Casler v. Department of the Interior et al, No. 3:2018cv02187 - Document 63 (N.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Maxine M. Chesney on April 25, 2019. (mmclc2, COURT STAFF) (Filed on 4/25/2019)
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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 CRISTAL LEE CASLER, Case No. 18-cv-02187-MMC Plaintiff, 8 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 9 10 DEPARTMENT OF THE INTERIOR, et al., 11 Re: Dkt. No. 41 United States District Court Northern District of California Defendants. 12 13 Before the Court is the Motion for Summary Judgment, filed February 8, 2019, by 14 defendants Department of the Interior and David Bernhardt, Acting Secretary of the 15 Department of the Interior. Plaintiff Cristal Lee Casler has filed opposition, to which 16 defendants have replied. Having read and considered the papers filed in support of and 17 in opposition to the motion, the Court rules as follows.1 BACKGROUND2 18 19 From June 19, 2011, to September 30, 2013, plaintiff was employed as a term 20 employee for the Golden Gate National Recreation Area (GGNRA) (see Daw Decl., Exs. 21 1-3; see also Cochary Decl. ¶¶ 8-9),3 in which position she served as the daytime law 22 enforcement ranger (LE Ranger) on Alcatraz Island (“Alcatraz”) (see Marin Decl. ¶ 12). 23 During the period of plaintiff’s employment, Matt Eng (“Eng”) was “assigned to the 24 25 By order filed March 12, 2019, the Court approved the parties’ stipulation to deem the matter submitted following the filing of their respective supplemental briefs. 1 26 2 27 The GGNRA is “a largely urban national park with diverse properties in San Mateo County, San Francisco County, and Marin County.” (See Marin Decl. ¶ 3.) 3 28 The following facts are undisputed. 1 evening shift on Alcatraz” (see Eng Decl. ¶ 1) and was the only other LE Ranger who 2 worked on Alcatraz (see Marin Decl. ¶ 12). From February 2013 through July 2013, 3 Michael Yost (“Yost”) was plaintiff’s and Eng’s direct supervisor. (See Yost Decl. ¶¶ 3-4.) 4 The instant action is premised on events that transpired during the period in which 5 Yost was plaintiff’s supervisor, which events culminated in the non-renewal of plaintiff’s 6 employment in September 2013. Specifically, citing numerous occasions on which she 7 alleges she was treated less favorably compared to her “similarly situated male 8 colleagues” (see Compl. ¶ 99) and subjected to a hostile work environment, plaintiff 9 asserts defendants unlawfully discriminated against her on the basis of her gender, in 10 violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e. By the instant motion, defendants seek an order granting summary judgment in United States District Court Northern District of California 11 12 their favor on each of plaintiff’s claims. LEGAL STANDARD 13 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a “court shall grant 14 15 summary judgment if the movant shows that there is no genuine issue as to any material 16 fact and that the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 17 56(a). 18 The Supreme Court's 1986 “trilogy” of Celotex Corp. v. Catrett, 477 U.S. 317 19 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric 20 Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking 21 summary judgment show the absence of a genuine issue of material fact. “[A] moving 22 party without the ultimate burden of persuasion at trial . . . may carry its initial burden of 23 production [on summary judgment] by either of two methods.” Nissan Fire & Marine Ins. 24 Co. v. Fritz Companies, Inc., 210 F.3d 1066, 1099 (9th Cir. 2000). Specifically, “[t]he 25 moving party may produce evidence negating an essential element of the nonmoving 26 party’s case, or, after suitable discovery, the moving party may show that the nonmoving 27 party does not have enough evidence of an essential element of its claim or defense to 28 carry its ultimate burden of persuasion at trial.” See id. 2 Once the moving party has carried its burden, the nonmoving party must “go United States District Court Northern District of California 1 2 beyond the pleadings and by [its] own affidavits, or by the depositions, answers to 3 interrogatories, and admissions on file, designate specific facts showing that there is a 4 genuine issue for trial.” See Celotex, 477 U.S. at 324 (internal quotation and citation 5 omitted). “When the moving party has carried its burden under Rule 56[ ], its opponent 6 must do more than simply show that there is some metaphysical doubt as to the material 7 facts.” Matsushita, 475 U.S. at 586. “If the [opposing party’s] evidence is merely 8 colorable, or is not significantly probative, summary judgment may be granted.” Liberty 9 Lobby, 477 U.S. at 249-50 (citations omitted). “[I]nferences to be drawn from the 10 underlying facts,” however, “must be viewed in the light most favorable to the party 11 opposing the motion.” See Matsushita, 475 U.S. at 587 (internal quotation and citation 12 omitted). DISCUSSION 13 As noted, plaintiff asserts defendants are liable for unlawful discrimination under 14 15 Title VII because, due to her gender, defendants subjected her to disparate treatment 16 and created a hostile work environment. 17 I. 18 Disparate Treatment Pursuant to Title VII, an employer may not “discriminate against any individual with 19 respect to his compensation, terms, conditions, or privileges of employment, because of 20 such individual’s . . . sex.” See 42 U.S.C. § 2000e-2(a). Courts, in evaluating a Title VII 21 claim premised on a theory of disparate treatment, apply the three-step “burden-shifting 22 analysis” set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See 23 Davis v. Team Elec. Co., 520 F.3d 1080, 1088-89 (9th Cir. 2008). 24 At the first step of the analysis, “[t]he employee must . . . establish a prima facie 25 case of discrimination” by showing: “(1) she belongs to a protected class; (2) she was 26 qualified for her position; (3) she was subject[ed] to an adverse employment action; and 27 (4) similarly situated individuals outside her protected class were treated more favorably.” 28 See id. at 1089. If the employee satisfies her burden, “[t]he burden of production, but not 3 1 persuasion, then shifts to the employer to articulate some legitimate, non-discriminatory 2 reason for the challenged action.” See Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 3 F.3d 1115, 1123-24 (9th Cir. 2000). Upon the employer’s satisfaction of such burden, the 4 employee “must show that the articulated reason is pretextual either directly by 5 persuading the court that a discriminatory reason more likely motivated the employer or 6 indirectly by showing that the employer’s explanation is unworthy of credence.” See id.at 7 1224 (internal quotation and citation omitted). 8 United States District Court Northern District of California 9 Plaintiff’s disparate treatment claim is predicated on numerous incidents that occurred in 2013, each of which is discussed in turn below. 10 A. 11 According to plaintiff, from June 2011 to February 2013, she “work[ed] four (4) ten 12 (10) hour days per week . . . with only occasional and temporary changes.” (See Compl. 13 ¶ 79.) Plaintiff alleges that, on February 22, 2013, Yost “informed [plaintiff] that her 14 schedule would be changed,” in that she would be required to work “five (5) eight (8) hour 15 days” year-round (see id. ¶¶ 34, 37), and that, a month later, she “received notice by 16 electronic mail that her schedule had been officially changed” (see id. ¶ 42). Plaintiff 17 alleges she was subjected to unlawful discrimination because “none of [her] similarly 18 situated male colleagues were forced to change their schedules.” (See id. ¶ 80.) 19 Change in Work Schedule In support of their motion, defendants have submitted undisputed evidence 20 showing there were no male LE Rangers who were similarly situated to plaintiff with 21 respect to their work schedules. In particular, the evidence shows plaintiff was the sole 22 term LE Ranger employed with the GGNRA who worked on a schedule of four ten-hour 23 days per week. (See Yost Decl. ¶ 7 (stating “Eng . . . worked a five-day work week, as 24 did all other term LE Rangers at GGNRA other than [plaintiff]”).) In opposition, plaintiff 25 has submitted no evidence to the contrary; she has not submitted, for example, evidence 26 identifying any male term LE Ranger who, unlike plaintiff, was allowed to remain on a 27 schedule of working four ten-hour days per week. Plaintiff thus has failed to establish a 28 prima facie case of discrimination based on her schedule change. 4 Moreover, even assuming plaintiff had established a prima facie case, defendants 1 2 have submitted undisputed evidence showing plaintiff’s work schedule was changed for 3 “operational reasons” (see Cochary Decl. ¶ 12), specifically, “to maximize law 4 enforcement presence on Alcatraz using existing resources,” thereby addressing, within 5 “budgetary constraints,” concerns expressed by Alcatraz employees and the GGNRA 6 Superintendent “about visitor and employee safety,” which had arisen due to “the 7 notoriety of Alcatraz and its remote location.” (See id. ¶ 5; see also Lavasseur Decl. ¶ 6 8 Yost Decl. ¶¶ 6-7.) Having submitted such evidence, defendants have carried their 9 burden of showing plaintiff’s schedule was changed for a legitimate, non-discriminatory 10 reason, and plaintiff, however, has not shown such reason is pretextual.4 For all of the above reasons, to the extent plaintiff’s disparate treatment claim is United States District Court Northern District of California 11 12 predicated on her schedule change, plaintiff has failed to raise a triable issue, and, 13 accordingly, defendants are entitled to summary judgment thereon. 14 B. Failing to Respect the Chain of Command 15 Plaintiff alleges that, after she expressed her concerns regarding her schedule 16 change to supervisory employees who were not in her direct chain of command, Yost, on 17 three occasions between February and March of 2013, “instructed [plaintiff] to follow the 18 chain of command in addressing concerns.” (See Compl. ¶ 76.) According to plaintiff, on 19 one such occasion, Yost “threatened [plaintiff] that ‘her contract did not have to be 20 renewed’ and further threatened to place a formal letter of reprimand in her file for going 21 outside the chain of command.” (See id. ¶ 82.) Plaintiff alleges she was “treated 22 significantly less favorably than her male colleagues” and, consequently, was subjected 23 4 24 25 26 27 28 As an exhibit filed with her opposition, plaintiff has submitted the entire transcript of a 179-page deposition given by Yost in connection with proceedings before the Equal Employment Opportunity Commission. (See Opp., Ex. 1.) In her opposition, however, plaintiff neither references nor cites to such exhibit, let alone identifies with particularity the provisions therein on which she may be relying. Under such circumstances, plaintiff’s submission is of no avail. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (holding “district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could be conveniently found”). 5 1 to unlawful discrimination because her “similarly situated male colleagues were neither 2 disciplined nor even addressed for going outside the chain of command.” (See id. ¶ 78.) 3 As set forth below, plaintiff has not made out a prima facie case of discrimination 4 premised on Yost’s remarks. 5 First, despite defendants’ “assum[ption] for purposes of this motion” that Yost’s 6 comments “constitute[] . . . adverse employment action[s]” (see Mot. at 13:26-27), the 7 unchallenged evidence establishes such comments do not in fact constitute adverse 8 employment actions. United States District Court Northern District of California 9 As defined by the Ninth Circuit, “an adverse employment action” is one that 10 “materially affects the compensation, terms, conditions, or privileges of employment.” 11 See Davis, 520 F.3d at 1089 (internal alterations, quotation, and citation omitted). 12 Here, plaintiff testified at her deposition that Yost did not place in her file a written 13 reprimand for going outside the chain of command. (See Daw Decl., Ex. 4 (Pl. Dep.) at 14 141:10-19.) She also testified that, while her term of employment ultimately was not 15 renewed, “the basis for not renewing [her] contract” (see id. at 159:18) was her failure to 16 “show up for a shift” (see id. at 159:15-16) rather than her raising concerns with 17 supervisory figures outside her chain of command. The record thus shows Yost’s 18 remarks did not “materially affect[] the compensation, terms, conditions, or privileges of 19 [plaintiff’s] employment.” See Davis, 520 F.3d at 1089 (alteration omitted); see also 20 Dilliard v. City & Cty. of San Francisco, 2014 WL 491837, at *5 (N.D. Cal. Feb. 5, 2014) 21 (holding supervisor’s criticism of employee’s performance and threat to suspend 22 employee for purported abandonment of post “[did] not amount to adverse employment 23 actions” because employee “was not written up or punished after . . . the incidents”). 24 Moreover, defendants have submitted undisputed evidence showing there were no 25 similarly situated male LE Rangers who were treated more favorably than plaintiff. 26 Specifically, Yost declares he “did not have to speak to any . . . ranger, other than 27 [plaintiff], about following and respecting the chain of command” (see Yost Decl. ¶ 27); 28 additionally, Eng declares “there were no occasions when [he] went outside the chain of 6 1 command for any reason, including to raise issues regarding [his] schedule or other 2 working conditions” (see Eng Decl. ¶ 7). In opposition, plaintiff has submitted no 3 evidence to the contrary; she has not, for example, submitted evidence showing there 4 were any male LE Rangers who went outside the chain of command but were not 5 criticized or admonished by Yost or any other supervisor. Thus, even assuming, 6 arguendo, the reprimand constituted an adverse employment action, plaintiff has failed to 7 raise a triable issue as to discrimination based thereon. 8 9 United States District Court Northern District of California 10 Accordingly, to the extent plaintiff’s disparate treatment claim is premised on Yost’s verbal remarks concerning her failure to respect the chain of command, defendants are entitled to summary judgment. 11 C. 12 Plaintiff alleges that, on two occasions, she was improperly disciplined for being 13 14 Absence Without Leave absent without leave and thereby subjected to disparate treatment due to her gender. As to the first occasion, plaintiff alleges that, on April 23, 2013, she “called the 15 Dispatch Office to let them know she would not be in for her assigned shift” the next day 16 (see Compl. ¶ 88), but Yost, on May 9, 2013, nevertheless “issued [plaintiff] a Letter of 17 Reprimand for failing to call him directly in connection with her absence on April 24, 18 2013.” (See id. ¶ 89.) As to the second occasion, plaintiff alleges that, on July 14, 2013, 19 Yost placed “three (3) hours of Absent Without Leave . . . on her time sheet” because she 20 had left her assigned shift early without securing prior approval to do so from Yost or 21 another supervisor. (See id. ¶ 96.) Plaintiff alleges that, because two male LE Rangers 22 under Yost’s supervision, specifically, Eng and Ryan Wright (“Wright”), were not 23 disciplined despite having been absent from work without obtaining his approval (see 24 Compl. ¶ 90), she was subjected to unlawful discrimination. 25 In support of their motion, defendants have submitted undisputed evidence 26 showing that neither plaintiff and Eng nor plaintiff and Wright were similarly situated. 27 Specifically, with respect to Eng, the evidence shows that, unlike plaintiff, Eng “was never 28 absent without leave” (see Eng Decl. ¶ 8), that Eng “never left [his] assignment . . . during 7 1 a shift without prior approval by a supervisor” (see id. ¶ 9), and that “[i]f [Eng] needed to 2 take leave, [he] contacted [his] supervisor by text or phone and received approval before 3 doing so” (see id. ¶ 8).5 With respect to Wright, the evidence shows that, unlike plaintiff, 4 Wright did not miss or depart early from his regularly assigned shift; rather, he missed an 5 “overtime shift” (see Wright Decl. ¶ 7) related to “a special event at Alcatraz” (see id. ¶ 3). 6 The evidence further shows that, in contrast to plaintiff, Wright “had no idea [the shift] had 7 been assigned to [him]” (see id. ¶ 7), as he was not working on the date that the email 8 assigning him to such shift was sent (see id. ¶¶ 5-6) and, consequently, “did not receive 9 the . . . email until he reported to work” the day after he missed the shift (see id. ¶ 7). In opposition, plaintiff has submitted no evidence to the contrary; she has not United States District Court Northern District of California 10 11 submitted, for example, evidence showing there were any male LE Rangers who were 12 not disciplined after having missed, or departed early from, an assigned shift without 13 obtaining their supervisor’s prior approval. Indeed, at her deposition, plaintiff testified 14 that, other than Wright, she was “[not] aware of any law enforcement rangers failing to 15 show up for a work shift” (see Daw Decl., Ex. 4 at 158:10-13), nor did she “know of 16 anybody else other than [Wright or Eng] who was treated more favorably than [she] with 17 respect to . . . absence without leave” (see id. at 160:10-13). Plaintiff thus has failed to raise a triable issue as to discrimination based on either 18 19 the Letter of Reprimand in May 2013 or her being marked absent without leave on her 20 timecard in July 2013 and, accordingly, to the extent plaintiff’s disparate treatment claim 21 is predicated thereon, defendants are entitled to summary judgment. 22 23 24 25 26 27 28 5 In support of her supplemental opposition, plaintiff submitted what purports to be an unsworn statement by Eng, describing one occasion on which LE Ranger Kurt Veek (“Veek”) told him to “call in to dispatch directly” when he wanted to take “sick leave or emergency annual leave.” (See Pl. Supp. Opp., Ex. 2.) As defendants correctly point out, however, the exhibit has not been authenticated and, consequently, is inadmissible. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (holding “unauthenticated documents cannot be considered in a motion for summary judgment”). Moreover, the conversation described therein is not inconsistent with Eng’s declaration and, in any event, plaintiff’s claim is based on criticism of her conduct by Yost, not by Veek. 8 United States District Court Northern District of California 1 D. Questioned for Being Off-Island 2 Plaintiff alleges that, on May 7, 2013, she “was assigned to work off-island by the 3 supervisor on-duty, Mr. Veek” and, when Yost “learned that [plaintiff] was not on 4 [Alcatraz], he called her to inquire” about her whereabouts and “stat[ed] he would need to 5 confirm her story.” (See Compl. ¶ 94.) According to plaintiff, because “none of her male 6 colleagues were subjected to questioning when they were following supervisor orders” 7 (see id.), she was subject to disparate treatment based on her gender. 8 Although defendants “assume for purposes of this motion” that Yost’s remark 9 “constitutes an adverse employment action” (see Mot. at 13:26-27), the Court finds Yost’s 10 conduct does not in fact constitute such an action. In particular, although plaintiff testified 11 at her deposition that she was “upset” with the “tone in [Yost’s] voice” (see Daw Decl., Ex. 12 4 at 164:20-22) and felt as though he was “questioning [her] integrity” (see id. at 165:14) 13 when he told her he “would have to confirm [she was] actually allowed to be off-island” 14 (see id. at 165:3-4), such remark did not “materially affect[] the compensation, terms, 15 conditions, or privileges of [plaintiff’s] employment.” See Davis, 520 F.3d at 1089 16 (alteration omitted); see also Nguyen v. McHugh, 65 F. Supp. 3d 873, 893 (N.D. Cal. 17 2014) (finding, while employee “may have felt embarrassed” when supervisor gave her 18 “verbal warnings” regarding propriety of her conduct, “a bruised ego” does not “rise[] to 19 the level of an adverse employment action”); Blount v. Morgan Stanley Smith Barney 20 LLC, 982 F. Supp. 2d 1077, 1082 (N.D. Cal. 2013) (noting “definition of adverse 21 employment action does not extend . . . to rude or offensive comments”). 22 Accordingly, to the extent plaintiff’s disparate treatment claim is predicated on 23 Yost’s informing plaintiff he would need to verify her whereabouts when she was off- 24 island on May 7, 2013, defendants are entitled to summary judgment. 25 E. Mid-Year Performance Evaluation 26 Plaintiff alleges she was subjected to disparate treatment because, “[d]espite the 27 [GGNRA] requiring that each employee receive a mid-year performance evaluation, 28 [plaintiff] was never provided with a mid-year performance evaluation in 2013.” (See 9 1 Compl. ¶ 95.) 2 In support of their motion, defendants have submitted undisputed evidence 3 showing plaintiff’s inability to make out a prima facie case as to this claim. In particular, 4 plaintiff, at her deposition, acknowledged Eng did not receive a mid-year evaluation in 5 2013 (see Daw Decl., Ex. 4 at 167:12-14) and that she “[does] not know if any of the 6 other employees under Yost’s supervision” received a mid-year evaluation in 2013 (see 7 id. at 166:20-23). Moreover, Yost declares he “[does] not recall providing formal written 8 mid-year evaluations for any of the LE Rangers under [his] supervision in 2013” (see Yost 9 Decl. ¶ 23), and plaintiff has submitted no evidence suggesting he did provide such 10 evaluations. Plaintiff thus has failed to either make out a prima facie case or raise a triable United States District Court Northern District of California 11 12 issue as to discrimination based on the lack of a performance evaluation, and, 13 accordingly, to the extent plaintiff’s disparate treatment claim is predicated thereon, 14 defendants are entitled to summary judgment. 15 F. Pre-Approval for Overtime 16 Plaintiff testified at her deposition that she was subjected to disparate treatment 17 when, in July 2013, she received an email from Veek informing her that she “need[ed] to 18 get extra signed approval from her supervisor” before she could “work [an overtime] 19 shift.” (See Daw Decl., Ex. 4 at 183:10-11.)6 In support of their motion, defendants have submitted undisputed evidence 20 21 showing plaintiff was required to obtain permission to work overtime because “there[] 22 [had] been problems on [her] timecard with . . . the [overtime] hours matching up” (see 23 Daw Decl., Ex. 4 at 182:17-18), thereby satisfying their burden to show a legitimate, non- 24 discriminatory reason for such requirement. Plaintiff, however, has not submitted any 25 evidence showing defendants’ proffered reason is pretextual and, consequently, has 26 27 28 6 Although the Complaint makes no reference to the July 2013 email, defendants acknowledge plaintiff is bringing a disparate treatment claim premised thereon. (See Daw Decl., Ex. 4 at 182:15-184:8; see also Mot. at 19:5-14.) 10 1 2 Accordingly, to the extent plaintiff’s disparate treatment claim is predicated on her 3 being required to obtain approval prior to working an overtime shift, defendants are 4 entitled to summary judgment. 5 G. 6 Plaintiff alleges she was subjected to disparate treatment because “[t]hroughout Opportunities to Work Off-Island 7 her employment with [GGNRA], she was provided . . . the opportunity to participate in off- 8 island operations,” but “[o]nce [she] was placed under . . . Yost’s supervision, these 9 opportunities stopped immediately and completely, within (1) week, for her, yet remained 10 11 United States District Court Northern District of California failed to raise a triable issue as to discrimination based thereon. available to her similarly situated male colleagues.” (See Compl. ¶ 93.) At the outset, the Court notes that, because Eng is the only other LE Ranger who 12 worked on Alcatraz in 2013 (see Marin Decl. ¶ 12), he is the sole employee who can 13 serve as plaintiff’s comparator to the extent her disparate treatment claim is premised on 14 denial of opportunities to work off-island shifts. In that regard, plaintiff testified at her 15 deposition that she “kind of [has] a memory in [her] mind talking to [Eng] a couple of 16 times about what he had going on at night” (see Daw Decl., Ex. 4 at 194:23-24) and that 17 “in between the end of February to September 30th, [she] believe[s] that he did work, at 18 least, a few shifts at night on the mainland” (see id. at 194:16-18). 19 In support of their motion, defendants have submitted undisputed evidence as to a 20 legitimate, non-discriminatory reason for denying plaintiff opportunities to work off-island 21 shifts in 2013. In particular, defendants have submitted a declaration by Xavier Agnew 22 (“Agnew”), plaintiff’s supervisor immediately prior to Yost, in which he states “[w]hen [he] 23 began supervising the Alcatraz rangers, there was not as much pressure to have a 24 ranger on Alcatraz,” which “gave [him] flexibility to assign [plaintiff] to some shifts off- 25 island,” but that “management pressure to have the rangers remain on-island increased 26 going into 2013” both because of budgetary concerns and “pressure from management to 27 increase security on Alcatraz[,] result[ing] in . . . fewer opportunities for plaintiff to work 28 11 1 off-island.” (See Agnew Decl. ¶ 4.)7 Consistent therewith, Eng, in his declaration, states 2 he and plaintiff were previously “provide[d] with experience working shifts off Alcatraz,” 3 but that, in 2012, while he and plaintiff were supervised by Agnew, such “off-island shifts 4 decreased in frequency” and, “[l]ater,” although he “[does] not recall the precise timing,” 5 the “practice . . . stopped entirely.” (See Eng Decl. ¶ 3.) In her opposition, plaintiff “questions” defendants’ proffered reason, because, 6 7 according to plaintiff, “her male colleagues were still permitted to work off-island.” (See 8 Opp. at 11:11-13.) As set forth below, however, the record reflects plaintiff’s lack of 9 sufficient evidence to show defendants’ proffered reason is pretextual. As noted, defendants’ undisputed evidence shows GGNRA’s policy regarding off- United States District Court Northern District of California 10 11 island shifts became more stringent over time, to the point such shifts became completely 12 unavailable. (See Eng Decl. ¶ 3; see also Agnew Decl. ¶ 4.) As plaintiff’s deposition 13 testimony shows, however, plaintiff lacks sufficient evidence as to when, and thus under 14 which policy, she and Eng made their respective requests to work off-island. In 15 particular, plaintiff testified she “believe[s]” Eng worked “at least a few shifts at night on 16 the mainland” in the period “between the end of February to September 30th [2013]” (see 17 Daw Decl., Ex. 4 at 194:17-19) and that she “can’t remember the days when” her 18 requests were denied (see id. at 192:16-22). Plaintiff thus lacks sufficient evidence to 19 show defendants’ reason for denying her requests is “unworthy of credence,” see 20 Chuang, 225 F.3d at 1124, i.e., sufficient evidence to show she and Eng were treated 21 differently at a time when the same policy governing off-island shifts was in effect. Accordingly, to the extent plaintiffs’ disparate treatment claim is predicated on 22 23 denial of opportunities to work off-island shifts, defendants are entitled to summary 24 judgment. 25 H. Requests for Training 26 Plaintiff alleges she was subjected to disparate treatment because, “from April 5, 27 As explained by Agnew, “[t]here were concerns expressed by [National Park Service (“NPS”)] employees about the possibility of an active shooter on-island.” (See id.) 12 7 28 1 2013 to September 30, 2013, she was not permitted to go to any of the approximately 2 thirty (30) training courses offered in that time frame,” whereas “her male counterpart on 3 Alcatraz Island was permitted to attend several training exercises” during the same 4 period. (See Compl. ¶ 67.) United States District Court Northern District of California 5 In support of their motion, defendants have submitted evidence showing plaintiff 6 lacks evidence to prove Yost, in fact, did not permit her to attend training courses in 7 2013. In particular, at her deposition, when asked whether she “[made] any specific 8 request to attend training that was denied by . . . Yost” (see Daw Decl., Ex. 4 at 191:17- 9 20), plaintiff answered: “I can’t recall,” and, indeed, did recall a specific request that he 10 “approved” (see id. at 192:4-15). By submitting such evidence, defendants have shown 11 plaintiff lacks sufficient evidence to establish a prima facie case, and, in opposition, 12 plaintiff has neither submitted evidence to the contrary nor has she otherwise offered 13 evidence to raise a triable issue as to whether she made any request for training that was 14 denied. 15 16 Accordingly, to the extent plaintiff’s disparate treatment claim is predicated on the denial of her requests for training, defendants are entitled to summary judgment. 17 I. Requests for Equipment 18 Plaintiff alleges that, “[i]n the spring of 2013, [she] requested a new Spring Kit” 19 (see Compl. ¶ 92) for her “Agency-approved duty weapon” (see id. ¶ 69), as well as 20 “other law enforcement gear that she needed to perform her duties” (see id. ¶ 92). At her 21 deposition, plaintiff clarified that, in addition to requesting a new Spring Kit, she also 22 requested a new holster for her baton. (See Daw Decl., Ex. 4 at 213:11.) According to 23 plaintiff, she was subjected to disparate treatment because, “[w]hile [her] male colleagues 24 were given quick and easy access to the equipment they requested, . . . Yost refused to 25 ensure that [plaintiff] was able to obtain the same, necessary equipment.” (See id. ¶ 92.) 26 In support of their motion, defendants have submitted evidence showing plaintiff 27 was not provided her requested equipment for legitimate, non-discriminatory reasons. 28 Specifically, as to her request for a Spring Kit, the evidence shows plaintiff used a 13 United States District Court Northern District of California 1 “personally owned firearm” as her duty weapon (see Daw Decl., Ex. 4 at 208:4-5) and, 2 although LE Rangers are permitted to “use a personal weapon as their duty weapon, 3 instead of using a weapon issued by NPS or by the Federal Law Enforcement Training 4 Center[,] . . . NPS is not permitted to provide replacement parts for them” (see Marin 5 Decl. ¶ 18). As to her request for a baton holster, the evidence submitted by defendants 6 shows plaintiff did not return a baton to GGNRA on separation from her employment (see 7 Marin Decl ¶ 21; see id., Ex. 1 (Receipt for Property)), which “suggests . . . [plaintiff] used 8 her own baton” (see Marin Decl. ¶ 21), a “personally owned” item for which GGNRA does 9 “not authorize the purchase of a holster” (see id). In opposition, plaintiff has submitted no 10 evidence to the contrary, nor has she submitted evidence showing defendants’ proffered 11 reasons for refusing to fulfill her requests for the above-referenced equipment are 12 pretextual. 13 Accordingly, to the extent plaintiff’s disparate treatment claim is premised on 14 equipment requests, plaintiff has failed to raise a triable issue, and, consequently, 15 defendants are entitled to summary judgment thereon. 16 J. Non-Renewal of Term 17 Plaintiff alleges that, on August 1, 2013, she was “informed . . . that her contract 18 would not be renewed for the coming year.” (See Compl. ¶ 62.) According to plaintiff, 19 she was subjected to disparate treatment because “[e]ach of [her] similarly situated male 20 colleagues had their contracts renewed.” (See id.¶ 99.) 21 In support of their motion, defendants have submitted undisputed evidence 22 showing plaintiff’s term of employment was not renewed due to her having been absent 23 without leave for a second time in 2013. (See Yost Decl. ¶¶ 31-33 (stating Yost and 24 Lavasseur agreed that “allowing [plaintiff’s] appointment to expire without renewal” was 25 appropriate disciplinary action in response to plaintiff’s “second absence without leave”); 26 see also Lavasseur Decl. ¶ 15 (stating: “I recommended to Chief Cochary that we allow 27 [plaintiff’s] appointment to expire . . . for the second absence without leave”); Cochary 28 Decl. ¶ 10 (stating: “I concurred with Deputy Chief Lavasseur that allowing [plaintiff’s] 14 1 term appointment to expire without renewal was the best option following her second 2 absence without leave”).) By submitting such evidence, defendants have satisfied their 3 burden of showing plaintiff’s term was not renewed for a legitimate, non-discriminatory 4 reason. In opposition, plaintiff has submitted no evidence showing defendants’ proffered 5 reason is pretextual. 6 Accordingly, to the extent plaintiff’s disparate treatment claim is predicated on non- 7 renewal of her employment, plaintiff has failed to raise a triable issue, and, consequently, 8 defendants are entitled to summary judgment thereon. 9 II. United States District Court Northern District of California 10 Hostile Work Environment “To prevail on a hostile workplace claim premised on . . . sex, a plaintiff must 11 show: (1) that [she] was subject[ed] to verbal or physical conduct of a . . . sexual nature; 12 (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or 13 pervasive to alter the condition of the plaintiff’s employment and create an abusive work 14 environment.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). 15 Here, plaintiff’s hostile work environment claim is premised on the same 16 allegations as those underlying her disparate treatment claim. Specifically, plaintiff 17 contends such allegations demonstrate she “was subjected to a pattern of threats, 18 discipline, ridicule, and lack of support which interfered with her ability to perform her job 19 and created an intimidating environment.” (See Opp. at 16:24-26.) As discussed above, 20 however, all of the incidents on which plaintiff relies concern the manner in which, or 21 means by which, she performed her job and, absent evidence showing defendants acted 22 with a discriminatory motive, are thus insufficient to support her hostile work environment 23 claim. See Chamat v. Geithner, 381 Fed. App’x 728, 730 (9th Cir. 2010) (affirming 24 summary judgment in favor of employer where hostile work environment claim was based 25 on “negative comments related to [employee’s] job performance rather than to his race, 26 national origin or age”); see also Spillane v. Shulkin, 692 Fed. App’x 843, 844 (9th Cir. 27 2017) (holding “district court properly granted summary judgment on [employee’s] hostile 28 work environment claim” where claim was premised on “incidents involv[ing] [employee’s] 15 1 poor work performance” and there was no evidence showing “alleged harassment was 2 racially motivated”); cf. Mitchel v. Holder, 2010 WL 816761, at *8-11 (N.D. Cal. Mar. 9, 3 2010) (finding plaintiff “set forth sufficient evidence to survive summary judgment on her 4 hostile work environment claim” where plaintiff “put forth evidence demonstrating [her 5 supervisor] frequently made sexual comments regarding female employees, including 6 comments about [p]laintiff’s and other female employees’ body parts, which, in at least 7 one instance, he accompanied with hand gestures and grunting sounds”). 8 9 Accordingly, as to her hostile work environment claim, plaintiff has failed to raise a triable issue, and, consequently, defendants are entitled to summary judgment thereon. CONCLUSION 10 United States District Court Northern District of California 11 12 13 For the reasons discussed above, defendants’ Motion for Summary Judgment is hereby GRANTED. IT IS SO ORDERED. 14 15 Dated: April 25, 2019 MAXINE M. CHESNEY United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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