Opinion
Case No. 04-20585-CIV-GRAHAM/GARBER.
April 12, 2005
ORDER
THIS CAUSE came before the Court upon Defendant Miami-Dade County's (the "County") Motion for Summary Judgment (D.E. 20) and Motion for Entry of Default Judgment (D.E. 29).
THE COURT has considered the motions and the pertinent portions of the record, and is otherwise fully advised in the premises.
I. INTRODUCTION
Plaintiff Miguel Astiazarain ("Mr. Astiazarain") is an individual of Hispanic origin who was formerly employed by the Miami-Dade Corrections and Rehabilitation Department (the "Corrections Department") as a corrections officer. On March 12, 2004, Mr. Astiazarain filed this suit against the County for violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Mr. Astiazarain alleges that the Corrections Department discriminated against him on the basis of national origin by denying him an opportunity to return to the "day shift" following his absence from employment due to an on-the-job injury. Mr. Astiazarain claims that another employee, who was not of Hispanic origin, was treated more favorably than Mr. Astiazarain and was placed on the day shift within eight (8) days of Mr. Astiazarain's request and denial.
The County now moves for summary judgment, contending that: (1) Mr. Astiazarain cannot establish a prima facie case of discrimination under Title VII of the Civil Rights Act; (2) the Corrections Department changed Mr. Astiazarain's work shift, to the afternoon or night shift, for legitimate, nondiscriminatory reasons unrelated to his national origin; and (3) Mr. Astiazarain's claims for punitive damages must be stricken because they are unavailable under Title VII.
II. STANDARD OF REVIEW
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R.Civ.P. 56 (c). The moving party has the burden of production. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). When the moving party has met this burden by offering sufficient evidence to support the motion, the party opposing must then respond by attempting to establish the existence of a genuine issue of material fact. See Adickes, 398 U.S. at 160.
In making this determination, the Court must decide which issues are material. A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. 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. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
The Court must also determine whether the dispute about a material fact is indeed genuine. In other words, is the "evidence . . . such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. See also Marine Coatings of Alabama, Inc. v. United States, 932 F.2d 1370, 1375 (11th Cir. 1991) (dispute of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party).
Finally, a plaintiff cannot defeat a motion for summary judgment by resting on the conclusory allegations in the pleadings. See Fed.R.Civ.P. 56(e); Anderson, 47 U.S. at 248. Nor will a summary judgment motion be defeated merely on the basis of a "metaphysical doubt" about the material facts, See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), "or on the basis of conjecture or surmise."Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. den., 502 U.S. 849 (1991).
III. RELEVANT FACTS
In its Reply Memorandum, the County argues that Mr. Astiazarain does not dispute the facts set forth in the County's statement of material facts and, accordingly, these facts must be deemed admitted. However, "[s]uch facts are only `deemed admitted' to the extent [that they are] supported by specific references to the [record]." United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami, Florida, 363 F.3d 1099 (11th Cir. 2004) (citing S.D. Fla. L.R. 7.5(D)). Accordingly, the Court must review the record to determine if there is, indeed, no genuine issue of material fact.
The Defendant, Miami-Dade County, is a political subdivision of the State of Florida. See Compl. [D.E. 1], at ¶ 4. The Corrections Department is a County department. The Operations Division of the Corrections Department employs close to 1,700 corrections officers. See Chester Aff. (D.E. 23], Exh. 1, at ¶ 3. The corrections officers are assigned to work one of three 8-hour shifts: (1) 7:00 a.m. to 3:00 p.m. (the "day shift"); (2) 3:00 p.m. to 11:00 p.m. (the "afternoon shift"); and (3) 11:00 p.m. to 7:00 a.m. (the "night shift"). See id.; Lee Dep. [D.E. 23], Exh. 6, at 12-13; Astiazarain Dep. [D.E. 23], Exh. 4, at 7. Corrections officers assigned to the afternoon shift and the midnight shift receive a ten percent (10%) pay supplement.See Astiazarain Dep. [D.E. 23], Exh. 4, at 25.
Mr. Astiazarain is an individual of Hispanic origin. See Compl. ¶ 6. He was hired as a corrections officer by the Corrections Department in 1997.See Astiazarain Dep. [D.E. 23], Exh. 4, at 4. See also Astiazarain Aff. [D.E. 31], Exh. A, at ¶ 2. In 2003, Mr. Astiazarain worked the day shift at Metro-West Detention Center ("Metro-West"). See Astiazarain Dep. [D.E. 23], Exh. 4, at 7. Joyce Chester ("Chief Chester"), the Chief of West Operators, was responsible for the day-to-day operations at Metro-West. See Chester Aff. [D.E. 23], Exh. 1, at ¶ 2. Chief Chester served as the restricted duty coordinator. See id. ¶ 4.
B. Restricted Duty Positions
When corrections officers request restricted (light) duty following an injury, the Personnel Bureau of the Corrections Department contacts Chief Chester. See Lee Dep. [D.E. 23], Exh. 6, at 10. In turn, Chief Chester reviews the Restricted Duty Availability Log, to determine if there is a post available.See Chester Aff. [D.E. 23], Exh. 1, at ¶ 5. The Restricted Duty Availability Log lists all restricted duty positions according to facility, location of position, and shift. See id. The vacant restricted duty positions are filled based upon availability and restrictions of the employee. See id. The available positions gleaned from the Restricted Duty Availability Log are reviewed to determine if they are compatible with the employee's restrictions. See id. The vacant restricted duty positions are in constant flux as employees' medical conditions change.See id. These changes result in vacancies for restricted duty positions, allowing the Operations staff to assign other employees to these positions. See id.
An employee's job restrictions are determined by a physician and noted on the "Return to Work/Physician Release Form." See id. ¶ 4. The Corrections Department's practice is to give priority in finding a restricted duty assignment to employees who have sustained on-the-job injuries to those employees who sustained off-the-job injuries. See id. See also Lee Dep. [D.E. 23], Exh. 6, at 21. Once an employee who suffered an off-the-job injury is placed in a restricted duty position, he or she will remain in that position until released to full duty by a physician, and will not be "bumped" by an employee who was injured on the job. See Chester Aff. [D.E. 23], Exh. 1, at ¶ 4.
C. Mr. Astiazarain's On-The-Job Injury
On June 27, 2003, Mr. Astiazarain sustained an on-the-job injury to his right shoulder. See Compl. [D.E. 1], at 8. See also Astiazarain Dep. [D.E. 23], Exh. 4, at 21; EEOC Charge Questionnaire [D.E. 23], Exh. 7. On July 3, 2003, Mr. Astiazarain's doctor released Mr. Astiazarain to return to work with the following restriction: "No use of right arm, no lifting, may write; restricted duty desk job." See Restricted Duty Notification Form [D.E. 23], Exh. 5.
D. Mr. Astiazarain Returns to Work and Requests Restricted Duty Position During Day Shift
On July 3, 2004, Mr. Astiazarain reported to the Corrections Department Personnel Bureau. See id. Mr. Astiazarain requested a restricted duty assignment at his previously assigned shift, the day shift. See EEOC Charge [D.E. 23], Ex. 9. Barbara Rech, the secretary to Special Projects Unit Administrator Louvenia Lee, contacted Chief Chester. See Chester Aff. [D.E. 23], Exh. 1, ¶ 6. Chief Chester informed Ms. Rech that the restricted duty positions on the day shift were filled. See id. Chief Chester also informed Louvenia Lee ("Ms. Lee") that there were no available restricted duty positions on the day shift. See Lee Dep. [D.E. 23], Exh. 6, at 18.
Ms. Lee offered to assign Mr. Astiazarain to other shifts at other facilities, including night shift openings at (1) Stockade, (2) Turner Guildford Knight, (3) West Detention Center, and (4) Pretrial Detention. See Astiazarain Dep. [D.E. 23], Exh. 4, at 20-21. Mr. Astiazarain rejected the night shift position offerings and told Ms. Lee that he only wanted to work the day shift. See EEOC Charge Questionnaire [D.E. 23], Exh. 7. See also EEOC Charge [D.E. 23], Exh. 9. Mr. Astiazarain informed Ms. Lee that he could only work the day shift due to his "medical condition through FMLA" and his shoulder injury. See Astiazarain Dep. [D.E. 23], Exh. 4, at 22.
On July 11, 2003, Ms. Lee offered Mr. Astiazarain other restricted duty assignments on the afternoon shift. See E-mail message, dated July 12, 2003, [D.E. 23], Ex. 8. Mr. Astiazarain refused the afternoon shift offerings. See Astiazarain Dep. [D.E. 23], Ex. 4, at 23. Mr. Astiazarain would not have lost any money had he accepted an offer at another location or shift.See Id. at 26. See also Lee Dep. [D.E. 23], Ex. 6, at 23. As opposed to the day shift, the afternoon and night shifts pay an additional 10% pay supplement. See also Astiazarain Dep. [D.E. 23], Exh. 4, at 25.
In July 2003, Terry Reyes, of the County's Risk Management Division, contacted Ms. Lee for a status report concerning Mr. Astiazarain. See E-mail message, dated July 12, 2003, [D.E. 23], Exh. 8. Ms. Lee informed Ms. Reyes that Mr. Astiazarain had refused the available assignments and would have to utilize his accrued leave time. See id. Mr. Astiazarain was placed on worker's compensation leave. See Lee Dep. [D.E. 23], Exh. 6, at 16-17, 22. Mr. Astiazarain was no longer on active duty and therefore was no longer considered for a restricted duty position by Chief Lester. See Chester Aff. [D.E. 23], Ex. 1, at ¶ 8.
E. Shift Assignments of Other Corrections Officers
1. Officer Jennifer Revell
On July 28, 2003, Corrections Officer Jennifer Revell ("Officer Revell") returned to work from her leave of absence due to an on-the-job injury. See Astiazarain Dep. [D.E. 23], Ex. 4, at 19. Officer Revell is a black female. On July 28, 2003, at Ms. Rech's request, Chief Chester reviewed the Restricted Duty Availability Log and identified a vacant day shift assignment for Officer Revell at Metro-West. See Chester Aff. [D.E. 23], Ex. 1, at ¶ 8. Chief Chester did not consider Mr. Astiazarain for this position because he was not on active duty on July 28, 2003, having rejected offers to work restricted duty afternoon and night shifts. See id.
2. Officer Tasha Saunders
In June, 2003, Corrections Officer Tasha Saunders ("Officer Saunders") suffered an on-the-job injury. Officer Saunders is a black female. Officer Saunders requested a restricted duty assignment for the day shift. Ms. Lee informed her that the day shift was not available for restricted duty. See E-mail message [D.E. 23], Ex. 8.
F. Procedural History
On August 6, 2003, Mr. Astiazarain filed a charge of national origin discrimination with the Equal Employment Opportunity Commission ("EEOC"). See EEOC Charge [D.E. 23], Exh. 10. On December 16, 2003, the EEOC issued Mr. Astiazarain a "Notice of Suit Rights" letter. See EEOC Charge [D.E. 23], Exh. 11. On March 12, 2004, Mr. Astiazarain filed the one-count complaint in the instant case, alleging that the County discriminated against him on the basis of national origin, in violation of Title VII of the Civil Rights Act.
On January 10, 2005, the County filed the instant Motion for Summary Judgment, together with documents and affidavits in support thereof. Mr. Astiazarain failed to file a timely response. On February 16, 2005, this Court entered an Order to Show Cause why the Motion for Summary Judgment should not be granted. Mr. Astiazarain failed to file a timely response to the Order to Show Cause. On March 8, 2005, the County filed the instant Motion for Default Judgment, asking the Court to grant the Motion for Summary Judgment. On March 10, 2005, Mr. Astiazarain filed the Response to the Motion for Summary Judgment and the Response to the Motion for Default Judgment. In support of his Response to the County's Motion for Summary Judgment, Mr. Astiazarain filed one affidavit, of Miguel Astiazarain.
IV. DISCUSSION
A. Motion for Entry of Default Judgment
The Court will first address the County's Motion for Entry of Default Judgment on the Motion for Summary Judgment. The Eleventh Circuit has stated that
Where `the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party.' Fed.R.Civ.P. 56(e). Thus, summary judgment, even when unopposed, can only be entered when `appropriate.'United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami, Florida, 363 F.3d 1099 (11th Cir. 2004). The Court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion. See id. (citing Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988) (per curiam)). Accordingly, the County's Motion for Entry of Default Judgment will be denied, and the Court will consider the merits of the County's Motion for Summary Judgment.
B. Motion for Summary Judgment
Plaintiffs bear the burden of proving that the employer discriminated against them unlawfully. Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1082-83 (11th Cir. 1996). They may do so through either direct or circumstantial evidence. Direct evidence is that which shows an employer's discriminatory intent "without any inference or presumption." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Mr. Astiazarain does not present direct evidence of discrimination sufficient to create an issue of material fact.
Absent direct evidence of discrimination, a plaintiff can establish discrimination under the three-part burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and Texas Dep't. Of Commun. Affairs v. Burdine, 450 U.S. 248 (1981). Under this analysis, Mr. Astiazarain bears the burden of showing sufficient evidence to allow a reasonable jury to determine that he satisfied the elements of a prima case of national origin discrimination. See id. Once he has done so, the burden shifts to the County "to articulate some legitimate, nondiscriminatory reason" for its actions. Id. At that point, Mr. Astiazarain must "be afforded a fair opportunity to show" that the County's reasons were pretextual. Id.
With this framework in mind, the Court turns to the County's argument in favor of summary judgment. The County contends that: (1) Mr. Astiazarain cannot establish a prima facie case of discrimination under Title VII of the Civil Rights Act because he did not suffer an adverse employment action when the Corrections Department changed his work shift; (2) Mr. Astiazarain cannot establish a prima facie case of discrimination under Title VII of the Civil Rights Act because he is unable to identify a similarly situated employee outside his protected class that was treated better; and (3) the Corrections Department changed Mr. Astiazarain's work shift for legitimate, nondiscriminatory reasons.
1. Prima Facie Case of Discrimination
In order to establish a prima facie case of national origin discrimination pursuant to Title VII of the Civil Rights Act, a plaintiff must show the following elements: (1) the plaintiff is a member of a protected class; (2) he was qualified for the job that he was seeking; (3) he suffered an adverse employment action; and (4) the employer treated similarly situated employees outside the class more favorably. Knight v. Baptist Hospital of Miami, 330 F.3d 1313, 1315-1316 (Fla. 11th Cir. 2003);Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
These factors represent just one formulation by which a plaintiff can establish a prima facie case. See McDonnell Douglas, 411 U.S. at 802 n. 13 ("The facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from the plaintiff is not necessarily applicable in every respect to differing factual situations.").
The County concedes that Mr. Astiazarain can establish the first two prongs of a prima facie case. The County does argue, however, that Mr. Astiazarain cannot show that: (1) he suffered an adverse employment action; and (2) similarly situated employees were treated better.
a. Adverse Employment Action
An adverse employment action does not refer to ultimate employment decisions, such as a decision to discharge an employee. See Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002). An employer's conduct, short of an ultimate employment decision, is actionable as an adverse action, if such conduct reaches a "threshold level of substantiality."See id. "An employee must show a serious and material change in the terms, conditions, or privileges of employment."Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). "Moreover, the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Id. "[W]hile not everything that makes an employee unhappy is an actionable adverse action, conduct that alters an employee's compensation, terms, conditions, or privileges of employment does constitute adverse action." Shannon, 292 F.3d at 716.Thus, "a transfer to a different position can be `adverse' if it involves a reduction in pay, prestige or responsibility."Hinson v. Clinch County of Georgia, 231 F.3d 821, 829 (11th Cir. 2000). See also Gonzalez v. Fla. Dept. of Highway Safety and Motor Vehicles, 237 F.Supp. 2d 1338, 1348 (S.D. Fla. 2002) ("A lateral transfer, that is a transfer which does not involve a demotion in form or substance, does not rise to the level of an adverse employment action."). "The flip side of this coin would appear to be that a failure to transfer may constitute an adverse employment action if [the new position] entails an increase in pay, prestige or responsibility." Gonzalez, 237 F.Supp.2d at 1348 (quoting Smith v. Alabama Dept. of Corrections, 145 F.Supp.2d 1315, 1328 (S.D. Ala. 2001)). In Gonzalez, the Court granted the defendant summary judgment on the plaintiff's Title VII claim to the extent it was based on the defendant's failure to transfer the plaintiff to the morning shift. Id. In so holding, the Court reasoned as follows:
[T]he Plaintiff has not alleged that a transfer to the morning shift would represent an increase in pay, prestige or responsibility. Therefore, this failure to transfer does not represent an adverse employment action for purposes of a prima facie case of discrimination in employment. Id.
With these precedents in mind, the Court turns to Mr. Astiazarain's argument that the shift transfer and the County's failure to assign him to the day shift constitutes an adverse employment action. Specifically, Mr. Astiazarain argues that the County's "inability to place him on the day shift ultimately caused him to be placed on leave and, as a result, he did not earn the complete amount of wages that he would have had he been able to work the day shift."
The County does not dispute that Mr. Astiazarain was placed on worker's compensation leave after he turned down the County's offer to transfer shifts. The County contends, however, that Mr. Astiazarain was placed on leave because he refused to return to work, and not because the Corrections Department refused to place him in a restricted duty day shift position. The County also contends that it is undisputed that Mr. Astiazarain would have received a ten percent (10%) pay increase had he accepted the offer to work a shift other than the day shift. The County claims that the undisputed evidence in this case reveals that he would not have suffered a loss in pay, prestige or responsibility had he accepted a transfer to the afternoon or night shift.
The Court finds that while Mr. Astiazarain may have subjectively viewed his transfer as adverse, he has not shown any objective evidence that the transfer was adverse. See Collins v. Miami-Dade County, Case No., 03-23314-Civ-Jordan (S.D. Fla. Feb. 7, 2005); Davis, 245 F.3d at 1239; Hinson, 231 F.3d at 828; Gonzalez, 237 F.Supp.2d at 1348. Mr. Astiazarain has not presented any evidence that he would have lost any pay in salary, benefits, or opportunities upon the shift transfer. See Maniccia v. Brown, 171 F.3d 1364, 1370 n. 3 (11th Cir. 1999) (finding no adverse employment action where employee admitted that she lost no pay or benefits as a result of transfer). To the contrary, it is undisputed that the morning shift pays less than the afternoon and midnight shifts.
Accordingly, the Court finds that the shift transfer and failure to assign Mr. Astiazarain to the day shift do not constitute an adverse employment action for purposes of establishing a prima facie case of national origin discrimination under Title VII.
b. Similarly Situated Employee
The County argues that Mr. Astiazarain has failed to identify a similarly situated employee that was placed in a restricted duty shift position. In his response, Mr. Astiazarain argues that Officer Revell is a similarly situated employee who was placed in a restricted duty day shift position at Metro-West."To show that employees are similarly situated, the plaintiff must show that the employees are similarly situated in all relevant respects. . . ." Knight, 330 F.3d at 1316. Here, Mr. Astiazarain cannot show that he was treated worse than Officer Revell. Mr. Astiazarain was offered the shifts that were available when he requested a restricted duty shift. Officer Revell was assigned to a restricted duty day shift after Mr. Astiazarain was denied a restricted duty day shift. On July 28, 2003, Chief Chester reviewed the Restricted Duty Availability Log and located a vacant restricted duty day shift assignment for Officer Revell. See Chester Aff. [D.E. 23], Ex. 1, at ¶ 8. Chief Chester did not consider Mr. Astiazarain for this position because he was not on active duty on July 28, 2003, having rejected offers to work restricted duty afternoon and night shifts. See id.
Accordingly, the Court finds that Mr. Astiazarain and Officer Revell are not similarly situated in all relevant respects.Silvera v. Orange County School Bd., 244 F.3d 1253, 1254 (11th Cir. 2001).
2. The Employer's Burden of Producing Evidence.
Assuming Mr. Astiazarain can establish a prima facie case of discrimination — and the Court finds that he cannot — the burden of production then shifts to the County to articulate some legitimate, nondiscriminatory reason for the adverse action in order to rebut the inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. See also Coutu v. Martin County Bd. Of Comm'rs., 47 F.3d 1068, 1073 (11th Cir. 1995). "Because the defendant need only produce, not prove, a nondiscriminatory reason, this burden is exceedingly light." Perryman v. Honson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983). "The employer may [commit an adverse action against] an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio/Rehall Comms., 738 F.3d 1181, 1187 (11th Cir. 1984).The Court finds that the County has met its burden of production in this case. While Mr. Astiazarain contends that his transfer to the afternoon and night shift was due to his national origin, the County has shown legitimate, nondiscriminatory reasons for Mr. Astiazarain's transfer. For example, the County demonstrated that Chief Chester could not assign Mr. Astiazarain to a restricted duty day shift position when he returned to work on July 3, 2003, because all such positions were filled. Mr. Astiazarain acknowledged at his deposition that the restricted duty day shift positions at Metro-West were filled on July 3, 2003.
The evidence presented by the County demonstrates that it had a legitimate, nondiscriminatory reason for Mr. Astiazarain's transfer. Even if the County was mistaken about the availability of restricted duty day shift positions, the Court's inquiry centers around the County's reasonable belief that its reasons were correct. The Court's "inquiry is limited to whether the employer gave an honest explanation of its behavior." See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). The Court will not second-guess the employer's decisions where the decisions are not motivated by improper reasons. See Alexander v. Fulton County, 207 F.3d 1303, 1341 (11th Cir. 2000).
Here, the Court finds that the County's proffered reasons for its actions concerning Mr. Astiazarain's shift transfer meet the test for rebutting the presumption of discrimination.
3. Proof of Pretext
When, as here, a defendant rebuts the presumption of discrimination, the plaintiff must come forth with "evidence, including the previously produced evidence establishing a prima facie case, sufficient to permit a reasonable fact-finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). See also Burdine, 450 U.S. at 245-56. The employer who produces evidence of a nondiscriminatory reason for its actions is entitled to summary judgment unless the plaintiff proffers evidence sufficient to create a genuine issue of material fact that discrimination was actually the reason for the challenged action. See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002).
As discussed previously, the Court finds that the County met its burden of producing evidence of a nondiscriminatory reason for its actions. As such, Mr. Astiazarain bears the burden of proving that the County's reasons for his transfer were a pretext. In his Response, Mr. Astiazarain argues that he "has provided uncontroverted evidence that he was denied a restricted duty position during the day shift at Metro West facility." Specifically, Mr. Astiazarain argues that
[Mr. Astiazarain] has produced sufficient evidence that Officer Revell was placed in the day shift at Metro West within eight (8) days after Plaintiff was denied that position. Interestingly, both Lovania Lee, a black female, and Joyce Chester, a black female, were asked about that specific position in their depositions, and neither of them could state with any specificity, the facts surrounding Officer [Revell] being granted the position in question. They could only testify that the position opened in the days between Defendant's denial of the position to Plaintiff, and Defendant's granting of the position to Officer Revell. Conveniently, Defendant failed to retain any documentation of the position in question, the corrections officer who allegedly occupied that position at the time that Plaintiff sought it and the circumstances surrounding the officer's discontinuing his or her position.
Mr. Astiazarain has also filed an affidavit, sworn by Mr. Astiazarain, that "Lovania Lee has a history of discrimination against Hispanic males and that her actions against Plaintiff were consistent with those prior actions."
The Court finds that Mr. Astiazarain has not presented evidence sufficient to contradict the reasons proffered by the County to convince the Court that a genuine issue of material fact exists that its asserted reasons were a pretext for transferring Mr. Astiazarain because his national origin.
V. CONCLUSION
In view of the foregoing, it is,
ORDERED AND ADJUDGED that Defendant's Motion for Entry of Default Judgment (D.E. 29) is DENIED. It is further
ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment is GRANTED. It is further
ORDERED AND ADJUDGED that this case is CLOSED for administrative purposes and all pending motions are DENIED as moot.
DONE AND ORDERED.