Opinion
No. CIV S 04-1622 GEB CMK.
January 9, 2006
FINDINGS RECOMMENDATIONS
Plaintiff, who is proceeding pro se and in forma pauperis, brings this action seeking review of the Equal Employment Opportunity Commission's (EEOC) decision granting summary judgment on plaintiff's allegations of discrimination and retaliation against the Department of Veteran's Affairs (VA). This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302(b)(21).
Currently before the court is defendant's motion for summary judgment. (Doc. 21.) Plaintiff has filed no reply or opposition to defendant's motion. This matter came on for hearing before the undersigned on December 13, 2005. Joseph E. Maloney, Assistant United States Attorney, appeared telephonically for defendant. Plaintiff, Anthony Alonzo failed to appear. For the reasons set forth below, the undersigned recommended granting defendant's motion for summary judgment at the December 13, 2005 hearing.
On December 12, 2005 at approximately 3:30 p.m. the day before the hearing on the motion for summary judgment, plaintiff contacted the United States District Court in Redding to state the he could not make it to the hearing and that he would be filing a motion for a continuance by faxing it to the United States District Court in Redding. Plaintiff also filed the motion in Sacramento on December 12, 2005. Plaintiff, however, did not properly serve his motion to continue on opposing counsel. Plaintiff must include with every document filed in this action a certificate stating the date an accurate copy of the document was mailed to defendant's attorney and the address to which it was mailed. See Local Rule 5-135(b) and (c). In a separate order, the court has stricken plaintiff's motion from the record for failure to serve the opposing party.
I. Background
Plaintiff is a Hispanic male who was employed within the VA's Northern California Health Care System (NCHCS) as a social worker. Plaintiff filed four complaints of discrimination with the EEOC, which allege retaliation and employment discrimination. Plaintiff bases his complaints on dissatisfaction with his co-workers, supervisors and working conditions at the Sacramento Mental Health Clinic, the David Grant Medical Center and CREC. Plaintiff elected to have his claims heard before an administrative law judge (ALJ) of the EEOC. The VA filed a Motion for Decision without a Hearing pursuant to 29 C.F.R. 1614.109(g). Plaintiff filed a response, and the ALJ granted the VA's motion. The Office of Employment Discrimination at the VA accepted the ALJ's findings and issued the VA's final order. Plaintiff appealed to the EEOC, which affirmed the VA's final order. The EEOC denied plaintiff's motion for reconsideration, and plaintiff filed the instant action.
It is not clear from the filings for what CREC is an acronym. All filings and exhibits simply refer to CREC, which is a facility within the VA's Northern California Health Care System.
Plaintiff's four complaints contain individual claims. Each claim is based on a different set of material facts. For the sake of clarity, the undersigned discusses each claim with a particularized set of undisputed facts relevant to that claim instead of setting forth a separate list of undisputed facts.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party
. . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).
B. Plaintiff's Complaint
Plaintiff seeks administrative review of an ALJ's decision grant of summary judgment in favor of the VA on plaintiff's four complaints of employment discrimination and retaliation. Defendant moves for summary judgment of plaintiff's complaint on the grounds that plaintiff cannot establish a prima facie case for any of his discrimination or retaliation claims.
1. Complaint 96-2097
In his first EEOC complaint, plaintiff raised one claim — that he was discriminated against when he was not hired for the collateral duty position of clinic manager at the VA's Sacramento Mental Health Clinic. The undisputed facts reveal that plaintiff was employed by the VA as a social worker and assigned split duty stations at the David Grant Medical Center at Travis Airforce Base and the Sacramento Mental Health Clinic. (Def.'s Mot. Summ. J., Ex. B.) Around January 1996, the NCHCS decided that each clinic should have a clinic manager. (See id.) The NCHCS drafted a set of criteria for the clinic manager position. (See id.) The criteria included, among other things, that the manager "should be a full time employee at one of the facilities at which he or she was applying for," and that "the manager must be a professional provider in nursing or social work, psychology or psychiatry". (See id. at 2097-5.) Plaintiff was not a full-time employee at the Sacramento Mental Health Clinic, as required by the selection criteria. (See id. at 2097-98.) Additionally, plaintiff was not certified by the State of California as a Clinical Social Worker, which was also part of the selection criteria. (See id. at 2097-100:16.)
Between January and June of 1996, several e-mails were sent by a supervisor concerning the manager position. (See id. 2097-5.) Plaintiff received the e-mail, and responded to the e-mail, stating his interest in the position. (See id.) In late March or early April, a draft announcement was sent to all employees listed on a distribution list. (See id. at 2097-0128.) (See id. at 2097-0023.) Plaintiff was not on the distribution list. (See id.) Plaintiff was on sick leave from April 17, 1996, to May 7, 1996, for knee surgery. (See id. at 2097-0001.) After April 25, 1996, the applicants were reviewed and a selection was made. (See id. at 2097-0115.) Plaintiff did not apply for the clinic manager position. (See id.)
Between May 10, 1996, and May 17, 1996, plaintiff returned from sick leave and contacted his supervisor to inquire why he had not been sent the draft announcement of the manager position. (See id. at 2097-0003.) The supervisor was unaware that plaintiff had not been notified. (Def's Mot. Summ. J., Ex. B., Ernstrom Affidavit at 2097-0102.) The supervisor explained to plaintiff that he probably had not been notified because he was not a full time employee at the Sacramento Clinic, which the selection criteria required, and had therefore been overlooked. (See id.) On June 7, 1996, it was announced that Douglas Wood, Phd, who is not hispanic, had been selected as the mental health clinic manager for the Sacramento Mental Health Clinic. (Def's Mot. Summ. J., Ex. B, Counselor's Report at 2097-0021.) On August 13, 1996, plaintiff filed a complaint of discrimination. (Def's Mot. Summ. J., Ex. B. VA complaint at 2097-0035.) After conducting several interviews, the EEO investigator concluded, in his investigative summary and analysis, that plaintiff's allegations were unsupported by the evidence. (Def's Mot. Summ. J., Ex. B at 2097-0008.)
To establish a prima facie complaint in a case of non-selection for a position, a plaintiff must either introduce direct evidence that an employer expressly discriminated against a job applicant or present indirect evidence of discrimination. See Mondero v. Salt River Project, 400 F.3d 1207, 1211 (9th Cir. 2005.) To establish a case based on indirect evidence, a plaintiff must show that (1) he was a member of a protected class; (2) he applied and was qualified for a position which he sought; (3) despite being qualified for the position, he was rejected, and; (4) after he was rejected, the employee continued to seek applications from people with comparable qualifications. See id.
Plaintiff presents no evidence of direct discrimination. He cannot establish a case based on indirect evidence as plaintiff cannot show that he was qualified for the collateral duty position — plaintiff was neither a full time employee of the clinic, nor was he a licensed social worker. See id. Accordingly, the undersigned finds that plaintiff has failed to present a prima facie case of discrimination and recommends that defendant's motion for summary judgment be granted.
2. Complaint 97-0231
In his second EEOC complaint, plaintiff raises eight claims: change of performance rating, inquiries involving his duty hours, that he was discouraged from pursuing claims, tardiness, a negative interoffice memorandum, position reassignment, physical office space reassignment and emotional distress.
Change of Performance Rating
Plaintiff alleges that he was discriminated against when his performance rating was changed from the proposed rating of "outstanding" to "highly successful". (Def's Mot. Summ. J., Ex. C. at 0231-0003.) The undisputed facts reveal that plaintiff received his performance appraisal for the period of April 1, 1995, to March 31, 1996, on May 22, 1996. (See id. at 0231-305.) Priscilla Tudor, who was a white female, evaluated plaintiff. (See id. at 0231-0262.) Ms. Tudor proposed a performance rating of "outstanding" for plaintiff. (See id.) When he received his performance rating, plaintiff noticed that he had received a rating of "highly successful," although Ms. Tudor had proposed a rating of "outstanding." (See id. at 0321-0003.) Wayne Ernstrom, the Chief of Social Work Service, downgraded plaintiff's rating. (See id. at 0231-0219.) Mr. Ernstrom downgraded plaintiff's rating so that the rating would "reflect the performance of other social workers who performed at the same level". (See id. at 0231-0309.)
Mr. Ernstrom had the authority, as the approval manager, to change employee ratings. (See id. at 0231-0384.) Plaintiff was not the only employee who received a rating different than the rating which was originally proposed. (See id. at 0231-0219.) For example, the rating of Ruth Atkins was changed from "outstanding" to "highly successful" so that it "could become consistent with ratings of other social workers with the same performance". (See id. at 0231-0316.) The ratings of Joan Zabih and Michaela Wilcznski were also changed to "highly successful" from "outstanding" for the same reason. (See id. at 0231-0329.) Ms. Atkins and Ms. Zabih were supervised by Ms. Tudor, and Ms. Wilcznski was supervised by Katrina Steer. (See id. at 0231-0329.) All three of their ratings were changed by Mr. Ernstrom. (See id.)
After discovering that his rating had been changed, plaintiff contacted Ms. Tudor. (See id. at 0231-0010.) Ms. Tudor informed plaintiff that Mr. Ernstrom had the authority to change ratings. (See id.) On December 2, 1996, an EEOC investigator concluded that the evidence did not support plaintiff's allegations that his rating was changed due to discrimination. (See id. at 0231-0015.)
To establish a prima facie case of discrimination on his claim that his rating was changed based on a discriminatory intent, plaintiff must show that (1) he is a member of a protected class; (2) he was subject to an adverse personnel action; and (3) a similarly situated person who was not a member of the protected class was treated differently. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988.) Plaintiff bears the responsibility of showing that similarly situated co-workers were treated differently. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). In order to be similarly situated, the comparative employees must have been dealt with by the same supervisor, been subjected to the same standards and have engaged in similar conduct. See Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003.) If plaintiff fails to identify similarly situated, non-minority employees who were treated disparately, then his case must fail because the burden is on plaintiff to establish a prima facie case. See McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973).
Here, the undisputed evidence reveals that plaintiff was treated in accord with similarly situated, non-minority employees. Specifically, it is undisputed that other social workers had their ratings adjusted from "outstanding" to "highly successful". (Def.'s Mot. Summ. J., Ex. B.) Additionally, plaintiff has failed to introduce any evidence which would show that the lowering of his rating resulted in any sort of adverse personnel action. See e.g., Brooks v. City of San Mateo, 229 F.3d 917, 929-30 (9th Cir. 2000) (stating that in order to show adverse personnel action, an employee must show a final or lasting action). The undersigned finds that plaintiff has failed to establish any genuine issue of material fact showing that his rating was changed due to his race. Accordingly, the undersigned recommends granting summary judgment on this claim.
Duty Hours Inquiry
In his second claim in his second complaint, plaintiff alleges that Rene Marini, who is a white female and the coordinator of the substance abuse and diagnosis program, caused him emotional distress by requesting his schedule and duty hours during staff meetings on May 29th, June 5th, 19th and 23 of 1996. (Def.'s Mot. Summ. J., Ex. C at 0231-0005.) Plaintiff appears to argue that Ms. Marini's inquiry rose to the level of discrimination and harassment. (See id.)
The undisputed facts reveal that Ms. Marini worked at the Sacramento Mental Health Clinic, but she was not plaintiff's direct supervisor. (See id. at 0231-0252.) Ms. Marini was in charge of scheduling patients for plaintiff. (See id.) Ms. Marini inquired about plaintiff's duty hours because she was confused about his schedule. (See id. At 0231-0011, 0231-0255.) Ms. Marini was confused about plaintiff's hours because, for several months, plaintiff had arrived at work after her and left work before her. (See id. at 0321-0255:3.) Plaintiff admitted to the EEOC counselor investigating his claim that he usually arrived at work late and left early. (See id. at 0231-0024.) Plaintiff stated that he did this with the consent of the social work service chief. (See id.)
In order to establish a claim of disparate treatment or retaliation, a plaintiff must show, among other things, that he suffered an adverse personnel action. See McDonnell Douglas, 411 U.S. at 802, Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994.) The Ninth Circuit has defined an adverse personnel action for purposes of a retaliation claim as "any adverse treatment that is based on retaliatory motive and reasonably likely to deter the charging party or others from engaging in the protected activity". Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). The court determined that "lateral transfers, unfavorable job references, and changes in work schedules" could reasonably deter employees from engaging in protected activities.Id. at 1243. An employee must suffer a final or lasting adverse action in order to establish a prima facie case of employment discrimination under Title VII. See Brooks, 229 F.3d at 929-30. Another district court has found that an inquiry about an employee's schedule is not an adverse personnel action. See Mendoza v. Sysco Food Servs., 337 F.Supp. 2d 1172, 1192 (D.C. Ariz. 2004) (finding no adverse action and granting summary judgment where plaintiff's supervisor questioned plaintiff regarding a vacation return date).
Here, plaintiff cannot show that he suffered any adverse employment action stemming from Ms. Marini's inquiry. Subjectively, plaintiff was not deterred from engaging in protected activity because he continued to file claims after Ms. Marini's inquiry. Objectively, no reasonable employee would be deterred from engaging in protected activity because a co-worker inquired about his duty hours. Additionally, plaintiff cannot show that Ms. Marini's inquiry resulted in a decrease to his pay, a transfer or a change to his work schedule. See Ray, 217 F.3d at 1242-43. In short, plaintiff can show no adverse action because he can show no lasting or final effect on his employment.See Brooks, 229 F.3d at 930. Accordingly, the undersigned finds that plaintiff has not established a prima facie case of discrimination or retaliation and recommends granting summary judgment on this claim.
Discouraged from Pursuing Claims
Plaintiff's third claim in his second complaint is that Greg Harms, EEOC Counselor, and Rebecca Drummond, EEOC Program Manager, discouraged him from pursuing discrimination claims. (Def.'s Mot. Summ. J., Ex. C at 0231-0008.)
The undisputed facts reveal that plaintiff met with Mr. Harms on July 5, 1996, regarding plaintiff's discrimination claim based on failure to promote. (See id. at 0231-0297.) In addition to the failure to promote claim, plaintiff complained that he had been treated poorly and that he did not get along with his co-workers at the Sacramento Mental Health Clinic. (See id. at 0231-0298.) Mr. Harms asked plaintiff for specific times and dates concerning these complaints, but plaintiff responded only with vague and conclusory statements. (See id.) Because plaintiff could not cite specific facts or events to support his other claims, Mr. Harms considered only his failure to promote claim. (See id.) Mr. Harms never told plaintiff that he would refuse to accept plaintiff's claims, only that he required more information to conduct an investigation. (See id. at 0231-0301-02.)
This claim is plaintiff's first complaint and is referred to in this opinion as plaintiff's collateral duty claim.
When Ms. Drummond received plaintiff's formal complaint, she noticed that plaintiff had included approximately eight additional issues in his formal complaint that were not included in the fact finding conducted by Mr. Harms. (See id. at 0231-0278.) Ms. Drummond sent plaintiff a letter requesting more information about plaintiff's claims. (See id.) Plaintiff's response was cursory and non-responsive. (See id.) On September 10, 1996, Ms. Drummond sent plaintiff a letter explaining her acceptance of plaintiff's failure to promote claim. (See id. at 0231-0281.) On October 1, 1996, Ms. Drummond sent plaintiff an e-mail telling him that he could include additional claims with the failure to promote claim. (See id. at 0231-0284.) Plaintiff responded that he did not want to combine his complaints and that he would be opening a new claim. (See id. at 0231-0285.)
An adverse employment action is a necessary element of a prima facie discrimination or retaliation claim. See McDonnell Douglass, 411 U.S. at 802. Plaintiff cannot show that the actions of Mr. Harms or Ms. Drummond had a lasting or final effect on his employment — the action did not change plaintiff's pay or working hours and it did not deter him from filing future discrimination complaints. See id. Additionally, the Ninth Circuit has stated that the conduct of an EEOC Counselor or claims manager does not constitute an adverse employment action. See Ward v. EEOC, 719 F2d 311, 312-13 (9th Cir. 1983). Title VII does not provide plaintiff with either an express or an implied cause of action against the EEOC to challenge its investigation or processing of a complaint. See id. at 313. Accordingly, the undersigned recommends that summary judgment be granted on this claim.
Denial of Sufficient Time to Notify Representative
In his fourth claim in his second complaint, plaintiff alleges that he was subjected to harassment and reprisal as a result of being denied sufficient time to notify his representative of a scheduled meeting with the clinic manager, Dr. Wood, and the substance abuse coordinator, Ms. Marini. (Def.'s Mot. Summ. J., Ex. C at 0231-0005.) Dr. Wood requested a meeting to try to resolve conflict between plaintiff and Ms. Marini. (See id. at 0231-0011.) During the week of July 22, 1996, a meeting was scheduled for August 1, 1996. (See id. at 0231-0107.) Plaintiff believed that the time of the meeting was unconfirmed until he received an e-mail regarding the meeting from Dr. Wood on July 31, 1996. (See id. at 0231-0106, 0131, and 0132.) Plaintiff sent an e-mail stating that he and his union representative would not attend the meeting because he had been unable to schedule the representative for an unconfirmed meeting. (See id. at 0231-0005.)
Dr. Wood did meet with plaintiff at 7:30 am on August 1, 1996. (See id. at 0231-0106.) This is apparently the meeting that plaintiff refers to in his complaint. When Dr. Wood spoke with plaintiff he expressed concern about a medical excuse from plaintiff's therapist stating that plaintiff could not work at the clinic. (See id.) Dr. Wood also asked plaintiff why he was at the clinic if it was too stressful for him. (See id.)
Based on the undisputed facts, plaintiff has failed to establish a prima facie case of disparate treatment or retaliation because plaintiff has failed to establish that he was subject to an adverse employment action as a result of his conversation with Dr. Wood. See McDonnell Douglas, 411 U.S. at 802. Adverse personnel actions are actions that materially affect compensation, terms, conditions or privileges of employment.See Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002). Adverse personnel actions should not be deemed so broad as to impose an intangible state of mind, i.e., "worry that employers will be paralyzed into inaction once an employee has lodged a complaint under Title VII". See Brooks, 229 F.3d at 928. Because plaintiff cannot show that his conversation with Dr. Wood materially affected compensation, terms, conditions or privileges of employment, he cannot establish that he was subject to an adverse employment action. Accordingly, the undersigned finds that plaintiff has failed to establish a prima facie case of either discrimination or retaliation and recommends that summary judgment be granted on this claim.
Tardiness and Early Departure Memorandum
In his fifth claim in his second complaint, Plaintiff claims that Ms. Marini, the substance abuse coordinator, inflicted racial discrimination, reprisal, intentional infliction of emotional damage and harassment upon plaintiff by sending a memorandum to Dr. Wood about plaintiff's work performance, which expressed concern about plaintiff getting to work and leaving work on time. (Def.'s Mot. Summ. J., Ex. C. at 0231-0008.)
The undisputed evidence reveals that, on July 18, 1996, Ms. Marini sent a memorandum to Dr. Wood about plaintiff's working hours that summarized a discussion that she had with plaintiff concerning, among other things, getting to work on time and leaving on time. (See id. at 0231-0332.) Ms. Marini was not Plaintiff's supervisor. (See id. at 0231-0236.) Dr. Wood never mentioned the memorandum to plaintiff. (See id. at 0231-0242.)
Plaintiff cannot show that the memorandum resulted in an adverse employment action since no action ever occurred as a result of the memo. See Little, 301 F.3d at 970. Dr. Wood never mentioned the memorandum to plaintiff. The memorandum itself cannot be considered an adverse personnel action. See Keyser v. Sacramento City Unified School Dist., 265 F.3d 741, 752, n. 4 (9th Cir. 2001) (stating that action that never came to fruition is not even a potentially viable adverse action.). Accordingly, plaintiff cannot establish a prima facie case of discrimination or retaliation on this claim. The undersigned recommends granting summary judgment.
Reassignment
In his sixth claim in his second complaint, plaintiff alleges that he was harassed when management assigned plaintiff to Sacramento Mental Health Clinic on a full time basis. Def.'s Mot. Summ. J., Ex. C at 0231-0026.) (Plaintiff had been working half time at Sacramento Mental Health and half time at David Grant Hospital. (See id.) In June 1996, plaintiff inquired about returning to the facility where he worked prior to working his split shift between David Grant and Sacramento. (See id. at 2031-0120.) Plaintiff was told that the only substance abuse social work positions available were in Sacramento and in Redding. (See id. at 2031-0121.) Plaintiff sent a letter in July 1996 requesting that he not be assigned to work in Sacramento due to mental and emotional stress. (See id. at 2031-0125.) In August 1996, plaintiff sent a letter expressing an interest in full time assignment at David Grant. (See id. at 2031-0138.)
In late August, plaintiff was informed that he was going to be moved to the Sacramento Clinic full time. (See id. at 2031-0139.) Plaintiff's pay remained unaffected by the proposed move. (See id. at 2031-0232.) Because the Sacramento pay was lower than the pay in the Bay Area, plaintiff was moved up a step. (See id.) As a result of an accounting/clerical error in Human Resources, plaintiff did not initially receive the correct pay, but that was later corrected and plaintiff was paid retroactively. (See id.) Plaintiff never actually worked full time at Sacramento Health Clinic. (See id. at 2031-0158.) He instead took a position in San Francisco (See id. at 2031-0116).
Plaintiff cannot establish a prima facie case of employment discrimination or retaliation. A proposed action that does not come to fruition is not an adverse personnel action. See Keyser, 265 F.3d at 752 n. 4. An employee must suffer a lasting effect in order to create a prima facie case of discrimination under Title VII. See Brooks, 229 F.3d at 929-30. Here, plaintiff cannot show that the proposed move changed any material aspect of his employment — his pay and working hours remained the same. See Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998) (stating that lateral transfer without addition of different job responsibilities was not and adverse action). Additionally, plaintiff cannot show that the proposed move to the Sacramento Clinic was an adverse action because it never came to fruition. See Keyser, 265 F.3d at 752 n. 4. Accordingly, the undersigned recommends that summary judgment be granted on this claim.
Office Assignment
In his seventh claim in his second complaint, plaintiff claims that he was not given permanent office space at Sacramento Mental Health because he was Hispanic. (Def.'s Mot. Summ. J., Ex. C at 0231-0026.) He claims that this was employment discrimination and retaliation. (See id.)
The undisputed facts reveal that plaintiff did not have his own office at Sacramento Mental Health Clinic. (See id. at 2031-0167.) Plaintiff was told that an office would be available for him when he started working at the Clinic on a full time basis. (See id. at 2031-0140.) Other employees, who, like plaintiff, were part-time employees at the Clinic, did not have their own office space. (See id. at Ex D at 0420-0157.)
Plaintiff cannot establish a prima facie case of employment discrimination or retaliation on this claim. To show disparate treatment, plaintiff must establish that similarly situated employees were treated differently. See McDonnell Douglas, 411 U.S. at 802. Here, plaintiff cannot show that similarly situated employees were treated differently. Instead, the evidence shows that plaintiff was treated the same as other part-time employees. (Def.'s Mot. Summ. J., Ex. D at 0420-0157.) To establish a retaliation claim, plaintiff must show that his lack of office space was the result of an adverse employment action. See Brooks, 229 F.3d at 929-30. Plaintiff's office situation did not change when he filed his EEOC complaint. Instead, after filing the complaint, plaintiff was given some limited storage space. (Def.'s Mot. Summ. J., Ex. C at 2031-0167.) Because plaintiff cannot establish a claim of either discrimination or retaliation, the undersigned recommends granting summary judgement on this claim. Emotional Distress
In his final claim in his second complaint, plaintiff asserts that the conduct of his peers and supervisors caused him to suffer emotional distress. Plaintiff cannot assert the common law tort of intentional infliction of emotional distress (IIED). The claims and remedies available under Title VII are the sole and exclusive remedies available to federal employees. See Brown v. GSA, 425 U.S. 820 (1976). Accordingly, summary judgment is appropriate on any separate intentional infliction of emotional distress claims that plaintiff seeks to bring.
3. Complaint 97-0420
In his third EEOC compliant, plaintiff raises six claims: change of duty hours, use of Triage room, an October 30, 1996 meeting, a leave request for work related stress, failure to include him in a tour; and not being informed about a co-worker's leave of absence.
Change of Duty Hours
In his first claim in his third complaint, plaintiff states that he was discriminated against when his duty hours were changed from 7:00 a.m. to 5:30 p.m. to 7:30 a.m. to 6:00 p.m. (Def.'s Mot. Summ. J., Ex. D at 0420-0003.) Plaintiff believes that his hours were changed because he was Hispanic. (See id. at 0420-0011.) The undisputed facts show that plaintiff's schedule was changed because the supervisor could not justify him coming in at seven and not seeing a patient for an hour. (See id. at 0420-0114, 0104.) Plaintiff's hours were changed to better facilitate patient care. (See id.) This change in hours was to take place when plaintiff began working at Sacramento Mental Health Clinic full time. (See id. at 0420-0072.) Because plaintiff never worked at the Sacramento facility full time, these changes were never implemented. (See id. at 0420-0158.)
Plaintiff cannot establish a prima facie case of employment discrimination or retaliation. A proposed action that does not come to fruition is not an adverse personnel action. See Keyser, 265 F.3d at 752 n. 4. Here, plaintiff's proposed change of duty hours never occurred. Accordingly, the undersigned recommends summary judgment on this claim. Use of the Triage Room
Plaintiff's second claim of his third complaint alleges that he was moved out of the Triage room at Sacramento Mental Health Clinic because he was Hispanic. (Def.'s Mot. Summ. J., Ex. D at 0420-0011.) The evidence shows that plaintiff was asked to leave the Triage room because a co-worker had an appointment with a dangerous patient who he had never met. (See id. at 0420-0147.) The patient had a history of violence and homicidal behavior. The Triage room was equipped to handle such a patient. (See id.) The undisputed facts also show that other part-time workers were often required to change offices. (See id. at 0420-0118, 0157.)
Plaintiff cannot establish a prima facie case of discrimination based on his being moved from the Triage room. The undisputed evidence shows that plaintiff was treated no differently from similarly situated non-minority workers. No part-time worker at the Sacramento Mental Health Clinic had a fixed office space.See McDonnell Douglas, 411 U.S. at 802. Additionally, plaintiff cannot show any adverse employment action as he cannot show that any material terms or conditions of his employment were altered by being asked to move from the Triage room. See Little, 301 F.3d at 970. Accordingly, the undersigned recommends that summary judgment be granted on this claim.
October 30, 1996 Meeting Regarding the Triage Room
In his third claim of his third complaint, plaintiff alleges that he was harassed because of a meeting that occurred on October 30, 1996 between plaintiff and Dr. Wood, a supervisor, about the Triage room. (Def.'s Mot. Summ. J., Ex. D at 0420-0003.) Dr. Wood informed plaintiff that Dr. Wood was upset that plaintiff had sent an e-mail message to several employees about the Triage room incident. (See id. at 0420-0012.) Dr. Wood told plaintiff that plaintiff should have discussed sending the e-mail with him prior to sending it. (See id.) Dr. Wood told plaintiff that plaintiff had the right to go above Dr. Wood, but that it was preferable to go through him initially. (See id. at 0420-0115.)
In order to establish a prima facie case of discrimination or retaliation, a plaintiff must demonstrate that he suffered from an adverse employment action. See Little, 301 F.3d at 970. The Ninth Circuit has stated that only "non-trivial" employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation. See Brooks, 229 F.3d at 928. Actions which do not materially affect the compensation, terms or conditions of employment are trivial. See Little, 301 F.3d at 970. Here, plaintiff has provided no evidence that Dr. Wood's inquiry resulted in any type of adverse affect as to material conditions or terms of his employment. Dr. Wood did not suggest that plaintiff stop raising concerns, but instead suggested that it would be preferable that plaintiff discussed them with him initially, rather than pursuing them through a superior. (Def.'s Mot. Summ. J., Ex. D at 0420-0115.) Because plaintiff's conversation with Dr. Wood does not constitute an adverse employment action, the undersigned recommends granting summary judgment on this claim.
Leave Request for Work Related Stress
Plaintiff's fourth claim in his third complaint is that Dr. Wood would not sign his request for sick leave since plaintiff was requesting leave for work related stress. (Def.'s Mot. Summ. J., Ex. D at 0420-0003.) The undisputed facts show that Human Resources had instructed that leave requests for work related stress not be accepted if a "Report of Occupational Illness/Disease form" had not been filed. (See id.) Plaintiff choose not to file this form. (See id.) When plaintiff subsequently submitted a leave request that omitted the reference to work related stress, his leave was granted. (See id. at 0420-0700.)
In order to prevail on his claim, plaintiff must establish that he was treated differently than other similarly situated employees. See McDonnell Douglas, 411 U.S. at 802 As plaintiff cannot demonstrate that similarly situated employees were treated differently, nor can he demonstrate that the denial of leave for "work related stress" materially affected the terms and conditions of his employment. Accordingly, he cannot establish a prima facie case of discrimination. The undersigned finds that summary judgment is appropriate on this claim. Exclusion from Tour of Substance Abuse Facilities
Plaintiff's fifth claim in his third complaint is that he was not included in a substance abuse facility tour. (Def.'s Mot. Summ. J., Ex. D at 0420-0012.) The tour was conducted by Ms. Marini. (See id.) Plaintiff does not know the exact date of the tour; whether he was working in Sacramento at the time; or whether he would have been available to attend had he been notified. (See id.) Ms. Marini stated that she never considered asking plaintiff to go because he had already been to all the facilities. (See id.)
In order to establish a prima facie case of discrimination or retaliation, plaintiff must demonstrate an adverse employment action. See Little, 301 F.3d at 970. The Ninth Circuit has stated that "mere ostracism by co-workers does not constitute an adverse action." Ray, 217 F.3d at 1241. Plaintiff does not show that the failure to include him in the tour affected material conditions of his job in any way. Instead, the undisputed evidence shows that plaintiff had already visited all the substance abuse facilities. Accordingly, the undersigned recommends that summary judgment be granted on this claim.
Failure to Inform Plaintiff of Ms. Marini's Leave of Absence
Plaintiff's sixth claim in his third complaint is that he was discriminated against because his co-worker took leave without informing him. (Def.'s Mot. Summ. J., Ex. D at 0420-0011.) Plaintiff felt that his co-worker should have met with him to update him on her patients since he would have to see them while she was out. (See id.) However, when plaintiff took sick leave, he did not confer with anyone regarding his patients. (See id. at 0420-0158.) To dignify plaintiff's claim would also appear to place a burden on all those falling ill to stay well long enough to educate their co-workers.
As noted in the above claim, "mere ostracism by co-workers does not constitute an adverse action." Ray, 217 F.3d at 1241. Plaintiff must show that the co-worker's failure to include him materially affected the terms or conditions of his employment.See Little, 301 F.3d at 970.) Here, plaintiff cannot show any genuine issue of fact as to whether Ms. Marini's actions adversely affected him. Accordingly, the undersigned recommends granting summary judgment on this claim.
4. Complaint 98-0973
In his fourth complaint, plaintiff raises five claims: reassignment due to confrontation, not being promoted, harassment from reprimand, hostile work environment and emotional distress.
Reassignment Due to Confrontation
In the first claim of his fourth complaint, plaintiff states that his reassignment from "CREC" to David Grant hospital was the result of discrimination or retaliation. (Def.'s Mot. Summ. J., Ex. E.) The undisputed facts show that, although plaintiff did make some disparaging statements about a co-worker at a meeting, he had been requesting a transfer to David Grant for almost a year.
It is not clear from the court filings for what this acronym stands. An internet search revels that it stands for the Center for Rehabilitation and Extended Care. See www.visn21.med.va.gov/CARES/VISN21FactSheet.htm.
In order to establish a prima facie case of discrimination or retaliation, plaintiff must demonstrate an adverse employment action. See Little, 301 F.3d at 970. A lateral transfer that does not result in a reduction in pay or different job duties is not an adverse personnel action. See See e.g. Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998). As plaintiff cannot show any adverse personnel action, he cannot establish prima facie evidence of discrimination. The undersigned recommends granting summary judgment on this claim.
Failure to be Promoted
In his second claim of his fourth complaint, plaintiff alleges that the VA changed a classification of a coordinator position to a regular social worker position, eliminating a promotional opportunity for plaintiff. (Def.'s Mot. Summ. J., Ex. E at 0973-0005.) Plaintiff believes that the decision was made to deprive him of promotional opportunities. (See id. at 0973-0072.) There were no vacancies in the NCHCS. (See id. at 0973-0109.)
In order to establish a prima facie case of discrimination or retaliation, plaintiff must demonstrate an adverse employment action. See Little, 301 F.3d at 970. Obstructing an employee from consideration for a vacancy is actionable under Title VII.See Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991). The closing of a job to plaintiff and the loss of opportunity to even compete for the position can establish an adverse employment action. See id. Here, however, plaintiff makes no showing that he was prevented from applying for any position. He makes no showing that he even applied for any positions. He provides no evidence that any vacancies were available. Accordingly, plaintiff fails to establish a prima facie case of discrimination. The undersigned recommends granting summary judgment on this claim.
Harassment from Reprimand
In his third claim of his fourth complaint, plaintiff alleges that he received a letter of reprimand which questioned his abilities. (Def.'s Mot. Summ. J., Ex. E at 0973-0065.) The undisputed facts show that the alleged letter was a memorandum written at plaintiff's request. (See id. at 0973-0108; 0154.) Plaintiff requested that a memorandum be written stating the background for plaintiff's transfer to David Grant. (See id.) The letter was not disciplinary. (See id. at 0973-0154.) It recognized that plaintiff's continued work at CERC did not facilitate a team relationship and pointed out that plaintiff had requested a transfer closer to his home and that the transfer met that request. (See id.) Plaintiff has no formal reprimand in his files. (See id. at 0973-0064.)
In order to establish a prima facie case of discrimination or retaliation, plaintiff must demonstrate an adverse employment action. See Little, 301 F.3d at 970. Plaintiff has not demonstrated any adverse personnel action as a result of the memorandum. Further, an employer complying with a request at the behest of the employee could hardly be considered an adverse personnel action. See e.g., Krause v. City of La Crosse, 246 F.3d 995, 1001 (7th Cir. 2001). Accordingly, the undersigned recommends granting summary judgment on this claim. Hostile Work Environment
Plaintiff's fourth claim in his fourth complaint is that the conduct complained of in his four EEOC complaints constitutes a hostile work environment. To prevail on such a claim, the working environment must be both subjectively and objectively abusive.See Brooks, 229 F.3d at 923-924. As discussed in detail in the previous sections, no reasonable person could find plaintiff's work environment abusive. See id. The conduct that plaintiff complains of was generally infrequent, not severe, and did not unreasonably interfere with plaintiff's job performance. See id. The undersigned recommends that summary judgment be granted on this claim.
Emotional Distress
Plaintiff's fifth claim in his fourth complaint is for emotional distress. As discussed previously, to the extent that plaintiff seeks to bring this as a separate claim, it is barred by Title VII. See Brown, 425 U.S. 820. The undersigned recommends granting summary judgment on this claim.
III. Conclusion
For the reasons discussed above, the undersigned recommends that defendant's motion for summary judgment be granted. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).