Wilson v. Central Arizona Water Conservation District

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Sharon Wilson, et al., No. CV-18-04216-PHX-JJT 10 Plaintiffs, ORDER 11 v. 12 Central Arizona Water Conservation District, [13] 14 Defendant. 15 At issue is Defendant Central Arizona Water Conservation District’s (“CAWCD”) 16 Motion for Summary Judgment (Doc. 58, MSJ), to which Plaintiff Sharon Wilson filed a 17 Response1 (Doc. 64, Resp.), and Defendant filed a Reply (Doc. 69, Reply). Plaintiff has 18 two remaining claims in this lawsuit: (Count 1) Retaliation in Violation of Title VII of the 19 Civil Rights Act of 1964 (Title VII), as amended 42 U.S.C. § 2000e et seq.; and (Count 3) 20 Employment Discrimination Based on Sex in Violation of Title VII.2 For the reasons that 21 follow, the Court grants summary judgment to Defendant on Plaintiff’s remaining claims. [22] 1 Defendant argues Plaintiff’s husband is not a proper party to the claims asserted in [23] the lawsuit under 42 U.S.C. § 2000e–2(a)(1) and 29 U.S.C. § 630 (f). Plaintiff’s husband, 24 Loren Wilson, was not employed at CAWCD, and Defendant argues he should be dismissed as a party. (MSJ at 6.) Plaintiff concedes that Loren Wilson was not employed 25 by CAWCD, and Plaintiff does not object to removing Loren Wilson as a party. (Resp. 26 at 1.) The Court will therefore dismiss Loren Wilson’s claims in this lawsuit. 27 2 Plaintiff’s Complaint (Doc. 1) alleges Defendant discriminated against her under four separate theories: (1) Retaliation in Violation of Title VII; (2) Employment [28] Discrimination Based on Religion in Violation of Title VII; (3) Employment 1 I. BACKGROUND 2 The following facts are undisputed unless otherwise indicated. Plaintiff Sharon 3 Wilson, a female, brings employment-related sex discrimination and retaliation claims 4 against her former employer, Defendant CAWCD. Defendant contends that its actions did 5 not constitute discrimination or retaliation and it terminated her employment due to 6 ongoing behavior issues. 7 A. Plaintiff’s Employment History with Defendant 8 Defendant hired Plaintiff in February 2011 as an IT Infrastructure Supervisor. 9 (Doc. 59, Def.’s Statement of Facts (“DSOF”) ¶ 2; Pl.’s Resp. to DSOF ¶ 2.) Plaintiff was 10 employed by Defendant until 2018, when she retired in lieu of termination. (DSOF ¶ 2; 11 Pl.’s Resp. to DSOF ¶ 2.) Plaintiff reported to Phil Cook from 2011 to 2016 and then to 12 Michael Ajamie. (DSOF ¶¶ 4–5; Pl.’s Resp. to DSOF ¶¶ 4–5.) During the relevant time 13 period, Mr. Ajamie had eight direct reports, three of which were supervisors. (DSOF ¶ 6; 14 Pl.’s Resp. to DSOF ¶ 6.) The three supervisors who reported to Mr. Ajamie were Plaintiff, 15 who oversaw the IT Infrastructure Department; Greg Brinker, Supervisor of Enterprise 16 Resource Projects; and Chris Santo, Supervisor of Data Integration. (DSOF ¶ 6; Pl.’s Resp. 17 to DSOF ¶ 6.) 18 In the fall of 2016, Plaintiff began sharing details about her plans to retire; 19 specifically, in her 2016 performance review, Plaintiff indicated that she intended to retire 20 in about two years. (DSOF ¶ 16, Ex. 3 at 153:13–16, Ex. 6 at CAP_WILSON 000033, 21 Ex. 14 ¶¶ 5, 15; Pl.’s Resp. to DSOF ¶ 16.) In September 2017, Plaintiff met with [23] Discrimination Based on Sex in Violation of Title VII; and (4) Employment Discrimination 24 Based on Age in Violation of the Age Discrimination in Employment Act (ADEA). In Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Plaintiff agrees that 25 she has insufficient evidence of disparate treatment based on religion or age and her 26 discrimination claim should be limited to discrimination based on sex. (Resp. at 12 n.2.) Accordingly, the Court dismisses Plaintiff’s claims of discrimination based on religion and 27 age and only addresses Plaintiff’s Title VII claims of retaliation (Count 1) and sex discrimination (Count 3) in this Order. [28] 1 Mr. Ajamie and reported issues of harassment about her religion and political views. 2 (Doc. 65, Pl.’s Separate Statement of Facts (“PSOF”) ¶ 1, Ex. B at 98:6–102:6.) In October 3 2017, Plaintiff took her complaint to Mr. Cook discussing the same issues she raised with 4 Mr. Ajamie. (PSOF ¶ 2, Ex. B at 102:10–15, 113:10–17, 117:7–118:8; Ex. C at 62:20– 5 65:5, 92:3–95:25.) 6 B. Plaintiff’s Documented Performance and Behavior 7 Mr. Cook indicated that he had ongoing issues regarding Plaintiff’s behavior and 8 that he addressed issues with Plaintiff verbally in performance reviews and in one-on-one 9 meetings. (DSOF ¶ 20, Ex. 2 at 23:14–24; Pl.’s Resp. to DSOF ¶ 20.) Mr. Cook had also 10 received complaints from other departments about Plaintiff’s behavior. (DSOF ¶ 26, Ex. 2 11 at 74:23–75:8; Pl.’s Resp. to DSOF ¶ 26.) 12 C. Plaintiff’s Performance Evaluation Meeting 13 On December 5, 2017, Plaintiff met with Mr. Ajamie to discuss Plaintiff’s 2017 14 performance review. (DSOF ¶ 45, Ex. 3 at 85:9–22, Ex. 15 at 87:8–88:23; Pl.’s Resp. to 15 DSOF ¶ 45.) A performance review could either be rated “acceptable” or “unacceptable.” 16 (DSOF ¶ 46, Ex. 2 at 25:12–19; Pl.’s Resp. to DSOF ¶ 46.) Plaintiff was given an 17 “acceptable” rating and was provided constructive and positive feedback. (DSOF ¶ 47, Ex. 18 7 at CAP_WILSON 000052–60; Pl.’s Resp. to DSOF ¶ 47.) 19 On December 6, 2017, Mr. Ajamie informed Plaintiff she would receive a 2% merit 20 increase in a lump sum payment. (DSOF ¶ 49, Ex. 3 at 86:3–18, Ex. 15 at 352:17–353:10; 21 Pl.’s Resp. to DSOF ¶ 49.) In 2017-18, merit increases were capped at 3%, which could 22 take the form of a salary increase or lump sum bonus. (DSOF ¶¶ 41–42, Ex. 17 at 23 CAP_WILSON 004545–4546, Ex. 18 at CAP_WILSON 003793; Pl.’s Resp. to DSOF 24 ¶¶ 41–42). Mr. Ajamie had assumed Plaintiff would prefer her merit increase in a lump 25 sum payment because she had expressed an intent to retire in 2018, the following year. 26 (DSOF ¶¶ 49, 77, Ex. 3 at 153:13–16, 154:1–16, Ex. 14 ¶ 15, Ex. 15 at 353:2–10, Ex. 19 27 at CAP_WILSON 000066; Pl.’s Resp. to DSOF ¶ 49.) Plaintiff requested that the merit 28 increase be awarded as an increase in her base pay, and Mr. Ajamie implemented this 1 change. (DSOF ¶¶ 51, 78, Ex. 14 ¶ 16, Ex. 15 at 353:8-14, Ex. 19 at CAP_WILSON 2 000066; Pl.’s Resp. to DSOF ¶ 51.) 3 Plaintiff alleges that she disagreed with her performance evaluation and raise and 4 that when she expressed her concerns and accused Mr. Ajamie of being discriminatory, 5 Mr. Ajamie was defensive and yelled at her, so she left the meeting. (DSFO ¶ 52, Ex. 3 at 6 87:2–21; Pl.’s Resp. to DSOF ¶ 52.) Mr. Ajamie met with HR Manager Mr. Wilson to 7 discuss his meeting with Plaintiff, and Mr. Ajamie told Mr. Wilson that the meeting with 8 Plaintiff did not go well. (DSOF ¶ 54, Ex. 21; Pl.’s Resp. to DSOF ¶ 54.) Mr. Ajamie 9 explained that Plaintiff got upset, complained about other employees, shook the evaluation 10 at him, and yelled at him on several occasions. (DSOF ¶ 54, Ex. 21; Pl.’s Resp. to DSOF 11 ¶ 54.) 12 On January 29, 2018, Plaintiff and Mr. Ajamie met to discuss Plaintiff’s goals for 13 the coming year. (DSOF ¶ 56, Ex. 3 at 104:11–25, Ex. 15 at 319:1–22.) Mr. Ajamie alleges 14 that during this meeting, Plaintiff shouted at him so loudly that other employees could hear. 15 (DSOF ¶ 56, Ex. 2 at 104:4–25, Ex. 15 at 319:1–22.) On January 31, 2018, Mr. Cook met 16 with Bonnie Stone, the Director of Employee Services who oversees the Human Resources 17 Department, to discuss the January 29, 2018 incident. (DSOF ¶ 58, Ex. 2 at 107:13–19, 18 108:13; 309:14–311:25, Ex. 5 ¶¶ 7–8, Ex. 22.) The same day, Plaintiff made a complaint 19 to HR Manager Mr. Wilson that Mr. Ajamie shouted at her and acted in a threatening way 20 during the meeting on January 29. (DSOF ¶ 59, Ex. 5 ¶¶ 10–11.) Plaintiff also explained 21 to Mr. Wilson that Mr. Ajamie engaged in age, gender, religious, and “political” 22 harassment against her. (DSOF ¶ 62, Ex. 24 at CAP_WILSON 000191–192; Pl.’s Resp. to 23 DSOF ¶ 62.) On February 1, 2018, Mr. Ajamie met with Mr. Wilson to discuss the 24 January 29 meeting. (DSOF ¶ 60, Ex. 23 at CAP_WILSON 000193–194; Pl.’s Resp. to 25 DSOF ¶ 60.) 26 D. The First Investigation and Plaintiff’s Subsequent Corrective Action Plan 27 As part of an investigation, Plaintiff told Sandy Robinson, Senior HR Generalist, 28 that her gender discrimination claims stemmed from the fact that Mr. Ajamie would hold 1 meetings with the men on Plaintiff’s staff without notifying her. (DSOF ¶ 83, Ex. 19 at 2 CAP_WILSON 000067.) Plaintiff did not express concerns that her 2017 performance 3 review and raise were based on discrimination nor did she express concerns regarding the 4 January 29, 2018 meeting with Mr. Ajamie.3 (DSOF ¶ 84, Ex. 19 at CAP_WILSON 5 000065.) Plaintiff’s primary concern with the investigation was that she was not aware that 6 her conduct was being investigated in addition to Mr. Ajamie’s.4 (DSOF ¶ 74, Ex. 3 at 7 175:2-5.) 8 As part of the investigation, Gail Ulan and JoAnn McConnaughey, two other female 9 employees, were interviewed, and both stated that they did not think Mr. Ajamie treated 10 men and women differently. (DSOF ¶ 101, Ex. 35 at CAP_WILSON 000082, Ex. 36 at 11 CAP_WILSON 000077; Pl.’s Resp. to DSOF ¶ 101.) After the investigation, HR found 12 that Plaintiff’s allegations were not substantiated, she had engaged in unprofessional 13 conduct, and a Corrective Action was warranted. (DSOF ¶ 106, Ex. 14 ¶ 43, Ex. 39 at 14 CAP_WILSON 000118–121, Ex. 40 at CAP_WILSON 000116–117, Ex. 41 at 15 CAP_WILSON 000113–115.) 16 The Corrective Action issued was a written warning. (DSOF ¶ 106, Ex. 14 ¶ 43, Ex. 17 39 at CAP_WILSON 000118-121, Ex. 40 at CAP_WILSON 000116-117, Ex. 41 at 18 CAP_WILSON 000113-115.) The Corrective Action was written by HR on behalf of and 19 signed by Mr. Ajamie. (DSOF ¶ 108, Ex. 14 ¶ 48, Ex. 15 at 113:1–25, Ex. 43 at 20 CAP_WILSON 000130–133.) On March 15, 2018, Ms. Robinson met with Plaintiff to tell 21 her the findings from the investigation. (DSOF ¶ 107, Ex. 14 ¶ 46; Pl.’s Resp. to DSOF ¶ 22 107.) Plaintiff disagreed with the findings and insisted that the people interviewed had been 23 untruthful. (DSOF ¶ 107, Ex. 14 ¶ 46, Ex. 42; Pl.’s Resp. to DSOF ¶ 107.) 24 On April 4, 2018, Plaintiff appealed the Corrective Action by submitting an internal 25 grievance called a CAP Resolve. (DSOF ¶ 113; Pl.’s Resp. to DSOF ¶ 113.) Plaintiff did 26 not provide new information and claimed the investigation was retaliatory for her [27] 3 Although Plaintiff purports to dispute this, no evidence supports her position. [28] 4 Plaintiff again purports to dispute this, but the evidence does not support her position. 1 complaint alleging Mr. Ajamie discriminated against her. (DSOF ¶¶ 63, 113, Ex. 25 at 2 000135–137; Pl.’s Resp. to DSOF ¶¶ 63, 113.) Plaintiff amended the CAP Resolve twice, 3 on April 19, 2018, and May 2, 2018. (DSOF ¶¶ 63, 113, Ex. 25 at 000135–137, Ex. 44 at 4 CAP_WILSON 000174–177, Ex. 45 at CAP_WILSON 000179–181, Ex. 47 at 244:13–18; 5 Pl.’s Resp. to DSOF ¶¶ 63, 113.) 6 E. The Second Investigation 7 On April 19, 2018, Plaintiff met with Aaron Favata and Steve Tillman, her 8 subordinates, who were identified in the Corrective Action, separately. (DSOF ¶ 114; Pl.’s 9 Resp. to DSOF ¶ 114.) Later that month, HR Manager Mr. Wilson interviewed Mr. Favata, 10 Mr. Tillman, Plaintiff, and several other employees who reported to Plaintiff as part of the 11 second investigation. (DSOF ¶ 119, Ex. 20 at 163:17–24, Ex. 49 at WILSON 000001–4, 12 Ex. 50 at CAP WILSON at 000230.) Mr. Favata and Mr. Tillman each alleged that in the 13 April 19 meetings, Plaintiff made statements to them indicating she believed her Corrective 14 Action resulted from the statements they had made to HR in the first investigation. (DSOF 15 ¶ 120, Ex. 51 at CAP_WILSON 000227–228, Ex. 52 at CAP_WILSON 000225–226.) 16 After this investigation, Plaintiff was placed on paid administrative leave. (DSOF ¶ 123, 17 Ex. 14 ¶ 50; Pl.’s Resp. to DSOF ¶ 123.) 18 Mr. Ajamie, Mr. Cook, Mr. Wilson, Ms. Stone, Ms. Robinson, Senior Counsel Kim 19 Grouse, General Counsel Jay Johnson, and General Manager Ted Cooke met to discuss the 20 second investigation and ultimately decided Plaintiff should be terminated. (DSOF ¶¶ 125, 21 127, Ex. 1 ¶¶ 3, 6–9, Ex. 5 ¶¶ 22, 25; Pl.’s Resp. to DSOF ¶¶ 125, 127.) Mr. Cook and 22 Ms. Stone met with Plaintiff on May 24, 2018, and offered her the opportunity to resign in 23 lieu of termination, which would allow her to receive 50% of her accrued sick leave. 24 (DSOF ¶ 128, Ex. 3 at 192:20–193:3, Ex. 5 ¶ 26, Ex. 54 at CAP_WILSON 000290–91; 25 Pl.’s Resp. to DSOF ¶ 128.) Plaintiff’s retirement date was set for June 11, 2018, so that 26 she could receive an increase in her retirement. (DSOF ¶ 128, Ex. 5 ¶ 26, Ex. 54 at 27 CAP_WILSON 000290–91; Pl.’s Resp. to DSOF ¶ 128.) [28] 1 F. Plaintiff’s EEOC Charge 2 On August 3, 2018, Plaintiff filed a Charge of Discrimination with the Equal 3 Employment Opportunity Commission (“EEOC”). (DSOF ¶ 129, Ex. 55 at CAP_WILSON 4 000184-185.) In her EEOC Charge, Plaintiff did not identify that Mr. Cook made 5 discriminatory comments regarding Plaintiff’s gender. (DSOF ¶ 132; Pl.’s Resp. to DSOF 6 ¶ 132.) Plaintiff testified that Mr. Ajamie never made comments about her being old but 7 that she believed Mr. Ajamie’s offer to give her a lump sum payment of her merit increase 8 was age discrimination. (DSOF ¶¶ 134, 136, Ex. 3 at 97:15–23, 186:1–7; Pl.’s Resp. to 9 DSOF ¶¶ 134, 136.) 10 II. LEGAL STANDARD 11 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 12 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 13 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 14 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, [15] 477 U.S. 317 , 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285 , 1288–89 16 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the 17 outcome of the suit under governing [substantive] law will properly preclude the entry of 18 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 19 “genuine issue” of material fact arises only “if the evidence is such that a reasonable jury 20 could return a verdict for the non-moving party.” Id. 21 In considering a motion for summary judgment, the court must regard as true the 22 non-moving party’s evidence if it is supported by affidavits or other evidentiary material. 23 Celotex, 477 U.S. at 324 ; Eisenberg, 815 F.2d at 1289 . The non-moving party may not 24 merely rest on its pleadings; it must produce some significant probative evidence tending 25 to contradict the moving party’s allegations, thereby creating a question of material fact. 26 Anderson, 477 U.S. at 256–57 (holding that the plaintiff must present affirmative evidence 27 in order to defeat a properly supported motion for summary judgment); First Nat’l Bank of 28 Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 1 “A summary judgment motion cannot be defeated by relying solely on conclusory 2 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 3 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on 5 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 6 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322 ). 7 III. ANALYSIS 8 A. Plaintiff’s Title VII Claim of Discrimination Based on Sex 9 Defendant first moves for summary judgment as to Plaintiff’s Title VII claim for 10 Employment Discrimination Based on Sex. (MSJ at 6.) 11 1. Title VII Sex Discrimination Legal Standard 12 Under Title VII, an employer may not “discriminate against an individual with 13 respect to [her] . . . terms, conditions, or privileges of employment” because of her sex. 14 42 U.S.C. § 2000e–2(a). “This provision makes ‘disparate treatment’ based on sex a 15 violation of federal law.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 , 1061–62 (9th 16 Cir. 2002). 17 In order to show disparate treatment under Title VII, Plaintiff must first establish a 18 prima facie case of discrimination as the United States Supreme Court set forth in 19 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Specifically, she must show 20 that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was 21 subjected to an adverse employment action; and (4) similarly situated men were treated 22 more favorably, or her position was filled by a man.” Villiarimo, 281 F.3d at 1062 (citing 23 McDonnell Douglas, 411 U.S. at 802 ). The degree of proof necessary to establish a prima 24 facie case for a Title VII claim on summary judgment “is minimal and does not even need 25 to rise to the level of a preponderance of the evidence.” Id. (internal citations and quotations 26 omitted). 27 “If the plaintiff establishes a prima facie case, the burden of production—but not 28 persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory 1 reason for the challenged action . . . . If the employer does so, the plaintiff must show that 2 the articulated reason is pretextual ‘either directly by persuading the court that a 3 discriminatory reason more likely motivated the employer or indirectly by showing that 4 the employer’s proffered explanation is unworthy of credence.’” Id. (internal citations and 5 quotations omitted). A plaintiff may rely on circumstantial evidence to demonstrate pretext, 6 but such evidence must be both specific and substantial. Id. At the last step, if the plaintiff 7 can show pretext, the only remaining issue is whether discrimination occurred or not. Id. 8 2. Plaintiff Can Establish a Prima Facie Case 9 Under the McDonnell Douglas framework, “[t]he requisite degree of proof 10 necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal 11 and does not even need to rise to the level of a preponderance of the evidence.” Chuang v. 12 Univ. of Cal. Davis, Bd. Of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (citation 13 omitted). The parties do not dispute the fact that Plaintiff was part of a protected class based 14 on her sex or that she was qualified for the position she held. Defendant instead argues that 15 Plaintiff has not shown that she was subjected to an adverse employment action or that 16 similarly situated individuals outside her protected class were treated more favorably. (MSJ 17 at 10, 13–15.) 18 a. Adverse Employment Action 19 An adverse employment action is one that materially affects the compensation, 20 terms, conditions, or privileges of employment. Davis v. Team Elec. Co., 520 F.3d 1080 , 21 1089 (9th Cir. 2008); Chuang, 225 F.3d at 1126 . The most obvious incident that occurred 22 that could constitute an adverse employment action—and Defendant concedes as much— 23 is Plaintiff being terminated. (MSJ at 11); see Davis, 520 F.3d at 1094 . Being terminated, 24 or given the option to retire, as Plaintiff was given, materially affected Plaintiff’s terms and 25 privileges of employment. Thus, Plaintiff has met her burden to proffer evidence to meet 26 the “adverse employment action” prong of the McDonnell Douglas test. 433 U.S. at 802; 27 Celotex, 477 U.S. at 323. [28] 1 The parties dispute whether other events or comments constituted adverse 2 employment actions. To begin with, the evidence shows that Mr. Ajamie’s offer to give 3 Plaintiff her merit increase as a lump sum payment was not an adverse employment action. 4 When Mr. Ajamie initially offered the merit increase as a lump sum payment, Plaintiff 5 became upset because she wanted the merit increase to be added to her base pay. 6 Mr. Ajamie offered that Plaintiff discuss the options of the merit increase payment with 7 her husband and that if she still wanted the increase to her base pay, he would make that 8 change for her, which he ultimately did. (DSOF ¶¶ 49–50, Ex. 15 at 352:20–353:14.) 9 Because Plaintiff was awarded her merit increase in the way she requested, there was no 10 adverse employment action. 11 Plaintiff interpreted Mr. Ajamie’s comment regarding discussing her options with 12 her husband to be discriminatory, and Mr. Ajamie stated in his deposition that he is not 13 sure he would have made a similar comment to a male employee. (PSOF ¶ 9, Ex. A at 14 356:4–21.) Defendant contends that this comment was not an adverse employment action 15 because it had no effect on Plaintiff’s employment. (MSJ at 11.) Plaintiff argues that “stray 16 comments” can constitute an adverse employment action when the comments viewed 17 collectively with other evidence show they affected an individual’s employment. 18 Specifically, Plaintiff argues that this comment, together with the evidence that Defendant 19 was attempting to force Plaintiff into retirement, was an adverse employment action. (Resp. 20 at 11.) First, Plaintiff’s allegation that Defendant tried to force her into retirement does not 21 relate in timing or substance to her claims of sex discrimination or retaliation under Title 22 VII. Though this allegation may have been related to Plaintiff’s age discrimination claim, 23 Plaintiff dropped that claim. Second, Mr. Ajamie’s comment to Plaintiff about discussing 24 the merit increase with her husband seems to be the only comment of its nature. Plaintiff 25 does not explain or attempt to show how this comment was tied to sex discrimination nor 26 does she describe how it affected her employment. As such, the Court finds that 27 Mr. Ajamie’s comment was not an adverse employment action. [28] 1 b. Similarly Situated Employees 2 Individuals are similarly situated when “they have similar jobs and display similar 3 conduct.” Vasquez, 349 F.3d at 641. Defendant asserts that Plaintiff “has not identified any 4 similarly situated individuals outside of her protected class who were treated more 5 favorably.” (MSJ at 13–15.) Plaintiff contends that Chris Santo and Greg Brinker—two 6 other members of the IT team—were also described by Mr. Ajamie as being “highly 7 dysfunctional” and had to go to HR for intervention because they fought so much. (PSOF 8 ¶¶ 29–30, Ex. A 67:23–73:19, 138:5–139:23, 203:22–204:25.) Plaintiff argues she was 9 acting no different than the other two men, but she was the only one fired. 10 The record indicates that Mr. Brinker was part of the IT team that was broadly 11 characterized as “highly dysfunctional,” but the record does not contain specific details 12 that might show how Mr. Brinker, individually, was similarly situated. See Vasquez, 349 13 F.3d at 641–42 (noting the plaintiff was not similarly situated to his co-worker because the 14 co-worker “did not engage in problematic conduct of comparable seriousness to that of” 15 the plaintiff, who had disobeyed a direct order from his supervisor). Though the IT 16 department was characterized as “highly dysfunctional,” Mr. Brinker was noted to have a 17 highly functional team. (DSOF ¶ 14; Ex. 15 at 51:22–24.) 18 On the other hand, Mr. Santo engaged in seemingly similar conduct to Plaintiff that 19 is described in more detail in the record, and he was ultimately removed from his supervisor 20 position. (PSOF ¶¶ 11, 30, Ex. A at 52:19–25, 203:22–204:25, 365:13–367:14.) Defendant 21 argues Mr. Santo being removed from his supervisor position is more significant than 22 Plaintiff’s initial written warning. (MSJ at 14; DSOF ¶ 15.) But Mr. Santo was only taken 23 out of his supervisory role after Mr. Ajamie was no longer overseeing the IT department 24 and after Plaintiff was terminated. (PSOF ¶ 30, Ex. A at 365:13–367:14.) Mr. Ajamie did 25 not initiate a Corrective Action for Mr. Santo, despite the fact that he was running an 26 allegedly highly dysfunctional team at the same time Plaintiff was issued a Corrective 27 Action for similar conduct. (Ex. A at 366:10–24.) [28] 1 Plaintiff also argues that even if Mr. Brinker and Mr. Santo did not have the same 2 number of complaints against them, her 2% merit increase was less than Mr. Brinker and 3 Mr. Santo’s increases and was awarded to her before the complaints against her were 4 documented in the investigation, such that her merit increase constituted unfavorable 5 treatment. (Resp. at 12; PSOF ¶¶ 3–6.) In 2017, Plaintiff received a 2% merit increase, 6 while Mr. Brinker received a 2.75% merit increase and Mr. Santo received a 3% merit 7 increase. (Resp. at 12; PSOF ¶¶ 10–11, 30, Ex. K.) Although Plaintiff argues her 2% merit 8 increase was the result of sex discrimination because Mr. Brinker and Mr. Santo received 9 higher merit increases, the evidence also shows that, in 2017, the person to receive the 10 highest merit increase was a woman, Gail Ulan. (DSOF ¶ 43, Ex. 15 at 146:15–18, 147:18– 11 21, Ex. 18 at CAP_WILSON 003793; Pl.’s Resp. to DSOF ¶ 43.) And the year prior, 12 Mr. Ajamie gave Plaintiff the highest merit increase of any of his subordinates. (DSOF ¶ 13 44, Ex. 15 at 75:22–76:2; Pl.’s Resp. to DSOF ¶ 44.) 14 The Court finds that Plaintiff has produced at least the required minimal evidence 15 regarding whether Mr. Ajamie treated similarly situated employees outside of the protected 16 class—male supervisory employees in the IT department—more favorably. Because 17 Plaintiff has provided some evidence of an adverse employment action and that similarly 18 situated employees may have been treated more favorably, she meets her burden at this 19 first stage of establishing a prima facie claim of sex discrimination. McDonnell Douglas, 20 433 U.S. at 802–05; Celotex, 477 U.S. at 323 . 21 3. Defendant Has Articulated Legitimate, Nondiscriminatory Reasons for the Adverse Employment Action [22] 23 The burden of production now moves to Defendant to articulate some legitimate, 24 nondiscriminatory reason for the challenged action. Villiarimo, 281 F.3d at 1062 . 25 Defendant has produced extensive evidence of Plaintiff’s behavioral issues during 26 meetings and cites to complaints about Plaintiff’s behavior in workplace meetings 27 throughout 2017. (MSJ at 10; DSOF ¶¶ 17–39.) Mr. Cook received complaints about 28 Plaintiff from other departments, he heard her make disparaging remarks about her 1 coworkers, and he heard her yell at Mr. Ajamie. (DSOF ¶¶ 26, 38, 90.) Even after receiving 2 verbal counseling and a written warning, Plaintiff continued to act unprofessionally. (MSJ 3 at 10; DSOF ¶¶ 114–22.) Defendant argues it had legitimate reasons to take disciplinary 4 measures against Plaintiff and to place her on administrative leave during the second 5 investigation. (MSJ at 14–15.) 6 The evidence shows that Plaintiff received numerous complaints and that neither 7 Mr. Santo nor Mr. Brinker had the same number of complaints against them. (DSOF ¶ 12, 8 Ex. 2 at 331:2–332:13, Ex. 5 ¶ 28, Ex. 6 at CAP_WILSON 000033-43, Ex. 7 at 9 CAP_WILSON 000059, Exs. 8–13.) Mr. Cook described that Plaintiff had interpersonal 10 relationship issues with staff throughout most of her career. (DSOF ¶ 17; Ex. 2 at 22:13– 11 20; 271:8–294:9.) As part of the first investigation, several employees expressed concern 12 with Plaintiff’s behavior. Mr. Cook told Ms. Robinson in his interview that he received 13 complaints from employees and vendors regarding Plaintiff’s communication and poor 14 customer service and that four of Defendant’s biggest vendors expressed that they preferred 15 not to work with Plaintiff. (DSOF ¶ 90, Ex. 29 at CAP_WILSON 00089–91.) Mr. Ajamie 16 told Ms. Robinson that in 2016 Plaintiff got the highest percent increase of all his 17 supervisors but that in 2017 she got the lowest “due to her interpersonal behavior, poor 18 treatment of others, and because her teamwork effort with the management team took a 19 sharp decline.” (DSOF ¶ 91, Ex. 30 at CAP_WILSON 000104–108.) Mr. Cook noted that 20 in 2017, Plaintiff would sigh loudly, roll her eyes, grunt, raise inappropriate complaints, 21 have side conversations, and be on her phone during meetings. (DSOF ¶ 23; Ex. 2 at 120:6– 22 21, 123:9–21.) 23 On February 14, 2017, Kelli Ramirez, another employee, complained to Mr. Cook 24 that Plaintiff was “bitchy” when discussing requests with her. (DSOF ¶ 28, Ex. 2 at 113:11– 25 114:3, 293:10–294:14, Ex. 16 at CAP_WILSON 000164.) On November 7, 2017, 26 Mr. Brinker told Mr. Cook that he could not talk to Plaintiff’s employees without Plaintiff 27 getting mad and giving him dirty looks. (DSOF ¶ 29, Ex. 2 at 169:5–13, Ex. 16 at 28 CAP_WILSON 000165.) On the same day, Mr. Santo told Mr. Cook that Plaintiff was the 1 center of the IT management dysfunction, that she was always negative, and that she did 2 not want to work together to solve issues. (DSOF ¶ 30, Ex. 2 at 169:17–23, Ex. 16 at 3 CAP_WILSON 000165.) Likewise, Brian Pendergrass, one of Plaintiff’s former 4 subordinates, told Mr. Cook that things had been bad with Plaintiff and he was glad to be 5 away from her division. (DSOF ¶ 31, Ex. 2 at 300:1–13, Ex. 16 at CAP_WILSON 000165, 6 Ex. 32 at CAP_WILSON 000095.) 7 On November 27, 2017, Scott Isom, an IT data base analyst reporting to 8 Mr. Brinker, told Mr. Cook that Plaintiff got mad at him when he talked to Plaintiff’s 9 employees and mentioned that Plaintiff “likes to fight on everything.” (DSOF ¶ 32, Ex. 2 10 at 301:13–302:6, Ex. 16 at CAP_WILSON 000166.) The same day, Patrick McCabe in IT 11 security told Mr. Cook that Plaintiff was “out of control . . . . It is one thing to be in a bad 12 mood all the time but employees feel like they walk on egg shells whenever she is around.” 13 (DSOF ¶ 33, Ex. 2 at 301:3–12, Ex. 16 at CAP_WILSON 000166.) On December 5, 2017, 14 Corey O’Brien told Mr. Cook that it was a disaster working with Plaintiff, she conspires 15 with employees to set traps for other people, and most people try to avoid working with 16 her because she makes things more difficult. (DSOF ¶ 34, Ex. 16 at CAP_WILSON 17 000166.) 18 On January 9, 2018, IT project manager Sara Ainswoth said that she could not get 19 anything done because of Plaintiff’s negative attitude. (DSOF ¶ 35, Ex. 16 at 20 CAP_WILSON 000167.) Ms. Ainswoth began to cry explaining that she was emotional 21 because things with Plaintiff had been so difficult. (DSOF ¶ 35, Ex. 16 at CAP_WILSON 22 000167.) On January 10, 2018, Mike Lewis, IT Project Manager, discussed the difficulties 23 of working on projects and stated that things were better now that he was not working with 24 Plaintiff as much. (DSOF ¶ 36, Ex. 2 at 286:25–287:24, 307:11–23, Ex. 16 at 25 CAP_WILSON 000167.) Gail Ulan reported that Plaintiff often does not agree with others 26 and shows her disagreement by huffing, sighing, and staring at her phone. (DSOF ¶ 99, Ex. 27 16 at CAP_WILSON 000167, Ex. 35 at CAP_WILSON 000081–83.) On January 17, 2018, 28 Mr. Tillman, Plaintiff’s subordinate, said he felt Plaintiff was threatening him by not 1 extending his new employee probation and expressed concern about losing his job. (DSOF 2 ¶ 37, Ex. 2 at 307:24–308:24, Ex. 16 at CAP_WILSON 000168.) Mr. Favata, Plaintiff’s 3 other subordinate, said that Plaintiff would threaten him with his new employee 4 probationary period but did not provide substantive goals so that he could improve and that 5 he was afraid of losing his job. (DSOF ¶ 95, Ex. 31 at CAP_WILSON 000093–94.) 6 Defendant has clearly shown legitimate, nondiscriminatory reasons for the 7 challenged action. See Villiarimo, 281 F.3d at 1062 . The complaints regarding Plaintiff’s 8 behavior and treatment of others are extensive and warranted Defendants’ investigation 9 and corrective steps. 10 4. Plaintiff Has Not Established a Material Factual Dispute as to Whether Defendant’s Reason was Pretext [11] 12 The burden now shifts back to Plaintiff to show Defendant’s articulated reason is 13 pretextual “either directly by persuading the court that a discriminatory reason more likely 14 motivated the employer or indirectly by showing that the employer’s proffered explanation 15 is unworthy of credence.” Chuang, 225 F.3d at 1123 . “Direct evidence is evidence, which, 16 if believed, proves the fact [of discriminatory animus] without inference or presumption.” 17 Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005) (internal 18 citation and quotations omitted). Where direct evidence is unavailable, a plaintiff may 19 provide circumstantial evidence to show that the defendant’s explanation for the challenged 20 action was mere pretext for discrimination. “To show pretext using circumstantial 21 evidence, a plaintiff must put forward specific and substantial evidence challenging the 22 credibility of the employer's motives.” Vasquez, 349 F.3d at 642. 23 Here, Plaintiff has not proffered specific and substantial circumstantial evidence that 24 Defendant’s reasoning for terminating Plaintiff’s employment was mere pretext for 25 discrimination. Plaintiff’s most significant argument is that at the time of her performance 26 review, when she was awarded the 2% merit increase and received an “acceptable” review, 27 she had no complaints against her. (PSOF ¶¶ 7, 12, 16–18.) Plaintiff alleges that the 28 complaints Defendant collected against her as well as Mr. Cook’s encouraging Mr. Ajamie 1 to take better notes of his meetings with his employees, were all part of a larger plan to 2 create a “deep record” to support adverse actions against her. (Resp. at 13.) In the latter 3 regard, Defendant contends Plaintiff mischaracterizes Mr. Cook’s conversations with 4 Mr. Ajamie about taking meeting notes and Mr. Cook’s thoroughness with taking meeting 5 notes. (Reply at 2; PSOF ¶ 3.) Mr. Cook conducted meetings with all of his employees, 6 and he indicated that the volume of meeting notes discussing Plaintiff’s conduct just 7 reflects her significant role in creating low morale in the department. (Reply at 2; DSOF at 8 ¶ 27, Ex. 2 at 96:10–22.) 9 Plaintiff’s suspicion that there was a scheme to develop a “deep record” against her 10 is not supported by the evidence. Plaintiff claims that she had not received constructive 11 feedback or complaints lodged against her prior to the first investigation. But the record 12 indicates otherwise, and Mr. Cook said Plaintiff did not take constructive feedback well 13 and struggled with accountability. (DSOF ¶ 19, Ex. 2 at 83:24–84:12, 278:17–21.) In a 14 2017 evaluation, Mr. Ajamie noted that Plaintiff had opportunities to improve her 15 communication and collaboration skills. (Ex. D at 223.) In her 2016 evaluation, Mr. Ajamie 16 wrote that teamwork was an area for improvement. (Ex. D at 234.) In the 2016 evaluation, 17 Plaintiff also expressed to Mr. Ajamie her challenges working with peer supervisors and 18 indicated that they had also expressed challenges. (Ex. D at 234.) She encouraged 19 Mr. Ajamie to get involved. (Ex. D at 234.) [20] Additionally, Plaintiff’s claims of sex discrimination were not corroborated by any [21] other female employees. (Reply at 4; PSOF ¶ 19, Ex. H.) Although Plaintiff suggests that [22] other women corroborated her claims that Mr. Ajamie discriminated based on sex, those [23] allegations were only supported by a citation back to Plaintiff’s own statement of facts and [24] deposition. (Resp. at 13; PSOF ¶ 19.) After a thorough review of the evidence and viewing [25] it in the light most favorable to Plaintiff, the Court finds that no reasonable jury could [26] conclude that Defendant’s articulated reasons for taking an adverse employment action [28] 1 against Plaintiff were pretextual. Accordingly, Defendant is entitled to summary judgment 2 on Plaintiff’s Title VII claim of discrimination based on sex. 3 B. Plaintiff’s Title VII Claim of Retaliation 4 Title VII also makes it an unlawful employment practice for an employer to retaliate 5 against an employee because she has opposed any practice made unlawful by Title VII or 6 because she has made a charge, testified, assisted, or participated in any manner in an 7 investigation under Title VII. 42 U.S.C. § 2000e–3(a). 8 1. Title VII Retaliation Legal Standard [9] The McDonnell Douglas burden-shifting framework may be applied to Title VII [10] retaliation claims. See Ruggles v. California Polytechnic State Univ., 797 F.2d 782 , 784 [11] (9th Cir. 1986.) A plaintiff may establish a prima facie case of retaliation by showing that [12] (1) she engaged in a protected activity; (2) her employer subjected her to an adverse [13] employment action; and (3) a causal link exists between the protected activity and the [14] adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The burden then [15] shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse [16] employment action. Id. Finally, the burden shifts back to the plaintiff to show that the [17] defendant’s proffered reason was pretext for a discriminatory motive. Id. [18] 2. Plaintiff Cannot Establish a Prima Facie Case of Retaliation [19] With regard to the second element of a prima facie Title VII retaliation claim, a [20] plaintiff must show that the alleged adverse employment actions were “harmful to the point [21] that they could well dissuade a reasonable worker from making or supporting a charge of [22] discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The [23] Ninth Circuit construes adverse employment action broadly and has found that a “wide [24] array of disadvantageous changes in the workplace constitute adverse employment [25] actions.” Ray, 217 F.3d at 1240 . [26] Plaintiff contends there were three adverse actions that were retaliatory. First, [27] although Plaintiff admits that her 2017 evaluation does not constitute an adverse [28] 1 employment action, she contends the 2% merit increase was adverse and that it came 2 shortly after she complained to Mr. Cook about Mr. Ajamie on October 31, 2017. (Resp. 3 at 15; PSOF ¶ 2.) Defendant argues that a raise is not an adverse employment action merely 4 because Plaintiff thought she deserved a bigger raise. (MSJ at 21–22.) Defendant points 5 out that Plaintiff has failed to provide any evidence to show why she should have received 6 a higher merit increase. The Court agrees. Plaintiff has not brought forth any such evidence 7 and accordingly has failed to show the 2% merit increase amounted to an adverse 8 employment action in retaliation for her complaint about Mr. Ajamie. 9 Second, Plaintiff contends that after she made a complaint to HR alleging 10 discrimination against Mr. Ajamie, she was never informed that she too was being 11 investigated. (Resp. at 15; PSOF ¶¶ 15–17, 20, 35–37.) Additionally, Plaintiff argues it was 12 an adverse employment action when HR decided it would issue a Corrective Action for 13 Plaintiff before the investigation even began. (Resp. at 15; PSOF ¶¶ 15–17, 20, 35–37.) To 14 the extent Plaintiff’s contentions amount to a challenge to the adequacy of Defendant’s 15 investigation procedures, Defendant rightly points out that failure to conduct an adequate 16 investigation is not considered an adverse employment action for purposes of retaliation. 17 (MSJ at 22); see Cozzi v. Cnty. of Marin, 787 F. Supp. 2d 1047, 1069 (N.D. Cal. 2011). 18 The investigation began after the January 29, 2018 meeting between Plaintiff and 19 Mr. Ajamie where Plaintiff allegedly yelled at Mr. Ajamie so loudly that other people 20 outside of the room could hear her yelling. (DSOF ¶ 56, Ex. 2 at 104:4–25, Ex. 15 at 21 319:1-22.) The Court agrees with Defendant that an investigation cannot be an adverse 22 employment action for purposes of retaliation when the credible allegations investigated 23 by the employer are later found to be justified. See Williams v. Modly, 796 F. App’x 378 , 24 380 (9th Cir. 2020). 25 And even assuming that the investigation—and beginning the investigation without 26 informing Plaintiff she was the subject of the investigation—were adverse actions, Plaintiff 27 cannot establish causation. In University of Texas Southwestern Medical Center v. Nassar, 28 the Supreme Court decided that a plaintiff has a heightened standard for proving causation 1 in retaliation claims—she must show that her engagement in a protected activity was a 2 “but-for” cause of the defendant’s imposition of an adverse employment action. 570 U.S. 3 338, 362 (2013). Here, there is overwhelming evidence that Plaintiff’s behavior towards 4 other employees was the reason she was under investigation and placed on a Corrective 5 Action. Plaintiff has not provided evidence to show that raising the issue of discrimination 6 was the but-for cause of the investigation and the investigation outcome, nor has she 7 demonstrated that raising discrimination was the but-for cause of her not being informed 8 that her conduct was part of the investigation. 9 Finally, Plaintiff contends that after the first investigation, she raised concerns that 10 if she gave critical feedback to her subordinates, Mr. Favata and Mr. Tillman, it would be 11 perceived as retaliation on her part, and in response she was told by HR Manager 12 Mr. Wilson that she would need to continue to address any of their performance concerns. 13 (Resp. at 16; PSOF ¶¶ 25–26.) And Plaintiff contends that as soon as she met with 14 Mr. Favata and Mr. Tillman to address their performance issues, her conduct was found to 15 be retaliation for the first investigation and she was terminated from her employment. 16 (Resp. at 16; PSOF ¶ 26.) 17 The evidence shows that, on April 19, 2018, Plaintiff met with Mr. Favata and 18 Mr. Tillman separately, recorded the conversations in violation of Defendant’s Information 19 Security Policy, and asked them how their names got into her Corrective Action. (DSOF 20 ¶¶ 114–18.) In these meetings, Plaintiff implied that their participation in discussing her 21 behavior with Mr. Cook and Mr. Ajamie resulted in her Corrective Action. (DSOF ¶¶ 114– 22 18.) After these meetings, Defendant’s management reviewed Ms. Robinson’s 23 investigation of Plaintiff and Plaintiff’s CAP Resolves challenging Ms. Robinson’s 24 investigation. (DSOF ¶ 124, Ex. 1 ¶ 5, Ex. 5 ¶ 19.) After considering the evidence, 25 management found that Plaintiff had retaliated against her subordinates in violation of the 26 Corrective Action and that, given her repeated violations of company policy, termination 27 was appropriate. (DSOF ¶ 126, Ex. 1 ¶ 6, Ex. 5 ¶¶ 22–24.) Again, Plaintiff has not shown 28 causation, that is, that she was fired from her employment because she alleged 1 || discrimination. On the contrary, the evidence shows that, in meetings with subordinates, 2|| Plaintiff violated her Corrective Action, causing her loss of employment. Because Plaintiff has failed to provide sufficient evidence of an adverse employment action or causation to 4|| make out a Title VII retaliation claim, Defendant is entitled to summary judgment on that || claim. 6 IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary 7\| Judgment (Doc. 58) on all of Plaintiff's claims. 8 IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment accordingly and close this case. 10 Dated this 16th day of February, 2021. CN 11 “wok: [12] Unitgd State$District Judge [28] -20 -