Patocs v. Automatic Data Processing Incorporated

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Reina Patocs, No. CV-20-01257-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Automatic Data Processing Incorporated, et al., — 13 — Defendants. — 14 — 15 At issue is Defendants ADP LLC, et al.’s1 (“ADP”) Motion for Summary Judgment 16 (Doc. 42, Mot.), to which Plaintiff Reina Patocs (“Ms. Patocs”) filed a Response (Doc. 47, 17 Resp.), and Defendant filed a Reply (Doc. 50, Reply). The Court has reviewed the parties’ 18 briefs and finds this matter appropriate for decision without oral argument. See LRCiv 19 7.2(f). For the reasons set forth below, the Court grants in part and denies in part 20 Defendant’s Motion. 21 I. BACKGROUND 22 Plaintiff is an African American female who worked for ADP from October 16, 23 2017, until she was terminated on January 22, 2019. (Doc. 1, Ex. A, Compl. ¶¶ 9, 13, 52; 24 Doc. 43, Defendant’s Statement of Undisputed Material Facts (“DSOF”) ¶ 3.) She was 21 25 years of age when she was hired at ADP, and 22 years old when she was terminated. 26 (Doc. 48, Plaintiff’s Statement of Facts (“PSOF”) ¶ 110.) Ms. Patocs worked as an 27 Associate in ADP’s Small Business Services (“SBS”) group in Tempe, Arizona from the 28 1 Hereinafter, the Court refers to Defendants ADP LLC and ADP Incorporated collectively as “Defendant.” 1 time she was hired until March 2018, when she was promoted to “Team Lead.” (DSOF 2 ¶¶ 1, 3, 10, 12; Compl. ¶¶ 9-10.) Team Leads reported to Vice President Michael Shepard 3 (“Mr. Shepard”), who reported to Andrea Bereal (“Ms. Bereal”), Vice President, General 4 Manager of SBS. (DSOF ¶¶ 7, 8, 12.) Client Services Director Walter Nettles 5 (“Mr. Nettles”) assisted Mr. Shepard with the Team Lead program. (DSOF ¶ 9.) 6 Plaintiff alleges that almost immediately after she began reporting to Mr. Shepard, 7 she was “subject to both racial and sexist comments” from Mr. Shepard. (Compl. ¶ 13.) 8 She claims that Mr. Shepard made comments about her physical appearance, telling her on 9 some occasions that she looked “too boney,” on others that she did not look “boney,” and 10 also that she was “young and pretty.” (Compl. ¶ 13.) Plaintiff also alleges that Mr. Shepard 11 referred to her as his “work wife,” and told her that she was hired because of “Diversity 12 and Inclusion and [t]hat’s the problem with D and I.” (PSOF ¶¶ 58, 93 (citing Ex. B, 13 Deposition of Sonya Everett (“Everett Dep.”) at 105:12-107:16).) Plaintiff felt “extremely 14 uncomfortable” as a result of Mr. Shepard’s comments. (Compl. ¶ 15.) 15 Following Plaintiff’s promotion to Team Lead, Mr. Nettles allegedly received 16 complaints that she was (1) abrasive when providing Associates with feedback; 17 (2) dishonest; and (3) unwilling to “own issues.” (DSOF ¶ 17, citing Declaration of Walter 18 Nettles (“Nettles Dec.”) ¶¶ 23-31.) Subsequently, Plaintiff was subjected to “informal 19 coaching” by Mr. Shepard on July 11, 2018, during which she alleges he called her 20 “fucking crazy” and berated her. (PSOF ¶ 16.) Plaintiff claims that it was this informal 21 coaching that spurred her complaints to Team Manager Stacey Crawley (“Ms. Crawley”) 22 on July 11, 2018, and Mr. Nettles on July 12, 2018. (PSOF ¶¶ 16, 29, 104, 105.) 23 On July 13, 2018, Ms. Patocs was brought in for a formal coaching with Mr. Shepard 24 and Mr. Nettles, and she alleges that the feedback she received during that session was 25 contradictory to the feedback she received elsewhere. (PSOF ¶ 37.) For example, Plaintiff 26 received a 4.2 out of 5.0 on her performance review, and aside from the informal and formal 27 coaching sessions on July 11 and July 13, 2018, respectively, Plaintiff never received any 28 information to suggest that her review was inaccurate. (PSOF ¶ 27 (citing Ex. A, 1 Declaration of Reina Patocs (“Patocs Dec.”) ¶ 8).) In fact, Ms. Patocs received the same 2 score on her performance review as all of the other Team Leads. (DSOF ¶ 26.) 3 Between July and September 2018, Ms. Patocs attended follow-up coaching 4 sessions. (PSOF ¶ 39.) During both the original formal coaching and each of the follow-up 5 sessions, Plaintiff was required to draft notes based on what was dictated to her by 6 Mr. Shepard. (PSOF ¶ 40.) During the July 16, 2018 follow-up coaching, Plaintiff alleges 7 that Mr. Shepard dictated an apology to himself, which she transcribed in her notes. (PSOF 8 ¶¶ 63-64.) 9 In the fall of 2018, ADP promoted Team Leads who were “ready enough” to become 10 Team Managers. (DSOF ¶ 41.) Although Plaintiff had been with ADP for approximately 11 the same amount of time as the Team Leads who were promoted and claims that she was 12 given more difficult assignments than other Team Leads, Mr. Shepard specifically told her 13 that she would not be allowed to seek a Team Manager position. (PSOF ¶¶ 41, 43, 47.) 14 Instead, Plaintiff was given a short-term project where her job was to interview and train 15 new hires for a large acquisition (hereinafter “SA Project”), even though she had no 16 acquisition experience. (PSOF ¶ 49.) 17 Defendant alleges, and Plaintiff disputes, that around this time ADP leadership and 18 Plaintiff’s coworkers perceived her as having an “attitude” about the assignments she was 19 given. (DSOF ¶ 51; PSOF ¶ 51.) On January 4, 2019, Ms. Crawley told Mr. Shepard about 20 Plaintiff’s complaints regarding his discrimination and retaliation against her. (PSOF ¶ 53.) 21 Subsequently, on January 7, 2019 Plaintiff alleges that Mr. Shepard told her that she was 22 going to be answering phone calls as a “punishment.” (PSOF ¶ 51; Patocs Dec. ¶ 18.) On 23 January 7, 2019, Plaintiff also attended additional coaching with Mr. Shepard, Mr. Nettles, 24 and Cherie Bond (“Ms. Bond”), Director, Human Resource Business Partner. (DSOF ¶ 57.) 25 She alleges that during that coaching session she was told that her desk was going to be 26 moved to a location in front of the bathrooms so that other employees could see her 27 “punishment.” (PSOF ¶ 13.) That same day, Plaintiff made a complaint to Ms. Bond — 28 — 1 alleging age discrimination, retaliation, and harassment, and stating that she felt physically 2 “unsafe” reporting to Mr. Shepard. (DSOF ¶ 58.) 3 Following Ms. Patocs’ complaint, Sonya Everett (“Ms. Everett”), ADP’s Associate 4 Relations Manager, initiated an internal investigation. (DSOF ¶ 63.) Ultimately, 5 Ms. Everett found that Plaintiff’s allegations were uncorroborated. (DSOF ¶ 66; see also 6 PSOF ¶ 66.) Ms. Everett specifically observed that the notes Plaintiff provided to her were 7 missing the July 16, 2018 coaching session and did not contain Plaintiff’s “apology” to 8 Mr. Shepard. (DSOF ¶ 64.) Ms. Everett determined that Plaintiff should be discharged for 9 misleading an internal investigation. (PSOF ¶¶ 73-74, 77; DSOF ¶ 73.) Plaintiff was 10 terminated on January 22, 2019. (PSOF ¶ 73.) 11 On February 14, 2019, Plaintiff filed a charge of discrimination with the Equal 12 Employment Opportunity Commission (“EEOC”). (Compl. ¶ 55.) Subsequently, on 13 March 10, 2020, Plaintiff requested that the EEOC issue a Notice of Right to Sue, which 14 the EEOC issued on April 30, 2020. (Compl. ¶ 56.) On May 20, 2020, Plaintiff initiated 15 this action in the Superior Court of Arizona, Maricopa County, alleging claims under — 16 — 42 U.S.C. § 1981 and Title VII. (Doc. 1, Removal.) On June 25, 2020, Defendants removed 17 the action to this Court pursuant federal question jurisdiction. (Removal at 2 (citing — 18 — 28 U.S.C. §§ 1331 , 1367(a), 1441).) Defendants now move for summary judgment on all 19 of Plaintiff’s claims, as well as their Twelfth Affirmative Defense. 20 II. LEGAL STANDARD 21 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 22 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 23 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 24 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, — 25 — 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 26 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 27 of the suit under governing [substantive] law will properly preclude the entry of summary 28 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 1 of material fact arises only “if the evidence is such that a reasonable jury could return a 2 verdict for the nonmoving party.” Id. 3 In considering a motion for summary judgment, the court must regard as true the 4 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 5 Celotex, 477 U.S. at 324 ; Eisenberg, 815 F.2d at 1289 . However, the non-moving party 6 may not merely rest on its pleadings; it must produce some significant probative evidence 7 tending to contradict the moving party’s allegations, thereby creating a material question 8 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 9 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 10 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 11 “A summary judgment motion cannot be defeated by relying solely on conclusory 12 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 13 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 14 sufficient to establish the existence of an element essential to that party’s case, and on 15 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 16 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322 ). 17 III. ANALYSIS 18 Plaintiff brings discrimination, retaliation, and harassment claims under both Title 19 VII and 42 U.S.C. § 1981 . Title VII prohibits employers from discriminating against an 20 individual based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). 21 Similarly, § 1981 prohibits discrimination in the “benefits, privileges, terms, and 22 conditions of employment.” 42 U.S.C. § 1981 (b). The standards for analyzing § 1981 23 claims are the same as those applicable in Title VII disparate treatment cases. Surrell v. 24 Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). However, Title VII requires 25 that the Plaintiff exhaust administrative remedies, such as filing a claim with the EEOC, 26 before bringing a private action for damages, while § 1981 does not have the same 27 requirement. Id. — 28 — 1 Because Plaintiff asserts, and Defendants do not dispute, that she filed a charge with 2 the EEOC on February 14, 2019, less than one month after her termination, and the EEOC 3 provided Plaintiff with a Notice of Right to Sue on April 30, 2020, the Court finds that 4 Plaintiff meets the requirements of Title VII exhaustion. (See Compl. ¶¶ 55-56.) 5 Accordingly, the Court moves forward to discuss the merits of Plaintiff’s discrimination, 6 retaliation, and harassment claims. 7 A. Plaintiff’s Discrimination Claims 8 Plaintiff brings race and sex discrimination claims under both Title VII and — 9 — 42 U.S.C. § 1981 . The standards for a prima facie discrimination claim are the same under 10 § 1981 and Title VII. Surrell, 518 F.3d at 1105 (citing McDonnell Douglas Corp. v. Green, — 11 — 411 U.S. 792, 802 (1973)). 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 race, 14 color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). “This provision makes 15 ‘disparate treatment’ based on [race, color, religion, sex, or national origin] a violation of 16 federal law.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 , 1061–62 (9th Cir. 2002). 17 A plaintiff may present either direct or circumstantial evidence to prove her 18 employment discrimination case. Direct evidence is “evidence which, if believed, proves 19 the fact [of discriminatory animus] without inference or presumption.” Vasquez v. Cnty. of 20 L.A., 349 F.3d 634, 640 (9th Cir. 2006). If the plaintiff fails to produce direct evidence, the 21 Court may evaluate circumstantial evidence using the burden-shifting framework that the 22 Supreme Court established in McDonnell Douglas Corp. v. Green. 433 U.S. 792 , 802–805 23 (1973). Under that framework, first, the plaintiff must establish a prima facie case of 24 unlawful discrimination by showing that (1) she belongs to a protected class; (2) she was 25 performing her job satisfactorily (or was qualified for a position for which she applied); (3) 26 she was subjected to an adverse employment action; and (4) similarly situated [individuals 27 outside her protected class] were treated more favorably.” Cozzi v. Cnty. of Marin, 787 F. 28 Supp. 2d 1047, 1057 (N.D. Cal. 2011) (citing Chuang v. Univ. of Cal. Davis, Bd. of 1 Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000); Coleman v. Quaker Oats Co., 232 F.3d 2 1271, 1281 (9th Cir. 2000)). The degree of proof necessary to establish a prima facie case 3 for a Title VII claim on summary judgment “is minimal and does not even need to rise to 4 the level of a preponderance of the evidence.” Id. (internal citations and quotations 5 omitted). 6 “If the plaintiff establishes a prima facie case, the burden of production—but not 7 persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory 8 reason for the challenged action . . . . If the employer does so, the plaintiff must show that 9 the articulated reason is pretextual ‘either directly by persuading the court that a 10 discriminatory reason more likely motivated the employer or indirectly by showing that 11 the employer’s proffered explanation is unworthy of credence.’” Villiarimo, 281 F.3d at 12 1062 (internal citations and quotations omitted). A plaintiff may rely on circumstantial 13 evidence to demonstrate pretext, but such evidence must be both specific and substantial. — 14 — Id. 15 As a preliminary matter, the Court notes that the parties disagree as to whether there 16 is any direct evidence to support Plaintiff’s discrimination claim. (See Mot. at 5; Resp. 17 at 3.) Plaintiff alleges that there is direct evidence of bias in this case because Mr. Shepard 18 was involved in all key decisions regarding her employment status and stated that Plaintiff 19 only had her job due to Diversity and Inclusion, and “that’s what’s wrong with D and I.” 20 (Resp. at 3 (citing DSOF ¶¶ 7, 10, 12, 19, 24-26, 33, 56; PSOF ¶¶ 82, 90, 93).) Defendant 21 argues that this comment is not direct evidence of discrimination because it is not tied to 22 any adverse action, and therefore requires an inference of discrimination. (Mot. at 5-6, 23 n. 2.) Mr. Shepard’s alleged comment was made in reference to her promotion to Team 24 Lead, and therefore, Defendant proffers, “supports a class bias in favor of Plaintiff.” (Mot. 25 at 6, n. 2 (emphasis in original).) While the Court finds Defendant’s framing of Mr. 26 Shepard’s alleged comment questionable at best, it nonetheless agrees with Defendant that 27 it is not direct evidence as defined in Vasquez. However, a reasonable fact-finder could 28 draw inferences from the comment when determining what motivated Defendant to take 1 adverse employment actions against Plaintiff. Therefore, it is circumstantial evidence that 2 is relevant to her discrimination claim. Since all of Plaintiff’s evidence is circumstantial, 3 the Court will analyze it under the McDonnell Douglas framework. — 4 — 1. Plaintiff Can Establish a Prima Facie Case of Title VII Race or 5 Sex Discrimination 6 Under the McDonnell Douglas framework, “[t]he requisite degree of proof 7 necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal 8 and does not even need to rise to the level of a preponderance of the evidence.” Chuang, — 9 — 225 F.3d at 1124 (citation omitted). The parties do not dispute that Plaintiff was part of a 10 protected class based on her race and sex. Defendant instead argues that Plaintiff has not 11 shown that she was subjected to an adverse employment action other than her termination, 12 which it contends was justified based on her performance, which was not meeting its 13 legitimate expectations. (Mot. at 7, 9.) Defendant also claims that Plaintiff has not shown 14 that similarly situated individuals outside her protected class were treated more favorably. 15 (Mot. at 11-12.) 16 a. Adverse Employment Action 17 For the purposes of a discrimination claim, an adverse employment action is one 18 that materially affects the compensation, terms, conditions, or privileges of employment. 19 Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); Chuang, 225 F.3d at 1126 . 20 The standard for an adverse employment action for the purposes of a discrimination claim 21 is different from that for a retaliation claim, which the Court discusses in more detail below. 22 The Court, in construing the evidence in a light most favorable to Plaintiff, will consider 23 whether any of the incidents Plaintiff alleges could qualify as an adverse employment 24 action. 25 First, the Court notes that the parties agree that Plaintiff’s termination may qualify 26 as an adverse employment action. (See Mot. at 7.) The Court agrees with both parties, so 27 does not discuss it in depth here. — 28 — 1 Defendant goes on to challenge each of Plaintiff’s alleged adverse actions. 2 Defendant argues that (1) the “coaching and scrutiny” Plaintiff experienced; (2) the fact 3 that Mr. Shepard made Plaintiff “feel uncomfortable” through his alleged sexual 4 harassment; (3) Plaintiff’s assignment to a less-desirable desk space; (4) Plaintiff’s 5 assignment to phone duty; (5) Plaintiff’s placement on paid leave pending the internal 6 investigation; (6) an inadequate internal investigation; and (7) assigning Plaintiff the 7 SA Project, and later removing her from that project, are not adverse employment actions 8 as a matter of law. (Mot. at 7.) Plaintiff challenges Defendant’s characterizations of the 9 actions but does not cite any case law to suggest that Defendant’s actions were in fact 10 adverse. (Resp. at 4-10.) In its analysis of Plaintiff’s discrimination claim, the Court 11 considers only the alleged adverse actions that Plaintiff contends are discriminatory in her 12 Response. (See Resp. at 13.) Plaintiff maintains that all the actions, with the exception of 13 the second action, are retaliatory, so the actions not discussed here are addressed in the 14 Retaliation section of this Order. 15 To support its contention that the “coaching and scrutiny” Plaintiff experienced was 16 not an adverse action, Defendant cites Negley v. Judicial Council of California, where the 17 Court held that “barrages” of emails regarding plaintiff’s conduct and the scrutiny she was 18 subjected to were not adverse employment actions. No. C 08-03690 MHP, 2010 WL 19 11545605, at *8 (N.D. Cal. June 21, 2010). Plaintiff cites to no cases in which a court found 20 additional coaching and scrutiny to be an adverse action for the purposes of a Title VII 21 discrimination claim, nor could the Court find any such cases in its own research. (See 22 generally Resp.) The Court agrees with Defendant that this is not an adverse action as a 23 matter of law. 24 Next, Defendant asserts that the fact that Mr. Shepard made Plaintiff “feel 25 uncomfortable” is not an adverse action as a matter of law. (Mot. at 7.) Plaintiff takes issue 26 with Defendant’s word choice and argues that it is “a gross mischaracterization of 27 Plaintiff’s claims of sexual harassment.” (Resp. at 4.) However, the Court agrees with 28 Defendant. While these comments may go to a hostile work environment claim, they do 1 not rise to the level of adverse employment action. See Reyes v. San Francisco Unified 2 School District, No. 11-cv-04628-YGR, 2012 WL 4343784 , at *9 (N.D. Cal. Sept. 20, 3 2012) (“feeling uncomfortable is not an adverse employment action”). The facts of Reyes 4 are distinguishable from those at hand,2 but Plaintiff makes no attempt to distinguish the 5 facts of that case and cites no affirmative case law to support an argument that 6 Mr. Shepard’s alleged comments should be construed as an adverse employment action. 7 Defendant relies on Brown v. Dignity Health to support its argument that its 8 allegedly inadequate internal investigation was not an adverse action. No. CV-18-034189 PHX-JJT, 2020 WL 3403088 , at *9 (D. Ariz. June 19, 2020). Plaintiff argues that 10 Defendant’s internal investigation was not just inadequate, but also “biased, discriminatory 11 and retaliatory.” (Resp. at 5.) However, this argument is conclusory. Plaintiff again fails to 12 cite any cases where courts have found either that an inadequate internal investigation 13 constitutes an adverse action, or that an allegedly “biased” investigation is different from 14 an “inadequate” investigation for the purposes of the Court’s analysis. Thus, the Court must 15 agree with Defendant—its alleged failure to adequately investigate Plaintiff’s claims is not 16 an adverse action. 17 Defendant further argues that its failure to promote Plaintiff is not an adverse action 18 because, generally, an employee must have applied for a promotion for such action to be 19 adverse. (Mot. at 7 (citing Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 20 1988)).) Defendant acknowledges that in some circumstances, failure to promote can be an 21 adverse employment action under a “deterred applicant” theory but argues that such a 22 theory is inapplicable here. The Supreme Court has outlined the “deterred applicant” 23 theory, or “futility” doctrine, as follows: “[w]hen a person’s desire for a job is not translated 24 into a formal application solely because of his unwillingness to engage in a futile gesture 25 he is as much a victim of discrimination as is he who goes through the motions of — 26 — 2 In Reyes, offensive comments were made, but not by the plaintiff’s supervisor or an 27 administrator, and they were not directed at the plaintiff. 2012 WL 4343784 , at *9. Here, Mr. Shepard was Plaintiff’s supervisor, and his alleged comments about her physical 28 appearance, and also his comment that she was his “work wife” were clearly directed at her. (PSOF ¶¶ 58, 68, 88, 104.) 1 submitting an application.” Int’l Broth. of Teamsters v. United States, 431 U.S. 324 , 365-66 2 (1977). To determine the validity of a plaintiff’s claim that application would have been 3 futile, courts look to the attendant facts and circumstances of the individual case, 4 considering “whether a plaintiff has alleged facts that, taken as true, support the inference 5 that it would have been futile for him to apply.” Hill v. Beers, No 3:12-CV-00574-AC, — 6 — 2014 WL 950168 , at *9 (D. Or. Mar. 11, 2014) (quoting Wynn v. Nat’l Broadcasting Co., 7 Inc., 234 F. Supp. 2d 1067, 1099 (C.D. Cal. 2002)). The company must have a “consistently 8 enforced policy” of discriminating against a certain group of individuals for a futility claim 9 to survive. Teamsters, 431 U.S. at 365 . The Ninth Circuit has required plaintiffs to show a 10 “clear pattern of discrimination” to prevail on the futility doctrine. Hill v. Beers, No. 3:1211 CV-00574-AC, 2014 WL 950168 , at *9 (D. Or. Mar. 11, 2014) (collecting cases, citations 12 omitted). 13 Plaintiff argues that the case law Defendant cites is distinguishable, because she was 14 told by Mr. Shepard that she should not apply. (PSOF ¶ 43.) Plaintiff also points out that 15 all of her white colleagues were promoted, which she suggests illustrates a policy of 16 discrimination. (Resp. at 6.) The Court finds that Plaintiff cannot establish that Defendant 17 had clear pattern of discrimination against African American or female employees. Not 18 only does Plaintiff once again fail to cite any case law to support her argument, but she 19 also glosses over the fact that she was promoted to the Team Lead position. (DSOF ¶ 10.) 20 Additionally, the facts show that Stephanie Bitterman, a woman, was the first Team Lead 21 promoted to Team Manager. (DSOF ¶¶ 10, 41.) Further, many of Plaintiff’s superiors were 22 women and/or African American. (DSOF ¶¶ 8, 57, 62-63, 77.) Thus, considering the 23 evidence proffered, the Court cannot find that Defendant had a “consistently enforced 24 policy” of discriminating against female or African American employees. See Hill, 2014 25 WL 950168 , at *10. — 26 — — 27 — — 28 — 1 b. Job Performance 2 Because the Court finds that for the purposes of Plaintiff’s discrimination claim, the 3 only adverse action she suffered was her termination, she must also show that she was 4 performing according to ADP’s legitimate expectations at the time she was fired. 5 Defendant argues that Plaintiff was not meeting its legitimate expectations for 6 several reasons. (Mot. at 9-10.) First, Defendant cites Plaintiff’s performance issues, such 7 as her “abrasiveness toward Associates,” and notes that she was called in for coaching 8 sessions to address these concerns. (Mot. at 9-10 (citing DSOF ¶¶ 17, 21-23, 47, 51-53).) 9 Defendant also contends that it had a “legitimate expectation of honesty,” which Plaintiff 10 did not meet when she failed to provide complete “documentation” to Ms. Everett 11 following her complaint about Mr. Shepard, and when Ms. Everett’s investigation failed to 12 corroborate Plaintiff’s version of events. 13 In her Response,3 Plaintiff highlights her performance review, on which she 14 received a 4.2 out of 5.0. (Resp. at 9; DSOF ¶ 26, Ex. 17.) This score is identical to those 15 of the other Team Leads Mr. Shepard supervised. (DSOF, Exs. 18, 19.) Additionally, the 16 review is for the period ending June 30, 2018, during which time Defendant claims it had 17 already received the same complaints about Plaintiff that were a factor in her termination, 18 and she had already been informally coached. (DSOF ¶¶ 17, 19.) Mr. Shepard states he 19 decided to give Plaintiff an inflated review because he “remained hopeful” that she could 20 improve (DSOF ¶ 27), but Plaintiff’s review is dated September 3, 2018, nearly two months 21 after Plaintiff’s first formal coaching session on July 13, 2018, and two follow-up coaching 22 sessions. (DSOF ¶ 35, Ex. 17.) 23 Plaintiff also points to evidence that challenges Defendant’s contention that she was 24 not meeting its legitimate expectation of honesty. Ms. Everett found that Plaintiff was 25 behaving dishonestly in part because she provided Ms. Everett with emails documenting 26 her first formal coaching on July 13, 2018, as well as the second, third, and fourth follow27 3 Plaintiff’s briefing does not directly address Defendant’s contention that she was not performing to its legitimate expectations, but she does raise arguments to rebut Defendant’s 28 assertion in her analysis of its failure to promote her to Team Manager. (Resp. at 9.) 1 ups to that coaching, but did not submit emails documenting the first follow-up coaching 2 on July 16, 2018, which Defendant characterizes as an “apology.” (DSOF ¶ 64.) Plaintiff 3 claims she omitted the notes from the July 16, 2018 follow-up by accident, and also stated 4 during her deposition that she was “directed” to apologize during that coaching session, 5 despite the fact that she did not feel that an apology to Mr. Shepard was warranted. (PSOF 6 ¶ 38.) An examination of the notes in question supports Plaintiff’s claim that the text was 7 dictated. The numbered list reads: 8 14. Apologize for reaction and emotional response 15. Identify that it had nothing to do with Michael [Shepard] 9 … 16. Thank Michael for hard work and dedication to not only my development 10 but also other TL’s development. 11 (DSOF, Ex. 24 at 4 (erroneously labeled “Exhibit 22”).) Ms. Everett never followed up 12 with Mr. Shepard about Plaintiff’s claim that he dictated the “apology” to her. (PSOF 13 ¶ 109.) Notably, the emails that Mr. Shepard sent to Ms. Bereal, Ms. Bond, and Susanna 14 Larson in advance of the January 7, 2019 formal coaching did not contain Plaintiff’s notes 15 from the July 16 follow-up session either, but there is no evidence that Defendant 16 questioned Mr. Shepard’s honesty based on this omission. (PSOF ¶ 90, Ex. E.) 17 For the foregoing reasons, Plaintiff is able to show that she was performing to 18 Defendant’s legitimate expectations for the purposes of her prima facie case. 19 c. Similarly Situated Employees 20 Individuals are similarly situated when “they have similar jobs and display similar 21 conduct.” Vasquez, 349 F.3d at 641 . Defendant asserts that Plaintiff “has failed to identify 22 that similarly situated comparators received preferential treatment.” (Mot. at 11.) 23 Plaintiff suggests that Tyler Popescu (Caucasian, male), Robert Perkins (Caucasian, 24 male), and Ms. Bitterman (Caucasian, female),4 were all similarly situated employees. (See — 25 — 4 Plaintiff also mentions Benjamin Alickovic (Caucasian, male) and J.T. Landenberger 26 (Caucasian, male) in her briefing. However, neither Mr. Alickovic or Mr. Landenberger reported to Mr. Nettles or Mr. Shepard, so cannot be similarly situated. See EEOC v. 27 Republic Servs., Inc., 640 F. Supp. 2d 1267, 1279, 1292 (D. Nev. 2009) (“[T]he individuals used for comparison must have dealt with the same supervisor, been subject to the same 28 standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” (internal quotations omitted)). 1 generally PSOF; Resp. at 10.) Defendant asserts that these individuals were not similarly 2 situated to Plaintiff because there is no evidence that they engaged in conduct similar to 3 that of Plaintiff, they had more management experience than she did, and were hired by 4 Defendant prior to Plaintiff. (Mot. at 12.) Defendant also observes that Ms. Bitterman, a 5 woman, was the first Team Lead to be promoted. (Mot. at 12; DSOF ¶ 41.) 6 In support of her argument, Plaintiff proffers that she had prior management 7 experience, while Mr. Popsecu did not, and this illustrates that Mr. Popescu was treated 8 more favorably than Plaintiff. (Resp. at 10.) Mr. Popescu’s resume shows that he worked 9 as a Shift Leader at Dunkin Donuts for more than two years, spent four months as an 10 account manager at another company, and then worked as a Portfolio Consultant for less 11 than a year before joining Defendant. (DSOF, Ex. 15.) In addition to experience as a 12 Medical Scribe and Administrative Assistant, Plaintiff worked as a Human Resources and 13 Customer Relations Coordinator at a car dealership prior to joining Defendant. (DSOF, 14 Ex. 14.) While it is incorrect for Plaintiff to claim that Mr. Popsecu did not have managerial 15 experience, it is also incorrect for Defendant to assert that Plaintiff lacked managerial 16 experience. The description of her role at the car dealership on Plaintiff’s resume reflects 17 that she performed managerial duties. (DSOF, Ex. 14.) The undisputed facts also show that 18 Mr. Popsceu and Plaintiff had been working for Defendant for a comparable amount of 19 time—Mr. Popsceu was hired just over a month before Plaintiff. (DSOF, Exs. 4, 15.) 20 Mr. Popescu was also informally coached, and reportedly overcame performance issues. 21 (DSOF ¶ 16.) Likewise, Plaintiff’s performance review states that she “seeks coaching and 22 readily adopts what she learns and is advised.” (DSOF, Ex. 17 at 7.) And Plaintiff received 23 the same score as Mr. Popescu on her performance review. (DSOF, Exs. 17, 18.) 24 The evidence thus creates a dispute of material fact about whether Mr. Shepard 25 treated similarly situated employees outside of Plaintiff’s protected class more favorably. 26 Because Plaintiff has provided evidence to create genuine issues of material fact as to 27 whether she suffered an adverse employment action, whether she was performing to 28 Defendant’s legitimate expectations, and whether similarly situated employees were 1 treated more favorably, she meets her burden at this stage of establishing a prima facie 2 claim of race and sex discrimination. McDonnell Douglas, 433 U.S. at 802–05; Celotex, 3 477 U.S. at 323. — 4 — 2. Defendant Has Articulated a Legitimate, Non-Discriminatory 5 Reason for the Adverse Employment Action 6 The burden then shifts to Defendant “to articulate some legitimate, 7 nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 8 433 U.S. at 802. As discussed supra, Defendant has met its burden by articulating that 9 Plaintiff was terminated due to performance issues, and also because Plaintiff failed to meet 10 Defendant’s expectation of honesty when she failed to provide complete “documentation” 11 to Ms. Everett, and when Ms. Everett’s investigation failed to corroborate her version of 12 events. 13 Likewise, the doctrine of same actor interference supports Defendant’s arguments. 14 Under the doctrine of same actor inference, “where the same actor is responsible for both 15 the hiring and the firing of a discrimination plaintiff, and both actions occur within a short 16 period of time, a strong inference arises that there was no discriminatory action.” Bradley 17 v. Harcourt, Brace and Co., 104 F.3d 267, 270 (1996). This doctrine is based on the idea 18 that there will rarely be sufficient evidence that “…the employer’s asserted justification is 19 false when the actor who allegedly discriminated against the plaintiff had previously shown 20 a willingness to treat the plaintiff favorably.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 21 1090, 1097 (9th Cir. 2005). 22 Defendant argues that the inference applies because Mr. Shepard was involved in 23 both Plaintiff’s promotion to Team Lead and her termination. (Mot. at 11; DSOF ¶¶ 10-12.) 24 In her Response, Plaintiff argues that there is “no question that Shepard swung wildly back 25 and forth” in how he treated her, but suggests that the “same actor inference is negated by 26 intervening events,” including her July 12, 2018 complaint to Mr. Nettles and her July 11, 27 2018 complaint to Ms. Crawley, which Ms. Crawley shared with Mr. Shepard on January 4, 28 2019. (Resp. at 14.) 1 The same-actor inference is a “strong inference” that the Court must take into 2 account in ruling on Defendant’s Motion for Summary judgment. Bradley, 104 F.3d at 271 . 3 The Court must consider whether Plaintiff has made out the strong case of bias necessary 4 to overcome this inference. — 5 — 3. Plaintiff Has Shown that Defendant’s Reason for the Adverse 6 Employment Action Could be Pretext 7 An employee can prove pretext either: (1) “directly, by showing that unlawful 8 discrimination more likely motivated the employer”; or (2) “indirectly, by showing that the 9 employer’s proffered explanation is unworthy of credence because it is internally 10 inconsistent or otherwise not believable.” Fonseca v. Sysco Food Servs. of Ariz., Inc., — 11 — 374 F.3d 840, 849 (9th Cir. 2004) (internal quotation marks omitted) (quoting Lyons v. 12 England, 307 F.3d 1092, 1113 (9th Cir. 2002)). “[A] disparate treatment plaintiff can 13 survive summary judgment without producing any evidence of discrimination beyond that 14 constituting his prima facie case, if that evidence raises a genuine issue of material fact 15 regarding the truth of the employer’s proffered reasons.” Chuang, 225 F.3d at 1127 . 16 Plaintiff points to evidence to rebut both of Defendant’s proffered reasons for her 17 termination. As discussed above, the fact that Plaintiff received a 4.2 out of 5.0 on her 18 performance review—the same score as her peers—is sufficient to show that Defendant’s 19 claim that Plaintiff was terminated for performance issues is internally inconsistent. (Resp. 20 at 9; DSOF ¶ 26, Ex. 17.) The accounts surrounding Plaintiff’s alleged failure to provide 21 complete documentation to Ms. Everett are also rife with genuine issues of material facts.5 22 (See supra at 12-13.) Further, Ms. Everett indicated that the decision to terminate Plaintiff — 23 — 5 Defendant attempts to discredit Plaintiff’s arguments concerning the shifting reasons for 24 her discharge. (Mot. at 14.) Specifically, Defendant states that its shifting reasons for Plaintiff’s termination are not incompatible and are therefore insufficient to defeat 25 summary judgment. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997). However, in Godwin, the Ninth Circuit held that “[a]lthough ‘shifting explanations 26 are acceptable when viewed in the context of other surrounding events . . . such weighing of the evidence is for a jury not a judge.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 , 27 1222 (9th Cir. 1988), quoting Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). Because these questions are for the jury, the Court does not consider Defendant’s “shifting 28 explanations” arguments in the context of either Plaintiff’s discrimination or retaliation claims. 1 would have been up to the “business” (which includes Mr. Shepard) even though 2 Defendant initially asserted that Ms. Everett was the ultimate decision-maker. (Resp. at 11; 3 PSOF ¶¶ 73, 74, 82, 84, Ex. G.) While none of the facts discussed above are direct evidence 4 of pretext, each works to establish pretext indirectly by calling into question the credibility 5 of Defendant’s proffered reasons for Plaintiff’s termination. 6 Given the evidence of Mr. Shepard’s comments and behavior—presented as part of 7 Plaintiff’s prima facie claim and discussed above—Plaintiff has properly raised a genuine 8 issue of material fact regarding the truth of Defendant’s explanation for her termination. 9 Chuang, 225 F.3d at 1127 . The evidence is also sufficient to rebut the same-actor inference. 10 For example, although Mr. Shepard was involved in Plaintiff’s promotion to Team Lead, 11 Plaintiff also testified that he told her that she was promoted because of diversity and 12 inclusion. (PSOF ¶¶ 58, 93.) Plaintiff was never asked about this comment during 13 Ms. Everett’s investigation, despite that fact that it was in her January 7, 2019 complaint. 14 (DSOF, Ex. 36.) 15 Plaintiff also testified about an incident where Ms. Bereal (African American, 16 female) was coming into town the same day as a luncheon in the conference room across 17 from Mr. Shepard’s office. (Patocs Dep. 96:17-19.) Foods at the luncheon had included 18 items such as fried chicken and sweet tea, and Mr. Shepard said something effect of, 19 “[Ms. Bereal] is black and we can’t have a meeting with black food out in front of the 20 conference room.” (Patocs Dep. 97:10-12.) Plaintiff claims that Mr. Shepard also alluded 21 to her race, saying something like “you should know this.” (Patocs Dep. 97:8.) Mr. Shepard 22 acknowledges that the incident took place, although his telling of it differs from that of 23 Plaintiff: 24 I am aware that one of the incidents Plaintiff raises in this lawsuit involves me trying to get fried chicken and collard greens cleaned up before a 25 Cultivate meeting in the conference room outside of my office at the time. During that incident, I never referred to fried chicken as “black food.” I was 26 worried that the food remnants outside a Cultivate meeting could be perceived as racist and was attempting to explain to the Team Leads that it 27 could be perceived as racist. To me, it was a teaching moment for the Team Leads since I was having them spend a significant amount of time learning 28 about diversity and inclusion at that time. 1 (Shepard Dec. ¶ 34.) While Defendant points out that other Team Leads deny witnessing 2 any inappropriate behavior or comments, Plaintiff maintains that many of Mr. Shepard’s 3 statements were made without any witnesses present. (PSOF ¶¶ 68-69.) 4 Thus, a reasonable fact-finder could find that race or sex was a “motivating factor” 5 in Defendant’s decision-making. 42 U.S.C. 2000e-2(m). Plaintiff has met her burden of 6 proof for showing pretext at the summary judgment stage. Plaintiff has presented evidence 7 that creates a genuine issue of material fact as to whether Defendant discriminated against 8 her because of her sex or race. 42 § U.S.C. 2000e-2(a)(1). Summary judgment is not 9 appropriate for Plaintiff’s Title VII race or sex discrimination claim. Celotex, 477 U.S. at 10 323. — 11 — 4. Plaintiff Cannot Establish a Prima Facie Case of 42 U.S.C. § 1981 12 Race Discrimination 13 On the other hand, a reasonable fact-finder could not find that race was the 14 motivating factor in Defendant’s decision-making, as required under 42 U.S.C. § 1981 . 15 Compare Comcast Corp. v. Nat’l Assn. of African American-Owned Media, 140 S. Ct. 16 1009 (2020) with Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020); see also Arevalo17 Carrasco v. Middleby Corp., 851 F. App’x 628 , 630–31 (7th Cir. 2021) (discussing 18 Comcast and Bostock and finding “[u]nder § 1981, the race-or ethnicity-based 19 discrimination must have been the determinative reason for his firing. If discrimination 20 were merely one reason for his termination, Arevalo could still prevail under Title VII’s 21 ‘motivating factor’ standard.”). 22 Defendant has presented evidence that other African Americans were involved in 23 employment decisions concerning Plaintiff. (DSOF ¶¶ 9, 31, 77.) Ms. Everett 24 recommended Plaintiff’s discharge, and the “business” (which included Mr. Shepard) 25 signed off on it, but as Defendant points out, so did Ms. Bereal, an African American 26 female. (DSOF ¶¶ 63, 77.) “When a decision maker is in the same [protected] group as the 27 employee complaining about an adverse decision, the employee faces a more difficult 28 burden in establishing that a discriminatory animus played a role in the decision 1 complained about.” Jackson v. Foodland Super Mkt., Ltd., 958 F. Supp. 2d 1133, 1146 , (D. 2 Haw. July 25, 2013) (internal quotations omitted). 3 While Plaintiff has met the burden of proof to show that race or sex may have been 4 a motivating factor in her termination, as discussed supra, she falls short on her 42 U.S.C. 5 § 1981 claim. 6 B. Plaintiff’s Retaliation Claims 7 Title VII also makes it an unlawful employment practice for an employer to retaliate 8 against an employee because she has opposed any practice made unlawful by Title VII or 9 because she has made a charge, testified, assisted, or participated in any manner in an 10 investigation under Title VII. 42 U.S.C. § 2000e–3(a). — 11 — 1. Plaintiff Can Establish a Prima Facie Case of Title VII and — 12 — 42 U.S.C. § 1981 Retaliation 13 The McDonnell Douglas burden-shifting framework may also be applied to Title 14 VII retaliation claims. See Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 784 (9th 15 Cir. 1986.) A plaintiff may establish a prima facie case of retaliation by showing that 16 (1) she engaged in a protected activity; (2) her employer subjected her to an adverse 17 employment action; and (3) a causal link exists between the protected activity and the 18 adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The burden then 19 shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse 20 employment action. Id. Finally, the burden shifts back to the plaintiff to show that the 21 defendant’s proffered reason was pretext for a discriminatory motive. Id. 22 a. Protected Activity 23 A plaintiff in a retaliation claim must show that she engaged in a statutorily 24 protected activity, such as opposing unlawful employment discrimination directed against 25 employees protected by Title VII. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994). 26 “Courts have not imposed a rigorous requirement of specificity in determining whether an 27 act constitutes ‘opposition[.]’” E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008 , 1013 28 (9th Cir. 1983). “When an employee reasonably believes that discrimination exists, 1 opposition thereto is opposition to an employment practice made unlawful by Title VII 2 even if the employee turns out to be mistaken as to the facts.” Sias v. City Demonstration 3 Agency, 588 F.2d 692, 695 (9th Cir. 1978). “[A] person can ‘oppose’ by responding to 4 someone else’s question just as surely as by provoking the discussion[.]” Crawford v. 5 Metro. Gov’t of Nashville & Davidson Cty., Tennessee, 555 U.S. 271, 277 (2009). “Making 6 an informal complaint to a supervisor is . . . a protected activity.” Ray v. Henderson, 217 7 F.3d 1234 , 1240 n.3 (9th Cir. 2000). 8 Defendant argues that Plaintiff’s complaints to Ms. Crawley and Mr. Nettles in July 9 2018 do not constitute engagement in protected activity because both Ms. Crawley and 10 Mr. Nettles were subordinate to Mr. Shepard and neither was Plaintiff’s supervisor.6 (Mot. 11 at 13; DSOF ¶¶ 29-30.) Although it is unlikely that Plaintiff’s complaint to Ms. Crawley, 12 a Team Manager only one level above Plaintiff who was not responsible for supervising 13 Plaintiff, was a protected activity, there is evidence to support Plaintiff’s claim that 14 Mr. Nettles operated in a supervisory capacity. (PSOF ¶ 30.) Mr. Nettles contends that he 15 was never Plaintiff’s “direct supervisor,” but as a Client Services Director, Mr. Nettles was 16 three levels above Plaintiff. (Nettles Dec. ¶ 11; PSOF ¶ 30.) Both parties agree that he 17 helped Mr. Shepard run the Team Lead program and he was present during Plaintiff’s 18 coaching sessions. (DSOF ¶¶ 9, 35; Ex. 23.) When Plaintiff requested to work from home 19 during the internal investigation, it was suggested that she report to Mr. Nettles instead of 20 Mr. Shepard, indicating his supervisory role. (DSOF ¶ 60.) 21 However, the Court also notes that there is a dispute as to the content of Plaintiff’s 22 complaint to Mr. Nettles. Mr. Nettles explained: — 23 — 24 6 Defendant cites only a case from the Fifth Circuit, addressing a hostile work environment claim, to support this argument. (Mot. at 13, citing Williams v. Barnhill's Buffet Inc., 290 25 F. App’x 759, 763 (5th Cir. 2008).) Defendant’s parenthetical could even be construed as misleading: it reads “informal complaints to co-workers insufficient,” but the full context 26 makes clear that informal complaints to co-workers were insufficient to put the Defendant on notice of the need to address allegedly harassing behavior. Williams, 290 F. App’x at 27 763. In other words, the Fifth Circuit was not considering protected activity in the context of a retaliation claim. Plaintiff’s briefing was equally unhelpful. The Court’s own research 28 yielded several relevant cases from this Court, dozens of relevant cases from this District, and hundreds of relevant cases from the Ninth Circuit at large. 1 Plaintiff came to me on one occasion with concerns about Shepard. She said that Shepard had called her “crazy” during a huddle, in front of the other 2 Team Leads. At no time during this conversation with Plaintiff did I yell at her or otherwise snap at her. I did not tell Plaintiff to stop talking or say that 3 what she was saying was very dangerous. Plaintiff never told me that Shepard “cursed her out” or anything to that effect. At no time during the conversation 4 did Plaintiff indicate or suggest that she believed Shepard’s alleged “crazy” comment was due to her race, sex, or any other protected characteristic. I 5 asked Plaintiff if she wanted to go to Human Resources or try to address it directly with Shepard. She said she wanted to address it directly with 6 Shepard. 7 (Nettles Dec. ¶ 43.) Plaintiff, on the other hand, testified that she told Mr. Nettles “that the 8 guys don’t get treated the same as I do, and that nobody else looks like me, and that I am 9 being treated differently.” (Patocs Dep. 90:1-3.) Plaintiff claims that Mr. Nettles “snapped” 10 at her, and told her to “stop talking,” and that what she was saying was “very dangerous.” 11 (Patocs Dep. 90:5-8.) No other witnesses were present. (Patocs Dep. 89:23-24.) 12 Plaintiff has presented evidence that creates a genuine issue of material fact as to 13 whether her complaint to Mr. Nettles was a protected activity. Thus, the first prong of her 14 retaliation claim is satisfied. 15 b. Adverse Employment Action 16 As discussed above, for a discrimination claim, an adverse employment action is 17 one that materially affects the compensation, terms, conditions, or privileges of 18 employment. Davis, v. Team Elec. Co., 520 F.3d at 1089 . For a retaliation claim, a plaintiff 19 must show that the alleged adverse employment actions were “harmful to the point that 20 they could well dissuade a reasonable worker from making or supporting a charge of 21 discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The 22 Ninth Circuit construes adverse employment actions broadly and has found that a “wide 23 array of disadvantageous changes in the workplace constitute adverse employment 24 actions.” Ray, 217 F.3d at 1240 . 25 To reiterate, Defendant characterizes Plaintiff’s alleged adverse actions as follows7: 26 (1) the “coaching and scrutiny” Plaintiff experienced; (2) Plaintiff’s assignment to a less27 desirable desk space; (3) Plaintiff’s assignment to phone duty; (4) Defendant’s failure to 28 7 The Court does not include the second item from Defendant’s original list, as Plaintiff does not allege that this action was retaliatory. (Mot. at 7; Resp. at 13.) 1 promote Plaintiff; (5) Plaintiff’s placement on paid leave pending the internal investigation; 2 (6) an inadequate internal investigation; (7) Plaintiff’s assignment to the SA Project, and 3 later removal from that project; and (8) Plaintiff’s termination. (Mot. at 7.) 4 To begin, the parties have already agreed that Plaintiff’s termination may constitute 5 an adverse action. (See Mot. at 7.) Thus, the Court does not discuss it in depth here. The 6 Court has also determined that several of Plaintiff’s alleged actions were not adverse as a 7 matter of law for the purposes of her discrimination claim. Likewise, the coaching and 8 scrutiny Plaintiff experienced, and Defendant’s inadequate internal investigation are not 9 adverse actions for the purposes of her retaliation claim. See Signal v. Gonzalez, 430 F. 10 Supp. 2d. 528, 541 (D.S.C. 2006) (“Increased scrutiny of an employee under the general 11 policies and disciplinary procedures governing her employment is . . . not an adverse 12 employment action.”); Cozzi, 787 F. Supp. 3d at 1069 (“[T]he failure to conduct an 13 adequate investigation after an alleged act of discrimination . . . cannot be considered an 14 action that reasonably would deter an employee from engaging in the protected activity 15 under Title VII.”). 16 Additionally, Plaintiff’s assignment and removal from the SA Project was not an 17 adverse action for the purposes of Plaintiff’s retaliation claim, and nor was her 18 reassignment to a desk near the bathroom. See Anderson v. Arizona, No. CV06-0081719 PHX-NVW, 2007 WL 1461623 , at *15 (D. Ariz. May 16, 2007) (finding no adverse 20 employment action where additional demands and requests, while onerous, fell within the 21 plaintiff’s job title); Smith v. County of Humboldt, 240 F. Supp. 2d 1109, 1121 (N.D. Cal. 22 2003) (finding no adverse action where the plaintiff was reassigned to a desk near the door). 23 However, while Defendant’s failure to promote Plaintiff failed to satisfy the 24 standard for an adverse action for her discrimination claim, a reasonable jury could find 25 that it constitutes an adverse action for the purposes of her retaliation claim, because it 26 could dissuade a reasonable worker from making or supporting a charge of discrimination. 27 See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (“Among those — 28 — 1 employment decisions that can constitute an adverse employment action are . . . refusal to 2 consider for promotion.”). 3 Plaintiff’s assignment to phone duty can also be construed as a retaliatory adverse 4 action. See Burlington, 548 U.S. at 70-71 (“Almost every job category involves some 5 responsibilities and duties that are less desirable than others. Common sense suggests that 6 one good way to discourage an employee . . . from bringing discrimination charges would 7 be to insist that she spend more time performing the more arduous duties and less time 8 performing those that are easier or more agreeable.”). 9 Finally, the Ninth Circuit has found that under certain circumstances, placing an 10 employee on paid leave can constitute an adverse employment action for a retaliation 11 claim. Dahlia v. Rodriguez, 735 F.3d 1060, 1078 (9th Cir. 2013). Thus, a reasonable jury 12 could also find an adverse action in Plaintiff’s placement on paid leave pending the internal 13 investigation. 14 c. Causation 15 In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court 16 decided that a plaintiff has a heightened standard for proving causation in retaliation 17 claims—she must show that her engagement in a protected activity was a “but-for” cause 18 of the defendant’s imposition of an adverse employment action. 570 U.S. 338, 362 (2013). 19 Plaintiff presents no direct evidence that her complaints were the but-for cause of 20 an adverse employment action. However, she alleges that that the causation prong is 21 satisfied based on the temporal proximity of her complaints and Defendant’s adverse 22 actions, culminating in her termination. (Resp. at 16.) Defendant argues that, despite the 23 temporal proximity, Plaintiff’s case must fail on the causation prong because Plaintiff’s 24 performance issues are significant intervening events that break the chain of causation. 25 (Mot. at 13-14 (citing Lee v. Eden Medical Center, 690 F. Supp. 2d 1011, 1026 (N.D. Cal. 26 2010) (same-day temporal proximity insufficient where an intervening event occurred)).) 27 Above, the Court found that Plaintiff’s first potential protected activity was her 28 July 12, 2018 complaint to Mr. Nettles. (PSOF ¶ 53.) A few months later, in the fall or 1 winter, Plaintiff was told not to bother applying for the Team Manager position. (DSOF 2 ¶¶ 41, 46.) She was placed on phone duty January 7, 2019, shortly after she was told not to 3 apply for the promotion. (PSOF ¶ 50.) The Court finds this temporal proximity sufficient 4 to satisfy Plaintiff’s burden at this stage. 5 Even if a jury does not find that Plaintiff’s complaint to Mr. Nettles was a protected 6 activity, she can still satisfy the causation prong. Plaintiff made her complaint to Ms. Bond 7 on January 7, 2019. (DSOF ¶ 58.) She was placed on paid leave on January 11, 2019, and 8 her access to all ADP systems was cut off. (Patocs Dep. 210:13-211:7.) Plaintiff was 9 terminated on January 22, 2019. (PSOF ¶ 73.) As the Court has discussed throughout this 10 Order, Plaintiff has provided evidence to show that raising the issue of discrimination was 11 the but-for cause of the investigation, and therefore also the but-for cause of her placement 12 on paid leave. In fact, one alleged reason for her termination was the fact that Plaintiff 13 “misled” the investigation. 14 For these reasons, the Court finds that the causation prong is met. — 15 — 2. Defendant Has Articulated Legitimate, Non-Discriminatory 16 Reasons for the Adverse Employment Action 17 Defendant has articulated legitimate, non-discriminatory reasons for each of its 18 adverse employment actions against Plaintiff. As discussed above, Defendant asserts that 19 its failure to promote Plaintiff, as well as her termination, were justified based on her poor 20 performance and alleged dishonesty. Defendant also claims that Plaintiff’s assignment to 21 phone duty was not retaliatory, but was due to an increased call volume, and Plaintiff was 22 not alone in being assigned to phone duty. (Mot. at 11; DSOF ¶ 50.) Finally, Defendant 23 contends that placing Plaintiff on paid leave was the only possible way for it to navigate 24 the situation—Plaintiff was uncomfortable reporting to Mr. Shepard and Mr. Nettles, and 25 wanted to work from home, but Defendant lacked the ability to have Plaintiff work from 26 home at that point in time. (DSOF ¶¶ 60-61, Ex. 1, Declaration of Andrea Bereal (“Bereal 27 Dec.”) ¶ 57; Ex. 5, Declaration of Sonya Everett (“Everett Dec.) ¶¶ 41.) — 28 — 1 3. Plaintiff Has Shown that Certain of Defendant’s Reasons Could be Pretext — 2 — 3 The Court applies the same standard for pretext to Plaintiff’s retaliation claim that 4 it used for her discrimination claim, discussed supra. 5 Plaintiff points to evidence to rebut Defendant’s proffered reasons for its adverse 6 actions. As discussed above, Plaintiff’s positive performance review is sufficient to show 7 that Defendant’s claim that Plaintiff was not promoted, and eventually terminated for 8 performance issues, is internally inconsistent. (Resp. at 9; DSOF ¶ 26, Ex. 17.) There are 9 also genuine issues of material fact surrounding Plaintiff’s alleged failure to provide 10 complete documentation to Ms. Everett. (See supra at 12-13.) 11 Plaintiff has also presented evidence that Defendant’s proffered reason for placing 12 her on paid leave could be pretext. Plaintiff wanted to work from home or work on a 13 different floor and Defendant claimed this was not a possibility. Plaintiff testified that she 14 had previously worked from home “many times” as a Team Leader. (Patocs Dep. 15 177:9-24.) Further, just a year later, all of ADP’s employees were working from home due 16 to the Covid-19 pandemic. (Bereal Dec. ¶ 57.) 17 On the other hand, Plaintiff fails to demonstrate that Defendant’s reasons for placing 18 her on phone duty were pretextual. As Ms. Bereal explained, the needs of clients sometime 19 necessitate placing Team Leads on phone duty—at year end it was “not uncommon” for 20 ADP to have 400 clients calling in and waiting on hold for two or more hours. (Bereal Dec. 21 ¶ 51.) Plaintiff has not presented evidence to show that this reasoning is false or 22 inconsistent. 23 For the foregoing reasons, genuine issues of material fact remain, and summary 24 judgment is not appropriate for Plaintiff’s Title VII or 42 U.S.C. § 1981 retaliation claims. 25 C. Harassment Claims 26 To state a Title VII or 42 U.S.C. § 19818 claim of racial or sexual harassment based 27 on a hostile work environment, Plaintiff must raise a triable issue of fact as to whether 28 8 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 1 (1) Defendant subjected her to verbal or physical conduct based on her race or sex; (2) the 2 conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter 3 the conditions of her employment and create an abusive working environment. Surrell, 518 4 F.3d at 1108. “Allegations of a racially hostile workplace must be assessed from the 5 perspective of a reasonable person belonging to the racial . . . group of the plaintiff.” Id. In 6 assessing the third factor, the conduct must be severe and pervasive enough to both 7 subjectively and objectively create an abusive environment. Id. While there is no exact test 8 to determine whether the environment is objectively abusive, factors to consider include 9 the frequency and severity of the conduct. Harris v. Forklift Sys., Inc., 510 U.S. 17 , 22–23 10 (1993). Although “an isolated incident of harassment by a co-worker will rarely . . . give 11 rise to a reasonable fear” that the harassment is a permanent condition of employment, an 12 employer may be liable if the plaintiff shows that she feared she “would be subject to such 13 misconduct in the future because . . . [defendant] tolerated” the harasser’s conduct. Brooks 14 v. City of San Mateo, 229 F.3d 917 , 923–24 (9th Cir. 2000). “If the employer fails to take 15 corrective action after learning of an employee’s sexually harassing conduct, or takes 16 inadequate action,” one may infer that the employer has ‘“adopt[ed] the offending 17 conduct.’” Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (alteration in original) 18 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998)). However, the 19 employer cannot be liable for “misconduct of which it is unaware.” Id. — 20 — 1. Plaintiff cannot establish a prima facie case of Title VII and — 21 — 42 U.S.C. § 1981 racial and sexual harassment. 22 Plaintiff alleges that the following comments demonstrate that she was subjected to 23 harassment: (1) Ms. Bereal telling her on one occasion, “[w]ell, you know, you have a lot 24 of things against you. You’re a woman of color. You’re very young. How are you going to 25 get people to respect you?”; (2) Mr. Nettles saying on one occasion, “I’m not letting, like, 26 a couple of black girls cat fight in my office;” (3) Mr. Shepard showing the team leads an 27 SNL skit that “characterized black people” on one occasion; (4) Mr. Shepard referring to 28 (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. 1 fried chicken as “black food” on one occasion; (5) Mr. Shepard stating on one occasion 2 that Plaintiff received her Team Lead position because of diversity and inclusion efforts; 3 (6) Mr. Shepard saying on one occasion that he thinks black women are very attractive and 4 that he loves natural hair; (7) Mr. Shepard saying on one occasion that he had missed the 5 opportunity to see “two black girls duking it out;” and (8) Mr. Shepard calling Plaintiff his 6 “work wife” on 5-10 occasions. (Mot. at 16 (summarizing Plaintiff’s allegations).) 7 Defendant argues that Plaintiff’s allegations fall short of establishing a prima facie 8 case of sexual harassment. (Mot. at 15.) According to Defendant, even if all of Plaintiff’s 9 allegations are taken as true, she cannot show that the harassment was severe or pervasive 10 enough to alter the conditions of her employment. (Mot. at 15, citing Vasquez, 349 F.3d 11 at 642.) 12 To support her racial and sexual harassment claim, Plaintiff highlights the fact that 13 she asked Ms. Everett to investigate the “daily abuse” she experienced as Mr. Shepard’s 14 subordinate. (Resp. at 16; PSOF ¶ 72.) She claims that Mr. Shepard’s alleged comments 15 and actions, which the Court has discussed throughout this Order and does not repeat here, 16 created an “objectively hostile work environment.” (Resp. at 16-17.) 17 The Court agrees with Defendant. Not only is Plaintiff’s argument conclusory and 18 unsupported by any case law, but her allegations also consist of sporadic comments over 19 the course of a nearly one-year period. Courts in the Ninth Circuit have consistently held 20 that such comments are not sufficient for a hostile work environment claim to survive. See 21 Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (no hostile work 22 environment where on several occasions the supervisor referred to females as “castrating 23 bitches,” “Madonnas,” or “Regina” in front of the plaintiff, and directly referred to the 24 plaintiff as “Medea”). 25 2. Defendant’s Faragher-Ellerth Affirmative Defense 26 Defendant also moves for summary judgment on Plaintiff’s hostile work 27 environment claim pursuant to its twelfth affirmative defense. Employers may assert the 28 Faragher-Ellerth defense to liability and damages if they are able to prove that: (1) the employer exercised reasonable care to prevent and correct any harassing behavior 2|| promptly; and (2) the employee unreasonably failed to take advantage of any preventative || or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher 4||_ v. City of Boca Raton, 524 U.S. 775, 807 (1998). Because the Court dismisses Plaintiff’s 5 || harassment claim for the reasons outlined above, it does not reach Defendant’s twelfth 6|| affirmative defense. 7 IT IS THEREFORE ORDERED granting in part Defendant’s Motion for 8 || Summary Judgment and dismissing Plaintiff’s 42 U.S.C. § 1981 discrimination claim and 9} Plaintiff’s Title VII and 42 U.S.C. § 1981 harassment claims. (Doc. 42.) 10 IT IS FURTHER ORDERED denying Defendant’s Motion for Summary 11 || Judgment as to Plaintiff’s Title VII discrimination claim and Plaintiff’s Title VII and 42 U.S.C. § 1981 retaliation claims. (Doc. 42.) These claims will proceed to trial. The 13 || Court will set a pretrial status conference by separate Order. 14 Dated this 12th day of July, 2022. CN 16 folee— Unifga StatesDistrict Judge — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — - 28 -