Opinion
No. C-05-4874 MMC, No. C-07-1792 MMC.
July 1, 2008
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Motion for Summary Judgment, filed February 12, 2008, on behalf of defendant Michael Chertoff, sued in his official capacity as Secretary of Homeland Security, Customs and Border Protection ("CBP"). Plaintiff Kenneth Lakes ("Lakes") has filed opposition, to which the CBP has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.
By order filed May 27, 2008, the Court took the matter under submission.
BACKGROUND
Lakes, who is African-American, was formerly employed by the CBP, most recently as a Supervisor, Canine Enforcement Officers, in San Francisco, California. The above-titled consolidated matter consists of two actions.In his complaint filed in Civil Case No. 05-4874 ("2005 Complaint"), Lakes alleges that, while he was employed by the CBP, he was subjected to "retaliation for engaging in protected activity" and discrimination on the basis of "race" and "color" when the CBP did not select him for certain open and/or temporary positions, (see 2005 Complaint ¶¶ 4, 20-21, 23), and in other ways subjected him to unequal treatment, (see id. ¶¶ 5, 22).
In the 2005 Complaint, Lakes also alleges discrimination on the basis of age. (See id. ¶¶ 5, 6.) During the course of discovery, however, Lakes withdrew that allegation. (See Pyle Decl. Ex. B at 3:16-18 (stating, in response to the CBP's First Set of Requests for Admissions, "[p]laintiff does not allege discrimination based on age").)
In his complaint filed in Civil Case No. 07-1792 ("2007 Complaint"), Lakes alleges he was subjected to "retaliation for engaging in protected activity" and discrimination on the basis of "age [and] color" when the CBP terminated his employment on September 26, 2006. (See 2007 Complaint ¶¶ 4, 6.)
In both complaints, Lakes alleges the CBP was formerly known as the U.S. Customs Service. For purposes of this order, the Court will refer to Lakes' employer as the CBP.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c).The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." See Celotex, 477 U.S. at 324 (internal quotation and citation omitted). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586. "If the [opposing party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "[I]nferences to be drawn from the underlying facts," however, "must be viewed in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at 587 (internal quotation and citation omitted).
DISCUSSION
A. 2005 Complaint
In his 2005 Complaint, Lakes alleges he was subjected to the following retaliatory and/or discriminatory adverse employment acts: (1) on thirteen occasions, he was not selected for open positions, (see 2005 Complaint ¶¶ 4, 21); (2) on four other occasions, Lake was not "temporarily promoted," (see id. ¶¶ 20, 23); and (3) on one occasion, Lakes was not given an "overtime assignment," (see id. ¶ 22). Additionally, although not expressly alleged in the 2005 Complaint, both parties interpret the pleading as including a claim that Lakes was subjected to a hostile work environment. (See Def.'s Mot. at 19:4; Pl.'s Opp. at 4:13-14.)
In the instant motion, the CBP argues Lakes lacks sufficient evidence to create a triable issue of fact as to any of the claims alleged in the 2005 Complaint.
Alternatively, the CBP requests it be granted leave to amend its answer to allege the affirmative defense of res judicata, and that the Court consider such defense as part of the instant motion. The proposed defense is based on the theory that Lakes could have raised the claims alleged in his 2005 complaint in an action he filed against the CBP in 2004, Lakes v. Ridge, C-04-1915 TEH, which action was resolved in the CBP's favor when the district court granted the CBP's motion for summary judgment. In light of the Court's findings set forth herein, the Court does not consider the CBP's alternative argument.
1. Non-Selection Claims
Lakes does not argue he can establish his claims by direct evidence of a retaliatory or discriminatory motive. Rather, Lakes relies on the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), whereby the plaintiff first must establish a prima facie case.
To establish a prima facie retaliation claim, "a plaintiff must prove (1) [he] engaged in a protected activity; (2) [he] suffered an adverse employment action; and (3) there was a causal connection between the two." See Surrell v. California Water Service Co., 518 F. 3d 1097, 1108 (9th Cir. 2008).
To establish a prima facie discrimination claim based on a failure to select for a position, "a plaintiff must show that (1) [he] belongs to a protected class; (2) [he] applied for and was qualified for the position [he] was denied; (3) [he] was rejected despite [his] qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff." See Dominguez-Curry v. Nevada Transp. Dep't, 424 F. 3d 1027, 1037 (9th Cir. 2005).
If the plaintiff establishes a prima facie case, the defendant must proffer a legitimate reason for its decision, and if the defendant does so, the plaintiff is required to show that the defendant's proffered reason is pretextual. See id.
a. Open Positions
In its moving papers, the CBP argues that Lakes lacks evidence to prove his failure to be selected for any of the thirteen open positions was the product of retaliation and/or discrimination. In opposition, Lakes states he does not oppose the CBP's motion to the extent the motion concerns the following ten open positions, each identified by its "Vacancy Announcement" number: (1) HQOFO/02-046 KRH; (2) SOLFLA/02-05 MTA; (3) MDAAC/03-004 MTA; (4) SOATL/02-017 AC; (5) TUSCO/02-018 DLK; (6) SOATL/04-033; (7) GULF/04-002; (8) WETEX/04-001 DL; (9) BLTN/01-001 JJF; and (10) SOPAC/02-009 KW. (See Pl.'s Opp. at 2:19 — 3:7.) Accordingly, the CBP's motion will be granted to the extent it is based on Lakes' failure to be selected for any of those ten open positions.
The Court next considers the remaining three open positions for which Lakes was not selected.
(1) SOTEX/02-013
The CBP offers the following evidence with respect to this open position.
Lakes applied for the position of "Supervisory Canine Enforcement Officer" in Pharr, Texas, pursuant to "Vacancy Announcement SOTEX/02-013." (See Dhillon Decl. ¶ 3.) William S. Heffelfinger ("Heffelfinger"), at that time Deputy Assistant Commissioner of the Office of Field Operations, selected Robert Lopez ("Lopez") for the position, in reliance on a recommendation he received from Gurdit S. Dhillon ("Dhillon"), who at the time was Director of Field Operations for the Laredo Field Office. (See id. ¶¶ 3, 4; Heffelfinger Decl. ¶¶ 3, 6.) Dhillon declares he recommended Lopez because Lopez "had an excellent application," a "distinguished record as a supervisor, manager, and officer," and "possesse[d] an extensive knowledge of [CBP] procedures, policies, and budget administration," and was, in Dhillon's opinion, "the most qualified candidate." (See Dhillon Decl. ¶ 4.) Heffelfinger and Dhillon each declare that, at the time the subject decision was made, he did not take Lakes' race or color into consideration and was "not aware" Lakes had engaged in any prior Equal Employment Opportunity ("EEO") activity. (See id. ¶ 5; Heffelfinger Decl. ¶ 9.)
Neither party offers evidence as to the date on which Lakes applied for this open position, or on which he applied for any of the other open positions at issue herein.
The CBP argues that, based on the above-referenced evidence, Lakes cannot establish a prima facie case of retaliation or discrimination. Alternatively, the CBP argues, Lakes cannot establish the CBP's stated legitimate reason, specifically, Dhillon's opinion that Lopez was the most qualified candidate, is pretextual in nature.
(a) Retaliation
As noted, to establish a prima facie retaliation claim, Lakes must show he engaged in protected activity, suffered an adverse employment action, and that a causal connection existed between the protected activity and the employment action. See Surrell, 518 F. 3d at 1108.
The first two of these elements are not in dispute. In particular, it is undisputed that, prior to applying for the subject promotion, Lakes engaged in protected activity by submitting EEO complaints. One such complaint was submitted on August 8, 1994, when Lakes contacted the EEO office of the CBP's San Diego/Calexico office and submitted a claim alleging his then supervisor, Lee Sanders ("Sanders"), engaged in "discriminatory" conduct and "retaliation as a result of [Lakes'] involvement in the EEO process," by reason of Sanders' having advised Lakes that Lakes would be subject to "disciplinary action" for not submitting a "medical release" to explain why Lakes had been absent from work on August 5, 1994. (See Ross Decl., filed March 31, 2008, Ex. 1, second page.) Additionally, the CBP does not argue Lakes was not qualified for the open position, and, consequently, does not assert Lakes is unable to establish his non-selection for such position constituted an adverse employment action.
With respect to the remaining element, Lakes argues that a causal connection exists between his 1994 EEO complaint and Dhillon's decision, in 2003, to recommend Lopez for the subject promotion. Specifically, Lakes argues, a triable issue of fact exists as to whether Dhillon, in his declaration submitted in 2008 in support of the instant motion, lied when he stated he was "not aware" of any prior EEO activity by Lakes. (See Dhillon Decl. ¶ 5.) Lakes asserts that if the trier of fact determines Dhillon lied about his inability to recall Lakes' prior EEO activity, the trier of fact could reasonably infer the requisite causal connection between Dhillon's 2003 recommendation and Lakes' 1994 EEO complaint.
As noted, Heffelfinger's decision was based on Dhillon's recommendation. Consequently, Dhillon's state of mind is relevant. See, e.g., Ostad v. Oregon Health Sciences Univ., 327 F. 3d 876, 885 (9th Cir. 2003) (holding where supervisor with retaliatory animus recommended plaintiff's termination, decisionmaker's "lack of information about [plaintiff's] protected conduct and [supervisor's] bad motives did not cut off the chain of causation").
A causal link between the protected activity and the employment decision can be inferred from evidence the employer knows of the protected activity and there is a "promixity in time between the protected activity and the allegedly retaliatory employment decision." See Yartzoff v. Thomas, 809 F. 2d 1371, 1376 (9th Cir. 1987) (holding three month period between protected activity and employment decision sufficient from which to infer causal link for purposes of prima facie case). Here, given that the passage of time between the protected activity and Dhillon's recommendation was approximately nine years, Lakes does not argue that a causal link can be inferred from the timing of the relevant events.
In that regard, Lakes relies on a "Memorandum," dated August 15, 1994, written by Elizabeth Banagan ("Banagan"), an "EEO Counselor," and addressed to Dhillon, in his capacity as District Director of the San Diego/Calexico office. (See Ross Decl. Ex. 1, first page.) The memorandum states that "informal counseling on a discrimination issue on the basis of retaliation was initiated," and that "appropriate management officials and employees [would] be contacted in an effort to conduct the counseling." (See id.). Although the memorandum itself does not identify the complainant or provide any information concerning the nature of the complaint, (see id.), attached thereto is a one-page form completed by Banagan, in which she identifies Lakes as the complainant and summarizes in a paragraph an EEO complaint Lakes had submitted to her office on August 8, 1994. (See id. Ex. 1, second page.)
Lakes offers no evidence, however, that Dhillon received the above-referenced memorandum and attachment. The only other evidence possibly bearing on the issue of Dhillon's awareness of the complaint is included in Lakes' declaration. First, Lakes states Dhillon was "involved in [the 1994] EEO complaint." (See Lakes Decl. ¶ 7.) Such statement, however, is entirely conclusory in nature and, consequently, is insufficient to create a triable issue of fact. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (holding party opposing summary judgment does not create "genuine issue for trial" with "conclusory allegations [in] an affidavit"). Second, Lakes states that his "case," an apparent reference to his 1994 EEO complaint, was "given coverage in the media" and that Dhillon was "extremely unhappy about this." (See Lakes Decl. ¶ 7.) Lakes fails to state the basis for his asserted knowledge that Dhillon was unhappy, let alone that Dhillon was unhappy because of media coverage of Lakes' "case." Moreover, Lakes fails to offer any evidence with respect to the "coverage in the media," thereby leaving the trier of fact to speculate as to the nature, extent, and type of "coverage" that occurred. In short, Lakes has not created a triable issue of fact as to whether Dhillon was aware of the 1994 EEO complaint in either 1994 or 2003.
The Lakes Declaration is Exhibit 3 to the Declaration of David L. Ross.
Even assuming a fact-finder could reasonably find Dhillon was made aware of Lakes' 1994 EEO complaint in 1994, Lakes fails to offer any evidence from which a trier of fact could reasonably conclude that Dhillon lied in his 2008 declaration, when he stated he did not recall Lakes' having been involved in any prior EEO activity. The 1994 complaint, as described in the attachment to the memorandum, was characterized as one involving a relatively minor and uncontroversial issue — whether a supervisor should have required an employee to provide a medical excuse for missing a day of scheduled work. Further, Dhillon's 2008 statement was made more than thirteen years after Lakes, one of over 1500 employees who reported to Dhillon in 1994, submitted his 1994 EEO complaint. Finally, Lakes offers no evidence that he has had any contact, let alone negative contact, with Dhillon between 1994 and 2003, or that Dhillon ever made any comment suggesting he harbored any view, let alone a negative view, concerning Lakes. Cf. Bergene v. Salt River Project Agricultural Improvement Power Dist., 272 F. 3d 1136, 1141-42 (9th Cir. 2001) (holding plaintiff created triable of fact as to causal relationship between failure to promote and prior discrimination claim against employer, where, inter alia, decisionmaker greeted plaintiff with phrase, "Hi, trouble" before deciding to select another employee for position).
Dhillon, upon being shown the 1994 memorandum in the course of the instant action, submitted a second declaration indicating, consistent with his initial declaration, that he does not recall ever having received it, and stating that at the time the memorandum was dated, Lakes was one of 1500 employees who reported through the chain of command to Dhillon, that Dhillon was in the process of leaving the San Diego office in light of his having been transferred to El Paso, and that Dhillon was transferring his duties to others in his chain of command. (See Rebuttal Dhillon Decl. ¶¶ 3-5.)
Consequently, the Court finds plaintiff has failed to offer sufficient evidence to establish a prima facie case of retaliation with respect to his failure to receive the position identified in Vacancy Announcement SOTEX/02-013.
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
(b) Discrimination
Lakes also alleges he did not receive the position because of discrimination on account of his race and color.
At the outset, the CBP argues Lakes cannot establish a prima facie case of discrimination. The CBP does not dispute, however, that Lakes is a member of a protected class and that he applied for and was not selected for the subject position. Nor does the CBP contend that Lakes was not qualified for the position or that Lopez, the person selected, is a member of the same protected class. See Dominguez-Curry, 424 F. 3d at 1037 (setting forth prima facie elements for failure to promote claim).
The CBP alternatively argues that Lakes cannot establish that the CBP's articulated non-discriminatory reason for selecting Lopez, specifically, that Lopez was the most qualified, is a pretext for unlawful discrimination on the basis of race or color. In his opposition, Lakes sets forth his theory. Specifically, Lakes argues, Dhillon "lied," in his 2008 declaration, when Dhillon stated he did not recall that Lakes had made any EEO complaints, and, consequently, a trier of fact could reasonably infer that Dhillon further lied when he stated he believed, in 2003, Lopez was the most qualified applicant. Lakes, however, offers no evidence to support a finding that Lakes' qualifications were superior to, or even equivalent to, those of Lopez. In any event, for the reasons stated above, the Court finds Lakes has failed to offer sufficient evidence to create a triable issue of fact as to Dhillon's having lied when he stated that he did not recall that Lakes had been involved in any prior EEO activity.
Consequently, the Court finds plaintiff has failed to offer sufficient evidence to establish a claim of discrimination with respect to his failure to receive the position identified in Vacancy Announcement SOTEX/02-013.
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
(2) MDPAC/04-005 RTT
The CBP offers the following evidence with respect to this open position.
Lakes applied for the position of "Supervisory Inspector" in San Francisco, pursuant to "Vacancy Announcement MDPAC/04-005RTT." (See Aycox Decl. ¶ 3; Heffelfinger Decl. ¶ 3.) Heffelfinger, then Deputy Assistant Commissioner of the Office of Field Operations, selected Evan Bladh, Susan Fiust, Sharon Richards, and Patrick Burke for the openings identified in the subject announcement, acting in reliance on a recommendation he received from Nat H. Aycox ("Aycox"), then Director of Field Operations for the San Francisco Office. (See Aycox Decl. ¶¶ 3, 4; Heffelfinger Decl. ¶¶ 4-6.) Heffelfinger declares that, at the time the decision was made, he did not take Lakes' race or color into consideration and that he was "not aware" Lakes had engaged in any prior EEO activity. (See Heffelfinger Decl. ¶ 9.). Aycox declares he selected the above-identified individuals because each was "rated as exceptional in performance and managerial capacities by [his or her] supervisors" and had "worked successfully in the inspectional job series, where the announced position also lies." (See Aycox Decl. ¶ 5.) Aycox also declares that Lakes' experience "as a canine supervisor did not have the same value as the experience of the selectees, since most of his experience was in another job series" and that Lakes "had no areas where his expertise and experience equaled the [selected] four individuals, with the exception of knowledge and experience in the canine program, which was not a highly important factor in the advertised position." (See id.) Aycox further declares he was aware, at the time he made the recommendations to Heffelfinger, that Lakes had filed seven prior EEO complaints, that Lakes had "attempted to file" another, and that Lakes is African-American. (See id. ¶ 6.) Aycox states, however, that Lakes' race, color, and prior EEO activity were not factors in his decision. (See id.)
The CBP argues that, based on the above-referenced evidence, Lakes cannot establish a prima facie case of retaliation or discrimination. Alternatively, the CBP argues, Lakes cannot establish the CBP's stated legitimate reason, specifically, that the four selected individuals had qualifications superior to those of Lakes, is pretextual in nature.
(a) Retaliation
It is undisputed that Lakes, prior to his applying for this position, engaged in protected activity. Further, the EEO does not argue that Lakes was unqualified for the subject position or that Lakes cannot establish his non-selection was an adverse employment action.
With respect to the remaining element necessary to establish a prima facie case of retaliation, specifically, that a causal connection exists between Lakes' EEO activity and his failure to receive one of the positions, Lakes relies on his declaration, in which he states "Aycox was the subject of many of [Lakes'] EEO complaints and had to appear numerous times to answer EEO investigator questions." (See Lakes Decl. ¶ 8.) Assuming such testimony would be sufficient to support a prima facie case of retaliation, Lakes fails to offer any evidence to support a finding that Aycox's stated reason for recommending others, specifically, that each of the persons selected was more qualified than Lakes, was a pretext for unlawful retaliation. For example, Lakes does not contend he had been rated as "exceptional in performance and managerial capacities" by his supervisor, as was the case with each of the four selected persons, (see Aycox Decl. ¶ 5), nor that he had experience superior to, or even equivalent to, those of any of the four selected persons. Indeed, Lakes fails to offer any evidence comparing himself to the selected persons on any basis, let alone comparing himself to the selected persons on the basis of the criteria employed by the CBP. See, e.g., Coleman v. Quaker Oats Co., 232 F. 3d 1271, 1285, 1288 (9th Cir. 2000) (holding, where employer's stated legitimate reason for selecting another for open position is that selected person is more qualified, "[t]he question is whether [the plaintiff] is more qualified with respect to the criteria that [the employer] actually employs"; finding plaintiff failed to raise triable issue of fact as to pretext, where plaintiff offered "no evidence that his analytical abilities [were] superior to those of the employees [the employer] selected, the very skills [the employer articulated] as the rationale for its employment decisions").
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
(b) Discrimination
As noted, the CBP does not argue that Lakes was unqualified for the subject position. Further, the CBP does not argue that any selected person was African-American. Consequently, the Court finds Lakes has established a prima facie case of discrimination. The Court thus considers whether a trier of fact could reasonably find Aycox's stated non-discriminatory reasons for his recommendations were a pretext for unlawful discrimination. In that regard, Lakes relies on his declaration, in which he states that Richard Vigna ("Vigna"), who at a time unspecified by Lakes worked as a "deputy" to Aycox, was "prone to using the `N' word when describing African-Americans." (See Lakes Decl. ¶ 8.) Lakes also relies on deposition testimony offered in another action by Nina Grass ("Grass"), who stated she heard Vigna once use the word "nigger." (See Ross Decl. Ex. 9 at 12:24 — 13:6.) Because Lakes does not state he ever heard Vigna use the "`N' word," or otherwise explain the basis for his conclusory assertion that Vigna was "prone" to using the "N" word, it would appear such basis is the testimony offered by Grass, which, as noted, is that she heard Vigna use the term on a single, unspecified occasion. In any event, Lakes offers no evidence that Vigna played any role in recommending or selecting persons for the subject positions, let alone that Aycox was aware of the incident referenced by Grass in her deposition testimony.
Consequently, the Court finds plaintiff has failed to offer sufficient evidence to establish a claim of discrimination with respect to his failure to receive one of the positions identified in Vacancy Announcement MDPAC/04-005.
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
(3) MDPAC/03-006 MTA
The CBP offers the following evidence with respect to this open position.
Lakes applied for the position of "Border Security Coordinator" in San Francisco, pursuant to "Vacancy Announcement MDPAC/03-006." (See Aycox Decl. ¶ 4; Ahern Decl. ¶ 3.) Jayson P. Ahern ("Ahern"), then Assistant Commissioner, Office of Field Operations, selected Vigna for the position, in reliance on a recommendation Ahern had received. (See Ahern Decl. ¶ 4.) Ahern declares that, at the time he made the selection, he was unaware of Lakes' race or color and was unaware Lakes had engaged in any prior EEO activity. (See id. ¶ 8.) The recommending officer was Aycox, who recommended Vigna because Vigna was, in Aycox's opinion, the "most qualified person." (See Aycox Decl. ¶ 4.) According to Aycox, Vigna had "the most wide ranging knowledge of enforcement operations required by the position," had "shown expertise in all of the areas required by the position, including oral and written communication, staff work and the ability to lead working groups," and was "highly recommended by the San Francisco Port Director." (See id.) Aycox further states, as noted above, that he was aware, at the time he made the recommendation, that Lakes had filed seven prior EEO complaints, that Lakes had attempted to file another, and that Lakes is African-American; Aycox again states that Lakes' race, color, and prior EEO complaints were not factors in his decision. (See id. ¶ 6.)
The CBP argues that, based on the above-referenced evidence, Lakes cannot establish a prima facie case of retaliation or discrimination. Alternatively, the CBP argues, Lakes cannot establish the CBP's stated legitimate reason, specifically, Vigna's being the "most qualified person," is pretextual in nature.
(a) Retaliation
For purposes of the instant motion, the Court assumes Lakes has established a prima facie case of retaliation. Lakes fails, however, to offer any evidence to support a finding that Aycox's stated reasons for recommending Vigna were a pretext for unlawful retaliation. Lakes offers no evidence, for example, to support a finding that his qualifications were equivalent to those of Vigna.
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
(b) Discrimination
For purposes of the instant motion, the Court assumes Lakes has established a prima facie case of discrimination. Lakes fails, however, to offer evidence to support a finding that Aycox's stated reasons for recommending Vigna were a pretext for unlawful discrimination. Although, as noted above, Lakes asserts, in conclusory fashion, that Vigna was "prone to using the `N' word when describing African-Americans," (see Lakes Decl. ¶ 8), Lakes provides no foundation for such conclusion, and, of particular importance, offers no evidence that either Aycox or Ahern was aware of any such comment(s) by Vigna.
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
b. Temporary Promotions
In its moving papers, the CBP argues Lakes lacks evidence to prove that his failure to be temporarily promoted on four occasions was the product of retaliation and/or discrimination. In opposition, Lakes argues he can establish a claim of "discriminatory and retaliatory animus" with respect to "the temporary position." (See Pl.'s Opp. at 4:11-12.) Lakes, however, does not identify which of the four "temporary positions" he is continuing to pursue. In any event, as discussed below, the CBP has offered a legitimate, non-retaliatory and non-discriminatory reason for selecting someone other than Lakes for each of the temporary promotions, and Lakes offers no evidence to support a finding that such reasons, or any of them, are pretextual in nature.
With respect to a Border Security Coordinator temporary promotion given to Geri Desha ("Desha"), the CBP offers evidence that Aycox selected Desha based on a recommendation from Leo Morris ("Morris"), then Assistant Director of Field Operations in the San Francisco Field Office, (see Aycox Decl. ¶ 7), and that Morris' recommendation was based on his determination that Desha possessed "excellent writing and speaking skills and a working knowledge of [the CBP's] automated targeting systems," (see Morris Decl. ¶ 4). In his opposition, Lakes fails to make any specific reference to this temporary position, let alone offer any evidence from which a trier of fact could find Morris' stated reasons for his recommendation and/or Aycox's stated reliance thereon were pretextual in nature.
Desha was given the temporary promotion before August 2003, (see Morris Decl. ¶¶ 3-4); neither party offers any evidence as to the precise date of such temporary promotion.
Ultimately, this position was announced publicly in Vacancy Announcement MDPAC/03-006, and, as discussed above, Vigna was selected. (See id.)
With respect to three "Supervisory Customs Inspector" positions that were temporary filled in May 2004, the CBP offers evidence that Aycox selected three other supervisors, instead of Lakes, because each selected person had "a great deal more experience and were more current in inspectional issues." (See Aycox Decl. ¶¶ 7, 9.) Lakes' opposition contains no discussion of these temporary positions, let alone any evidence from which a trier of fact could find Aycox's stated reasons for selecting persons other than Lakes were pretextual in nature.
Accordingly, the CBP is entitled to summary judgment on these claims.
2. Failure to Receive Overtime
In his complaint, Lakes alleges he was not provided the opportunity to work overtime on April 4, 2004, because of retaliation and/or discrimination. (See 2005 Compl. ¶ 21.)
In its moving papers, the CBP argues that Lakes lacks evidence to prove his failure to be selected for the overtime assignment was the product of retaliation and/or discrimination. In particular, the CBP relies on the declaration of Vigna, who states the person preparing the schedule for April 4, 2004 asked him whether to assign Lakes to a shift, and he told the scheduler to select someone else. (See Vigna Decl. ¶ 4.) Vigna further states that the employee working that shift would be required to complete a "Management Data Enforcement System" report and to send it to the CBP headquarters, and that Lakes, when he worked that shift one week earlier, had been unable to complete and send the requisite report, and, further, had failed to report his inability to complete such report to his supervisor. (See id.) Vigna also states that he had no input in the ultimate selection for the subject shift, other than to direct the assigning officer to assign someone other than Lakes. (See id.) Lastly, Vigna states that, at the time in question, he was aware of "Lakes' general involvement in the EEO process," as well as Lakes' race, but that he did not take these factors into account when making the above-referenced directive to the scheduling officer. (See id. ¶ 6.)
a. Retaliation
For purposes of the instant motion, the Court assumes Lakes has established a prima facie case of retaliation. Lakes fails to offer, however, any evidence to support a finding that Vigna's stated reasons, for directing the assigning officer to select someone other than Lakes for the shift in question, was a pretext for unlawful retaliation. Lakes offers no evidence, for example, to support a finding that one week earlier, when he was assigned to the particular shift in question, he had in fact performed the required tasks or, if he had not, that he had reported his inability to perform those tasks to his supervisor.
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
(b) Discrimination
Assuming Lakes has established a prima facie case of discrimination, Lakes fails to offer evidence to support a finding that Vigna's stated reasons, for directing the assigning officer to select someone other than Lakes for the shift in question, are pretextual in nature. For example, as noted above, Lakes offers no evidence to support a finding that during his assignment to the shift in question one week earlier, he had performed the required tasks or, if he had not, that he had reported such inability to his supervisor.
Lakes argues an inference of pretext nonetheless can be drawn from Lakes' declaration, in which, as noted, Lakes states that Vigna was "prone to using the `N' word when describing African-Americans." (See Lakes Decl. ¶ 8.) As discussed above, Lakes' assertion is conclusory in nature and appears to be based exclusively on deposition testimony offered in another action by CBP employee Grass, who stated she had heard Vigna use the word on one occasion. (See Ross Decl. Ex. 9 at 12:24 — 13:6). Grass, however, was not asked, and, consequently, did not testify, as to the circumstances under which she heard Vigna use the word, or even to whom, if anyone, it may have been directed. While the use of the word, if made, was unquestionably inappropriate, the use of the "N word" on one occasion at an unidentified time and under undisclosed circumstances does not constitute sufficient evidence from which a trier of fact could infer that Vigna's request that Lakes not be assigned to the subject overtime shift was because of racial animus. See Merrick v. Farmers Ins. Group, 892 F. 2d 1434, 1438-39 (9th Cir. 1990) (holding "stray remarks," particularly when "unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decisionmaker").
Accordingly, the CBP is entitled to summary judgment in its favor on this claim.
3. Hostile Work Environment Claim
In its moving papers, the CBP argues that Lakes lacks evidence to prove he was subjected to a hostile work environment on account of his having engaged in protected activity and/or on account of his race or color.
"When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated."Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). Whether an environment is "sufficiently hostile or abusive" is determined by "looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal quotation and citation omitted).
In his opposition, Lakes argues that "[t]he record evidences an ongoing history of tormenting [Lakes]." (See Pl.'s Opp. at 8:17.) The only evidence cited in support of this assertion is an affidavit, dated January 14, 1997, signed by James Beichler ("Beichler"), who was employed as a "Senior Inspector" by the CBP and was also a "Chief Steward" for the union. (See Ross Decl. Ex. 6.) In his 1997 affidavit, Beichler states that Lakes was then on a "45-day suspension" and that Lakes had been "given a leave restriction letter due to misconduct (excess leave taken)." (See id.) Although Beichler states that "management [had] treated Lakes differently," (see id.), Beichler provides no facts to support such a conclusion, e.g., that other employees engaging in the same or similar conduct were treated less harshly; consequently, his affidavit is insufficient to create a triable issue of fact. Moreover, because Lakes and the CBP earlier settled any claim based on conduct occurring in or before September 29, 1997, (see Pyle Decl. Ex. F), the two incidents described by Beichler cannot form the basis for a finding of liability in the instant action.
The 2005 Complaint includes other factual allegations that, arguably, could pertain to a hostile work environment claim, specifically, that Lakes' "supervisor" in San Francisco "would not provide [Lakes] with such basic needs as an office, desk, computer, or workstation for the longest time," and that Lakes was "mostly not invited" to meetings concerning "intelligence matters, terrorist threats and possible responses thereto" and was "belittled" when he did attend such meetings. (See 2005 Compl. ¶ 5.) In his opposition, however, Lakes does not cite to any evidence with respect to these allegations.
The 2005 Complaint also alleges that after a "supervisor" threw rocks at Lakes in 1992, "managers attempted to stop the investigator from reporting the violation to upper management," and that Lakes was then sent on a "dangerous mission without the requisite body protective vest." (See 2005 Compl. ¶ 13.) Again, Lakes fails to offer any evidence with respect to such allegations; rather, he refers to them only as "background," (see Pl.'s Opp. at 8:7-14), apparently indicating he does not seek to hold the CBP liable for such acts in the instant action. In any event, Lakes, in 1997, settled any claim he may have had based on those events. (See Pyle Decl. Ex. F.)
Accordingly, the CBP is entitled to summary judgment on this claim.
B. 2007 Complaint
In his 2007 Complaint, Lakes alleges he was terminated on September 22, 2006, and that the termination was retaliatory and discriminatory.
On June 7, 2006, Martin Childs, a Member of the Discipline Review Board, proposed that Lakes be terminated for the following reasons: (1) Lakes, on multiple occasions, had instructed subordinates to put false information into official reports, specifically, to state canines had discovered contraband that had, in fact, been discovered by means other than by canines; (2) Lakes falsely told the CBP, on two occasions, that he had not instructed subordinates to put the above-referenced information in official reports; and (3) Lakes, on two occasions, engaged in conduct "unbecoming a supervisor"; specifically (a), in June 2003, in response to a statement by Ronald Knittel ("Knittel"), a subordinate, specifically, that Knittel's stomach was bothering him, Lakes unzipped his pants, pulled them down to hip level, and told Lorenzo Guerrero ("Guerrero"), another subordinate, to "hold [Knittel] down" because Lakes "had something for Knittel's stomach," and (b) in October or November 2003, Lakes, in a break room, pulled on his belt with both hands and told Knittel that Lakes wanted to show him something. (See 2007 Compl., second unnumbered exhibit attached thereto.)
In a written decision effective September 22, 2006, Aycox, the Director of Field Operations for the San Francisco office, terminated Lakes' employment. (See 2007 Compl., first unnumbered exhibit attached thereto.) In the decision, Aycox stated that, after considering the evidence and a written response submitted by Lakes, through counsel, Aycox "[found] that the charges and specifications [were] fully supported by preponderant evidence and concluded that [Lakes] committed the misconduct as charged." (See id.) With respect to the issue of whether Lakes had instructed subordinates to include false information in reports, Aycox relied on affidavits provided by six individuals, which Aycox found "consistent" and "corroborated by written documentation and computer records." (See id.)
Thereafter, Lakes filed an administrative appeal, which was heard by the Merit Systems Protection Board ("MSPB"). (See Pyle Decl. Ex. M at 1.) After conducting a two-day hearing, the MSPB affirmed the CBP's decision to terminate Lake's employment. (See id.)
Where, as here, a federal employee unsuccessfully challenges a termination before the MSPB and thereafter files a civil action alleging discrimination, the employee is entitled to a "trial de novo on [the] discrimination claim." See Washington v. Garrett, 10 F. 3d 1421, 1428 (9th Cir. 1993). Accordingly, the Court does not review the sufficiency of the findings made by the MSPB, but, rather, determines whether Lakes has submitted sufficient evidence herein to create a triable issue of fact as to discrimination.
A. Retaliation
As discussed above, to establish a prima facie case of retaliation, Lakes must show he engaged in protected activity, suffered an adverse employment action, and that a causal connection existed between the protected activity and the employment action. See Surrell, 518 F. 3d at 1108.
Assuming Lakes has established a prima facie case based on Aycox's conceded knowledge of Lakes' prior EEO activity, (see Aycox Decl. ¶ 6), the CBP has articulated legitimate, non-retaliatory reasons for the termination. In particular, the CBP determined that Lakes instructed subordinates to falsely state, in official reports, that canines had discovered contraband when, in fact, the canines had not discovered the contraband, and later, when subordinates reported Lakes' directives, he denied to the investigators that he had given them.
In opposition, Lakes, relying on his declaration, argues a triable issue of fact exists as to Aycox's having a retaliatory motive to terminate Lakes.
First, Lakes, in his declaration, states that "[t]he reasons for [his] termination are factually untrue." (See Lakes Decl. ¶ 9.) Lakes does not deny, however, that he instructed subordinates to place in CBP files notations indicating that a canine had discovered contraband when, in fact, a canine had not discovered contraband. As discussed above, conclusory statements, such as Lakes' assertion that the reasons proffered by CBP are "factually untrue," are insufficient to create a triable issue of fact. See Lujan, 497 U.S. at 888.
Lakes does "specifically" deny lowering his pants and making unseemly comments to Knittel. (See Lakes Decl. ¶ 10.) Even assuming, arguendo, the CBP erred in accepting the contrary statements of Knittel and the other witnesses to the events allegedly involving Lakes' pants, the CBP's other stated reasons are sufficient to constitute a legitimate, non-retaliatory basis for the termination.
Second, Lakes, in his declaration, takes issue with the motivations of some of the witnesses who submitted affidavits to Aycox concerning the canine reporting issue. Specifically, he declares that Knittel and Guerrero had, on unspecified dates, been "disciplined" by Lakes. (See Lakes Decl. ¶ 9.F.) Lakes fails to offer any authority, however, to support his implicit argument that management has a duty to reject statements against a supervisor offered by subordinates who have had previous disputes with that supervisor. In any event, as noted, four other witnesses offered affidavits stating Lakes had directed the filing of reports with false information regarding canine discovery of contraband.
Lakes also argues that the statements of two other witnesses should not have been accepted. These arguments are based on assertions unsupported by any evidence, and, consequently, are without merit. First, as to Shirley Tam ("Tam"), Lakes states that she "admitted she never saw the seizure in question," (see Lakes Decl. ¶ 9.D.); Lakes fails to explain the basis for his assertion, and the testimony by Tam offered by Lakes, (see Ross Decl. Ex. 8) includes no such statement by Tam. Second, as to Zack Bennett ("Bennett"), a deaf person, Lakes states Bennett "claimed" to have "heard" a conversation between Lakes and Knittel by "body language," (see Lakes Decl. ¶ 9.E.); again, Lakes fails to explain the basis for his assertion, and the testimony by Bennett offered by Lakes, (see Ross Decl. Ex. 9), includes no such statement by Bennett.
Third, Lakes, in his declaration, states he is unaware of any "non-African-American supervisory employee" who was "terminated based on fabricated facts known to the deciding officer to be untrue." (See id. ¶ 9.) As discussed above, however, Lakes has failed to offer any facts to support his conclusory assertion that the charges against him were fabricated, let alone that Aycox knew the charges to have been untrue. Further, to the extent Lakes, by offering such statement, may be arguing he was treated more harshly than similarly-situated employees, Lakes' argument is unpersuasive because Lakes fails to identify any other employee who engaged in conduct similar to that of Lakes, and who received a lesser punishment than termination.
Accordingly, the CBP is entitled to summary judgment in its favor as to this claim.
B. Discrimination
As discussed above, the CBP has articulated legitimate reasons for terminating Lakes' employment, specifically, that Lakes directed subordinates to place false information into reports, and Lakes has failed to offer sufficient evidence to support a finding that the evidence upon which such determination was based was fabricated. Further, Lakes has failed to offer any evidence from which a trier of fact could otherwise conclude that Aycox's actual motive was to terminate Lakes because of Lakes' race or color.
Neither party addresses the issue of whether Lakes has established a prima facie case of discrimination based on the termination. Accordingly, the Court assumes, for purposes of the instant motion, that Lakes has established a prima facie case. The Court notes, however, that Lakes fails to offer any evidence to show that he was replaced by someone who is not African-American, or, as noted above, that he was treated more harshly than similarly situated employees who engaged in similar conduct.
Accordingly, the CBP is entitled to summary judgment in its favor as to this claim.
CONCLUSION
For the reasons stated above, the CBP's motion for summary judgment is hereby GRANTED.
IT IS SO ORDERED.