Opinion
No C 02-5942 VRW
December 9, 2003
ORDER
The government (on behalf of named defendants Michael J Garcia and John D Ashcroft) filed a motion for summary judgment in this case on October 9, 2003. Doc # 9. Pro se plaintiff Scott D Steik filed an opposition to the motion for summary judgment on October 23, 2003. Doc # 12. Defendant filed a reply on October 29, 2003. Doc # 13.
The court finds this motion appropriate for decision without oral argument. See Civ LR 7-1(b). Thus, the hearing scheduled for November 13, 2003, at 2:00 pm is VACATED. Because plaintiff has not shown that any genuine issues of material fact are in dispute, the court GRANTS defendant's motion for summary judgment (Doc # 9).
I
Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 on the basis of his assertions that defendant terminated him from his position as an immigration inspector on the basis of race. See Pl Compl 2-5 ¶¶ 5-39 (Doc # 1). Plaintiff is an African American man who is currently thirty-seven years old. Id at 1 ¶ 2; Decl Steven J Saltiel (Saltiel Decl; Doc #11) ¶ 2, Exh 1, Depo Scott Steik (Steik Depo) 11:3-4. Plaintiff commenced employment with the Immigration and Naturalization Service (INS) as an immigration inspector in July 2000. Id at 21:3-7. Plaintiff's employment in that position was subject to a one-year probationary period and began at the GS-5 grade level. Id at 21:8-12. After he was hired, plaintiff attended a sixteen-week training class in Georgia, which he successfully completed and from which he returned in November 2000. Id at 25:25-26:20. Upon completion of the training, plaintiff was assigned to work at the San Francisco International Airport, Immigration Inspections branch (SFO). Id at 26:21-24. Plaintiff spent several weeks attending an orientation and training session, during which he worked with training officer Leon Danz. Id at 26:25-28:19. During and immediately after the orientation period, plaintiff's first supervisor was Supervisory Immigration Inspector Stuart Tsang. Id at 29:2-12. Subsequent to March 31, 2001, plaintiff's supervisor became Supervisory Immigration Inspector Jamie Campanale, although plaintiff was unaware of the change until June 2001. Id at 30:17-31:20. Inspector Campanale was plaintiff's supervisor until plaintiff was terminated from his employment with the INS. Id at 31:18-20.
When he started his employment with the INS, plaintiff received a document entitled "Conditions of Employment Mixed Tour Work Schedule." Id at 21:17-22:9; see also Saltiel Decl, Exh 2. The document provides, and plaintiff confirmed at his deposition, that immigration inspectors at SFO were required to work "rotating shifts." Steik Depo 22:25-23:14; Saltiel Decl, Exh 2 ¶ 3. This policy required plaintiff to work two weeks of "swing" shifts (1:00 pm to 9:00 pm, in plaintiff's case) followed by two weeks of day shifts. Steik Depo 23:23-24:5. Inspectors were also required to work mandatory overtime shifts. Id at 25:3-5; Saltiel Decl, Exh 2 U 3. Tsang explained in a March 6, 2001, memo to plaintiff that plaintiff's responsibilities with regard to overtime assignments included checking posted typed overtime schedules and handwritten entries in the assignment log book. Steik Depo 39:15-41:10; Saltiel Decl, Exh 3. It is unclear whether defendant notified plaintiff before March 2001 of this policy, although plaintiff indicates that he was unaware of the log book until then. See Steik Dep 35:9-17.
While still subject to the probationary period, plaintiff failed to appear for several overtime assignments. First, plaintiff failed to appear for an overtime assignment on February 4, 2001. Plaintiff claims that he checked the posted schedule and did not see that he had an assignment for that date, but plaintiff also did not check the assignment log book. Id at 33:5-35:12. Although plaintiff apparently did not know in February that he was required to check the log book, the book contained a handwritten entry indicating that plaintiff had an overtime assignment. Id at 35:12-23; Saltiel Decl ¶ 6, Exh 5. Plaintiff then failed to attend an overtime assignment at Oakland International Airport on March 3, 2001, because he failed to check the posted schedule for assignments in remote locations and failed to check the log book. Steik Depo 41:11-42:12; Saltiel Decl ¶ 6, Exh 5. Plaintiff missed a third assignment scheduled for March 4, 2001. Plaintiff's name appears in the exhibit copy of the posted schedule. Saltiel Decl ¶ 7, Exh 6. But plaintiff claims not to have seen his name on the schedule nor to believe that the exhibit schedule was the one actually posted at the airport. Plaintiff also did not check the assignment log book. Steik Depo 45:11-47:19.
During June 2001, plaintiff failed to arrive at work in a timely fashion on several occasions. On June 13, 2001, plaintiff was scheduled to work at 8:00 am but did not arrive until 2:00 pm. Plaintiff admitted in a June 14, 2001, memo that he believed he was scheduled for a 2:00 pm to 10:00 pm shift on that date. Id at 52:19-24; Saltiel Decl ¶ 8, Exh 7. On June 15, 2001, plaintiff was ten minutes late for a remote assignment in San Jose. Steik Decl 54:11-20. Then, on June 17, 2001, plaintiff arrived at 4:00 pm for a 2:00 pm assignment. Apparently failing to read the schedule closely, plaintiff wrote in a June 22, 2001, memo that he assumed that his assignment that day would be on a similar schedule as his previous assignments. Id at 53:3-54:10; Saltiel Decl ¶ 9, Exh 8. Plaintiff also missed scheduled flights on two occasions by stepping away from his assigned post. Plaintiff is unsure why he did not know that such flights were scheduled to arrive. Steik Depo 55:24-58:9.
After these incidents, plaintiff was assigned to work with a more experienced immigration inspector, an African American man named Gary Williams. Id at 59:7-25. Plaintiff believed that he had been assigned to work with Williams because plaintiff was a new inspector and because plaintiff's supervisors had some concern about his ability as an inspector. Id at 61:12-62:2.
On July 13, 2001, plaintiff received a letter terminating his employment with the INS. Id at 64:8-13; Saltiel Decl ¶ 10, Exh 9. The letter cited the facts that plaintiff had failed to report on time for several assignments and had failed to appear for scheduled assignments on several occasions. Saltiel Decl ¶ 10, Exh 9. The decision to terminate plaintiff was made by Linda Adams. Decl Linda Adams (Adams Decl; Doc #10) ¶ 2. Adams is an African American woman employed as the Area Port Director at the Department of Homeland Security, Bureau of Customs and Border Protection. Id at ¶¶ 1-3. Adams recommended to San Francisco's District Director, Charles DeMore, that plaintiff be terminated because of plaintiff's record of tardiness and failure to report for assignments. Further, Adams' understanding from experienced immigration inspectors who worked with plaintiff is that plaintiff was "easily distracted" and "did not pay attention to details." Id at ¶ 2. Adams asserts that plaintiff's race played no role in her decision to recommend his termination. Id at ¶ 3.
Although he does not believe Adams took his race into consideration, plaintiff asserted at his deposition that he believes his termination to be based on his race. Steik Depo 65:23-66:1; 67:2-4. According to plaintiff, the schedule was changed in May 2001 in a way that adversely affected himself and two other African American employees (including Williams). Id at 67:25-69:19. To plaintiff's knowledge, this change was made by a man named Michael Leary, who was in charge of the schedule. Id at 69:20-70:9. Plaintiff claims that Leary occasionally made jokes about race to plaintiff and that Leary was involved in the decision to terminate plaintiff, although Leary was not in a supervisory position to plaintiff. Id at 77:6-79:5. Plaintiff was not certain whether the scheduling changes made by Leary affected anyone other than plaintiff, Williams and the third African American man, though plaintiff testified that the schedule applied to the whole department. Id at 70:18-71:25. Plaintiff also believes that race was a factor in his termination because plaintiff allegedly did not know about the overtime shifts to which he was assigned. Id at 76:22-25.
Plaintiff filed the complaint in this lawsuit on December 26, 2002. Doc # 1. Defendants filed an answer on March 17, 2003. Doc # 5. Subsequently, on October 9, 2003, defendants filed a motion for summary judgment and supporting documentation. Docs ## 9, 10, 11. Plaintiff filed his opposition on October 23, 2003. Doc # 12. Defendant filed its reply on October 29, 2003. Doc # 13.
II
As a preliminary matter, defendant contends that Tom Ridge, Secretary of the Department of Homeland Security, should be automatically substituted as the named defendant in this action pursuant to FRCP 25(d)(1). The INS' administrative, service and enforcement functions have been transferred to the newly created Department of Homeland Security (DHS). See Homeland Security Act, 6 U.S.C. § 101 et seq. Defendant argues that the proper named defendant in a Title VII action brought by a federal employee is the federal agency head. 42 U.S.C. § 2000e-16(c). Because Secretary Ridge is the head of the DHS, defendant contends that Secretary Ridge is the proper named defendant in this case, and not Commissioner Garcia or Attorney General Ashcroft.FRCP 25(d)(1) provides that "[w]hen a public officer is a party to an action in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party." In the case at bar, the reorganization mandated by the Homeland Security Act transferred many INS functions to the DHS. Due to this change in bureaucratic structure, the current named defendants have effectively ceased to hold office as department heads with respect to those sections of the INS. Section 20006-16(c) provides that the defendant in a Title VII case filed by a federal employee "shall be the head of the department, agency, or unit." Because the current defendants no longer hold such position with respect to the INS, they are no longer proper defendants. Secretary Ridge is currently the official head of the DHS and its underlying divisions. As defendants' effective successor as head of the INS, Secretary Ridge is automatically substituted as the proper defendant under FRCP 25(d)(1).
III A
In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).
The nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence supporting its claim that a genuine issue of material fact exists. TW Elec Serv v. Pacific Elec Contractors Assn., 809 F.2d 626, 630 (9th Cir 1987). The evidence presented by the nonmoving party Ms to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 US at 255. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id at 249.
B
Title VII provides that, with respect to federal government employment, "[a]ll personnel actions affecting employees or applicants for employment * * * shall be made free from any discrimination based on race * * *." 42 U.S.C. § 2000e-16(a). Title VII prohibits all employers from "discharg[ing] any individual or otherwise * * * discriminat[ing] against any individual with respect to his compensation, terms, conditions or privileges of employment" based on the individual's race. 42 U.S.C. § 2000e-2. Based on such provisions, race-based disparate treatment by a federal employer is a violation of federal law. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir 2002).
Plaintiff must establish a claim for employment termination in violation of Title VII by presenting evidence that "`gives rise to an inference of unlawful discrimination.'" with respect to that termination. Vasquez v. County of Los Angeles, 307 F.3d 884, 2003 US App. LEXIS 22854, *8 (9th Cir). Such evidence may either be direct evidence of discriminatory intent or follow the burden-shifting framework developed inMcDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). Direct evidence is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Vasquez, 307 F.3d 884, 2003 US App. LEXIS 22854 at *9 (internal quotation and citation omitted). Plaintiff presents no direct evidence that the decision to terminate his INS employment was made with discriminatory intent. Thus, defendant is correct that the proper framework for evaluating plaintiff's claim of disparate treatment under Title VII comes from the burden-shifting scheme established by McDonnell Douglas.
Under McDonnell Douglas, plaintiff must first establish a prima facie case of racial discrimination. McDonnell Douglas, 411 US at 802; see Aragon, 292 F.3d at 658. To make such a prima facie showing with respect to his termination, plaintiff must show that: (1) plaintiff belongs to a protected class; (2) plaintiff was qualified for the employment position from which he was terminated; (3) plaintiff was subjected to adverse employment action (termination); and (4) similarly situated individuals who did not belong to plaintiff's protected class were treated more favorably. See Aragon, 292 F.3d at 658; see also St Mary's Honor Ctr v. Hicks, 509 U.S. 502, 506 (1993). Plaintiff need only produce "minimal" evidence to meet this showing for summary judgment purposes. See Aragon, 292 F.3d at 660 (describing plaintiff's burden with respect to the prima facie showing as "minimal"); Chuan v. Univ of Cal Davis, 225 F.3d 1115, 1124 (9th Cir 2000) (finding that employment discrimination plaintiffs need produce "very little evidence" in opposing defendant's motion for summary judgment).
Should plaintiff carry his burden with respect to the prima facie case of race discrimination, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for taking adverse employment action against plaintiff. McDonnell Douglas, 411 US at 802; Aragon, 292 F.3d at 658. Should defendant articulate such a reason, plaintiff must then demonstrate that this reason is a pretext for unlawful discrimination. Plaintiff may prove this by producing evidence that "either directly persuad[es] the court that a discriminatory reason more likely motivated the employer or indirectly * * * show[s] that the employer's proffered explanation is unworthy of credence."Chuang, 225 F.3d at 1124; see also Aragon, 292 F.3d at 658-59. Plaintiff's evidence in this regard must be both "specific and substantial" to defeat the legitimate, nondiscriminatory reason proffered by defendant. Aragon, 292 F.3d at 659 (emphasis in original). Although the burden of production shifts under the McDonnell Douglas framework, the ultimate burden of persuasion remains at all times with plaintiff. Id (citingTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Defendant raises two main arguments in support of its motion for summary judgment. First, defendant contends that plaintiff cannot demonstrate a prima facie case of discrimination because plaintiff cannot prove that he was qualified for the immigration inspector position and cannot identify any similarly situated immigration inspectors outside his protected class whom defendant treated more favorably than plaintiff. Def Mot Sum Judg 3:8-11. Second, defendant asserts that, even could plaintiff prove such a prima facie case, plaintiff cannot offer any admissible evidence that defendant's justification in terminating plaintiff (namely, plaintiff's tardiness and failure to appear for mandatory overtime assignments) was pretextual. Id at 3:11-15. The court addresses each ground in turn.
1
Defendant's first argument is that plaintiff cannot prove a prima facie case of race discrimination with respect to his termination. As explained above, McDonnell Douglas and its progeny require plaintiff to prove: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for his position as an immigration inspector; (3) plaintiff was subject to termination; and (4) similarly situated individuals outside plaintiff's protected class were treated more favorably. See, eg., Chuang, 225 F.3d at 1123. If plaintiff proves such a case, a presumption of discrimination arises.Burdine, 450 US at 254. Defendant concedes the first and third prongs of this test. Def Mot Sum Judg 6:21-22. Defendant, however, contends that plaintiff has not and cannot meet the second and fourth prongs of the McDonnell Douglas prima facie showing.The second prong of the prima facie test requires that plaintiff demonstrate that he was qualified to remain in his position as an immigration inspector. Defendant argues that plaintiff cannot show that he was meeting the legitimate expectations of his INS supervisors with respect to job performance. Specifically, defendant claims that plaintiff was aware that his job as an immigration inspector included mandatory overtime and rotating shifts, as well as the methods of keeping track of overtime assignments. Despite this awareness, defendant argues, plaintiff nevertheless failed to report for several overtime assignments and failed to report for work in a timely fashion on several occasions. Def Mot Sum Judg 6:22-7:2.
Plaintiff does not dispute that he failed to report for certain overtime assignments or that he sometimes reported for his assignments in an untimely fashion. Rather, plaintiff argues that he did not know about the assignment log book until after Tsang's March 6, 2001, memorandum. Pl Opp Mot Sum Judg 3:5-7; 4:3-5. Plaintiff also claims that the pages of the log book shown to him at his deposition (and attached as supporting exhibits to defendant's motion to dismiss) were not the actual pages that would have been posted. Id at 4:13-15. Specifically, plaintiff claims that the names of some of the employees recorded in the alleged log book pages are different from the names of the employees appearing on the posted list. Id at 4:19-5:5.
In addition, plaintiff claims that his June 13, 2001, absence was excused and that the evidence shows that plaintiff had been granted a shift change excusing his attendance. Id at 6:4-8. Plaintiff also presents a July 2, 2001, memorandum from Supervisory Immigration Inspector Campanale and a July 2, 2001, memorandum from Assistant Port Director Patricio Mascarenas. Both memoranda described plaintiff's job performance as satisfactory and recommended that plaintiff be promoted. See id, Exh 16.
To demonstrate that he was qualified for the job, plaintiff must produce evidence that he met the employer's legitimate expectations for job performance. See Quansah v. IBM Corp, 1996 US Dist LEXIS 9784, *18-19 (ND Cal). Plaintiff's argument that he did not know about the log book until March 6, 2001, does not provide the court with such evidence. Whether plaintiff knew about the log book or not, he knew about the posted lists and failed to report for two March 2001 assignments that appeared on those posted lists. Moreover, plaintiff failed to read assignment postings carefully and reported to work in an untimely fashion on several occasions in June 2001. Plaintiff's lack of knowledge of the log book until March 2001 is thus unavailing.
Plaintiff's assertions that the exhibits are not the correct copies of the assignment listings are similarly unavailing. Plaintiff presents virtually no evidence, other than his subjective conclusions, that the evidence defendants present regarding assignments is false. The court cannot conclude that unsubstantiated allegations present questions of material fact to prevent the court from entering summary judgment.
Plaintiff also presents no evidence that his June 13, 2001, absence was excused. Plaintiff attaches several exhibits that illustrate his hours and pay for the pay period covering the June 13, 2001, date. Pl Opp Mot Sum Judg, Exhs 7-9. Plaintiff's opposition memorandum, however, fails to explain how these exhibits relate to his contention that he had been excused. None of those exhibits provides the court with any evidence that plaintiff's absence was in fact excused.
Plaintiff, however, has attached two memoranda from his supervisory immigration inspector and the assistant port director. Because both memoranda were written by employees of defendant, the memoranda are likely admissible at trial as admissions of a party-opponent under FRE 801(d)(2)(D). Both memoranda assert that plaintiff's job performance was quite good and warranted his promotion to the GS-7 grade level. See Pl Opp Mot Sum Judg, Exh 16. This provides sufficient evidence that plaintiff was qualified for the job of immigration inspector, despite his occasional failure to report for overtime assignments and to arrive for work in a timely fashion. Were plaintiff's qualification for the job the only issue raised by the instant motion, the court might reserve judgment on the question of summary judgment and order plaintiff to produce affidavit testimony from Campanale and Mascarenas on the issue of plaintiff's qualifications as an immigration inspector. See FRCP 56(e) and (f).
Defendant has not in fact limited its motion for summary judgment to the issue of plaintiff's job qualifications. Defendant contends that plaintiff has failed to satisfy the fourth prong of the McDonnell Douglas prima facie showing, which requires plaintiff to show that similarly situated employees not in his protected class were treated more favorably. Defendant claims that plaintiff cannot point to a single employee who was under probationary employment, was under Adams' authority, had an attendance record similar to or worse than plaintiff and was treated more favorably. Def Mot Sum Judg 7:3-18.
Plaintiff presents only one argument that seems to dispute defendant's contention about the fourth prong of the prima facie showing. Plaintiff argues that the log books contain a notation reading "AWOL-removed" in relation to a white employee. This notation is slightly different from the notation made with respect to plaintiff, which reads "No Show." The different words used in making the notations, plaintiff alleges, provide proof that the INS treated its employees differently based on race. Pl Opp Mot Sum Judg 5:7-13; see also id, Exh 3.
To meet his burden under the fourth prong of the McDonnell Douglas test, plaintiff must show that similarly situated non-African American employees were treated more favorably than plaintiff. The standard for whether employees are similarly situated has been described by some appellate courts as "rigorous." Harvey v. Anheuser-Busch. Inc. 38 F.3d 968, 972 (8th Cir 1994). The Ninth Circuit has held that plaintiff must show that the comparable employees hold job positions similar to plaintiff's position and displayed conduct similar to plaintiff's conduct. Vascruez, 307 F.3d 884, 2003 US App. LEXIS 22854 at *11-*12. Other appellate courts have emphasized that the comparable employees must be similar in all respects. Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir 1992). Thus, the employees to whom plaintiff seeks to compare himself "must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. A court may also look to employment circumstances such as work history and company policies to determine whether the employees are similarly situated. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir 1997).
Plaintiff presents virtually no evidence indicating that he and the "AWOL" white employee are similarly situated. Plaintiff presents a work force profile containing a list of SFO inspections employees as of December 2001. See Pl Opp Mot Sum Judg, Exh 14. Plaintiff identifies an employee whose last name is "Urban" as the employee listed as "AWOL" on the log sheet. Pl Opp Mot Sum Judg 5:7-13; see also id, Exh 3. The work force profile indicates that employee Kim Urban is a white immigration inspector whose appointment is at a GS-9 grade level. See Pl Opp Mot Sum Judg, Exh 14. No other information is given about employee Urban, though it may be reasonably inferred from the log book's "AWOL" designation that Urban was absent from at least one work assignment. Plaintiff does not indicate whether Urban, like plaintiff, was a probationary employee or whether Urban had graduated to permanent employment. Plaintiff provides no information about Urban's supervisor, nor does plaintiff provide any information about Urban's attendance record, other than the one noted absence. Plaintiff does not even provide information showing whether defendant retained Urban as an employee or whether defendant terminated Urban's employment.
Moreover, the information plaintiff has provided about employee Urban indicates that plaintiff and Urban are likely dissimilar. Plaintiff's appointment was at a GS-5 level, while Urban's was at a GS-9 level (at least as of December 2001). In addition to functioning at different levels, Urban's GS-9 level indicates that he may have been a permanent employee who was no longer subject to a probationary period. The only definite similarities between plaintiff and Urban are that they both worked at SFO as immigration inspectors. This showing is not sufficient to show that plaintiff and Urban were similarly situated forMcDonnell Douglas purposes.
Even assuming plaintiff carried his burden with respect to identifying a similarly situated employee, plaintiff has not shown that this employee was treated more favorably than plaintiff. As noted above, plaintiff has not presented any evidence that employee Urban was retained after being designated "AWOL." Plaintiff also does not explain why a designation of "AWOL" would be more favorable than a "No Show" designation. The court simply has no evidence that defendant treated Urban better than plaintiff in any respect.
Because plaintiff has not shown that defendant treated similarly situated employees more favorably than plaintiff, the court finds that plaintiff has not carried his burden under the McDonnell Douglas prima facie showing requirement. Accordingly, the court finds that defendant is entitled to summary judgment on this ground and GRANTS defendant's motion for summary judgment.
2
Defendant's second argument is that even assuming that plaintiff has carried his burden with respect to a prima facie showing of racial discrimination, he cannot and has not produced evidence showing that defendant's proffered reason for firing him is a pretext. Def Mot Sum Judg 7:19-8:14. After plaintiff makes a prima facie showing, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for plaintiff's dismissal. Aragon, 292 F.3d at 660; McDonnell Douglas, 411 US at 802. Defendant's explanation need not persuade the court that defendant's decision was actually motivated by the proffered reasons; rather, defendant must present admissible evidence that sets forth the reasons for plaintiff's termination, so that an issue of material fact is created.Burdine, 450 US at 255. Defendant's "burden is satisfied if [it] simply explains what [it] has done or [produces] evidence of legitimate nondiscriminatory reasons." Id at 256 (internal quotation and citation omitted). If defendant carries its burden of production, the presumption of discrimination created by the prima facie case disappears. St Mary's Honor Center, 509 US at 508; Burdine, 450 US at 255.
After defendant has met this burden of production, plaintiff must demonstrate that defendant's proffered reason is a pretext. Plaintiff may either offer direct evidence that shows that a discriminatory reason more likely motivated defendant or indirect evidence that defendant's explanation is unworthy of credence. Aragon, 292 F.3d at 658;Chuang, 225 F.3d at 1124. As explained previously, this evidence must be both specific and substantial to overcome defendant's showing.Aragon, 292 F.3d at 659. Plaintiff's subjective belief that defendant's decision to terminate was racially motivated is not sufficient to withstand summary judgment. Rodriquez v. International Business Machines, 960 F. Supp. 227, 231 (ND Cal 1997).
Defendant argues that it has met its burden of production because it has offered a legitimate, nondiscriminatory reason for plaintiff's termination: plaintiff's attendance record persuaded Adams that plaintiff was unreliable. Def Mot Sum Judg 7:21-23; Adams Decl ¶ 2. Failure to maintain a satisfactory attendance record is a legitimate and nondiscriminatory reason for terminating employment. SeeAraumburu, 112 F.3d at 1403. Defendant has therefore met its burden of production, and plaintiff is required to present specific and substantial evidence that this explanation is a pretext for racial discrimination.
Plaintiff has not met the required showing to create a material dispute whether defendant's explanation is pretextual. Plaintiff argues in his opposition papers that he was unaware that he should check the log book for assignments until after the March 6, 2001, memo from Tsang. Pl Opp Mot Sum Judg 3:5-7; 4:3-5. Plaintiff claims that the pages of the log book shown to him at his deposition were not the actual pages posted at work. Id at 4:13-15. Additionally, plaintiff claims that his June 13, 2001, absence was excused and that the evidence shows that plaintiff had been granted a shift change that excused his attendance. Id at 6:4-8. The court discussed the significance of this evidence above and found it insufficient to create an issue of material fact with respect to plaintiff's prima facie showing. Plaintiff must now make a more substantial showing to overcome defendant's legitimate, nondiscriminatory explanation than was required for demonstrating a prima facie case. Thus, this evidence does not create an issue of material fact for trial with respect to attacking defendant's asserted reason for terminating plaintiff.
Plaintiff also cannot rely on the argument that the different notations used for himself and for employee Urban denote racism. As explained above, plaintiff presents no proof that using the "AWOL" notation is favorable, while using the "No Show" notation is less favorable. Nor does plaintiff present evidence that Urban received more favorable treatment than plaintiff.
Although he does not articulate such reasons in his opposition papers, plaintiff's deposition testimony expresses other grounds for his belief that the decision to fire him was racially motivated. None of these grounds, however, provides adequate support for an attack on defendant's explanation for the termination. Plaintiff testified that the schedule changes implemented in May 2001 affected himself and two other African American employees. Steik Depo 66:4-67:1. Plaintiff admits, however, that the scheduling change affected the entire department. Id at 71:4-22. Plaintiff presents no evidence that the scheduling changes did not affect other non-African American immigration inspectors. Nor does plaintiff present any evidence tying the allegedly discriminatory scheduling changes to his termination. Plaintiff's subjective belief that Leary, the individual in charge of scheduling, had input into the decision to terminate is insufficient.
Plaintiff also explained at the deposition that he believed Leary to be racially motivated. Plaintiff alleged at his deposition that Leary "told [plaintiff] different things just joking about race." Steik Depo 77:8-9. Plaintiff's allegations regarding Leary's alleged animus are thus relatively vague and not likely to satisfy the requirement of specific and substantial evidence. Moreover, even if plaintiff could show Leary's purported animus with more specificity, it is unlikely that such evidence would create an issue of material fact. As noted above, plaintiff has no proof that links, Leary's scheduling decisions with Adams' recommendation that plaintiff be terminated.
The court also notes that plaintiff does not contest that Adams, who personally recommended that plaintiff be fired, was not motivated by race. Defendant presents Adams' sworn affidavit testimony that she was responsible for making the recommendation that plaintiff be terminated. Adams Decl ¶ 2. Adams, who herself is African American, avers that she did not consider plaintiff's race in making that decision. Id at ¶¶ 2, 3. Rather, Adams based her recommendation on plaintiff's poor attendance record and reports from immigration inspectors that plaintiff was easily distracted and did not pay attention to details. Id. Plaintiff admits that he believes Adams did not base her decision on race. Steik Depo 65:23-66:1. Plaintiff's only contention is that someone other than Adams or District Director DeMore (who signed the termination letter) created the termination letter, and that neither Adams nor DeMore made the termination decision. Id at 66:4-67:10. Plaintiff presents no proof that contradicts Adams' sworn statement that she made the recommendation to terminate and no proof that DeMore did not create the termination letter in response to Adam's recommendation. Again, plaintiff's subjective belief that someone else made the termination decision is simply not enough to survive summary judgment.
Plaintiff has not proffered any substantial and specific evidence, direct or indirect in nature, that creates an issue of material fact as to the truth of defendant's legitimate explanation of its termination decision. The court, therefore, finds summary judgment in favor of defendant appropriate on this ground as well. Accordingly, defendant's motion for summary judgment is GRANTED.
IV
In sum, the court ORDERS that Secretary Ridge be substituted as the named defendant in this action pursuant to FRCP 25(d)(1). The court also GRANTS defendant's motion for summary judgment (Doc #9) on the grounds that plaintiff has failed to present evidence that might establish a prima facie case of racial discrimination and that plaintiff has failed to present specific and substantial evidence that defendant's legitimate, nondiscriminatory reason for termination is pretextual. Plaintiff's claim of unlawful termination under Title VII is DISMISSED. The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.