Opinion
No. 10-cv-03213 TLN-DAD
07-21-2014
VASCO ESPINOZA, Plaintiffs, v. WENDY SPENCER, Chief Executive Officer of the Corporation for National and Community Service, Defendant.
ORDER
This matter is before the Court on Defendant, Wendy Spencer's ("Defendant") Motion for Summary Judgment. (See Def.'s Mot. for Summ. J., ECF 48-1.) Plaintiff opposes the motion. (See Pl.'s Opp'n to Def.'s Mot. for Summ. J., ECF 54.) Defendant has filed a reply. (See Def.'s Reply, ECF 57.)
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g).
Plaintiff, a Hispanic male, is a former employee of the Corporation for National and Community Service ("CNCS"). Plaintiff complains that his subordinate, Willie Holmes, an African American male, constantly threatened and harassment him. Plaintiff alleges that, despite his numerous complaints and complaints of numerous other employees, Plaintiff's superiors, who are also African Americans, failed to adequately disciple Holmes in order to prevent further threats. Plaintiff maintains that this course of conduct created a hostile work environment. Plaintiff argues that his superiors treated Holmes differently because he is African American, and Plaintiff is not. Based on the foregoing, Plaintiff asserts two claims: (1) Retaliation in Violation of 42 U.S.C. § 2000e-3(a); and (2) Discrimination Based on Race in violation of 42 U.S.C. § 2000e-2. (See Pl.'s First Am. Compl. ("FAC"), ECF 26.)
According to its website, CNCS is a nationwide community-service oriented organization that helps support a number of causes across the country, supporting education, veteran and military families, health, and economic opportunity. See http://www.nationalservice.gov/about.
BACKGROUND
The relevant facts are, for the most part, undisputed. Where the facts are undisputed, the court will cite to Defendant's Statement of Undisputed Facts. (See Def.'s Stmt. of Undisputed Facts ("SUF"), ECF 48-2.) The Court may also, at times, cite to Plaintiff's statement of disputed facts and Defendant's response thereto. (See Pl.'s Am. Stmt. of Material Facts, ECF 55-1; Def.'s Resp. to Pl.'s Stmt. of Material Facts, ECF 57-2.) Finally, where necessary, and where a material fact is genuinely disputed, the Court will cite to the underlying evidence proffered by the respective parties.
A. Factual Background
Plaintiff was hired by CNCS as a Deputy Director for the Pacific Region Campus in May, 2008. (SUF 1.) Regional Director James Phipps, an African American, was Plaintiff's first-line supervisor. (SUF 2.) Merlene Mazyck, also an African American, was the National Director and Plaintiff's second-line supervisor. (SUF 3.)
Shortly after CNCS hired him, Plaintiff was given his job description as Deputy Director, which was to oversee the operations of the region campus, supervise operation department staff, and perform other duties as assigned. (SUF 4-5; see also ECF 48, Ex. B.) Plaintiff admits that this was his formal job description. However, in his deposition—which the parties lodged with the Court—Plaintiff testified that James Phipps verbally expanded his duties and responsibilities. (Espinoza Decl. at 92-95.) During his deposition, Phipps testified that he assigned Plaintiff job duties outside the normal scope of a Deputy Director. Specifically, Plaintiff was designated to oversee overall review of campus procedures, policies, and systems for improvement of efficiency, instead of simply overseeing operations. (Phipps Depo at 37: 21-38:15.) Plaintiff concedes, however, that during the course of his employment, CNCS never issued Plaintiff a different job description or title. (SUF 6-7.) Further, although Plaintiff alleges in the complaint that he was demoted, Plaintiff concedes that he did not receive a change in pay. (SUF 8.)
Defendant objects to, and moves to strike, Plaintiff's Amended Statement of Disputed Material Fact as untimely filed. The Court acknowledges that Plaintiff filed the Amended Statement after the deadline for filing opposition papers. However, in light of the strong policy in favor of deciding matters on the merits, the Court declines to strike the Amended Statement and will consider it in its analysis. Plaintiff's counsel is admonished, however, that future failure to comply with this Court's scheduling requirements, particularly without leave of Court, will not be tolerated in the future.
Willie Holmes was the Facilities Manager at the Pacific Region campus who worked in the Operations Department. (SUF 9.) Plaintiff was Holmes' immediate supervisor. (Id.) In June 2008, Plaintiff reported that he had received a complaint about Holmes' concerning his conduct towards two other staff members. (SUF11.) In response, the agency conducted an investigation and put Holmes on administrative leave pending the investigation. (SUF 12) On August 19, 2008, Plaintiff issued a formal reprimand to Holmes. (SUF 13.)
Pursuant to the collective bargaining agreement with its union, the agency employs progressive discipline.
On October 16, 2008, Plaintiff reported that Holmes had confronted Plaintiff and was verbally aggressive with him. (SUF 14.) Specifically, in response to Defendant's interrogatory, Plaintiff responded that "Holmes yelled at [Plaintiff] and told him he did not know "what the fuck," and that Plaintiff would "pay for what he was doing." (ECF 48, Ex. U, answer to interrogatory no. 3.) Plaintiff also stated that he "told Phipps that he was frightened of Holmes and feared for his personal safety." (Id.)
On October 29, 2008, Phipps placed Holmes on administrative leave pending an investigation into Plaintiff's allegations. (SUF 15.) On November 12, 2008, Phipps issued a Notice of Proposed Removal to Holmes in connection with the October 2008 incident with Plaintiff. (SUF 16.)
In early December 2008, Plaintiff told Phipps that he had received a telephone call from a former employee who said that Holmes was making threats against Plaintiff. (SUF 17.) In response, the agency hired a security guard to patrol the campus and encouraged Plaintiff to contact local authorities any time he felt threatened. (SUF 18.)
In late November 2008, Plaintiff contacted the agency's Office of the Inspector General (OIG) complaining, among other things, that Holmes and others were engaged in unethical and possibly illegal operational activities. (SUF 20.) Plaintiff, in response to Defendant's interrogatories, stated that later in December, Defendants removed a number of the duties previously undertaken by Plaintiff.
On December 3, 2008, National Director Mazyck visited the Pacific Region campus to conduct an In-Person Review ("IPR") of the campus systems, processes, procedures, and effectiveness. (SUF 24.) Shortly thereafter, Mazyck reduced the proposed removal of Holmes to a 30-day suspension. (SUF 19.)
The ultimate IPR report noted significant deficiencies in the Pacific Region Operations Department. At deposition, Phipps testified that a significant source of the criticism from the IPR directed at the Pacific Region related to duties assigned to Holmes. (Phipps Depo at 145-155.)
On February 20, 2009, Acting National Director Mikel Herrington—who replaced Mazyck—issued a Notice of Proposed Removal to Holmes and placed him on administrative leave. (SUF 21.) On April 9, 2009, Chief of Program Operations Kristin McSwain, issued a final decision to remove Holmes effective April 11, 2009. (SUF 22.)
During the investigation, Plaintiff contacted an EEO counselor regarding alleged discrimination. (SUF 26.) The EEO counselor subsequently issued Plaintiff a notice of right to file a formal complaint, and Plaintiff filed his formal discrimination complaint on March 16, 2009. (SUF 27.) In August 2009, Plaintiff took a leave of absence and remained on leave until he found employment with another federal agency. (SUF 23.) The EEOC granted summary judgment to the agency and, on October 25, 2010, the agency issued its Notice of Final Action/Order which notified Plaintiff of his appeal rights. (SUF 28.)
B. Procedural Background
Plaintiff filed his complaint in this Court on December 01, 2010, asserting the following claims: (1) Retaliation in violation of Title VII; (2) Retaliation in Violation of the California Government Code § 12940(h); (3); Retaliation in Violation of California Labor Code; (4) Retaliation in violation of California Government Code § 12940(j)(k); (5) Employer Interference with Employee Disclosures; (6) Discrimination Based on Race in Violation of Title VII; (7) Intentional Infliction of Emotional Distress; (8) Violation of California's Ralph Civil Rights Act; and (9) Negligent Supervision, Hiring and Retention. (Pl.'s Compl., ECF 1.) Plaintiff subsequently voluntarily dismissed claims 2-5, and 8. (ECF 16.)
On November 29, 2011, Defendant moved to dismiss Plaintiff's Complaint. (Def.'s Mot. to Dismiss, ECF 18.) The Court issued its order granting the motion to dismiss on February 27, 2012. (ECF 25.) The Court dismissed with prejudice claims seven and nine for failure to exhaust administrative remedies. The Court also dismissed without prejudice Plaintiff's Title VII retaliation claim, holding as follows: that neither Plaintiff's complaint to the agency's Office of the Inspector General ("OIG") nor his complaints to his superiors about Holmes behavior were protected activities; that Plaintiff's alleged "demotion" was not an adverse employment action; and finally, that there was no causal nexus between the allegations concerning Holmes and Plaintiff's alleged demotion. The Court also dismissed without prejudice Plaintiff's Title VII racial discrimination claim, holding that Plaintiff did not suffer an adverse employment action and that he was not sufficiently similarly situated to Holmes.
Plaintiff filed his FAC in this Court on March 14, 2012 (ECF 26), asserting claims for retaliation in violation of Title VII and discrimination based on race in violation of Title VII. Defendant moved to dismiss the FAC on March 28, 2012. (ECF 27.) At the hearing on Defendant's motion to dismiss the FAC, the Court found that the FAC alleged sufficient facts to raise a reasonable inference that Defendant retaliated against Plaintiff for filing a complaint with the EEO. The Court also noted that Plaintiff's allegations that Defendant's permitted Holmes to harass Plaintiff because Holmes was African American and Plaintiff was not, were sufficient to raise a plausible inference to support a claim for racial discrimination under a hostile work environment theory. The Court issued a written order denying Defendant's motion to dismiss the FAC on May 29, 2012. (ECF 33.)
STANDARDS
A. Summary Judgment
Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of 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). "[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. at 324. Indeed, summary judgment should be entered against a party who does not 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.
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. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-289 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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. Fed. R. Civ. P. 56(c). 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), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251-52.
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." First Nat'l Bank, 391 U.S. at 289. 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 Rule 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. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 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. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
Finally, to demonstrate a genuine issue that necessitates a fact finder, 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 586-87.
B. Title VII
Title VII claims are analyzed using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Under this approach, the plaintiff in a Title VII case bears the initial burden of establishing a prima facie case before there is any duty by a defendant to defend. See McDonnell Douglas Corp., 411 U.S. at 802; Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
However, merely stating a prima face case does not suffice to save a Title VII claim from summary judgment. Burdine, 450 U.S. at 254; Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) ("the mere existence of a prima facie case . . . does not preclude summary judgment"). Instead, stating a prima facie case simply shifts the burden to the employer to produce evidence demonstrating "that the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citation omitted).
Once the employer has articulated a legitimate, non-discriminatory reason for the employment action, the presumption of discrimination "drops from the case." Id. Plaintiff must then prove not only that the proffered legitimate reason is false, but also that intentional discrimination was the true reason for the adverse personnel action. Id. at 515. To avoid summary judgment, plaintiff's evidence of pretext must consist of "sufficiently specific facts." Collings v. Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996); Wallis, 26 F.3d at 890. Evidence to support a prima facie case of discrimination alone is not sufficient to show pretext. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th Cir. 2001) ("[S]ufficient evidence to support an inference of discrimination . . . is not sufficient to raise a genuine issue of material fact regarding the truth of [defendant's] proffered nondiscriminatory reasons . . .")
ANALYSIS
A. Exhaustion of Administrative Remedies
Defendant maintains that this Court lacks jurisdiction over claims predicated upon conduct that occurred prior to October 19, 2008. Specifically, Defendant maintains that because Plaintiff did not contact an EEO counselor until December 3, 2008, any alleged action that occurred prior to October 18, 2008, is time-barred pursuant to 29 C.F.R. § 1614.105(a). (ECF 48-1 at 7:1-5.) Plaintiff argues that this Court has jurisdiction over all the conduct alleged in the complaint because Plaintiff's race discrimination claim is predicated upon repeated conduct that created a hostile work environment. (ECF 54 at 5:13-15.) In reply, Defendant argues that Plaintiff cannot make such a claim because Plaintiff has not asserted a claim for hostile work environment. (ECF 57 at 2:10-11.)
29 C.F.R. § 1614.105(a) provides that "[a]ggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter." That "aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, . . ." Id. at (a)(1). "Failure to comply with this regulation is 'fatal to a federal employee's discrimination claim.'" Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003) (quoting Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002)). However, "[t]he continuing violations doctrine creates an equitable exception to a statutory limitation in a [discrimination] action when the unlawful behavior is deemed ongoing." 45B Am. Jur. 2d Job Discrimination § 1140 (2012). Hostile environment claims are "different in kind from discrete acts" because "[t]heir very nature involves repeated conduct." Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
The Court finds unavailing Defendant's contention that the continuing violations doctrine is not applicable in this case because Plaintiff did not plead a hostile work environment claim. The FAC specifically alleges that Defendant subjected Plaintiff to a hostile work environment. (See ECF 1 ¶ 23.) Under Plaintiff's claim for racial discrimination, the Complaint incorporates by reference the allegations that Defendant subjected him to a hostile work environment, and thus, the Court will consider Plaintiff's hostile work environment claim. See Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001) (holding that failure to specifically plead a claim for sexual harassment was not fatal where the complaint described the alleged harassment and incorporated those allegations by reference.) see also Indergard v. Georgia-Pacific Corp., 2010 WL 331774 at *5 (D.Or. Jan. 21, 2010) ("[A] party need not plead specific legal theories in a complaint."). Because Plaintiff incorporated allegations of hostile work environment into his claim for Title VII racial discrimination, the Court will address this claim. In conclusion, because Plaintiff has adequately pled a claim for hostile work environment predicated upon allegations of repeated inappropriate conduct, the Court will consider conduct that occurred prior to October 8, 2008, but only as that conduct relates to Plaintiff's hostile work environment claim.
B. Retaliation
Defendant moves for summary judgment on Plaintiff's claim that Defendant retaliated against Plaintiff for contacting the OIG and filing an administrative complaint. In Plaintiff's opposition to Defendant's motion, Plaintiff mentions the retaliation claim in passing. Specifically, after a brief recitation of the legal standard for retaliation claims, Plaintiff simply states that he "believes the evidence will show . . . that he was demoted . . . in part because he reported and opposed the discrimination directed toward him, . . ." (ECF 54 at 11:4-26.)
Indeed, Plaintiff devotes only a portion of a page in his opposition to his claim for retaliation. Plaintiff's response to Defendant's motion as to his claim for retaliation seems to indicate that Plaintiff has little faith in his own claim.
In order to meet his prima facie burden for his retaliation claim, Plaintiff must show that he was engaged in a protected activity, which includes either: (1) where an employee has opposed any practice made an unlawful employment practice by Title VII, or (2) where an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Title VII. 42 U.S.C. § 2000e-3(a). Plaintiff must show, at the very least, that Defendant's conduct was sufficiently severe to dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Here, the Court finds that Defendant has met its initial burden of informing the Court of the basis of its motion. Celotex, 477 U.S. at 323. Specifically, Defendant has demonstrated that, as the Court previously held, Plaintiff's participation in the OIG investigation is not a protected activity. (See Order, ECF 25 at 7:3-9:13.) Moreover, Defendant has demonstrated that Plaintiff has proffered zero evidence of a causal link between his contact with an EEOC counselor in 2008 and his alleged demotion in 2009. Specifically, Plaintiff has not proffered any evidence that any decision maker—specifically Regional Director Mazyck—knew that he had contacted the counselor. See Celotex, 477 U.S. at 322 (holding that summary judgment should be entered against a party who does not 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.)
Because Defendant, the moving party, has met its initial responsibility, the burden shifts to Plaintiff to establish that a genuine issue of material fact exists. Matsushita Elec. Indus, 475 U.S. at 585-87. In attempting to establish the existence of a factual dispute, Plaintiff merely states that he "believes the evidence will show . . . there is at least a factual dispute" that he was retaliated against because "he participated in the complaints of discrimination made by others." (ECF 54 at 11:22-26.) This matter is currently at the summary judgment stage, and thus, what Plaintiff believes the evidence may or will show is irrelevant; all that is relevant is what the evidence proffered in support of Plaintiff's instant opposition shows. Indeed, the Court has already found that his participation in the OIG investigation is not a protected activity. (ECF 25.) The Court therefore finds that Plaintiff's conclusory statement that the evidence will show a triable issue of fact is insufficient to meet his burden on summary judgment. As such, Defendant's motion for summary judgment on Plaintiff's claim for retaliation is GRANTED.
As the Court noted in its order dismissing Plaintiff's first complaint, "[a] complaint by Plaintiff concerning favoritism based on race may be protected by Title VII, . . ."; however, Plaintiff has not directed the Court to any evidence that he complained to his supervisors concerning favoritism based on race.
C. Racial Discrimination
Defendant moves for summary judgment on Plaintiff's second claim for racial discrimination on the grounds that Plaintiff did not suffer an adverse employment action. Specifically, Defendant maintains that Plaintiff did not suffer any adverse employment action because there was neither a change in his job title nor a change in compensation. (ECF 48-1 at 8:11-12.) Defendant also argues that Plaintiff has not demonstrated that his alleged "demotion" was based on race.
The focus of Defendant's motion is on disparate treatment discrimination. That is, Defendant also argues that Plaintiff cannot prove that his alleged demotion was based on race However, as set forth above, Plaintiff may state a claim for hostile work environment discrimination under Title VII. It is axiomatic that Title VII encompasses a claim for "hostile work environment." McGinest v.GTE Service Corp., 360 F.3d +1103, 1112 (9th Cir. 2004).
Plaintiff characterizes his claim as different from the type of "adverse employment" claim Defendant addresses. Specifically, Plaintiff asserts that his case is not a disparate treatment claim, but rather that Defendant created a hostile work environment based upon race. (ECF 54 at 6:23-25.) However, after stating that his claim is based on a theory of hostile work environment, Plaintiff argues that "he did suffer an adverse employment action." (Compare ECF 54 at 5:18-7:6 with ECF 64 at 7:16-8:3.) Specifically, Plaintiff maintains that his responsibilities diminished after he complained about potentially unethical conduct and participated in the OIG investigation. (ECF 54 at 724-28.) Plaintiff maintains that this reduction in workload affected his stature at the workplace.
Plaintiff acknowledges, however, that his job title, description, and compensation did not change.
Title VII provides that it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). Title VII encompasses not only claims for disparate treatment based on race, but also provides a claim for the creation of a hostile work environment, which violates the guarantee of "the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). "Courts have long recognized that a workplace in which racial hostility is pervasive constitutes a form of discrimination." Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir.1991).
In order to survive summary judgment, Plaintiff must establish a genuine factual dispute as to "1) whether a reasonable [Hispanic person] would find the workplace so objectively and subjectively racially hostile as to create an abusive working environment; and 2) whether [Defendant] failed to take adequate remedial and disciplinary action." McGinest v. GTE Service Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1462-63 (9th Cir.1994)). In evaluating whether the workplace environment is sufficiently hostile to violate Title VII, the Court must take into account "all the circumstances." Nichols v. Azteca Rest. Enter., 256 F.3d 864, 872 (9th Cir.2001). It is enough "if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position." Steiner, 25 F.3d at 1463. In evaluating the objective hostility of a work environment, the factors to be considered include the "frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Nichols, 256 F.3d at 872.
"[E]mployers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known." McGinnest, 360 F.3d at 1119 (quoting Ellison v. Brady, 924 F.2d 872, 881 (9th Cir.1991)). "The reasonableness of the remedy depends on its ability to: (1) stop harassment by the person who engaged in the harassment; and (2) persuade potential harassers to refrain from unlawful conduct." Nichols, 256 F.3d at 875 (internal quotations omitted); see also Ellsion, 924 F.2d at 882 ("Title VII requires more than a mere request to refrain from discriminatory conduct.")
i. Severe or Pervasive Hostile Environment
The Court notes that, while Plaintiff's claim for hostile work environment will proceed past summary judgment, Plaintiff has not addressed any other theory of racial discrimination under Title VII. As such, Plaintiff has not met his summary judgment burden as to any other theory of Title VII racial discrimination, and thus, the only claim that survives summary judgment is Plaintiff's claim for racial discrimination under a theory of hostile work environment.
Here, there is no debate that Plaintiff, subjectively, found the workplace sufficiently hostile as to create an abusive working environment—Plaintiff maintains that the hostile work environment ultimately caused him to take a leave of absence and to quit his job. The Court also finds that a triable issue of material fact exists as to whether, objectively, Plaintiff was subjected to a hostile work environment. For example, Plaintiff has proffered evidence that Holmes repeatedly harassed him, yelled and cursed at him, even though Holmes was his inferior.Plaintiff also testified that he felt physically frightened of Holmes. Moreover, during deposition, Plaintiff further testified that "Phipps told [Plaintiff] that neither he nor Mazyck would take any action against an African-American Employee." (ECF 54-1 No. 16.) The veracity of these statements is irrelevant as credibility determinations are the province of the trier of fact, and inherently inappropriate at the summary judgment stage. Based on the aforementioned conduct, a reasonable juror could find that "such hostile conduct pollute[d] the victim's workplace, making it more difficult for [him] to do [his] job, to take pride in [his] work, and to desire to stay on in [his] position." Steiner, 25 F.3d at 1463. Surely, a reasonable juror could find that, as Holmes immediate supervisor, the alleged acquiescence to Holmes' insubordination made it more difficult for Plaintiff to do his job.
Defendant does not necessarily dispute that any of this conduct occurred. Instead, Defendant, for the most part, states that it is irrelevant. The Court disagrees. Constant yelling and harassing is certainly relevant to a claim for hostile work environment.
--------
Based on the foregoing, the Court finds that this matter involves difficult problems of proof and credibility that is not subject to resolution at the summary judgment stage. Cf. Meritor Sav. Bank, FSB, 477 U.S. at 68 (explaining that a claim for hostile work environment predicated upon allegations of sexual harassment "presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, . . .") The Court therefore finds that Plaintiff has satisfied his burden of establishing a triable issue of material fact that Defendant subjected him to a hostile work environment.
ii. Remedial Measures
The Court also finds that Plaintiff has established a genuine issue of material fact as to whether Defendant took adequate remedial and disciplinary action when Plaintiff complained of Holmes' harassing conduct. First, the Court acknowledges, as does Plaintiff, that Holmes was placed on administrative leave and suspended in 2008, and was ultimately terminated in 2009. However, according to the evidence proffered by Plaintiff, which the Court must believe, the harassing conduct began during Plaintiff's first month of employment, and continued until Holmes was terminated in 2009. See Baldwin v. Continental Cas. Co., 2004 WL 2254938 at *8 (N.D. Cal. Oct. 5, 2004) ("On summary judgment, the Court does not weigh the evidence presented and must believe the non-moving party.")
Based on the foregoing, the Court finds that genuine issues of material fact exist as to whether Defendant took sufficient remedial measures to either "stop harassment by the person who engaged in the harassment" or "persuade potential harassers to refrain from unlawful conduct." Nichols, 256 F.3d at 875. Based on the foregoing, Defendant's motion for summary judgment on Plaintiff's Title VII claim for racial discrimination under a hostile work environment theory is DENIED.
CONCLUSION
Based on the foregoing, Defendant's motion for summary judgment is granted in part and denied in part. Specifically, Defendant's motion for summary judgment is GRANTED as to Plaintiff's claim for retaliation under Title VII; Defendant's motion for summary judgment as to Plaintiff's claim for racial discrimination predicated upon a theory of hostile work environment is DENIED.
__________
Troy L. Nunley
United States District Judge