Redd-Oyedele v. Santa Clara County Office of Education

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA — 3 — 4 ANN GERTHELIA REDD-OYEDELE, Case No. 20-cv-00912-SVK 5 Plaintiff, ORDER ON MOTIONS FOR 6 v. SUMMARY JUDGMENT 7 SANTA CLARA COUNTY OFFICE OF Re: Dkt. Nos. 95, 96 EDUCATION, et al., — 8 — Defendants. — 9 — 10 Plaintiff Ann Redd-Oyedele, who has been employed by Defendant Santa Clara County 11 Office of Education (“SCCOE”) since June 1991, claims that she was subjected to age 12 discrimination, retaliation, and race discrimination in connection with her unsuccessful 2019 13 application for a promotion to an Assistant Director position in SCCOE’s District Business and 14 Advisory Services (“DBAS”) department. Dkt. 49 (“Third Amended Complaint” or “TAC”); see 15 also Dkt. 49-1 (Plaintiff’s Decl. in Support of TAC) ¶¶ 38-39. All parties have consented to the 16 jurisdiction of a magistrate judge. Dkt. 5, 11. 17 Now before the Court are (1) Plaintiff’s motion for summary judgment (Dkt. 95 (“Pl. 18 MSJ”)) and (2) Defendant’s motion for summary judgment or summary adjudication (Dkt. 96 19 (“Def. MSJ”)). The Court held a hearing on April 12, 2022 via Zoom. After considering the 20 parties’ submissions, arguments at the hearing, the case file, and relevant law, and for the reasons 21 discussed below, Plaintiff’s motion for summary judgment is DENIED and SCCOE’s motion for 22 summary judgment is GRANTED. 23 I. BACKGROUND 24 A. Factual Background 25 1. The Parties 26 Plaintiff is an African-American female who was 56 years old when she applied for the 27 Assistant Director-DBAS position in 2019. Dkt. 98-1 ¶ 7. Plaintiff graduated from San Jose State 1 to Plaintiff, she is not a Certified Public Accountant (“CPA”) but she has acquired other 2 certifications and attended several work-related courses and workshops. Dkt. 49-1 ¶ 15; Dkt. 98-1 3 ¶ 16. 4 Plaintiff has been employed by Defendant SCCOE since June 1991. TAC ¶ 16. At all 5 relevant times, Plaintiff has been employed in SCCOE’s DBAS department. TAC ¶ 17. 6 According to Plaintiff, she was promoted twice during her employment with SCCOE but has been 7 denied promotion on several other occasions, including in 2019. TAC ¶ 17; Pl. MSJ at 9. In 8 2000, Plaintiff filed a race discrimination claim against SCCOE with the Equal Employment 9 Opportunity Commission (“EEOC”), which led to a district court action and an appeal to the Ninth 10 Circuit that concluded in approximately 2003. TAC ¶¶ 64-67. 11 2. SCCOE’s Merit System 12 SCCOE’s Personnel Commission employs a Merit System for employment decisions. 13 Dkt. 96-2 (Munshi Decl.) ¶¶ 3-4. Under the Merit System, the hiring process for certain positions, 14 including the Assistant Director-DBAS position at issue in this case, include a Qualifications 15 Appraisal Interview (“QAI”). Id. ¶ 8 and Ex. 1. During the QAI, which is also known as the 16 panel interview or first interview, a panel of qualified persons evaluate candidates through a 17 scored assessment of their responses to a standard set of questions. Id. ¶ 9. Oral panel 18 examinations assess the relevance and quality of an applicant’s experience, training, skills, and 19 education, as well as the applicant’s specific job knowledge and abilities for the position. Id. ¶ 10. 20 An applicant’s final score is based on all examinations during the hiring process. Id. ¶ 11. 21 Under Merit System Rule 8.11, service credits, or seniority, are added to the “final passing 22 scores of promotional candidates.” Id. ¶ 12 and Ex. 1. If a candidate for promotion fails to attain 23 a passing score during the QAI, the candidate’s service credits are not added to the employee’s 24 score. Id. ¶ 13. 25 3. 2019 Assistant Director-DBAS Job Opening 26 In approximately 2019, SCCOE posted a job listing for the position of Assistant Director 27 in the DBAS department. Dkt. 95-22. SCCOE formed a panel consisting of John Gray, Francie 1 Dkt. 96-5 (Gray Decl.) ¶ 3; Dkt. 96-3 (Heim Decl.) ¶ 3; Dkt. 96-4 (Gomez Decl.) ¶ 3. 2 Plaintiff applied for the Assistant Director-DBAS position in April 2019. See Ex. 2 to 3 Bengston Decl. The panel interviewed Plaintiff on May 7, 2019. Gray Decl. ¶ 4; Heim Decl. ¶ 4; 4 Gomez Decl. ¶ 4. During the interview regarding her qualifications for the position, the panelists 5 asked Plaintiff eight standardized questions that were asked of all candidates. Gray Decl. ¶ 5; 6 Heim Decl. ¶ 5; Gomez Decl. ¶ 5. Each panelist awarded scores between 50 and 100 for each 7 answer. Id. Each panelist added his or her scores and divided by eight (representing the number 8 of questions) to calculate the interviewer’s average score. Gray Decl. ¶ 6; Heim Decl. ¶ 6; Gomez 9 Decl. ¶ 6. Mr. Gray gave Plaintiff an average score of 71.25. Gray Decl. ¶ 7 and Ex. 4. Ms. 10 Heim gave Plaintiff an average score of 69.375. Heim Decl. ¶ 7 and Ex. 4. Ms. Gomez gave 11 Plaintiff an average score of 67.50. Gomez Decl. Gray Decl. ¶ 7 and Ex. 4. To determine 12 Plaintiff’s final AQI interview score, an average score was calculated by adding together the three 13 panelists’ average scores and dividing by three. Munshi Decl. ¶ 14. Plaintiff’s final AQI 14 interview score was 69.38%. Bengston Decl. ¶ 4 and Ex. 7; Munshi Decl. ¶ 17 and Ex. 8. 15 An overall average score of 70% was required to advance in the selection process. Munshi 16 Decl. ¶ 15. Because Plaintiff’s score was 69.38%, she did not pass the QAI exam and could not 17 move forward to the second round of interviews. Id. ¶ 17 and Ex. 8. Pursuant to Merit System 18 Rule 8.11, Plaintiff’s service (seniority) credits were not added to her QAI score because she did 19 not obtain a passing score. Id. ¶ 16. 20 The candidate who was selected for the Assistant Direct-DBAS position was Shanny Yam. 21 Gray Decl. ¶ 8; Heim Decl. ¶ 8; Gomez Decl. ¶ 8. Ms. Yam obtained a QAI score of 73.75 in her 22 initial interview and advanced to the second round of interviews. Gray Decl. ¶ 6; Heim Decl. ¶ 6; 23 Gomez Decl. ¶ 6. According to SCCOE, it ultimately hired Ms. Yam for the position because she 24 has a Bachelor of Science Degree in Accounting, served as a Senior Accountant and a Budget 25 Analyst, and is a Certified Public Accountant. Def. MSJ at 4; see also Gray Decl. ¶¶ 14-15; Heim 26 Decl. ¶¶ 14-15; Gomez Decl. ¶¶ 13-14. 27 B. Procedural History 1 Employment and Housing (“DFEH”) concerning her non-selection for the Assistant Director2 DBAS position. Dkt. 49-2. The United States Equal Employment Opportunity Commission 3 (“EEOC”) issued a right-to-sue letter on November 7, 2019. Dkt. 49-3. Thereafter, Plaintiff 4 timely filed this lawsuit. Dkt. 1. The original complaint named SCCOE and its Superintendent of 5 Schools, Mary Ann Dewan, as Defendants. Id. Plaintiff’s original complaint asserted two causes 6 of action against both Defendants: (1) retaliation in violation of Title VII of the Civil Rights Act 7 of 1964, 42 U.S.C. § 2000e, et seq., and (2) negligent infliction of emotional distress. Dkt. 1. 8 Both Defendants moved to dismiss the original complaint under Rule 12(b)(6). Dkt. 8. 9 The Court denied the motion to dismiss Plaintiff’s Title VII claim against Defendant SCCOE and 10 granted the motion to dismiss the Title VII claim against Dewan without leave to amend. Dkt. 22 11 at 7, 13. The Court dismissed Plaintiff’s claim for negligent infliction of emotional distress 12 against Defendant SCCOE without leave to amend because Plaintiff had failed to comply with the 13 pre-suit notification requirement of the California Government Claims Act, Cal. Gov’t C. 14 §§ 912.4, 945.4 (“CGCA”) and because SCCOE is entitled to Eleventh Amendment immunity on 15 that cause of action. Id. at 9-10, 14. As to the claim for negligent infliction of emotional distress 16 against Dewan, the Court granted the motion to dismiss because if Dewan was sued in her official 17 capacity, Plaintiff’s cause of action for negligent infliction of emotional distress would be barred 18 by Plaintiff’s failure to comply with the California Government Claims Act, and Dewan would 19 also be entitled to Eleventh Amendment immunity. Id. at 10-12, 14-15. However, the Court noted 20 that the original complaint and Plaintiff’s opposition to the motion to dismiss referred to also suing 21 Dewan in her personal or individual capacity. Id. at 15. Accordingly, the Court granted Plaintiff 22 leave to amend her claim for negligent infliction of emotional distress against Dewan to allow 23 Plaintiff an opportunity to state a claim against Dewan in her individual capacity. Id. 24 Plaintiff then filed the First Amended Complaint (Dkt. 23 (“FAC”)), and Defendant 25 SCCOE filed an answer (Dkt. 25). The FAC contained a claim against Dewan for 26 “Intentional/Negligent Infliction of Emotional Distress.” Dkt. 23 at 16. Dewan filed a motion to 27 dismiss the claim against her in the FAC, arguing that (1) she had been sued in her official 1 dismissed because Plaintiff had failed to exhaust her administrative remedies by filing a claim 2 against SCCOE under the CGCA; and (2) Plaintiff had failed to state a cause of action for 3 intentional or negligent infliction of emotional distress. Dkt. 24. The Court granted in part and 4 denied in part Dewan’s motion to dismiss. Dkt. 31. The Court held that the allegations of the 5 FAC were sufficiently clear that Plaintiff had sued Dewan in her individual capacity and therefore 6 denied the motion to dismiss on that ground. Id. at 5. However, the Court granted the motion to 7 dismiss on the ground that the FAC failed to state a claim for either intentional or negligent 8 infliction of emotional distress. Id. at 5-9. The Court granted Plaintiff leave to file a Second 9 Amended Complaint. Id. at 9-10. 10 Plaintiff thereafter filed a Second Amended Complaint. Dkt. 32 (“SAC”). In addition to 11 the claims for age discrimination, race discrimination, and retaliation against SCCOE, the SAC 12 contained a single cause of action against Dewan for negligent infliction of emotional distress. Id. 13 at 15-18. Dewan then moved to dismiss the claim against her in SAC. Dkt. 34. The Court 14 rejected Dewan’s argument that the Court lacked personal jurisdiction over her but granted her 15 motion to dismiss the claim against her for failure to state a claim, without leave to amend. Dkt. 16 41. 17 Thereafter, Plaintiff filed the TAC, which contains claims against SCCOE for (1) violation 18 of the Age Discrimination in employment Act (“ADEA”), (2) race discrimination in violation of 19 Title VII, and (3) retaliation in violation of Title VII. Dkt. 49. SCCOE filed an answer to the 20 TAC. Dkt. 50. 21 Following discovery and numerous discovery disputes, Plaintiff filed a motion for 22 summary judgment (Dkt. 95 (Pl. MSJ)), and Defendant filed a motion for summary judgment or 23 summary adjudication (Dkt. 96 (Def. MSJ)). 24 II. LEGAL STANDARD 25 A party may move for summary judgment on any claim or defense, or for partial summary 26 judgment on part of a claim or defense. Fed. R. Civ. P. 56(a). Summary judgment is appropriate 27 if the moving party shows that there is no genuine dispute as to any material fact and the party is 1 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1985). A genuine dispute of material 2 fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 3 party. Id. 4 The party moving for summary judgment bears the initial burden of informing the court of 5 the basis for the motion and identifying portions of the pleadings, depositions, answers to 6 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material 7 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 8 Where the party moving for summary judgment has the burden of persuasion at trial, such 9 as where the moving party seeks summary judgment on its own claims or defenses, the moving 10 party must establish “beyond controversy every essential element of its [claim].” So. Cal. Gas Co. 11 v. City of Santa Ana, 336 F.3d 885 , 888 (9th Cir. 2003) (citation omitted). Where the moving 12 party seeks summary judgment on a claim or defense on which the opposing party bears the 13 burden of persuasion at trial, “the moving party must either produce evidence negating an essential 14 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 15 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 16 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the 17 moving party meets its initial burden, the burden shifts to the nonmoving party to produce 18 evidence supporting its claims or defenses. Id. at 1103 . If the nonmoving party does not produce 19 evidence to show a genuine issue of material fact, the moving party is entitled to summary 20 judgment. Celotex, 477 U.S. at 323 . 21 “The court must view the evidence in the light most favorable to the nonmovant and draw 22 all reasonable inferences in the nonmovant’s favor.” City of Pomona v. SQM N. Am. Corp., 750 23 F.3d 1036, 1049 (9th Cir. 2014). However, the party opposing summary judgment must direct the 24 court’s attention to “specific, triable facts.” So. Cal. Gas, 336 F.3d at 889. “[T]he mere existence 25 of a scintilla of evidence in support of the plaintiff’s position” is insufficient to defeat a motion for 26 summary judgment. Anderson, 477 U.S. at 252 . “Where the record taken as a whole could not 27 lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” 1 Corp., 475 U.S. 574, 587 (1986)). 2 III. DISCUSSION 3 A. Evidentiary Objections 4 Under Federal Rule of Civil Procedure 56(c)(2), a party may object to the opposing party’s 5 declarations and evidentiary material if such material “cannot be presented in a form that would be 6 admissible in evidence.” In its opposition to Plaintiff’s MSJ, SCCOE objects to three items of 7 evidence cited in support of Plaintiff’s MSJ. The Court discusses each objection in turn. 8 1. Declaration of Pat Blanson (Dkt. 95-18) 9 SCCOE objects to the entirety of the Declaration of Pat Blanson submitted with Plaintiff’s 10 MSJ on the grounds that Blanson’s employment with SCCOE ended in 2007, and the statements 11 in the declaration do not relate in any way to the May 2019 hiring decision at issue in this case. 12 Dkt. 97 at 8. The Court SUSTAINS the objection on relevance grounds. 13 2. Declaration of Marilyn Derouen (Dkt. 49-5) 14 SCCOE objects to the entirety of the Declaration of Marilyn Derouen submitted with 15 Plaintiff’s MSJ on the grounds that Derouen was employed in a different department than 16 Plaintiff, she was supervised by different SCCOE employees, and she played no role in the May 17 2019 hiring decision at issue in this case. Dkt. 97 at 8-9. The Court SUSTAINS the objection on 18 relevance grounds. 19 3. Timeline of Events (Dkt. 49-6) 20 SCCOE objects to a timeline filed by Plaintiff as an exhibit to the TAC (Dkt. 49-6), which 21 is referenced in Plaintiff’s MSJ (Pl. MSJ at 17, 18), on the grounds that the timeline is not a 22 declaration, it lacks foundation, and it is hearsay. Dkt. 97 at 9. This objection is SUSTAINED as 23 to lines 1-5 (directed at positions not the subject of this litigation) on relevance grounds and 24 OVERRULED as to lines 6-7 which are directed at the subject position and about which SCCOE 25 could have questioned Plaintiff in deposition in mitigation of concerns regarding foundation and 26 credibility. 27 B. Issues Remaining in Case 1 before 2019. See, e.g., Pl. MSJ at 8-9. SCCOE argues that only Plaintiff’s unsuccessful 2 application for a promotion to the Assistant Director-DBAS position in 2019 remains at issue. 3 Dkt. 97 at 2-3; see also Def. MSJ at 16. SCCOE is correct. 4 This case arises out of Plaintiff’s EEOC claim concerning her application for the 2019 5 Assistant Director-DBAS position, as distinct from her previous EEOC claims concerning other 6 positions. See TAC at ¶¶ 74-79 and Exs. P1 and P2 to TAC (Dkt. 49-2, 49-3). In a CMC 7 Statement filed in January 2022, Plaintiff identified the legal issues in this case as concerning her 8 non-promotion in 2019. Dkt. 83 at 3. Plaintiff acknowledges in her reply in support of her motion 9 for summary judgment that “the anecdotal facts narrated in Plaintiffs’ MSJ” are simply 10 “[h]istorical background and introductory facts.” Dkt. 98 at 3. 11 Accordingly, Plaintiff’s claims in this case concern her application for the Assistant 12 Director-DBAS position in 2019, and the Court now considers whether either party is entitled to 13 summary judgment on those claims. 14 C. Age Discrimination Claim 15 Under the ADEA, it is unlawful for any employer to take an adverse action against an 16 employee “because of such individual’s age.” 29 U.S.C. § 623 (a). Where, as in this case, there is 17 no direct evidence of discrimination, courts generally employ the three-step burden-shifting 18 framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) in 19 deciding motions for summary judgment in age discrimination cases. Shelley v. Geren, 666 F.3d 20 599, 607-08 (9th Cir. 2012); see also Krylova v. Genentech, 37 F. Supp. 3d 1156, 1163 (N.D. Cal. 21 2014). In a failure-to-promote case, a plaintiff may establish a prima facie case of age 22 discrimination by showing that: (1) at the time of the alleged employment action, she was 40 years 23 old or older; (2) she was qualified for the position for which she applied; (3) she was denied the 24 position; and (4) the promotion was given to a substantially younger person. Shelley, 666 F.3d at 25 608. The proof necessary for a plaintiff to establish a prima facie case within the McDonnell 26 Douglas framework is “minimal and does not even need to rise to the level of a preponderance of 27 the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The plaintiff need 1 omitted). 2 If the plaintiff proves her prima facie case, the burden of production then shifts to the 3 employer to articulate a legitimate, nondiscriminatory reason for the alleged action. Shelley, 666 4 F.3d at 608. If the employer does so, the burden shifts back to the plaintiff to show that the 5 articulated reason is pretextual. Id. A plaintiff may demonstrate pretext either directly by 6 persuading the court that discriminatory reasons more likely motivated the employer or indirectly 7 by showing that the employer’s proffered explanation is “unworthy of credence.’” Id. at 609 8 (citations omitted). 9 The ultimate burden of persuading the trier of fact that the employer intentionally 10 discriminated remains at all times with the plaintiff. See Reeves v. Sanderson Plumbing Prods., 11 Inc., 530 U.S. 133, 143 (2000). 12 1. Prima Facie Case 13 Defendant does not dispute that Plaintiff was over 40 years old when she applied for the 14 Assistant Director-DBAS position in 2019 or that she was denied the promotion in favor of 15 Ms. Yam, who was substantially younger. See Def. MSJ at 1. However, SCCOE argues that 16 Plaintiff cannot establish a prima facie case of age discrimination because she was not qualified 17 for the Assistant Director position, as evidenced by the fact that Plaintiff obtained a non-passing 18 score on the QAI Interview. Id. at 10. SCCOE also suggests that Plaintiff cannot establish a 19 prima facie case of age discrimination because the selection board members were not aware of her 20 age at the time they selected another candidate for the Assistant Director position. Id. at 5. 21 For purposes of determining whether an applicant meets the “qualified” requirement for a 22 prima facie case of employment discrimination, objective rather than subjective criteria apply. 23 Nicholson v. Hyannis Air Service, Inc., 580 F.3d 1116, 1123 (9th Cir. 2009). Here, SCCOE offers 24 no evidence that Plaintiff was not objectively qualified for the Assistant Director-DBAS position. 25 SCCOE cites Plaintiff’s score on the QAI test, but such a test result does not mean that Plaintiff 26 was not objectively qualified. See Hines v. Cal. Public Util. Commn., No. C 07-04145 CW, 2010 27 WL 2985536 , at *6 (N.D. Cal. July 27, 2010). To the extent SCCOE argues that the candidate 1 Plaintiff’s burden to make out a prima facie case but instead to whether SCCOE has met its burden 2 of showing a legitimate, non-discriminatory reason for Plaintiffs’ non-selection and is addressed in 3 the discussion below. See id.; see also Oliphant v. City and Cnty. of San Francisco, No. C-084 5048-MMC, 2010 WL 1875711 , at *4 (N.D. Cal. May 7, 2010). 5 Any suggestion by SCCOE that Plaintiff cannot establish a prima facie case because the 6 hiring panelists were unaware of her age also fails. It is true that a plaintiff “cannot make a prima 7 facie case where a decision-maker is unaware of the basis for discrimination.” Wong v. Wells 8 Fargo Bank, N.A., No. 20-CV-00249-YGR, 2021 WL 4243398 , at *7 (N.D. Cal. Sep. 17, 2021). 9 Here, however, Plaintiff has presented evidence that at least one member of the selection panel 10 may have been aware of her age. Dkt. 99-1 ¶ 15. 11 Accordingly, Plaintiff has established a prima facie case of age discrimination. Plaintiff 12 was objectively qualified for the Assistant Director-DBAS position she applied for in 2019, as 13 evidenced by the undisputed fact that she was eligible to apply for the position. Additional 14 undisputed objective evidence of Plaintiff’s qualifications are the similar job descriptions for the 15 Senior Advisor position held by Plaintiff (Dkt. 95-20) and the Assistant Director-DBAS position 16 (Dkt. 95-22) at the center of this dispute. Dkt. 95 at 11. Plaintiff’s non-passing score on the QAI 17 Interview does not establish her lack of objective qualifications for the position, although it is 18 relevant to SCCOE’s argument, addressed below, that the candidate it selected was more qualified 19 2. Non-Discriminatory Justification 20 In articulating a non-discriminatory justification for Plaintiff’s non-promotion, SCCOE 21 “‘need not persuade the court that it was actually motivated by the proffered reasons,’ but simply 22 has the burden to ‘raise a genuine issue of fact as to whether it discriminated against the 23 plaintiff.’” Howard v. Cumulus Media Inc., No. C 12-4880 CRB, 2013 WL 5913754 , at *5 (N.D. 24 Cal. Nov. 1, 2013) (quoting Tex. Dep. of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). 25 SCCOE claims that it hired Ms. Yam instead of Plaintiff because of Ms. Yam’s superior 26 qualifications. Def. MSJ at 4, 10-11; see also Gray Decl. ¶¶ 14-15; Heim Decl. ¶¶ 14-15; Gomez 27 Decl. ¶¶ 13-14. Specifically, SCCOE cites Ms. Yam’s previous audit experience, including 1 experience, as well as the fact that she is a CPA. Id. Notably, Ms. Yam also obtained a higher 2 QAI score than Plaintiff during the interview process. Gray Decl. ¶ 15; Heim Decl. ¶ 15; Gomez 3 Decl. ¶ 15. 4 SCCOE’s proffered justification for selecting Ms. Yam instead of Plaintiff for the 5 Assistant Director-DBAS position is sufficient to satisfy its burden of demonstrating a non6 discriminatory justification for its hiring decision. See generally Shelley, 666 F.3d at 609 . 7 Accordingly, the burden shifts back to Plaintiff to demonstrate that SCCOE’s proffered reasons 8 are pretexts for discrimination. Id. 9 3. Pretext 10 As explained above, a plaintiff may establish pretext either directly by persuading the court 11 that a discriminatory reason more likely motivated the employer or indirectly by showing that the 12 employer's proffered explanation is “unworthy of credence.” Shelley, 666 F.3d at 609 . If direct 13 evidence of discrimination is offered, “a triable issue as to the actual motivation of the employer is 14 created even if the evidence is not substantial.” Godwin, 150 F.3d at 1221. In contrast, if a 15 plaintiff offers circumstantial evidence of discrimination in support of pretext, “it must be specific 16 and substantial ... to create a triable issue” regarding the employer’s intent. Id. at 1222 (citations 17 omitted). Here, Plaintiff falls short on both fronts. 18 Plaintiff has not offered direct evidence of discrimination. Moreover, the circumstantial 19 evidence cited by Plaintiff does not demonstrate that the SCCOE’s proffered reasons for selecting 20 Ms. Yam are “unworthy of credence.” Rather the circumstantial evidence cited by Plaintiff boils 21 down to Plaintiff’s refrain that she believes she was more qualified than Ms. Yam for the Assistant 22 Director-DBAS position. See, e.g., Pl. MSJ at 9-10 (citing Plaintiff’s seniority, work longevity, 23 relevant work experience, ranking in other job applications, and performance of same duties as 24 Assistant Director). The focus of many of Plaintiff’s complaints is that she had more seniority 25 than Ms. Yam (id.), but as explained above under SCCOE’s Merit System Rule 8.11, an 26 applicant’s seniority points are not added to his or her score unless the applicant passes the QAI 27 assessment, which Plaintiff did not do. Munshi Decl. ¶¶ 12-13, 16 and Ex. 1. 1 claim. 2 D. Race Discrimination Claim 3 To establish a prima facie case of race discrimination, Plaintiff must show: (1) she is a 4 member of a protected class; (2) she was qualified for her position; (3) she experienced an adverse 5 employment action; and (4) similarly situated individuals outside Plaintiff’s protected class were 6 treated more favorably, or other circumstances surrounding the adverse employment action give 7 rise to an inference of discrimination. Hermange v. County of Santa Clara, No. 16-cv-028478 BLF, 2019 WL 1245149 , at *11 (N.D. Cal. Mar. 18, 2019) (citing Hawn v. Exec. Jet Mgmt., Inc., — 9 — 615 F.3d 1151, 1155 (9th Cir. 2010)). 10 Plaintiff has established a prima facie case of race discrimination. She is a member of a 11 protected class (African-American individuals); as discussed above, she was objectively qualified 12 for the Assistant Director-DBAS position for which she applied; and she experienced an adverse 13 employment action by losing the promotion to someone outside her protected class. 14 Again, however, SCCOE has offered legitimate, non-discriminatory reasons for hiring 15 Ms. Yam rather than Plaintiff for the Assistant Director position, specifically Ms. Yam’s superior 16 qualifications. Plaintiff has failed to rebut that showing. See Section III.C., supra. 17 Accordingly, SCCOE is entitled to summary judgment on Plaintiff’s race discrimination 18 claim. 19 E. Retaliation Claim 20 A prima facie claim for retaliation requires Plaintiff to demonstrate that: (1) she engaged 21 in protected activity; (2) she was subjected to an adverse employment action; and (3) there exists a 22 causal link between the protected activity and the employer’s action. McAlindin v. Cty. Of San 23 Diego, 192 F.3d 1226, 1238 (9th Cir. 1999), opinion amended on denial of reh’g, 201 F.3d 1211 24 (9th Cir. 2000). 25 Plaintiff provided no admissible evidence that any of the panel members were aware of her 26 2000 EEOC complaint. See Dkt. 100 at 3-4, citing Dkt. 96-1, Ex. 18. Moreover, it is undisputed 27 that the hiring panel in Plaintiff’s case used standardized non-discriminatory criteria to award the 1 hiring decision at issue in this case. As such, Plaintiff has not established a prima facie case of 2 || retaliation. See Arakaki v. Brennan, 771 Fed. Appx. 783 , 784 (9th Cir. 2019). 3 Even if Plaintiff could establish a prima facie case, as with her discrimination claims, 4 || SCCOE offers a legitimate, non-discriminatory reason for its action—the successful applicant’s 5 superior qualifications for the Assistant Director-DBAS position—and Plaintiff must then provide 6 evidence of pretext. McAlindin, 912 F.3d at 1238. Again, Plaintiff cannot meet her burden. See 7 Section IILC., supra. 8 Accordingly, SCCOE is entitled to summary judgment on Plaintiffs retaliation claim. 9 |} IV. CONCLUSION 10 For the foregoing reasons, the Court DENIES Plaintiff's motion for summary judgment 11 and GRANTS SCCOE’s motion for summary judgment. All dates and deadlines are vacated, 12 || judgment will be entered in favor of SCCOE, and the Clerk of Court shall close the file in this 5 13 matter. SO ORDERED. 3 15 Dated: May 6, 2022 — 16 — Suse veYt— 8 SUSAN VAN KEULEN United States Magistrate Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —