Opinion
No. C 01-2962 S
July 1, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
On June 28, 2002, the Court heard argument on the parties' summary judgment motions. Having carefully considered their arguments and the papers submitted, the Court hereby GRANTS defendant's motion and DENIES plaintiffs motion for the reasons set forth below.
BACKGROUND
On July 31, 2001, plaintiff Ida M. Foster filed this complaint against her former employer, the Department of Veterans Affairs. Plaintiff is a 57-year old African-American woman. Def's Ex. D at VA076 (Pl.'s Application for Early Retirement). She was employed with the Department of Veterans Affairs{'VA") in the Fee Services Section from October 6, 1990 until January 3, 1997. 14. While an employee with the VA, plaintiff filed as many as ten Equal Employment Opportunity Commission ("EEOC") complaints alleging that her superiors were discriminating against her and wrongfully denying her promotions. Foster's Dep., Def.'s Supp. Ex. C at 25:2 — 26:3. According to plaintiff, each of these claims has ended in a determination against her. EL at 29:6-9.
Plaintiff was 52 years old at the time of her retirement.
During December 1996 and January 1997, plaintiff applied for and accepted a $25,000 early retirement offer from the VA. Def.'s Mot. for Summ. J. at 2:21. In considering whether to accept the retirement package, plaintiff sought advice from Lola Griffin, Employee Relations Specialist, about the projected amount of her retirement benefits. Def's Oppo. at 2: 23-24; Pl.'s Mot. for Summ. J. at 2: ¶ 3. Plaintiff had previously interacted with Griffin in 1991-92, when Griffin was the Complaints Manager for the VA. PI.'s Mot. for Summ. J. at 2: ¶ 3. Plaintiff states that in 1992, Griffin mismanaged one of the EEOC claims plaintiff had filed and directed plaintiff and two other women "in the wrong direction" in order to eliminate their "class complaint." Id.
During plaintiffs consultation with Griffin, plaintiff requested an estimate of her retirement benefits and asked Griffin to explain the effect of plaintiffs divorce on those benefits. PI.'s Obj. at 3. Plaintiff contends that Griffin "assured" her that her ex-spouse would only receive $74 per month of her retirement benefits. Id. In contrast, Griffin states in her affidavit that she based the retirement benefits calculation on information in plaintiffs personnel file, and that she had no legal expertise to interpret the court orders and made no attempt to do so. Def's Mot. for Summ. J. at 4:1-7. Griffin states that she told plaintiff to contact an attorney to ascertain the effect of the court orders on her retirement benefits. Id. Plaintiff did not seek the advice of an attorney and relied on Griffin's estimate of her benefits in making her decision to retire. Foster Dep., Def.'s Ex. A at 92:20-93:20.
The retirement benefit analysis report which Griffin provided to plaintiff is prominently marked "estimate." Def.'s Ex. B at VA062. The cover sheet states, "THE CALCULATIONS PROVIDED YOU ARE ONLY ESIIMATEI) AMOUNTS AND ARE NOT INTENDED TO REPRESENT ACTUAL AMOUNTS. THE OFFICE OF PERSONNEL MANAGEMENT HAS SOLE AUTHORITY AND RESPONSIBILITY FOR ADJUDICATING RETIREMENT CLAIMS." Id. (emphasis and formatting in original).
In July 2001, plaintiff filed this employment discrimination lawsuit. Plaintiffs Amended Employment Discrimination Complaint ("Compl."), filed on December 10, 2001, alleges discrimination based on plaintiffs age, sex, and race under Title VII and several related causes of action. Compl. at 2-3. Plaintiff claims that Griffin provided her with incorrect information about her retirement benefits in order to encourage her to retire early. Id. at 3. Plaintiff believes this stemmed from discrimination against her based on her age, sex, and race — discrimination which created a "working environment [that] was hostile and discriminatory." Pl.'s Obj. at 4 Specifically, Plaintiff claims that Griffin wrongly construed the terms of plaintiff s divorce decree, and wrongly informed plaintiff that her ex-spouse would not be entitled to a significant portion of her retirement benefits. EL at 3.
Plaintiff also claims these actions were taken in retaliation against her for frequently filing EEOC complaints. Id. She states, "The real reason the Veterans Affairs management wanted me to retire was to stop me from filing the numerous complaints against the agency." Pl.'s Mot. for Summ. J. at 2: ¶ 6. Plaintiff believes that Griffin wrongly failed to refer her to the Office of Personnel Management ("OPM") Legal Department, which could have correctly interpreted her divorce decree. Pl.'s Obj. at 3. Defendant argues that the role of the VA was only to provide an estimate of the benefits plaintiff would receive, based upon the information in plaintiffs personnel file. DeL's Mot. for Summ. J. at 6: 3-5.
Finally, although plaintiff does not explicitly bring a cause of action for intentional infliction of emotional distress, the facts she alleges and the evidence she submits in connection with the present motion appear to assert these claims.
Plaintiff and defendant have each moved for summary judgment. Both motions are presently before this Court.
LEGAL STANDARD
Summary judgment is proper "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. See id. 325.
The burden then shifts to the non-moving party to "designate "specific facts showing that there is a genuine issue for trial."' EL at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence.., will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. EL at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when she] is ruling on a motion for summary judgment." Id.
DISCUSSION
I. Plaintiffs Employment Discrimination Claims
The burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), governs plaintiffs age, race, and sex discrimination claims. That process requires the plaintiff first to establish a prima facie case of discrimination or retaliation. See Wahis v. J.R. Simplot, 26 F.3d 885, 889-91 (9th Cir. 1994); Tarn v. County of Los Angeles, 123 F.3d 1259, 1264 n. 3 (9th Cir. 1997). Once a plaintiff has made out a prima facie case, the burden then shifts to the defendant to offer a legitimate, nondiscriminatory reason for its adverse employment action. Once the defendant articulates such a reason, the plaintiff must then offer evidence to show that the defendant's proffered reason is a pretext for discrimination or retaliation for protected activity. Lec Wahis, 26 F.3d at 891; Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995).
To make out a prima facie case of employment discrimination, plaintiff must show that (1) she belongs to a protected class; (2) she was subjected to an adverse employment action by her employer; and (3) others who were similarly situated and not within her protected class were treated more favorably than she was. McDonnell Douglas, 411 U.S. at 802. It is undisputed that plaintiff belongs to a protected class; at the time of her discharge she was a 52-year old African American woman. The Court therefore turns to prong (2) of the McDonnell Douglas test. Plaintiff asserts that she was given faulty advice leading her to retire when she would not otherwise have done so. PI.'s Obj. at 2. Defendant contends that the provision of an estimate of retirement benefits, faulty or otherwise, does not constitute an "adverse employment action." DeL's Mot. for Summ. J. at 7:1-10. The Ninth Circuit has recently held that an action "is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity." Moore v. California Institute of Technology Jet Propulsion Laboratory, 275 F.3d 838, 847 (2002), citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). This definition includes actions "materially affect[ing] compensation, terms, conditions, or privileges" of employment. 42 U.S.C. § 2000e-2 (a)(1); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1109 (9th Cir. 2000); setniso Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 744 (1998) ("tangible employment action[s]" include "a significant change in employment status, such as discharge, demotion, or undesirable reassignment"). Here, plaintiff admits that defendant did not force her to retire. Foster Dep., Def's Ex. A. at 115: 2-5. She stated, "Nobody forced me to retire, but they wanted me to get retired. They sort of, like, persuaded." Id. Plaintiff attended a group meeting with fifty to one hundred other VA employees who were considering retiring. A few months later, she sought out an individual counseling session with Griffin leading to her retirement. EL at 115: 10-20. Since plaintiff acknowledges that she was responsible for the choice to retire, she has failed to show that defendant engaged in any adverse employment action. Additionally, plaintiff has failed to show that other employees similarly situated but not within the protected class were treated more favorably than
plaintiff Plaintiff acknowledged that she did not know of any non-African Americans, men, younger people, or people without a history of EEOC complaints who spoke with Griffin about their employment benefits. Id. at 112:4-114:19.
Plaintiff also alleges three alternative theories of discrimination: (1) that plaintiff was constructively discharged when defendant provided incorrect information about her retirement benefits; (2) that the VA engaged in a pattern and practice of discrimination leading to her discharge; and (3) that plaintiffs workplace was a hostile environment.
A. Plaintiffs Constructive Discharge Claim
"[C]onstructive discharge occurs when, lookihg at the totality of the circumstances, a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions." Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989) (internal quotations and citations omitted). "The determination of whether conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a question of fact." Id.
Plaintiff urges that defendant gave her faulty advice leading to her decision to retire, and that defendant did so out of a desire to remove her from the agency. PI.'s Mot. for Summ. J. at 2: ¶¶ 3, 6. Defendant argues that the present case does not involve working conditions, and that receiving an incorrect estimate of retirement benefits does not constitute intolerable conduct that would force a reasonable person to quit. Def's Mot. for Summ. J. at 7:22-8:2. In considering defendant's evidence, the Court considers the evidence in the light most favorable to the plaintiff For these purposes, the Court assumes that plaintiff received deliberately faulty advice. Such advice would not create "intolerable and discriminatory" conditions such that a reasonable person would feel compelled to resign. Plaintiff has not shown that this advice was linked to her age, race, or gender. Plaintiff has failed to show that she was "forced" to quit her position.
B. Plaintiffs Claim for Pattern and Practice Discrimination
Although plaintiff does not explicitly allege a pattern and practice claim, she submits the affidavit of Ariel A. Ittai, another VA employee. Ittai states that Barbara Neff, the Chief of the Medical Administration Service, "drove her assistant (Dorrie) to retirement" as well as other assistants. PI.'s Ex. 1 at 3-4. Ittai makes myriad allegations of poor management, criticisms of VA programs and employees, and allegations that those found guilty of EEOC violations do not receive significant punishment. Id. at 5-11. Defendant argues Ittai's affidavit is inadmissable as evidence since it is irrelevant to petitioner's claim and does not mention petitioner or this case directly. DeL's Oppo. at 5: 23-25. Plaintiff also submits the EEOC decision in the case of Charlene Williams, a 55-year old African American woman who filed an EEOC complaint against the VA alleging discrimination in promotion. The EEOC found Williams had not suffered discrimination. PI.'s Ex. 4. Finally, plaintiff submits the transcript of testimony of fellow VA employee Carmelita Bulaon. Bulaon describes how she was promoted more quickly than plaintiff, how Bulaon does not believe this was based on discrimination, and how Bulaon feels she has been discriminated against herself Pl.'s Ex. 3. Petitioner does not explain how she feels this testimony relates to her discrimination claim. Defendant argues Bulaon's testimony is inadmissable because it has not been authenticated and it is irrelevant to the present case. Def's Oppo. at 6: 9-13.
In a pattern and practice claim, the plaintiff alleges that defendant has intentionally engaged in the systematic disparate treatment of a protected group. In essence, it is an allegation that discrimination is the standard operating procedure. See, e.g., Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977). Such a claim normally involves a statistical presentation of evidence that attempts to demonstrate that all employees or applicants of a particular protected group tend to be treated unequally and less favorably by the employer's practices. Id. at 307-08. Plaintiff has not provided sufficient evidence to indicate discriminatory pattern and practice in the VA. Ittai's affidavit is irrelevant to petitioner's claim. The Williams decision is an isolated incident that vindicates the VA. Bulaon's testimony does not support petitioner's claims. None of the evidence helps establish a trend of discrimination within the VA. The Court need not address defendant's claims that each piece of evidence is inadmissible since the Court here finds that plaintiffs evidence, if it were admissible, is insufficient on the merits.
C. Plaintiff's Hostile Work Environment Claim
Plaintiff alleges that conditions in the VA were so intolerable as to create a hostile environment. Pl. Obj. at 4. Plaintiff states that she was "continually harassed" by her supervisors because she filed numerous EEOC complaints, and this created an environment in which she was forced to retire. EL The Supreme Court has held that an abusive work environment may, in some instances, amount to a condition of employment giving rise to a violation of Title VII. Mentor Say. Bank v. Vinson, 477 U.S. 57, 66 (1986). The EEOC guidelines specifically state that ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct: (I) has the purpose or effect of creating an intimidating, hostile, or offensive working environment; (2) has the purpose or effect of unreasonably interfering with an individual work performance; or (3) otherwise adversely affects an individual's employment opportunities. 29 C.F.R. § 1606.8 (b). Discriminatory practices must be pervasive before an employee has a Title VII claim under a hostile environment theory. Garcia v. Spun Steak Co., 998 F.2d 1480, 1483 (9th Cir. 1999). There is no evidence to support plaintiffs claim that the "harassment" by her supervisors had the purpose or effect of creating a hostile environment. Plaintiff seems to suggest that a hostile work environment arose out of the same conditions on which she bases her other claims; i.e., that she was given faulty retirement advice and this, in turn, forced her to retire. Even assuming this to be true, plaintiff has not shown that the advice was linked to her race, age, or gender. Additionally, she has failed to document changes in her work performance or to demonstrate a negative impact on her employment opportunities. As a result, a reasonable jury could not find plaintiffs evidence sufficient to establish a hostile environment claim.
In sum, plaintiff has failed to make out a prima facie case of discrimination. Plaintiff has not introduced evidence that she was subject to any adverse employment action, nor brought forth proof of constructive discharge, a pattern and practice of discrimination, or a hostile environment.
II. Plaintiffs Retahation Claims
Plaintiff alleges that defendant's actions in providing faulty retirement counseling constituted retaliation for plaintiffs past EEOC claims. PI.'s Mot. for Summ. J. at 4. Defendant argues that the provision of an estimate of retirement benefits when an employee applies for retirement is not a "tangible employment action" within the meeting of Title VII. DeL's Mot. for Summ. J. at 7: 6-8. To establish a prima facie case of retaliation under Title VII, the plaintiff must show that (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) the employer's action is causally linked to the protected activity. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.l988).
Plaintiff fails to make a prima facie case of retaliation. Protected activities under Title VII include: (1) opposing employment practices prohibited under Title VII, and (2) filing a charge, testifying, assisting, or participating in any way in an investigation, proceeding or hearing under Title VII. See 42 U.S.C. § 2000e-3 (a). Filing an EEOC charge is a protected activity. However, as discussed in the previous discussion of this order, plaintiff ha§ failed to show that defendant subjected her to an adverse employment action. Moreover, plaintiff has failed to show a causal link between an action by the VA and her EEOC complaints.
III. Plaintiffs Claim for Intentional Infliction of Emotional Distress
Plaintiff also submits documents which appear intended to establish that defendant has inflicted emotional distress on plaintiff Generally, such evidence goes towards calculating damages, a task which is irrelevant since plaintiff has failed to establish liability. Assuming plaintiff intends to allege a separate tort claim for intentional infliction of emotional distress, the Court here addresses that claim. Intentional infliction ofemotional distress requires: (1) outrageous conduct by the defendant; (2) intent to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Sce Agarwal v. Johnson, 25 Cal.3d 932, 946 (Cal. 1979) (citation and internal quotation marks omitted).
Plaintiff submits medical records from Sutter Solano Medical Center which primarily address some type of soft tissue injury. Pl.'s Ex. 4. Additionally, plaintiff submits a letter from a Kaiser Permanente physician stating, "It is my opinion that Ms. Foster's perception of the treatment she has received from her employer has precipitated emotional difficulties which can interfere with her ability to function in a fully satisfactory manner on the job, and which have precipitated considerable emotional distress and personal suffering." Id. (emphasis added). Plaintiff also submits "Patient Progress Reports" from Kaiser Permanente further detailing plaintiffs emotional difficulties. The medical records submitted by plaintiff might help establish emotional suffering, although probably not in sufficient degree to qualify as "severe emotional suffering." Plaintiffs evidence, however, fails to show several of the other elements required for intentional infliction of emotional distress. Plaintiff fails to show that defendant's conduct in dispensing retirement advice was sufficiently outrageous to show emotional distress. Additionally, she has made no showing of intent to cause emotional distress or reckless regard of the probability of so doing. Finally, plaintiff has not demonstrated but-for or legal causation. Accordingly, the Court finds that no reasonable jury could consider the employment actions taken by defendant to amount to intentional infliction of emotional distress.
CONCLUSION
In this case, plaintiff has failed to put forth any evidence showing that her retirement was the result of discrimination by defendant, nor that plaintiff was subject to retaliation or intentional infliction of emotional distress. Plaintiffs motion for summary judgment is DENIED and defendant's motion for summary judgment is GRANTED. [docket #15, 19]