Asadi v. Secretary of Army, Defense Language Institute, Foreign Language Center DLIFLC, Agency, No. 5:2022cv02988 - Document 39 (N.D. Cal. 2023)
Court Description: ORDER GRANTING 25 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 7/19/2023. (blflc3, COURT STAFF) (Filed on 7/19/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
Download PDF
<![CDATA[
Asadi v. Secretary of Army, Defense Language Institute, Foreign Language Center DLIFLC, Agency Doc. 39 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 1 of 31 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 AHMED AL ASADI, Plaintiff, 8 United States District Court Northern District of California 11 12 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT v. 9 10 Case No. 22-cv-02988-BLF SECRETARY OF ARMY, DEFENSE LANGUAGE INSTITUTE, FOREIGN LANGUAGE CENTER DLIFLC, AGENCY, [Re: ECF No. 25] Defendant. 13 14 Plaintiff Ahmed Al Asadi brings this brings this action under Title VII of the Civil Rights 15 Act of 1964 against the Secretary of the Army for alleged employment discrimination, retaliation, 16 and creation of a hostile work environment. Pending before the Court is Defendant’s Motion for 17 Summary Judgment or Summary Adjudication. Mot., ECF No. 25; Reply, ECF No. 34. Mr. 18 Asadi opposes the motion. Opp’n, ECF No. 33. The Court has found this motion suitable for disposition without oral argument. See ECF 19 20 No. 35. Having considered the parties’ positions, relevant legal authority, and the record in this 21 case, the Court GRANTS Defendant’s motion in its entirety for the following reasons. 22 I. BACKGROUND Plaintiff’s Position and Chain of Command 23 A. 24 Plaintiff Ahmed Al Asadi is of Iraqi national origin. Asadi Decl. Ex. C (“Asadi EEO Decl. 25 (July 30, 2019)”), at p.1, ECF No. 33-3. He joined the Defense Language Institute in 2009 as a 26 language teacher. Scharf Decl. Ex. FFF (“Asadi Dep.”) 20:7-11, ECF No. 25-3. In 2015, he was 27 selected to become an Educational Technology Specialist and has held that role ever since. Id. at 28 20:12-18. Mr. Asadi is in charge of everything related to technology at the institute, including the Dockets.Justia.com Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 2 of 31 1 2 From September 2017 to March 2020 Mr. Asadi’s first-line supervisor was Dr. Atousa 3 Mirzaei, a white woman of Iranian national origin. Scharf Decl. Ex. D (“Mirzaei Decl.”), at pp.1- 4 2, ECF No. 25-2. His second-line supervisor was Dr. Viktoriya Shevchenko, a white woman of 5 Ukrainian national origin. Scharf Decl. Ex. E (“Shevchenko Decl.”), at pp.1-2, ECF No. 25-2. 6 Both Dr. Mirzaei and Dr. Shevchenko reported to Dr. Hiam Kanbar, a white woman of Lebanese 7 national origin. Scharf Decl. Ex. F (“Kanbar Decl.”), at pp. 2, ECF No. 25-2; Mirzaei Decl., at 8 p.1; Shevchenko Decl., at p.2. 9 10 United States District Court Northern District of California institute’s networks, servers, accounts, and hardware. Id. at 21:10-18. B. The Incident The events giving rise to this case began on July 13, 2018, with a disagreement at a 11 meeting. The meeting was chaired by Assistant Provost Dr. Parandeh Kia. Scharf Decl. Ex. G 12 (“Koayess Statement”), at DEF1080, ECF No. 25-2. Mr. Asadi and two other employees, Thomas 13 Adams and Amany Nasser, were to present a method for organizing and presenting files on a 14 school share drive. See Asadi Decl. Ex. B (“Asadi Statement”), at p.254, ECF No. 33-3; see also 15 Scharf Decl. Ex. I (“Noisette Mem.”) ¶ 2, ECF No. 25-2. Mr. Adams was the main presenter. 16 Asadi Statement, at p.245; Noisette Mem. ¶ 2; Asadi Decl. Ex. D (“Adams Decl.”), ECF No. 33-3. 17 What happened after the meeting began is disputed although largely not material to this 18 case. According to Mr. Asadi, two attendees, George Yousef and Pascale Koayess, repeatedly 19 interrupted Mr. Adams. Asadi Statement, at p.254. Mr. Adams corroborates that Mr. Yousef and 20 Ms. Koayess interrupted him. Asadi Decl. Ex. D (“Adams Statement”), ECF No. 33-3. Mr. Asadi 21 states that he eventually responded to one of Mr. Yousef’s interruptions by politely telling Mr. 22 Yousef to let Mr. Adams finish. Asadi Statement, at p.254. According to Mr. Asadi, Ms. Koayess 23 interrupted Mr. Adams a few minutes later to complain about the name of a word file in the 24 materials. Id. Mr. Asadi contends that he responded by explaining the file name and then Ms. 25 Koayess “stood up and glared at [him] and yelled, ‘you are talking with me in a rude way.’” Id. 26 According to Mr. Asadi, he replied by stating, “Be polite when you talk to me.” Id. 27 28 Other attendees tell a different version of the story. According to Ms. Koayess, during the presentation, Mr. Yousef began to give feedback and Mr. Asadi seemed unhappy with the 2 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 3 of 31 1 interruption. Koayess Statement ¶ 1. Ms. Koayess states that the meeting got tense, and Mr. 2 Asadi asked Mr. Yousef to let Mr. Adams proceed. Id. Dr. Parandeh describes Mr. Asadi’s tone 3 during this exchange as “inappropriate.” Scharf Decl. Ex. H (“Parandeh Email”), ECF No. 25-2. 4 Ms. Koayess states that during the next section of the presentation she tried to ask about naming 5 conventions used in the presentation. Koayess Statement ¶ 2. According to Ms. Koayess, Mr. 6 Asadi became visibly annoyed and then started yelling and pointing his index finger at her. Id. 7 8 into a loud altercation. Ms. Nasser reports that “the discussion escalated into a yelling match.” 9 Asadi Decl. Ex. E (“Nasser Statement”), at 3-4, ECF No. 33-3. 10 United States District Court Northern District of California While the parties disagree about who was yelling, all agree that the disagreement devolved Dr. Kanbar, who was not at the meeting, states that she heard loud, angry yelling from her 11 office. Asadi Decl. Ex. DDD (“Kanbar Dep.”) 56:1-4, ECF No. 33-3. Hearing the yelling, she 12 went to the conference room where the meeting was held and observed that “there was an 13 argument going on.” Id. at 56:3-7. According to Dr. Kanbar, when she entered the meeting, 14 everyone stopped yelling except for Mr. Asadi. Id. at 56:8-9. Dr. Parandeh states that she was 15 trying to get Mr. Asadi to stop yelling over her when Dr. Kanbar entered the room. Parandeh 16 Email. Mr. Asadi disputes that he ever raised his voice. See Opp’n 3 (citing Adams Decl.). Ms. Koayess’s Memorandum 17 C. 18 On July 17, 2018, Ms. Koayess emailed a memorandum documenting her summary of the 19 Incident to her first-line supervisor, Dr. Deanna Tovar. See Koayess Statement; see also Scharf 20 Decl. Ex. KKK (“Tovar Decl.”) ¶ 3, ECF No. 25-3. Dr. Tovar forwarded the memorandum to Dr. 21 Shevchenko. See Koayess Statement. Ms. Koayess stated that Mr. Asadi had made her feel 22 unsafe and that she feared he may hit her. Id. ¶ 8. 23 D. 24 After the Incident, an Investigating Officer, First Lieutenant Lisette Noisette, conducted an 25 “informal inquiry.” See Noisette Mem. Lt. Noisette listed her findings and recommendations in a 26 memorandum dated August 1, 2018. See id. Lt. Noisette recommended the following: 27 28 Informal Inquiry and Recommendations Based on my findings, I do not recommend to initiate a formal investigation (AR 15-6) at this time. I do recommend that both Mr. Al-Asadi and Ms. Koayess apologize to each other in person to avoid 3 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 4 of 31 any chance of resentment that may resurface in the future. I also recommend that both Mr. Al-Asadi and Ms. Koayess receive verbal counseling from their supervisors on how to manage disputes and misunderstandings in the workplace. Finally, I recommend that all participating members of future projects receive an explanation of their specific roles before starting any collaboration. 1 2 3 United States District Court Northern District of California 4 Noisette Mem. ¶ 7. 5 On August 5, 2018, Dr. Kanbar forwarded these recommendations to Mr. Asadi’s and Ms. 6 Koayess’s respective supervisors, Dr. Shevchenko and Dr. Deanna Tovar. See Scharf Decl. Ex. J 7 (“Kanbar Email”), ECF No. 25-2. Dr. Shevchenko forwarded the email to Dr. Mirzaie. See id. 8 E. 9 On August 24, 2018, Dr. Mirzaei and Mr. Asadi met in Dr. Mirzaei’s office to discuss the 10 Incident. See Scharf Decl. Ex. K (“Counseling Mem.”), ECF No. 25-2; see also See Scharf Decl. 11 Ex. EEE (“Mirzaei Dep.”) 87:8-16; see also Opp’n 6. Dr. Mirzaei presented Mr. Asadi with a 12 memorandum with the subject line “Counseling.” Mirzaei Dep. 87:8-16; see also Counseling 13 Mem.; Opp’n 6. According to Dr. Mirzaei, the memorandum was a “Memorandum for Record” 14 that she drafted to keep a record of what was discussed at the verbal counseling session and to give 15 focus to the discussion. Mirzaei Dep. 86:14-88:16. In the memorandum, Dr. Mirzaei states, 16 “Based on my review of this matter, I find that this informal counseling statement is the minimum 17 action necessary to bring awareness to your unacceptable conduct/behavior in the workplace that 18 cannot be condoned or tolerated.” Counseling Mem. ¶ 1. 19 Counseling On September 17, 2018, Mr. Asadi submitted two letters to Dr. Mirzaei, one providing a 20 rebuttal to the Counseling Memorandum and one providing a written report of the Incident. Asadi 21 Statement. In his rebuttal, Mr. Asadi requested that the Counseling Memorandum be removed 22 from his file. Asadi Statement, at p.256. 23 Three days later, Dr. Mirzaei responded that she had reviewed the rebuttal and determined 24 that the Counseling Memorandum would not be rescinded but that she would attach Mr. Asadi’s 25 rebuttal to the Counseling Memorandum for the record. Scharf Decl. Ex. M (“Mirzaei Rebuttal 26 Response Email”), ECF No. 25-2. Dr. Mirzaei also stated that the August 24, 2018, meeting and 27 Counseling Memorandum was “informal counseling that is not considered formal discipline.” Id. 28 Later that same day, Mr. Asadi wrote to Dr. Shevchenko requesting that Dr. Shevchenko 4 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 5 of 31 1 remove the Counseling Memorandum from his file. Scharf Decl. Ex. N (“Shevchenko-Asadi 2 Counseling Mem. Email”), ECF No. 25-2. Dr. Shevchenko responded that the Counseling 3 Memorandum would remain in Mr. Asadi’s file for a year. Id. 4 F. 5 In October 2018, Dr. Mirzaei sent Mr. Asadi an email entitled “Mid point review- Mr. Al 6 Asadi.” Scharf Decl. Ex. O (“Mirzae-Asadi Midpoint Review Email”), ECF No. 25-3. The email 7 provided a “summary of [Dr. Mirzaei’s] feedback on [Mr. Asadi’s] performance at midpoint and 8 some follow up suggestions/actions.” Id. The email stated, among other things: 9 You received an informal letter of counseling during the first part of the evaluation period. Therefore, professionalism is a performance area on your standards requiring your attention and needing improvement. Please note that the recurrence of unprofessional conduct on your part (i.e. involvement in verbal argument, use of an elevated tone in the workplace, etc.) can result in you receiving a needs improvement rating on your professionalism standards at the time of appraisals. 10 11 United States District Court Northern District of California 2018 Midpoint Review 12 13 Id. 14 Mr. Asadi subsequently emailed Dr. Shevchenko requesting that the part of the midpoint 15 16 17 18 review discussing informal counseling be removed. Scharf Decl. Ex. P (“Shevchenko-Asadi Midpoint Review Email”), ECF No. 25-2. Dr. Shevchenko responded that “if counseling was one of the points discussed, it was justly put into mid-point discussion notes.” Id. Dr. Shevchenko again noted that the Counseling Memorandum would remain on file for a year. Id. 19 20 G. First EEO Complaint On October 23, 2018, Mr. Asadi conducted a pre-complaint intake interview with the 21 22 Equal Employment Opportunity Office. See Asadi Decl. Ex. T (“EEO Counselor’s Report”), ECF No. 33-3. 23 Mr. Asadi subsequently filed a formal complaint with the Equal Employment Opportunity 24 25 Office on November 29, 2018. Scharf Decl. Ex. R. (“EEO Complaint”), ECF No. 25-2. In the EEO Complaint, Mr. Asadi stated that he believed he was discriminated against because of his 26 Iraqi national origin. EEO Complaint § 9. The EEO Complaint alleged that: 27 28 Ms. Koayess and Dr. Kanbar are very close friends and they are both originally from Lebanon. Dr. Kanbar cited [sic] with Ms. Koayess and 5 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 6 of 31 on 24 Aug 2018, Dr. Hiam Kanbar influenced Dr. Atousa Mirzaei . . . to issue [Mr. Asadi] an informal counseling for unacceptable conduct and behavior in the workplace. 1 2 Id. § 10. 3 H. 4 5 6 7 8 9 FY2018-19 (2019) Performance Review and Award On March 29, 2019, Mr. Asadi emailed Dr. Mirzaei asking if the “Informal Counseling of 24 Aug 2018” would be considered in his annual performance appraisal. Scharf Decl. Ex. S (“Mirzaei-Asadi Email Chain (Mar. 29, 2019)”), ECF No. 25-2. Dr. Mirzaei confirmed that in evaluating Mr. Asadi’s performance she would “look at everything that has happened during the rating period[,] one being the informal counseling [he] received.” Id. On June 1, 2019, Mr. Asadi received his Civilian Performance Plain, Progress Review and 10 United States District Court Northern District of California 11 12 13 Appraisal for the period of April 1, 2018, to March 31, 2019. Scharf Decl. Ex. T (“2019 Performance Review”), ECF No. 25-2. Mr. Asadi received a “Summary Rating” of 4.2, which resulted in a “Rating of Record” of “Fully Successful.” Id. at 4. That year, DLI provided the following performance awards: the top 2% of employees 14 received a two-step pay increase; the next highest 8% received one-step pay increase; the next 15 highest 35% received a $1,500 cash award or time-off equivalent; the next highest 20% received a 16 $1,000 cash award or time-off equivalent; and the bottom 35% received a $750 cash award or 17 18 time-off equivalent. Scharf Decl. Ex. V (“2019 FPS Performance Award Procedures”), ECF No. 25-2. 19 20 Mr. Asadi received a $1,500 cash award. Scharf Decl. Ex. CC (“Asadi EEO Decl. (Nov. 9, 2020)”), at p.5, ECF No. 25-2. 21 22 I. Rank Advancement Application In 2020, Mr. Asadi applied for advancement to the rank of Associate Professor. Scharf 23 24 Decl. Ex. Z (“Assoc. Prof. Advancement Email”), ECF No. 25-2. The selection process involves submitting a portfolio to the Directorate of Personnel & Logistics. Scharf Decl. Ex. GG 25 26 (“Donovan Decl.”), at 3, ECF No. 25-2. Each applicant’s portfolio is assigned a score. Id. Scores are based independent portfolio reviews by members of a panel, prior performance ratings, level of 27 28 education, contributions to the field, and a recommendation of the applicant’s second-level 6 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 7 of 31 1 supervisor. Id. at 3, 5. After each applicant’s portfolio has been scored, the scores are sorted in 2 descending order. Id. The panel then reviews the list and recommends a cut line to the 3 Commandant, who selects the cut line. Id. Only applicants with scores above the cut line are 4 eligible for advancement. See id. Applicant names are not attached to the scores during the 5 selection of the cut line. Id. 6 On September 8, 2020, Mr. Asadi was informed that he was not selected for advancement. 7 Assoc. Prof. Advancement Email. Mr. Asadi’s portfolio had scored below the cut line. Donovan 8 Decl., at 5; Scharf Decl. Ex. BB (“Rank Advancement Score Table”), ECF No. 25-2. 9 United States District Court Northern District of California 10 Mr. Asadi appealed the decision in October 2020, and his appeal was denied in December 2020. Scharf Decl. Ex. AA (“Appeal Ltr. & Resp.”), ECF No. 25-2. 11 J. 12 In June 2020, Mr. Asadi received his Performance Review for the period of April 2019 FY2019-20 (2020) Performance Review 13 through March 2020. See Scharf Decl. Ex. W (“2020 Performance Review”), ECF No. 25-2. Mr. 14 Asadi received a Summary Rating of 4.6, which resulted in a Rating of Record of “Outstanding.” 15 Id. at 4. 16 Like the previous year, the top 2% of performers were awarded a two-step pay increase, 17 the next top 8% of performers were awarded a one-step pay increase, the next top 35% were 18 awarded a $1,500 cash award or time-off equivalent, the next top 20% were awarded a $1,000 19 cash award or time-off equivalent, and the bottom 35% were awarded $750 or time-off equivalent. 20 Scharf Decl. Ex. EE (“Hausman Decl.”), at 3, ECF No. 25-2. 21 Mr. Asadi again was awarded $1,500. Id. Of the employees at the school at which Mr. 22 Asadi worked, 124 received performance awards. Id. Thirty employees received a Summary 23 Rating of 4.6. Id. Of those 30 employees, 11 received a one-step increase and the other 19 24 received either $1,500 or 32 hours of time off. Id. 25 K. 26 In July 2021, Mr. Asadi received a one-step pay increase. Scharf Decl. Ex. MM (“Fact- 27 FY2020-21 (2021) Performance Award Finding Conference”), at 32, 42, ECF No. 25-2. 28 7 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 8 of 31 L. 1 Current Action Mr. Asadi brings claims against Defendant under Title VII of the Civil Rights Act of 1964 2 for alleged discrimination, retaliation, and creation of a hostile work environment. Compl. ¶ 163 18, ECF No. 1.1 Defendant moves for summary judgment on all three claims. Mot. 1. 4 II. 5 6 7 LEGAL STANDARD “A party is entitled to summary judgment if the ‘movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 8 56(a)). 9 10 United States District Court Northern District of California 11 12 “The moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the 13 14 non-moving party’s case.” Id. (citing Celotex, 477 U.S. at 325). “Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts 15 16 17 18 demonstrating the existence of genuine issues for trial.” Oracle, 627 F.3d at 387 (citing Celotex, 477 U.S. at 324). “[T]he non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s favor.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). 19 20 21 22 “The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor.” City of Pomona, 750 F.3d at 1049 (citing Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 23 24 genuine issue for trial.” Id. at 1049-50 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 25 26 27 28 Mr. Asadi’s complaint has two headings for his claims: “First Claim Discrimination” and “Second Claim Retaliation.” Under his retaliation claim, Mr. Asadi alleges that he was subject to a hostile work environment. The parties have based their arguments on three claims: (1) discrimination; (2) retaliation; and (3) hostile work environment. The Court will follow the parties’ lead. 8 1 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 9 of 31 1 2 III. DISCUSSION Defendant moves for summary judgment on all of Mr. Asadi’s claims. The Court addresses each claim in turn. 3 4 5 A. Discrimination “When responding to a summary judgment motion in a discrimination suit under . . . Title VII, the plaintiff may proceed by either using the McDonnell Douglas framework, as established 6 in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or alternatively, may simply produce 7 direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not 8 9 10 11 motivated the defendant’s contested conduct.” Opara v. Yellen, 57 F.4th 709, 721 (9th Cir. 2023) (cleaned up and citations omitted). “Under either approach, staving off a motion for summary judgment on disparate treatment claims under . . . Title VII entails three steps.” Id. First, a United States District Court Northern District of California plaintiff must make out a prima facie case of his discrimination claim. Id. Second, if the plaintiff 12 makes out its prima facie case, the burden shifts to the employer to articulate a legitimate, 13 nondiscriminatory reason for the challenged action. Id. at 723. Third, if an employer articulates a 14 legitimate, nondiscriminatory reason for the challenged action, the employee must show that the 15 articulated reason is pretextual. Id. 16 17 1. Prima Facie Case To survive a motion for summary judgment, a plaintiff must first make out a prima facie 18 19 case of his discrimination claim. Opara, 57 F.4th at 721. “The plaintiff may do so either ‘by using the McDonnell Douglas framework, or alternatively, may simply produce direct or 20 circumstantial evidence demonstrating that a discriminatory reason more likely than not 21 motivated’ the employer.” Id. at 721-22 (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 22 1122 (9th Cir. 2004)) (footnote omitted); see also Weil v. Citizens Telecom Servs. Co., LLC, 922 23 F.3d 993, 1002 n.4 (9th Cir. 2019) (“In opposing a motion for summary judgment, a plaintiff 24 asserting a Title VII claim may either produce direct or circumstantial evidence that a 25 discriminatory reason motivated the defendant’s employment decision, or alternatively may 26 establish a prima facie case under the McDonnell Douglas burden-shifting framework.”). 27 Establishing a prima facie case via the McDonnell Douglas factors generally requires a 28 9 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 10 of 31 1 plaintiff to show: “(1) he belongs to a protected class; (2) he was qualified for the position; (3) he 2 was subject to an adverse employment action; and (4) similarly situated individuals outside his 3 protected class were treated more favorably.” Chuang v. Univ. of California Davis, Bd. of 4 Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). United States District Court Northern District of California 5 However, a plaintiff need not rely on the McDonnell Douglas factors. “[The] plaintiff may 6 alternatively offer direct or circumstantial evidence of discriminatory motive to establish [his] 7 prima facie case.” Opara, 57 F.4th at 722 (citations omitted). 8 Defendant argues that Mr. Asadi cannot establish a prima facie case under the McDonnell 9 Douglas factors. Defendant does not dispute that Mr. Asadi is a member of a protected class and 10 was adequately performing his job. Defendant instead focuses on the third and fourth McDonnell 11 Douglas factors, arguing that Mr. Asadi cannot show that he suffered an adverse employment 12 action or that similarly situated individuals outside his protected class were treated more favorably 13 than he. Mot. 10-14. Mr. Asadi responds that McDonnell Douglas is not the only means of 14 proving discriminatory or retaliatory intent. Opp’n 11. But he nevertheless applies the 15 McDonnell Douglass factors to argue that he has established his prima facie case of 16 discrimination, Opp’n 13. He contends that he suffered adverse employment actions including the 17 issuance of the Counseling Memorandum, denial of his right to appeal the issuance of the 18 Counseling Memorandum, reduction in his ratings and evaluations, denial of his promotion to 19 Associate Professor in 2020, and denial of bonuses and step increases. Opp’n 13. 20 a. Adverse Employment Action 21 An employment action is adverse if it materially affects the compensation, terms, 22 conditions, or privileges of employment. Chuang, 225 F.3d at 1126. The Ninth Circuit interprets 23 the meaning of adverse employment action “broadly.” See Fonseca v. Sysco Food Servs. of 24 Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004). For instance, the Ninth Circuit has found that 25 “undeserved performance ratings” are adverse employment actions. Id. It has also found that a 26 written warning may be an adverse employment action where an employer “publicizes all 27 discipline to all its employees.” See id. Conversely, a “one-time verbal reprimand [that] had no 28 effect on [plaintiff’s] job duties and was not placed in [plaintiff’s] personnel file” does not 10 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 11 of 31 1 constitute an adverse employment action. See Hellman v. Weisberg, 360 F. App’x 776, 779 (9th 2 Cir. 2009). Mr. Asadi asserts that he suffered the following adverse employment actions: “the 14 United States District Court Northern District of California 3 4 August memo, the denial of his right to appeal under the CBA, the poor performance review in 5 October 2018, the reduced year-end review and ratings, the reduced evaluations, and he was 6 denied a promotion to Associate Professor in 2020 and failure to grant bonuses and step 7 increases.” Opp’n 13; see also Compl. ¶ 11, 12, 14, 17. These actions break down into three 8 bases for Mr. Asadi’s discrimination claim: (1) the issuance of counseling to Mr. Asadi for the 9 July 2018 Incident; (2) the issuance of reduced performance appraisals and insufficient 10 performance awards to Mr. Asadi in 2019, 2020, and 2021; and (3) the denial of Mr. Asadi’s 11 application for rank advancement to Associate Professor in 2020. The Court considers each basis 12 in turn. 13 Counseling: On August 24, 2018, Dr. Mirzaei and Mr. Asadi met in Dr. Mirzaei’s office 14 to discuss his involvement in the July 13, 2018, altercation. See Counseling Mem.; Mirzaei Dep. 15 87:8-16; see also Opp’n 6. Dr. Mirzaei presented Mr. Asadi with a memorandum with the subject 16 line “Counseling.” Mirzaei Dep. 87:8-16; see also Counseling Mem.; Opp’n 6. In the 17 memorandum, Dr. Mirzaei states, “Based on my review of this matter, I find that this informal 18 counseling statement is the minimum action necessary to bring awareness to your unacceptable 19 conduct/behavior in the workplace that cannot be condoned or tolerated.” Counseling Mem. ¶ 1. 20 The Counseling Memorandum was placed in Mr. Asadi’s file, and Mr. Asadi was later told that it 21 would remain there for one year. See Shevchenko-Asadi Counseling Mem. Email. 22 Defendant argues that the issuance of the Counseling Memorandum was not an adverse 23 employment action because it was a one-time warning that was removed from Mr. Asadi’s 24 personnel file after twelve months and it did not change Mr. Asadi’s compensation, workplace 25 conditions, responsibilities, or status. Mot. 12. Although not entirely clear from the complaint, 26 Mr. Asadi appears to contend that the issuance of the Counseling Memorandum was an adverse 27 employment action because it led to subsequent adverse actions including “keeping his ratings 28 unfairly low and denying him rating and compensation increases and bonuses.” Opp’n 15. He 11 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 12 of 31 1 also argues that Defendant’s alleged failure to follow the CBA in issuing him the Counseling 2 Memorandum and later denying his appeal amounted to an adverse employment action. Opp’n 3 13, 15, 17. United States District Court Northern District of California 4 Viewing the evidence in the light most favorable to Mr. Asadi, the Court finds Mr. Asadi 5 has presented sufficient evidence that a jury could credit to show that the issuance of the 6 Counseling Memorandum was an adverse employment action. Mr. Asadi has provided evidence 7 that the Counseling Memorandum was placed in his file and considered in his annual appraisal. 8 See Mirzaei-Asadi Email Chain (Mar. 29, 2019), at 1. Mr. Asadi’s second-level supervisor 9 acknowledged that counseling memoranda “may have a detrimental impact on the employee’s 10 performance appraisal.” Asadi Decl. Ex. HH (“Shevchenko Witness Interview”), ECF No. 25-3. 11 She also acknowledged that an employee’s performance appraisal ratings are considered when 12 determining the employee’s performance awards. Fact-Finding Conference, at 34:3-9; see also 13 Scharf Decl. Ex. E (“Shevchenko Decl.”), at 4 (“I look at the rating, contributions and impact on 14 the mission of each faculty across the entire school and then decide”), ECF No. 25-2. The year 15 Mr. Asadi received counseling, his performance appraisal rating was 4.2 out of 5 and he was not 16 awarded a step increase in his salary, although he was rated in the top 45% of employees and 17 received a $1,500 bonus. 2019 Performance Review, at p.4; Asadi EEO Decl. (Nov. 9, 2020), at 18 p.5; 2019 FPS Performance Award Procedures. Taken together, this evidence raises a question of 19 fact about whether the Counseling Memorandum impacted Mr. Asadi’s performance appraisal and 20 ultimately his compensation. Mr. Asadi has thus met the minimal degree of proof necessary to 21 raise a contested issue of fact that the issuance of the Counseling Memorandum was an adverse 22 employment action. See White v. California, No. 5:15-CV-03521-EJD, 2017 WL 1549497, at *6 23 (N.D. Cal. Apr. 28, 2017) (finding that placement of disciplinary letter in plaintiff’s official 24 personnel file was an adverse action where plaintiff also stated that he had not received any 25 promotions or been capable of advancing his career), aff’d, 754 F. App’x 575 (9th Cir. 2019). 26 Performance Appraisals and Awards: Mr. Asadi alleges that he received reduced 27 evaluations and was not granted the performance awards he deserved in 2019, 2020, and 2021. 28 See Compl. ¶¶ 14, 17.B.; see also Opp’n 8. Defendant argues that Mr. Asadi’s performance 12 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 13 of 31 1 evaluations and subsequent awards were not adverse actions because they were “largely positive” 2 and did not give rise to “any further negative employment action.” Mot. 12. The Court first 3 considers the performance award Mr. Asadi received in 2019 and then addresses the subsequent 4 awards. United States District Court Northern District of California 5 Viewing the evidence in the light most favorable Mr. Asadi, the Court finds that Mr. Asadi 6 has met his burden to present evidence that his 2019 performance appraisal and award were 7 adverse employment actions. In 2019, Mr. Asadi was given a 4.2 out of 5 in his performance 8 appraisal and was not awarded a step increase in his salary. 2019 Performance Review; Asadi 9 EEO Decl. (Nov. 9, 2020)”), at p.5. Mr. Asadi contends that this was due to the issuance of the 10 Counseling Memorandum. See Opp’n 17. Mr. Asadi has provided evidence to support this 11 contention. See Mirzaei-Asadi Email Chain (Mar. 29, 2019), at 1 (confirming that the Counseling 12 Memorandum would be considered in Mr. Asadi’s appraisal); Shevchenko Witness Interview 13 (confirming that counseling memoranda “may have a detrimental impact on the employee’s 14 performance appraisal”); Fact-Finding Conference, at 34:3-9 (acknowledging that employee 15 ratings are considered in determining their performance award); Shevchenko Decl., at 4 (same). 16 As discussed above, Mr. Asadi has met his minimal burden at this stage to establish that the 17 Counseling Memorandum was an adverse employment action. Because Mr. Asadi has provided 18 evidence that his 2019 performance award was reduced due to` the Counseling Memorandum, Mr. 19 Asadi has met his minimal burden to show that the performance award he received in 2019 was 20 itself an adverse employment action. 21 Mr. Asadi has not, however, provided any evidence that his 2020 and 2021 performance 22 appraisals and awards were undeserved and thus adverse employment actions. Cf. Fonseca, 374 23 F.3d at 847 (noting that “undeserved” performance ratings may constitute an adverse employment 24 action). Unlike Mr. Asadi’s 2019 performance appraisal and award, there is no evidence that the 25 2020 and 2021 performance appraisals and awards were impacted by the Counseling 26 Memorandum. The only evidence provided suggests that the Counseling Memorandum was no 27 longer in Mr. Asadi’s file during these reviews. See Shevchenko-Asadi Counseling Mem. Email 28 (explaining that the Counseling Memorandum was to remain in Mr. Asadi’s file for one year). 13 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 14 of 31 1 And Mr. Asadi has provided no other evidence that the performance appraisals and awards were 2 undeservedly low. Accordingly, Mr. Asadi has not met his minimal burden to establish that the 3 awards were adverse employment actions. See George v. Barcroft, No. 18-35551, 2022 WL 4 42473, at *2 (9th Cir. Jan. 5, 2022) (noting that “[a]lthough the prima facie stage of the 5 McDonnell-Douglas framework is ‘not onerous,’” a plaintiff bears the burden to produce “some 6 evidence” (citing Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (emphasis in original)). Rank Advancement: Finally, Mr. Asadi alleges and has provided evidence that he was United States District Court Northern District of California 7 8 “passed over for the rank of Associate Professor” in 2020. Compl. ¶ 14; Opp’n 13; Assoc. Prof. 9 Advancement Email; Appeal Ltr. & Resp. Defendant does not dispute that a denial of a 10 promotion is an adverse employment action. Accordingly, the Court finds that Mr. Asadi has met 11 his burden to present evidence that the denial of his application for rank advancement in 2020 was 12 an adverse employment action. Conclusion: The Court finds that Mr. Asadi has met his burden to present evidence that 13 14 the issuance of the Counseling Memorandum, the issuance of the allegedly reduced 2019 15 performance appraisal and award, and the denial of his application for rank advancement in 2020 16 were adverse employment actions. Mr. Asadi has not, however, provided any evidence that his allegedly reduced performance 17 18 awards in 2020 and 2021 were adverse employment actions. Thus, the 2020 and 2021 19 performance awards do not support Mr. Asadi’s prima facie case. 20 b. Similarly Situated Individuals To satisfy the fourth element of the McDonnell Douglas prima facie test for 21 22 discrimination, Mr. Asadi must establish that similarly situated individuals outside his protected 23 class were treated more favorably. See Freyd v. Univ. of Oregon, 990 F.3d 1211, 1228 (9th Cir. 24 2021). This showing requires Mr. Asadi to demonstrate that he is similarly situated to the more 25 favorably treated employees “in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th 26 Cir. 2006). The Court will again address each of the bases for Mr. Asadi’s discrimination claim in 27 turn. 28 Counseling: The parties dispute whether Mr. Asadi has demonstrated that similarly 14 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 15 of 31 1 situated individuals outside his protected class were treated more favorably in relation to the 2 counseling he received for the Incident. Mr. Asadi contends that Ms. Koayess was a similarly 3 situated individual outside his protected class and that she was treated more favorably when she 4 “received no disciplinary action of any kind” despite being “undisputedly involved in the 5 altercation.” Opp’n 13. Defendant argues that Mr. Asadi and Ms. Koayess are not similarly 6 situated because they had different supervisors, Ms. Koayess complained about Mr. Asadi shortly 7 after the altercation, Ms. Koayess’s supervisor counseled her shortly after the altercation, and Ms. 8 Koayess had no prior or subsequent similar incidents. Mot. 13-14; Reply 3. United States District Court Northern District of California 9 The Ninth Circuit has held that employees who received disparate discipline were not 10 similarly situated where they were disciplined by different supervisors. Hargrow v. Fed. Express 11 Corp., No. 07-15623, 2009 WL 226039, at *1 (9th Cir. Jan. 30, 2009) (“Regarding the written 12 reprimands, the employees who allegedly received more favorable treatment than [plaintiff] were 13 not similarly situated to [plaintiff]. They were subject to different supervisors.”). But while “the 14 presence or absence of a shared supervisor might be relevant in some cases,” it is error for a court 15 to impose a strict “same supervisor” requirement. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 16 1157 (9th Cir. 2010). Employees with different direct supervisors may be similarly situated where 17 the relevant disciplinary action was determined by a common decisionmaker. See id. at 1157-58. 18 Here, Mr. Asadi and Ms. Koayess reported to different direct supervisors, but those 19 supervisors reported to the same person. Mr. Asadi’s first-line supervisor was Dr. Mirzaei. 20 Mirzaei Decl., at p.2. Ms. Koayess’s first-line supervisor was Dr. Tovar. Tovar Decl. ¶ 3. Both 21 Dr. Mirzaei and Dr. Tovar reported to Dr. Hiam Kanbar. See Mirzaei Decl., at p.2; Scharf Decl. 22 Ex. Asadi Dep., at 49:6-11. Thus, to determine whether Mr. Asadi and Ms. Koayess were 23 similarly situated the Court must determine which supervisors were the relevant decisionmakers. 24 Compare Hargrow, 2009 WL 226039, at *1, with Hawn, 615 F.3d at 1157-58. 25 Defendants have proffered undisputed evidence that Dr. Mirzaei and Dr. Tovar were the 26 relevant decisionmakers, and thus Mr. Asadi and Ms. Koayess were not similarly situated. After 27 the altercation, an Investigative Officer conducted an “informal investigation” of the Incident and 28 drafted a memorandum providing recommendations. See Noisette Mem. Dr. Kanbar emailed an 15 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 16 of 31 1 excerpt of the memorandum to Mr. Asadi’s and Ms. Koayess’s supervisors with a note to “[p]lease 2 see the recommendations of the IO on the informal inquiry regarding Ms. Koayess and Mr. 3 Asadi.” Kanbar Email. The excerpt read: 4 Recommendations: Based on my findings, I do not recommend to initiate a formal investigation (AR 15-6) at this time. I do recommend that both Mr. Al-Asadi and Ms. Koayess apologize to each other in person to avoid any chance of resentment that may resurface in the future. I also recommend that both Mr. Al-Asadi and Ms. Koayess receive verbal counseling from their supervisors on how to manage disputes and misunderstandings in the workplace. 5 6 United States District Court Northern District of California 7 8 Id.; see also Noisette Mem. ¶ 7. There is no evidence, however, that Dr. Kanbar was involved in 9 determining how to discipline Mr. Asadi or Ms. Koayess beyond forwarding this recommendation. 10 Mr. Asadi argues without evidentiary support that Dr. Kanbar controlled these outcomes. But the 11 evidence shows that Dr. Mirzaei and Dr. Tovar were left to address their direct reports as they saw 12 fit. Dr. Mirzaei met with Mr. Asadi, discussed the altercation, and issued the Counseling 13 Memorandum. See Mirzaei Dep. 87:8-16; see also Opp’n 6. Dr. Tovar did not issue further 14 counseling to Ms. Koayess because they had previously discussed the incident. Tovar Decl. ¶ 10. 15 Thus, the evidence submitted shows that Mr. Asadi and Ms. Koayess were not similarly situated 16 because their respective managers were free to decide on the appropriate discipline for the 17 altercation. 18 Performance Appraisals and Awards: Mr. Asadi provides no evidence regarding his 2019, 19 2020, and 2021 performance appraisals and awards that would suggest that similarly situated 20 individuals outside his protected class were treated more favorably than he. Mr. Asadi received 21 $1,500 bonuses in 2019 and 2020 and a one-step salary increase in 2021. Asadi EEO Decl. (Nov. 22 9, 2020), at p.5; Hausman Decl., at 3; Fact-Finding Conference, at 32, 42. The evidence submitted 23 confirms that there were employees who received larger awards than Mr. Asadi. See 2019 FPS 24 Performance Award Procedures (showing that the top 10% of employees received two- and one- 25 step pay increases); Hausman Decl., at 3. But Mr. Asadi has provided no evidence to suggest that 26 any of these employees was similarly situated to him and outside his protected class. Mr. Asadi 27 has therefore failed to establish his prima facie case of discrimination based on his 2019, 2020, 28 and 2021 performance awards. See Thomas v. Spencer, No. CV 15-00121 RLP, 2018 WL 16 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 17 of 31 1 3638080, at *7 (D. Haw. July 30, 2018) (granting summary judgment for defendant where 2 “[p]laintiff assert[ed] that other employees received larger bonuses, but did not provide any 3 evidence that these employees were similarly situated to him”) aff’d sub nom. Thomas v. Harker, 4 No. 18-16640, 2021 WL 2910948 (9th Cir. July 12, 2021). United States District Court Northern District of California 5 Rank Advancement: Mr. Asadi likewise provides no evidence regarding the denial of his 6 2020 application for rank advancement that would suggest that similarly situated individuals 7 outside his protected class were treated more favorably than he. Mr. Asadi has provided no 8 evidence about which employees were promoted. This failure to provide evidence of comparators 9 is fatal to Mr. Asadi’s prima facie case. See Hutchinson v. Seagate Tech., 147 F. App’x 647, 648 10 (9th Cir. 2005) (holding that plaintiff failed to establish prima facie case arising out of failure to 11 promote where she failed to provide evidence that employee who was promoted was similarly 12 situated to her). 13 Conclusion: In sum, Mr. Asadi has not provided evidence that similarly situated 14 individuals were treated more favorably with regard to any of the alleged adverse employment 15 actions. 16 17 * * * In light of the foregoing, the Court finds that Mr. Asadi has failed to make out a prima 18 facie case of discrimination. Mr. Asadi has failed to make out his prima facie case based on any 19 of the purported adverse employment actions because he has failed to identify evidence showing 20 that similarly situated individuals were treated more favorably. Moreover, to the extent Mr. 21 Asadi’s claim is based on the 2020 and 2021 performance awards, the claim fails for the additional 22 reason that Mr. Asadi has not identified evidence suggesting that these awards were, in fact, 23 adverse employment actions. Accordingly, Defendant’s motion for summary judgment on Mr. 24 Asadi’s discrimination claim is GRANTED. 25 Even assuming Mr. Asadi has met his prima facie burden, the Court will evaluate the 26 remaining two steps of the McDonnell Douglas framework to determine whether they provide an 27 independent basis to grant Defendant’s motion. 28 17 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 18 of 31 1 2 3 4 5 6 2. Legitimate, Non-Discriminatory Reasons Next, the Court considers whether Defendant has met her “burden of production . . . to articulate some legitimate, nondiscriminatory reason for the challenged action.” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). “This burden is one of production, not persuasion ... [and] involve[s] no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation marks omitted) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). 7 Counseling: The Court finds that Defendant has met her burden to introduce evidence of 8 legitimate, non-discriminatory reasons for issuing Mr. Asadi counseling. Defendant has 9 10 introduced evidence that Mr. Asadi’s supervisors received a statement from Ms. Koayess that Mr. Asadi had made her feel unsafe during the Incident. See Koayess Statement ¶ 8. A third-party 11 United States District Court Northern District of California Investigative Officer who investigated the Incident recommended verbal counseling for Mr. Asadi. 12 Noisette Mem. ¶ 7. In her deposition, Dr. Mirzaei explained that she issued counseling to Mr. 13 Asadi based on this recommendation and drafted the Counseling Memorandum to document what 14 was discussed. Mirzaei Dep. 86:1-87:16. Dr. Mirzaei also stated in emails that she issued the 15 16 17 counseling because “Mr. Al Asadi acted unprofessionally during an academic meeting.” Scharf Decl. Ex. L (“Mizaei Email (Sept. 18, 2018)”), ECF No. 25-2. Defendant has thus introduced evidence that Mr. Asadi was issued counseling for the legitimate, non-discriminatory reason of 18 addressing conduct that his supervisors deemed to be unprofessional. 19 Performance Appraisals and Awards: The Court also finds that Defendant has met her 20 21 burden to introduce evidence of legitimate, non-discriminatory reasons for Mr. Asadi’s performance appraisals and awards. Mr. Asadi scored a 4.2, 4.6, and 4.6 out of 5 in 2019, 2020, 22 and 2021 respectively. 2019 Performance Review, at 4; 2020 Performance Review, at 4; 2021 23 Performance Review, at 4. Each review contained a detailed explanation of the reasons for Mr. 24 25 Asadi’s scores—none of which Defendant contends reflected discriminatory criteria. See 2019 Performance Review, at 3; 2020 Performance Review, at 3; 2021 Performance Review, at 3. Mr. 26 Asadi received a $1,500 bonus in 2019 and 2020 and received a step increase in his salary in 2021. 27 Asadi EEO Decl. (Nov. 9, 2020), at p.5; Hausman Decl. 3; Fact-Finding Conference 42. Dr. 28 18 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 19 of 31 1 Shevchenko, the person responsible for proposing these awards, stated that she determined awards 2 for all faculty and that the awards were based on the non-discriminatory criteria of “rating,” 3 “contributions,” and “impact.” Shevchenko Decl., at p.4; see also Fact-Finding Conference 44. 4 Defendant has therefore provided met her burden to provide evidence of legitimate, non- 5 discriminatory reasons for Mr. Asadi’s performance appraisal scores and performance awards. 6 Cf. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981) (“[T]he employer has 7 discretion to choose among equally qualified candidates, provided the decision is not based upon 8 unlawful criteria.”). United States District Court Northern District of California 9 Rank Advancement: The Court finds that Defendant has met her burden to introduce 10 evidence of a legitimate, non-discriminatory reason for the alleged adverse action. Defendant 11 introduced evidence that each applicant who applied for rank advancement was given a score 12 based on a review of the applicant’s materials by members of a panel, prior performance ratings, 13 level of education, contributions to the field, and a recommendation by the applicant’s second- 14 level supervisor. Donovan Decl. at 3, 5. Defendant further introduced evidence that only 15 applicants with scores above a certain cut line were eligible for promotion. See id. at 3. Mr. Asadi 16 scored below the cut line when he applied for rank advancement. See Rank Advancement Table, 17 at DEF01772, DEF01775. Thus, Defendant introduced evidence that Ms. Asadi was not selected 18 for rank advancement for the non-discriminatory reason that he did not perform as well as 19 employees who were selected. Defendant has thus met her burden to produce evidence that she 20 had a legitimate, non-discriminatory reason for not selecting Mr. Asadi for rank advancement to 21 Associate Professor. 22 3. Pretext 23 “[O]nce an employer articulates some legitimate, nondiscriminatory reason for the 24 challenged action, the employee must show that the articulated reason is pretextual.” Opara, 57 25 F.4th at 723. “[A] plaintiff can prove pretext in multiple ways, either: (1) directly, by showing 26 that unlawful discrimination more likely [than not] motivated the employer; (2) indirectly, by 27 showing that the employer’s proffered explanation is unworthy of credence because it is internally 28 inconsistent or otherwise not believable; or via a combination of the[se] two kinds of evidence.” 19 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 20 of 31 1 2 When a plaintiff presents direct evidence that the proffered explanation is a pretext for 3 discrimination, “very little evidence” is required to avoid summary judgment. Boeing, 577 F.3d at 4 1049. In contrast, when a plaintiff relies on circumstantial evidence to show pretext, “‘that 5 evidence must be specific and substantial to defeat the employer's motion for summary 6 judgment.’” Id. (quoting Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1095 (9th Cir. 7 2005)). And “where ‘abundant and uncontroverted independent evidence’ suggests that ‘no 8 discrimination . . . occurred,’ plaintiff's ‘creat[ion of] only a weak issue of fact as to whether the 9 employer's reason was untrue’ will not suffice.” Opara, 57 F.4th at 724 (quoting Reeves, 530 U.S. 10 United States District Court Northern District of California Id. (internal quotation marks omitted). at 148). 11 Counseling: Mr. Asadi argues two theories to support his contention that Defendant’s 12 proffered non-discriminatory reasons for issuing counseling were pretextual. First, Mr. Asadi 13 argues that the evidence shows that his supervisors were being directed to discriminate against 14 him by their supervisor, Dr. Kanbar, a white woman of Lebanese descent. Opp’n 16-17. Second, 15 Mr. Asadi argues that the evidence shows that his supervisors failed to follow the CBA and Army 16 regulations in issuing him counseling. Opp’n 17-18. Neither theory raises a fact dispute that 17 precludes summary judgment. 18 Mr. Asadi’s first theory fails because there is no evidence that Dr. Kanbar directed Mr. 19 Asadi’s supervisors to discriminate against him or otherwise harbored discriminatory views 20 toward him. To the contrary, the only evidence of Dr. Kanbar’s involvement in the decision to 21 issue counseling to Mr. Asadi shows that she did nothing more than forward the recommendations 22 of the Investigative Officer to Mr. Asadi’s and Ms. Koayess’s supervisors. See Kanbar Email. 23 Those recommendations proposed the same disciplinary action for both Mr. Asadi and Ms. 24 Koayess. See id. Thus, the only evidence before the Court shows that Dr. Kanbar proposed the 25 same treatment for Mr. Asadi and Ms. Koayess—a person outside of Mr. Asadi’s protected class. 26 To the extent Mr. Asadi argues that discriminatory motive can be inferred from evidence that Dr. 27 Kanbar is of a different race or national origin than Mr. Asadi, the Court joins district courts 28 around the country holding that such evidence is not sufficient by itself to raise a triable issue of 20 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 21 of 31 1 fact regarding discrimination. See Pinder v. Emp. Dev. Dep’t, 227 F. Supp. 3d 1123, 1141 (E.D. 2 Cal. 2017) (collecting cases). 3 4 follow the CBA and Army regulations in issuing him counseling demonstrates pretext. “A 5 plaintiff may . . . raise a triable issue of pretext through evidence that an employer’s deviation 6 from established policy or practice worked to her disadvantage.” Earl v. Nielsen Media Rsch., 7 Inc., 658 F.3d 1108, 1117 (9th Cir. 2011). “But such a deviation must be considered in context 8 and may not always be sufficient to infer a discriminatory motive.” Merrick v. Hilton Worldwide, 9 Inc., 867 F.3d 1139, 1149 (9th Cir. 2017). 10 United States District Court Northern District of California The Court turns to Mr. Asadi’s second theory— that his supervisors’ purported failure to As an initial matter, Mr. Asadi has not provided evidence that his supervisors deviated 11 from the CBA or Army regulations. Mr. Asadi’s argument appears to be that neither the CBA nor 12 the Army regulations include the exact term “informal counseling,” and therefore his supervisors 13 violated policy when they issued what they referred to as “informal counseling.” See Opp’n 4-5, 14 17. This argument is specious. The CBA defines “counseling” as “direction to an employee from 15 a manager that is used as a constructive means to encourage an employee to improve his or her 16 conduct” and specifies that such counseling may be “may be oral[] or reduced to writing.” CBA 17 art. 32 § 2.E. The CBA specifies that “oral counseling or written warnings will ordinarily be the 18 first step taken by management to correct an employee’s conduct.” CBA art. 32 § 7. Thus 19 “counseling” is a remedial measure anticipated by the CBA. That Mr. Asadi’s supervisors 20 referred to the counseling he received as “informal counseling” as opposed to just “counseling” is 21 not evidence that they deviated from the CBA. 22 Relatedly, Mr. Asadi argues that his supervisors deviated from the CBA when they denied 23 his right to appeal the issuance of the Counseling Memorandum. Mr. Asadi’s argument hinges on 24 his contention that the CBA grants the right to appeal “written reprimands” under section 8 of 25 article 32 of the CBA. See Opp’n 5. But this argument fails because the only evidence before the 26 Court shows that Mr. Asadi was issued “counseling” under section 7 of article 32 of the CBA, not 27 a “reprimand” under section 8. Dr. Mirzaei’s memorandum documenting the counseling had the 28 subject line “Counseling.” Counseling Mem. And Dr. Mirzaie and Dr. Shevchenko use the term 21 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 22 of 31 1 “counseling” throughout their discussions with Mr. Asadi. See Mirzaei Rebuttal Response Email; 2 Shevchenko-Asadi Counseling Mem. Email; Mirzae-Asadi Midpoint Review Email; Shevchenko- 3 Asadi Midpoint Review Email; Mirzaei-Asadi Email Chain (Mar. 29, 2019). Dr. Mirzaei 4 explained to Mr. Asadi that the counseling was not “formal discipline.” See Mirzaei Rebuttal 5 Response Email. This is consistent with the CBA, which specifies that a reprimand is a 6 “disciplinary action” while counseling is not. CBA art. 32 §§ 2.A, 7. Mr. Asadi provides no 7 evidence in response. Accordingly, Mr. Asadi has failed provide to raise a triable issue of fact 8 about whether his supervisors deviated from the CBA. United States District Court Northern District of California 9 Mr. Asadi’s theory also fails because, to the extent Mr. Asadi contends his supervisors 10 deviated from the CBA and Army regulations, he has provided no evidence concerning whether 11 they similarly deviated with employees outside of his protected class. A plaintiff fails to raise a 12 triable issue of pretext based on a deviation from procedures where “plaintiff proffers no evidence 13 concerning whether [his employer] followed its policies and procedures with respect to similarly 14 situated [employees outside of plaintiff’s protected class].” See Blair v. Shinseki, No. 2:13-CV- 15 07478-CAS-FFMx, 2015 WL 12743841, at *14 (C.D. Cal. Apr. 29, 2015), aff'd sub nom. Blair v. 16 Shulkin, 685 F. App'x 587 (9th Cir. 2017). Here, the only evidence before the Court concerning 17 Mr. Asadi’s supervisors’ practices is Dr. Mirzaei’s deposition testimony that “informal 18 counseling” is a “very common practice at the DLI.” Mirzaei Dep. 58:5-6. Mr. Asadi has thus 19 fallen well short of identifying “specific and substantial” evidence of pretext. See Boeing, 577 20 F.3d at 1049. 21 In sum, Mr. Asadi has provided no evidence that Defendant’s proffered reasons for issuing 22 him counseling were pretextual and has thus failed to raise a triable issue of pretext concerning the 23 counseling. 24 Performance Appraisals and Awards/Rank Advancement: Mr. Asadi offers no evidence 25 to rebut Defendant’s proffered non-discriminatory reasons for Mr. Asadi’s performance appraisal 26 scores, performance awards, or the denial of his application for rank advancement. Instead, Mr. 27 Asadi directs all his arguments about pretext the counseling he received and his supervisors’ 28 purported failures to comply with the CBA. See Opp’n 15-18. Mr. Asadi has therefore failed to 22 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 23 of 31 1 raise a triable issue of pretext concerning the performance appraisals, performance awards, and 2 denial of rank advancement. See Lam v. City & Cnty. of San Francisco, 565 F. App’x 641, 643 3 (9th Cir. 2014) (affirming grant of summary judgment on Title VII claim where “there was a 4 failure of proof from Appellants on the key issue of pretext.”). * 5 * The Court finds that Mr. Asadi has failed to provide evidence that raises a triable issue of 6 7 fact about whether Defendant’s proffered non-discriminatory reasons for the purported adverse 8 actions are pretextual. Thus, in addition to Mr. Asadi’s failure to make out a prima facie claim, 9 Defendant’s motions to dismiss Mr. Asadi’s discrimination claim is GRANTED for this 10 United States District Court Northern District of California * independent reason. 11 B. 12 “Title VII prohibits retaliation against an employee for opposing unlawful discrimination.” 13 McGinest, 360 F.3d at 1124 (citing 42 U.S.C. § 2000e-3(a)). “Like discrimination, retaliation may 14 be shown using the McDonnell Douglas burden-shifting framework.” Id. To establish a prima 15 facie case of retaliation, “a plaintiff must show (1) involvement in a protected activity, (2) an 16 adverse employment action, and (3) a causal link between the two.” Brooks v. City of San Mateo, 17 229 F.3d 917, 928 (9th Cir. 2000). If the plaintiff provides sufficient evidence to show a prima 18 facie case of retaliation, the burden then shifts to the employer to articulate a legitimate, non- 19 retaliatory reason for its actions. Porter v. California Dep’t of Corr., 419 F.3d 885, 894 (9th Cir. 20 2005). If the employer sets forth such a reason, the plaintiff bears the ultimate burden of 21 submitting evidence indicating that the employer’s proffered reason is merely a pretext for a 22 retaliatory motive. See id. Mr. Asadi alleges six acts of retaliation: 23 24 Retaliation • Alleged Retaliatory Act 1: From October 15 through October 23, 2018, Dr. Shevchenko 25 did not respond to Mr. Asadi’s request to remove the reference to informal counseling 26 from his midpoint performance review. Compl. ¶ 18.A. 27 28 • Alleged Retaliatory Act 2: From September 17 through October 23, 2018, Dr. Mirzaei did not respond to Mr. Asadi’s request for a copy of the Noisette Memorandum and stated that 23 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 24 of 31 it did not exist. Compl. ¶ 18.B. 1 • 2 3 review despite Dr. Mirzaei’s assurance to Mr. Asadi on October 10, 2018, that the 4 Counseling Memorandum would be in his personnel file and no one except Mr. Asadi and 5 Dr. Mirzaei would see it. Compl. ¶ 18.C. • 6 Alleged Retaliatory Act 4: On September 24, 2018, Dr. Shevchenko sent Mr. Asadi an 7 email telling him not to raise his voice and index finger to anyone in the workplace without 8 proof that he had done so. Compl. ¶ 18.D. • 9 United States District Court Northern District of California Alleged Retaliatory Act 3: Informal counseling was referenced in Mr. Asadi’s midpoint Alleged Retaliatory Act 5: On July 10, 2020, Mr. Asadi was not placed among the top 10% 10 of employees and thus did not receive a one- or two-step step increase in his pay as a 11 performance award for 2019-2020. Compl. ¶ 18.E. • 12 Alleged Retaliatory Act 6: On December 9, 2020, Mr. Asadi was not selected for 13 advancement to the rank Associate Professor. Compl. ¶ 18.E.2 14 Defendant argues that Mr. Asadi cannot establish a prima facie case based on Alleged 15 Retaliatory Acts 1 through 4 because there is no evidence of causation. Defendant argues that she 16 is entitled to summary judgment because there are legitimate, non-retaliatory reasons for the all 17 the Alleged Retaliatory Acts and Mr. Asadi has no evidence of pretext. 18 1. Alleged Retaliatory Acts 1-4 “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause 19 20 of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 21 (2013). Causation may be inferred from circumstantial evidence, such as the employer’s 22 knowledge that the plaintiff engaged in protected activities and the proximity in time between the 23 protected action and the allegedly retaliatory employment decision. Yartzoff v. Thomas, 809 F.2d 24 1371, 1376 (9th Cir. 1987). But “the plaintiff must make some showing sufficient for a reasonable 25 trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected 26 activity.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) 27 28 Mr. Asadi’s complaint as two paragraphs labeled “18.E.” This citation refers to the second of those two paragraphs. 24 2 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 25 of 31 1 2 Defendant argues that Mr. Asadi cannot show a causal link between his protected activity 3 and Alleged Retaliatory Acts 1 through 4 because there is no evidence the relevant actors knew 4 about the protected activity when they committed the acts. Mot. 22-23. Each Alleged Retaliatory 5 Act was committed on or before October 23, 2018, either by Dr. Mirzaei or Dr. Shevchenko. Dr. 6 Mirzaei has stated that she first learned of Mr. Asadi’s protected activity in November 2018. 7 Mirzaei Decl., at p.3. Dr. Shevchenko has stated that she learned of Mr. Asadi’s protected activity 8 in February 2019. Shevchenko Decl., at p.3. These statements are evidence that neither Dr. 9 Mirzaei nor Dr. Shevchenko knew of Mr. Asadi’s protected activity when they committed Alleged 10 11 United States District Court Northern District of California (citing Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)). Retaliatory Acts 1 through 4. Mr. Asadi does not come forth with any evidence in response from which a reasonable jury 12 could render a verdict in his favor. See Oracle, 627 F.3d at 387. Mr. Asadi appears to argue that 13 he can demonstrate the requisite causal connection because he made his “initial complaint of 14 discrimination” to Skip Jonson, Deputy DLIFLC Inspector General, in September 2018 and “[t]he 15 complaint to DLI’s EEO office was first made in early October 2018.” Opp’n 18. This argument 16 fails because it says nothing about why making such complaints would put Dr. Mirzaei or Dr. 17 Shevchenko—the two people alleged to have committed the retaliatory acts—on notice of the 18 protected activity. See Ujhelyi v. Vilsack, No. C 12-04282 JSW, 2014 WL 4983550, at *10 (N.D. 19 Cal. Oct. 6, 2014) (holding that plaintiff had failed to show disputed facts on causation where 20 supervisors denied that they were aware of protected activity and plaintiff had not submitted 21 evidence to rebut the denials), aff'd, 695 F. App’x 285 (9th Cir. 2017); Meaux v. Nw. Airlines, Inc., 22 718 F. Supp. 2d 1081, 1092 (N.D. Cal. 2010) (“Plaintiff presents no evidence that any 23 decisionmaker in Plaintiff's 2003 and 2004 discipline had knowledge of his 1986 Department of 24 Human Rights claim. Therefore, no cause of action for retaliation can be based on this protected 25 activity.”), aff’d, 490 F. App'x 58 (9th Cir. 2012). Mr. Asadi’s argument that there “was not a 26 long delay” between his filing of the EEO complaint and his first annual performance review fails 27 for the same reason. See, e.g., Foraker v. Apollo Grp., Inc., 427 F. Supp. 2d 936 (D. Ariz. 2006) 28 (no causation despite temporal proximity between EEOC complaint and adverse employment 25 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 26 of 31 1 actions because plaintiff failed to produce evidence that defendant knew of the charge), aff'd, 302 2 F. App'x 591 (9th Cir. 2008). Accordingly, the Court thus finds that Alleged Retaliatory Acts 1 through 4 do not provide 3 4 a basis for Mr. Asadi’s retaliation claim because Defendant has identified an absence of evidence 5 that the acts were caused by a desire to retaliate, and Mr. Asadi has failed to respond with 6 evidence from which a reasonable jury could render a verdict in his favor. 7 2. Alleged Retaliatory Acts 5 and 6 Defendant does not dispute that Mr. Asadi can make out a prima facie case of retaliation 8 United States District Court Northern District of California 9 based on Alleged Retaliatory Acts 5 and 6. Defendant argues, however, that there are legitimate, 10 non-retaliatory reasons for both acts and that Mr. Asadi has no evidence that these reasons are 11 pretextual.3 12 a. Legitimate, Non-Retaliatory Reasons Where a plaintiff establishes his prima facie case, the burden shifts to the defendant “to 13 14 articulate a legitimate, non-retaliatory explanation for the adverse employment action.” Winarto, 15 274 F.3d at 1284. This is solely a burden of production; “the defendant need not persuade the 16 court that it was actually motivated by the proffered reasons.” St. Mary’s, 509 U.S. at 510 (1993). 17 Defendant has met her burden here. 18 Alleged Retaliatory Act 5: Mr. Asadi alleges that Defendant retaliated against him on July 19 10, 2020, when he was not ranked among the 10% of employees and thus not given a one- or two- 20 step pay increase that year. See Compl. ¶ 18.E. Defendant asserts that Mr. Asadi was not selected for a step increase in 2020 for the non- 21 22 retaliatory reason that the limited number of step increases were given to more qualified 23 employees. Mot. 15-16, 21. Defendant cites the following evidence in support of her assertion. 24 In 2020, Mr. Asadi received a score of 4.6 out of 5 on his performance review. 2020 Performance 25 Review, at p.5. Dr. Shevchenko, the person responsible for proposing Mr. Asadi’s award, stated 26 27 28 3 Defendant also argues that she has legitimate, non-retaliatory reasons for Alleged Retaliatory Acts 1 through 4. Because the Court has held that Mr. Asadi has not shown that Alleged Retaliatory Acts 1 through 4 support a prima facie case of discrimination, the Court does not reach whether Defendant has demonstrated legitimate, non-retaliatory reasons for these acts. 26 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 27 of 31 1 that the school “had more faculty rated overall 4.6 then [sic] the number of the step increases 2 available for the school.” Shevchenko Decl., at p.4. She said she reviewed each faculty member’s 3 “rating,” “contributions,” and “impact” and then decided who would receive each award. Id. 4 Finally, Dr. Shevchenko stated that she did not consider Mr. Asadi’s race, national origin, or prior 5 EEO activity in deciding his award. Id. at p.5. United States District Court Northern District of California 6 This evidence satisfies Defendant’s burden of production because, taken as true, it would 7 permit the conclusion that there was a nondiscriminatory reason for the denial of the step increase. 8 See Hicks, 509 U.S. at 509. Dr. Shevchenko’s statement that she considered rating, contribution, 9 and impact suggests that Mr. Asadi was not awarded a step increase because other faculty 10 performed better than him in these categories. Moreover, Dr. Shevchenko expressly stated that 11 she did not consider Mr. Asadi’s prior EEO activity in deciding his award. Considering this 12 evidence together, the Court finds that Defendant has met her burden to produce evidence that 13 there was a legitimate, non-retaliatory reason for not awarding Mr. Asadi a step increase. 14 Alleged Retaliatory Act 6: Mr. Asadi alleges that Defendant retaliated against him on 15 December 9, 2020, when he was not promoted to the rank of Associate Professor. Compl. ¶ 18.F. 16 The Court again finds that Defendant has met her burden to introduce evidence of a 17 legitimate, nonretaliatory reason for the alleged adverse action. Defendant asserts that Mr. Asadi 18 was not selected for the rank of Associate Professor for the non-retaliatory reason that he was less 19 qualified than the candidates who were selected. Mot. 21. Defendant cites the following evidence 20 in support of her assertion. Each applicant who applied for rank advancement was given a score 21 based on a review of the applicant’s materials by members of a panel, prior performance ratings, 22 level of education, contributions to the field, and a recommendation by the applicant’s second- 23 level supervisor. Donovan Decl. at 3, 5. The applicants’ scores were then arranged in descending 24 order, and only applicants with scores above a certain cut line were eligible for promotion. See id. 25 at 3. Mr. Asadi scored well below the cut line when he applied for rank advancement. See Rank 26 Advancement Table, at DEF01772, DEF01775 (showing the cutline set at 248.85 and showing 27 Mr. Asadi’s score at 192.85). Taken together, this evidence would permit the conclusion that Mr. 28 Asadi was not selected for rank advancement for the legitimate reason that the promotion was 27 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 28 of 31 1 given to candidates who were more qualified because they scored higher than he did. See Miller v. 2 AmeriGas Partners, L.P., No. 12-cv-2974-KJM, 2014 WL 1096705, at *9 (E.D. Cal. Mar. 19, 3 2014) (finding that defendant satisfied burden to articulate non-retaliatory reason for not 4 promoting employee where defendant offered evidence that it chose a different employee for the 5 promotion based on that employee’s higher scores in the interview process). 6 7 8 United States District Court Northern District of California 9 Defendant has thus met her burden to produce evidence that she had a legitimate, nonretaliatory reason for not selecting Mr. Asadi for rank advancement to Associate Professor. b. Pretext In the face of Defendant’s showing, Mr. Asadi must demonstrate that the purported 10 nonretaliatory reasons for Alleged Retaliatory Acts 5 and 6 were “merely a pretext for 11 impermissible retaliation.” See Winarto, 274 F.3d at 1284. The “critical” issue at the pretext stage 12 is whether the plaintiff produces “sufficient evidence to raise a triable issue of fact as to whether 13 the reason proffered by [employer] for [the adverse action] was a pretext for unlawful retaliation.” 14 Bergene v. Salt River Project Agr. Imp. and Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001). A 15 plaintiff may rely on direct or circumstantial evidence of pretext to avoid summary judgment. See 16 Manatt v. Bank of America, N.A., 339 F.3d 792, 801 (9th Cir.2003). But if the plaintiff relies on 17 circumstantial evidence, the evidence must be “specific and substantial.” See id. (“Because 18 [plaintiff] failed to introduce any direct or specific and substantial circumstantial evidence of 19 pretext, summary judgment for the [defendant] must be affirmed.”). A “plaintiff cannot create a 20 genuine issue of pretext to survive a motion for summary judgment by relying solely on 21 unsupported speculations and allegations of discriminatory intent.” Crawford v. MCI Worldcom 22 Communications, Inc., 167 F. Supp. 2d 1128, 1135 (S.D. Cal. 2001). 23 Here, Mr. Asadi cites no evidence that would raise a triable issue of fact about whether 24 Defendant’s nonretaliatory reasons for not giving him his desired performance award (Alleged 25 Retaliatory Act 5) and not promoting him (Alleged Retaliatory Act 6) were pretextual. As noted 26 above, Defendant provided evidence that the relevant awards and promotion went to more 27 qualified employees. Mr. Asadi does not address this at all. Instead, Mr. Asadi relies on conduct 28 that bears no apparent relation to Defendant’s non-discriminatory reasons as “evidence of 28 United States District Court Northern District of California Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 29 of 31 1 discrimination and pretext.” See Opp’n 15-18. Specifically, Mr. Asadi contends that Defendant 2 engaged in the following conduct: (1) treating him and Ms. Koayess differently following the 3 Incident; (2) not following Army regulations or the CBA in issuing him informal counseling; and 4 (3) not following Army regulations or the CBA in conducting their investigation following the 5 Incident. Id. Even assuming Mr. Asadi had supplied evidence to show that Defendant did engage 6 in this conduct, it is not clear how the conduct is evidence that Defendant’s reasons for not giving 7 him his desired award or not promoting him were pretextual. 8 Accordingly, the Court finds Mr. Asadi has failed to present evidence that Defendant’s 9 nonretaliatory reasons for not giving him the performance award he desired and not promoting 10 him in 2020 were pretextual. The Court therefore finds that Mr. Asadi has not demonstrated the 11 existence of a triable issue of fact that he has a Title VII retaliation claim based on Alleged 12 Retaliatory Acts 5 and 6. * 13 * * 14 In light of the foregoing, the Court finds that Defendant is entitled to summary judgment 15 on Mr. Asadi’s retaliation claim. Mr. Asadi bases his claim on six Alleged Retaliatory Acts. As 16 to Alleged Retaliatory Acts 1 through 4, Defendant has shown that there is an absence of evidence 17 that any of the acts were caused by a desire to retaliate against Mr. Asadi for his protected activity. 18 As to Alleged Retaliatory Acts 5 and 6, Defendant has provided evidence that the acts were for 19 legitimate, nonretaliatory reasons, and Mr. Asadi has not submitted any evidence from which a 20 jury could conclude that these reasons are pretextual. Accordingly, Defendant’s motion for 21 summary judgment regarding Mr. Asadi’s retaliation claim is GRANTED. 22 C. 23 Within his allegations for his retaliation claim, Mr. Asadi alleges that he was “subjected to Hostile Work Environment 24 a hostile work environment on the basis of national origin (Iraq), religion, and race.” Compl. ¶ 18. 25 Mr. Asadi relies on Alleged Retaliatory Acts 1 through 6 as the basis for his assertion that he was 26 subject to a hostile work environment. Id. 27 28 To establish a prima facie case for a hostile-work environment claim, Mr. Asadi must raise a triable issue of fact as to whether (1) Defendant subjected him to verbal or physical conduct 29 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 30 of 31 1 based on his race, religion, or national origin; (2) the conduct was unwelcome; and (3) the conduct 2 was sufficiently severe or pervasive to alter the conditions of his employment and create an 3 abusive working environment See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th 4 Cir. 2008). 5 6 because “[e]ach of the interactions underlying Plaintiff’s discriminatory harassment claims were 7 isolated, not clearly based on either race national origin, religion, color, or retaliation, and had no 8 effect on Plaintiff’s work conditions.” Mot. 24. Mr. Asadi responds that “the ongoing and 9 repeated pressure from management described in his complaints created a hostile work 10 11 United States District Court Northern District of California Defendant argues that Mr. Asadi cannot establish a hostile work environment claim environment.” Opp’n 22. The Court finds that Mr. Asadi has failed to raise a triable issue of fact concerning his 12 hostile work environment claim. The first four acts upon which Mr. Asadi bases his hostile work 13 environment claim concern the discipline he received for his alleged involvement in the Incident. 14 See Compl. ¶¶ 18.A.-D. As explained above in Section III.A., Mr. Asadi contends that Defendant 15 discriminated against him by subjecting him to harsher discipline than Ms. Koayess, a white 16 woman of Lebanese national origin, despite her involvement in the altercation. However, as the 17 Court explained above, Mr. Asadi has failed to produce evidence to support a prima facie case of 18 discrimination because the evidence shows that he and Ms. Koayess were subject to the 19 disciplinary decisions of different decisionmakers and thus were not similarly situated. Thus, to 20 the extent Mr. Asadi relies on the discipline he received for his involvement in the incident, this 21 discipline cannot provide a basis for his hostile work environment claim because there is no 22 evidence that the discipline was based on his race, religion, or national origin. Cf. Surrell, 518 23 F.3d at 1108 (affirming summary judgment on hostile work environment claim where plaintiff had 24 “present[ed] no evidence that [her supervisor’s] comments were based on race.”). 25 The remaining two acts also do not provide a basis for Mr. Asadi’s hostile work 26 environment claim because Mr. Asadi has not raised a triable issue of fact about whether those 27 acts were based on his race, religion, or national origin. The remaining two acts upon which Mr. 28 Asadi bases his hostile work environment claim are Defendant’s decisions in 2020 not to award 30 Case 5:22-cv-02988-BLF Document 39 Filed 07/19/23 Page 31 of 31 1 Mr. Asadi a step increase in his salary and not to advance him to the rank Associate Professor. 2 See Compl. ¶¶ 18.E-E.4 As explained above in Section III.B.2.a, Defendant has provided evidence 3 that Mr. Asadi did not receive the performance award he desired or the advancement for a 4 legitimate reason—because there were more qualified candidates. And as explained above in 5 Section III.B.2.b, Mr. Asadi has presented no evidence that this reason was pretextual. Thus, 6 these acts do not create a triable issue of fact as to whether Defendant created a hostile work 7 environment. See Hollins v. Wilkie, No. 19-CV-2201 DMS (JLB), 2021 WL 1906462, at *8 (S.D. 8 Cal. May 12, 2021) (finding no triable issue of fact as to hostile work environment claim where 9 “Defendant provided a legitimate, non-discriminatory reason for its actions . . . and Plaintiff failed 10 to show this reason was pretextual”). In sum, Defendant has shown a lack of evidence that any of the alleged acts underlying Mr. United States District Court Northern District of California 11 12 Asadi’s hostile work environment claim were based on race, religion, or national origin, and Mr. 13 Asadi has designated no facts demonstrating the existence of genuine issues for trial. 14 Accordingly, Defendant’s motion for summary judgment on Mr. Asadi’s hostile work 15 environment claim is GRANTED. 16 IV. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion for 17 18 summary judgment is GRANTED. 19 Dated: July 19, 2023 ______________________________________ BETH LABSON FREEMAN United States District Judge 20 21 22 23 24 25 26 27 28 4 The relevant paragraphs are both numbered 18.E. 31
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
