Kathleen Mulligan v. Jenny Yang, No. 2:2015cv00712 - Document 59 (C.D. Cal. 2016)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 41 by Judge Dean D. Pregerson. MD JS-6. Case Terminated. (lc). Modified on 11/3/2016. (lc).
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Kathleen Mulligan v. Jenny Yang Doc. 59 O 1 2 3 JS-6 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 KATHLEEN MULLIGAN, 13 Plaintiff, 14 15 16 v. JENNY YANG, 17 Defendants. 18 ) ) ) ) ) ) ) ) ) Case No. CV 15-712 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [Dkt. 41] 19 20 Presently before the court is Defendant Jenny Yang, Chairperson of the United 21 States Equal Employment Opportunity Commission’s (“EEOC”), Motion for Summary 22 Judgment, or in the Alternative, for Summary Adjudication of Issues. (Dkt. 41.) After 23 considering the parties’ submissions and hearing oral argument, the court adopts the 24 following Order. 25 I. BACKGROUND 26 Plaintiff Kathleen Mulligan has been an employee at the EEOC for over twenty 27 years. (Compl. ¶ 7.) Prior to her current position, Mulligan served as a GS-14 Trial 28 Attorney for the EEOC in the San Diego Area Office. (Id. ¶ 21.) In 1999, Mulligan filed a Dockets.Justia.com 1 complaint for sex discrimination and unlawful retaliation under Title VII before the 2 EEOC in connection with her employment at the EEOC. Mulligan v. Dominguez, EEOC 3 Appeal No. 01A21675, 2003 WL 21485280, at *1 (June 19, 2003). The agency concluded 4 there was no discrimination and the case was dismissed. Id. at *17. Following this action, 5 Mulligan was transferred to the Los Angeles Office Legal Unit. (Compl. ¶ 21.) Since 2000, 6 Mulligan has served as a GS-14 Attorney-Examiner (Administrative Judge) in the Los 7 Angeles District Office. (Id. ¶ 6; Ex. 1 attached to Declaration of David Pinchas 8 (“Mulligan Depo”) 87:5-6.) In her current role, Mulligan is responsible for adjudicating 9 discrimination complaints brought by federal agency employees who work in the 10 geographic area covered by the L.A. District Office. (Compl. ¶ 6.) 11 A. Efforts to Acquire Accommodations 12 Around 2003, Mulligan began experiencing arm and hand pain. (Mulligan Depo. 13 87:8-9.) By 2005, Mulligan was diagnosed with rheumatoid arthritis, a chronic 14 autoimmune condition, which causes joint swelling, fatigue, and other pain. (Compl. ¶ 15 29.) As a result of her condition, Mulligan alleges that she suffers substantial restrictions 16 on her ability to walk, lift, carry, push, pull, type, and file. (Id. ¶ 7.) At some point 17 between 2003 and 2005, Mulligan began requesting accommodations from the EEOC for 18 her physical disabilities. 1 In May 2005, the EEOC conducted an ergonomic assessment of 19 Mulligan’s workstation. As a result of the assessment, Mulligan was provided with 20 various computer accessories including an ergonomic keyboard and mouse, a phone 21 headset, document holder, and a text-to-speech dictation software. (See id. ¶50; Mulligan 22 Depo. 107:5-7, 109:23.) Mulligan alleges, however, the EEOC ignored a number of other 23 accommodations suggested by the ergonomic assessment report without explanation, 24 including recommendations concerning office furniture, clerical support, and schedule 25 26 27 28 In her Complaint, Mulligan alleges that she first requested reasonable accommodation in 2005. (Compl. ¶ 4.) However, during her deposition, Mulligan testified that she “started to ask for some consideration from the EEOC maybe in 2004.” (Mulligan Depo. 88:4-6.) In her Opposition to the instant motion, Mulligan states that the “EEOC began processing her Request [for ergonomically appropriate furniture] and accepted her medical information furnished in September 2003. (Opp’n 1.) 2 1 1 adjustments. (Compl. ¶ 50.) At various points, after the assessment, Mulligan did receive 2 some new accommodations. (Id. ¶ 52.) For instance, in 2007, Mulligan received new filing 3 cabinets. (Mulligan Depo. at 249:20-25.) And in 2009, a few months after making a 4 request, Mulligan received an “ergonomically appropriate” chair. (Id. at 149:17-21.) 5 In November 2012, Plaintiff renewed her request for an ergonomic evaluation of 6 her workstation. (See Ex. 3, attached to Pinchas Decl.) One month later, the EEOC 7 provided a second assessment to determine whether adjustments were needed. 8 (Mulligan Depo. 278:10-18.) In February 2013, Mulligan sent a request to the EEOC’s 9 disability program manager, Dr. Donna Walton, for new furniture. (See Ex. 4, attached to 10 Pinchas Decl.) In May 2013, the District Resources Manager for the L.A. District Office 11 met with Mulligan regarding her furniture request. (Declaration of Thomas Profit ¶ 7.) 12 After trying out some suggested furniture in a separate office, Mulligan approved the 13 changes in July 2013. (Profit Decl. ¶ 8.) Payment for the furniture was authorized in 14 September 2013 and the pieces were delivered in November. (Profit Decl. ¶¶ 10-11.) 15 B. Relationship with Supervisor 16 While Mulligan was attempting to secure workplace accommodations, she alleges 17 that her relationship with her first-line supervisor deteriorated. From 2000, when 18 Mulligan began serving as an Administrative Judge, until March 2013, Christine Siegel 19 served as the Supervisory Administrative Judge who oversaw Mulligan’s work. (Compl. 20 ¶ 24.) According to Mulligan, Siegel was predisposed against Mulligan because, as her 21 supervisor, she knew about the previous Title VII complaint Mulligan filed while 22 working in the San Diego Office. (See Compl. ¶¶ 36-37.) In 2004, Mulligan also notes that 23 she informed Siegel of her arm and hand pain and, in 2005, she told Siegel about her 24 rheumatoid arthritis diagnosis. (Id. ¶ 28.) 25 As early as 2006, Siegel allegedly began making negative remarks towards 26 Mulligan. (Id. ¶ 38.) On that occasion, Siegel had entered Mulligan’s office and was told 27 “Just let me finish this sentence so I don’t lost my train of thought.” (Mulligan Depo. 28 239:22-240:4.) Siegel responded by yelling at Mulligan, “Why don’t you see if you can get 3 1 another unit to take you.” (Id.; Compl. ¶ 38.) On another occasion, Siegel allegedly 2 referred to Mulligan as “a pig defense lawyer,” in reference to Mulligan’s prior 3 employment at a law firm. (Compl. ¶ 39.) A third incident arose in 2010 when Mulligan 4 reported to the Deputy Director that a clerk in the Hearing Unit was concerned about 5 racism while Siegel was out of the office. (Id. ¶ 41.) Neither party states that Siegel was 6 the cause of the concern. When Siegel returned, she allegedly told Mulligan, “You are 7 never to talk to another manager about any kind of discrimination or harassment in this 8 Unit. Do you understand?” (Id.) 9 Several other incidents reported by Mulligan appear to be directly related to her 10 efforts to seek accommodations. In 2005, when Mulligan first informed Siegel of her 11 diagnosis and asked for an accommodation, Siegel allegedly responded “other judges 12 don’t get that.” (Id. ¶ 47.) On one specific occasion, Mulligan was informed that she could 13 not receive a travel accommodation—an upgrade from economy to business class on a 14 work flight to Asia—because “we don’t do that.” (Id.) Around this time, Mulligan also 15 reports seeking the assistance of a clerk to help transport materials and file documents. 16 Siegel allegedly told Mulligan, however, that the clerk doesn’t work for her so she 17 shouldn’t ask her for help. (Mulligan Depo. 113:18-22.) Mulligan also notes two instances 18 from 2011. The first involved Siegel “unreasonably” delaying approval of Mulligan’s 19 request for a telework assignment while Mulligan was recovering from surgery (id. ¶ 66) 20 and the other involved Siegel questioning why Mulligan needed medical leave for a 21 vertebra surgery, which was “just a stress fracture” (id. ¶ 66). 22 According to Mulligan, the situation worsened in 2011 when she alleged that 23 Siegel engaged in an effort to undermine Mulligan in the eyes of a fellow Administrative 24 Judge, Leslie Troope. (Id. ¶ 68.) Mulligan alleges that from October 2011 to October 2012, 25 Siegel instructed Troope not to discuss reasonable accommodations with Mulligan. (Id.) 26 Siegel also allegedly discussed Mulligan’s prior Title VII activity with Troope and made 27 other negative comments about Mulligan. (Id. ¶ 71.) The most explicit of these 28 conversations was an incident in 2012 when Siegel referred to Mulligan as an “ungrateful 4 1 fucking bitch.” (Id. ¶ 5.) According to Troope, Siegel had asked Mulligan to speak at an 2 awards ceremony about a complex case and Mulligan had declined. (Ex. 2, attached to 3 Pinchas Decl. (“Troope Depo.”) 116:23-117:3.) Siegel then made the offending remark 4 when recounting the interaction to Troope. (Id.) On December 7, 2012, Mulligan initiated the EEOC process. (Compl. ¶ 12.) 5 6 According to Mulligan, she did not initially want to report a complaint to the EEOC 7 unless her “life depended on it” because she was dissatisfied with the outcome of her 8 previous efforts to seek redress from the EEOC. (Mulligan Depo. 126:1-9.) In 2012, 9 however, Mulligan concluded that she had to file a complaint. As she explained: 10 I thought my life, in the sense of my professional life, did depend on it. When I found out that Christine Siegel had clandestinely told Lesley so many lies about me and used obscene language about me, I waited more than 30 days to give her a chance to come in and apologize . . . . And she didn't. She didn't do anything. And then my time was running out. I had to file I had to go to EEO so I didn't blow my time period. 11 12 13 14 (Id. at 132:23-133:9.) The EEOC concluded its formal investigation process on July 23, 15 2013 and referred the matter for hearing before a “contract administrative judge” hired 16 for the purpose of handling EEO complaints by EEOC employees against the EEOC. 17 (Compl. ¶¶ 6-8.) After 180 days passed without hearing, Mulligan filed suit in federal 18 court. 19 Mulligan’s suit states five causes of action against the EEOC, alleging that the 20 agency: 1) retaliated against Mulligan for engaging in protected Title VII activity; 2) 21 retaliated against Mulligan for engaging in protected activity under the ADA and related 22 statutes; 3) engaged in retaliation per se under Title VII; 4) engaged in retaliation per se 23 under the ADA; 5) violated the duty of reasonable accommodation. (See generally Compl. 24 ¶¶ 78-114.) The EEOC now moves for summary judgment. 25 II. LEGAL STANDARD 26 Summary judgment is appropriate where the pleadings, depositions, answers to 27 interrogatories, and admissions on file, together with the affidavits, if any, show “that 28 there is no genuine dispute as to any material fact and the movant is entitled to judgment 5 1 as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the 2 initial burden of informing the court of the basis for its motion and of identifying those 3 portions of the pleadings and discovery responses that demonstrate the absence of a 4 genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All 5 reasonable inferences from the evidence must be drawn in favor of the nonmoving party. 6 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not 7 bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate 8 that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 9 477 U.S. at 323. Once the moving party meets its burden, the burden shifts to the nonmoving party 10 11 opposing the motion, who must “set forth specific facts showing that there is a genuine 12 issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party 13 “fails to make a showing sufficient to establish the existence of an element essential to 14 that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 15 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury 16 could return a verdict for the nonmoving party,” and material facts are those “that might 17 affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There 18 is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational 19 trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio 20 Corp., 475 U.S. 574, 587 (1986). 21 It is not the court’s task “to scour the record in search of a genuine issue of triable 22 fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel has an obligation to lay 23 out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 24 2001). The court “need not examine the entire file for evidence establishing a genuine 25 issue of fact, where the evidence is not set forth in the opposition papers with adequate 26 references so that it could conveniently be found.” Id. 27 /// 28 /// 6 1 III. DISCUSSION 2 A. Timeliness of Claims 3 As a threshold matter, Defendant contends that a majority of Mulligan’s claims are 4 time-barred. Federal employees that seek to bring federal discrimination claims against 5 their employers must exhaust all administrative remedies. Cherosky v. Henderson, 330 F.3d 6 1243, 1245 (9th Cir. 2003). Under federal regulations, “[a]ggrieved persons who believe 7 they have been discriminated against on the basis of . . . handicap must consult [an 8 EEOC] Counselor prior to filing a complaint in order to try to informally resolve the 9 matter.” 29 C.F.R. § 1614.105(a). This consultation must occur “within 45 days of the date 10 of the matter alleged to be discriminatory or, in the case of personnel action, within 45 11 days of the effective date of the action.” Id. at § 1614.105(a)(1). Although failure to 12 comply with this pre-filing exhaustion requirement is not a “jurisdictional prerequisite 13 for suit in federal court,” failure to comply with it is nonetheless “fatal to a federal 14 employee’s discrimination claim in federal Court.” Kraus v. Presidio Trust Facilities Div./ 15 Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009). 16 Mulligan’s complaint alleges that the EEOC engaged in discriminatory or 17 retaliatory acts against her on a number of occasions dating from November 21, 2003 18 until March 29, 2013. (See Dkt. 32.) However, it is undisputed that Plaintiff did not initiate 19 the EEOC process until December 7, 2012. (Compl. ¶ 12.) Accordingly, any acts that took 20 place before October 23, 2012 would be untimely under the 45-day time limit. See 29 21 C.F.R. § 1614.105(a). The Complaint alleges only two instances of the EEOC denying or 22 delaying an accommodation after October 23, 2012. The first is that Defendant did not 23 promptly respond to an October 23, 2012 request for new equipment and an ergonomic 24 work assessment. (Dkt. 32-13.) Mulligan acknowledges, however, that she was eventually 25 provided with an ergonomic assessment in December 2012. (Mulligan Depo. 278:10-18.) 26 The second is that Mulligan was denied a request for clerical assistance on March 29, 27 2013. Although, here too, Mulligan acknowledges that she eventually received additional 28 clerical support later in 2013. (Id. 110:15-25; 113:24-114:4.) In addition to these denials of 7 1 accommodation, Mulligan also alleges that she first learned of Siegel’s profane remarks 2 regarding Mulligan in November 2012. 3 Mulligan contends that the time bar does not apply to her claims because she 4 never received a written notice that her accommodation request had been denied. (Opp’n 5 6.) Instead, Mulligan argues that the back and forth process with the EEOC from 2003 6 until 2012 constituted an ongoing violation of her rights. Mulligan’s contention is 7 foreclosed, however, by the Supreme Court’s decision in National R.R. Passenger Corp. v. 8 Morgan. 536 U.S. 101, 113 (2002) (holding that plaintiffs may not bring discrete 9 discrimination claims that have been “time barred, even when they are related to acts 10 alleged in timely filed charges.”). In Morgan, the Court held that “ongoing violation” 11 theories could not save untimely discrimination claims and, instead, every discrete act of 12 discrimination “starts a new clock for filing charges alleging that act.” Id. The relevant 13 question for assessing the timeliness of Mulligan’s claim is not whether she received a 14 written denial notice but instead whether she knew or reasonably should have known 15 “that the discriminatory matter or personnel action occurred.” See 29 C.F.R. § 16 1614.105(a)(2); see also Korsunska v. Johnson, No. 2:13-CV-07010-CAS, 2014 WL 3942084, at 17 *4 (C.D. Cal. Aug. 11, 2014). By Mulligan’s own admission, she believed that there was a 18 “violation of the EEOC policy to engage in the interactive process” as early as 2005. (See 19 Mulligan Depo. 116:4-5.) And Mulligan’s Complaint states numerous times that she was 20 denied reasonable accommodations prior to October 23, 2012. (See Compl. ¶¶ 43, 47, 62, 21 85.) 22 Mulligan’s arguments to the contrary are unavailing. First, Mulligan’s contention 23 that only a written notice denying benefits constitutes a violation for purposes of starting 24 the EEOC clock fails to explain why she initiated the redress process in October 2012 25 given that there is no indication she received any denial notice at that time. Mulligan also 26 references the Ninth Circuit’s holding in Pouncil v. Tilton, 704 F.3d 568 (2012), that “if an 27 employer engages in a series of acts each of which is intentionally discriminatory, then a 28 fresh violation takes place when each act is committed.” Id. at 580. This statement only 8 1 reiterates the rule set forth in Morgan and does not affect the timeliness of Mulligan’s 2 claim. In Pouncil, the court considered an inmate’s allegation of constitutional 3 deprivations arising from incidents that took place in 2002 and 2008. Id. at 568. Even 4 though both deprivations arose from application of the same prison policy, the court held 5 that the fact the earlier claim was time barred did not mean the latter claim was also 6 untimely. Id. at 580. The same is true in this case where Mulligan can bring claims post- 7 dating October 23, 2012, even if she is time barred from bringing earlier claims. 8 Mulligan also contends that equitable doctrines of tolling and estoppel save her 9 claim. As to tolling, Mulligan explains that her delay in initiating the EEOC process 10 reasonably relied on EEOC decisions “which toll the time limit for bringing an EEO 11 complaint where the Agency has failed to specifically deny the complainant’s requests.” 12 (Opp’n 7.) However, as noted above, the central question for a tolling purposes claim is 13 whether “the plaintiff knows or has reason to know of the actual injury.” See Lukovsky v. 14 City & Cty. of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). And here, Plaintiffs own 15 testimony establishes that she knew of the alleged violations and chose not to act earlier 16 because of dissatisfaction with a prior EEOC process. (See Mulligan Depo. 126:1-9.) The 17 EEOC decisions Mulligan claims to rely on do appear to suggest that some individuals 18 were permitted to wait until a formal denial notice to initiate a formal EEOC complaint 19 but the opinions do not contain sufficient facts to determine whether the claimants in 20 those cases could not have known about their claim until receiving the notice of denial. 21 See McGreevy v. U.S. Postal Service, EEOC Appeal No. 01A43361; Coddington v. U.S. Postal 22 Service, EEOC Appeal No. 01A40149. Moreover, those cases involve much shorter delays 23 between the request for accommodation and the formal notice of denial. Mulligan 24 provides no authority for the proposition that she was entitled to wait nearly ten years 25 before concluding that a constructive denial had taken place. As for equitable estoppel, 26 Mulligan contends that the EEOC “engaged in a pattern of false promises,” which led 27 Mulligan to believe that her accommodation requests would be granted, and, only in 28 2012, did Mulligan realize that was not the case. (Opp’n 8-9.) However, as the EEOC 9 1 correctly notes, a litigant claiming equitable estoppel against the government must 2 provide evidence of “[a]ffirmative misconduct” that goes beyond “[m]ere unexplained 3 delay.” Jaa v. U.S. I.N.S., 779 F.2d 569, 572 (9th Cir. 1986). Mulligan has provided no such 4 evidence in this case. 5 B. Hostile Work Environment Claim 6 Although the parties extensively discuss a potential standalone hostile work 7 environment claim, the court notes at the outset that the Complaint does not appear to 8 state a separate cause of action for “hostile work environment.” Instead, the phrase only 9 appears twice in the entire Complaint: once in the caption and once when Mulligan 10 alleges that “Defendant repeatedly retaliated against Ms. Mulligan through unlawful 11 harassment because of prior Title VII protected activity, creating a hostile work 12 environment.” (Compl. at 1; id. ¶ 5.) On both occasions, the reference to a hostile work 13 environment appears to be as a part of the overall retaliation cause of action. Although 14 the court could conclude its analysis of this claim here, it nonetheless considers whether 15 such a claim would survive summary judgment out of an abundance of caution. 16 One consequence of Mulligan’s ambiguous pleading is that it is unclear whether 17 she is alleging a hostile work environment as part of her Title VII claim or as part of her 18 disability discrimination claim. If it is the latter, the court notes that the Ninth Circuit has 19 not yet recognized a hostile work environment claim under the ADA and, instead, has 20 declined to decider whether such a claim exists. Brown v. City of Tucson, 336 F.3d 1181, 21 1190 (9th Cir. 2003). Nonetheless, both district courts in this Circuit and other Courts of 22 Appeals have recognized the possibility of such a claim and noted that both Title VII and 23 ADA-based claims are governed by the same standard. See, e.g., Rood v. Umatilla Cty., 526 24 F. Supp. 2d 1164, 1176 (D. Or. 2007); see also Keever v. City of Middletown, 145 F.3d 809, 813 25 (6th Cir. 1998). “An employer is liable . . . for conduct giving rise to a hostile environment 26 where the employee proves (1) that he was subjected to verbal or physical conduct of a 27 harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was 28 sufficiently severe or pervasive to alter the conditions of the victim’s employment and 10 1 create an abusive working environment.” Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 2 (9th Cir. 1999). Notably, the conduct at issue must be discriminatory—here, motivated by 3 sex or disability-status based animus—rather than a violation of some “general civility 4 code.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). In order to determine 5 whether an environment is sufficiently hostile or abusive, courts are directed to “look[] at 6 all the circumstances,” including “the frequency of the discriminatory conduct; its 7 severity; whether it is physically threatening or humiliating, or a mere offensive 8 utterance; and whether it unreasonably interferes with an employee's work 9 performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). 10 As noted above, the majority of the conduct at issue in this case is untimely. Thus, 11 the court will consider any untimely discrete acts that took place prior to October 23, 12 2012 only “as background evidence to support a timely claim.” Morgan, 536 U.S. at 102. 13 Since that date, Mulligan can only point to three incidents that might give rise to a hostile 14 work environment claim: 1) a request for an ergonomic assessment that was made on 15 October 23, 2012 (Dkt. 32-13), 2) a request for clerical assistance made on March 29, 2013 16 that was allegedly ignored (Compl. ¶ 63), and 3) an incident where Mulligan’s supervisor 17 referred to her as an “ungrateful fucking bitch” (Troope Depo. 116:23-117:3.) The court 18 finds that these incidents are insufficient to create a triable issue of fact as to hostile work 19 environment. As both parties’ acknowledge, the October 2012 request for an ergonomic 20 assessment, where Mulligan asked for a new workstation, filing cabinets, and keyboard 21 tray, was conducted by December 2012. (Ex. 4, attached to Pinchas Decl.; Mulligan Depo. 22 278:10-18.) Likewise, Mulligan acknowledges receiving additional clerical support in 23 2013 to help her with carrying and filing materials. (Id. 110:15-25; 113:24-114:4.) As for the 24 profane remark, the totality of the circumstances counsels against a finding of hostile 25 work environment. Indeed, it appears to be precisely the sort of “mere offensive 26 utterance” that Harris suggested was not actionable. See 510 U.S. at 23. It was the only 27 incident of its kind and the context of the utterance was regarding an interpersonal 28 dispute about whether Mulligan would attend an after-work awards ceremony. The 11 1 comment does not appear to be related in any way to Mulligan’s sex or stated disability. 2 Mulligan does submit a declaration that she believes her supervisors “diatribe” was “due 3 to prior Title VII EEO activity” but there is no evidence to corroborate this account and 4 the deposition of the colleague who heard the comment makes no mention of EEO 5 activity. Accordingly, to the extent that Mulligan alleges a hostile work environment 6 claim separate from her retaliation claim, the court GRANTS Defendant summary 7 judgment on that claim. 8 C. Per Se Retaliation 9 Mulligan contends that the EEOC engaged in “per se retaliation” because her 10 supervisor made derogatory remarks about Mulligan’s prior EEO activity, as well any 11 contemplated future EEO activity. Mulligan cites to a number of EEOC cases standing for 12 the proposition that “comments that, on their face, discourage an employee from 13 participating in the EEO process are evidence of per se retaliation.” See, e.g., Matt A. v. 14 Veterans Affairs, EEOC Appeal No. 012016110 (August 17, 2016). Setting aside the fact that 15 these decisions are not binding on federal courts, the only two other district courts to 16 consider this theory of retaliation have concluded that it is not a cognizable claim in the 17 Ninth Circuit. See Cramblett v. McHugh, 2014 WL 2093600 at * 14 (D. Ore. May 19, 2014) 18 (“[T]here is no legal support for the proposition that any expression of skepticism by an 19 employer of the merits of an employee’s EEO Complaint constitutes retaliation.”); 20 E.E.O.C. v. Go Daddy Software, No. CV-04-2062-PHX-DGC, 2006 WL 1791295, at *7 (D. 21 Ariz. June 27, 2006) (“In the absence of such controlling authority, and in light of the 22 Ninth Circuit's refusal to establish a different per se rule in Title VII retaliation claims, see 23 Coszalter v. City of Salem, 320 F.3d 968, 977–78 (9th Cir.2003), the Court declines Plaintiff's 24 invitation to establish a per se rule in this specific context.”). Accordingly, this Court 25 declines to establish a claim for per se retaliation in this case and GRANTS Defendant 26 summary judgment on Mulligan’s Third and Fourth claim for relief for per se retaliation. 27 /// 28 /// 12 1 D. Retaliation Claims 2 Defendant contends that Mulligan has failed to plead a prima facie case for 3 retaliation. In order to state a prima facie case for retaliation, a plaintiff must show that 4 “(1) [s]he engaged in activity protected . . . , (2)[her] employer subjected [her] to an 5 adverse employment action, and (3) the employer’s action is causally linked to the 6 protected activity.” Jurado v. Eleven–Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987). 7 Defendant concedes that Mulligan has engaged in protected activity but contends that 8 Mulligan’s claim fails to satisfy the remaining two prongs. Mulligan raises three 9 potentially adverse employment actions. The first are the 2012 and 2013 accommodation 10 denials. Defendant responds that these requested accommodations were handled by the 11 EEOC’s disability program managers. (Ex. 11, attached to Pinchas Decl.) Thus, even if the 12 delays in providing accommodation constituted adverse employment actions, there is 13 insufficient evidence that the managers had any retaliatory motive or that any alleged 14 retaliatory motive on the part of Mulligan’s supervisor infected the decision making of 15 the disability program managers. (Mot. 14.) Mulligan responds that the lengthy history of 16 delays demonstrates a retaliatory motive and specifically notes that on several occasions 17 Mulligan’s supervisor did not promptly forward her accommodation requests to the 18 appropriate department. (Opp’n 24.) These assertions fail to demonstrate the required 19 nexus between any delay in providing accommodation and retaliatory motive. Even if 20 some of Mulligan’s accommodation requests were not promptly forwarded by Siegel, the 21 requests at issue here were made directly with the disability program managers and the 22 fact that there have been delays in the past does not demonstrate retaliatory motive on 23 the part of the managers responding to the 2012 and 2013 requests. 24 The second adverse employment action Mulligan points to is the derogatory 25 remark made by her supervisor to a fellow Administrative Judge that Mulligan was an 26 “ungrateful fucking bitch.” Mulligan correctly notes “that an action is cognizable as an 27 adverse employment action if it is reasonably likely to deter employees from engaging in 28 protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). However, 13 1 Mulligan has failed to present sufficient evidence to create a triable issue of fact that the 2 actionable comments at issue here are reasonably likely to deter employees from 3 engaging in protected activity. To the contrary, the Ninth Circuit has on numerous 4 occasions affirmed grants of summary judgment where the adverse action complained of 5 was a limited number of hostile comments. See Hardage v. CBS Broadcasting, Inc., 427 F.3d 6 1177, 1189 (9th Cir. 2005), amended on other grounds 438 F.3d 672 (9th Cir. 2006) 7 (collecting cases). 8 Finally, Mulligan contends that the EEOC failed to promote her to the GS-15 level 9 in retaliation for engaging in protected activity. (See Compl. ¶ 87.) Specifically, Mulligan 10 contends that the EEOC Human Resource Specialist Immanuel West delayed Mulligan’s 11 reclassification attempt and that the EEOC would not offer a fair adjudication of 12 reclassification request because the new supervisor of Mulligan’s unit was being 13 pressured to provide inaccurate information regarding Mulligan’s Position Description. 14 (Opp’n 21-22.) Here, too, Mulligan fails to create a triable issue of fact as to retaliation. 15 Mulligan has not provided evidence that any delay on the part of EEOC’s human 16 resources staff was causally linked to Mulligan’s protected activity. Moreover, instead of 17 allowing the EEOC adjudication process to run its course, Mulligan moved the claim into 18 this action because she determined that her supervisors were being pressured to not 19 support her request. (Id.) However, Mulligan’s own deposition testimony reveals that her 20 supervisors did ultimately provide accurate certifications in connection with her 21 reclassification effort. (Mulligan Depo. 283:2-7.) Thus, there is no evidence that Mulligan 22 was retaliated against for engaging in protected activity during her efforts to secure a pay 23 raise. 24 25 /// 26 /// 27 /// 28 /// 14 1 2 3 IV. CONCLUSION For the reasons stated above, the court GRANTS Defendant’s Motion for Summary Judgment. 4 5 IT IS SO ORDERED. 6 7 8 9 10 Dated: November 2, 2016 ___________________________________ DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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