Jordan v. Foxx, No. 2:2013cv02280 - Document 59 (W.D. Wash. 2015)
Court Description: ORDER Granting Defendant's 47 Motion for Summary Judgment and Plaintiff's Complaint is Dismissed in its entirety by Judge Ricardo S Martinez.(LMK)
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Jordan v. Foxx Doc. 59 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 MARLENE JORDAN, Plaintiff, 9 10 11 12 Case No. C13-2280RSM ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. ANTHONY R. FOXX, Secretary, U.S. Department of Transportation, 13 Defendant. 14 I. 15 16 INTRODUCTION This matter comes before the Court on Defendant’s Motion for Summary Judgment. 17 Dkt. #47. Defendant asks this Court to dismiss Plaintiff’s case in its entirety on the basis that 18 19 she fails to raise any genuine dispute with a material fact as to alleged discrimination or 20 retaliation and therefore her claims fail as a matter of law. Id. Plaintiff argues that she has 21 demonstrated a genuine dispute as to material facts in this matter, specifically with respect to 22 inferred discrimination and retaliation, and therefore Defendant’s motion fails and this matter 23 must proceed to trial. Dkt. #50. For the reasons discussed herein, and having considered the 24 25 oral arguments on May 12, 2015, the Court disagrees with Plaintiff and GRANTS Defendant’s 26 motion. 27 /// 28 /// ORDER PAGE - 1 Dockets.Justia.com II. 1 BACKGROUND 2 Plaintiff, Marlene Jordan, is an African American woman. Dkt. #51, Ex. A at 25:15-17. 3 Ms. Jordan has worked for the Federal Aviation Administration (“FAA”), a subdivision of the 4 Department of Transportation (“DOT”), since 1998. Dkt. #52 at ¶ 2. She is currently 5 employed as a Management and Program Analyst, also known as a Staffing Specialist, on the 6 7 8 Employee Services Team (“EST”) in Renton, Washington. Dkt. #52 at ¶ 2. She has worked in that position since 2007. Her seniority level is characterized as “H-band.” Id. 9 10 The events leading to this action occurred in 2011. Supervisor was Norma Johnson.1 At that time, Ms. Jordan’s Norma began working at the FAA in the 1980s as a 11 secretary, before joining the Human Resources Division. Dkt. #49, Ex. A at 10:22-11:9. For a 12 13 portion of her career, Norma worked as an EEO investigator within the FAA. Dkt. #49, Ex. A 14 at 17:5-14. In approximately 2009, Norma became the manager of the EST, and Ms. Jordan’s 15 first line supervisor. Dkt. #48 at ¶ 2. As manager of the EST, Norma was responsible for 16 approximately 15-18 employees, the majority of them women, and had the ability to hire and 17 18 fire. Dkts. #51, Ex. B at 11:9-17 and #49, Exs. B and C. Norma was also responsible for 19 directing and managing her employees, including “evaluating performance, coaching and 20 developing staff.” Dkt. #49, Ex. G. 21 During the years that Ms. Jordan was supervised by Norma, she received satisfactory 22 performance reviews, although Ms. Jordan describes her performance as “exceptional.” See 23 24 25 Dkt. #49, Exs. I-K and H at 128:16-129:4. However, Norma did note deficiencies in Ms. Jordan’s performance as well. For example, in one of her performance evaluations Norma 26 1 27 28 There are two female individuals involved in this matter with the last name of Johnson, Norma Johnson and Jennifer Johnson, who are not related to each other. For clarity, and without intending any disrespect to either of the Johnsons, the Court will refer to them in this Order by their first names. ORDER PAGE - 2 1 noted that feedback from Ms. Jordan’s customers was not positive, customers were 2 uncomfortable going to Ms. Jordan for assistance and lacked confidence in her knowledge and 3 expertise, Ms. Jordan was perceived by her colleagues as reluctant to do more than what was 4 minimally required, and she was often not accountable for her own actions. Dkt. #49, Exs. I at 5 4 and K at 8. On another occasion Norma noted that Ms. Jordan had failed to deliver on a 6 7 brochure project she had been assigned. Dkts. #49, Ex. K at 7-11 and #48, Ex. A at 9. Norma 8 documented her various verbal conversations and coaching with Ms. Jordan, noting other 9 performance deficiencies. Dkt. #48, Ex. A. However, Ms. Jordan has never received any 10 corrective action, nor has she ever been placed on a Performance Improvement Plan. Dkt. #52 11 at ¶ 4. 12 13 On November 21, 2010, Norma temporarily promoted Ms. Jordan from her H-band 14 position to an I-band level Management & Program Analyst position. Dkt. #49, Ex. A at 15 82:11-83:11, Ex. N and Ex. H at 70:9-12. In that position, Ms. Jordan’s “customer” was the 16 Tech Ops Service Center, and she was responsible, inter alia, for advising managers about 17 18 hiring and moving employees. Dkt. #49, Ex. A at 83:14-84:10. The promotion was granted on 19 a “non-competitive” basis, meaning that Ms. Jordan did not need to apply for the position. Id., 20 Ex. H at 70:17-22. 21 According to Defendant, the temporary promotion did not go well for Ms. Jordan. Dkt. 22 #47 at 6-7. Defendant notes that Ms. Jordan had serious performance issues throughout the 23 24 time she was in that position, including one instance where she failed to process a customer’s 25 detail request in a timely manner, resulting in the abandonment of the request (the “Baden” 26 error), and another instance where she incorrectly processed an employee request, resulting in 27 an employee reporting to work and working in the position for more than a month before 28 ORDER PAGE - 3 1 Norma noticed that the detail had not been fully approved (the “Bowen” error).2 Dkt. #49, Exs. 2 A at 67:11-68:14, H at 131:25-132:6, R and S, and #48, Ex. A. The promotion ended on 3 February 28, 2011, and Ms. Jordan was returned to her former position. Ms. Jordan does not 4 5 dispute that during a discussion with Norma she (Ms. Jordan) told Norma that the position was “over her head and overwhelming” to her.3 See Dkts. #49, Ex. A at 45:15-24 and #50. In fact, 6 7 Ms. Jordan fails to discuss her temporary I-band promotion at all in her briefing. See Dkt. #50. 8 Shortly after Ms. Jordan’s promotion ended, Norma discovered and addressed the 9 Bowen error with Ms. Jordan. See Dkt. #48, Ex. A and #49, Ex. S. According to Ms. Jordan, 10 on March 10, 2011, Norma confronted her in her cubicle, standing very close to her and 11 speaking in a loud, angry voice, in the presence of her co-workers. Dkt. #52 at ¶ 5. Ms. Jordan 12 13 had never witnessed Norma treat anyone else this way. Id. The next day, Norma called Ms. 14 Jordan into her office and again spoke to her about the error. Id. at ¶ 6. Ms. Jordan asserts that 15 Norma “berated” her to the point of tears and threatened her job. Id. Norma denies yelling at 16 Ms. Jordan at her cubicle, but explained that she had taken written notes of their March 11th 17 18 19 discussion because the discussion had been “intense.” Dkts. #51, Ex. B at 83:24-84:15 and #54, Ex. D at 56:21-25. 20 As a result, Ms. Jordan contacted the EEO hotline and made an informal complaint 21 about the March 10th and 11th interactions, alleging disparate treatment based on race and sex. 22 23 24 25 26 27 28 2 Based on the dates of various exhibits submitted in this action, it appears that the Bowen error was not discovered and addressed until after Ms. Jordan’s promotion ended. See, e.g., Dkt. #49, Ex. S. 3 During oral argument, Ms. Jordan’s counsel acknowledged that Ms. Jordan had felt this way during her promotion, but argued that it was because Ms. Jordan was doing the work of what had previously been accomplished by two people. Additionally, Ms. Jordan’s counsel argued that Ms. Jordan had “been set up to fail” by Norma when she was promoted to the prior I-band position. However, that assertion was not propounded by Ms. Jordan in her briefing, and therefore there is nothing cited in the record before the Court to support that assertion. ORDER PAGE - 4 1 2 Dkts. #51, Ex. P and #52 at ¶ 7. On June 14, 2011, Ms. Jordan and Norma participated in mediation and resolved the complaint. Dkt. #51, Ex. P. On June 30, 2011, the FAA posted vacancy announcement “ANM-ATO-11-0977682- 3 4 21578, Series FV-343-1” for an I-band level Management & Program Analyst position for a 5 different customer than whom Ms. Jordan had previously worked. Dkt. #49, Ex. T. This was 6 7 not the same position that Ms. Jordan had previously temporarily filled, although it was the 8 same I-band level of promotion. This position was permanent, and would support the Service 9 Center’s En Route operations unit. Dkt. #49, Exs. T and U at 62:20-63:5. 10 Nine people applied for this position, including Ms. Jordan and the person who 11 ultimately filled the position, Jennifer Johnson. Dkt. #49, Exs. V, W and X. The position was 12 13 an I-band level, and would have been a promotion for both Ms. Jordan and Jennifer who were 14 both in H-band positions at the time. Sue Fletcher, a lead HR staffing specialist, reviewed the 15 applications and created a “referral list” of qualified candidates from which Norma Johnson 16 could hire. Dkt. #49, Ex. Y at 44:24-45:18. Ms. Fletcher issued the referral list on July 14, 17 18 19 2011. Dkt. #49, Ex. Z. There were three candidates on the list – Ms. Jordan, Jennifer Johnson, and a male employee. Id. 20 To provide a “totally objective assessment” of the job candidates, Norma convened an 21 interview panel of three employees to conduct the interviews and to make a hiring 22 recommendation.4 Dkt. #49, Exs. O at 2, Response to Interrogatory No.3 and DD. The panel 23 24 members were: Paige Anderson – Team Lead, Organizational & Employee Performance Team, 25 ASG; Cindy Alexander – Senior Advisor, Western En Route & Oceanic Operations; and 26 Monique France – Executive Advisor, Western Terminal Operations. Dkt. #49, Ex. EE. The 27 4 28 During oral argument, Plaintiff’s counsel conceded that nothing required Norma to convene such a panel, and she could have made the hiring decision herself without a panel recommendation. ORDER PAGE - 5 1 panel reviewed the candidates’ written materials, and then held interviews, asking each person 2 the same questions. Id. 3 package,” and assigned her a score of 53 on the Applicant Package Review score sheet. Id. at 4 The panel found that Jennifer had a superior written “applicant 5. Plaintiff received a lower score of 49 on her written materials, id., but presented better 5 verbal communication skills than Jennifer during her interview. Id., Ex. O at 2, Response to 6 7 Interrogatory No. 3; see also Dkt. #49, Exs. FF, GG and HH. Ultimately, the panel found both 8 candidates equally qualified for the position and referred both to Norma for further 9 consideration for the position. Id., Ex. EE. 10 Norma was not confident that either candidate was really ready for the promotion. Dkt. 11 #49, Ex. M at 2. Therefore, instead of hiring a candidate for the permanent position, and at the 12 13 suggestion of Cindy Alexander (who was the representative of the customer who was going to 14 be served), Norma decided to temporarily promote Jennifer to see if she was a good fit. Dkt. 15 #40, Ex. O, Response to Interrogatory No. 3 and Ex. M. Norma had already provided Ms. 16 Jordan with such an opportunity by temporarily promoting her to an I-band manager position 17 18 several months earlier, albeit for a different customer. Id. Norma met with both Ms. Jordan 19 and Jennifer on August 2, 2011, to inform them of her plan. Id.. Norma also informed Ms. 20 Jordan that if Jennifer did well in the position, she would be made permanent. Dkt. #49, Ex. H 21 at 124:7-22 and Ex. M. According to Norma, Jennifer performed exceptionally well during her 22 promotion. Dkt. #49, Ex. O, Response to Interrogatory No. 6. As a result, Jennifer was hired 23 24 permanently to the position. Id. 25 On March 31, 2012, Ms. Jordan filed an EEO Complaint alleging that Norma had 26 discriminated against her based on race and sex, and had retaliated against her based on her 27 28 ORDER PAGE - 6 1 2 prior EEO complaint, when she was not selected for the I-band promotion given to Jennifer.5 Dkt. #49, Ex. RR. That complaint ultimately led to the instant litigation. 3 III. 4 DISCUSSION A. Legal Standard for Summary Judgment Motions 5 Summary judgment is appropriate where “the movant shows that there is no genuine 6 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 8 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 9 summary judgment, a court does not weigh evidence to determine the truth of the matter, but 10 In ruling on “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 11 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 12 13 744, 747 (9th Cir. 1992)). Material facts are those which might affect the outcome of the suit 14 under governing law. Anderson, 477 U.S. at 248. 15 The Court must draw all reasonable inferences in favor of the non-moving party. See 16 O’Melveny & Meyers, 969 F.2d at 747, rev’d on other grounds, 512 U.S. 79 (1994). However, 17 18 the nonmoving party must make a “sufficient showing on an essential element of her case with 19 respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. 20 Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a scintilla of evidence in 21 support of the plaintiff's position will be insufficient; there must be evidence on which the jury 22 could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251. 23 24 25 26 27 28 5 Plaintiff has filed three other EEO Complaints while employed with the FAA – one in 2009, which resulted in a finding that no discrimination had occurred (Dkt. #49, Ex. QQ); one in 2013, which is currently being litigated in the Court of Federal Claims (Case No. C13-0995CFL); and one in 2014, which was resolved through mediation (Dkt. #49, Ex. UU). Two of those claims were made against different male supervisors (Dkt. #49, Exs. QQ and UU), and the claim in the Court of Federal Claims alleges pay discrimination based on race and sex and retaliation for making EEO complaints (Case No. C13-0995-CFL). ORDER PAGE - 7 B. Title VII Legal Standards 1 2 Plaintiff alleges that she suffered discrimination based on her race, and retaliation based 3 on her prior filing of EEO complaints, when she failed to receive a promotion at work. Dkt. 4 #46. She brings her claims under Section 717 of the Civil Rights Act of 1963, 42 U.S.C. § 5 2000e-16 (“Title VII”). Dkt. #46 at ¶ ¶ 15-23. The Court addresses each of these claims, in 6 7 turn, below. 8 1. Title VII Race Discrimination 9 Title VII makes it an unlawful employment practice to “discriminate against any 10 individual with respect to his compensation, terms, conditions, or privileges of employment, 11 because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. 12 13 Disparate treatment occurs “where an employer has treated a particular person less favorably 14 than others because of a protected trait.” Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th 15 Cir. 2012). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 16 668 (1973), the Supreme Court “‘set forth the basic allocation of burdens and order of 17 18 presentation of proof in a Title VII case alleging discriminatory treatment.’” Rashdan v. 19 Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014) (quoting Tex. Dep’t of Cmty. Affairs v. 20 Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). 21 First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. 22 23 24 25 26 27 Id. (internal citations and quotation marks omitted). 28 /// ORDER PAGE - 8 a. Prima Facie Claim 1 2 In order to prove a prima facie claim of Title VII discrimination based on race, Plaintiff 3 must show that: (a) she belonged to a protected class; (b) she was qualified for her job; (c) she 4 was subjected to an adverse employment action; and (d) similarly situated employees not in her 5 protected class received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 6 7 2006) (citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002)). See 42 U.S.C. § 8 2000e-3(e). Plaintiff makes such a showing here. There is no dispute that Plaintiff is a 9 member of a protected class as an African-American; nor is there any dispute that she was 10 found by an impartial interview panel to have been qualified for the job for which she applied, 11 or that she suffered adverse employment actions when she was denied the promotion for which 12 13 she applied. See Burlington v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 14 (1998) (explaining that an adverse employment action includes “significant change in 15 employment status,” such as failing to promote). 16 In addition, another woman, who is Caucasian, received the promotion instead.6 17 b. Legitimate, Non-Discriminatory Reason for Failure to Promote 18 19 Accordingly, the burden shifts to Defendant to articulate a legitimate, non- 20 discriminatory reason for promoting Jennifer over Ms. Jordan. Defendant has done so. Indeed, 21 as set forth above, Defendant asserts that the position was given to Jennifer because she was 22 equally qualified as Ms. Jordan, and because she performed “exceptionally” when she was 23 24 temporarily placed in the position. Dkt. #49, Ex. O, Response to Interrogatory No. 6. Further, 25 Norma had previously provided Ms. Jordan with a temporary promotion in an I-band position 26 with similar duties and levels of responsibility, and Ms. Jordan does not dispute that she told 27 6 28 During oral argument, Defendant appeared to have conceded that Ms. Jordan could make a prima facie claim of discrimination given than counsel addressed Ms. Jordan’s prima facie case, or lack thereof, only with respect to the retaliation claim. ORDER PAGE - 9 1 Norma the prior position was “over her head and overwhelming” to her. See Dkts. #49, Ex. A 2 at 45:15-24 and #50. 3 determining who was the best fit for the I-band promotion, Norma had “a right to look at 4 Further, Ms. Jordan acknowledged during her deposition that, in everything” with respect to her performance. Dkt. #49, Ex. H at 133:14-134:10. Norma 5 ultimately determined that because of Ms. Jordan’s past performance, she was not fit for the 6 7 promotion. 8 c. Pretext 9 As a result, the burden shifts back to Plaintiff to demonstrate pretext. 10 Once the employer has provided non-discriminatory reasons for the adverse action, “the presumption of 11 discrimination ‘drops out of the picture,’” and the Court determines based on the evidence in 12 13 the record whether a reasonable jury could conclude that the FAA discriminated against Ms. 14 Jordan on the basis of race. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 15 (9th Cir. 2006) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. 16 Ct. 2097, 147 L. Ed. 2d 105 (2000)). The Court finds that no jury could do so in this case. 17 As an initial matter, Plaintiff has presented no direct evidence of discrimination. See 18 19 Dkt. #50. Indeed, Plaintiff has testified that no one at the FAA, including Norma, has ever 20 directed slurs or any other derogatory language at her about her race. Dkt. #49, Ex. H at 23:22- 21 24:8. Further, Norma chose Ms. Jordan for a previous I-band promotion, suggesting that she 22 did not harbor discriminatory animus toward Plaintiff because of her race.7 See EEOC v. 23 24 Boeing Co., 577 F.3d 1044, 1051-52 (9th Cir. 2009) (noting this factor). 25 26 27 28 7 Again, the Court rejects Plaintiff’s counsel’s argument that she was only promoted in an effort to set her up to fail so that her failure could be used against her at a later time, as Plaintiff has not briefed that argument and therefore provides nothing in the record to support such a contention. Moreover, Plaintiff’s counsel did not point to anything in the record during oral argument that would have supported her contention. ORDER PAGE - 10 1 Instead, Ms. Jordan spends much of her brief focusing on the allegedly “flawed” 2 administrative process used to promote Jennifer, arguing that it supports an inference of 3 discrimination based on race. See Dkt. #50 at 8-15 and 20-24. It is true that circumstantial 4 evidence may be used to show pretext, provided that the evidence “give[s] rise to an inference 5 of unlawful discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. 6 7 Ct. 1089, 67 L. Ed. 2d 207 (1981). However, “[c]ircumstantial evidence of pretext must be 8 specific and substantial in order to survive summary judgment.” Bergene v. Salt River Project 9 Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (citing Godwin v. 10 Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)). There is no substantial evidence on 11 this record that Ms. Jordan was denied a promotion based on a discriminatory motive, and her 12 13 reliance on alleged anomalies with the process used to hire Jennifer is not persuasive. 14 Plaintiff complains that the hiring procedure “changed mid-stream” when Norma 15 allowed Jennifer a temporary promotion to see if she was a good fit. Dkt. #50 at 8. She further 16 argues that she was not allowed the same opportunity and Norma has “proffered conflicting and 17 18 19 changing explanations of what happened and why.” Id. These allegations are not supported by the record. 20 First, Defendant has provided evidence that temporary promotions are not uncommon 21 within the FAA. Dkt. #49, Ex. OO. While Plaintiff complains that the comparative temporary 22 promotions offered by Defendant are distinguishable from Ms. Jordan’s situation, Dkt. #50 at 23 24 13-15, the Court finds that they are sufficiently analogous to rebut an inference of race 25 discrimination, as they all demonstrate the practice of testing an employee on a temporary basis 26 before making a position permanent. 27 28 ORDER PAGE - 11 1 Second, Plaintiff completely ignores her previous temporary promotion to an I-band 2 position during which Norma was her supervisor, and which occurred just months before she 3 applied for the promotion at issue here. While Plaintiff’s counsel asserted during oral argument 4 that Ms. Jordan had been set up to fail, she also highlighted that Plaintiff completed the 5 temporary promotion and was not removed from it before its scheduled end date, nor was she 6 7 given any kind of performance improvement plan during the promotion. Notably, Plaintiff’s 8 counsel also did not make any assertion, nor is there anything in the record that so 9 demonstrates, that Plaintiff was somehow forced into a temporary promotion that she did not 10 want. By all accounts, she accepted the promotion to learn new skills to use toward career 11 advancement. See Dkt. #49, Ex. H at 70:9-72:2. The Ninth Circuit Court of Appeals has long 12 13 recognized that recent positive employment decisions made by the same actors who later make 14 an adverse employment decision against an employee gives rise to an inference that no 15 discrimination took place. See EEOC v. Boeing Co., 577 F.3d at 1051-52. 16 Third, the decision to temporarily promote Jennifer (and then make her permanent if she 17 18 performed well) was made and conveyed to Ms. Jordan prior to the alleged anomalies in the 19 process used to make Jennifer permanent in that position. See Dkt. #49, Ex. H at 124:7-22 and 20 Ex. M. This is significant because Ms. Jordan asks the Court to infer racial discrimination from 21 Defendant’s alleged deviances from its written policies after a decision to promote had already 22 been made. In such circumstances, Plaintiff cannot demonstrate that the actions are evidence 23 24 that Norma’s stated reasons for promoting Jennifer are pretext for racial discrimination. The 25 Court is not persuaded otherwise by the authority offered by Plaintiff. Plaintiff relies primarily 26 on Earl v. Nielsen Media Research, Inc., 658 F.3d 1108 (9th Cir. 2011), an age discrimination 27 case, in which the Ninth Circuit Court of Appeals found that where the employer treated 28 ORDER PAGE - 12 1 younger employees differently than the older Plaintiff in applying a disciplinary policy, there 2 arose a triable issue as to pretext. 3 comparable policy violations in the instant matter. Moreover, even assuming that these alleged 4 Earl, 658 F.3d at 1114. Plaintiff does not present deviations are accurate, Ms. Jordan fails to point to any fact from which the Court could infer a 5 connection between the deviations and the allegation that Norma deviated from policy because 6 7 of Plaintiff’s race. 8 Likewise, the Court rejects Plaintiff’s argument that pretext may be inferred because 9 Norma’s reasons for promoting Jennifer have changed throughout the litigation process. Dkt. 10 #50 at 8. The record reveals that Norma informed Ms. Jordan of her reasons for promoting 11 Jennifer on August 2, 2011. Dkt. #49, Ex. M. These reasons are also documented in written 12 13 notes. Id. While Ms. Jordan disputes Norma’s characterization of her performance, she does 14 not dispute that Norma conveyed the reasons for promoting Jennifer during the meeting. Dkt. 15 #49, Ex. H at 124:722 and 126:9-127:18. The only “change” in that reason that Plaintiff points 16 to is a notation in a memo written by someone other than Norma stating that no selection was 17 18 made at the time due to “staffing issues/levels.” Dkt. #50 at 8. However, this comment was 19 not attributed to Norma (in fact the person who wrote the memo stated it was her own hand- 20 written note), and the person who wrote the memo testified that this language is a generic 21 comment used whenever managers decide not to fill vacancies. Dkt. #56, Ex. E at 42:7-43:4. 22 Finally, the person who wrote the notation testified that it was made when the vacancy 23 24 25 26 27 announcement was closed, not because it was Norma’s stated reason to promote Jennifer and not to promote Ms. Jordan. Id. at 43:22-44:10. Finally, Plaintiff attempts to create an inference of discrimination by demonstrating that Norma’s description of her work performance was not legitimate, relying on several emails in 28 ORDER PAGE - 13 1 which her customers provided positive reviews of her work for them. Dkt. #51, Ex. H. It is 2 true that “co-workers’assessment[s]” of a plaintiff’s work should be considered because they 3 can be “clearly probative of pretext.” EEOC v. Boeing, 577 F.3d 1044, 1051 (9th Cir. 2009) 4 (adopting view set forth in and quoting Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1174 5 (10th Cir. 2003)). However, the assessments proffered by Plaintiff are too generic in nature 6 7 8 and too removed in time (having been solicited by Plaintiff three years after the promotion decision in question) to be probative of any inference of racial discrimination. 9 10 As the Ninth Circuit Court of Appeals has noted, “mere allegation and speculation do not create a factual dispute for purposes of summary judgment.” Nelson v. Pima Community 11 College, 83 F.3d 1075, 1081-82 (9th Cir. 1996). It is not enough for Ms. Jordan to merely 12 13 point out that Jennifer, a white candidate (who was determined by an unbiased panel to be 14 equally qualified as Ms. Jordan) was promoted and she was not.8 Schiff v. City & County of 15 San Francisco, 528 Fed. Appx. 743, 745-46, 2013 U.S. App. LEXIS 12374, *3-4 (9th Cir. 16 2013). For all of the reasons discussed herein, Plaintiff fails to demonstrate pretext, and 17 18 Defendants’ motion for summary judgment on this claim is granted. 19 2. Title VII Retaliation 20 The Court next turns to Plaintiff’s retaliation claim. In order to state a claim for 21 retaliation under Title VII, Plaintiff must show: (1) that she committed a protected act, such as 22 complaining about discriminatory practices; (2) that she suffered some sort of adverse 23 24 employment action; and (3) the protected activity was the “but-for” cause of the adverse 8 25 26 27 28 During oral argument, Plaintiff’s counsel acknowledged the diversity of Norma’s employees, and then asserted as evidence of pretext that Norma “really had to reach” to find a white candidate to promote over Plaintiff. This assertion is nonsensical given the context of the way in which candidates were presented to Norma for consideration. Out of the nine people who applied for the position, only three were chosen for interviews, and the interview panel ultimately recommended Plaintiff and Jennifer. This is not a case where Norma hand-selected Jennifer from all of her employees, on her own, and then promoted her. ORDER PAGE - 14 1 employment action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2 2521, 186 L. Ed. 2d 503 (June 24, 2013); Davis v. Team Elec Co., 520 F.3d 1080, 1093-94 (9th 3 Cir. 2008). But-for causation may be “inferred from circumstantial evidence, such as the 4 employer’s knowledge that the plaintiff engaged in protected activities and the proximity in 5 time between the protected action and the allegedly retaliatory employment decision.” Yartzoff 6 7 v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); Ray v. Henderson, 217 F.3d 1234, 1244 (9th 8 Cir. 2000) (“That an employer’s actions were caused by an employee’s engagement in 9 protected activities may be inferred from proximity in time between the protected action and 10 the allegedly retaliatory employment decision.”). See also Clark Cnty. Sch. Dist. v. Breeden, 11 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (providing that for an 12 13 employee to establish causation in a prima facie case of retaliation only on the basis of 14 “temporal proximity between an employer’s knowledge of protected activity and an adverse 15 employment action, . . . the temporal proximity must be very close”). 16 a. Prima Facie Claim 17 18 In this case, Plaintiff alleges she was not promoted after and because she made an 19 informal EEO complaint against Norma Johnson. Ms. Jordan’s evidence supporting her 20 retaliation claim largely overlaps with the evidence supporting her discrimination claim. 21 Plaintiff alleges an actionable adverse employment action (failure to promote her to an I-band 22 manager position) that occurred within months after she engaged in protected activity. As 23 24 noted above, Plaintiff filed an informal EEO complaint in April of 2011. Dkts. #51, Ex. P and 25 #52 at ¶ 7. She resolved the complaint through mediation on June 14, 2011. Dkt. #51, Ex. P. 26 Just a few weeks later, approximately two months after she initiated her complaint (and a few 27 weeks after resolving it), Plaintiff applied for a promotion. On August 2, 2011, she was 28 ORDER PAGE - 15 1 informed that she would not receive it. Although Defendant argues that this time period does 2 not rise to the “but for” causation standard, the Court finds that given the close proximity in 3 time and Norma’s awareness (and actually being the object of) of her protected activity, 4 Plaintiff has arguably established the causation element of her prima facie case. 5 b. Legitimate, Non-Retaliatory Reason for Failure to Promote 6 7 As with her discrimination claim, once Plaintiff successfully establishes a prima facie 8 case of retaliation, the burden of production shifts to the employer to present a legitimate, 9 nonretaliatory reason for undertaking the adverse employment actions. Ray, 217 F.3d at 1240. 10 Here, the FAA asserts that Norma denied Plaintiff a promotion because Jennifer was equally 11 qualified as Ms. Jordan, and because Jennifer performed “exceptionally” when she was 12 13 temporarily placed in the position. Dkt. #49, Ex. O, Response to Interrogatory No. 6. Further, 14 Norma had previously provided Ms. Jordan with a temporary promotion, and Ms. Jordan does 15 not dispute that she told Norma the position was “over her head and overwhelming” to her. See 16 Dkts. #49, Ex. A at 45:15-24 and #50. These are legitimate, nonretaliatory reasons for 17 18 undertaking the adverse employment action. Defendant has therefore met its burden of 19 production, and the burden now shifts back to Plaintiff to show that Defendant’s proffered 20 reason for undertaking the adverse employment actions is pretext for retaliation. Ray, 217 F.3d 21 at 1240. 22 c. Pretext 23 24 For the same reasons discussed above, Plaintiff has not proffered sufficient evidence of 25 pretext. While she may have established a prima facie case of retaliation on the basis of her 26 EEO complaint, she has failed to persuade the Court that the complaint had any relation to the 27 reason she was not promoted. In light of Ms. Jordan’s performance in her previous I-band 28 ORDER PAGE - 16 1 position and Jennifer’s exceptional performance in the I-band position at issue in this case, the 2 Court believes that no reasonable jury could find that Plaintiff would have been promoted “but 3 for” her EEO complaint. See Nassar, 133 S. Ct. at 2533. 4 Nor has Plaintiff convinced the Court that Defendant’s reasons for its adverse 5 employment action are unworthy of credence. As discussed above, Plaintiff fails to show that 6 7 Defendant’s legitimate, non-discriminatory reasons for taking adverse employment actions are 8 pretextual. Accordingly, Defendants’ motion for summary judgment on this claim is also 9 granted. 10 IV. CONCLUSION 11 Having reviewed Defendant’s motion, the opposition thereto and reply in support 12 13 thereof, along with the supporting declarations and exhibits and the remainder of the record, the 14 Court hereby FINDS AND ORDERS: 15 1. Defendant’s Motion for Summary Judgment (Dkt. #47) is GRANTED and 16 Plaintiff’s complaint is dismissed in its entirety. 17 18 19 2. This case is now CLOSED. DATED this 11th day of May, 2015. 20 A 21 22 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 ORDER PAGE - 17
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