Collins v. Spencer

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 JOSEPH A. COLLINS, Case No.: 17-CV-1723 JLS (KSC) 11 Plaintiff, ORDER (1) DENYING PLAINTIFF’S 12 v. REQUEST FOR ORAL ARGUMENT, (2) OVERRULING PLAINTIFF’S 13 RICHARD V. SPENCER, EVIDENTIARY OBJECTIONS, AND 14 Defendant. (3) GRANTING DEFENDANT’S MOTION FOR SUMMARY [15] AND ALL CONSOLIDATED CASES JUDGMENT [16] (ECF Nos. 21, 26) [17] 18 Presently before the Court is Defendant Richard V. Spencer’s Motion for Summary 19 Judgment (“Def.’s Mot.,” ECF No. 21), as well as Plaintiff Joseph A. Collins’ Opposition 20 (“Opp’n,” ECF No. 24) and Defendant’s Reply (“Reply,” ECF No. 25). Also before the 21 Court are Plaintiff’s Evidentiary Objections (ECF Nos. 24-2, 24-3, 24-4, 24-5) and Request 22 for Oral Argument on Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion 23 for Summary Judgment (“Pl.’s Mot.,” ECF No. 26). Having carefully considered the 24 Parties’ arguments, the evidence, and the law, the Court DENIES Plaintiff’s Motion,1 25 OVERRULES Plaintiff’s Evidentiary Objections, and GRANTS Defendant’s Motion. [26] 27 1 Plaintiff “requests the opportunity to dispute the credibility of the Supplemental Declaration of Fredrick 28 Asuncion” and “believes that the Court’s decision-making process would be significantly aided by oral 1 BACKGROUND 2 I. Undisputed Facts 3 Plaintiff is a white male born on October 27, 1951. Def.’s Separate Stmt. of 4 Undisputed Facts in Support of Def.’s Mot. (“Def.’s Facts,” ECF No. 21-2) No. 1; Opp’n 5 at 3. On January 31, 2011, the United States Department of the Navy (the “Navy”) hired 6 Plaintiff as a civilian employee for the position of Sheet Metal Worker. Def.’s Facts No. 7 2; Opp’n at 3. 8 On January 29, 2012, the Navy temporarily promoted Plaintiff to Aircraft Sheet 9 Metal Repair Inspector. Def.’s Facts No. 3; Opp’n at 4. The Navy permanently promoted 10 Plaintiff to that position on March 10, 2013. Id. Plaintiff declined the promotion for 11 personal reasons. Opp’n at 4. 12 In May 2014, Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint, 13 Case No. 14-65888-01141. Decl. of Sara Salas (“Salas Decl.,” ECF No. 21-10) ¶ 2. 14 Plaintiff alleged “[n]epotism in selection for Aircraft Examiner Position” and that he was 15 “[w]ritten up for not wearing [personal protective equipment and] . . . disruptive behavior.” 16 Id. 17 In March 2015, Plaintiff served as an Aircraft Sheetmetal Repair Inspector for the 18 Vertical Lift Program CH-53 platform at the Naval Air Station North Island. Decl. of 19 Joseph A. Collins (“Collins Decl.,” ECF No. 24-6) ¶ 2. In April 2015, Gary Thompson, 20 Aircraft Overhaul & Repair Supervisor, and Jesse Tran, Aircraft Sheetmetal Work Leader, 21 were assigned as Plaintiff’s supervisor and work leader, respectively. Id. ¶ 3. Plaintiff [23] 24 for summary judgment. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Further, where, as here “a party has [had] an adequate opportunity to provide the trial court with evidence and a 25 memorandum of law, there is no prejudice [in a refusal to grant oral argument].” Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (alterations in original) (quoting Lake at Las Vegas Investors Grp, Inc. v. 26 Pac. Malibu Dev. Corp., 933 F.2d 724 , 729 (9th Cir. 1991)); accord Singh v. U.S. Postal Serv., 713 F. App’x 661 (9th Cir.) (affirming district court’s denial of request for oral argument where the plaintiff [27] “submitted arguments in his opposition to defendant’s motion for summary judgment”), cert. denied, 139 28 S. Ct. 446 (2018); see also Fed. R. Civ. P. 78(b); S.D. Cal. CivLR 7.1(d)(1). The Court therefore DENIES 1 claims that Mr. Thompson and Mr. Tran created a hostile work environment. See Def.’s 2 Facts No. 6; Collins Decl. ¶ 4; First Am. Compl. (“FAC,” ECF No. 11) at 2–4. Specifically, 3 Plaintiff alleges that Mr. “Tran placed the Plaintiff under constant surveillance in an 4 attempt to intimidate the Plaintiff”; Mr. “Tran[] and [Mr.] Thompson attempt[ed] to 5 provoke the Plaintiff into a confrontation that would result in a progressive disciplinary 6 action”; and, “[o]n July 6, 2015, Plaintiff received a Letter of Reprimand from 7 [Mr.] Thompson for inappropriate behavior towards [Mr.] Tran.” FAC at 3. Additionally, 8 at his deposition, Plaintiff testified that Mr. Tran had mocked him about his age, calling 9 him an “old man” and “over the hill.” Dep. of Joseph Collins (“Collins Dep.,” ECF No. 10 21-13) at 61:1–15. Plaintiff also testified that Mr. Tran stopped calling him “old man” in 11 “March or April of 2015,” id. at 66:13–19, and “over the hill” in 2014. Id. at 68:1–4. 12 Additionally, Mr. Thompson, who is black, see id. at 102:3 , referred to white people as 13 “crackers” and “honky,” id. at 108:1–12, although Plaintiff did not hear him make such 14 comments after 2012. Id. at 110:3–21. 15 Plaintiff initiated EEO Case No. 15-65888-01875 on April 24, 2015, which 16 concerned the “[p]romotion of Jesse Tran to Work Leader.” Salas Decl. ¶ 2. On May 6, 17 2015, Plaintiff and the Navy entered into a Settlement Agreement of EEO Case Nos. 1418 65888-01141 and 15-65888-0175. Def.’s Facts No. 7; see also Def.’s Ex. 1, ECF No. 2119 12. In paragraph 3 of the Settlement Agreement, Plaintiff agreed to “release the Agency 20 from any and all claims or demands he may have with the Agency occurring prior to the 21 effective date of this Agreement. . . . [including] a release of any rights under Title VII of 22 the Civil Rights Act of 1964. . . ; [and] the Age Discrimination in Employment Act.” Def.’s 23 Facts No. 8; see also Def.’s Ex. 1 at 1. 24 From August 9 through December 5, 2015, Plaintiff was temporarily detailed to an 25 Aircraft Examiner position pursuant to the Settlement Agreement. Def.’s Facts No. 4; 26 Collins Decl. ¶ 8. On September 8, 2015, Plaintiff filed EEO Case No. 15-65888-02321, 27 alleging “[h]arassment by Jesse Tran (Sheet Metal Mechanic Leader) and Gary Thompson 28 (Aircraft Overhaul and Repair Supervisor).” Salas Decl. ¶ 2. The Navy’s EEO Office 1 ruled against Plaintiff on July 10, 2017, concluding “that management articulated 2 legitimate, nondiscriminatory reasons for its actions, and that the preponderance of the 3 evidence does not support Complainant’s claims of unlawful discrimination.” Def.’s Ex. 4 14, ECF No. 21-25, at 29. 5 On October 17, 2015, Plaintiff applied for a permanent Aircraft Examiner position. 6 Def.’s Facts No. 13; Collins Decl. ¶ 9. The Navy appointed a Selecting Official, Frederick 7 Asuncion, and a three-person Advisory Panel, comprised of Robert Amaichigh, Joey 8 Baesas, and Matt Pendleton, to review the resumes of the applicants and make the 9 selections for the Aircraft Examiner position. Def.’s Facts No. 14. Mr. Asuncion provided 10 the Advisory Panel members with the resumes of all the applicants with their names 11 redacted and replaced by letters and a list of pre-determined Advisory Panel Criteria against 12 which to evaluate the resumes. Def.’s Facts No. 15. Each Advisory Panel member then 13 individually reviewed the redacted resumes and assigned a numerical score for each of the 14 pre-determined Advisory Panel Criteria. Def.’s Facts No. 16. The Advisory Panel 15 members recorded their individual scores for each evaluation criteria on a matrix. Def.’s 16 Facts No. 17. After individually scoring the resumes, the Advisory Panel members met to 17 discuss their individual scores, arrive at a consensus score for each resume, and record the 18 consensus scores on their matrices. Def.’s Facts No. 18. 19 The resume blind-coded as “Applicant K” belonged to Plaintiff and received 20 individual scores of 55 (from Mr. Amaichigh), 50 (from Mr. Baesas), and 40 (from 21 Mr. Pendleton), with a consensus score of 45. Def.’s Facts No. 19. On his separate review 22 of the resumes, Mr. Asuncion awarded Plaintiff an additional 10 points, for a final score of 23 55. Def.’s Facts No. 20. The highest-rated resume for the Aircraft Examiner position in 24 Plaintiff’s platform of experience was “Applicant D” (Tien Bui), who received individual 25 and consensus scores of 70. Def.’s Facts No. 21. Mr. Asuncion agreed with the Advisory 26 Panel’s recommendation and selected the top-ranked candidate, Applicant D, for the 27 Aircraft Examiner position in the platform for which Plaintiff competed. Def.’s Facts No. 28 22. 1 Neither Mr. Baesas nor Mr. Pendleton recognized the resume of Applicant K as 2 belonging to Plaintiff or the resume of Applicant D as belonging to Mr. Bui. Def.’s Facts 3 No. 23. They also did not know of Plaintiff’s prior EEO activity. Def.’s Facts No. 24. 4 Mr. Amaichigh recognized the resume of Applicant K as likely belonging to Plaintiff and 5 also knew that Plaintiff had some prior EEO activity, although he did not know the details 6 of Plaintiff’s EEO acitivty. Def.’s Facts No. 25. Mr. Amaichigh did not recognize the 7 resume of Applicant D as belong to Mr. Bui, whom he did not know and with whom he 8 had never worked. Def.’s Facts No. 27. 9 On November 13, 2015, Plaintiff was scheduled to participate in an Aircraft 10 Examiner training related to the Maintenance and Repair Overhaul (“MRO”) system. 11 Collins Decl. ¶ 11; Affidavit of Arlene Sexton (“Sexton Aff.,” ECF No. 25-4) at 1. 12 Ms. Sexton indicated to Mr. Amaichigh that “it would not make sense for someone who 13 did not have either an MRO log-in, a Made to Order (MTO) log-in, or a completed 14 background investigation to attend” the training. Sexton Aff. at 3. Consequently, 15 Mr. Amaichigh instructed Plaintiff not to attend the training. Def.’s Facts No. 31; Collins 16 Decl. ¶ 11. 17 On November 17, 2015, Mr. Amaichigh announced in front of Plaintiff’s co-workers 18 that Mr. Bui had been selected for the permanent Aircraft Examiner position. Collins Decl. 19 ¶ 12. On April 14, 2016, Plaintiff filed EEO Case No. 16-65888-00881, concerning his 20 “[n]on-selection for Aircraft Examiner and Sheet Metal Mechanic (Aircraft) Leader 21 positions.” Salas Decl. ¶ 2. On July 27, 2017, the Navy’s EEO Office ruled against 22 Plaintiff, finding that “Complainant’s allegations are not supported by the totality of the 23 record and he failed to present any plausible evidence that would demonstrate that 24 management’s reasons for its actions were factually baseless or not its actual motivation.” 25 Def.’s Ex. 15, ECF No. 21-26, at 21. 26 Since December 6, 2015, Plaintiff has worked as an Aircraft Sheet Metal Inspector. 27 Def.’s Facts No. 5. 28 / / / 1 II. Procedural Background 2 Following the EEO Office’s denial of his claims, Plaintiff filed two complaints in 3 this Court, Collins v. Spencer, No. 17-CV-1723 JLS (KSC) (S.D. Cal. filed Aug. 25, 2017), 4 and Collins v. Spencer, No. 17-CV-1724 JLS (KSC) (S.D. Cal. filed Aug. 25, 2017). On 5 a joint request by the Parties, see ECF No. 8, the Court consolidated the two actions. See 6 ECF No. 9. 7 On January 24, 2018, Plaintiff filed the operative First Amended Complaint, alleging 8 two claims for relief. See generally ECF No. 11. In “Allegation I,” Plaintiff alleges that 9 he “was subjected to a hostile work environment and in retaliation for participating in 10 protected activities.” See id. at 1; see also generally id. at 2–4. In “Allegation II,” Plaintiff 11 claims that he was not “select[ed] for a promotion and . . . deni[ed] . . . a training course in 12 retaliation for participating in protected activities.” See id. at 1; see also generally id. at 13 4–7. 14 After engaging in discovery, see ECF Nos. 16, 18, Defendant filed the instant 15 Motion for Summary Judgment on March 25, 2019. See generally ECF No. 21. On 16 April 2, 2019, the Court issued an Order setting a briefing schedule on Defendant’s Motion, 17 advising Plaintiff of his obligations under Federal Rule of Civil Procedure 56, and taking 18 Defendant’s Motion under submission on the papers pursuant to Civil Local Rule 7.1(d)(1). 19 See generally ECF No. 22. Plaintiff filed his Motion requesting oral argument on May 20, 20 2019. See generally ECF No. 26. 21 LEGAL STANDARD 22 Under Federal Rule of Civil Procedure 56(a), a party may move for summary 23 judgment as to a claim or defense or part of a claim or defense. Summary judgment is 24 appropriate where the Court is satisfied that there is “no genuine dispute as to any material 25 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 26 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect 27 the outcome of the case. Anderson, 477 U.S. at 248 . A genuine dispute of material fact 28 exists only if “the evidence is such that a reasonable jury could return a verdict for the 1 nonmoving party.” Id. When the Court considers the evidence presented by the parties, 2 “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be 3 drawn in his favor.” Id. at 255 . 4 The initial burden of establishing the absence of a genuine issue of material fact falls 5 on the moving party. Celotex, 477 U.S. at 323 . The moving party may meet this burden 6 by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and 7 admissions on file, together with the affidavits, if any,’” that show an absence of dispute 8 regarding a material fact. Id. When a plaintiff seeks summary judgment as to an element 9 for which it bears the burden of proof, “it must come forward with evidence which would 10 entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. 11 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474 , 480 (9th Cir. 2000) (quoting Houghton 12 v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 13 Once the moving party satisfies this initial burden, the nonmoving party must 14 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S. 15 at 324. This requires “more than simply show[ing] that there is some metaphysical doubt 16 as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 17 586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own 18 affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ 19 designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for 20 the non-moving party. Celotex, 477 U.S. at 324 ; Anderson, 477 U.S. at 248 . The non21 moving party cannot oppose a properly supported summary judgment motion by “rest[ing] 22 on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256 . 23 ANALYSIS 24 Defendant seeks summary judgment as to all claims alleged in Plaintiff’s First 25 Amended Complaint. See ECF No. 21 at 1. The Court therefore analyzes each of 26 Plaintiff’s claims after addressing Plaintiff’s evidentiary objections. 27 / / / 28 / / / 1 I. Plaintiff’s Evidentiary Objections 2 Plaintiff filed oppositions to the Declarations of Fredrick Asuncion (ECF No. 24-2), 3 Robert Amaichigh (ECF No. 24-3), Joey Baesas (ECF No. 24-4) and Matt Pendleton (ECF 4 No. 24-5) (together, the “Evidentiary Objections”). 5 A. The “H53/V22” Objection 6 Generally, the Evidentiary Objections claim that the statements concerning the 7 recommendation of Applicant D (Mr. Bui) as having the highest score for the Vertical Lift 8 H53 platform are false because the Advisory Panel actually recommended Applicant D for 9 the V22 platform. See generally ECF Nos. 24-2–5. In support of this contention, Plaintiff 10 relies on Document USA-01899 (“Def.’s Ex. 16,” ECF No. 25-3), a Memorandum from 11 the Advisory Panel dated “November XX, 2015,” with a handwritten ranking indicating 12 that “Bui, Tien” was “recommend[ed]” for the “V22 (Miramar)” and that 13 “Khamsingsavath, Khamphet” was recommended for the “H53” platform. See Def.’s Ex. 14 16. 15 On reply, Defendant explains that “Exhibit 16 accurately identifies the individuals 16 selected for the two Vertical Lift Aircraft Examiner positions (i.e., Mr. Bui and 17 Mr. K[ha]msingsavath), but has a handwritten notation that incorrectly suggests that 18 Mr. K[ha]msingsavath was assigned to the H53 platform.” Reply at 4 n.2 (citing ECF No. 19 25-1 ¶ 7). Defendant also clarifies that “Mr. Bui was assigned to the V22 platform in 20 January 2016 to meet the then-existing operation needs of the Navy.” Id. at 3 (citing ECF 21 No. 25-1 ¶ 6). 22 Based on the foregoing, the Court OVERRULES Plaintiff’s objection. The 23 Certificate Coding, Resume Grading Sheets, and declarations and affidavits of the 24 Selecting Official and Advisory Panel members all reflect that Mr. Bui was being 25 considered for the Vertical Lift H53 platform. See ECF Nos. 21-6–9, 21-17–24. A single, 26 handwritten notation on what appears to be a draft memorandum does not raise a dispute 27 of fact, much less a material one. 28 / / / 1 B. The “Applicant B” Objection 2 Plaintiff also notes that Mr. Amaichigh declared in paragraph 12 of his declaration 3 that the panel recommended that Mr. Asuncion select Applicant B, who was selected for 4 the TACAIR platform but whose name does not appear on the Recommendation 5 Memorandum. See generally ECF No. 24-3. This was clearly a mistake—paragraph 12 6 of the Amaichigh Declaration notes that, “[b]ased on the consensus scores, the panel 7 recommended to Mr. Ascuncion that he select Applicant B, Tien Bui, for the Vertical Lift 8 platform.” ECF No. 21-7 ¶ 12. It is clear that Mr. Amaichigh is referring to Mr. Bui, 9 whom the evidence indicates was “Applicant D.” See id. ¶ 9. Applicant B is nowhere 10 discussed in the Parties’ briefing and appears to hold no relevance to the instant dispute. 11 The Court therefore OVERRULES Plaintiff’s objection to paragraph 12 of the Amaichigh 12 Declaration. 13 II. Allegation I 14 Plaintiff’s claims in Allegation I allege “a hostile work environment” and 15 “retaliation.” See FAC at 1. In addition to the allegations in his First Amended Complaint, 16 see FAC at 2–4, Plaintiff testified at his deposition to conduct that may have constituted a 17 hostile work environment. See, e.g., Collins Dep. at 61:1–15, 66:7–19, 68:1–4, 108:1–12, 18 110:3–21. 19 A. Hostile Work Environment 20 “To prevail on a hostile workplace claim premised on . . . race . . . , a plaintiff must 21 show: (1) that he was subjected to verbal or physical conduct of a racial . . . nature; (2) that 22 the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive 23 to alter the conditions of the plaintiff’s employment and create an abusive work 24 environment.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as 25 amended (Jan. 2, 2004). Similarly, “[t]o prevail on an age-based hostile 26 workplace/harassment claim, [the plaintiff] must show that []he was subjected to verbal or 27 physical conduct of an age-related nature, that the conduct was unwelcome, and that the 28 conduct was sufficiently severe or pervasive to alter the conditions of h[is] employment 1 and create an abusive work environment.” Cozzi v. Cty. of Marin, 787 F. Supp. 2d 1047 , 2 1069 (N.D. Cal. 2011) (citing Vasquez, 349 F.3d at 642 ). “[C]ommonly necessary 3 personnel management actions such as hiring and firing, job or project assignments, . . . 4 promotion or demotion, [and] performance evaluations, . . . do not come within the 5 meaning of harassment.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 6 2013) (quoting Reno v. Baird, 18 Cal. 4th 640 , 646–47 (1998)). 7 1. Conduct Alleged in Plaintiff’s Amended Complaint 8 In his Amended Complaint, Plaintiff alleges that Work Leader (“WL”) Jesse Tran 9 and Production Supervisor (“PS”) Gary Thompson created a hostile work environment. 10 See FAC at 1, 2–4. Specifically, Plaintiff alleges that Mr. “Tran placed the Plaintiff under 11 constant surveillance in an attempt to intimidate the Plaintiff and report his findings to 12 [Production Supervisor] Thompson” after Plaintiff had “voiced his concerns . . . in regards 13 to past conflicts with WL Tran and PS Thompson and their bias[ed] attitudes toward 14 Plaintiff in regards to Plaintiff’s race and age.” Id. at 2–3. Further, “WL Tran[] and PS 15 Thompson attempted to provoke the Plaintiff into a confrontation that would result in a 16 progressive disciplinary action.” Id. at 3. Finally, “[o]n July 6, 2015, Plaintiff received a 17 Letter of Reprimand from PS Thompson for inappropriate behavior towards WL Tran,” 18 who “accused Plaintiff of using inappropriate language when WL Tran asked the Plaintiff 19 if he had submitted a leave request for an upcoming vacation.” Id. at 3–4. 20 Defendant contends that “[t]he conduct alleged in Plaintiff’s Amended Complaint 21 does not satisfy the elements of a legally cognizable hostile work environment claim” 22 because “[n]othing about the conduct alleged is racial . . . or age-related in nature.” Def.’s 23 Mot. at 5–6. Rather, “[a]ll of [Plaintiff’s] allegations relate to ‘business or personnel 24 management,’ and, therefore, ‘do not come within the meaning of harassment.’” Id. at 6 25 (quoting Lawler, 704 F.3d at 1244 ). 26 Plaintiff does not oppose this argument. See generally Opp’n. Under Ninth Circuit 27 precedent, the Court may therefore dismiss Allegation I, to the extent it is predicated on 28 the allegations in Plaintiff’s First Amended Complaint, as abandoned. See, e.g., Jenkins v. 1 Cty. of Riverside, 398 F.3d 1093 , 1095 n.4 (9th Cir. 2005) (dismissing causes of action as 2 abandoned where plaintiff did not oppose dismissal in her opposition to motion for 3 summary judgment). 4 The Court recognizes, however, that “public policy favor[s] disposition of cases on 5 their merits.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). Defendant 6 is correct that Plaintiff has introduced no evidence raising a genuine dispute of material 7 fact that any of the alleged conduct in Allegation I rises to the level of age-based or racial 8 harassment as opposed to “[c]ommonly necessary personnel management actions.” 9 Lawler, 704 F.3d at 1244 . Summary judgment is therefore proper. See, e.g., id. (affirming 10 district court’s decision to grant summary judgment in favor of the defendant where the 11 plaintiff alleged discrimination based on the defendant “question[ing] her appearance, 12 criticiz[ing] the display of merchandise, instruct[ing] her to perform work-related 13 assignments, and disagree[ing] with the way she stored repair parts”); Velente-Hook v. E. 14 Plumas Health Care, 368 F. Supp. 2d 1084, 1103 (E.D. Cal. 2005) (granting summary 15 judgment in favor of the defendant on the grounds that the plaintiff had failed to make a 16 prima facie case of harassment). 17 2. Conduct Described in Plaintiff’s Deposition 18 During his deposition, Plaintiff testified that Mr. Tran “liked to mock” Plaintiff 19 regarding Plaintiff’s age, “calling [him] . . . old man and over the hill,” Collins Dep. at 20 61:1–15, although Mr. Tran stopped referring to him as “over the hill” in 2014, id. at 21 68:1–4, and “old man” in “March or April of 2015.” Id. at 66:7–19. Plaintiff also testified 22 that Mr. Thompson, who is black, see id. at 102:3, referred to white people as “crackers” 23 and “honky,” id. at 108:1–12, although Plaintiff did not hear him make such comments 24 after 2012. Id. at 110:3–21. 25 Defendant contends that, “based on Plaintiff’s deposition testimony, his only 26 possible race or age-based harassment claim ended no later than April 19, 2015 (i.e., the 27 date on which Tran was promoted to work leader.” Def.’s Mot. at 7. “Plaintiff’s hostile 28 work environment claim, therefore, falls within the broad release of all employment-related 1 claims in his May 6, 2015 Settlement Agreement with the Navy,” id., which provided that 2 “Complainant agrees to release the [Department of Navy] from any and all claims or 3 demands he may have with the Agency occurring prior to the effective date of this 4 Agreement, . . . [including] a release of any rights under Title VII of the Civil Rights Act 5 of 1964 . . . ; [and] the Age Discrimination in Employment Act.” Id. (quoting Def.’s Ex. 1 6 at 1 ¶ 3). 7 “Plaintiff acknowledges that a Settlement Agreement was signed by Plaintiff and 8 [Fleet Readiness Center Southwest (“FRCSW”)] on May 6, 2015, for EEO Case Nos. 149 65888-01141 and 15-65888-01875,” but “Plaintiff has never been provided a copy of Case 10 No. EEO 15-65888-01875 which was initiated on April 24, 2015,” and therefore 11 “request[s] that the Court grant the Plaintiff a copy of EEO 15-65888-01875 from the 12 Defendant” pursuant to Rule 56(d).2 See Opp’n at 10. In any event, “a claimant can[]not 13 waive future claims (only settle past ones).” Id. at 13. Additionally, “Plaintiff lodged a 14 formal complaint with FRCSW EEO declaring a breach of the Settlement Agreement” and 15 “[n]o formal outcome or decision was ever reached.” Id. Finally, Plaintiff has established 16 a prima facie case of retaliation because he engaged in protected activity when he filed 17 Case No. 15-65888-01875 on April 24, 2015, and suffered actionable injury when FRCSW 18 failed to protect him from Mr. Tran’s and Mr. Thompson’s retaliatory actions. Id. at 12. 19 A causal connection between the protected activity and the adverse employment action can 20 also been seen by the temporal proximity between those events. See id. at 12. Mr. Tran [22] 2 To the extent Plaintiff seeks relief pursuant to Rule 56(d), that request is DENIED. Not only did Plaintiff [23] himself initiate Case No. 15-6588-01875, but he has failed to “identify specific facts to be obtained in 24 discovery that [a]re essential to oppose summary judgment.” See Leonard v. Baker, 714 F. App’x 718, 719 (9th Cir. 2018) (citing Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822 , 25 827 (9th Cir. 2008)). Further, “[t]he failure to conduct discovery diligently is grounds for the denial of a Rule 56([d]) motion.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999 , 1005 (9th Cir. 2002) (citing Mackey 26 v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989); Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369 , 372 (9th Cir. 1985)). Here, Plaintiff conducted no discovery, see Def.’s Mot. at 4; fact discovery [27] closed on October 5, 2018, see ECF No. 18 ¶ 2; and Plaintiff waited five-and-a-half weeks after Defendant 28 filed his Motion to request Case No. 15-6588-01875. Accordingly, additional discovery is neither needed 1 also admitted that he knew that Plaintiff “had multi[ple ]EEO complaints” and 2 Mr. Thompson’s denial that he was aware that Plaintiff had any prior EEO complaints or 3 activity “is a blatantly implausible claim.” Id. at 13. 4 Defendant responds that, “[c]onsistent with his deposition testimony, Plaintiff’s 5 Opposition does not present any evidence that he was subjected to any post-Settlement 6 Agreement conduct that meets the elements of a hostile work environment claim.” Reply 7 at 1. The Court must agree with Defendant. By signing the Settlement Agreement, Plaintiff 8 waived any claims based on retaliation, discrimination, or hostile work environment based 9 on conduct predating the May 6, 2015 Settlement Agreement. See Def.’s Ex. 1 at 1 ¶ 3. 10 Plaintiff has introduced no evidence that he was subjected to unwanted verbal or physical 11 conduct of an age-related or racial nature after May 6, 2015.3 Accordingly, Plaintiff has 12 failed to raise a genuine issue of disputed fact as to his hostile work environment claim. 13 See, e.g., Campbell v. Hagel, 536 F. App’x 733, 734 (9th Cir. 2013) (“The district court 14 properly granted summary judgment on [the plaintiff]’s discrimination and retaliation 15 claims arising from events occurring before October 8, 2003, because those claims are [17] 3 Plaintiff argues in his Opposition—without introducing any supporting evidence—that Defendant 18 breached the Settlement Agreement by providing a resume review session with Lydia Ensor rather than James Compagnon, the Aircraft Production Competency Leader, as specified in the Settlement [19] Agreement. See Opp’n at 5–6, 10; see also Def.’s Ex. 1 at 2 ¶ 5(b). Not only has Plaintiff failed to 20 introduce evidence in support of this argument, but the Court lacks jurisdiction to determine whether Defendant breached the Settlement Agreement, see, e.g., Munoz v. Mabus, 630 F.3d 856, 864 (9th Cir. 21 2010); Def.’s Ex. 1 at 4 ¶ 7(b), and Plaintiff’s only remedies would appear to be to “request that the terms of settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for 22 further processing from the point processing ceased,” 29 C.F.R. § 1614.504 (a), as opposed to rescission. Further, under California and Federal contract law, a partial breach does not give the non-breaching party [23] the right to cancel the contract. See, e.g., Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277 , 1289 24 n.12 (9th Cir. 2009) (under California law, material breach may allow non-breaching party to cancel the contract, while partial breach limits non-breaching party to damages); Old Stone Corp. v. United States, [25] 450 F.3d 1360 , 1371–72 (Fed. Cir. 2006) (“When one party commits a material breach of contract, the other party has a choice between two inconsistent rights—he or she can either elect to allege a total breach, 26 terminate the contract and bring an action [for restitution], or, instead, elect to keep the contract in force, declare the default only a partial breach, and recover those damages caused by that partial breach.”) [27] (quoting 13 Williston § 39:32 (4th ed. 2000)). Accordingly, even if Plaintiff had introduced evidence that 28 Defendant had breached the Settlement Agreement, the Court concludes that Defendant’s purported 1 waived by the settlement agreement.”) (citing Stroman v. W. Coast Grocery Co., 884 F.2d 2 458 , 461–63 (9th Cir.1989)). 3 B. Retaliation 4 “To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) a 5 protected activity; (2) an adverse employment action; and (3) a causal link between the 6 protected activity and the adverse employment action.” Cornwell v. Electra Cent. Credit 7 Union, 439 F.3d 1018 , 1034–35 (9th Cir. 2006) (citing Steiner v. Showboat Operating 8 Co., 25 F.3d 1459, 1464 (9th Cir. 1994)). To establish an “adverse employment action,” 9 “a plaintiff must show that a reasonable employee would have found the challenged action 10 materially adverse, which in this context means it well might have dissuaded a reasonable 11 worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe 12 Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211 , 13 1219 (D.C. Cir. 2006)) (internal quotation marks omitted). “[C]ausation sufficient to 14 establish the third element of the prima facie case may be inferred from . . . the proximity 15 in time between the protected action and the allegedly retaliatory employment 16 decision.” Cornwell, 439 F.3d at 1035 (quoting Yartzoff v. Thomas, 809 F.2d 1371 , 1376 17 (9th Cir. 1987)). “Alternatively, the plaintiff can prove causation by providing direct 18 evidence of retaliatory motivation.” Miller v. Fairchild Indus., Inc., 797 F.2d 727 , 731 19 (9th Cir. 1986). 20 “Once a plaintiff establishes a prima facie case, the burden of production shifts to 21 the employer to articulate a legitimate, non-retaliatory explanation for the action.” Id. 22 (citing Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346 , 1354 (9th Cir. 1984)). “To satisfy 23 this burden, the employer ‘need only produce admissible evidence which would allow the 24 trier of fact rationally to conclude that the employment decision had not been motivated by 25 discriminatory animus.’” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 26 248, 257 (1981)) (citing Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir. 1985)). 27 “If the employer successfully rebuts the inference of retaliation that arises from 28 establishment of a prima facie case, then the burden shifts once again to the plaintiff to 1 show that the defendant’s proffered explanation is merely a pretext.” Id. (citing 2 Wrighten, 726 F.2d at 1354). 3 Defendant argues that, to the extent Plaintiff’s Allegation I alleges retaliation (or 4 discrimination), he “cannot prevail” because he has not established an adverse employment 5 action. See Def.’s Mot. at 6 n.4. According to Defendant, “[n]either being placed under 6 ‘constant surveillance,’ nor attempting to ‘provoke the Plaintiff into a confrontation’ 7 constitute adverse employment actions.” Id. (citing Burlington N., 548 U.S. at 68 ; Munday 8 v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239 , 243 (4th Cir. 1997)). “A Letter of Reprimand 9 also does not constitute an adverse employment action unless it resulted in an employment 10 consequence, which Plaintiff does not allege here.” Id. (citing Thomas v. Spencer, 294 F. 11 Supp. 3d 990, 999–1000 (D. Haw. 2018)). Further, “Plaintiff admitted to engaging in the 12 conduct that formed the basis of the censure.” Id. (citing Collins Dep. at 134:23–137:11). 13 Again, Plaintiff does not respond to Defendant’s argument, see generally Opp’n, 14 thereby waiving any retaliation (or discrimination) claims alleged in Allegation I. See, e.g., 15 Jenkins, 398 F.3d at 1095 n.4. Nonetheless, considering Defendant’s Motion on the merits, 16 the Court must agree with Defendant that Plaintiff has failed to establish a prima facie case 17 by failing to introduce evidence of an adverse employment action.4 18 In certain circumstances, surveillance can be an adverse employment action. See, 19 e.g., Marceau v. Idaho, No. 1:09-CV-00514-N-EJL, 2011 WL 3439178 , at *13 (D. Idaho 20 Aug. 5, 2011) (concluding the plaintiff established that she had been subject to an adverse 21 employment action because “targeted surveillance of an employee might reasonably deter 22 that employee from engaging in protected activity, especially when the employee believes, 23 as [the plaintiff] did, that the surveillance is being conducted specifically for the purpose 24 of ‘justifying [the employee’s] termination’”); but cf. Mendoza v. Sysco Food Servs. of [26] 4 To the extent Plaintiff’s Allegation I alleges a claim for discrimination, that claim would fail for the same [27] reason. See Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000) (requiring a 28 plaintiff claiming employment discrimination to demonstrate that “he was subject to an adverse 1 Ariz., Inc., 337 F. Supp. 2d 1172, 1192 (D. Ariz. 2004) (“[U]nder the Ninth Circuit analysis, 2 [surveillance] does not itself qualify as an adverse employment action.”). Here, however, 3 Plaintiff introduces no evidence of subsequent discipline resulting from the increased 4 surveillance. See Yartzoff, 809 at 1377. Similarly, it is possible that “provocation efforts 5 [could] amount to a ‘pattern of antagonism’ that could constitute an adverse employment 6 action,” see Negley v. Judicial Council of Cal., 458 F. App’x 682, 685 (9th Cir. 2011), but 7 Plaintiff testified at his deposition that Mr. Tran acted similarly “with quite a few other 8 people,” see Collins Dep. at 54:20–24, and “had a tendency to do that to everybody.” See [9] id. at 56:7–13. Finally, Defendant is correct that a letter of reprimand does not constitute 10 an adverse employment action where, as here, Plaintiff has failed to introduce any evidence 11 that the letter of reprimand resulted in any employment consequences.5 See, e.g., Thomas, 12 294 F. Supp. 3d at 999–1000 (granting summary judgment in favor of the defendant where 13 the plaintiff “d[id] not provide any evidence that there was any other employment 14 consequence as a result of the reprimand letter” and the plaintiff did not dispute that he 15 engaged in the conduct forming the basis of the reprimand). Accordingly, the Court 16 concludes that Plaintiff has failed to adduce evidence establishing a prima facie case of 17 retaliation based on the allegations contained in Allegation I of his First Amended 18 Complaint. 19 III. Allegation II 20 In Allegation II, Plaintiff alleges claims for discrimination and retaliation. See FAC 21 at 1–2, 4–7. The Court outlined the elements for a retaliation claim above. See supra 22 Section II. “[A] plaintiff alleging disparate treatment under Title VII . . . must show that 23 (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject 24 to an adverse employment action; and (4) similarly situated individuals outside his [25] 26 5 Plaintiff has not alleged—much less introduced evidence supporting—that the Letter of Reprimand in any way contributed to his non-selection for the permanent Aircraft Examiner position. In any event, [27] Plaintiff also has failed to raise a dispute of material fact that the Navy did not use a blinded review of 28 resumes against a pre-determined set of criteria in evaluating the Aircraft Examiner applicants. See infra 1 protected class were treated more favorably.” Chuang, 225 F.3d at 1123 (citing McDonnell 2 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To establish an “adverse employment 3 action,” the plaintiff must demonstrate “a significant change in employment status, such as 4 hiring, firing, failing to promote, reassignment with significantly different responsibilities, 5 or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, [6] 524 U.S. 742, 761 (1998) (citing Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132 , 7 136 (7th Cir. 1993)). “The burden of production, but not persuasion, then shifts to the 8 employer to articulate some legitimate, nondiscriminatory reason for the challenged 9 action.” Chuang, 225 F.3d at 1123–24 (citing McDonnell Douglas Corp., 411 U.S. at 10 802). “If the employer does so, the plaintiff must show that the articulated reason is 11 pretextual ‘either directly by persuading the court that a discriminatory reason more likely 12 motivated the employer or indirectly by showing that the employer’s proffered explanation 13 is unworthy of credence.’” Id. at 1124 (quoting Burdine, 450 U.S. at 256). 14 A. Discrimination and Retaliation in Non-Selection as Aircraft Examiner 15 Plaintiff alleges that he was not selected for the permanent Aircraft Examiner 16 position as a result of racial and age-based discrimination and retaliation for his prior EEO 17 activity. See FAC at 4–7. Defendant contends that “[t]he undisputed facts establish that 18 the Navy had legitimate, nondiscriminatory reasons for selecting another candidate for th[e 19 Aircraft Examiner] position, which Plaintiff cannot establish were pretexts for 20 discrimination or retaliation.” Def.’s Mot. at 9–10. This is because “[t]he Navy followed 21 an established, objective, and documented procedure for evaluating the numerous 22 applicants for the Aircraft Examiner position.” Id. at 10. Specifically, “the Navy based its 23 selections for the Aircraft Examiner position on a blind review of resumes against 24 objective, pre-determined evaluation criteria.” Id. at 11. Plaintiff cannot “demonstrate that 25 the Navy’s selection procedure was somehow a pretext for discrimination,” see id. (citing 26 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)), because Plaintiff 27 admitted he had no such proof at his deposition: 28 / / / 1 Plaintiff admitted in his deposition that he has no evidence that his non-selection had anything to do with his age or race: [2] 3 Q. Other than the age difference, do you have any other facts to show they chose Mr. Bui [4] over you because of Mr. Bui’s age? [5] A. No. [6] 7 Q. Do you have any reason to believe they did not choose you because you’re white? [8] 9 A. I have no – no. [10] Id. at 11–12 (quoting Collins Dep. at 148:4–10). According to Defendant, “Plaintiff also 11 cannot establish that the Navy’s selection procedure was a pretext for retaliation” because 12 only one member of the Advisory Panel, Mr. Amaichigh, “recognized [Applicant K’s] 13 resume as likely belonging to Plaintiff[] and was generally aware that Plaintiff had some 14 prior EEO activity, [although] Mr. Amaichigh did not know any of the details of Plaintiff’s 15 prior EEO activity because he was not involved in it.” Id. at 12 (citing Decl. of Robert 16 Amaichigh (“Amaichigh Decl.,” ECF No. 21-7) ¶ 7). “And[,] further confirming that 17 Mr. Amaichigh was not motivated by any retaliatory animus, he gave Plaintiff’s resume a 18 higher overall score than the other two members who did not recognized Plaintiff’s resume 19 and knew nothing about Plaintiff’s EEO activity.” Id. (citing ECF Nos. 21-20, 21-22, 2120 24). 21 Plaintiff counters that “[t]he selection process used is simply a resume writing 22 contest” and “[n]o independent verification of applicants[’] claims to knowledge or skills 23 is conducted.” Opp’n at 16. Further, “[p]oints given during the resume grading and scoring 24 process are totally subjective” and “[n]o interviews were conducted.” Id. “Plaintiff[] 25 adamantly disputes the Defendant’s claim that the resume grading and scoring process was 26 performed by the panel members anonymously” or that the selection process was “platform 27 specific.” Id. at 16–17. “Plaintiff claims [Mr.] Amaichigh unequivocally knew which 28 redacted resume belonged to the Plaintiff and due to a close association with Gary 1 Thompson . . . [and Mr.] Amaichigh was made aware of the details of Plaintiff’s prior EEO 2 activity by [Mr.] Thompson.” Id. at 18. Further, Mr. “Amaichigh manipulated the 3 selection process to ensure that the preferred applicant was selected.” Id. “The selecting 4 official for this selection was Fredrick Asuncion[,] who was also the selection official in 5 one of Plaintiff’s prior EEO complaints[,] Case No. 14-65888-01141.” Id. at 19. “[O]nly 6 3 applicant resumes out of a total of 33 were identified and placed in the H-53 platform 7 category,” so “it would not take a rocket scientist to figure out who’s resume belonged to 8 whom,” especially given “that the Advisory Panel members were provided a list of the 9 applicant[s’] names to review before the process began.” Id. at 21. Further, 10 Mr. “Amaichigh’s Resume Grading Worksheet[]” contains “the hand-written names of the 11 applicants who were selected” and Mr. Asuncion “is vague . . . in regard to when and how 12 the Advisory Panel w[as] made cognizant of the applicant[s’] redacted names,” leading 13 Plaintiff to “question[] the validity of the selection process in regard to when and how the 14 Advisory Panel members are revealed the redacted names.” Id. at 22. Based on 15 Defendant’s Exhibit 16, Plaintiff also “claims . . . Tien Bui (applicant D) was recommended 16 for an Aircraft Examiner position for the V22 platform,” which “is a total contradiction to 17 all the requirements for this position and that of the Declarations/Affidavits of all the 18 Advisory Panel members.” Id. at 24. 19 Defendant rejoins that Plaintiff has introduced no evidence that the resume review 20 process was manipulated or that the resumes were not evaluated anonymously. Reply at 21 3. Further, “Plaintiff’s argument that Mr. Bui was ultimately assigned to the V22 Vertical 22 Lift platform does not demonstrate that the Navy’s blind resume review procedure was a 23 pretext for discrimination.” Id. at 4. 24 Assuming Plaintiff has established a prima facie case for discrimination based on 25 race and age and retaliation for his prior EEO activity, Defendant has articulated legitimate, 26 nondiscriminatory reasons for selecting Mr. Bui for the Aircraft Examiner position. Here, 27 the applicants’ resumes were graded based on five criteria: knowledge of program cell 28 based process and procedures; teaming skills and ability to communicate; working 1 knowledge and application of management information systems; knowledge of safety, 2 environmental, and personal protective equipment policies and procedures, safety 3 regulations, FOD, tool control, hydraulic contaminations, MSDS, Fall Protection, etc.; and 4 knowledge of technical data including schematics, blueprints, engineering specifications, 5 REI/TEI, technical directives, wiring diagrams, AFB’s/AFC’s/AYC’s and maintenance 6 manuals. See generally Def.’s Ex. 5, ECF No. 21-16. Each resume was awarded points 7 from three Advisory Panel members based on these criteria, see Def.’s Ex. 9, ECF No. 218 20; Def.’s Ex. 11, ECF No. 21-22; Def.’s Ex. 13, ECF No. 21-24, and the three Advisory 9 Panels then met to assign a consensus score for each applicant. See Decl. of Frederick 10 Asuncion (“Asuncion Decl.,” ECF No. 21-6) ¶ 6. Plaintiff received a consensus score of 11 45, which Mr. Asuncion raised to 55 but which was still 15 points lower than Mr. Bui’s 12 consensus score. See id. ¶ 10. Because Mr. Bui was the top-ranked candidate for the 13 specific platform for which he and Plaintiff were competing, Mr. Asuncion selected Mr. 14 Bui for the position. See id.; see also Affidavit of Frederick Asuncion (“Asuncion Aff.,” 15 ECF No. 21-18) at 4–5. 16 The burden therefore shifts to Plaintiff to “show that the articulated reason is 17 pretextual ‘either directly by persuading the court that a discriminatory reason more likely 18 motivated the employer or indirectly by showing that the employer’s proffered explanation 19 is unworthy of credence.’” Chuang, 225 F.3d at 1124 (quoting Burdine, 450 U.S. at 256); 20 accord Miller, 797 F.2d at 731. Based on a review of the record, the Court concludes that 21 Plaintiff has failed to meet this burden. 22 As for discrimination, Plaintiff has introduced no evidence—aside speculation based 23 on the fact that he is white and older than Mr. Bui, who is Vietnamese—to demonstrate 24 that his non-selection was the result of discrimination. See Collins Dep. at 148:4–10; Risby 25 v. Nielsen, 768 F. App’x 607 , 611 (9th Cir. 2019) (“Plaintiff’s speculation [that his 26 employer acted on account of race] is insufficient to defeat summary judgment.”) (citing 27 Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016)). Further, neither Mr. Baesas nor 28 Mr. Pendleton recognized Applicant K’s resume as belonging to Plaintiff during the resume 1 review. See Decl. of Joey Baesas (“Baesas Decl.,” ECF No. 21-8) ¶ 7; Decl. of Matt 2 Pendleton (“Pendleton Decl.,” ECF No. 21-9) ¶ 6. And while Mr. Amaichigh recognized 3 Applicant K’s resume as “likely belonging to” Plaintiff, see Amaichigh Decl. ¶ 7, he “did 4 not recognize the resume of Applicant D as belonging to Mr. Bui” and, “[i]n fact, . . . did 5 not know who he was.” Id. ¶ 9. Further, Mr. Amaichigh also gave Plaintiff’s resume a 6 score of 55, see id. ¶ 10, which was higher than the score of 50 give by Mr. Baesas, see 7 Baesas Decl. ¶ 10, or of 40 given by Mr. Pendleton. See Pendleton Decl. ¶ 9. 8 Similarly, Plaintiff has introduced no evidence—aside speculation—that his non9 selection was the result of retaliation for his prior EEO activity. The Selecting Officer and 10 each Advisory Panel member has testified—for the majority, multiple times—that, to the 11 extent they even knew about Plaintiff’s prior EEO activity,6 it played no role in the 12 recommendation or selection of applicants for the Aircraft Examiner position. See 13 Asuncion Aff. at 6–7 (“[Mr. Asuncion] was aware of Mr. Collins’ prior EEO activity, but 14 that knowledge played no role in [his] selection decisions.”); Amaichigh Decl. ¶ 7 15 (“[Mr. Amaichigh . . . knew that Mr. Collins had some prior EEO activity, but [he] did not 16 know any of the details of his prior EEO activity because [he] was not involved in it.”); 17 Affidavit of Robert Amaichigh (“Amaichigh Aff.,” ECF No. 21-19) at 5 (Mr. Amaichigh’s 18 “knowledge of Mr. Collins’ prior EEO activity [was] in [no] way a factor in [his] 19 evaluation of his application or his ranking score”); Baesas Decl. ¶ 7 (“[Mr. Baesas] . . . 20 had no knowledge that Mr. Collins had participated in any EEO activity.”); Affidavit of 21 Joey Baesas (“Baesas Aff.,” ECF No. 21-21) at 5 (Mr. Baesas was not “aware of 22 Mr. Collins’ prior involvement in protected EEO activity at the time of the selection 23 process” and his signing of his affidavit on June 27, 2016, was “the first [he] ha[d] heard 24 that Mr. Collins had any prior EEO activity”); Pendleton Decl. ¶ 6 (“I had never met 25 Mr. Collins and knew nothing about his EEO activity.”); Affidavit of Matt Pendleton [28] 6 As mentioned above, two of the Advisory Panel members did not recognized Applicant K’s resume as 1 (“Pendleton Aff.,” ECF No. 21-23) at 7 (Mr. Pendleton was not “aware of Mr. Collins’ 2 race, national origin, color, age or prior participation in protected EEO activity at the time 3 of the Advisory Panel’s process” and “factors such as race, national origin, color, age, or 4 prior EEO activity [were not] in any way considered by the Advisory Panel”). Plaintiff’s 5 speculation that Mr. Amaichigh had learned details of his prior EEO activity from 6 Mr. Thompson and that Mr. Asuncion’s selection of Mr. Bui over Plaintiff was influenced 7 by Plaintiff’s prior EEO activity are contradicted by the evidence. See, e.g., Asuncion Aff. 8 at 6–7 (“[Mr. Asuncion] was aware of Mr. Collins’ prior EEO activity, but that knowledge 9 played no role in [his] selection decisions.”); Amaichigh Aff. at 4 (Mr. Amaichigh “was 10 aware Mr. Collins had some EEO activity previously, but [he] was not involved in the 11 matter” and “d[id] not know the details of his previous EEO matter”). 12 Accordingly, Plaintiff has failed to raise a triable issue of material fact that the 13 resume review and selection process for the Aircraft Examiner position was a pretext for 14 race or age-related discrimination or retaliation for his prior EEO activity. 15 B. Discrimination and Retaliation in Cancellation of Training 16 Plaintiff also contends that Mr. Amaichigh “intentionally excluded” Plaintiff from a 17 November 13, 2015 training session because Mr. Amaichigh “was cognizant to the fact 18 that Tien Bui has been selected over the Plaintiff for the position of Aircraft Examiner.” 19 FAC at 6. 20 Defendant first contends that “the cancellation of training is not a legally cognizable 21 adverse employment action.” Def.’s Mot. at 13 (citing Burlington Indus., 524 U.S. at 761 ; 22 Brooks v. Firestone Polymers, LLC, 640 Fed. App’x 393, 397 (5th Cir. 2016) 23 (unpublished); Del Castillo v. Dep’t of Health & Human Servs., 304 Fed App’x 607, 609 24 (9th Cir. 2008) (unpublished); Roberson v. Game Stop/Babbage’s, 152 Fed. App’x 356, 25 361 (5th Cir. 2005) (unpublished)). “Regardless, the Navy had a legitimate, 26 nondiscriminatory reason for informing Plaintiff that he could not participate in the 27 computer training: he did not have the necessary log-in and password to access the training 28 system platform on which the trainees needed to work during the training.” Id. (citing 1 Amaichigh Aff. at 6–7). And, to the extent Plaintiff claims that he was denied the training 2 because management already knew that he had not been selected for the Aircraft Examiner 3 position, his cancellation of training claim must fail for the same reasons as his non4 selection claim. Id. at 13–14. 5 Plaintiff responds that Mr. “Amaichigh’s reasons [for telling Plaintiff not to attend 6 the training] stated in his Affidavit . . . are simply a pretext to deflect and conceal his 7 retaliatory animus directed squarely at the Plaintiff.” Opp’n at 25. This is because the 8 training was slide-based and “Plaintiff could have participated in the slide-based training 9 by using Plaintiff’s personal [Common Access Card].” Id. In any event, “Plaintiff would 10 have benefitted from the training in regards to future opportunities.” Id. at 25–26. Further, 11 Mr. “Amaichigh . . . knew . . . that the Plaintiff was not recommended for the [Aircraft 12 Examiner] position, and arbitrarily decided to deny the training course in unadulterated 13 retaliatory animus.” Id. at 26. 14 Defendant replies that Plaintiff has waived his cancellation of training claim by 15 failing to dispute in his Opposition that cancellation of training is not a legally cognizable 16 adverse employment action. See Reply at 5. Further, Ms. Sexton, who was responsible for 17 the training, informed Mr. Amaichigh that “it would not make sense for someone who did 18 not have either an MRO log-in, a Made to Order (MTO) log-in, or a completed background 19 investigation to attend.” Id. (quoting Sexton Aff. at 3). Further, “it would not make sense 20 to have someone attend the training if they did not have an MTO log-in at that time, as they 21 would then be spending time being trained on a system that they could not actually use.” 22 Id. at 6 (quoting Sexton Aff. at 3). 23 “[E]xclu[sion] from meetings, seminars and positions that would have made [the 24 employee] eligible for salary increases” may qualify as an adverse employment action. See 25 Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (citing Strother v. S. Cal. 26 Permanente Med. Grp., 79 F.3d 859 , 869 (9th Cir. 1996)). Here, Plaintiff claims only that 27 he “would have benefitted from the training in regards to future opportunities,” offering no 28 evidence as to what benefits the training may have conferred. Opp’n at 25–26. Under 1 these circumstances, the Court concludes that Plaintiff has failed to raise a genuine issue 2 of material fact that the denial of training was an adverse employment action. 3 Even if Plaintiff had made such a showing, however, Ms. Sexton’s affidavit 4 establishes a legitimate, nondiscriminatory reason for the cancellation of Plaintiff’s 5 training: Ms. Sexton, whom Plaintiff neither alleges nor establishes had discriminatory or 6 retaliatory animus toward him, informed Mr. Amaichigh that it would “not make sense” 7 for Plaintiff to participate in the training because he would “be spending time being trained 8 on a system that [he] could not actually use.” Sexton Aff. at 3. Plaintiff has introduced no 9 evidence that Ms. Sexton discriminated against him based on his age or race or that she 10 retaliated against him because of his prior EEO activity and, in any event, Ms. Sexton has 11 affirmed that she was not “aware of Mr. Collins’ race, national origin, color of age 12 (Caucasian, American, white, born 1951), or of Mr. Collins having previously participated 13 in protected EEO activity, at the time of [her] consultations with Mr. Amaichigh regarding 14 the training in question.” Id. at 4. Accordingly, Plaintiff has failed to raise a genuine issue 15 of material fact that his exclusion from the November 15, 2015 training was a pretext for 16 discrimination or retaliation. 17 C. Discrimination and Retaliation in All-Hands Meeting 18 Finally, Plaintiff claims that, “[o]n November 17, 2015, . . . [Mr.] Amaichigh 19 willfully embarrassed and humiliated the Plaintiff in front of co-workers when[,] during an 20 all-hands meeting[, he] informed staff that Tien Bui had been selected for the position of 21 Aircraft Examiner.” FAC at 6. 22 Defendant contends that Mr. Amaichigh’s announcement “fails to constitute an 23 adverse employment action because it did not result in any harm apart from the selection 24 decision itself, which Plaintiff cannot establish was discriminatory or retaliatory.” Def.’s 25 Mot. at 14 (citing Ellerth, 524 U.S. at 761 ). Plaintiff responds that, “[w]ithout any 26 consideration for the Plaintiff’s feelings in a completely malicious act Amaichigh 27 proceeded to embarrass and further humiliate the Plaintiff in front of his co-workers.” 28 Opp’n at 26. Defendant replies that “[h]urt feelings, embarrassment, and humiliation . . . 1 do not satisfy the ‘adverse employment action’ requirement.” Reply at 6 (citing Nguyen v. 2 McHugh, 65 F. Supp. 3d 873, 893 (N.D. Cal. 2014), aff’d, 722 Fed. App’x 688 (9th Cir. 3 2018)). “Moreover, Plaintiff presents no evidence establishing that this all-hands meeting 4 was convened for the purpose of discriminating or retaliating against him.” Id. at 7. 5 The Court sympathizes with Plaintiff, but Defendant is correct: “While [Plaintiff] 6 alleges he was humiliated and demeaned by [Mr. Amaichigh]’s conduct at the . . . meeting, 7 the circumstances of that meeting, standing alone, are insufficient to establish a materially 8 adverse employment action.” Young Bolek v. City of Hillsboro, No. 3:14-CV-00740-SB, [9] 2016 WL 9455411 , at *13 (D. Or. Nov. 14, 2016) (citing Hellman v. Weisberg, 360 F. 10 App’x 776, 779 (9th Cir. 2009); Cates v. PERS of Nev., 357 Fed. App’x 8, 10 (9th Cir. 11 2009); Bollinger v. Thawley, 304 Fed. App’x 612, 614 (9th Cir. 2008)), report and 12 recommendation adopted, 2017 WL 627218 (Feb. 13, 2017); Hammond v. Lynwood 13 Unified Sch. Dist., No. CV0705039DDPCTX, 2008 WL 11337726 , at *3 (C.D. Cal. Dec. 14 3, 2008) (“Plaintiff’s expression of humiliation is not sufficient to demonstrate an adverse 15 employment action.”); see also Pickard v. City of Tucson, No. CV-16-00729-TUC-RCC, [16] 2019 WL 1130095 , at *7 (D. Ariz. Mar. 12, 2019) (“Embarrassment [and] harm to 17 reputation . . . d[oes] not impact the terms or conditions of [ ] employment and are likewise 18 not adverse employment action.”) (collecting cases). 19 Further, Plaintiff has introduced no evidence beyond a conclusory statement in his 20 declaration that Mr. Amaichigh acted with a discriminatory or retaliatory motive in 21 convening the all-hands meeting. Compare Amaichigh Aff. at 6 (“[A]ssuming that 22 [Mr. Amaichigh] did in fact eventually announce Mr. Bui’s selection after a final selection 23 decision had been made by the Competency Manager, [his] motivation for doing so would 24 have been to keep [his] employees advised of the changes to [the Navy’s] staff and to ready 25 them to assist in training a new staff member. There would have been no intention 26 whatsoever to embarrass or humiliate Mr. Collins.”), with Collins Decl. ¶ 12 (“On 27 November 17, 2015[,] in front of [Plaintiff’s] co-workers[, Plaintiff] was embarrassed[] 28 and humiliated without any consideration for [his] feelings by Robert Amaichigh in 1 ||retaliatory animus directed squarely at [Plaintiff].”). “Conclusory, speculative testimony 2 ||in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat 3 |}summary judgment.” Himaka v. Buddhist Churches of Am., 917 F. Supp. 698, 704 (N.D. 4 ||Cal. 1995) (citing Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 5 ||1985); Thornhill Pub. Co. v. GTE Corp., 594 F.2d 730 , 738 (9th Cir. 1979)). 6 ||Consequently, even if Plaintiff had established a materially adverse employment action, 7 Amaichigh has introduced evidence of a non-discriminatory and non-retaliatory reason 8 the meeting (i.e., advising his employees of a staffing change), and Plaintiff has failed 9 |/to introduce any evidence that Mr. Amaichigh’s proffered reason was pretextual. 10 || Accordingly, summary judgment is appropriate. 11 CONCLUSION 12 In light of the foregoing, the Court DENIES Plaintiff's Request for Oral Argument 13 || (ECF No. 26), OVERRULES Plaintiff's Evidentiary Objections (ECF Nos. 24-2—5), and 14 || GRANTS Defendant’s Motion for Summary Judgment (ECF No. 21). Accordingly, the 15 Clerk of the Court SHALL CLOSE the files for Case Nos. 17-CV-1723 JLC (KSC) and 16 |} 17-CV-1724 JLS (KSC). 17 IT IS SO ORDERED. [18] 19 ||Dated: January 30, 2020 (een 0 on. Janis L. Sammartino United States District Judge