Brown v. Dignity Health

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Lance Brown, No. CV-18-03418-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Dignity Health, 13 Defendant. — 14 — 15 At issue is Defendant Dignity Health’s Motion for Summary Judgment (Doc. 52, 16 MSJ), to which Plaintiff Lance Brown filed a Response (Doc. 56, Resp.) and Defendant 17 filed a Reply (Doc. 59, Reply). The Court has reviewed the parties’ briefs and finds this 18 matter appropriate for decision without oral argument. See LRCiv 7.2(f). For the reasons 19 set forth below, the Court will grant Defendant’s Motion for Summary Judgment under 20 Federal Rule of Civil Procedure 56(c). 21 I. BACKGROUND 22 In March 2016, Defendant Dignity Health hired Plaintiff Lance Brown, an African 23 American, to work as a Rehab Technician in the Neuro Rehabilitation Department at 24 St. Joseph’s Hospital and Medical Center (SJHMC). In March 2018, Plaintiff’s co-worker, 25 Elva Lafforthun, complimented him in the presence of Marsha Branche-Spelich, the 26 department manager and Plaintiff’s supervisor. Plaintiff alleges that Branche-Spelich then 27 “slapped [him] in the face three times, and grabbed [him] by [his] cheek and called [him] 28 a good boy.” While the incident did not physically hurt Plaintiff or leave a mark on his 1 cheek, Plaintiff claims that Branche-Spelich calling him a “good boy” was racially 2 motivated. (Doc. 1, Compl. ¶ 14.) Plaintiff asserts that Branche-Spelich’s use of the phrase 3 “good boy” was tantamount to the tradition of Caucasians calling African American males 4 “boy” in order to degrade and belittle them. (Resp. at 2.) Branche-Spelich claims that she 5 used the phrase “good boy” to indicate agreement with Lafforthun’s compliment and that 6 her action was a gentle touch of Plaintiff’s face. (Doc. 53, Def.’s Statement of Facts 7 (DSOF) ¶¶ 27–28.) 8 Plaintiff reported the incident to Stephanie Kern, Senior Human Resources 9 Consultant. Plaintiff alleges he requested that Kern keep his complaint confidential, 10 transfer him to a different department, protect him from retaliation, and terminate his 11 supervisor. (Doc. 58, Pl.’s Statement of Facts (PSOF) ¶¶ 7–8.) Following Plaintiff’s 12 complaint, Kern spoke with Lafforthun, Branche-Spelich, and Branche-Spelich’s 13 supervisor, Christopher St. Clair. Lafforthun reported that she heard Branche-Spelich’s 14 “praise of [Plaintiff’s] work” the day of the alleged incident but did not see her touch 15 Plaintiff’s face. Kern and St. Clair then met with Branche-Spelich, explaining to her how 16 Plaintiff had perceived her actions and that her conduct was inappropriate. Plaintiff alleges 17 that the steps Kern took indicate that she did not take his complaint seriously and that no 18 disciplinary measures were taken against Branche-Spelich. (Resp. at 2.) Following the 19 March 2018 incident, Branche-Spelich and Plaintiff had minimal contact. Branche-Spelich 20 told Plaintiff that she did not want to be alone with him anymore and preferred to be in the 21 presence of a third party when they were together. 22 In April 2018, Plaintiff picked up some night shifts in his department. The night 23 shift charge nurse reported concerns about Plaintiff’s performance to Branche-Spelich. 24 Specifically, he told her “that there were some issues with [Plaintiff] disappearing for 25 periods of time . . . where they couldn’t find him on the unit, and they were unaware that 26 he was gone off the unit, and that he was not in his assigned area on the unit.” In May, 27 Branche-Spelich learned that Plaintiff had applied for a transfer to a different department. 28 Plaintiff alleges that following the March 2018 incident, his work environment was 1 uncomfortable and he attempted to avoid Branche-Spelich, leading him to seek a transfer. 2 (Resp. at 3.) Ultimately, Branche-Spelich denied Plaintiff’s transfer request. Plaintiff 3 alleges that Branche-Spelich’s denial was retaliation for his report to HR accusing her of 4 race discrimination. (Resp. at 3.) According to Defendant, Branche-Spelich denied 5 Plaintiff’s request because he was still under a corrective action from a written warning 6 issued in January1 for attendance problems and because of the night shift charge nurse’s 7 recent report about his poor performance. (DSOF ¶ 40.) 8 On May 17, 2018, Plaintiff worked as a “sitter.” Sitters monitor patients who have 9 suicidal or homicidal tendencies or patients who may pull out their IVs or other medical 10 equipment. A sitter is required to remain attentive and have eyes on the patient at all times 11 to ensure the patient’s safety. During Plaintiff’s shift, the charge nurse, Tony Crawford12 Jonas, approached him, told him that she believed that he was sleeping, and sent him to the 13 staffing office. The staffing office informed the house manager, Stacy Youngkrantz14 Bricklin, of the situation. Youngkrantz-Bricklin spoke to Crawford-Jonas and another 15 nurse working that evening, Sarah Christopher. Both women reported that they had 16 witnessed Plaintiff sleeping and had to wake him. Youngkrantz-Bricklin completed an 17 observation checklist and was concerned that Plaintiff might be impaired. She requested 18 that Plaintiff take a drug test. Initially, Plaintiff consented to taking a drug test, but when 19 Youngkrantz-Bricklin asked for his car keys, Plaintiff refused to hand them over and left 20 the hospital without being tested. Defendant considers an employee’s refusal to submit to 21 a drug test to be a serious offense. Following the incident, Defendant placed Plaintiff on 22 administrative leave, pending investigation. 23 After Kern learned of the reports of Plaintiff sleeping and his possible impairment, 24 she spoke with Youngkrantz-Bricklin and one of the nurses who claimed that she had 25 observed Plaintiff sleeping and had to wake him. Kern concluded that Plaintiff had been — 26 — 1 Under Defendant’s policy, written warnings are generally in effect for one year. (DSOF — 27 — ¶ 12 .) Also, under Defendant’s policy, an employee who has an active written warning is not eligible to transfer to another department unless the managers of each department — 28 — approve of it. (DSOF ¶ 39.) 1 sleeping on the job. Defendant’s Rules of Conduct specifically provide that “sleeping or 2 the appearance of sleeping” on the job is prohibited and employees may be terminated for 3 such conduct. (DSOF ¶ 68.) Accordingly, Kern recommended that Defendant terminate 4 Plaintiff’s employment. Kern and Branche-Spelich met with Plaintiff and presented him 5 with a termination form that listed refusal to take a drug test and sleeping on the job as the 6 reasons for his termination. Plaintiff objected to listing refusal to take a drug test and Kern 7 agreed to remove it. Plaintiff then agreed to sign the form, which stated that he was 8 terminated for the sole reason of sleeping on the job. Plaintiff claims that during the 9 meeting, Branche-Spelich touched his thigh and told him that his termination had nothing 10 to do with his complaint about her to HR in March. (PSOF ¶ 47.) Also, Plaintiff alleges a 11 discrepancy between how Kern handled the investigation into the accusation that Plaintiff 12 was sleeping, which she purportedly took “very seriously,” and her alleged failure to 13 investigate and take seriously Plaintiff’s accusations against Branche-Spelich. (Resp. at 3.) 14 Kern claims that in her experience working for Defendant, every person discovered 15 sleeping while at work was subsequently terminated. Similarly, Branche-Spelich claims 16 she is aware of only one incident where a sitter who appeared to be sleeping on the job 17 received a final written warning instead of termination. Following that incident, HR 18 informed her that the employee should have been terminated. Over the past five years, 19 Defendant has terminated ten employees for sleeping or the appearance of sleeping on the 20 job. Of these employees, two were Caucasian, three were African American (including 21 Plaintiff), four were Hispanic, and one was multiracial. 22 Plaintiff’s Complaint raises three claims against Defendant: (1) that Defendant 23 subjected him to a hostile work environment based on race in violation of Title VII or — 24 — 42 U.S.C. § 19812 ; (2) that Defendant subjected him to disparate treatment due to his race — 25 — 26 2 In analyzing a claim under Section 1981, “the legal principles [that] guid[e] a court in a Title VII dispute apply with equal force.” Manatt v. Bank of Am., NA, 339 F.3d 792 , 797 — 27 — (9th Cir. 2003). Thus, the standard for establishing a hostile work environment claim is identical whether the claim arises under Section 1981 or Title VII. — 28 — 1 in violation of Title VII and § 19813; and (3) that Defendant retaliated against him for 2 reporting Branche-Spelich’s alleged discriminatory conduct in violation of Title VII. 3 Defendant now moves for summary judgment on all of Plaintiff’s claims. 4 II. LEGAL STANDARD 5 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 6 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 7 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 8 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, — 9 — 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285 , 1288-89 10 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the 11 outcome of the suit under governing [substantive] law will properly preclude the entry of 12 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 13 “genuine issue” of material fact arises only “if the evidence is such that a reasonable jury 14 could return a verdict for the non-moving party.” Id. 15 In considering a motion for summary judgment, the court must regard as true the 16 non-moving party’s evidence if it is supported by affidavits or other evidentiary material. 17 Celotex, 477 U.S. at 324 ; Eisenberg, 815 F.2d at 1289 . The non-moving party may not 18 merely rest on its pleadings; it must produce some significant probative evidence tending 19 to contradict the moving party’s allegations, thereby creating a material question of fact. 20 Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative evidence 21 in order to defeat a properly supported motion for summary judgment); First Nat’l Bank of 22 Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 23 “A summary judgment motion cannot be defeated by relying solely on conclusory 24 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 25 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 26 sufficient to establish the existence of an element essential to that party’s case, and on — 27 — 3 The standard for establishing a race discrimination claim is identical whether the claim — 28 — arises under Section 1981 or Title VII. See Manatt, 339 F.3d at 797 . 1 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 2 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322 ). 3 III. ANALYSIS 4 A. Claim of Hostile Work Environment Based on Race 5 To establish a prima facie case for a hostile work environment claim, Plaintiff must 6 raise a triable issue of fact as to whether (1) Defendant subjected him to verbal or physical 7 conduct based on his race; (2) the conduct was unwelcome; and (3) the conduct was 8 sufficiently severe or pervasive to alter the conditions of his employment and create an 9 abusive working environment. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th 10 Cir. 2008). “Allegations of a racially hostile workplace must be assessed from the 11 perspective of a reasonable person belonging to the racial . . . group of the plaintiff.” Id. 12 Defendant does not dispute that Branche-Spelich’s conduct was unwelcome. Thus, 13 the Court will focus on whether Plaintiff can meet the first and third prongs of the prima 14 facie case for a hostile-work environment claim. 15 1. Verbal or Physical Conduct Based on Race 16 The Supreme Court has made clear that use of “boy” as a moniker “will not always 17 be evidence of racial animus,” and whether the term is discriminatory depends on “various 18 factors, including context, inflection, tone of voice, local custom, and historical 19 usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). “It is the plaintiff's burden to 20 provide evidence beyond his or her own subjective assertions of discrimination suggesting 21 that a facially neutral term or phrase was, in fact, discriminatory.” Robertson v. 22 Dodaro, 767 F.Supp.2d 185 , 2011 WL 768111, at *7 (D.D.C. Mar. 7, 2011) 23 (citing Ash, 546 U.S. at 456 ). 24 Plaintiff alleges that Branche-Spelich’s conduct—slapping Plaintiff’s face three 25 times, grabbing his cheek, and calling him “good boy”—constitutes verbal or physical 26 conduct based on his race. (Resp. at 5.) Defendant contends Branche-Spelich’s use of the 27 phrase “good boy” fails to amount to evidence of conduct based on race and Plaintiff’s claim 28 that the phrase reflected racial animus is unsupported by objective evidence. (MSJ at 5–6.) 1 The Court agrees that Plaintiff fails to proffer evidence sufficient to create a genuine 2 issue of material fact as to whether Defendant’s actions were racially adverse. To begin 3 with, unlike in Ash, here, Branche-Spelich used the phrase “good boy,” not “boy.” Beyond 4 Plaintiff’s subjective feelings of humiliation and anger, Plaintiff fails to point to objective 5 evidence demonstrating that calling an African American male “good boy,” as opposed to 6 just “boy,” always reflects racial animus. While Branche-Spelich’s comment might have 7 offended Plaintiff, the Court must review allegations of a racially hostile workplace “from 8 the perspective of a reasonable person belonging to the racial . . . group of the plaintiff.” 9 Surrell, 518 F.3d at 1108 . This review requires an objective showing of racial hostility. 10 Here, without evidence beyond Plaintiff’s own subjective assertion, Plaintiff fails to 11 establish that Branch-Spelich’s use of “good boy” was in fact racially discriminatory. See 12 Taylor v. AFS Techs., Inc., 2011 WL 1237609 , at *2 (D. Ariz. Apr. 4, 2011) (“[B]ecause 13 [defendant’s] use of the term ‘boy’ was not tied directly to Plaintiff's termination or any 14 other adverse employment action, ‘it is weak evidence and not enough to create an 15 inference of [race] discrimination.’”); Medina v. Donahue, 854 F. Supp. 2d. 733, 751–52 16 (N.D. Cal. 2012) (concluding the plaintiff failed to establish a prima facie case of a hostile 17 work environment because the plaintiff “presented no evidence of hostile conduct based 18 on race besides her conclusory ‘gut feeling’”). Because the only evidence of race 19 discrimination is Plaintiff’s “gut feeling,” no reasonable jury could find that the one-time 20 occurrence of Branche-Spelich calling Plaintiff “good boy” amounted to race 21 discrimination. 22 Plaintiff argues that Branche-Spelich’s comment cannot be viewed alone and must 23 be viewed in connection to her physical conduct. (Resp. at 6.) However, to the extent a 24 context argument can be made, it favors Defendant. Branche-Spelich called Plaintiff “good 25 boy” after a coworker complimented him for his work performance. (See Doc. 57, Pl.’s 26 Controverting Statement of Facts (PCSOF) ¶ 21.) The evidence conclusively demonstrates 27 that Branche-Spelich intended to build Plaintiff up rather than cut him down. Other than 28 Plaintiff’s “gut feeling,” no evidence points to Branche-Spelich’s conduct making her 1 comment racially charged. As Defendant amply demonstrates, the cases Plaintiff cites are 2 factually distinct and do not support his claim. In Hodges v. CGI Federal Defense & 3 Intelligence, the court concluded that the question, “Any word on our boy?” could 4 “conceivably be racially changed” given the context: an email between supervisors 5 regarding the plaintiff’s termination. 2014 WL 5528228 , at *9 (D. Haw. Oct. 31, 2014). 6 And in Jackson v. ABC Nissan, the court found evidence of racial discrimination where the 7 plaintiff’s two supervisors each referred to him as “boy” “more than ten times” in a 8 workplace where “racial slurs . . . were made on a regular basis,” and the plaintiff 9 confronted his supervisors about how the use of the term was disrespectful, but they 10 continued to use the term anyway. 2006 WL 2256908 , at *2, *9 (D. Ariz. Aug. 4, 2006). 11 Conversely, here, Branche-Spelich called Defendant “good boy” in a context that paints 12 the use of the phrase as a compliment, and the phrase was used once in a workplace without 13 a history of racially charged language. To the extent that context clarifies the meaning of 14 Branche-Spelich’s comment, it cuts against Plaintiff’s claim that her calling him “good 15 boy” implicates racial animus. 16 Finally, citing McGinest v. GTE Service Corp., Plaintiff claims that Defendant’s 17 failure to take seriously and formally investigate Plaintiff’s allegation is evidence of 18 conduct based on race. 360 F.3d 1103 (9th Cir. 2004). Defendant contends that the 19 comparison to McGinest is inapt because that case simply holds that an employer cannot 20 escape liability for coworker harassment when it neglects to take appropriate steps to 21 remedy reports of harassment. (Reply at 4 (citing McGinest, 360 F.3d at 1120–21).) The 22 Court agrees with Defendant. Contrary to Plaintiff’s assertion, an employer’s inadequate 23 remedial measures cannot be used as evidence of racially adverse conduct. See McGinest, 24 360 F.3d at 1120–21. Moreover, unlike in McGinest, Defendant’s response—speaking with 25 the employee who witnessed the interaction and then counseling Branche-Spelich about 26 her conduct—proved effective. Plaintiff brought no subsequent complaints and does not 27 allege any additional incidents involving Branche-Spelich.4 (DSOF ¶ 32.) In sum, based 28 4 Plaintiff’s conclusory statement that he did not return to HR with additional complaints 1 on the evidence, no reasonable jury could conclude that Plaintiff experienced a hostile work 2 environment based on race. Thus, his claim fails as a matter of law. 3 2. Severe or Pervasive Conduct 4 Even if Plaintiff succeeded in proving that he suffered racially discriminatory 5 conduct, he cannot show that the conduct was severe or pervasive. In assessing the third 6 prong of the prima facie case for a hostile-work environment claim, the conduct must be 7 severe and pervasive enough to both subjectively and objectively create an abusive 8 environment. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). While there is 9 no exact test to determine whether the environment is objectively abusive, factors to 10 consider include the frequency and severity of the conduct. Harris v. Forklift Sys., Inc., — 11 — 510 U.S. 17 , 22–23 (1993). “[I]solated incidents (unless extremely serious) will not amount 12 to discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City 13 of Boca Raton, 524 U.S. 775, 778 (1998). Although “an isolated incident of harassment by 14 a co-worker will rarely . . . give rise to a reasonable fear” that the harassment is a permanent 15 condition of employment, an employer may be liable if the plaintiff shows that she feared 16 she “would be subject to such misconduct in the future because . . . [defendant] tolerated” 17 the harasser’s conduct. Brooks v. City of San Mateo, 229 F.3d 917 , 923–24 (9th Cir. 2000). 18 Plaintiff’s allegations regarding the March 2018 incident, even if true, are 19 insufficient to rise to the level of severe or pervasive conduct. As discussed above, 20 Plaintiff’s evidence is insufficient to demonstrate that Branche-Spelich’s comment, “good 21 boy,” was racially charged. Furthermore, while Plaintiff alleges that Branche-Spelich 22 slapped him in the face three times, he admits that the “slaps” did not harm him or leave a 23 mark, and an employee who witnessed the event reported that she did not recall seeing the 24 alleged slaps. (PCSOF ¶¶ 21, 26.) The case law makes clear that a single, isolated incident 25 of harassment must be “extremely serious” to create an abusive working environment. 26 Faragher, 524 U.S. at 778 ; compare Brooks, 229 F.3d at 926–27 (single incident in which — 27 — because it had mishandled his complaint against Branche-Spelich, without more, does not demonstrate that he experienced additional discriminatory behavior at the hands Branche28 Spelich or any other employee of Defendant. (See PSOF ¶ 48.) 1 fellow employee touched plaintiff's stomach and then her breast under her sweater did not 2 constitute severe or pervasive conduct)5; and Perez v. Norwegian-Am. Hosp. Inc., 93 F. 3 App’x. 910, 914 (7th Cir. 2004) (single instance of colleague slapping plaintiff on the 4 buttocks not objectively abusive); with Al Dabbagh v. Greenpeace, Inc., 873 F. Supp. 1105 , 5 1108 (N.D. Ill. 1994) (single incident was held to be sufficient where the assailant “slapped 6 [plaintiff], tore off her shirt, beat her, hit her on the head with a radio, choked her with a 7 phone cord and ultimately forced her to have sex with him”). Situated in this case law, the 8 evidence Plaintiff has presented falls well short of the “extremely serious” threshold 9 necessary for an isolated incident to create an objectively abusive workplace. 10 Plaintiff’s claim that Defendant failed to “formally investigate” his complaint and 11 take action to protect him from further discrimination and retaliation does not change this 12 conclusion. To the extent the evidence even begins to support Plaintiff’s claim, an 13 employer’s failure to investigate a claim of harassment does not constitute evidence of 14 racially hostile conduct, as discussed above. 15 Moreover, contrary to Plaintiff’s claim, Ellison v. Brady does not support his 16 assertion that the mere continued presence of Branche-Spelich contributed to an abusive 17 work environment. 924 F.2d 872 (9th Cir. 1991). Ellison establishes that “in some cases 18 the mere presence of an employee who has engaged in particularly severe or pervasive 19 harassment can create a hostile working environment.” Id. at 883 (emphasis added). 20 Plaintiff’s reliance on Ellison is misplaced because he has failed to prove that Branche21 Spelich engaged in severe or pervasive harassment in the first instance. 22 Finally, the Court agrees with Defendant that the denial of Plaintiff’s transfer 23 request, upon which he bases his discrimination and retaliation claims, cannot also provide 24 the basis for his hostile workplace claim. (See Reply at 5–6.) The denial of Plaintiff’s 25 transfer request is a discrete act. The controlling case law makes clear that a discrete act is 26 not the kind of conduct that supports hostile work environment claims. See National R.R. 27 5 “Because the elements to prove a hostile work environment are the same for both racial harassment and sexual harassment, cases analyzing both types of harassment are relevant — 28 — to [the] analysis.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). 1 Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims are 2 different in kind from discrete acts. Their very nature involves repeated conduct.”); Rekow 3 v. Sebelius, 2011 WL 1791272 , at *3 (D. Ariz. May 11, 2011) (“Because the Supreme 4 Court has explicitly differentiated between discrete employment acts and a hostile work 5 environment, many courts have concluded that a discrete act cannot be part of a hostile 6 work environment claim.”); Moore v. King Cty. Fire Prot. Dist. No. 26, 2005 WL 2898065 , 7 at *3 (W.D. Wash. Oct. 31, 2005) (“Morgan compels the conclusion that the universe of 8 ‘discrete acts,’ each of which could support a separate retaliation claim, is mutually 9 exclusive of the universe of acts that can comprise a hostile work environment claim.”). In 10 sum, for the additional reason that Plaintiff’s evidence is insufficient to demonstrate the 11 severe-and-pervasive prong of the hostile work environment claim, the claim fails as a 12 matter of law. 13 B. Disparate Treatment Claim 14 In order to show disparate treatment under Title VII, Plaintiff must first establish a 15 prima facie case of discrimination as the United States Supreme Court set forth in 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Specifically, [Plaintiff] must 17 show that (1) [Plaintiff] belongs to a protected class; (2) [Plaintiff] was qualified for the 18 position; (3) [Plaintiff] was subjected to an adverse employment action; and (4) similarly 19 situated [members of different race] were treated more favorably . . . .” Villiarimo, 281 20 F.3d at 1062 (citing McDonnell Douglas, 411 U.S. at 802 ). 21 “If the plaintiff establishes a prima facie case, the burden of production—but not 22 persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory 23 reason for the challenged action . . . . If the employer does so, the plaintiff must show that 24 the articulated reason is pretextual ‘either directly by persuading the court that a 25 discriminatory reason more likely motivated the employer or indirectly by showing that 26 the employer’s proffered explanation is unworthy of credence.’” Id. (internal citations and 27 quotations omitted). A plaintiff may rely on circumstantial evidence to demonstrate pretext, — 28 — 1 but such evidence must be both specific and substantial. Id. At the last step, if the plaintiff 2 can show pretext, the only remaining issue is whether discrimination occurred or not. Id. 3 Plaintiff alleges he was performing his job satisfactorily and experienced disparate 4 treatment when Defendant denied his transfer request and terminated him for sleeping on 5 the job. (Resp. at 12.) While Defendant does not dispute that Plaintiff belongs to a protected 6 class and suffered an adverse employment action, Defendant argues that Plaintiff’s claim 7 fails because he was not performing his job satisfactorily. (MSJ at 8.) Even if he was, 8 Defendant argues that Plaintiff fails to produce specific and substantial evidence of 9 disparate treatment. (MSJ at 9.) 10 The Court agrees that Plaintiff fails to create a genuine issue of material fact as to 11 whether he can show a prima facie case of discrimination. Undisputed evidence shows 12 Plaintiff’s job performance was unsatisfactory. In January 2018, Plaintiff received a 13 corrective action for attendance problems, less than six months before his transfer request 14 denial and termination. Defendant considers corrective actions active for one year. 15 Additionally, one month before Branche-Spelich learned of Plaintiff’s transfer request, the 16 night shift charge nurse reported concerns about Plaintiff’s job performance, including 17 issues with him disappearing for periods of time. Finally, prior to his termination, and the 18 principal cause of it, Plaintiff was reported to have been sleeping while working as a 19 sitter—an offense that warrants immediate termination under Defendant’s policies. The 20 evidence thus shows that at the time Plaintiff experienced adverse employment actions, he 21 was not performing his job satisfactorily. See Nganje v. CVS RX Servs., Inc., 2015 WL 22 4173269, at *9 (D. Ariz. July 10, 2015) (granting summary judgment dismissing disparate 23 treatment claim because “[g]iven the discipline plaintiff received in 2010–2012 and the 24 ‘needs improvement’ performance evaluation she received in 2012, no reasonable jury 25 could conclude that she was performing her job satisfactorily”). 26 Plaintiff’s evidence is also insufficient to demonstrate the fourth element of the 27 prima facie case because he has made no showing of disparate treatment. Plaintiff did not 28 even attempt to identify a single employee whose transfer request was granted—let alone 1 a similarly-situated employee outside of his protected class. See Jones v. Bayer Healthcare 2 LLC, 302 F. App’x 590, 591 (9th Cir. 2008). Plaintiff claims Defendant’s reasons for 3 denying his transfer request were pretextual and HR stonewalled his transfer attempts. 4 Even if true, these facts in no way constitute evidence of disparate treatment. 5 Similarly, Plaintiff fails to create a genuine issue of material fact as to whether his 6 termination constituted disparate treatment. Plaintiff contends that evidence of disparate 7 treatment exists because Defendant had previously not terminated one employee who, like 8 him, was accused of sleeping on the job. (Resp. at 14.) Fatal to Plaintiff’s contention, 9 however, is that he fails to indicate this employee’s race. (See Resp. at 14.) Consequently, 10 the Court has no way of knowing whether disparate treatment actually occurred. In any 11 event, the facts in the incident that Plaintiff references are dissimilar from those alleged in 12 the incident involving him. In that incident, a nurse seen holding a baby with her eyes 13 closed explained that she had closed her eyes to help her listen to the baby’s heartbeat. 14 (DSOF ¶ 81.) Unlike Plaintiff, the employee had a legitimate reason for having her eyes 15 closed and erased any suspicion she was asleep. 16 Moreover, Defendant provides ample evidence that similarly situated employees 17 outside of Plaintiff’s protected class were, in fact, treated in the exact same manner as him. 18 During the past five years at SJHMC, Defendant terminated two Caucasian employees, 19 four Hispanic employees, three African American employees (including Plaintiff), and one 20 multiracial employee for sleeping or the appearance of sleeping on the job. (DSOF ¶ 87.) 21 See Nelson v. Quality Foods Ctrs., Inc., 368 F. App’x 817, 819 (9th Cir. 2010) (The 22 plaintiff failed to establish prima facie case where two other store managers were “like 23 Nelson, transferred to another store following a substandard performance review, and then 24 demoted when the store closed. These individuals . . . are ‘similarly situated’ to Nelson and 25 were not treated more favorably than Nelson.”). In sum, Plaintiff fails to establish a prima 26 facie case of discrimination because he provides no evidence, much less specific and 27 substantial evidence, that similarly situated employees outside of his protected class 28 received more favorable treatment. 1 Plaintiff alleges two more incidents of disparate treatment, but neither one 2 constitutes an adverse employment action and thus cannot be grounds for a disparate 3 treatment claim. Plaintiff alleges that Defendant conducted a thorough investigation of the 4 report of him sleeping despite not taking seriously or investigating his complaint against 5 Branche-Spelich. (Resp. at 14.) Even if the evidence supported this allegation, the Court 6 agrees with Defendant—and Plaintiff cites no authority to the contrary—that an inadequate 7 investigation is not an adverse employment action under Title VII. Taylor, 2011 WL 8 137609, at *4, n.3 (failure to investigate does not constitute a materially adverse action 9 sufficient to support Title VII retaliation claim); Cozzi v. Cty. of Marin, 787 F. Supp. 2d 10 1047, 1069 (N.D. Cal. 2011) (“the failure to conduct an adequate investigation after an 11 alleged act of discrimination cannot be . . . considered an action that reasonably would 12 deter an employee from engaging in the protected activity under Title VII”). Likewise, the 13 fact that Branche-Spelich has not called any non-Black employee a good boy and “slapped” 14 their face is irrelevant because the March 2018 incident is not an adverse employment 15 action for the purposes of a Title VII disparate treatment claim. 16 Even if Plaintiff succeeded in meeting his burden of establishing a prima facie case, 17 his claim of disparate treatment would still fail because the evidence shows Defendant had 18 legitimate, nondiscriminatory reasons for its actions, and Plaintiff failed to show these 19 reasons were pretextual. Defendant denied Plaintiff’s transfer request because he had an 20 active corrective action and Branche-Spelich had concerns about his performance on the 21 night shift. Plaintiff was terminated because he was caught sleeping on the job as a sitter. 22 Plaintiff does not dispute—nor could he under Defendant’s policies—that these are 23 legitimate reasons supporting Defendant’s actions. See, e.g., Nguyen v. Dept. of Navy, 412 24 F. App’x 926, 929 (9th Cir. 2011) (finding that plaintiff’s “low performance ratings and 25 complaints from her customers, poor attendance and habitual tardiness, misuse of the 26 government telephones and computers . . .” were legitimate, nondiscriminatory reasons). 27 Nor does Plaintiff point to evidence showing the reasons for his termination were 28 pretextual. (See Resp. at 11–15.) Plaintiff does allege that an email Branche-Spelich wrote 1 demonstrates that Plaintiff’s corrective action and performance concerns were pretext for 2 blocking his transfer request. However, Plaintiff mischaracterizes the facts. The very email 3 Plaintiff relies on for support—especially when placed in context of the entire email 4 correspondence—shows that the corrective action and “other performance issues” 5 counseled against allowing Plaintiff’s transfer. (Doc. 58-4 at 146–52.) In refuting 6 allegations of pretext, “courts only require that an employer honestly believed its reasons 7 for its actions, even if its reason is foolish or trivial or even baseless.” Villiarimo v. Aloha 8 Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). Beyond conclusory statements, 9 Plaintiff fails to provide any evidence that Defendant did not genuinely believe its stated 10 reasons for denying his transfer. Thus, in addition to failing to establish a prima facie case, 11 Plaintiff’s disparate treatment claim is defeated as a matter of law at the burden shifting 12 stage. The Court will therefore grant Defendant’s request for summary judgment on 13 Plaintiff’s Title VII claim of disparate treatment. 14 C. Retaliation Claim 15 Pursuant to the McDonnell Douglas framework governing Title VII retaliation 16 claims, “a plaintiff must first establish a prima facie case of retaliation.” Cheeks v. Gen. 17 Dynamics, 22 F. Supp. 3d 1015, 1035 (D. Ariz. 2014) (citing McDonnell Douglas Corp. v. 18 Green, 411 U.S. 792, 802 (1973)). To establish a prima facie case of retaliation, a plaintiff 19 must show that “(1) he engaged in a protected activity; (2) he suffered an adverse 20 employment decision; and (3) there was a causal link between the protected activity and 21 the adverse employment decision.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 , 22 1064 (9th Cir. 2002). “If [the plaintiff] provides sufficient evidence to show a prima facie 23 case of retaliation, the burden then shifts to the [defendant] to articulate a legitimate, non24 retaliatory reason for its actions.” Porter v. California Dep’t of Corr., 419 F.3d 885 , 894 25 (9th Cir. 2005) (citing Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000)). “Once the 26 defendant has presented a purpose for the action, the plaintiff bears the ultimate burden of 27 providing evidence that the defendant’s reason is ‘merely a pretext for a retaliatory 28 motive.’” Cheeks, 22 F. Supp. 3d at 1035 (quoting Porter, 419 F.3d at 894 ). 1 An employee engages in a “protected activity” when the employee complains about 2 or protests conduct that the employee reasonably believes constitutes an unlawful 3 employment practice. See Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 526 (9th Cir. 1994). 4 For the purposes of a retaliation claim, an adverse employment action is an action that “is 5 reasonably likely to deter employees from engaging in protected activity.” Ray v. 6 Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Plaintiff must also prove that any adverse 7 actions were caused by his protected activity. The Supreme Court has established that 8 “retaliation claims must be proved according to traditional principles of but-for causation,” 9 which “requires proof that the unlawful retaliation would not have occurred in the absence 10 of the alleged wrongful action or actions of the employer.” Univ. of Texas S.W. Med. Ctr. 11 v. Nassar, 133 S.Ct. 2517, 2533 (2013). 12 The first two prongs of Plaintiff’s prima facie case are undisputed. Regarding the 13 causation prong, Plaintiff asserts it is satisfied alone by the temporal proximity between 14 Plaintiff’s report to HR and Defendant’s denial of his transfer request and his eventual 15 termination. (Resp. at 15–16.) Defendant argues that, despite temporal proximity, Plaintiff 16 fails the causation prong because of significant intervening events that break the chain of 17 causation. (MSJ at 13.) The Court agrees with Defendant. There is no evidence that 18 Plaintiff’s report to HR was a motivating factor in Defendant’s decision to deny Plaintiff’s 19 transfer request and terminate him, much less the but-for cause of these decisions. Rather, 20 the undisputed evidence shows that the intervening events of a poor performance report 21 from the night shift charge nurse, combined with his corrective action, informed Branche22 Spelich’s decision to deny Plaintiff’s transfer request, and reports of Plaintiff sleeping at 23 work caused his termination. Indeed, Plaintiff admits that Branche-Spelich explicitly told 24 him that his report to HR had nothing to do with his termination. (PSOF ¶ 47.) Given the 25 significant intervening events, Plaintiff cannot produce sufficient evidence to create a 26 genuine issue of fact as to whether a causal link exists between Plaintiff’s report to HR and 27 Defendant’s adverse employment actions. See Phillips v. Victor Cmty. Support Servs., Inc., — 28 — 692 F. App’x 920, 922 (9th Cir. 2017) (concluding the plaintiff’s “violations of [the 1 defendant’s] procedure and failure to timely renew her license . . . create intervening causes 2 that disrupt any inferences of a direct causal link”). 3 In any event, even if Plaintiff succeeded in proving his prima facie case, Plaintiff’s 4 retaliation claim would fail for the same reasons his disparate treatment claim fails. As in 5 his discrimination claim, Plaintiff purports that Branche-Spelich’s emails reveal that the 6 proffered reasons for denying his transfer were pretextual. As articulated above, Branche7 Spelich’s emails substantiate Defendant’s claim that she did not agree to transfer Plaintiff 8 because he was on corrective action and had received a report of poor performance. 9 Plaintiff has mischaracterized the facts and has pointed to no evidence to show pretext for 10 his retaliation claim. 11 Likewise, Plaintiff cannot show that the reason for his termination—sleeping on the 12 job—was pretextual. Two different employees reported to Youngkrantz-Bricklin that they 13 witnessed Plaintiff sleeping. Kern spoke with Youngkrantz-Bricklin and one of the 14 witnesses. Plaintiff presents no evidence that Kern did not honestly believe the accounts of 15 those individuals. See Villiarimo, 281 F.3d at 1063 . Nor does he attempt to offer any 16 evidence challenging the legitimacy of these reports—both of which were made by 17 employees unaware of Plaintiff’s complaint against Branche-Spelich. Plaintiff fails to 18 present any evidence that the decision-makers did not honestly believe their reasons for his 19 termination. 20 Finally, Plaintiff claims that he suffered retaliation when Defendant refused to allow 21 him to share his side of the story before his termination. Plaintiff contrasts his treatment 22 with that of the nurse who was discovered in the NICU with her eyes closed while holding 23 an infant and was ultimately not terminated after explaining the reason for closing her eyes. 24 Here, Plaintiff conflates his retaliation claim with his discrimination claim. The Court has 25 already explained why this evidence failed to show disparate treatment. See Taylor, 2011 26 WL 137609 , at *4, n.3; Cozzi, 787 F. Supp. 2d at 1069 . Likewise, it is insufficient evidence 27 to prove retaliation. — 28 — 1 For all the foregoing reasons, Plaintiff has failed to raise a genuine issue of material fact in regard to his retaliation claim. The Court will therefore grant Defendant’s request 3 || for summary judgment on this claim. 4|| IV. CONCLUSION 5 The Court grants Defendant Dignity Health’s Motion for Summary Judgment on all 6 || three of Plaintiff’s claims arising under Title VII and 42 U.S.C. § 1981 . Plaintiff fails to 7\| produce sufficient evidence to create a genuine issue of material fact as to whether he was 8 || subjected to a hostile work environment, experienced disparate treatment, or suffered retaliation. 10 IT IS THEREFORE ORDERED granting Defendant Dignity Health’s Motion for |} Summary Judgment (Doc. 52) on all of Plaintiff Lance Brown’s claims. 12 IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment 13 || accordingly and close this case. 14 Dated this 19th day of June, 2020. CN 16 wefehlee— United State#District Judge — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -18-