Summary
relying on Douglas and finding an eight-year age difference substantial, though ultimately ruling for defendant
Summary of this case from Hamilton v. RadioShack Corp.Opinion
No. C00-4688 BZ
October 8, 2002
FINAL JUDGMENT
The motion for summary judgment by defendant John E. Potter having been granted by order dated October 8, 2002, IT IS HEREBY ORDERED and ADJUDGED that plaintiff take nothing, that the action be dismissed on the merits and that defendant recover of the plaintiff his costs of action.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Henry Harris, who is fifty-eight years old, began working at the U.S. Postal Service in 1983 as a part-time flexible motor vehicle operator at the Oakland, California Processing and Distribution Center at a GS-5 level. Joint Statement of Undisputed Facts ("Joint Statement") No. 1. On December 15, 2000, plaintiff filed a complaint against the Postal Service for retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, and for age discrimination in violation of Title VII). Plaintiff claimed that the Postal Service failed to promote him and to detail (or temporarily assign) him to supervisory positions based on his age and in retaliation for his protected activity involving complaints to the EEO counselor and to Congressperson Barbara Lee. Defendant moved for summary judgment, arguing that as a matter of law, plaintiff has failed to exhaust his administrative remedies and has failed to establish his age discrimination and retaliation claims.
The parties have consented to the jurisdiction of a United States Magistrate Judge for all proceedings including entry of final judgment pursuant to 28 U.S.C. § 636 (c).
Title VII does not address discrimination based on age. I will, however, construe plaintiff's age discrimination claim liberally as a claim pursuant to the Age Discrimination in Employment Act of 1967, ("ADEA"), 29 U.S.C. § 633a.
The Federal Rules of Civil Procedure provide for summary judgment when "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). A genuine issue of material fact exists if a reasonable jury could return a verdict in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court does not make credibility determinations or weigh conflicting evidence, and views the evidence in the light most favorable to the nonmoving party. See T.W. Elec. Serv. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Prior to bringing a discrimination claim in the district court, a plaintiff must timely contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105 (a)(1); Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001). This statutory requirement operates as a statute of limitations and is subject to waiver, equitable tolling and estoppel. Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) (citing Zipes v. TransWorld Airlines, Inc., 455 U.S. 385, 393 (1982)); Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985). The forty-five day requirement runs from the date "when the facts that would support a charge of discrimination would have been apparent to a similarly situated person with a reasonably prudent regard for his rights." Boyd, 752 F.2d at 414.
Under the ADEA, a claimant may either avail himself of the administrative procedures provided in 29 C.F.R. § 1614.105(a)(1), or alternatively, may file a civil action in the district court pursuant to 29 C.F.R. § 1614.201 after providing thirty days notice to the agency of the intent to file the action. Because plaintiff has chosen the administrative procedures under 29 C.F.R. § 1614.105 (a)(1) for all his discrimination and retaliation claims, I focus on those procedures in deciding this motion.
On July 17, 2000, plaintiff sought counseling with an Equal Employment Opportunity ("EEO") representative, claiming that the Postal Service discriminated against him based on his age by not promoting him. Declaration of Judy Martinez ("Martinez Decl.") Ex. A. In 1999, plaintiff had applied for two EAS-16 supervisory positions in Transportation Operations, under vacancy announcement number 99-63. On February 3, 2000, the Postal Service Review Board had selected plaintiff, along with three other candidates, to participate in final interviews with Keith Inouye, the Manager of Transportation Networks. Declaration of Virginia Glover ("Glover Decl.") Ex. H. By letter dated March 13, 2000, Mr. Inouye informed plaintiff that he was not selected for the 99-63 positions. Id. Ex. I. Instead, Mr. Inouye promoted Barbara Thomas, a Distribution Clerk, and James Duffie, a Tractor-Trailer Operator. Id. Ex. L. Ms. Thomas is approximately fifty-three years old. Declaration of Barbara Thomas in Support of Def.'s Mot. For Summ. J. ¶ 3. Mr. Duffie will be fifty-four years old in 2002. Joint Statement No. 12.
Plaintiff's request for EEO counseling specifically identifies March 13, 2000 as the date on which the alleged discriminatory act occurred. The March 13, 2000 letter, however, does not provide the names of the employees selected over plaintiff. Plaintiff may not have known the identities of the successful candidates until at least March 22, 2000, when Mr. Inouye informed the Human Resources department of his selections for the 99-63 positions, and perhaps not until Ms. Thomas began working in her new position on April 8, 2000. See Glover Decl. Ex. L, Declaration of Virginia Glover in Support of Def.'s Amended Reply Brief Ex. A. Therefore, at least as of April 8, 2000, a person similarly situated to plaintiff would have been aware of facts that could support a discrimination charge, triggering the forty-five day requirement. Because April 8th is more than forty-five days before July 17th, plaintiff's request for counseling is not timely with respect to that allegedly discriminatory activity. Plaintiff has not argued, and I cannot find any evidence to support an argument, that waiver, equitable tolling or estoppel would make the July 17, 2000 request timely for the March 13th action.
In his July 17, 2000 request for counseling, however, plaintiff also complains that the Postal Service discriminated against him by promoting Mr. Busby and Mr. Jacobs, rather than plaintiff. Plaintiff describes Mr. Busby and Mr. Jacobs as similarly situated employees who were treated differently than plaintiff when they were promoted in June 2000. Mr. Inouye chose these two employees in June 2000 to fill vacancy announcement number 00-09. Plaintiff had applied for the three EAS-16 supervisory positions in vacancy announcement number 00-09. On April 12, 2000, the Review Board interviewed plaintiff, but did not choose him as one of the seven candidates it recommended for final interviews with Mr. Inouye. Glover Decl. Ex. P. Mr. Inouye selected Jerome Busby, a Mailhandler, Larry Jacobs, a Motor Vehicle Operator, and Frank Taylor, a Clerk, to fill the 00-09 positions. Id. Ex. S. The Postal Service notified all employees of Mr. Inouye's selections on June 26, 2000. Declaration of Dorothy Guillory ("Guillory Decl.") Ex. E at Ex. 18. Mr. Busby is fifty-three years old. Joint Statement No. 17. Mr. Jacobs is fifty years old. Id. No. 18. Mr. Taylor is fifty-six years old. Id. No. 19. For purposes of determining whether plaintiff exhausted his administrative remedies, I will construe plaintiff's July 17, 2000 request for counseling liberally to include the 00-09 positions. See e.g., Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990) (holding that EEO charges must be construed liberally).
Although defendant contends that plaintiff "should have known well before the June 26, 2000 [public] announcement of the successful candidates [for vacancy number 00-09] that he was not to be one of them," (Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. For Summ. J. at 3:5-7), the only supporting evidence defendant points to is the April 12, 2000 confidential notification to Mr. Inouye from the Review Board listing the candidates to be interviewed by Mr. Inouye for the 00-09 positions. Plaintiff was not among those candidates, even though he apparently interviewed with the Review Board on April 12, 2000. Although defendant could argue that plaintiff should have suspected as early as April 2000 that he was not selected by the Review Board, defendant provides no evidence that a person similarly situated to plaintiff would have had knowledge of facts to support a discrimination claim any earlier than forty-five days before plaintiff requested counseling on July 17, 2000. I find that plaintiff's request for counseling was timely only as to the 00-09 positions and that he has exhausted his administrative remedies for purposes of the allegedly discriminatory failure to promote on June 26, 2000.
This ruling, however, does not make timely any discrete, allegedly discriminatory, acts that fall outside the statutory time period.National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2072-73 (2002) ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act."). Morgan specifically states that each failure to promote constitutes a separate actionable act. Id. at 2073. Plaintiff's reliance on Williams v. Owens Illinois, Inc., 665 F.2d 918 (9th Cir. 1982) is misplaced as the Williams reasoning regarding the continuing violations doctrine in this context cannot survive Morgan.
Under the ADEA, "[a]ll personnel actions affecting employees . . . who are at least 40 years of age . . . in the United States Postal Service . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). To establish a claim for disparate treatment under the ADEA, a plaintiff must first show a prima facie case of age discrimination. To do this, a plaintiff may show that: 1) he was within the protected age group (over 40 years old); 2) he performed his job satisfactorily; 3) he suffered an adverse employment action; and 4) he was replaced by a substantially younger employee with equal or inferior qualifications. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000), cert. denied, 533 U.S. 950 (2001). Satisfaction of these elements raises a rebuttable presumption of discrimination. Alternately, the prima facie case may be based on actual evidence, direct or circumstantial, of discrimination. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1409 (9th Cir. 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). When a plaintiff seeks to establish a prima facie case through direct evidence, "very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1986). The degree of proof necessary to establish a prima facie case of age discrimination is "minimal and does not even need to rise to the level of a preponderance of the evidence."Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
The burdens of proof and persuasion are the same for Title VII and ADEA claims. Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994).
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Coleman, 232 F.3d at 1281. Once the defendant rebuts the inference of discrimination, the plaintiff must show that the articulated reason for the employment action is a pretext for discrimination. See id.
Defendant contests plaintiff's ability to meet the fourth element required to establish a rebuttable presumption of discrimination. The prima facie requirements exist to provide "`evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion. . . .'" O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996) (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). This inference "cannot be drawn from the replacement of one worker with another worker insignificantly younger."O'Connor, 517 U.S. at 312. O'Connor does not further define "insignificantly younger." Evidence that a fifty-four year old employee was discharged and replaced with an employee five years younger, however, has been found sufficient to meet the prima facie requirement.Douglas v. Anderson, 656 F.2d 528, 538 (9th Cir. 1981) (finding that if the chosen employees are only slightly younger than the plaintiff, it is less likely that an inference of discrimination can be drawn, but even the choice of an older employee will not necessarily foreclose satisfaction of a prima facie case.). In any case, the eight-year age difference between plaintiff and one of the successful candidates for the 00-09 positions could create an inference that Mr. Inouye based his employment decision on a discriminatory criterion. Given the low threshold for establishing a prima facie case, I find that plaintiff has provided enough proof to establish a rebuttable presumption of discrimination.
Although plaintiff also contends that he was denied details to supervisory positions due to his age, he fails to provide any evidence as to the employees who received those details. I cannot conclude that plaintiff has made a prima facie case based on the Postal Service's denial of details to plaintiff based on his age. Moreover, plaintiff's July 17, 2000 request for counseling does not specify dates for the details that he did not receive so I cannot determine whether his request for counseling timely as to those incidents in the first instance.
Defendant, in turn, has met its burden of articulating legitimate, nondiscriminatory reasons for its conduct by offering evidence that plaintiff's work history, rather than his age, was the determining factor in the promotion decision. Glover Decl. Ex. L. P. The Review Board interviewed plaintiff for the 00-09 vacancy and, based on the requirements in the job description and plaintiff's training, education and experience, did not recommend plaintiff to Mr. Inouye as a final candidate. Id. Ex. P. Age was not a stated factor on any job vacancy announcement and there is no evidence that the Review Board considered age. Glover Decl. Ex. G, M.
The burden then shifted to plaintiff to produce enough evidence to permit a reasonable factfinder to conclude either that the employer's reasons for denying promotions to plaintiff were false or that the true reason for the denials was a discriminatory one. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997). To meet this burden, plaintiff asks me to make a series of inferences to reach the conclusion that defendant's reasons were pretextual. I decline to make the inferential leaps sought by plaintiff.
Plaintiff notes that Mr. Inouye told plaintiff on three occasions, in 1998, 1999 and 2000, that plaintiff did not receive the promotions because plaintiff had only two or three years left before retirement. Declaration of Patricia Benton Ex. A at 122:4-18; 124:18-125:12; 159:12-25. Interestingly, however, Mr. Inouye promoted Frank Taylor, who was similarly close to retirement. See Declaration of Melda Laigo ¶ 3, Ex. A (Frank Taylor eligible for retirement in 2006). Then, plaintiff points out that Mr. Inouye talked to the Review Board with respect to a position different than the 00-09 position, and told the Review Board that he wanted the "best person" for the job. Guillory Decl. Ex. E at 47:2-48:8. Plaintiff claims that this, in combination with Mr. Inouye's statements to plaintiff regarding retirement, shows Mr. Inouye's age bias. I do not agree. Further, plaintiff offers two declarations from former and current Postal Service employees containing their suspicions about the politicized nature of the Review Board selection process. See e.g., Declaration of Ben Pillors in Support of Pl.'s Opp'n to Def.'s Mot. For Summ. J. ¶ 6; Declaration of James Perry in Support of Pl.'s Opp'n to Def.'s Mot. For Summ. J. ¶ 5. These declarations, however, do not provide any support for plaintiff's arguments that the reasons given by Mr. Inouye in denying promotions to plaintiff are false and do not show that Mr. Inouye denied promotions based on age. Even considering all of the combined evidence in the light most favorable to plaintiff, as I must do, I find that plaintiff failed to create a triable issue of fact as to pretext. Therefore, plaintiff cannot sustain a claim for disparate treatment under the ADEA.
Employment actions allegedly in violation of the ADEA can also be challenged under a disparate impact theory, which requires a plaintiff to prove that a facially neutral employment practice had a discriminatory impact on older workers. Coleman, 232 F.3d at 1291. An employer can defend by establishing that the practice was based on legitimate business reasons. Id. To prevail, a plaintiff would then have to show that other selection practices could serve the same business interest without having a discriminatory effect. Id.
Although not clear from his papers, plaintiff seems to be challenging an unwritten Postal Service practice of giving the selecting official undue influence over Review Boards. Plaintiff, however, has failed to create a triable issue of fact as to the existence of this policy or even if it existed, as to how this policy discriminatorily impacted older workers. In fact, all the workers who were promoted pursuant to the 99-63 and 00-09 job vacancies were over forty years old. Mr. Inouye testified that he did not have anything to do with the screening of applicants by the Review Board for the 00-09 positions. Guillory Decl. Ex. E at 82:15-18. Plaintiff has not raised a triable issue of fact with respect to disparate impact under the ADEA.
To make out a prima facie case of retaliation under Title VII, a plaintiff must show that: 1) he acted to protect her rights under Title VII; 2) the employer subsequently took an adverse employment action against him; and 3) there is a causal link between the two events. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994),cert. denied, 513 U.S. 1082 (1995). If plaintiff is successful, the burden of production shifts to defendant to advance a legitimate, nondiscriminatory reason for the adverse action. See id. Plaintiff must then show that defendant's reason was merely pretextual. See id. Failure to receive a promotion can be an adverse employment action. Passantino v. Johnson Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000). Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that an employee engaged in protected activity and the proximity in time between protected activity and the allegedly retaliatory employment decision. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
Plaintiff engaged in protected activity when he complained to Congressperson Barbara Lee regarding his perceptions of his treatment at the Postal Service in early 1998 and again in 2000. Glover Decl. Ex. E, F; Declaration of Henry Harris in Support of Pl.'s Opp'n to Def.'s Mot. For Summ. J. Ex. B. Although plaintiff does not specifically raise this issue, his requests for EEO counseling in 1996 and 2000 also constitute protected activity. Martinez Decl. Ex. A, B. Defendant's failure to select plaintiff for promotion pursuant to vacancy announcement 00-09 is an adverse employment action that would be reasonably likely to deter future protected activity.
Plaintiff, however, has not created a triable issue of fact as to a direct causal connection between any protected activity and the outcome of the 00-09 selection process. Nor has plaintiff created a triable issue of fact that the protected activity occurred before the adverse employment action such that the proximity in time would create an inference of causation. Plaintiff has presented no evidence that the Review Board, as the entity that selected candidates to interview with Mr. Inouye, knew of plaintiff's protected activity when it declined to recommend plaintiff for a final interview in April 2000. Mr. Inouye's testimony regarding his knowledge of plaintiff's EEO complaints prior to making selections for the 00-09 supervisory positions is inconclusive. Guillory Decl. Ex. E at 79:3-6; 81:4-5. Even if plaintiff complained to Congressperson Lee prior to April 12, 2000, the record does not reflect that the Review Board had knowledge of plaintiff's protected activity at any time prior to June 20, 2000 when Congressperson Lee wrote to the Postal Service in Washington, D.C. Viewing the evidence in the light most favorable to plaintiff reveals that plaintiff has not set forth sufficient evidence to establish a prima facie case of retaliation.
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED.