant's relevance and undue prejudice objections to 11 paragraph 56(b), however, because it contains factual 12 assertions already adjudicated by this Court and affirmed 13 by the Ninth Circuit in a related action. See Uche- 14 Uwakwe v. Nicholson, No. 5:05CV983(VAP) (C.D. Cal. Mar. 15 30, 2010); Uche-Uwakwe, 473 Fed. Appx. 544 (9th Cir. Mar. 16 30, 2012). As discussed supra, these assertions are 17 barred by res judicata. See Glickman, 123 F.3d at 1192. 18 The Court overrules Defendant's remaining objections to 19 this paragraph. 20 21 C. Other Evidentiary Issues 22 As stated supra, the Court can "only consider 23 admissible evidence in ruling on a motion for summary 24 judgment." See Orr, 285 F.3d at 773; Cristobal v. 25 Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994); Canada v. 26 Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 27 1987). 28 23 1 1. Defendant's Evidence 2 In its independent review of the admissibility of the 3 evidence proffered by Defendant, the Court has found the 4 following issues: 5 6 DSUF ¶ 6: The following portion is not supported by 7 the cited evidence and the Court will not consider it: 8 "in May 2009." 9 10 DSUF ¶ 8: The following portion is not supported by 11 the cited evidence and the Court will not consider it: 12 "for the days between May 5, 2009 and June 2, 2009." 13 14 DSUF ¶ 12: It appears the word "employee" is missing 15 after "then a Loma Linda VAMC." The Court construes this 16 fact to contain the missing word for completeness. 17 18 DSUF ¶ 17: The following portion is not supported by 19 the cited evidence and the Court will not consider it: 20 "the removal of the EEO file constituted a violation of 21 Loma Linda VAMC's privacy policies." 22 23 DSUF ¶ 18: This fact is not supported by sufficient 24 evidence, as the Court has found the cited Werdebaugh 25 Declaration testimony to be inadmissible hearsay, and the 26 testimony cited from Defendant's Exhibit 10 provides no 27 28 24 1 context about the topic of the witness's testimony 2 sufficient to lay requisite foundation. 3 4 DSUF ¶ 24: The cited evidence does not support the 5 factual assertion made herein and the Court will not 6 consider it. 7 8 DSUF ¶ 30: The following portion is not supported by 9 the cited evidence and the Court will not consider it: 10 "that would have to be reported in a privacy breach 11 notification database." 12 13 DSUF ¶ 36: The cited evidence does not support the 14 factual assertion made herein and the Court will not 15 consider it. 16 17 DSUF ¶ 37: The following portion is not supported by 18 the cited evidence and the Court will not consider it: 19 "for anxiety." In addition, there appears to be a 20 typographical error contained in this fact; it appears 21 "Monday, February 15, 2013" should instead read "Monday, 22 February 15, 2010." 23 24 For the foregoing reasons, the Court does not 25 consider the following DSUFs to be sufficiently supported 26 by admissible evidence and the Court will not consider 27 them for purposes of deciding this Motion: DSUF ¶¶ 14, 28 25 1 18, 19, 24, 31, 33, 34, and 36. Moreover, the Court 2 considers only portions of the following DSUFs, for the 3 reasons stated above: DSUF ¶¶ 3, 6, 8, 17, 28, 30, and 4 37. 5 6 2. Plaintiff's Evidence 7 In its independent review of the admissibility of the 8 evidence proffered by Plaintiff, the Court has found the 9 following issues: 10 11 Uche-Uwakwe Decl. ¶ 26: The following statement is 12 inadmissible hearsay and the Court will not consider it: 13 "My doctor also suggested that I see psychological 14 counseling." In addition, the following statement lacks 15 foundation and is not admissible: "He filled out a 16 disability form ... was also without pay." 17 18 Uche-Uwakwe Decl. ¶ 27: The following statement is 19 inadmissible hearsay and the Court will not consider it: 20 "Meanwhile, I learned from talking to pharmacists and 21 management at other VA facilities ... or temporary shift 22 changes." 23 24 Uche-Uwakwe Decl. ¶ 35: The following statement is 25 inadmissible speculation and the Court will not consider 26 it: "Dr. Sam knew what outpatient work I was performing 27 ... conducted my performance reviews." 28 26 1 Uche-Uwakwe Decl. ¶ 47: The following statement is 2 inadmissible hearsay and the Court will not consider it: 3 "At my primary physician's recommendation." 4 5 Uche-Uwakwe Decl. ¶ 49 & Plaintiff's Exhibits N and 6 O: The following statements lack foundation and personal 7 knowledge and the Court will not consider them: "On March 8 26, 2010, my treating physician ... letter is attached as 9 Exhibit O." Moreover, Plaintiff's Declaration testimony 10 contained in this paragraph cannot provide sufficient 11 authentication for Plaintiff's Exhibits N and O 12 (purportedly letters from her treating physicians), as 13 she does not attest to writing them, signing them, using 14 them, seeing others use them, or receiving them. See 15 Orr, 285 F.3d at 774; Fed. R. Evid. 901(b)(1). 16 17 Uche-Uwakwe Decl. ¶ 56(c): The following statement 18 is inadmissible hearsay: "Ms. Connie Morrison ... as 19 ordered by my doctor." See Fed. R. Evid. 801(d)(2)(D). 20 Plaintiff has not provided evidence that Morrison's 21 statements are admissible here. See Chang, 207 F.3d at 22 1176. 23 24 Uche-Uwakwe Decl. ¶ 56(d): The following statement 25 is inadmissible hearsay: "Mr. Maze reminded him that I 26 was on disability and to cease the harassment." As 27 stated supra, Plaintiff has not met her burden to provide 28 27 1 evidence that Maze's statements are admissible. See 2 Chang, 207 F.3d at 1176; Bourjaily, 483 U.S. at 176; 3 Bonds, 608 F.3d at 507; Fed. R. Evid. 801(d)(2)(D). 4 5 PSUF ¶ 2: The following portion is unsupported by 6 the cited evidence and the Court will not consider it: 7 "Plaintiff had no problems at work until." 8 9 PSUF ¶¶ 18, 23, 26: Exhibit 17 to the Werdebaugh 10 Deposition does not support these PSUFs as the document 11 lacks requisite authentication and cannot be considered 12 by the Court. 13 774. See Fed. R. Evid. 901(b); Orr, 285 F.3d at The other cited evidence supports these facts 14 sufficiently. As to PSUF ¶ 26, however, the cited 15 Werdebaugh deposition testimony does not support the 16 factual assertion made therein, but the remaining 17 evidentiary support cited, i.e., the Uche-Uwakwe 18 Declaration, sufficiently supports the factual assertions 19 contained in PSUF ¶ 26. 20 21 PSUF ¶ 36: The following portion is unsupported by 22 the cited evidence and the Court will not consider it: 23 "and told another of Plaintiff's supervisors, Elisa 24 Almera, that Plaintiff ... to Plaintiff's EEO activity." 25 The cited Maze testimony does not support the factual 26 assertions contained in this fact. 27 28 28 1 PSUF ¶¶ 39, 40, 54, 94, 101: The cited evidence does 2 not support these facts and the Court will not consider 3 them. 4 5 PSUF ¶ 41: The cited Kawahara deposition testimony 6 does not support this factual assertion; the other cited 7 evidence, however, sufficiently supports this fact. 8 9 PSUF ¶ 51: The following portion contains 10 inadmissible hearsay and the Court will not consider it: 11 "Plaintiff's doctor suggested that she seek psychological 12 counseling." 13 14 PSUF ¶ 55: This fact is duplicative of PSUF ¶ 35. 15 16 PSUF ¶¶ 56, 57: These facts contain statements made 17 by Edna Dahlan to Plaintiff which ordinarily would be 18 considered inadmissible hearsay. The Court infers, 19 however, from Dahlan's title as the inpatient supervisor, 20 that her statements to Plaintiff about scheduling a 21 meeting were within the scope of her employment and are 22 not hearsay. See Fed. R. Evid. 801(d)(2)(D). 23 24 PSUF ¶ 59: This fact contains statements made to 25 Plaintiff by a canteen employee, which ordinarily would 26 be considered inadmissible hearsay. The Court infers, 27 however, from the employee's title that the statements to 28 29 1 Plaintiff about the location of her EEO file were made 2 within the scope of the employee's employment and are not 3 hearsay. See Fed. R. Evid. 801(d)(2)(D). 4 5 PSUF ¶¶ 67-68, 70: These facts contain hearsay 6 statements made by Craig Curtis, an information security 7 officer. Plaintiff has not met her burden to provide the 8 Court with evidence of Curtis's job duties to demonstrate 9 that his statements are not hearsay and were made within 10 the scope of his employment. 11 1176. See Chang, 207 F.3d at Plaintiff's counsel argued at the hearing on the 12 Motion that the Court should infer from the facts that 13 Curtis called the February 12, 2010 meeting and had the 14 apparent authority to issue Plaintiff a privacy violation 15 ticket that Curtis was employed by LLVAMC and that his 16 statements made were within the scope of his employment. 17 The Court disagrees. Viewing all the admissible evidence 18 submitted by both parties, the record before the Court 19 contains no information about whether or not Curtis was 20 employed by LLVAMC and whether or not his statements were 21 made within the scope of his employment with LLVAMC. 22 Accordingly, the Court does not find Curtis's statements 23 to Plaintiff during the February 12, 2010 meeting to be 24 relevant to her claims here, as Plaintiff has not met her 25 burden to establish, as necessary foundation, that Curtis 26 was employed at LLVAMC when he made the statements. 27 28 30 1 As to PSUF ¶ 68, the cited Kawahara deposition 2 testimony at 144:11-145:1, 145:9-20 and the Dahlan 3 deposition testimony at 107:9-108:4 do not support the 4 contention in this fact, but the other cited evidence 5 sufficiently supports it. 6 7 As to PSUF ¶ 70, the cited evidence does not support 8 the inclusion of "and Dr. Kawahara" in this fact. 9 Moreover, the Kawahara testimony cited does not support 10 the factual assertions contained in this fact. 11 12 PSUF ¶ 77: The cited evidence, i.e., Exhibit 35 to 13 the Werdebaugh deposition, lacks necessary authentication 14 and cannot be considered by the Court. 15 901(b); Orr, 285 F.3d at 774. See Fed. R. Evid. Accordingly, the Court 16 will not consider this fact. 17 18 PSUF ¶ 79: The following statement is inadmissible 19 hearsay and the Court will not consider it: "at her 20 primary care physician's recommendation." 21 22 PSUF ¶ 82: As discussed supra, the cited evidence, 23 i.e., Exhibit 35 to the Werdebaugh deposition, lacks 24 necessary authentication and cannot be considered by the 25 Court. See Fed. R. Evid. 901(b); Orr, 285 F.3d at 774. 26 Accordingly, the Court will not consider this fact, as it 27 is not supported by admissible evidence. 28 31 1 PSUF ¶¶ 86-93: These facts contain improper legal 2 conclusions and argument, instead of statements of fact 3 supported by admissible evidence. The Court will not 4 consider the improper conclusions and arguments contained 5 in these facts. 6 7 PSUF ¶ 96: This fact is irrelevant and contains 8 inadmissible hearsay. Accordingly, the Court will not 9 consider this fact. 10 11 PSUF ¶ 98: The cited Uche-Uwakwe Declaration 12 testimony does not support this fact, as the testimony 13 lacks foundation; the Court, however, finds the other 14 cited evidence sufficiently supports this fact. 15 16 PSUF ¶ 103: The following statement is inadmissible 17 hearsay and the Court will not consider it: "caused by 18 work-related stress and anxiety." 19 20 PSUF ¶ 104: This fact contains only inadmissible 21 hearsay and the Court will not consider it. 22 23 PSUF ¶ 107: All of the cited evidence, except for 24 paragraph 56 of the Uche-Uwakwe Declaration, does not 25 support the assertions contained in this fact. Moreover, 26 the the following statements are unsupported by the cited 27 evidence and the Court will not consider them: "There is 28 32 1 substantial evidence on which a trier of fact could find 2 that;" "and that he has failed and refused to investigate 3 Plaintiff's claims of harassment;" and "promoting non4 Blacks who were less qualified than Plaintiff." 5 6 For the foregoing reasons, the Court does not 7 consider the following PSUFs to be sufficiently supported 8 by admissible evidence and the Court will not consider 9 them for purposes of deciding this Motion: PSUF ¶¶ 39, 10 40, 54, 55, 75, 76, 82, 94, 96, 101, and 104. Moreover, 11 the Court considers only portions of the following PSUFs, 12 for the reasons stated above: PSUF ¶¶ 2, 36, 51, 67-68, 13 70, 79, 86-93, and 107. 14 15 16 IV. UNCONTROVERTED FACTS The following material facts are supported adequately 17 by admissible evidence and uncontroverted. They are 18 "admitted to exist without controversy" for the purposes 19 of this Motion. See Local Rule 56-3. 20 21 Plaintiff has worked as a pharmacist at the LLVAMC 22 since 1999. (DSUF ¶ 1; PSUF ¶ 1.) Dr. Brian Kawahara 23 ("Kawahara") has been the Chief of Pharmacy Services at 24 LLVAMC since approximately September 2000. (PSUF ¶ 2.) 25 26 27 28 33 1 A. Pharm. D. Degree Clinical Rotations 2 In July 2001, Kawahara told Plaintiff that one of the 3 reasons why he did not select her for a promotion to a 4 GS-12 clinical pharmacist position was because she did 5 not have a Pharm. D. degree. (PSUF ¶ 4.) Although it 6 was not a requirement of her job as a pharmacist at 7 LLVAMC, Plaintiff decided to enroll in a Pharm. D. degree 8 program through the University of Kansas to improve her 9 chances of getting a promotion in the future. 10 DSUF ¶¶ 3, 4.) (PSUF ¶ 5; In order to obtain the Pharm. D. degree, 11 Plaintiff was required to complete several clinical 12 rotations. (PSUF ¶ 9.) Plaintiff arranged to complete a 13 clinical rotation at LLVAMC, after she worked with the 14 Associate Chief of Staff of Education, Dr. John Byrne, to 15 execute an "Affiliation Agreement" between LLVAMC and the 16 University of Kansas in February 2009. (PSUF ¶ 10-11.) 17 18 Plaintiff's direct supervisor, Edna Dahlan, approved 19 Plaintiff for one day, or eight hours, of leave per week 20 beginning February 5, 2009 for Plaintiff's clinical 21 rotation. (PSUF ¶ 6.) Per Plaintiff's Clerkship Guide 22 for the Pharm. D. degree program, clinical rotations were 23 required to be completed within four months. 24 19.) (PSUF ¶ In March 2009, Plaintiff realized that she would be 25 unable to complete her rotation by her school's deadline 26 at the rate of eight hours of clinical rotation per week. 27 (PSUF ¶ 7.) 28 34 1 Having exhausted her annual leave, Plaintiff 2 submitted to Dahlan a request for Leave Without Pay 3 ("LWOP") for 40 hours per week, so she could complete her 4 rotation that began in February 2009 by the end of April 5 2009. (PSUF ¶¶ 8, 12.) LWOP is an unpaid, approved 6 absence that may be used instead of paid leave, but 7 requires supervisory approval in advance. (DSUF ¶ 9.) 8 Approval of LWOP is a matter of administrative 9 discretion. (DSUF ¶ 10.) LLVAMC employees were 10 permitted to submit LWOP requests for educational 11 purposes. (DSUF ¶ 11.) If the request for LWOP was for 12 a period exceeding 30 consecutive calendar days, then the 13 LLVAMC employee was required to submit a written 14 memorandum for the request, along with supporting 15 documentation to her service chief. (DSUF ¶ 12.) The 16 AFGE Master Agreement provides that LWOP is not 17 discretionary "when requested by an employee who has 18 suffered an incapacitating job-related injury or illness 19 and is waiting adjudication of a claim for employee 20 compensation by the Office of the Workers' Compensation 21 Program ...." (PSUF ¶ 102.) 22 23 Plaintiff's request for LWOP required approval by 24 Kawahara. (PSUF ¶ 8.) Plaintiff followed up with 25 Kawahara to determine the status of her request for LWOP, 26 and he stated he could not approve her request because 27 she sought over 30 days of LWOP and that her request had 28 35 1 to be approved by the Associate Director. (PSUF ¶ 16.) 2 Kawahara was under the impression that Plaintiff was 3 going to complete her clinical rotation by the end of 4 April 2009. (DSUF ¶ 7.) Kawahara did not ask Plaintiff 5 for any documentation to substantiate her request at that 6 time. (PSUF ¶ 22.) Plaintiff then inquired of the 7 acting Associate Director about her request for LWOP and 8 was told that pharmacy management would only allow eight 9 hours per week for the clinical rotation and advised 10 Plaintiff to speak with Human Resources in the event she 11 needed further assistance. (PSUF ¶ 17.) Plaintiff then 12 consulted with Human Resources, specifically Cory 13 Werdebaugh, to seek assistance with her request for LWOP 14 so she should complete her clinical rotation timely. 15 (PSUF ¶ 18-20.) Plaintiff submitted supporting 16 documentation to Werdebaugh to Werdebaugh's satisfaction 17 that Plaintiff's involvement in the Pharm. D. program was 18 legitimate and her request for LWOP was justified. (See 19 Curd Decl., Exs. V-15 to V-19, 98:13-102:22; V-27, 20 139:19-140:5; X-12, 331:1-9.) 21 22 On April 13, 2009, Werdebaugh informed Plaintiff that 23 she had worked with Kawahara and he agreed to allow 24 Plaintiff 16 hours of LWOP per week so she could complete 25 her clinical rotation on time. 26 6.) (PSUF ¶ 23; DSUF ¶¶ 5, Plaintiff's resulting schedule was that she worked 27 as a paid pharmacist on Mondays, Wednesdays, and Fridays, 28 36 1 and performed her clinical rotation at LLVAMC on Tuesdays 2 and Thursdays in LWOP status. (PSUF ¶ 24.) 3 4 On June 3, 2009, Plaintiff requested to switch her 5 last clinical rotation day (Thursday, June 4, 2009) to 6 Friday, June 5, 2009 because her preceptor would not be 7 available that Thursday to complete Plaintiff's 8 evaluation. (PSUF ¶ 25.) Kawahara required Plaintiff to 9 submit supporting documentation for her leave request 10 before he would approve her request to switch her regular 11 LWOP clinical rotation day with her paid work day.7 12 (PSUF ¶ 26.) 13 14 Without providing advance notice to Plaintiff or 15 Human Resources, Kawahara designated Plaintiff as Absent 16 Without Leave ("AWOL") from the beginning of May 2009 17 through June 2009. (DSUF ¶ 8; PSUF ¶¶ 27-29, 34.) 18 Plaintiff had only been taking the leave which had been 19 approved during that time. (PSUF ¶ 31.) AWOL status is 20 an unapproved unpaid absence designation and is not a 21 disciplinary action, but can be used to support a 22 disciplinary action. (DSUF ¶¶ 15-16.) Plaintiff 23 complained to Kawahara via email and copied her direct 24 7 The parties do not submit admissible evidence to demonstrate whether or not Plaintiff was allowed 26 ultimately to switch her shift and complete her clinical rotation on June 5, 2009. It appears to the Court, based 27 on the totality of the admissible evidence submitted, however, that Plaintiff was able to complete her clinical 28 rotation timely. 25 37 1 supervisor, an EEO manager, and a payroll supervisor 2 about this designation. (DSUF ¶ 13; PSUF ¶¶ 32-34.) 3 Human Resources mediated the dispute and Kawahara changed 4 Plaintiff's AWOL status to LWOP status shortly 5 thereafter. (DSUF ¶ 13; PSUF ¶ 44.) 6 7 In June 2009, Werdebaugh informed Plaintiff that 8 pharmacy management would not authorize LWOP for 9 Plaintiff to perform clinical rotations either at the 10 LLVAMC or at another facility. (PSUF ¶ 45.) This 11 required Plaintiff to complete her clinical rotations 12 during evenings and weekends at other facilities. (Id.) 13 Werdebaugh offered to switch Plaintiff's shift at LLVAMC 14 to graveyard or weekends, but Plaintiff declined because 15 she believed the shift change would have been permanent. 16 (DSUF ¶ 21; PSUF ¶¶ 46-47.) 17 18 Around June 2009, Kawahara approved an externship for 19 Derek Abrams, a clerk in the Pharmacy Services department 20 at LLVAMC, to be completed at the LLVAMC pharmacy. (Curd 21 Decl., Ex. W-11, 12; Reply at 7 n.6 ("It is undisputed 22 that another Loma Linda pharmacy employee was allowed to 23 conduct an externship for a technician license ... at 24 Loma Linda VAMC.") Abrams completed his externship at 25 LLVAMC during evenings and weekends, outside of his 26 scheduled work shifts. (See Supp. Cameron-Banks Decl., 27 Ex. 14 at 182:2-22.) 28 38 1 Plaintiff filed an EEO complaint against Kawahara on 2 August 24, 2009, complaining about his designation of her 3 leave status as AWOL. (PSUF ¶ 48.) 4 5 Plaintiff experienced panic attacks and anxiety and 6 she requested LWOP pursuant to the Family Medical Leave 7 Act ("FMLA") in September 2009. (DSUF ¶ 22; PSUF ¶ 50.) 8 Plaintiff's request was granted and she did not return to 9 work until October 21, 2009. 10 53.) (DSUF ¶ 23; PSUF ¶¶ 50, Plaintiff completed her Pharm. D. degree clinical 11 rotations off-site in December 2009. (PSUF ¶ 53.) 12 13 B. Plaintiff's EEO Claim Folder 14 On February 10, 2010, a LLVAMC EEO manager 15 inadvertently left Plaintiff's EEO file in the LLVAMC 16 canteen. (DSUF ¶ 25.) Plaintiff was alerted that her 17 file was left in the canteen and she retrieved it. 18 ¶ 26; PSUF ¶¶ 59, 60.) (DSUF Plaintiff reviewed the file's 19 contents and found it contained her pending EEO claim 20 filed August 22, 2009. (PSUF ¶ 60.) Plaintiff contacted 21 her EEO representative and arranged to give the folder to 22 her representative to give to her lawyer. (PSUF ¶ 61.) 23 24 The following day, Plaintiff received an email dated 25 February 10, 2010 from Diana Gellentien, the acting EEO 26 manager, telling her Gellentien had accidentally left 27 Plaintiff's EEO folder in the canteen and asking 28 39 1 Plaintiff to return it. (DSUF ¶ 27; PSUF ¶ 62.) 2 Plaintiff replied that her attorney had the folder and 3 that he would be contacting the VA director and the VA's 4 counsel because of the privacy breach. (PSUF ¶ 63.) 5 Plaintiff did not receive a response to her email. (PSUF 6 ¶ 64.) 7 8 On February 12, 2010, while Plaintiff was in the mail 9 room of the pharmacy at LLCAMC, Kawahara ordered her to 10 go with him to Dahlan's office and escorted her there. 11 (PSUF ¶ 65.) When Plaintiff arrived at Dahlan's office 12 with Kawahara, Craig Curtis, an information security 13 officer, and Dahlan were present. (PSUF ¶ 66.) At the 14 meeting, Plaintiff explained that she had not obtained 15 her file illegally and she would deliver the file back to 16 LLCAMC once she was able to speak with her attorney. 17 (PSUF ¶ 69.) 18 19 After the meeting was over, Plaintiff attempted to 20 leave Dahlan's office but Kawahara closed the door and 21 told her to stay behind with Dahlan. (PSUF ¶ 72.) 22 Kawahara gave Plaintiff a memorandum notifying her of a 23 reassignment to the outpatient pharmacy. 24 PSUF ¶ 73.) (DSUF ¶ 32; The reason Kawahara gave for the transfer 25 was that the outpatient department was understaffed. 26 (PSUF ¶ 74.) Sam told Plaintiff that the outpatient 27 pharmacy was not understaffed at that time and that no 28 40 1 one had consulted her about transferring Plaintiff to the 2 outpatient pharmacy. (PSUF ¶ 75.) 3 4 Plaintiff timely returned her EEO file to Curtis. 5 (PSUF ¶ 71.) 6 7 Following the meeting, Plaintiff had a panic attack. 8 (PSUF ¶ 77.) She believed that the panic attack was 9 triggered because in 2003 she had been transferred out of 10 the outpatient pharmacy because of harassment by her co11 workers in the outpatient pharmacy. (Id.) Many of the 12 same employees Plaintiff had problems with previously 13 were still working in the outpatient pharmacy. (Id.) 14 Plaintiff also believed her reassignment caused her to 15 experience flashbacks to a 2003 investigation by the 16 Administrative Board of Investigation ("ABOI"). 17 78.) (PSUF ¶ Plaintiff attempted to return to work on February 18 15, 2010 but felt too overwhelmed by stress and anxiety 19 and went back on FMLA leave. (DSUF ¶ 37; PSUF ¶ 79.) 20 Plaintiff remained on unpaid leave, including FMLA, LWOP, 21 AWOL, and donated leave, from February 16, 2010 through 22 January 31, 2012. (Werdebaugh Decl., Ex. 4-54 to 4-69.) 23 24 On March 22, 2010, Plaintiff filed an EEO complaint 25 regarding her EEO file being left in the canteen, her 26 treatment during the meeting with Curtis, Kawahara, and 27 28 41 1 Dahlan about the file, and about her reassignment back to 2 the outpatient pharmacy. (PSUF ¶ 80.) 3 4 C. 5 Plaintiff requested advanced sick leave on March 26, 6 2010. Plaintiff's Request for Advanced Sick Leave (PSUF ¶ 81.) Kawahara denied the request on April 7 28 2010, stating in a letter to Plaintiff that he denied 8 the request because Plaintiff did not meet the criteria 9 for advanced sick leave and due to workload and staffing 10 requirements in the LLVAMC pharmacy. 11 PSUF ¶ 84.) (DSUF ¶¶ 39, 40; Kawahara also stated in the letter that the 12 leave was not justifiable given Plaintiff's continuing 13 absences. (DSUF ¶ 41.) Also in the letter, Kawahara 14 suggested that Plaintiff apply for a disability 15 retirement or resign. (PSUF ¶ 85.) This was not the 16 first time Kawahara suggested Plaintiff do so. (Id.) 17 18 Eight criteria must be considered for approval of an 19 advanced sick leave request, according to LLVAMC policy. 20 (PSUF ¶ 86.) Plaintiff believed she was unable to return 21 to work because of her medical condition. (PSUF ¶ 87.) 22 Plaintiff intended to return to duty and no one at the VA 23 asked Plaintiff if she intended to do so. 24 88.) (PSUF ¶¶ 83, The LLVAMC Associate Director, Shane Elliott, 25 admitted there was a need for Plaintiff's services on her 26 return and that Plaintiff had not abused her leave. 27 (PSUF ¶¶ 89, 92.) Plaintiff had worked at LLVAMC for 28 42 1 more than one year, and Plaintiff had been rated "fully 2 successful" by her supervisor, Dahlan. (PSUF ¶¶ 91, 93.) 3 4 On July 14, 2010, Plaintiff filed an EEO complaint 5 for the denial of her request for advanced sick leave. 6 (PSUF ¶ 95.) 7 8 D. Plaintiff's Return to Work 9 On August 5, 2011, Plaintiff advised Werdebaugh that 10 she was available to return, but the LLVAMC would not 11 allow her to return until January 3, 2012. (PSUF ¶ 97.) 12 Although Plaintiff was available to return to work as of 13 August 5, 2011, she was designated AWOL from April 22, 14 2010 through December 30, 2011 and as LWOP from January 15 3, 2012 through January 31, 2012 when she returned to 16 work part-time. (PSUF ¶¶ 98, 105.) Plaintiff returned 17 to full time work at LLVAMC starting on February 1, 2012. 18 (PSUF ¶¶ 99, 105.) 19 20 Plaintiff filed a worker's compensation claim for 21 job-related stress in November 2010, which was pending 22 while she was on leave from November 2010 until after she 23 returned to work in February 2012. (PSUF ¶ 100.) 24 25 Plaintiff was on FMLA leave from February 19, 2013 26 through April 8, 2013 due to panic attacks. 27 106.) 28 43 (PSUF ¶ 1 Plaintiff is currently undergoing treatment for her 2 psychological and physical problems. (PSUF ¶ 103.) 3 4 E. Kawahara's Other Treatment of Plaintiff 5 Kawahara has given preferred shifts to Asian staff 6 rather than to Plaintiff or other non-Asian staff in the 7 Pharmacy Services department, even after Plaintiff 8 attained seniority. (PSUF ¶ 107.) 9 10 Plaintiff suffered what she describes as severe 11 emotional distress that she believes has been caused by 12 Kawahara's treatment of her, which she believes has 13 gotten progressively worse after each time she reported 14 his actions to the EEO or the Human Resources department. 15 (PSUF ¶ 108.) 16 17 18 V. DISCUSSION Defendant moves for summary judgment, or in the 19 alternative summary adjudication, of Plaintiff's claims 20 for retaliation and harassment/hostile work environment, 21 both in violation of Title VII. 22 23 By way of background, courts analyze "Title VII 24 claims through the burden-shifting framework of McDonnell 25 Douglas v. Green, 411 U.S. 792 (1973)." Hawn v. Exec. 26 Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). 27 "Under this analysis, plaintiffs must first establish a 28 44 1 prima facie case of employment discrimination." Id. To 2 establish a prima facie case, the plaintiff "must offer 3 evidence that 'give[s] rise to an inference of unlawful 4 discrimination.'" Id. at 1156 (quoting Goodwin v. Hunt 5 Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) 6 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 7 U.S. 248, 253 (1981))). Alternatively, plaintiffs may 8 establish their prima facie case "by providing direct 9 evidence suggesting that the employment decision was 10 based on an impermissible criterion." E.E.O.C. v. Boing 11 Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (citing Cordova 12 v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 13 1997)). 14 15 Once the plaintiff has established a prima facie 16 case, the burden shifts and the defendant must "provide a 17 legitimate, non-discriminatory reason for the employment 18 action." Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 19 641 (9th Cir. 2003). The defendant need offer only 20 reasons that, "taken as true, would permit the conclusion 21 that there was a non-discriminatory reason for the 22 adverse action." St. Mary's Honor Ctr. v. Hicks, 509 23 U.S. 502, 509 (1993) (emphasis in original). The 24 defendant bears this burden of production but the burden 25 of persuasion remains with the plaintiff: "The defendant 26 need not persuade the court that it was actually 27 motivated by the proffered reasons. . . . 28 45 It is 1 sufficient if the defendant's evidence raises a genuine 2 issue of fact as to whether it discriminated against the 3 plaintiff." Burdine, 450 U.S. at 254 (citing Bd. of Trs. 4 of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 (1978)). 5 6 Once the defendant has provided a "legitimate, non- 7 discriminatory reason for the employment action," then 8 the burden shifts back to the plaintiff to show that this 9 articulated reason was "pretextual." 10 at 641. Vasquez, 349 F.3d "A plaintiff can show pretext directly, by 11 showing that discrimination more likely motivated the 12 employer, or indirectly, by showing that the employer's 13 explanation is unworthy of credence." Id. "To show 14 pretext using circumstantial evidence, a plaintiff must 15 put forward specific and substantial evidence challenging 16 the credibility of the employer's motives." Id. 17 18 At the summary judgment stage, "the district court 19 must look at the evidence supporting the prima facie 20 case, as well as the other evidence offered by the 21 plaintiff to rebut the employer's offered reasons. And, 22 in those cases where the prima facie case consists of no 23 more than the minimum necessary to create a presumption 24 of discrimination under McDonnell Douglas, plaintiff has 25 failed to raise a triable issue of fact." Wallis v. J.R. 26 Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (clarifying 27 the plaintiff's burden at the summary judgment stage as 28 46 1 set forth in Sischo-Nownejad v. Merced Cmty. Coll. Dist., 2 934 F.2d 1104, 1111 (9th Cir. 1993)). "Thus, the mere 3 existence of a prima facie case, based on the minimum 4 evidence necessary to raise a McDonnell Douglas 5 presumption, does not preclude summary judgment." Id. 6 7 The Court discusses each of Plaintiff's Title VII 8 claims in turn. 9 10 A. Retaliation 11 Defendant argues that Plaintiff cannot establish a 12 prima facie case of Title VII retaliation or evidence 13 sufficient to rebut Defendant's legitimate reasons for 14 the employment decisions at issue here. (See Mot. at 6- 15 11.) 16 17 Title VII prohibits adverse employment actions 18 against an employee who has "opposed any practice made an 19 unlawful employment practice by this subchapter [(Title 20 VII)]" or who has "made a charge, testified, assisted, or 21 participated in any manner in an investigation, 22 proceeding, or hearing under this subchapter." 23 § 2000e-3. 42 U.S.C. The analysis of a retaliation case is similar 24 to that of a discrimination case under Title VII, where 25 the plaintiff must establish a prima facie case of 26 retaliation, then the employer must articulate a 27 legitimate, non-retaliatory reason for its action, and 28 47 1 the plaintiff must show that the employer's reason is a 2 pretext. See Stegall v. Citadel Broadcasting Co., 350 3 F.3d 1061, 1065 (9th Cir. 2003). The elements of a prima 4 facie case for retaliation are: (1) that the plaintiff 5 engaged in a protected activity under Title VII, (2) that 6 the employer subjected the plaintiff to an adverse 7 employment action, and (3) that a causal link exists 8 between the protected activity and the employer's action. 9 See Westendorf v. W. Coast Contractors of Nevada, Inc., 10 712 F.3d 417, 422 (9th Cir. 2013); Villiarimo v. Aloho 11 Is. Air., Inc., 281 F.3d 1054, 1064 (9th Cir. 2002); 12 Passantino v. Johnson & Johnson Consumer Prods., Inc., 13 212 F.3d 493, 506 (9th Cir. 2000); Yartzoff v. Thomas, 14 809 F.2d 1371, 1375 (9th Cir. 1987). Plaintiff must 15 prove that the unlawful retaliation would not have 16 occurred "but for" the alleged wrongful or discriminatory 17 motivation. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 18 S. Ct. 2517, 2534 (2013) ("a plaintiff making a 19 retaliation claim under [Title VII] must establish that 20 his or her protected activity was a but-for cause of the 21 alleged adverse action by the employer"). 22 23 As he does not have the burden of proof on this issue 24 at trial, Defendant meets his burden on the Motion by 25 pointing to the absence of evidence. 26 at 325. Celotex, 477 U.S. The burden now shifts to the Plaintiff to 27 28 48 1 establish her prima facie retaliation claim. Stegall, 2 350 F.3d at 1065. 3 4 1. Protected Activity 5 Plaintiff presents undisputed, admissible evidence 6 that she engaged in protected activity here, by filing 7 several EEO complaints about the treatment to which she 8 was subjected by her employer. See Raad v. Fairbanks N. 9 Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 10 2003) (protected activities include filing charge or 11 complaint, providing testimony regarding employer's 12 alleged unlawful practices, and engaging in activity 13 intended to oppose employer's discriminatory practices); 14 Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007) 15 (filing EEO claims is protected activity); (PSUF ¶¶ 35, 16 37, 48, 80, 95). Moreover, Plaintiff's evidence 17 demonstrates that she complained to Human Resources about 18 her treatment and spoke with an EEO counselor, which are 19 protected activities under Title VII. See Dawson v. 20 Entek Intern., 630 F.3d 928, 936 (9th Cir. 2011) (meeting 21 with human resources and discussing mistreatment 22 complaint is protected activity); Hashimoto v. Dalton, 23 118 F.3d 671, 680 (9th Cir. 1997) (holding that meeting 24 with an EEO counselor is a protected activity); see also 25 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 n.19 26 (9th Cir. 2004) (citing Hashimoto with approval); (see, 27 e.g., PSUF ¶ 20, 23, 32-34, 44-46, 63, 108.) 28 49 Plaintiff 1 meets her burden to establish this element of her prima 2 facie retaliation claim. 3 4 2. 5 Plaintiff presents admissible evidence that Defendant Adverse Employment Action 6 subjected her to the following employment actions that 7 she claims are adverse:8 (1) she was designated AWOL in 8 May 2009 (PSUF ¶¶ 28-35, 44); (2) she was denied LWOP 9 status to perform clinical rotations at LLVAMC in June 10 2009 (PSUF ¶¶ 45-47); (3) in February 2010, she was 11 threatened with a privacy violation reproval if she did 12 not return her EEO file (DSUF ¶ 30; PSUF ¶¶ 60-67, 69); 13 (4) she was reassigned in February 2010 to a department 14 from which Plaintiff had been transferred previously 15 because of negative issues with other employees who 16 worked in that unit and her then-supervisor (PSUF ¶¶ 7217 74, 77-78); and (5) she was denied advanced sick leave 18 and was subsequently assigned AWOL status (PSUF ¶ 84-85, 19 97-99). (See Opp'n at 12-13.) 20 21 An adverse employment action is "any adverse 22 treatment that is based on a retaliatory motive and is 23 24 8 As stated supra, Absent Without Leave ("AWOL") 25 status is an unapproved unpaid absence and is not a disciplinary action, but can be used to support a 26 disciplinary action. (DSUF ¶¶ 15-16.) Leave Without Pay ("LWOP") is an unpaid, approved absence that may be used 27 instead of paid leave, but requires supervisory approval in advance. (DSUF ¶ 9.) Approval of LWOP is a matter of 28 administrative discretion. (DSUF ¶ 10.) 50 1 reasonably likely to deter the charging party or others 2 from engaging in protected activity." 3 217 F.3d 1234, 1242-43 (9th Cir. 2000). Ray v. Henderson, The Ninth 4 Circuit has provided the following guidance with respect 5 to whether an action taken by an employer against an 6 employee constitutes an "adverse employment action" for 7 purposes of a Title VII retaliation claim: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 We have found that a wide array of disadvantageous changes in the workplace constitute adverse employment actions. While "mere ostracism" by co-workers does not constitute an adverse employment action, see Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996), a lateral transfer does. In Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987), we held that "[t]ransfers of job duties and undeserved performance ratings, if proven, would constitute 'adverse employment decisions.'" The Yartzoff decision was in line with our earlier decision in St. John v. Employment Development Dept., 642 F.2d 273, 274 (9th Cir. 1981), where we held that a transfer to another job of the same pay and status may constitute an adverse employment action. Similarly, in Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997), we found that the dissemination of an unfavorable job reference was an adverse employment action "because it was a 'personnel action' motivated by retaliatory animus." We so found even though the defendant proved that the poor job reference did not affect the prospective employer's decision not to hire the plaintiff: "That this unlawful personnel action turned out to be inconsequential goes to the issue of damages, not liability." Id. [¶] In Strother, we examined the case of an employee who, after complaining of discrimination, was excluded from meetings, seminars and positions that would have made her eligible for salary increases, was denied secretarial support, and was given a more burdensome work schedule. 79 F.3d at 869. We determined that she had suffered from adverse employment actions. Id. 25 Id. at 1241-43 (finding lateral transfers, unfavorable 26 job references, and changes in work schedules to be 27 "reasonably likely to deter employees from engaging in 28 51 1 protected activity" and constituted adverse employment 2 actions under Title VII). 3 4 5 a) AWOL status in May 2009 Plaintiff argues certain conduct, even if later 6 reversed, may still constitute an adverse action 7 prohibited by Title VII, that the jury could find the 8 AWOL designation could dissuade a reasonable employee 9 from engaging in protected activity, and the designation 10 damaged Plaintiff by causing her emotional distress and 11 fear that she could lose her job. (See Opp'n at 13 12 (citing Thompson v. Donahoe, __ F. Supp. 2d__, 2013 WL 13 3286196 at *8 (N.D. Cal. Jun. 27, 2013), Burlington 14 Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 15 (2006), and Rivers v. Potter, 2007 WL 4440880 (D. N.J. 16 Dec. 18, 2007).) In response, Defendant argues the AWOL 17 designation in May 2009 did not constitute an "adverse 18 employment action" because it was temporary and corrected 19 shortly after Plaintiff complained. (See Mot. at 7 20 (citing Brooks v. City of San Mateo, 229 F.3d 917, 930 21 (9th Cir. 2000) and Mendoza v. Sysco Food Serv. of 22 Arizona, Inc., 337 F. Supp. 2d 1172, 1184 (D. Ariz. 23 2004)).) 24 25 This case more closely resembles the cases relied 26 upon by Defendant, where no adverse employment action was 27 found. 28 52 1 For example, Defendant relies on Brooks v. City of 2 San Mateo, where the city employer scheduled the 3 plaintiff to work an undesirable shift and denied her 4 vacation preference. The Ninth Circuit held this conduct 5 did not amount to an adverse employment action, noting 6 that after the plaintiff complained about the shift 7 change, the city "accommodated her preferences by 8 allowing her to switch shifts and vacation dates with 9 other employees." 229 F.3d at 930. Hence, given that 10 the shift change was not final and the city had 11 accommodated plaintiff's request for shift and vacation 12 date changes, there was no adverse employment action. 13 Id. Brooks is factually similar to this case. 14 15 Here, based on the undisputed evidence, Plaintiff 16 obtained approval to complete a clinical rotation at 17 LLVAMC starting in February 2009. (DSUF ¶¶ 5, 6; PSUF ¶¶ 18 6, 8, 12, 16, 18-20, 23, 24; Curd Decl., Ex. V-15 to V19 19, V-27, X-12.) Plaintiff abided by the approved 20 schedule that accommodated her clinical rotation and only 21 took leave that had been approved in advance. 22 31.) (PSUF ¶ Kawahara, however, designated Plaintiff as AWOL 23 over a period of approximately one month without 24 notifying Plaintiff. (DSUF ¶ 8; PSUF ¶¶ 27-29, 34.) 25 Although AWOL (unpaid, unapproved leave) status, in and 26 of itself, was not considered by LLVAMC to be a form of 27 discipline, an AWOL designation could support discipline 28 53 1 of the employee. (DSUF ¶¶ 15-16.) Plaintiff understood 2 she could have been disciplined for being in AWOL status. 3 (PSUF ¶ 30.) Plaintiff complained about her AWOL status 4 when her clinical rotations had been approved for LWOP. 5 (DSUF ¶ 13; PSUF ¶¶ 32-34.) Human Resources mediated the 6 dispute and Kawahara corrected Plaintiff's records to 7 reflect LWOP instead of AWOL status. 8 44.) (DSUF ¶ 13; PSUF ¶ As in Brooks, Kawahara's designation of Plaintiff 9 as AWOL was not "final" and Kawahara eventually changed 10 Plaintiff's status to LWOP after she complained. Brooks, 11 229 F.3d at 930. 12 13 Likewise, Defendant cites Mendoza v. Sysco Foods 14 Serv. of Arizona, Inc., in which the District Court found 15 an employer's change to the plaintiff's delivery route 16 and subsequent criticism of the plaintiff for the length 17 of time he spent to complete his deliveries, did not 18 constitute an adverse employment action. 19 Supp. 2d at 1184. Mendoza, 337 F. In that case, Mendoza sought relief 20 informally by meeting with Human Resources staff along 21 with his union steward to lodge a complaint about his new 22 delivery route. Id. The plaintiff apparently obtained 23 relief through the employer's grievance procedure. Id. 24 at 1177 ("He declares that he obtained relief only after 25 he went to Sysco's Human Resources Center with his union 26 steward and complained. Plaintiff does not explain 27 exactly what relief he obtained.") 28 54 There, relying on 1 Brooks, the Court reasoned that because the plaintiff had 2 received relief through the employer's grievance 3 procedure, the original change to the plaintiff's 4 delivery route did not constitute an adverse employment 5 action. Id. at 1184. Mendoza is not binding on this 6 Court, but it is persuasive given the factual 7 similarities to the present action, i.e., as in Mendoza, 8 Plaintiff employed informal internal grievances 9 procedures to remedy the AWOL designation. 10 11 Plaintiff's cited authorities are distinguishable 12 factually, as discussed below. 13 14 Plaintiff first relies on Burlington Northern & Sante 15 Fe Ry. Co. v. White, where the Supreme Court found a 16 plaintiff's 37-day suspension without pay constituted an 17 adverse employment action, even though it was later 18 rescinded and the plaintiff was provided back-pay. 19 Burlington, 548 U.S. at 72-73. The Supreme Court pointed 20 out the severe burden imposed on the plaintiff and her 21 family if forced to forego a paycheck for over one month, 22 noting that "[a] reasonable employee facing the choice 23 between retaining her job (and paycheck) and filing a 24 discrimination complaint might well choose the former." 25 Id. at 73. In light of the severity of such a sanction, 26 even if temporary, the Supreme Court found it qualified 27 as an adverse employment action. 28 55 Id. 1 Here, Plaintiff was not forced to forego a paycheck 2 she otherwise would have been entitled to when she was in 3 AWOL status; both AWOL and LWOP statuses are unpaid. In 4 addition, although Plaintiff claims she suffered anxiety 5 and emotional distress at the prospect of discipline for 6 AWOL status, any emotional suffering was short-lived as 7 Kawahara changed her status to LWOP shortly after she 8 complained. Plaintiff's short span of emotional distress 9 contrasts sharply with the Burlington plaintiff's loss of 10 income for more than one month. 11 12 Plaintiff next relies on Thompson v. Donahoe, in 13 which the District Court found as follows: 14 15 16 17 18 The Ninth Circuit has not addressed the issue, and therefore this Court assumes without deciding that issuing Plaintiff a letter of warning was an adverse employment action. Defendant likewise cites no case law for the proposition that sending an employee a notice of suspension is not an adverse employment action where the suspension was later rescinded. The Court assumes that this also constitutes an adverse employment action. 19 2013 WL 3286196, at *8. Aside from the fact that Donahoe 20 is not binding precedent, the Court finds this case of 21 little authority on the point relied upon by Plaintiff 22 for two reasons. First, the Donahoe court assumed 23 without actually deciding the issue of whether a 24 suspension notice that was later withdrawn constituted an 25 adverse employment action. Second, Donahoe is further 26 distinguishable from the present action, as Plaintiff was 27 never issued a suspension notice, which is a form of 28 56 1 discipline. Rather, Plaintiff's AWOL designation was 2 not, in and of itself, a form of discipline, although it 3 could be used to support discipline in the future. 4 ¶¶ 15-16.) (DSUF Finally, the Court is not persuaded to adopt 5 Donahoe's reasoning, as Defendant has cited a binding 6 Ninth Circuit case that is analogous factually, i.e., 7 Brooks. 8 9 Plaintiff also cites the non-binding authority of 10 Rivers v. Potter, a case decided by the New Jersey 11 District Court. In Rivers, the plaintiff had been issued 12 a warning letter that was later reduced to an official 13 discussion after the plaintiff complained. 14 WL 4440880, at *1, 9. Rivers, 2007 Citing Burlington, the District 15 Court found "[t]he letter of warning ... constitutes the 16 kind of materially adverse employment action that could 17 support a retaliation claim under Title VII" because it 18 could "cause an employee to reconsider bringing an EEO 19 charge." Id. at *9. This case is of little, if any, 20 persuasive value here. 21 22 As Plaintiff has not presented the Court with any 23 authority dictating a finding that her AWOL designation 24 should be considered an adverse employment action, the 25 Court is compelled to follow the Ninth Circuit's decision 26 in Brooks. Accordingly, Plaintiff has not met her burden 27 as to this element of her prima facie retaliation claim. 28 57 1 See Brooks, 229 F.3d at 930; see also Mendoza, 337 F. 2 Supp. 2d at 1184. 3 4 5 6 b) Denial of LWOP for clinical rotations after June 2009 Plaintiff argues Defendant unreasonably denied her 7 request for LWOP status to complete her clinical 8 rotations at LLVAMC after June 2009: she contends a jury 9 could reasonably find such an action would dissuade a 10 reasonable employee from engaging in protected activity. 11 (See Opp'n at 13 (citing Burlington, 548 U.S. at 69).) 12 Defendant argues "[d]enial of Plaintiff's preferred 13 abbreviated work schedule to perform her personal 14 educational pursuits at Loma Linda VAMC during her 15 preferred time does not constitute a[n] [] [adverse] 16 employment [] action." (Mot. at 7.) 17 18 As an initial matter, Burlington does not support 19 Plaintiff's argument. Plaintiff relies on the following 20 statement in the Burlington decision: "Excluding an 21 employee from a weekly training lunch that contributes 22 significantly to the employee's professional development, 23 might well deter a reasonable employee from complaining 24 about discrimination." (Opp'n at 13-14.) First, this 25 language is dicta and is not binding precedent. Second, 26 the scenario contemplated by the Supreme Court's 27 hypothetical is entirely distinguishable from the facts 28 58 1 presented here. Plaintiff was not excluded from 2 professional development opportunities available to other 3 employees. In fact, the undisputed evidence shows that 4 Plaintiff was one of two employees at LLVAMC who were 5 allowed to complete professional training at LLVAMC. 6 Accordingly, Burlington does not support Plaintiff's 7 argument. 8 9 In fact, applying Burlington's reasonable employee 10 standard, a reasonable employee would not expect her 11 employer to allow her to work part-time for approximately 12 one year - the length of time it took Plaintiff to 13 complete her Pharm D. clinical rotations - so that she 14 could complete an advanced degree and conduct clinical 15 rotations on site where she worked for pay. 16 548 U.S. at 69. Burlington, Although Plaintiff is correct that 17 LLVAMC employees were permitted to seek LWOP for 18 educational attainments (DSUF ¶ 11), those requests were 19 not granted automatically and were subject to the 20 discretion of management (DSUF ¶ 9, 10). Moreover, 21 Werdebaugh testified at her deposition that she 22 intervened to assist Plaintiff with her request to do one 23 clinical rotation at LLVAMC and never indicated to 24 Plaintiff that she would be able to make arrangement for 25 any additional rotations. (See Supp. Cameron-Banks 26 Decl., Ex. 14 at 116:7-22.) 27 28 59 1 Furthermore, Plaintiff was the only LLVAMC employee 2 who had been allowed to complete a clinical rotation on a 3 part-time basis at LLVAMC while having her paid work 4 shift reduced to part-time, when her position did not 5 require an advanced (Pharm D.) degree. 6 21.) (DSUF ¶¶ 3, 17, Derek Abrams, a clerk in the inpatient pharmacy, 7 was permitted to complete an externship at LLVAMC but he 8 completed his externship on his own time, outside of his 9 normal work hours, on nights and weekends. 10 Cameron-Banks Decl., Ex. 14 at 182:2-22.) (See Supp. Based on 11 LLVAMC's policies and the express statements made by 12 Human Resources personnel to Plaintiff, no reasonable 13 employee would have believed they were entitled to pursue 14 their educational development further, beyond the one 15 clinical rotation agreed to by Kawahara and other 16 management at LLVAMC. 17 18 The undisputed evidence also shows that, despite her 19 inability to perform future clinical rotations at LLVAMC, 20 Plaintiff's educational pursuits were accommodated as 21 follows: (1) Plaintiff was offered the opportunity to 22 switch her shift to work on evenings and weekends, so 23 that she could complete her clinical rotations during the 24 day at another facility; and (2) Plaintiff had the 25 opportunity to complete her clinical rotations on 26 evenings and weekends at another Facility in the event 27 she elected not to change her shift. 28 60 (PSUF ¶¶ 45-46; 1 DSUF ¶ 21.) Plaintiff declined the opportunity to change 2 her shift, as she understood the shift change would have 3 been permanent, and completed her clinical rotations off4 site in December 2009. (PSUF ¶¶ 47, 53.) 5 6 Plaintiff has not met her burden to show she suffered 7 an adverse employment action based on the denial of LWOP 8 to complete future clinical rotations. Furthermore, 9 Plaintiff has offered no evidence or legal authority to 10 show how denial of this leave request was "reasonably 11 likely to deter [a reasonable employee] from engaging in 12 protected activity." Ray v. Henderson, 217 F.3d at 1241- 13 43. 14 15 Accordingly, based on the undisputed evidence, the 16 Court finds the decision declining Plaintiff's request to 17 complete her future clinical rotations at LLVAMC on a 18 part-time basis was not an adverse employment action and 19 Defendant reasonably accommodated Plaintiff's educational 20 pursuits. 21 22 23 c) Privacy violation According to Plaintiff, the February 12, 2010 meeting 24 she had with LLVAMC staff regarding the mishandling of 25 her EEO file constituted an adverse employment action. 26 (See Opp'n at 14 ("As to the threat of criminal 27 prosecution over the missing EEO file, being threatened 28 61 1 with criminal prosecution after complaining to the EEO 2 manager that her private EEO file had been left in a 3 public place, and turning the matter over to her attorney 4 for handling, would almost certainly dissuade a 5 reasonable employee from making such complaints, and 6 seeking legal assistance in the future.").) Plaintiff 7 cites no legal authority to support her position and the 8 Court has found inadmissible most of the evidence she 9 relies upon regarding what occurred during the meeting 10 about the EEO file, as discussed supra.9 In particular, 11 the Court has found Curtis's statements made to Plaintiff 12 during the February 12, 2010 meeting inadmissible because 13 the evidence lacks foundation as to whether or not Curtis 14 was employed by LLVAMC when he made the statements. 15 Plaintiff's recitation of Curtis's statements during the 16 meeting in her Declaration are inadmissible hearsay and, 17 in any event, irrelevant as Plaintiff has not established 18 Curtis's employment relationship with LLVAMC. 19 20 21 9 As stated in the Court's evidentiary rulings, 22 although the record before the Court contains testimony from Kawahara, Dahlan, and Plaintiff about Curtis's 23 statements made during the February 12, 2010 meeting, those statements are inadmissible hearsay, as the Court 24 has been provided with no evidence about Curtis's job responsibilities or that he was an employee of LLVAMC to 25 demonstrate whether or not he made those statements within the scope of his employment. The Court found 26 Curtis's statements irrelevant because Plaintiff did not meet her burden to establish that statements made by 27 Curtis, as reported by herself, Kawahara, or Dahlan, are admissible and not hearsay. See Chang, 207 F.3d at 1176. 28 62 1 Even assuming, arguendo, Plaintiff had established 2 Curtis's employment by LLVAMC, Plaintiff's reliance on 3 the temporal proximity between her complaint to her EEO 4 manager and being subject to a meeting regarding the 5 location of her EEO file is misplaced here. 6 at 14.) (See Opp'n First, Plaintiff does not provide the Court with 7 any evidence that Curtis knew Plaintiff had complained to 8 her EEO manager about the file before the February 12, 9 2010 meeting. In addition, the Court finds conclusory 10 and unsupported by legal authority or evidence 11 Plaintiff's argument that a reasonable employee would be 12 dissuaded from engaging in protected activity given the 13 circumstances faced by Plaintiff during the February 12, 14 2010 meeting.10 Plaintiff's argument is further undercut 15 because she was not dissuaded from engaging in protected 16 activity after the meeting, as she filed on March 22, 17 2010 an EEO complaint, in part, about her treatment 18 during the February 12, 2010 meeting. (See PSUF ¶ 80.) 19 20 Accordingly, the Court finds Plaintiff has not met 21 her burden to show that the February 12, 2010 meeting 22 constituted an adverse employment action. 23 24 25 10 A conclusory allegation is insufficient to create a genuine issue of material fact. United States 27 ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011); United States v. Shumway, 199 28 F.3d 1093, 1104 (9th Cir. 1999). 26 63 1 2 d) Transfer to outpatient pharmacy Plaintiff argues next that her transfer to the 3 outpatient pharmacy constituted an adverse employment 4 action because: (1) she previously had been subjected to 5 discrimination in that department and the Administrative 6 Board of Investigations had recommended in 2003 that 7 Plaintiff not be stationed in the outpatient department; 8 (2) her job duties were changed when she was reassigned; 9 (3) Defendant failed to show the persons Plaintiff had 10 previously accused of unlawful harassment and 11 discrimination no longer worked in the outpatient 12 department; and (4) that any reasonable employee would be 13 dissuaded from engaging in protected activity if they 14 were faced with Plaintiff's reassignment. (See Opp'n at 15 14 (citing Yartzoff, 809 F.2d at 1376 and Burlington, 548 16 U.S. 53).) Without citing any authority, Defendant 17 argues Plaintiff's reassignment was not an adverse 18 employment action and that "Plaintiff failed to submit 19 any admissible evidence to establish that the re20 assignment affected her workload, work schedule, or 21 compensation, or that the re-assignment would place her 22 under the supervision of her previously complained about 23 first-line supervisor." (Reply at 9; see also Mot. at 24 8.) 25 26 Depending on the circumstances, a job transfer can 27 amount to an adverse employment action for purposes of 28 64 1 Title VII. See Poland, 494 F.3d at 1180; Yartzoff, 809 2 F.2d at 1376. In Poland11, the Ninth Circuit found the 3 plaintiff had suffered two adverse employment actions: 4 (1) an investigation was initiated against him after he 5 filed an EEO complaint; and (2) he was transferred to 6 Virginia from Portland, Oregon. The district court had 7 found the transfer to Virginia constituted a constructive 8 discharge "'because the reassignment to Virginia resulted 9 in separation from his family and demotion to a 10 nonsupervisory position.'" 494 F.3d at 1179. The Ninth 11 Circuit affirmed the district court's finding. Id. at 12 1180. 13 14 Likewise, in Yartzoff, the Ninth Circuit found the 15 plaintiff was subjected to two adverse employment 16 actions, including the transfer of the plaintiff's 17 duties. 809 F.2d at 1375-76. Over the period of six 18 months, the plaintiff's supervisors "transferred several 19 job duties away from him" and then approximately one year 20 later "transferred additional responsibilities away from 21 him." Id. at 1373. The Ninth Circuit found the 22 plaintiff "clearly met" the second element of his prima 23 facie retaliation claim on this factual basis. Id. at 24 1375-76. 25 11 Although Poland is a case with claims brought under the Age Discrimination and Employment Act ("ADEA"), 27 the Ninth Circuit's discussion of the plaintiff's case adopts the Title VII retaliation framework. The Court 28 finds this analysis persuasive here. 26 65 1 Here, the Court must evaluate each factual basis for 2 Plaintiff's argument to determine whether or not she 3 meets her burden as to this element of her prima facie 4 retaliation claim. 5 6 As to Plaintiff's first basis for claiming the 7 transfer was an adverse action, the Court has ruled, 8 supra, that the findings and recommendations of the 9 Administrative Board of Investigations are inadmissible 10 hearsay and the Court will not consider them. Plaintiff 11 does, however, present admissible evidence through her 12 Declaration that in 2003 she had been transferred from 13 the outpatient pharmacy because she felt harassed by her 14 supervisor, Ron Chan, and six co-workers. (See Uche- 15 Uwakwe Decl. ¶ 42 (limited per the Court's ruling, 16 supra).) Plaintiff also presents undisputed evidence 17 that several of those persons who Plaintiff felt had 18 harassed her previously were working in the outpatient 19 department at the time of her reassignment in February 20 2010. (Id. at ¶ 43 (limited per the Court's ruling, 21 supra).) Moreover, Sam, the outpatient supervisor, told 22 Plaintiff that the outpatient pharmacy was not 23 understaffed at the time of Plaintiff's transfer. 24 at ¶ 41.) The Court finds this basis supported by 25 admissible, undisputed evidence. 26 27 28 66 (Id. 1 As to Plaintiff's second basis, she does not present 2 admissible evidence to show her job duties changed when 3 she was transferred to the outpatient pharmacy. The 4 parties present undisputed, admissible evidence regarding 5 the job duties of inpatient pharmacists at LLVAMC and 6 Plaintiff's job duties as an outpatient pharmacist 7 stationed in the inpatient pharmacy department. (DSUF ¶ 8 35 (limited to the Court's ruling, supra); Supp. Cameron9 Banks Decl., Ex. 15 at 15:6-16:10; Supp. Werdebaugh 10 Decl., Ex. 13.) Neither party, however, presents 11 admissible evidence that Plaintiff's job duties changed 12 in any way when she was transferred to the outpatient 13 pharmacy in February 2010. Accordingly, the Court does 14 not find this basis supported by admissible evidence. 15 16 Plaintiff's third basis is duplicative of the first 17 and does not independently support Plaintiff's argument. 18 Moreover, it is not Defendant's burden to prove 19 Plaintiff's prima facie case. 20 21 As to Plaintiff's fourth basis, the Court finds 22 reassigning an employee to a unit from which she had been 23 transferred previously because of harassment by co24 workers who remain in that department would dissuade a 25 reasonable employee from engaging in protected activity. 26 See Brosseau v. Huagen, 543 U.S. 194, 195 n.2 (2004) 27 ("Because this case arises in the posture of a motion for 28 67 1 summary judgment, we are required to view all facts and 2 draw all reasonable inferences in favor of the nonmoving 3 party ...."); Ray v. Henderson, 217 F.3d at 1241-43. 4 Contrary to Defendant's argument, Plaintiff need not show 5 that her job duties, compensation, and schedule changed 6 in order to show the transfer was an adverse employment 7 action. See Ray v. Henderson, 217 F.3d at 1241-43. 8 9 Based on the admissible evidence, Plaintiff meets her 10 burden as to this element of her prima facie retaliation 11 claim. The transfer of Plaintiff to the outpatient 12 pharmacy, in light of the history of harassment by 13 employees who remained working in that unit at the time 14 of the transfer, constituted an adverse employment 15 action. See Poland, 494 F.3d at 1180; Yartzoff, 809 F.2d 16 at 1376. 17 18 19 e) Denial of advanced leave Finally, Plaintiff argues she suffered an adverse 20 employment action when Defendant denied her request for 21 advanced sick leave.12 (See Opp'n at 14-15.) Plaintiff 22 23 24 25 26 27 28 12 In her Opposition papers, Plaintiff also cites being designated AWOL after being denied advanced sick leave as support for her argument that she suffered an adverse employment action. (See Opp'n at 13 ("(5) Denial of advanced sick leave request prompted by job related stress in April 2010, and subsequent assignment of AWOL status.").) Aside from this reference, however, Plaintiff does not develop her argument about being designated AWOL or even mention it again. The Court cannot intuit Plaintiff's intended argument on this basis (continued...) 68 1 contends she was subjected to significant job-related 2 stress that forced her to take extended leave and 3 necessitated additional sick leave, for which she argues 4 she qualified under the LLVAMC policy. (Id.) She 5 argues, in conclusory fashion and without citing any 6 supporting authority, that "[a]ny reasonable employee in 7 such circumstances would be dissuaded from engaging in 8 protected activity if they thought that doing so would 9 cause them to be denied needed leave." (Id.) Defendant 10 argues, in similarly bald fashion, that no reasonable 11 employee would expect to be "given such a large amount of 12 leave" and that "the denial had no discernible effect on 13 Plaintiff's ability to [] remain away from work for over 14 one and one-half years." (Mot. at 8.) 15 16 The Court first considers whether or not Plaintiff 17 has presented admissible evidence demonstrating her 18 entitlement to advanced sick leave under LLVAMC's policy. 19 20 The LLVAMC advanced sick leave policy states the 21 following: 22 23 24 25 Advanced sick leave may be requested in cases of serious disability or ailments if the employee has no time limit on his/her appointment. Most employees may be advanced up to 240 hours (not in excess of 30 days) of sick leave; employees serving under a time limited or term appointment may be granted advanced sick leave up to the total which would otherwise be earned during the term of appointment. Employees do 26 27 12 (...continued) 28 and will not address it. 69 1 2 3 4 5 6 7 8 not have a vested right to advanced leave, regardless of the circumstances. Employees will originate any requests for advanced leave in writing, along with any supporting evidence or medical documentation, and will be expected to enter his/her leave request in the ETA or completed SF-17 and attach it to the written request. The request package will be submitted to the immediate supervisor. The supervisor will forward the package, with a recommendation for approval/disapproval, to the service chief. The service chief will then address the advanced leave criteria (Attachment C), make a recommendation for approval/disapproval, and forward the package through HRM to the appropriate Vice President for approval/disapproval. 9 (See Werdebaugh Decl, Ex. 5 at p. 7 (emphasis in 10 original).) 11 12 "Attachment C" to LLVAMC's advanced sick leave policy 13 sets out eight criteria for consideration by the service 14 chief, as follows: (1) "The employee must have a serious 15 need for advanced leave;" (2) "The reasonable expectation 16 that the employee will return to duty;" (3) "The need for 17 the employee's services upon return from approved 18 absence;" (4) "Such leave must also meet the needs of the 19 Medical Center and the service involved;" (5) "The 20 employee must have been at the Medical Center for one 21 year;" (6) "The employee must not have a record of leave 22 abuse;" (7) "The employee must have demonstrated 23 performance worthy of the privilege;" and (8) "As of the 24 date of the request, the employee's available balances of 25 annual and sick leave, plus the employee's cumulative 26 usage of leave over the previous two years." 27 12.) 28 70 (Id. at p. 1 Plaintiff presents admissible evidence that she 2 submitted her request for advanced sick leave in writing 3 with supporting medical documentation. (PSUF ¶ 81.) 4 Although Plaintiff presents admissible evidence with 5 respect to Categories 2, 3, and 5 through 7 (see PSUF ¶¶ 6 88, 89, 91-93), Plaintiff fails to present admissible 7 evidence as to Categories 1, 4, and 8, as discussed supra 8 in the Court's evidentiary rulings with respect to PSUF 9 ¶¶ 87, 90, and 94. Plaintiff, thus, did not make a 10 necessary showing as to each category the Vice President 11 was required to consider when evaluating her request for 12 advanced sick leave per LLVAMC's advanced leave policy. 13 Moreover, the policy clearly states (1) employees do not 14 have a vested right to advanced sick leave and (2) that 15 advanced leave will be granted at the discretion of the 16 appropriate Vice President after considering the eight 17 factors identified in "Attachment C" and the 18 recommendations of the employee's immediate supervisor 19 and service chief. (Werdebaugh Decl, Ex. 5 at p. 7, 12.) 20 Based on the terms of the advanced leave policy, no 21 reasonable employee in Plaintiff's circumstances would 22 believe she would obtain advanced leave, in particular 23 296 hours of non-FMLA LWOP, under the established 24 criteria. Furthermore, a reasonable employee would not 25 be dissuaded from engaging in protected activity after 26 their request for advanced leave was denied. 27 Henderson, 217 F.3d at 1241-43. 28 71 See Ray v. 1 Accordingly, the Court finds the denial of 2 Plaintiff's request for advanced leave was not an adverse 3 employment action; Plaintiff has not met her burden as to 4 this element of her prima facie retaliation claim. 5 6 3. 7 Plaintiff has met her burden as to the first two Causation 8 elements of her prima facie retaliation claim based on 9 her transfer to the outpatient pharmacy. The Court now 10 evaluates whether or not Plaintiff meets her burden with 11 respect to the causation element. 12 13 As stated above, Plaintiff must show that her 14 engagement in protected activity was the but-for cause 15 for her reassignment to the outpatient pharmacy. See 16 Nassar, 133 S. Ct. at 2533-34; Westendorf, 712 F.3d at 17 422-23 (applying but-for causation standard to Title VII 18 retaliation claim); Villiarimo, 281 F.3d at 1064-65 19 (same).13 In Villiarimo, the Ninth Circuit stated the 20 following about proving but-for causation in Title VII 21 retaliation cases: 22 23 We have recognized previously that, in some cases, causation can be inferred from timing alone where an adverse employment action follows on the heels of 24 13 The Court notes that the Supreme Court in Nassar announced the but-for causation standard for retaliation 26 claims brought under Title VII on June 24, 2013. The Court relies on Nassar in its analysis, as well as Ninth Circuit precedent that have applied the but-for causation 27 standard to Title VII retaliation cases, but predate the 28 Nassar decision. 25 72 1 protected activity. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that causation can be inferred from timing alone); see also Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) (prima facie case of causation was established when discharges occurred forty-two and fifty-nine days after EEOC hearings); Yartzoff, 809 F.2d at 1376 (sufficient evidence existed where adverse actions occurred less than three months after complaint filed, two weeks after charge first investigated, and less than two months after investigation ended). But timing alone will not show causation in all cases; rather, "in order to support an inference of retaliatory motive, the termination must have occurred 'fairly soon after the employee's protected expression.'" Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000). A nearly 18-month lapse between protected activity and an adverse employment action is simply too long, by itself, to give rise to an inference of causation. See id. (finding that a one-year interval between the protected expression and the employee's termination, standing alone, is too long to raise an inference of discrimination); see also Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398-99 (7th Cir. 1999) (four months too long); Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (eight months too long), cert. denied, 528 U.S. 988, 120 S. Ct. 450, 145 L. Ed. 2d 367 (1999); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five months too long); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (four months). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 281 F.3d at 1064-65. 19 20 Here, Plaintiff's protected activities include filing 21 EEO complaints against Kawahara on September 30, 2008 for 22 employment discrimination (PSUF ¶ 37) and on August 24, 23 2009 for designating her AWOL (PSUF ¶ 48), and 24 complaining to her EEO representative about the 25 mishandling of her EEO file on February 10, 2010 (PSUF ¶ 26 61). Plaintiff's August 24, 2009 EEO complaint was 27 28 73 1 awaiting a hearing as of February 12, 2010. (PSUF ¶ 60.) 2 3 In this analysis, the Court cannot consider evidence 4 of protected activities in which Plaintiff engaged after 5 the adverse employment action; accordingly, any of 6 Plaintiff's protected activities after February 12, 2010 7 are irrelevant, as Plaintiff has established only that 8 her reassignment to the outpatient pharmacy constituted 9 an adverse employment action. See, e.g., see also 10 Richards v. City of Seattle, No. 08-35621, 2009 WL 11 2196895 (9th Cir. July 24, 2009) (affirming district 12 court's grant of summary judgment and noting the 13 plaintiff could not demonstrate a causal nexus where the 14 adverse employment action took place before the protected 15 activity); Diaz v. Connolly, No. 08-16170, 2009 WL 16 1515637 (9th Cir. June 1, 2009) (same).14 17 18 Plaintiff's three relevant protected activities 19 occurred one and a half years, six months, and one day, 20 respectively, before the adverse employment action, i.e., 21 her transfer to the outpatient pharmacy. Plaintiff's 22 first protected activity, the discrimination charge 23 against Kawahara filed in 2008, occurred too long before 24 the adverse employment action to warrant a causation 25 inference. See Miller, 885 F.2d at 505; Yartzoff, 809 26 14 The Court cites both unpublished Ninth Circuit cases as persuasive authority pursuant to Ninth Circuit 28 Rule 36-3(b). 27 74 1 F.2d at 1376; Paluck, 221 F.3d at 1009-10. The remaining 2 two activities, however, are sufficiently close in time 3 to support an inference of causation here. Id. In 4 particular, the August 24, 2009 EEO complaint against 5 Kawahara was pending hearing at the time of the February 6 12, 2010 meeting. The February 12, 2010 meeting 7 concerned the location of Plaintiff's EEO file that 8 contained her August 24, 2009 EEO complaint. Kawahara 9 was a party to the February 12, 2010 meeting about 10 Plaintiff's EEO file. Directly after the February 12, 11 2010 meeting about the EEO file and while Kawahara, 12 Plaintiff, and Dahlan were still in the meeting room, 13 Kawahara issued Plaintiff the notice that she was 14 transferred to the outpatient pharmacy. Given this 15 sequence of events, Plaintiff meets her burden as to this 16 element of but-for causation for her prima facia 17 retaliation case, given the proximity in time between her 18 protected activities and the adverse employment action.15 19 See, e.g., Adusumilli, 164 F.3d at 363 ("in some 20 circumstances, this sequence of events could raise the 21 inference of a causal connection"); see also Miller, 885 22 23 24 15 In the alternative, Plaintiff argues she has 25 presented direct evidence of retaliatory motive, i.e., statements made by Kawahara as relayed by Plaintiff's 26 supervisors and an EEO manager. (Opp'n at 16.) The Court rejects Plaintiff's alternative argument as the 27 Court has found Plaintiff's evidence proffered in support of this argument to be inadmissible hearsay, irrelevant, 28 and unduly prejudicial, discussed supra. 75 1 F.2d at 505; Yartzoff, 809 F.2d at 1376; Paluck, 221 F.3d 2 at 1009-10. 3 4 Accordingly, the Court finds Plaintiff has met her 5 burden to prove each element of her prima facie 6 retaliation claim. 7 8 9 10 4. Defendant's Non-Retaliatory Reason for Adverse Employment Action As Plaintiff has met her burden of showing a prima 11 facie retaliation claim, the burden now shifts to 12 Defendant to articulate a legitimate, non-retaliatory 13 reason for his action. Stegall, 350 F.3d at 1065. 14 15 According to Defendant, Plaintiff was transferred to 16 the outpatient pharmacy "to allow the understaffed 17 outpatient pharmacy section to have full use of the full18 time outpatient pharmacists, and to allow the Loma Linda 19 VAMC Pharmacy management the ability to properly 20 supervise and evaluate Plaintiff's performance." 21 at 10; see also Reply at 10 (same).) (Mot. In his moving 22 papers, Defendant relies on DSUF ¶¶ 33 through 35 to 23 support his argument. (See Mot. at 10). As discussed 24 supra, the Court has found DSUF ¶¶ 33 and 34 unsupported 25 by admissible evidence in full and DSUF ¶ 35 only to be 26 supported by admissible evidence as to the following 27 statements: "At the time, Plaintiff, as an outpatient 28 76 1 pharmacist" and "could not be properly supervised or 2 evaluated [by] the inpatient pharmacy supervisor." Also 3 as to DSUF ¶ 35, the supporting deposition testimony from 4 Dahlan reflects that she, as the inpatient pharmacy 5 manager, had a difficult time evaluating Plaintiff but 6 there is no testimony about why Plaintiff was transferred 7 to the outpatient pharmacy. 8 Ex. 9 at 18:10-20:5.) (See Cameron-Banks Decl., This evidence is insufficient for 9 the Court to infer Defendant had a legitimate reason for 10 transferring Plaintiff to the outpatient pharmacy. 11 12 In his Reply papers, Defendant also cites deposition 13 testimony of Kawahara to support his argument about the 14 purported non-retaliatory reason for Plaintiff's 15 transfer. (See Reply at 10.) Specifically, Kawahara 16 testified that Plaintiff was transferred to the 17 outpatient pharmacy because "she was working under a 18 functional statement as an outpatient pharmacist." 19 (Werdebaugh Decl., Ex. 10 at 156:21-24.) The Court does 20 not find this testimony, in and of itself, evidences the 21 purported non-retaliatory reason proffered by Defendant 22 for Plaintiff's transfer. 23 24 Although Defendant does not cite it in support of his 25 argument that a legitimate, non-retaliatory reason 26 existed for Plaintiff's transfer, Defendant attaches the 27 memorandum Kawahara issued to Plaintiff that instituted 28 77 1 the transfer on February 12, 2010 within his Exhibit 2, 2 which Werdebaugh testified through declaration is "a true 3 and accurate copy of the EEO Complaint for EEO Case No. 4 200P-0605-201010353, along with true and accurate portio. 5 [sic]." (See Werdebaugh Decl., Ex. 2 at 10.) The Court 6 notes that Defendant does not authenticate this 7 memorandum with testimony from Kawahara, Plaintiff, or 8 Dahlan, the three persons in the meeting room when 9 Kawahara issued the memorandum to Plaintiff; Defendant 10 provides portions of testimony from each witness, but 11 none that authenticates this document specifically. 12 Cameron-Banks Decl., Exs. 7, 9, 10.) (See Plaintiff, however, 13 does not dispute the document's authenticity and, in 14 fact, relies upon this document for the truth of the 15 matter in opposing the Motion. (See Uche-Uwakwe Decl. ¶ 16 41 ("Dr. Kawahara gave me an envelope and harshly told me 17 that the envelope contained my reassignment back to the 18 outpatient pharmacy, effective March 15, 2010 (Movant's 19 Exh. 2-10).").) The Court, thus, considers this 20 memorandum admissible evidence for purposes of this 21 Motion, as the memorandum coupled with Plaintiff's 22 declaration testimony "support a finding that the matter 23 in question is what the proponent claims." 24 at 773 (citation omitted). 25 26 27 28 78 Orr, 285 F.3d 1 The February 12, 2010 memorandum identified the 2 following reason for Plaintiff's transfer to the 3 outpatient pharmacy: 4 5 6 7 "Recently, a review was conducted based on staffing/workload needs within Outpatient Pharmacy. This review found it necessary to make staff adjustments. As a result, this memorandum is to inform you that you will be reassigned to the Outpatient Pharmacy Section to provide support as a Staff Pharmacist effective Monday, March 15, 2010." 8 (See Werdebaugh Decl., Ex. 2 at 10.) 9 Defendant, with the February 12, 2010 memorandum and 10 the cited Kawahara deposition testimony that Plaintiff 11 was transferred because she was working under a 12 functional statement as an outpatient pharmacist, meets 13 his burden to show that the reason for Plaintiff's 14 transfer was legitimate and not retaliatory. 15 16 5. Pretext 17 As Defendant has met his burden to provide a 18 legitimate, non-retaliatory reason for transferring 19 Plaintiff to the outpatient pharmacy, the burden shifts 20 to Plaintiff to show that the employer's reason is 21 pretextual. See Stegall, 350 F.3d at 1065. 22 23 Plaintiff can meet her resulting burden by presenting 24 "specific and substantial" circumstantial evidence, 25 including temporal proximity between Defendant's adverse 26 actions and her protected activity that Defendants sought 27 to repress. Bergene v. Salt River Project Agric. 28 79 1 Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2 2001). Plaintiff's evidence "must either 'directly . . . 3 persuad[e]'" the Court that Defendant was "'more likely 4 motivated'" by an impermissible purpose, i.e., 5 retaliation, than by his stated purpose, or "'indirectly 6 . . . show[] that [Defendant's] proffered explanation is 7 unworthy of credence.'" Block v. Solis, 436 Fed. App'x 8 777, 779, 2011 WL 2193380 (9th Cir. June 7, 2011)16 9 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 10 U.S. 248, 256 (1981)) (brackets of the Solis Court). 11 12 While "[g]enerally, a plaintiff need only offer 'very 13 little' direct evidence of motivation to survive summary 14 judgment," Ulrich v. City and Cnty. of S.F., 308 F.3d 15 968, 980 (9th Cir. 2002) (citation omitted), Defendant is 16 nevertheless entitled to summary judgment "if [Plaintiff] 17 created only a weak issue of fact as to whether 18 [Defendant's] reason was untrue and there was abundant 19 and uncontroverted evidence" that Defendant's conduct was 20 not retaliatory. Cf. Reeves v. Sanderson Plumbing 21 Prods., Inc., 530 U.S. 133, 148 (2000) (holding, in an 22 age discrimination case, that even if a plaintiff adduces 23 sufficient evidence for a court to reject a defendant's 24 nondiscriminatory explanation for its conduct, the 25 defendant may still prevail as a matter of law). 26 27 16 Cited as persuasive authority pursuant to Ninth 28 Circuit Rule 36-3. 80 1 Plaintiff may not avoid summary judgment by arguing, in 2 the face of the evidence to the contrary, that the set of 3 events she alleges "could conceivably have occurred," 4 because the mere conceivability of a set of events "does 5 not give rise to a reasonable inference it did in fact 6 occur." Cafasso, 637 F.3d at 1061. Moreover, "an 7 employee's subjective personal judgments" do not raise a 8 genuine issue of material fact. Bradley v. Harcourt, 9 Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). 10 11 Here, Plaintiff argues that the temporal proximity 12 between her protected activities and the adverse 13 employment action provide sufficient evidence of pretext. 14 (See Opp'n at 19-20.) In addition, specifically as to 15 her transfer to the outpatient pharmacy, Plaintiff argues 16 the following:17 17 18 19 20 21 22 23 24 25 While the VA contends that Plaintiff was transferred back to the outpatient department due to "staffing needs", Defendant has offered no evidence as to what those staffing needs were or what staffing review was conducted. Plaintiff has offered evidence that neither the inpatient supervisor nor the outpatient supervisor were consulted on the need for the transfer before it was ordered. Plaintiff has also offered the statement of Dr. Sam, the outpatient supervisor, to the effect that she was not understaffed at the time, did not request the transfer, and did not have an available shift for Plaintiff. [¶] Plaintiff has offered evidence that the transfer involved a change in her duties because she would no longer be performing inpatient functions, and would be performing different outpatient functions. Plaintiff has also offered evidence that she was being sent back to work with 26 27 17 The Court quotes Plaintiff's argument in full, 28 to avoid an inartful summary. 81 1 2 3 4 5 6 7 8 9 many of the same people that had created the hostile work environment in the first place, before she was transferred out at the recommendation of the ABOI. Defendant has no admissible evidence that the circumstances requiring Plaintiff's removal had changed. Dr. Kawahara never talked to Plaintiff before making his decision, does not recall what staffing review he conducted, and has offered no evidence that he did anything to verify the circumstances in outpatient had changed. [¶] Finally, the transfer was not done in accordance with the policy as expressed by the Master Agreement, Article 12, Details, Reassignments and Temporary Promotions, in that there was no positing of the job notice for the outpatient department, no consideration of voluntary requests, or adequate notification of reassignment. 10 (Reply at 22-23 (emphasis in original).) 11 Preliminarily, as stated herein, the Court has found 12 inadmissible Plaintiff's evidence that Plaintiff's 13 transfer changed her job duties and any recommendations 14 made by the ABOI. Plaintiff's arguments regarding 15 pretext premised on these facts are unsupported and the 16 Court will not consider them. The Court also notes 17 Plaintiff's reliance on the Master Agreement to show 18 Defendant did not comply with the reassignment policy is 19 misplaced. 20 First, although Plaintiff provides the relevant portion of the Master Agreement as an Exhibit18 21 (see Cody Decl., Ex. V at 112-114), Plaintiff fails to 22 provide necessary authentication of the document from the 23 Werdebaugh deposition, apparently during which the 24 document was introduced as an exhibit. See Orr, 285 F.3d 25 26 18 Plaintiff did not provide a citation to this document. Again, the Court is not a "pig hunting for 27 truffles." Guatay, 670 F.3d at 987 (quotations and 28 citation omitted). 82 1 at 774. The document lacks requisite authentication and 2 the Court will not consider it. Even if the Court were 3 to consider the Master Agreement, the document alone does 4 not demonstrate that Defendant failed to comply with the 5 reassignment policy, without other evidence demonstrating 6 there was no job notice posted, as Plaintiff baldly 7 contends. 8 9 Despite these preliminary shortcomings, Plaintiff's 10 evidence of pretext is sufficient to raise a triable 11 issue of material fact. First, as argued by Plaintiff, 12 Defendant has offered no admissible evidence regarding 13 the staffing needs of the inpatient and outpatient 14 pharmacies at the time Plaintiff was transferred to 15 demonstrate the transfer was warranted. In fact, 16 Plaintiff presents evidence from the outpatient 17 supervisor, Sam, who said there was no need for 18 additional staffing in the outpatient pharmacy at the 19 time of Plaintiff's transfer. (PSUF ¶ 75.) Moreover, 20 Plaintiff points to Kawahara's deposition testimony, 21 stating he did not recall whether or not a staffing 22 assessment was conducted to determine if it was 23 appropriate to transfer Plaintiff. (See Curd Decl., Ex. 24 W at W-19-20, 155:2-156:15.) 25 26 Second, Plaintiff has presented evidence that the 27 employees she had accused of harassing her in the past 28 83 1 remained on staff at the outpatient pharmacy at the time 2 of the transfer. A reasonable jury could find that 3 Plaintiff was transferred to the outpatient pharmacy to 4 work alongside employees she had previously accused of 5 harassment as a punishment for her prior EEO activity. 6 See Emeldi v. Univ. of Oregon, 698 F.3d 715, 729-30 (9th 7 Cir. 2012) (reversing district court's grant of summary 8 judgment in favor of the defendant because the plaintiff 9 had "presented evidence from which a reasonable jury 10 could conclude that the [defendant's proffered legitimate 11 reason] is pretextual."). Finally, the temporal 12 proximity between Plaintiff's protected activities and 13 the adverse employment action, discussed supra, in light 14 of the other evidence Plaintiff presents here, constitute 15 "specific and substantial" circumstantial evidence that 16 Defendant's stated reason for transferring her was 17 pretextual. Bergene, 272 F.3d at 1142. Plaintiff's 18 evidence raises a triable issue that Defendant's reason 19 for transferring her to the outpatient pharmacy "is 20 unworthy of credence." Burdine, 450 U.S. at 256. 21 22 Accordingly, Plaintiff has met her resulting burden 23 as to her prima facie retaliation claim, on the basis of 24 her transfer to the outpatient pharmacy, and has raised a 25 triable issue as to whether or not Defendant's proffered 26 legitimate reason for Plaintiff's transfer was 27 pretextual. See Stegall, 350 F.3d at 1065; see also 28 84 1 Celotex, 477 U.S. at 331; 2 Fed. R. Civ. P. 56(a). Anderson, 477 U.S. at 256; The Court hereby DENIES 3 Defendant's Motion as to this claim. 4 5 B. Harassment/Hostile Work Environment 6 Defendant argues Plaintiff has failed to exhaust her 7 administrative remedies with respect to her second claim, 8 thereby divesting the Court of subject matter 9 jurisdiction over it. (See Mot. at 11-12.) In the 10 alternative, Defendant argues that Plaintiff cannot 11 submit sufficient evidence to establish her claim. (Id. 12 at 12-13.) 13 14 Since the issue of exhaustion goes to the Court's 15 subject-matter jurisdiction, the Court addresses it 16 first. See Potter v. Hughes, 546 F.3d 1051, 1061 (9th 17 Cir. 2008) (noting that courts should "address subject 18 matter jurisdiction at the outset in the 'mine run of 19 cases,' and reach other issues first only where the 20 jurisdictional issue is 'difficult to determine . . . 21 .'") (quoting Sinochem Int'l Co. v. Malaysia Int'l 22 Shipping Corp., 549 U.S. 422, 436 (2007)). 23 24 Defendant is correct that before filing a claim for 25 employment discrimination in violation of Title VII in 26 federal court, a plaintiff is required first to exhaust 27 administrative remedies by filing such a claim with 28 85 1 either the Equal Employment Opportunity Commission 2 ("EEOC") or the California Department of Fair Employment 3 and Housing ("DFEH") within 180 days of the alleged 4 unlawful employment practice. See 42 U.S.C. §§ 2000e- 5 5(1), 5(e)(1), 8(b); 29 C.F.R. § 1626.10(c). Only after 6 a plaintiff has received a right-to-sue letter from 7 either the EEOC or DFEH may a plaintiff file suit. 8 42 U.S.C. §§ 2000e-5(f)(1). See In Freeman v. Oakland 9 Unified Sch. Dist., 291 F.3d 632 (9th Cir. 2002), the 10 Ninth Circuit addressed the requirement that all 11 administrative remedies be fully exhausted in the Title 12 VII context. The Freeman court recognized that "the 13 administrative charge requirement serves the important 14 purposes of giving the charged party notice of the claim 15 and narrowing the issues for prompt adjudication and 16 decision." Id. at 636 (quoting B.K.B. v. Maui Police 17 Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002)). 18 19 "Subject matter jurisdiction extends to all claims of 20 discrimination that fall within the scope of the EEOC's 21 actual investigation or an EEOC investigation that could 22 reasonably be expected to grow out of the charge." 23 Vasquez, 349 F.3d at 644. 24 25 26 27 Moreover, "[i]n determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred. 28 86 1 2 3 In addition, the court should consider plaintiff's civil claims to be reasonably related to allegations in the charge to the extent that those claims are consistent with the plaintiff's original theory of the case." 4 B.K.B., 276 F.3d at 1100. 5 Here, Plaintiff filed three EEO complaints that gave 6 rise to this lawsuit. (See Werdebaugh Decl., Exs. 1, 2, 7 3; PSUF ¶¶ 48, 80, 95.) Construing the complaints 8 liberally and drawing all reasonable inferences in favor 9 of Plaintiff, the non-moving party, Plaintiff did not 10 mention racial harassment or a hostile work environment 11 based on race as one of her claims or factual bases for 12 any of her claims. See B.K.B., 276 F.3d at 1100 ("We 13 construe the language of EEOC charges with utmost 14 liberality since they are made by those unschooled in the 15 technicalities of formal pleading." (internal quotations, 16 citation omitted)). On first glance, thus, it appears 17 she has failed to exhaust her administrative remedies 18 with respect to her harassment/hostile work environment 19 claim. 20 21 In Opposition, Plaintiff argues that she "has alleged 22 the same facts which constitute retaliation also 23 constitute harassment based on discrimination" and that 24 her hostile work environment claim has been exhausted 25 because "an investigation of the EEOC charge would have 26 revealed the facts supporting a claim of discrimination, 27 and a claim of discrimination would have 'grown out of 28 87 1 the charge.'" 2 634).) (Opp'n at 24 (quoting Vazquez, 349 F.3d at In support of her harassment/hostile work 3 environment claim, Plaintiff presents evidence that she 4 argues evidences Kawahara's racial bias against her. 5 (See Opp'n at 24; PSUF ¶¶ 107-108; Uche-Uwakwe Decl. ¶ 6 56(a)-(d), 57.) As discussed herein, the Court has found 7 inadmissible Plaintiff's evidence regarding harassment 8 and discrimination that was previously adjudicated in a 9 related lawsuit. The only remaining evidence here upon 10 which Plaintiff bases her harassment/hostile work 11 environment claim is as follows: (1) Kawahara assigned 12 preferred shifts to Asian employees, despite Plaintiff's 13 seniority (PSUF ¶ 107 (limited by the Court's evidentiary 14 ruling, supra); Uche-Uwakwe Decl. ¶ 56(d)); (2) in 2000, 15 Kawahara did not meet with Plaintiff, the only African 16 American, but met with all of the other pharmacy 17 employees who were mostly Asian (Uche-Uwakwe Decl. ¶ 18 56(a)); and (3) when Plaintiff became pregnant in 2001, 19 Kawahara refused to honor her request to work part-time 20 due to her high-risk pregnancy until after Human 21 Resources and an EEO manager intervened, when he approved 22 the request approximately four months after Plaintiff 23 submitted it (Uche-Uwakwe Decl. ¶ 56(c) (limited by the 24 Court's evidentiary ruling, supra)). 25 26 Plaintiff's evidence proffered in support of her 27 harassment/hostile work environment claim demonstrates 28 88 1 that her supporting factual contentions are not 2 reasonably related to the matters identified in her three 3 EEO complaints. 4 5 By even the most liberal reading of the EEO 6 complaints here, no reasonable jurist could find 7 Plaintiff's purported racial harassment and subjection to 8 a hostile work environment because of her race or 9 national origin had "grow[n] out of the charge[s]" 10 submitted. Vasquez, 349 F.3d at 644-45. Plaintiff's EEO 11 complaints were limited to Kawahara designating her as 12 AWOL, Curtis threatening her with a privacy violation, 13 Kawahara transferring her to the outpatient pharmacy, and 14 Kawahara denying her advanced sick leave, all matters 15 arising in late 2008 through 2012. 16 17 Simply put, the preferential shift assignment to 18 Asian employees, failure to meet with Plaintiff in 2000, 19 and refusal to accommodate Plaintiff's high risk 20 pregnancy in 2001 with a schedule change for several 21 months, do not relate in any respect to the matters 22 giving rise to Plaintiff's EEO complaints at issue in 23 this lawsuit.19 Vasquez, 349 F.3d at 645 ("Because 24 19 The Court notes Plaintiff alleged in the SAC that she was subjected to "unwanted harassment and a 26 hostile work environment because of her national origin and race" in 2009 and 2010. (See SAC ¶ 40.) In 27 Opposition, however, Plaintiff presents no evidence of harassment or hostile work environment because of her (continued...) 28 25 89 1 Vasquez did not present the legal theory of unlawful 2 retaliation, and the operative facts regarding this part 3 of his claim were not related to the facts in the EEOC 4 charge, he did not exhaust his administrative 5 remedies."); see also Ong v. Cleland, 642 F.2d 316, 319 6 (9th Cir. 1981) (finding EEOC charge must notify the 7 agency of the legal theory being argued and the operative 8 facts at issue and that "[t]he substance of the 9 administrative charge, rather than its label, is the 10 concern of Title VII."). Although these matters arose 11 during Plaintiff's employment at LLVAMC, took place at 12 LLVAMC, and most concerned Kawahara, they are not 13 sufficiently related to Plaintiff's charges in her three 14 EEO complaints at issue here to provide sufficient notice 15 to the EEOC. See B.K.B., 276 F.3d at 1100. 16 17 Accordingly, the Court finds it does not have subject 18 matter jurisdiction over Plaintiff's harassment/hostile 19 work environment claim because Plaintiff failed to 20 exhaust her administrative remedies with respect to this 21 claim. See B.K.B., 276 F.3d at 1099 ("In order to 22 establish subject matter jurisdiction over her Title VII 23 claim, Plaintiff was required to exhaust her 24 administrative remedies."); EEOC v. Farmer Brothers Co., 25 26 27 19 (...continued) 28 national origin and race that occurred in 2009 and 2010. 90 1 31 F.3d 891, 899 (9th Cir. 1994) (same). The Court 2 GRANTS Defendant's Motion as to this claim. 3 4 5 VI. CONCLUSION For the foregoing reasons, the Court DENIES IN PART 6 Defendant's Shinseki's Motion for Summary Judgment as to 7 Plaintiff's retaliation claim, as Plaintiff has 8 demonstrated a prima facie case and raised a triable 9 issue regarding whether or not Defendant's proffered 10 reason for transferring her to the outpatient pharmacy 11 was pretextual. The Court GRANTS IN PART Defendant 12 Shinseki's Motion for Summary Judgment as to Plaintiff's 13 harassment/hostile work environment claim, as the Court 14 does not have subject matter jurisdiction over the claim 15 that has not been exhausted administratively. The Court 16 hereby dismisses Plaintiff's harassment/hostile work 17 environment claim for lack of subject matter 18 jurisdiction. 19 20 Dated: 21 September 18, 2013 VIRGINIA A. PHILLIPS United States District Judge 22 23 24 25 26 27 28 91

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