Kawar v. JPMorgan Chase and Company, No. 2:2008cv00046 - Document 143 (D. Ariz. 2009)

Court Description: ORDER granting 126 Motion for Summary Judgment; granting in part and denying in part 129 Motion for Summary Judgment. Signed by Judge David G Campbell on 6/16/2009.(NVO)
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Kawar v. JPMorgan Chase and Company 1 Doc. 143 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) JPMorgan Chase and Co., a Delaware) ) corporation, ) ) Defendant. ) Richard Kawar, No. CV-08-0046-PHX-DGC ORDER 15 16 Plaintiff Richard Kawar has filed a motion for partial summary judgment regarding 17 Defendant’s mitigation of damages defense. Dkt. #126. Defendant JP Morgan Chase and 18 Co. (JPMC) has filed a motion for summary judgment on all claims. Dkt. #129. Both 19 motions are fully briefed.1 For the reasons that follow, the Court will grant Plaintiff’s motion 20 for partial summary judgment and grant in part and deny in part Defendant’s motion for 21 summary judgment. 22 I. Background. 23 Kawar is of Middle Eastern descent. He began working for JPMC in 2002 as 24 Producing Sales Manager in the non-prime lending division. In April of 2004, Kawar was 25 given the title of Branch Manager. During the summer of 2007 a mortgage crisis occurred 26 27 28 1 Plaintiff did not comply with Local Rule 56.1 in objecting to information contained in Defendant’s statement of facts. The Court is able rule on the motion after examining the evidence cited by both sides in the briefs and in the separate statements of facts. Dockets.Justia.com 1 and JPMC decided to merge its non-prime division with the prime division. At the time there 2 were six Non-Prime Branch Managers, including Kawar. Kawar was the only minority 3 among the six. As a result of the reorganization, JPMC offered three of the six managers 4 positions as Producing Sales Managers, terminated the employment of another manager, and 5 offered Kawar and the remaining manager the option of taking a position as a loan officer 6 or receiving a severance package. Kawar declined the loan officer position and filed a 7 complaint in this Court alleging unlawful discrimination, retaliation, and violation of 8 42 U.S.C. § 1981. 9 II. Summary judgment standard. 10 A party seeking summary judgment “bears the initial responsibility of informing the 11 district court of the basis for its motion, and identifying those portions of [the record] which 12 it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 13 Catrett, 477 U.S. 317, 322 (1986). Summary judgment is appropriate if the evidence, viewed 14 in the light most favorable to the nonmoving party, shows “that there is no genuine issue as 15 to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(c). Only disputes over facts that might affect the outcome of the suit will preclude 17 the entry of summary judgment, and the disputed evidence must be “such that a reasonable 18 jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 19 U.S. 242, 248 (1986). 20 III. Retaliation claim. 21 Kawar asserts that JPMC retaliated against him when it offered him a loan officer 22 position or severance package instead of a Producing Sales Manager position. According to 23 Kawar, this retaliation occurred in response to a February 16, 2007 call Kawar made to 24 Michelle Cox in Human Resources at JPMC. Kawar made the call to report that employee 25 Teighlor Chin had said fellow manager Scott Lewis called her a “cockroach.” Dkt. #136 26 ¶¶ 49-52. 27 28 -2- 1 A. 2 Title VII “prohibits retaliation against an employee ‘because he has opposed any 3 practice made an unlawful employment practice’” by Title VII. Nelson v. Pima Cmty. 4 College, 83 F.3d 1075, 1082 (9th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). A plaintiff 5 makes a prima facie case of unlawful retaliation by producing evidence that he engaged in 6 activity protected by Title VII, that the employer subjected him to a materially adverse 7 action, and that there was a causal link between the protected activity and the adverse action. 8 See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Vasquez v. County 9 of L.A., 349 F.3d 634, 642 (9th Cir. 2004); Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 10 2002); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). An action is materially 11 adverse if “it well might have dissuaded a reasonable worker from making or supporting a 12 charge of discrimination.” White, 548 U.S. at 57 (quotations omitted); see Ray, 217 F.3d at 13 1243 (“an action is cognizable as an adverse employment action if it is reasonably likely to 14 deter employees from engaging in protected activity”); Elvig v. Calvin Presbyterian Church, 15 375 F.3d 951, 965 (9th Cir. 2004) (same). Legal standard. 16 The Ninth Circuit “has explained that . . . ‘the requisite degree of proof necessary to 17 establish a prima facie case for Title VII on summary judgment is minimal and does not even 18 need to rise to the level of a preponderance of the evidence.’” Villiarimo v. Aloha Island Air, 19 Inc., 281 F.3d 1054, 1061-62 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 20 885, 889 (9th Cir. 1994)); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) (“At the 21 summary judgment stage, the prima facie case need not be proved by a preponderance of 22 the evidence.”). If the plaintiff makes a prima facie case, the burden of production shifts to 23 the defendant to present a legitimate, non-retaliatory reason for the adverse employment 24 action. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). If the defendant 25 carries this burden, the plaintiff “must demonstrate a genuine issue of material fact as to 26 whether the reason advanced by the [defendant] was a pretext.” Id. The plaintiff may do so 27 by presenting either direct evidence or specific and substantial circumstantial evidence that 28 -3- 1 the defendant’s reason was a pretext to retaliate against him. See Villiarimo, 281 F.3d at 2 1062; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). 3 B. 4 JPMC argues that Kawar cannot establish a prima facie case of retaliation because he 5 did not engage in protected activity and cannot establish a nexus between the alleged 6 protected activity and any adverse employment action. Dkt. #129 at 14. Kawar alleges that 7 he thought the “cockroach” comment was discriminatory. Dkt. ## 135 at 12, 136-5 at 15. 8 In her deposition, Cox stated that her notes reflected that Kawar called her regarding 9 comments made by Lewis to Chin that Kawar believed were “inappropriate slash racial.” 10 Dkt. #136-3 at 10. Viewing the evidence in the light most favorable to Kawar, he has 11 established a prima facie case that he engaged in a protected activity. Analysis. 12 Kawar has not, however, sufficiently established a nexus between the protected 13 activity and an adverse employment action to survive summary judgment. Kawar must 14 present evidence that “engaging in the protected activity was one of the reasons for [his] 15 firing and that but for such activity [he] would not have been fired.” Villiarimo, 281 F.3d at 16 1064-65 (internal quotation marks omitted). Kawar asserts that causation can be inferred 17 from timing alone, but never tells the Court when the adverse employment action took place. 18 It is clear that Kawar reported Lewis’s comment to Cox on February 16, 2007. Dkt. # 136 19 ¶¶ 52-53. It appears that Kawar’s employment was terminated sometime in October of 2007. 20 Dkt. ## 128 ¶ 56, 136-2 at 39. Thus, the adverse employment action took place at least 21 seven-and-one-half months after Kawar engaged in the protected activity. This span of time 22 is too great for the Court to infer causation from timing alone, and Kawar has provided no 23 other evidence which demonstrates that his termination was linked to the protected activity. 24 See Villiarimo, 281 F.3d at 1065 (citing multiple cases holding that time spans ranging from 25 four months to one-and-one-half years are too long to raise an inference of discrimination). 26 27 28 -4- 1 Kawar’s remaining evidence is not probative of causation. Kawar asserts that (1) he 2 had more tenure than the managers who were retained, (2) his supervisor was upset that he 3 reported the complaint to human resources rather than to the supervisor first (Dkt. #136-5 at 4 16), (3) he was written up less than a week after reporting the complaint for an incident that 5 he admits could have jeopardized an important source of referrals at a time when these 6 relationships were more important than ever due to the economic downturn (Dkt. #136-5 at 7 18), (4) one month after Kawar reported the complaint to HR, his supervisor told a new hire 8 that he would eventually replace Kawar (Dkt. #136-5 at 54), (5) in June of 2007 Kawar’s 9 production goals were slightly increased while the goals for Tucson were significantly 10 decreased (Dkt. #136-4 at 30), and (6) two employees were told that Kawar was terminated 11 because he was not liked by Mike Downing, had burned too many bridges, and did not play 12 the political game (Dkt. ## 136-5 at 47, 136-3 at 4). Of all this evidence, only the fact that 13 his supervisor was upset that he reported the complaint to human resources is related to the 14 protected activity. Kawar has not shown, however, that this supervisor played any role in 15 JPMC’s decision to deny Kawar a Producing Sales Manager position. The other events, 16 although occurring after the protected activity, are not themselves claimed to be adverse 17 employment actions and are not shown to be related to Kawar’s failure to receive a manager 18 position. Moreover, actions taken because Kawar failed to “play the political game” have 19 not been shown to be retaliation for protected activity. Because Kawar has failed to present 20 evidence from which a reasonable jury could conclude that the HR communication was 21 causally connected to the months-later denial of the manager position, summary judgment 22 will be entered on Kawar’s retaliation claim. 23 IV. Title VII and Section 1981 claims. 24 A. 25 The criteria set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 26 govern Plaintiff’s Title VII claim and provide a guide to Plaintiff’s claims under section 27 1981. Tagupa v. Bd. of Directors, 633 F.2d 1309, 1312 (9th Cir. 1980); see also Fonseca v. 28 -5- Legal standard. 1 Sysco Food Services of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004) (“Analysis of an 2 employment discrimination claim under [section] 1981 follows the same legal principles as 3 those applicable in a Title VII disparate treatment case.”) (citing Manatt v. Bank of Am., NA, 4 339 F.3d 792, 797-98 (9th Cir. 2003)). Under Title VII, an employer may not “discriminate 5 against any individual with respect to his compensation, terms, conditions, or privileges of 6 employment, because of such individual’s race[.]” 42 U.S.C. § 2000e-2(a). Plaintiff carries 7 the initial burden to establish a prima facie case of race discrimination by showing: (1) that 8 he belongs to a racial minority; (2) that he was qualified for a job for which the employer was 9 seeking applicants; (3) that he was subject to an adverse employment action; and (4) that 10 similarly situated individuals outside his protected class were treated more favorably. 11 Chuang v. University of California Davis, 225 F.3d 115, 1123-24 (9th Cir. 2000) (citing 12 McDonnell Douglas, 411 U.S. at 802). In a reduction-in-force case, the plaintiff may 13 establish a prima facie case of unlawful discrimination by demonstrating (1) that he belongs 14 to a protected class, (2) that he was discharged from a job for which he was qualified, and 15 (3) that others not in his protected class were treated more favorably. Washington v. Garrett, 16 10 F.3d 1421, 1434 (9th Cir. 1993). 17 “If the plaintiff establishes a prima facie case, the burden of production – but not 18 persuasion – then shifts to the employer to articulate some legitimate, nondiscriminatory 19 reason for the challenged action.” Villiarimo, 281 F.3d at 1062 (citing McDonnell Douglas, 20 411 U.S. at 802). Once the employer fulfills this burden of production, the “presumption of 21 unlawful discrimination ‘simply drops out of the picture.’” Wallis, 26 F.3d at 889 (quoting 22 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). “This is true even though there 23 has been no assessment of the credibility of [the employer] at this stage.” Id. at 892 (citing 24 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). 25 If the employer sufficiently articulates a nondiscriminatory reason, the plaintiff “must 26 produce evidence in addition to that which was sufficient for [his] prima facie case in order 27 to rebut the [employer’s] showing.” Godwin, 150 F.3d at 1220 (citing Wallis, 26 F.3d at 28 -6- 1 890). “[T]he plaintiff must show that the articulated reason is pretextual ‘either directly by 2 persuading the court that a discriminatory reason more likely motivated the employer or 3 indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” 4 Villiarimo, 281 F.3d at 1062 (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 5 (9th Cir. 2000)); see Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th 6 Cir. 2003); Burdine, 450 U.S. at 256. 7 To establish pretext the plaintiff may also offer “circumstantial evidence that tends 8 to show that the employer’s proffered motives were not the actual motives because they are 9 inconsistent or otherwise not believable.” Godwin, 150 F.3d at 1222. Indeed, “once the 10 employer’s justification has been eliminated, discrimination may well be the most likely 11 alternative explanation, especially since the employer is in the best position to put forth the 12 actual reason for its decision.” See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 13 (2000). Thus, “a plaintiff’s prima facie case, combined with sufficient evidence to find that 14 the employer’s asserted justification is false, may permit the trier of fact to conclude that the 15 employer unlawfully discriminated.” Id. at 148; see Raad, 323 F.3d at 1194; Chuang, 225 16 F.3d at 1127. Evidence of pretext, however, “must be both ‘specific’ and ‘substantial’ in 17 order to create a triable issue with respect to whether the employer intended to 18 discriminate[.]” Godwin, 150 F.3d at 1222 (citations omitted); see Stegall v. Citadel 19 Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). 20 B. 21 Kawar has sufficiently established a prima facie case of discrimination under both the 22 McDonnell Douglas framework and the Washington v. Garrett framework for evaluating a 23 reduction-in-force claim. See Chuang, 225 F.3d at 1123-24; Washington, 10 F.3d at 1434. 24 It is undisputed that Kawar belongs to a racial minority, that he was qualified for the new 25 Producing Sales Manager position being offered to some of the former Non-Prime Branch 26 Managers, that Kawar was not offered a position as a Producing Sales Manager, and that all 27 individuals who were offered the position were not members of his protected class. 28 Analysis. -7- 1 Once Kawar has established a prima facie case of discrimination, the burden shifts to 2 Defendant to articulate a legitimate, nondiscriminatory reason for the challenged action. 3 See Villiarimo, 281 F.3d at 1062. Defendant asserts that Kawar was not able to retain his 4 position as a Non-Prime Branch Manager because of a reduction-in-force in which the 5 separate management structure for non-prime lending was eliminated. Dkt. ## 129 at 13, 6 128 ¶ 48. Defendant contends that the decision not to offer Kawar a position as a Producing 7 Sales Manager was made based upon the location, availability, and market opportunity of 8 each geographic location. Because there was no Prime Branch in Tempe, there was no need 9 for a manager in that location. Dkt. ## 129 at 13; 128 ¶¶ 55, 65. Because Defendant has 10 articulated a legitimate, nondiscriminatory reason the presumption of unlawful discrimination 11 drops out of the picture. See Wallis, 26 F.3d at 889. 12 Kawar argues that Defendant’s proffered reason is unworthy of credence. See 13 Villiarimo, 281 F.3d at 1062. Kawar cites the statements of John Nicholson, a former Non- 14 Prime Branch Manager who was offered a Producing Sales Manager position, Carlton 15 Barker, a loan officer for JPMC from 2001 to 2008, Fred Grise, and Tony Richards. 16 Dkt. #136 ¶¶ 100-107. Nicholson stated in his deposition that when he called Heaton 17 because he was concerned about losing his job, Heaton told Nicholson “that’s not necessarily 18 true, because Mike Downing doesn’t like Rich Kawar” because Kawar “had burned too many 19 bridges.” Dkt. #136-5 at 47. Barker stated in his deposition that his new boss, Margo 20 MacLean, told him that one of the reasons that Kawar was no longer with the company was 21 because “he didn’t play the political game.” Dkt. #136-3 at 4. Kawar stated in his deposition 22 that Grise told him that MacLean said that “Rich wasn’t liked . . . Rich didn’t play the game, 23 Rich didn’t play politics.” Dkt. # 136-5 at 5. Finally, Richards stated that when he was hired 24 before the restructuring he was told that he would replace Kawar in approximately 60 to 90 25 days. Dkt. #136-5 at 54. 26 When the evidence is construed in the light most favorable to Kawar, Kawar has 27 presented sufficient evidence that the legitimate, non-discriminatory reason proferred by 28 -8- 1 Defendant is unworthy of credence. This evidence is both sufficiently specific and 2 substantial to overcome Defendant’s motion for summary judgment. 3 individuals stated that either JPMC had already decided to terminate Kawar before the 4 restructuring or that Kawar was terminated because he was not liked and did not play the 5 political game. This testimony directly contradicts the reasoning supplied by Defendant. As 6 discussed above, “once the employer’s justification has been eliminated, discrimination may 7 well be the most likely alternative explanation, especially since the employer is in the best 8 position to put forth the actual reason for its decision.” See Reeves, 530 U.S. at 147. 9 Therefore, “a plaintiff’s prima facie case, combined with sufficient evidence to find that the 10 employer’s asserted justification is false, may permit the trier of fact to conclude that the 11 employer unlawfully discriminated.” Id. at 148. 12 IV. Four separate Mitigation of damages defense. 13 Kawar has moved for partial summary judgment on Defendant’s mitigation of 14 damages defense. Dkt. #126. Kawar argues that Ninth Circuit law requires that Defendant 15 demonstrate both that there were substantially equivalent jobs available and that Kawar failed 16 to use reasonable diligence in seeking a substantially equivalent job. Dkt #126 at 4 (citing 17 Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1496-97 (9th Cir. 1994)). Kawar contends that 18 Defendant has failed to produce any evidence of the availability of substantially equivalent 19 positions and therefore summary judgment should be granted in his favor. See Celotex 20 Corp., 477 U.S. at 322 (“In our view, the plain language of Rule 56(c) mandates the entry 21 of summary judgment, after adequate time for discovery and upon motion, against a party 22 who fails to make a showing sufficient to establish the existence of an element essential to 23 that party's case, and on which that party will bear the burden of proof at trial.”). 24 Defendant argues that it is relieved of the burden of demonstrating that substantially 25 equivalent jobs were available if it can show that Kawar made no effort to find employment. 26 Dkt. #133 at 9-10. Defendant cites no Ninth Circuit law for this proposition. The Ninth 27 Circuit decision in Odima places the burden on Defendant to prove both that there were 28 -9- 1 substantially equivalent jobs available and that plaintiff failed to use reasonable diligence in 2 seeking one. Odima, 53 F.3d at 1497 (9th Cir. 1995). In Odima, the Court noted that 3 Defendant argued that it did not need to present evidence of comparable employment because 4 the plaintiff failed to look for work. The Court first recognized that no Ninth Circuit 5 authority exists for this exception to the general rule and then held that it did not need to 6 reach this issue because the plaintiff had attempted to look for work. 7 Defendant cites a First Circuit decision which held that a defendant is excused from 8 proving that comparable employment existed in the rare case where an employee has 9 “remained completely idle” following his discharge. Quint v. A.E. Stanley Mfg. Co., 172 10 F.3d 1, 16 (1st Cir. 1999). This case also notes, however, that the Ninth Circuit still requires 11 defendants to prove that comparable employment existed even when an employee was idle. 12 Id. In any event, Defendant does not allege that Kawar remained completely idle, but instead 13 characterizes his efforts as “minimal.” Dkt. #133 at 3. This Court concludes that Defendant 14 must prove both that comparable employment existed and that Kawar did not use reasonable 15 diligence in seeking comparable employment. 16 Defendant contends that even if it were required to show that substantially equivalent 17 jobs were available, it can meet this burden. Id. at 11. Defendant notes that former Non- 18 Prime Branch Manager Nicholson found employment as a Banking Center Manager after 19 being laid off in March of 2008 and that Kawar’s former supervisor, Heaton, found 20 employment as a Branch Manager at Bank of Arizona after being laid off in August of 2008. 21 Dkt. ## 133 at 11; 134-9 at 3; 134-10 at 3-4. In reply, Kawar argues that there is no evidence 22 that these positions were comparable to the branch/sales manager positions held by Kawar. 23 Dkt. #139 at 4. 24 To mitigate damages, Kawar was not required to “go into another line of work, accept 25 a demotion, or take a demeaning position.” EEOC v. Pape Lift, Inc., 115 F.3d 676, 683 (9th 26 Cir. 1997). Kawar was not required to accept a similar position which offered a significantly 27 lower salary. Id. Defendant has provided no information regarding the salaries paid to 28 - 10 - 1 Nicholson or Heaton nor whether these positions were comparable to the Producing Sales 2 Manager position at JPMC. Defendant has therefore failed to make a sufficient showing to 3 establish an essential element of the defense that Kawar failed to mitigate his damages. See 4 Celotex Corp., 477 U.S. at 322. 5 IT IS ORDERED: 6 1. 7 8 Plaintiff’s motion for partial summary judgment re mitigation of damages defense (Dkt. #126) is granted. 2. 9 Defendant’s motion for summary judgment (Dkt. #129) is granted with respect to the claim for retaliation and denied with respect to the claims 10 brought pursuant to Title VII and 42 U.S.C. § 1981. 11 3. The Court will set a final pretrial conference by separate order. 12 DATED this 16th day of June, 2009. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 -