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Lewis v. Peakes

United States District Court, E.D. California
Dec 3, 2010
CASE NO. CV F 09-0318 LJO DLB (E.D. Cal. Dec. 3, 2010)

Opinion

CASE NO. CV F 09-0318 LJO DLB.

December 3, 2010


ORDER ON MOTION FOR SUMMARY JUDGMENT


By notice filed on October 13, 2010, Defendant The Secretary of the Veterans Affairs ("VA") seeks summary judgment or in the alternative summary adjudication, pursuant to Fed.R.Civ.P. 56 on plaintiff's complaint. Plaintiff Eric Lewis filed an opposition to the motion on November 17, 2010. Defendant filed a reply on November 23, 2010. Pursuant to Local Rule 230(g), this matter was submitted on the pleadings without oral argument and the hearing was vacated. Having considered the moving, the opposition and the reply papers, as well as the Court's file, the Court issues the following order.

The parties have filed numerous objections to the evidence submitted by the opposing side. The court has not relied on any of the disputed evidence to grant or to deny summary judgment. Where the Court has denied summary judgment as to the claims, the Court found triable issues exist regarding the employment decisions. The Court has granted summary judgment as to the statute of limitations because plaintiff failed to meet his burden under either claim, as explained in the body of the order. To the extent that the court may have considered some of the disputed evidence in finding that triable issues exist regarding the claims, the objections are OVERRULED. Further, the court is not obligated to consider matters not specifically brought to its attention. Thus, it is immaterial that helpful evidence may be located somewhere in the record. The motion and opposition must designate and reference specific triable facts. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).

FACTUAL BACKGROUND

Plaintiff alleges he was employed as a Purchase and Hire Contractor Electrician in Facilities Management Service (FMS) at the VA Medical Center in Fresno, California from July 2, 2007 until terminated on January 29, 2008.

Plaintiff alleges one cause of action for Violation of Title VII of the Civil Rights Act for race discrimination (African American) and retaliation. Plaintiff alleges that he was subjected to disparate treatment and hostile environment harassment based on race (Black) and retaliation.

A. Defendant's Factual Position

Defendant contends that Plaintiff was hired as a temporary appointment electrician, and his appointment was limited to one year or less. The appointment was extended for additional year with the appointment ending on September 20, 2008. Plaintiff's foreman was Dennis Myres, who oversaw day-to-day performance of the construction workers, including plaintiff, and Mr. Myres reported to Jean Russell ("Ms. Russell"), who was the supervisor of the construction activities at the VA. Plaintiff signed an Employee's Statement of Understanding Regarding Temporary Appointment acknowledging that as a temporary employee he was "subject to termination at any time without use of adverse action procedures." (Doc. 29-2, Separate Statement, Facts 1-4.)

Defendant contends that plaintiff was terminated in January 2008, in advance of the expiration of his temporary employment for poor performance. Electrical work in hospitals is different from residential construction work and requires that electrical receptacles be placed with the grounding upward. Plaintiff placed the electrical receptacles at the VA with the grounding downwards, which was contrary to the directions of his foreman, Mr. Myres. Plaintiff and Mr. Myres disagreed whether plaintiff was performing according to the blueprints. Defendant contends in November 2007, Mr. Myres recommended to Ms. Russell that plaintiff be removed based upon this and other unsatisfactory performance. In January 2008, two additional electricians were hired to meet the workload. Other electricians reported that plaintiff's work demonstrated poor workmanship and noncompliance with the blueprints. On January 29, 2008, Mr. Myres removed plaintiff from his position. (Doc. 29-2, Separate Statement, Facts 5-11.)

The day prior to plaintiff's removal, plaintiff had contacted an EEO counselor and filed a complaint of harassment. Defendant contends Mr. Myres was unaware that plaintiff had filed a charge of harassment when Mr. Myres removed plaintiff. Plaintiff acknowledges that Mr. Myres did not make any racially derogatory comments to plaintiff. (Doc. 29-2, Separate Statement, Facts 12-18.)

B. Plaintiff's Factual Position

Plaintiff contends that he is African-American with 22 years of experience as a journeyman electrician. He was the only African American employee on the project and after his termination, he was replaced by two Caucasian electricians who had less experience and training than plaintiff.

Plaintiff agrees that his supervisor was Mr. Myres and that Ms. Russell was Mr. Myres' supervisor. Both are Caucasian. When plaintiff was hired, Ms. Russell told him that his appointment may last as long as seven years, and would typically last the duration of the project.

During his employment at the VA, Plaintiff disagreed only with the instructions from Mr. Myres that he thought were unsafe, were not code compliant, or would pose a risk of injury. Plaintiff contends Mr. Myres tried to make Plaintiff perform faulty work on a daily basis or use hazardous and unsafe procedures. Plaintiff contends that the language Mr. Myres used against plaintiff was different than the language he used toward the Caucasian employees. Mr. Myres yelled and cussed at Plaintiff and also used profanity towards him. As a result, Plaintiff was harassed in front of the co-workers on a daily basis.

In January 2008, Mr. Myres instructed two newly hired electricians to "watch over" Plaintiff's daily activities. Both of the electricians had vastly inferior experience and expertise and were not qualified to oversee plaintiff's work. They were instructed to oversee only plaintiff's work. Plaintiff was never advised by anyone that his work performance was unsatisfactory, and in fact, his electrical work was inspected weekly and passed inspection every week. During his employment he never received any performance reviews, reprimands, progressive discipline or counseling regarding his work performance.

Prior to being terminated, Plaintiff went to the EEO manager and made complaints about discriminatory treatment by his supervisors, particularly Mr. Myres; that the EEO Manager informed his supervisors of these complaints, and that several days later, Plaintiff was terminated. Plaintiff contends that he filed a Equal Employment Opportunity complaint against his supervisor, Mr. Myres in January 2008 and was terminated a week later.

ANALYSIS AND DISCUSSION

A. Summary Judgment/Adjudication Standards

F.R.Civ.P. 56(b) permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." Summary judgment/adjudication is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment/adjudication as a matter of law. F.R.Civ.P. 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment/adjudication is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985). On summary judgment/adjudication, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970).

To carry its burden of production on summary judgment/adjudication, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the 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.")

B. Racial Discrimination and Retaliation under Title VII

Defendant argues that plaintiff cannot meet his prima facie showing of discrimination or retaliation. Defendant argues that plaintiff cannot demonstrate similarly situated employees were treated more favorably. Plaintiff fails to meet his prima facie case of discrimination because he cannot identify any similarly situated electricians who also disobeyed the instructions of Mr. Myres who were not also terminated. He offers no showing that other electricians refused to follow the directions of the foreman, such as putting the grounds down when Mr. Myres instructed that the receptacles be placed with the ground up, that were treated more favorably. (Doc. 29-1, Moving Papers p. 6-7.)

1. McDonnell Douglas Shifting Burden Framework

Title VII makes it an "unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race . . ." 42 U.S.C. § 2000e et seq. A plaintiff may show violation of Title VII by proving disparate treatment or disparate impact, or by proving the existence of a hostile work environment. Sischo-Nownejah v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991). Here, plaintiff alleges he was intentionally discriminated on the basis of race.

A plaintiff may establish a prima facie case of discrimination by introducing evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094 (1981); Sischo-Nownejah, 934 F.2d at 1109. The evidence may be either direct or circumstantial, and the amount that must be produced to create a prima facie case is "very little." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Sischo-Nownejah, 934 F.2d at 1110-1111. A plaintiffs' Title VII claim is analyzed through 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 analysis, plaintiffs must first establish a prima facie case of employment discrimination. Hawn v. Executive Jet Management, Inc., 615 F.3d 1151 (9th Cir. 2010). If plaintiff establishes a prima facie case, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Id. If defendant meets this burden, plaintiffs must then raise a triable issue of material fact as to whether the defendant's proffered reasons for their terminations are mere pretext for unlawful discrimination. Id. The employer's proof of legitimate, nondiscriminatory reasons for its action dispels the inference of discrimination raised by plaintiff's prima facie case. The McDonnell Douglas framework "disappears," leaving plaintiff with the ultimate burden of persuading the trier of fact that defendant intentionally discriminated against plaintiff. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000).

2. Burden of Proof on Prima Facie Case

Plaintiff may establish a prima facie case based on circumstantial evidence by showing: (1) that he is a member of a protected class; (2) that he was qualified for his position and performing the job satisfactorily; (3) that he experienced adverse employment actions; and (4) that "similarly situated individuals outside [his] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010); see also Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).

(A) Similarly Situated Employees

VA argues that plaintiff cannot meet his burden of proof on the fourth element of his prima facie case. Defendant argues plaintiff cannot show that similarly situated employees were treated more favorably. Defendant argues that plaintiff fails to meet his burden because he cannot identify any similarly situated electricians who also disobeyed the instructions of Mr. Myres who were not terminated. (Doc. 29, P A p. 6.) Defendant argues that plaintiff engaged in insubordination by failing to follow the directions of his foreman, Mr. Myres, and challenged the foreman's authority. Defendant argues that plaintiff is not similarly situated to anyone because of his insubordination.

Plaintiff argues defendant's focus on performance deficiencies is irrelevant. Plaintiff argues that this is an improper "similarity" because Mr. Myres did not subject other electricians to the same instruction to which plaintiff was subjected and to which plaintiff objected. Plaintiff argues that Mr. Myres subjected only plaintiff, an African American, to instructions that were unsafe and not code compliant. Plaintiff further argues he will not be similarly situated to anyone because he was the only electrician on the job until three weeks before his termination. Plaintiff argues that the proper determination is that there were inferior-qualified electricians who were hired to replace plaintiff.

Individuals are similarly situated when they have similar jobs and display similar conduct. Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). The employees' roles need not be identical; similarly situated means "similar in all material respects." Hawn v. Executive Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010), quoting Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009); Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) ("In order to show that the "employees" allegedly receiving more favorable treatment are similarly situated (the fourth element necessary to establish a prima facie case under Title VII), the individuals seeking relief must demonstrate, at the least, that they are similarly situated to those employees in all material respects). A showing that employee's are "similarly situated" is but one way to show an inference of discrimination. "A plaintiff may do so through comparison to similarly situated individuals, or any other circumstances surrounding the adverse employment action that give rise to an inference of discrimination." Hawn, 615 F.3d at 1156 (emphasis added). "[W]hether two employees are similarly situated is ordinarily a question of fact." Beck v. United Food Commercial Workers Union Local 99, 506 F.3d 874, 885 n. 5 (9th Cir. 2007).

Plaintiff has raised an issue of fact as to whether he was "similarly situated." He presents evidence that two additional electricians were working with him during the last few weeks that the was employed by the VA. They were performing the same work. The other electricians were Caucasian. He presents evidence that he alone was subjected to instructions from the foreman regarding the placing the electrical receptacles "ground up." No other electrician was subjected to the same instructions. In fact, plaintiff alone was the electrician during most of the relevant period.

VA argues that plaintiff has admitted insubordination because he admits he placed the electrical receptacles down when he was told to place them up. Therefore, VA argues plaintiff is not similarly situated to other employees.

The Court finds, however, that the defendant's argument that plaintiff failed to follow the foreman's directions, itself, creates an issue of fact. Plaintiff does not admit he acted with "insubordination." He admits that Mr. Myres told him to do the wrong work to which he objected. He disputes that the instruction was correct procedure, and therefore, whether it was insubordination to place the electrical receptacles with the ground down. Whether the receptacles should be placed up creates an issue of fact because this was the purported reason to terminate plaintiff. Plaintiff simply disputes the foreman's instruction. The Court finds that whether or not he followed the foreman's instructions does not remove him from being "similarly situated" to other employees.

Moreover, plaintiff has presented "other circumstances surrounding the adverse employment action that give rise to an inference of discrimination." Hawn, 615 F.3d at 1156. Defendant had a continuing need for electricians. Additional electricians were hired, each of which had arguably significantly inferior qualifications to plaintiff. These additional electricians were both Caucasian and ultimately replaced plaintiff on the job when he was terminated. The VA continued to need electrical workers after plaintiff was terminated which it fulfilled by employing two Caucasian workers with much less experience than plaintiff possessed. See Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072 (9th Cir. 1986) (plaintiff may show part of prima facie case by showing his employer sought a replacement with similar qualifications, thus demonstrating a continued need for the same services and skills.) Given these facts, plaintiff has raised an issue of fact as to whether there are other circumstances that give rise to an inference of discrimination.

Cases cited by defendant are distinguishable. Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003), the court considered that employees were not similarly situated where the type and severity of an alleged offense was dissimilar. In Vasquez, the "similarly situated" analysis involved the burden in the McDonnell Douglas test for "pretext," and not "similarly situated" as part of the prima facie case. Vasquez, 349 F.3d at 641 ("Vasquez's claim fails because, even assuming (which we do not decide) that he can make out a prima facie case under the McDonnell Douglas framework, he cannot establish that the County's articulated non-discriminatory reason for his transfer is pretextual.") The Vasquez court evaluated the disciplinary record on the burden-shifting of "pretext." Indeed, "[t]he concept of "similarly situated" employees may be relevant to both the first and third steps of the McDonnell Douglas framework." Hawn, 615 F.3d at 1158. Whether similarly situated is considered in the context of both plaintiffs' prima facie case or the pretext stage is significant because a plaintiff's burden is much less at the prima facie stage than at the pretext stage. Hawn, 615 F.3d at 1158 ("The difference between the first and third steps of the McDonnell Douglas framework is not without some consequence. Among other things, a plaintiff's burden is much less at the prima facie stage than at the pretext stage.") "The showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimis." Sutera v. Schering Corp., 73 F3d 13, 16 (2nd Cir. 1995). Thus, plaintiff raises an issue of fact as to whether any other circumstances surrounding the adverse employment action gives rise to an inference of discrimination.

In another case cited by the VA, Leong v. Potter, 347 F.3d 1117 (9th Cir. 2003), the Ninth Circuit upheld a finding that a Post Office employee was not similarly situated to his fellow employees. Leong was subject to a "Last Chance Agreement" negotiated as an alternative to termination after earlier, serious violations of Postal Service rules and when he violated the "Last Chance Agreement," he was terminated. To present his prima facie case, Leong introduced evidence of other employees who were penalized but not fired for the use of equally foul language. The Court found that these employees were not similarly situated, as "they were not subject to such agreements." Id. at 1124. "Although these employees did commit serious violations, it appears none amassed a record of misconduct comparable to Leong's." Id. This case is distinguishable because it is disputed whether plaintiff engaged in insubordination and whether the instructions from the foreman were proper electrical procedure.

(B) Same Actor

VA further argues plaintiff cannot establish a prima facie case because the "same actor" inference is applicable to this case. (Doc. 29, Moving papers p. 7.) VA argues that both Ms. Russell and Mr. Myres both were involved in the decision to hire plaintiff in July 2007 and extend his appoint in October 2007. His removal three months later was by the same actors.

Under Title VII, where the same person both hired and fired plaintiff, and both actions occur within a short period of time, a "strong inference" arises that there was no discriminatory motive. Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270 (9th Cir. 1996). The "same actor" inference also applies to cases in which plaintiff was not actually fired but merely demoted or offered less favorable job assignments. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096-1097 (9th Cir. 2005). The "same actor" inference, however, may be weakened by other evidence and is "insufficient to warrant summary judgment for the defendant if the employee has otherwise raised a genuine issue of material fact." Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573-574 (6th Cir. 2003) (en banc).

Plaintiff argues that the same actor inference is inapplicable because he presents evidence that Mr. Myres developed a bias towards plaintiff between the time his contract was extended in October 2007 and the time he was terminated on January 29, 2008. (Doc. 33, Opposition p. 15.) The same actor interference may be overcome where plaintiff offers evidence suggesting that the foreman "developed a bias against plaintiff" during the period. Coghlan, 413 F.3d at 1097.

Here, plaintiff introduces evidence that Mr. Myres may have developed a bias against plaintiff. Plaintiff presents evidence that the felt "harassed" by Mr. Myres such that he filed an EEO complaint with Ms. Hill-Wegley a week before he was terminated. A week after the complaint was filed, plaintiff was terminated. The same actor inference does not warrant summary judgment where, as here, plaintiff has raised factual issues of new bias by the actor who recommended plaintiff's termination. Compare Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270-71 (9th Cir. 1996)) (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "did not produce any evidence showing [her employer's] proffered reasons were pretexts for an improper discriminatory motive"); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1287 (9th Cir. 2000) (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "ha[d] not cast doubt on the sincerity of [defendant's] explanation"), cert. denied, 533 U.S. 950 (2001). Accordingly, plaintiff has rebutted the same actor inference and therefore, summary judgment is denied for the race discrimination and retaliation claims.

(C) Causal Connection between Plaintiff's EEO Activity and his Termination

Plaintiff claims he was retaliated against for filing an EEO complaint against Mr. Myres.

Retaliation claims brought pursuant to Title VII are governed by a the McDonnell Douglas burden-shifting framework. Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir. 2007); Miller v. Fairchild Industries, Inc., 797 F.2d 727, 730-731 (9th Cir. 1986) (order and allocation of proof for retaliation claims follow familiar scheme announced in McDonnell Douglas). To make out a retaliation prima facie case, a plaintiff must demonstrate that:

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).

1. He/she engaged in protected activity;
2. He/she suffered an adverse employment action; and
3. There was a causal link between his/her activity and the employment decision.
Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065-1066 (9th Cir. 2003).

VA argues that Plaintiff cannot meet his prima facie burden because no causal link exists between his EEO activity and his removal. Defendant argues that the decision to terminate plaintiff was made before his EEO activity. Defendant argues that Mr. Myres was concerned about Plaintiff's unsatisfactory work performance since at least November 2008 when Mr. Myres recommended his removal. Mr. Myres was unaware of his EEO complaint. The decision was made in mid-January before Plaintiff saw the EEO counselor on or about January 28, 2008. Since Mr. Myres did not know of the EEO retaliation counseling, there is no causal connection between plaintiff's firing and his EEO activity.

Plaintiff must demonstrate a causal link between the employee's protected activity and the employer's adverse action. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). "To establish causation, the plaintiff must show by a preponderance of the evidence that engaging in the protected activity was one of the reasons for the adverse employment decision and that but for such activity the decision would not have been made." Kraus v. Presidio Trust Facilities Division/Residential Management Branch, 704 F.Supp.2d 859, 863 (N.D. Cal. 2010) (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002)). "The causal link may be established by an inference derived from circumstantial evidence, `such as the employer's knowledge that the [plaintiff] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'" Jordan v. Clark, 847 F.2d at 1376 (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)), cert. denied, 488 U.S. 1006 (1989).

The timing of an adverse employment action can provide strong evidence of retaliation. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1069 (9th Cir. 2003); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (causation was found from proximity alone where the adverse actions occurred within three months after protected activity, two weeks after charge investigated, and less than two months after investigation ended); Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989) (causation established when terminations occurred forty-two and fifty-nine days after EEOC hearings), cert. denied, 494 U.S. 1056 (1990).

Plaintiff argues that his termination was sufficiently proximate to his EEO complaint such that an inference arises. Indeed, plaintiff filed the EEO complaint one week prior to his termination. The proximity to the filing of the charge is a strong inference that the adverse action occurred because of the EEO complaint.

VA argues that the inference is rebutted because there is no evidence that Mr. Myres knew plaintiff had filed the charge and that the decision to terminate plaintiff was made a month before he filed the charge. The employer's knowledge that the employee had engaged in a protected activity is essential to the required causal link. Rivera v. National R.R. Passenger Corp., 331 F.3d 1074 (9th Cir. 2003).

Plaintiff argues that Mr. Myres knew of the EEO complaint before he fired plaintiff. Mr. Myres admitted that he knew plaintiff had met with the EEO Program Manager, Ms. Hill-Wegley, before he terminated plaintiff. (Doc. 33, Opposition p. 17.) Plaintiff's employment was terminated only a week after he made his EEO complaint. Plaintiff also argues that an inference of retaliation can be made because Jean Russell (a supervisor of the Purchase and Hire crew in which plaintiff was employee and who ultimately made the termination decision based on Mr. Myres' recommendation) told the EEO program Manager, Chicketa Hill Wegley, that she was hoping plaintiff was going to do better.

The extent of Mr. Myres' knowledge of the EEO complaint is a question of fact. Plaintiff argues that there is circumstantial evidence that Mr. Myres knew of the EEO complaint. He presents evidence that Mr. Myres knew plaintiff had met with th EEO Program Manager Chicketa Hill-Wegley before plaintiff was termination. Ms Hill-Wegley, in turn, told Ms. Russell and Mike Riley, Ms. Russell's supervisor of plaintiff's EEO complaint against Mr. Myres. Plaintiff presents evidence that Mike Riley and Mr. Myres may have been friends due to their long work relationship. Plaintiff also presents evidence that a co-worker testified that Mr. Myres demeanor changed shortly afterwards to one of anger. Accordingly, there is an inference that Mr. Myres was aware of the complaint against him filed by plaintiff. At a minimum, there is a question of fact.

Whether the decision to terminate plaintiff had been made one month prior to his filing the complaint is also an issue of fact. Plaintiff presents evidence that it is not credible that Ms. Russell made the decision to terminate plaintiff in December 2007, yet waited to terminate him only one week after he had filed his EEO complaint against Mr. Myres. (Doc. 33, Plaintiff's response to facts, Fact 11.) Plaintiff presents evidence that Ms. Russell, when informed of the EEO complaint, stated she had hoped Mr. Lewis was going "to get better," which implies she was not thinking of firing him. Plaintiff argues that Ms. Russell never told Ms. Hill-Wegley that Ms. Russell had already decided to terminate plaintiff and in fact her statement indicates that she had not made the decision. (Doc. 33, Plaintiff's Separate Statement Fact 21.)

3. Articulated Legitimate Nondiscriminatory Reason

Since plaintiff can establish a prima facie case, defendant argues the next step in the McDonnell Douglas burden shifting analysis: Defendant argues that it articulates a legitimate non-discriminatory reasons for his termination. Plaintiff was terminated for work performance issues and insubordination. Defendant argues neither plaintiff's race nor his EEO activity can overcome the undisputed evidence that he refused to perform the tasks as assigned by the foreman that led to his removal. VA has articulated a non-discriminatory reason for terminating plaintiff. Accordingly, VA has met its burden of articulating a nondiscriminatory reason.

4. Plaintiff's Argument of Pretext

Because defendant rebutted the presumption of discrimination, the burden shifts back to plaintiff to establish that defendant's stated reasons for the adverse employment action was pretext for unlawful discrimination. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996). Plaintiff may establish "pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is `unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (citing Godwin v. Hung Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998)). Plaintiff must provide "specific, substantial evidence" that the reasons given were a pretext for discrimination. Bradley, 104 F.3d at 270. In addition, Plaintiff must establish that there was a causal connection between his protected status and the adverse employment action. Mixon v. Fair Employment and Housing Com., 192 Cal. App. 3d 1306, 1317 (1987).

Here, plaintiff does not introduce direct evidence of discrimination. He acknowledges that Mr. Myres did not make any direct derogatory comments or call plaintiff racially derogatory terms. Plaintiff does not produce evidence of direct racial animus.

Plaintiff nonetheless may prevail by presenting indirect evidence that VA's proffered reasons for terminating plaintiff are not worthy of credence. To oppose the motion, plaintiff must show 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 National Bank of Arizona, 391 U.S. 253, 290, 88 S.Ct. 1575 (1968). "A disparate treatment plaintiff can survive summary judgment without producing any evidence beyond that constituting his prima facie case, if that evidence raises a general issue of material fact regarding the truth of the employer's proffered reasons." Chuang, 225 F.3d at 1127 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)). Plaintiff may satisfy this burden by proving that the legitimate reasons offered by defendant were false (factually untrue), creating an inference that those reasons were merely a pretext for discrimination. Reeves, 530 US at 142. If Plaintiff demonstrates through specific evidence that a genuine issue of material fact exists, defendants' summary judgment motion must be denied. In a Fed.R.Civ.P. 56 motion, however, this Court does not resolve factual issues. Chuang, 225 F.3d at 1124 (ultimate question of employment discrimination is conducted most appropriately by a factfinder, not on summary judgment).

Plaintiff has presented indirect evidence that VA's proffered reasons for terminating plaintiff are not worthy of credence. Plaintiff presents evidence that he was performing his position as journeyman electrician adequately. Plaintiff was never given a disciplinary action, negative review or any written indication that his performance was lacking in any way. His electrical work was inspected on a weekly basis and always passed the inspections. There is disputed material fact as to whether the photographic evidence of plaintiff's purported inadequate work was indeed plaintiff's work. He states he placed a "mark" on his work and the photographs of electrical work do not contain his "mark." Thus, there is an issue of whether evidence has been fabricated or altered to justify the claim that his work was inadequate.

Plaintiff presents evidence that he was treated differently from others. Plaintiff presents evidence that Mr. Myres "cussed and yelled" at him every day. He was the only person so treated. Other non-African-Americans were not so adversely treated. VA argues that whether plaintiff was "cussed and yelled" at is irrelevant because plaintiff admits Mr. Myres did not make racially derogatory remarks while he "cussed and yelled." The VA also argues that whether Mr. Myres forced plaintiff to clean up another person's coffee spill is irrelevant because it has nothing to do with race. The VA's argument, however, misses plaintiff's point. Plaintiff argues that he, as the sole African-American, was treated in this fashion, and no other Caucasian worker, was so treated. He argues that he was "cussed and yelled at" because he is African American.

Further, plaintiff presents evidence that if his performance has been substandard, he should have been so informed through some communication or that his work not passing inspection. Since there was no communication to plaintiff that his performance was substandard and defendant claims plaintiff was terminated based upon his substandard performance, there is evidence to enable a reasonable trier of fact to conclude that he was terminated for some other reason. Given the lack of documentary discipline and the different treatment of plaintiff, the jury could reasonably conclude that his termination was based upon discriminatory reasons.

CONCLUSION

For the foregoing reasons, the motion for summary judgment or in the alternative summary adjudication is DENIED.

IT IS SO ORDERED.


Summaries of

Lewis v. Peakes

United States District Court, E.D. California
Dec 3, 2010
CASE NO. CV F 09-0318 LJO DLB (E.D. Cal. Dec. 3, 2010)
Case details for

Lewis v. Peakes

Case Details

Full title:ERIC LEWIS, Plaintiff, v. DR. JAMES PEAKES, Secretary United States…

Court:United States District Court, E.D. California

Date published: Dec 3, 2010

Citations

CASE NO. CV F 09-0318 LJO DLB (E.D. Cal. Dec. 3, 2010)