Munene v. Mayorkas

Full title: Jim Munene, Plaintiff, v. Alejandro Mayorkas, Defendant.

Court: United States District Court, District of Arizona

Date published: Jun 28, 2024

CV-19-00220-TUC-RM (JR) (D. Ariz. Jun. 28, 2024)

Opinion

CV-19-00220-TUC-RM (JR)

06-28-2024

Jim Munene, Plaintiff, v. Alejandro Mayorkas, Defendant.

JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE

Before the Court is Plaintiff's Motion for Partial Summary Judgment and Defendant's Motion for Summary Judgment. (Plaintiff's Motion for Partial Summary Judgment, Doc. 113; Defendant's Motion for Summary Judgment, Doc. 126.) Both motions are fully briefed. (Plaintiff's Objection to Defendant's Motion for Summary Judgment, Doc. 137; Defendant's Response to Plaintiff's Motion for Partial Summary Judgment, Doc. 148; Plaintiff's Reply to Defendant Response to Plaintiff Motion for Partial Summary Judgment, Doc. 153; Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment, Doc. 155.)

For the reasons set forth below, this Court recommends that the district court grant Defendant's motion and deny Plaintiff's motion.

I. BACKGROUND

a. Overview and Claims In Issue

This is an employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 2 U.S.C. § 2000 et seq. (Complaint for Employment Discrimination, Doc. 1 at p. 3; Order, Doc. 85 at pp. 16-17 (construing the operative First Amended Complaint).)¹ Plaintiff Jim Munene (“Plaintiff”) was formerly employed by the United States Customs and Border Protection (“CBP”) as a Supervisory Border Patrol Agent (“SBPA”). (Defendant's Statement of Facts in Support of Defendant's Motion for Summary Judgment, Doc. 128 at p. 1, ¶ 1.) Plaintiff alleges that while he was employed as an SBPA he was subjected to a series of discriminatory employment acts and a hostile work environment in 2013 because of his race (African American), color (black), and national origin (Kenya) and in reprisal for his prior EEO activities. (Doc. 128 at pp. 11-12, ¶ 70; Doc. 37-1 at pp. 21-28.)

1 All record citations refer to the page numbers generated by the Court's electronic filing system.

As more fully set forth herein, the 2013 employment acts at issue are: (1) that in June of 2013, Plaintiff was not authorized to receive administrative uncontrollable overtime (“AUO”); (2) in June of 2013, Plaintiff was denied a request to exercise while on duty, he was not assigned an office, he was denied supervisory computer access, and he was not provided computer equipment or a telephone; (4) in July of 2013, Plaintiff was charged a health insurance premium while he was on active military duty leave; (4) in August of 2013, he was denied administrative leave time for house hunting; (5) in September of 2013, Plaintiff was denied a personal identity verification (“PIV”) card; and (6) in December of 2013, management changed the time Plaintiff spent traveling for training in November 2013 from overtime to travel compensatory time.² (Doc. 128 at pp. 11-12, ¶ 70.) Plaintiff also alleges that he was discriminated on the basis of his race, color, and national origin when he did not receive a performance bonus for the year 2014. (Doc. 128 at p. 12, ¶ 71; Doc. 37-1 at pp. 59-62.)

2 These 2013 employment events are collectively referred to herein as the “2013 Employment Acts.”

b. Evidentiary Issues

First, as explained below, this Court finds that Plaintiff has failed to comply with LRCiv 56.1 and LRCiv 7.2(j). Plaintiff's exhibits in opposition to Defendant's motion for summary judgment and in support of his motion for partial summary judgment lack appropriate foundation. For example, as pointed out by Defendant, Plaintiff cites “ROI” at various numbers to support the purported facts asserted in his statement of facts. His exhibits include documents stamped with numbers at the bottom. However, many of Plaintiff's factual statements cite to documents or pages of documents that are not included with his exhibit lists, such as statement of facts paragraphs 1, 2, 5, 7, 8, and 13-18. See Doc. 114 at pp. 1-3.

The facts alleged in Plaintiff's statement of facts paragraphs 1, 2, 5, 7, 8, and 13-18 are, therefore, not supported by citation to evidence in the record. Thus, this Court finds that Plaintiff has failed to comply with the Local Rules governing summary judgment motions. See LRCiv 56.1(a) (requiring the party opposing summary judgment to support all factual statements with specific citations to admissible evidence such as affidavits or depositions); LRCiv 7.2(j) (“... noncompliance [with the Local Rules] may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.”).

As a result of Plaintiff's non-compliance the district court can treat as undisputed all of the material facts submitted in support of Defendant's motion that are supported by admissible evidence. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also, Lopez v. Country Ins. & Fin. Servs., No. CV 03-411-TUC-CKJ, 2005 WL 8160909, at *1 (D. Ariz. Sept. 16, 2005), aff'd, 252 Fed.Appx. 142 (9th Cir. 2007) (noting that where the plaintiff has failed to submit any admissible evidence to dispute the material facts showing that the defendants are not liable the for the claims at issue the plaintiff failed to create any disputed facts to oppose summary judgment. (citing Fed.R.Civ.P. 56(e)); Breeser v. Menta Grp., Inc., NFP, 934 F.Supp.2d 1150, 1153 (D. Ariz. 2013), aff'd sub nom. Breeser v. Menta Grp., Inc., 622 Fed.Appx. 649 (9th Cir. 2015) (recognizing that “[f]ailure of the non-movant to comply with LRCiv 56.1(b) is ground for the Court to disregard a controverting statement of facts and deem as true the moving party's separate statement of facts in support of the motion for summary judgment. Szaley v. Pima Cnty., 371 Fed.Appx. 734, 735 (9th Cir. 2010)).

Second, only material facts are relevant for summary judgment purposes. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 248. Merely submitting documents either in support of a motion for summary judgment or in opposition to a motion for summary judgment are of limited value. Mehen v. Delta Airlines, Inc., CV 02-595-TUC-CKJ, 2005 WL 8167725, at *1 (D. Ariz. May 11, 2005); see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (holding that pro se litigants must follow the same rules of procedure that govern counsel represented litigants). In this vein, this Court notes that Plaintiff has included a number of allegations related to his 2012 suspension without pay while he was facing criminal charges and has also raised an allegation that he was improperly verbally reprimanded in 2014 for losing his PIV card (which he claims that he did not lose). These alleged employment actions are not at issue. See Doc. 85 at pp. 7-8, 11-13. They are thus irrelevant, i.e., not material, and do not operate to create a genuine issue of material fact.

Third, this Court notes that while it has reviewed and considered Plaintiff's exhibits, it is not required to comb through Plaintiff's exhibits in search of a reason to deny Defendant's Motion for Summary Judgment. See Mehen, No. 2005 WL 8167725, at *1 (citing Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029-1031 (9th Cir. 2001)). “To require otherwise would render this Court the lawyer for the Plaintiff, performing the lawyer's duty of setting forth specific facts creating a genuine issue sufficient to defeat the motion.” Mehen, 2005 WL 8167725, at *1 (citing Carmen, 237 F.3d at 1029-1031). See also, Breeser, 934 F.Supp.2d at 1154 (recognizing that “[a] district court does not have a duty to search for evidence that would create a factual dispute. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (citing Carmen, 237 F.3d at 1031 (holding that it would be ‘unfair' to the district court to require it ‘to search the entire record' if a party fails to ‘disclose where in the record the evidence for [the factual claims] can be found').”)

Applying the foregoing, this Court finds as follows:

... ... ...

c. General Facts ³

3 This Court finds Defendant's factual summary set forth in his Motion for Summary Judgment to be thorough and well supported. Therefore, the following general factual statement is primarily taken from Defendant's Motion for Summary Judgment. This Court has included facts proffered by Plaintiff where relevant.

From 2007 through 2018, Plaintiff was employed by CBP initially as a Border Patrol (“BPA”) and subsequently as a SBPA. (Doc. 128 at p. 1, ¶ 1.) On or around July 17, 2012, CBP suspended Plaintiff's law enforcement authority and his authorization to carry his agency-issued firearm, badge, and credentials after he was arrested. Id. at p. 1, ¶ 3. On August 23, 2012, Plaintiff was indicted on criminal charges. Id. at p. 1, ¶ 4. On August 30, 2012, management notified Plaintiff of proposed adverse action to suspend him without pay as a result of the pending criminal charges. Id. at p. 2, ¶ 5. On September 7, 2012, CBP placed Plaintiff on indefinite suspension without pay. Id. at p. 2, ¶ 6.⁴

4 Plaintiff appealed his indefinite suspension to the Merit Protection Standards Board (“MPSB”), later voluntarily withdrew his appeal, and the MPSB dismissed the appeal with prejudice on October 31, 2012. (Doc. 128 at p. 11, ¶ 69.) Any claim related to Plaintiff's indefinite suspension is not at issue here. (Doc. 85.)

On May 28, 2013, Plaintiff was acquitted of all counts. Id. at p. 2, ¶ 7. On June 7, 2013, Plaintiff was ordered to report for duty beginning June 19, 2013, in an administrative-only capacity pending an internal investigation of the allegations related to his criminal case. Id. at p. 2, ¶ 8. On or about September 26, 2013, CBP determined there was insufficient evidence to support administrative action against Plaintiff and closed its investigation. Id. at p. 3, ¶ 19. That same date Plaintiff's law enforcement authority was restored effective immediately. Id. at p. 3, ¶ 20.

II. THE MOTIONS

a. Defendant's Motion for Summary Judgment

i. The 2013 Employment Acts

Defendant seeks summary judgment arguing that Plaintiff cannot establish that any of the 2013 Employment Acts are an adverse employment action. (Doc. 126 at pp. 9-10.) Defendant also argues that, assuming arguendo, Plaintiff can establish that the 2013 Employment Acts are adverse employment actions, he nevertheless cannot establish that the 2013 Employment Acts were undertaken with a discriminatory or retaliatory motive. Id. at pp. 11-15. Defendant next argues that Plaintiff cannot establish that the 2013 Employment Acts were severe or pervasive. Id. at pp. 15-17.

ii. The 2014 Performance Bonus Claim

Defendant argues that Plaintiff cannot establish a prima facia case of discrimination regarding his 2014 performance bonus claim insisting that he has no evidence that his race, color or national origin was a motivating factor behind the decision not to give him a 2014 performance bonus. Id. at pp. 17-18. Defendant points to Plaintiff's testimony urging the Court to agree that Plaintiff's testimony is vague and conclusory and thus it is insufficient evidence of discrimination or retaliation. Id. at p. 18. Defendant continues on to urge that assuming, arguendo, that Plaintiff can establish a prima facia case of discrimination, Plaintiff has proffered no evidence to rebut Defendant's legitimate, non-discriminatory motive for the decision to deny Plaintiff a 2014 performance bonus. Id. at pp. 19-21.

b. Plaintiff's Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment on the claims that he was subject to a hostile work environment as a result of: (1) “[o]n July 10, 2013, [he] was charged a health care premium during the time he was on active duty[;] and (2) “[o]n December 17, 2013, [he] was notified that management had changed the time he spent traveling for training on Sunday, November 17, and Saturday, November 23, from overtime to travel compensatory time.” (Doc. 113 at pp. 1-2.)

III. LEGAL STANDARDS

a. Summary Judgment Standard

Summary judgment is appropriate if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to identify specific genuine⁵ issues of material⁶ fact that must be decided at trial. Anderson, 477 U.S. at 256. To avoid summary judgment, the nonmoving party must set forth specific facts supported by evidence that would be admissible at trial. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Evidence that is conclusory, speculative, or not significantly probative is insufficient to avoid summary judgment. Anderson, 477 U.S. at 249; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

5 A dispute of material fact is “genuine” only if the evidence is such that a reasonable factfinder could find for the nonmoving party. Anderson, 477 U.S. at 248.

6 A fact is “material” only if it affects the outcome of the suit under the law governing the claim. Id.

The summary judgment standards do not “change when the parties file cross-motions for summary judgment: the court must apply the same standard and rule on each motion independently because the granting of one motion does not necessarily translate into the denial of the other unless[,]” as here, “the parties rely on the same legal theories and same set of material facts.” We Are Am. v. Maricopa Cnty. Bd. of Sup'rs, 297 F.R.D. 373, 381 (D. Ariz. 2013) (quoting Feezor v. Excel Stockton, LLC, 2013 WL 2485623, at *2 (E.D. Cal. June 10, 2013) (citing Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010), cert. denied sub nom. Experian Info. Solutions, Inc. v. Pintos, 562 U.S.__, 131 S.Ct. 900, 178 L.Ed.2d 747 (2011))).

b. Title VII

Title VII prohibits discrimination based on race, color, religion, national origin, or sex. Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). “Liability . . . depends on whether the protected trait . . . actually motivated the employer's decision.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003). For each type of claim under Title VII, Plaintiff bears the burden of establishing a number of elements including that the cause of any adverse employment action was Plaintiff's protected status or activity.

For disparate treatment, Plaintiff must establish that: (1) he belonged to a protected class (race, color, religion, national origin, or sex), (2) he suffered adverse employment action, and (3) the adverse employment action was because of his race, color, or national origin. Vasquez, 349 F.3d at 642. For retaliation, Plaintiff must establish that: (1) he was engaged in activity protected under Title VII, (2) he was subjected to adverse employment action by Defendant, and (3) the adverse employment action was because of the protected activity. Vasquez, 349 F.3d at 646. For hostile work environment, Plaintiff must establish that: (1) he was subjected to verbal or physical conduct because of his race, color, religion, national origin, or sex, (2) the conduct was unwelcome, and (3) the conduct was severe or pervasive as to alter the conditions of employment and create an abusive work environment. Id. at 642.

In the absence of direct evidence of discriminatory motive, the district court applies the burden-shifting analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Vasquez, 349 F.3d at 639-40. A plaintiff must first present evidence sufficient to raise an “inference of discrimination.” Id. at 640-41. If he does so, the burden of production shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse action. Id. at 641. If the defendant articulates a legitimate nondiscriminatory reason, the plaintiff then must show that the reason is a mere pretext, which merges with the plaintiff's ultimate burden of proof. Id.

At the prima facie case level, the plaintiff must provide evidence from which a reasonable inference of discrimination can be drawn. Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987). Summary judgment is appropriate at the prima facie case level if the evidence of discriminatory motive is insubstantial. Id. An employer articulates a legitimate nondiscriminatory reason by introducing evidence that, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Only the burden of production shifts to the defendant-the burden of persuasion remains at all times with the plaintiff. Yartzoff, 809 F.2d at 1376. Once the defendant states a legitimate nondiscriminatory reason, the inference of discrimination created by the prima facie case disappears. Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 (9th Cir. 1994). The plaintiff must then present evidence sufficient for a rational trier of fact to find that the defendant intentionally discriminated against him. Id. To avoid summary judgment, the plaintiff's evidence must be “specific, substantial evidence of pretext.” Id.

IV. ANALYSIS

a. The 2013 Employment Acts

i. The 2013 Employment Acts are Not Adverse Employment Actions

Under Title VII, an “adverse action” is an action by the employer that materially affects compensation, terms, conditions, or privileges of employment. Rodriguez v. Pierce Cnty., 267 Fed.Appx. 556, 557 (9th Cir. 2008); Moran v. Selig, 447 F.3d 748, 754 (9th Cir. 2006). Examples are termination, demotion, and refusal to consider for promotion. See, e.g., Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). See also, Tanooryan v. Pima Cnty., No. CV 18-00293-TUC-JR, 2020 WL 10224734, at *7 (D. Ariz. Nov. 6, 2020) (recognizing that “[a] plaintiff cannot establish prima facie discrimination if she ‘was not demoted, was not stripped of work responsibilities, was not handed different or more burdensome work responsibilities, was not fired or suspended, was not denied any raises, and was not reduced in salary or any other benefit.'” (quoting Maxwell v. Kelly Servs., Inc., 730 F.Supp.2d 1254, 1267-68 (D. Or. 2010) (quoting Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000))).

Defendant argues that none of the 2013 Employment Acts are adverse actions. (Doc. 126 at pp. 9-11.) For the reasons explained below, this Court agrees.

Change of Overtime to Travel Compensatory Time: In July 2013, CBP Human Resources Management issued a policy advising that “overtime and compensatory time are to be curtailed, to the extent feasible, so overall costs are reduced.” (Doc. 128 at p. 7, ¶ 43.) Plaintiff attended a training class in November 2013. Id. at p. 7, ¶ 44. Defendant provides evidence that in November 2013, Plaintiff was told by SBPA Wade Holtey that he (Plaintiff) could put in for overtime for his November 2013 training class but that his request might not be approved because there were no overtime funds. Id. On December 26, 2013, Mission Support Specialist (“MSS”) Gina Page told Plaintiff that he had received overtime pay when there were no overtime funds available and that the overtime he received would be deducted from his pay. Id. at p. 7, ¶ 45. On December 30, 2013, MSS Wanda Wilson confirmed that Plaintiff's overtime claim should have been coded as travel compensatory time. Id. at p. 7, ¶ 46.

This Court finds that Plaintiff did not suffer an adverse employment action when his time was changed from overtime to travel compensatory time. As one district court in the District of Arizona recognized:

The Ninth Circuit has previously recognized that “an adverse employment action exists where an employer's action negatively affects its employee's compensation.” Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004). While a deprivation or reduction in a plaintiff's salary is often held to be an adverse employment action, the amount in question, while not dispositive, is not irrelevant. The Court finds guidance in the Supreme Court's definition of an adverse employment action as an action that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington, 524 U.S. at 761 (emphasis in Clark).

Therefore, while a significant change in an employee's benefits is an adverse

employment action, an insignificant change is not. Compare Howard v. Washington, 254 Fed.Appx. 576, 578 (9th Cir. 2007) (finding that plaintiff whose salary was cut by $9,000.00 was subjected to an adverse employment action), and Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (employer's reduction of employee's guaranteed monthly base salary by $1,000 constituted an adverse employment action), with Molina v. Los Angeles Cty., Dep't of Mental Health, 58 Fed.Appx. 311, 315 (9th Cir. 2003) (unpublished) (finding that the loss of one-hour's pay did not rise to the level of an adverse employment action).

Clark v. City of Tucson, No. CV-14-02543-TUC-CKJ, 2020 WL 914524, at *10-11 (D. Ariz. Feb. 26, 2020). (emphasis in Clark.) In Clark, District Judge Cindy K. Jorgenson held that the deprivation of specialty pay amounting to $69.23 and the deprivation of 3 hours of vacation time did not amount to an adverse employment action. See Clark, 2020 WL 914524, at *11.

Based on the undisputed facts, Plaintiff received compensation for his travel for training in November 2013. There is no evidence in the record to support a finding that Plaintiff was not compensated in some way. Indeed, it is undisputed that he was compensated with travel compensation time. Accordingly, this Court finds that the change of Plaintiff's overtime to compensatory travel time is not an adverse employment action.

Administrative Leave Request for House Hunting: Under CBP policy, an employee may be granted up to 40 hours for administrative leave for house hunting purposes. (Doc. 128 at p. 5, ¶ 27.) The CBP policy provides in relevant part:

8. Deadline for Completing a Househunting Trip. You must complete your househunting trip by the day before you report to your new official duty station. Your spouse must complete the househunting trip by the earlier of:

a. the day before your family relocates to your new official PDS; or b. the day before the maximum time for beginning allowable travel and transportation expires (two years from the day you reported to your new

official PDS).

(Doc. 128-6 at p. 49.) (bold in policy.)

Plaintiff was stationed at the Ajo Station effective January 29, 2012. (Doc. 128 at p. 5, ¶ 28.) He testified that his family joined him later that year. Id. CBP records produced by Defendant establish that Plaintiff was approved for and took administrative time for house hunting prior to reporting to the Ajo Station, from January 24, 2012, to January 28, 2012. Id. at p. 5, ¶ 30. Thereafter, Plaintiff requested administrate leave time for house hunting for a second time from August 7, 2013 through August 11, 2013. (Doc 128-7 at p. 3, ¶ 7.) His second request was denied.

First, this Court finds that the single denial of a discretionary request for house hunting leave time does not constitute an adverse employment action. The CBP policy in issue provides, in relevant part, that five “administrative days may be granted at the station level.” (Doc. 128-6 at p. 47.) (bold added.) “[T]he denial of a monetary perk ... does not constitute an adverse employment action if it is wholly within the employer's discretion to grant or deny and is not a component of the employee's salary.” See Johnson-Carter v. B.D.O. Seidman, LLP, 169 F.Supp.2d 924, 938 (N.D. Ill. 2001) (citing Tyler v. Ispat Inland, Inc., 245 F.3d 969, 972-73 (7th Cir. 2001)). See also, Jones v. Nat'l Council of Young Men's Christian Associations of the United States of Am., 48 F.Supp.3d 1054, 1111 (N.D. Ill. 2014) (finding the plaintiff did not suffer a materially adverse employment action where the plaintiff's supervisor refused to allow her to work from home one day a week after returning to work from maternity leave determining that such refusal is not a “materially adverse change” in employment); Haas v. Zurich N. Am., No. 05 C 1421, 2006 WL 2849699, at *4 (N.D. Ill. Sept. 29, 2006) (holding that “[t]he fact that [the defendant] did not permit [the plaintiff] to work from home every time she requested is . . . not an adverse employment action . . . [because it] is not an adverse employment action to refuse to grant an employee a discretionary benefit to which that employee is not necessarily entitled.”)). (additional citation omitted.)

Here, the decision to grant or deny administrative time for house hunting is discretionary. The evidence establishes that Plaintiff's first request for house hunting time was granted. The denial of Plaintiff's second request for administrative time for house hunting is not an adverse action.

This Court also finds that Defendant has established that Plaintiff did not meet the requirements to be granted a second discretionary request for administrative time for house hunting. Special Operations Supervisor (“SOS”) Reggie Johnson testified that he denied Plaintiff's second request for house hunting time because Plaintiff had already moved to the Ajo Station when he requested it and, as he understands the policy, an employee is required to request administrative house hunting leave prior to reporting to the duty station. (Doc. 128 at p. 5, ¶ 29.)

This Court rejects Plaintiff's effort to create a genuine issue of material fact by claiming that his spouse did not join him until sometime in 2013. (Doc. 137 at p. 26.) His averments in his opposition are unsworn and otherwise unsupported. Id. Plaintiff testified that his family joined him later in 2012. (Doc. 128 at p. 5, ¶ 28.) Plaintiff cannot create a genuine issue of material fact by contradicting his earlier testimony in the case in opposing Defendant's motion. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (recognizing that “[t]he general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.”) (additional citation omitted.) Regardless, as mentioned above, the CBP policy for the granting of administrative time for house hunting is discretionary and the denial of a discretionary benefit is not a materially adverse employment action for Title VII purposes.

On Duty Exercise Request: Plaintiff complains that he was wrongfully denied the approval to exercise while on duty on June 19, 2013. Defendant has offered evidence that BPAs holding a permanent position of SBPA may be permitted to exercise while on duty.

Acing Watch Commander (“WC”) Benavides testified in relevant part:

The directive indicates that agents permanently holding ranks of Supervisory Border Patrol Agents or higher are allowed to work out on duty with proper approval. As a second line supervisor, I did not allow Mr. Munene or do I allow any other Supervisory Border Patrol agents to work out on duty when they are on administrative duties (pending investigation) . . . All supervisors are nonbargaining agents and are subject to their immediate manager's approvals for extracurricular activities. Approvals are up to the discretion of their immediate watch commander.

(Doc. 128-4 at p. 4 ¶ 9.)

This Court finds that Plaintiff was still on probation on June 19, 2013 when he made his request to exercise while on duty. Indeed, Plaintiff admits that it was not until July 28, 2013, that he completed his required eighteen-month probationary period. (Doc. 137 at p. 4.) Additionally, it was not until September 26, 2013, that Plaintiff was advised that CBP had determined that there was insufficient evidence to support administrative action against him and its internal investigation was closed. (Doc. 128 at p. 3, ¶¶ 19-20.) In light of the foregoing, this Court determines that the evidence establishes that Plaintiff was not eligible to exercise on duty at the time he made his request on June 19, 2013 because he was on administrative-only duties, he was still on probation and, thus, he did not hold the permanent position of SBPA. Thus, it was not an “adverse act” to deny his request to exercise while on duty.

Additionally, this Court finds that Plaintiff's ability to exercise during duty hours is not a material benefit of his employment. See, e.g., Clark, 2020 WL 914524, at *10 (recognizing that “[w]hile prohibiting Plaintiff from starting her day at a certain time and restricting her ability to exercise may be obstacles, those obstacles were minor and ‘[n]ot every employment decision amounts to an adverse employment action.'”) (citations omitted.)

Furthermore, based on WC Benavides's undisputed testimony, the ability to exercise while on duty is discretionary. See Doc. 128-4 at p. 4, ¶ 9 (WC Benavides's testimony that, “[a]ll supervisors are non-bargaining agents and are subject to their immediate manager's approvals for extracurricular activities. Approvals are up to the discretion of their immediate watch commander.”). Thus, the denial of Plaintiff's on duty exercise request, which is within a supervisor's discretion, is not an adverse employment action. See Johnson-Carter, 169 F.Supp.2d at 938 (holding that the employment action is not materially adverse if it is within the employer's discretion to grant or deny and is not a component of the employee's salary).

Health Insurance Premium: Plaintiff submitted a leave without pay request for active duty military leave from July 29, 2012, to August 24, 2012. (Doc. 128 at p. 4, ¶ 22.) His leave request did not include a request to cancel his government provided health insurance for that period. Id. Around March of 2014, after becoming aware of Plaintiff's desire to have his government health insurance retroactively cancelled for July 29, 2012, through August 24, 2012, MSS Dana Jalbert sought guidance from the Indianapolis Hiring Center (“IHC”) as to whether Plaintiff could in fact retroactively cancel his health insurance for the time period requested as Plaintiff had been on leave less than 30 days. (Doc. 128 at p. 4, ¶ 23.) IHC ultimately confirmed that Plaintiff could do so. Id. MSS Jalbert had Plaintiff complete an election of benefits form to retroactively terminate his government health insurance coverage. Id. at p. 4, ¶ 24. On or around April 15, 2014, MSS Jalbert received confirmation that Plaintiff's government health insurance and the bill for the associated premium had been cancelled. Id. at p. 4, ¶ 25.

Plaintiff complains that he suffered an adverse employment action when he was charged for his health insurance premium while he was on active duty leave from July 29, 2012 to August 24, 2012. Defendant presents evidence that U.S. Office of Personnel Management healthcare reference materials provide in relevant part:

If an individual enters one of the uniformed services for 30 days or less, the FEHB enrollment will continue without change. Withholdings and government contributions will also continue, as long as the individual is in pay status or until the military orders are changed so that the individual's period of duty is more than 30 days. ...

If an individual enters active military duty or active duty for training in one of the uniformed services for more than 30 days, the individual may continue FEHB enrollment for up to 24 months. Or, the individual may elect to terminate the enrollment, effective the day before entering active duty.

(Doc. 128-9 at pp. 2-3.) As stated above, evidence proffered by Defendant establishes that Plaintiff did not submit a request to cancel his insurance when he requested leave to go on active duty from July 29, 2012 to August 24, 2012. Defendant's evidence further establishes that when Plaintiff brought the issue up in the EEO process, support staff sought advice as to whether he could retroactively cancel his insurance coverage for that time, and, when told he could do so, processed the cancellation, and that the bill for the premium was eventually cancelled.

The parties have not offered evidence on the amount of the health insurance premium that was eventually cancelled. In the absence of evidence that the health insurance premium was substantial the Court finds that Defendant charging Plaintiff for the health insurance premium that he did not ask to cancel at the time he took active duty military leave is not a materially adverse employment action. See Clark, 2020 WL 914524, at *11 (holding that the deprivation of specialty pay amounting to $69.23 and the deprivation of 3 hours of vacation time did not amount to an adverse employment action).

Moreover, the evidence establishes that Plaintiff suffered no actual damage related to the health insurance premium. Defendant has offered evidence that the bill for the health insurance premium was cancelled. (Doc. 128 at p. 4, ¶ 25.) Plaintiff has failed to offer any evidence that he paid the health insurance premium.⁷ Accordingly, this Court finds that Plaintiff did not suffer an adverse employment act related to the belated cancellation of his health insurance premium.

7 (nor has he offered any evidence that he was not subsequently reimbursed if he, in fact, made the health insurance premium payment)

This Court also finds that Plaintiff's allegation that the emails proffered by Defendant are fabricated is wholly unsupported. (Doc. 137 at p. 6.) As Defendant points out, Ms. Nichols authenticated the emails under oath. (Doc. 155 at p. 13, n. 9.) Ms. Nichols further explained that the delay in cancelling the health insurance premium at issue was due to the fact that she was not asked to cancel the health insurance premium until she became involved in one of Plaintiff's EEO proceedings. When it finally came to her attention that Plaintiff was requesting that the health insurance premium be cancelled she investigated and the premium was cancelled. (Doc. 128-4 at pp. 30-32.)

PIV Card: When Plaintiff returned to work after his indefinite suspension, he was issued an access card set to that of a BPA (instead of a SBPA) because he was on administrative-only duties pending internal investigation. (Doc. 128 at pp. 5-6, ¶ 33.) On or around September 19, 2023, BPA John Wissel informed Plaintiff that he would not be issued a PIV card until he was cleared in the internal investigation. Id. at p. 6, ¶ 35. On November 1, 2013, SBPA Devin Reno instructed Plaintiff to go to Sector to get his new PIV card. Id. at p. 6, ¶ 36. Plaintiff was required to, inter alia, turn in his existing PIV card to get a new one. Id. at p. 6, ¶ 34. On November 5, 2013, Plaintiff sent a memo to management stating that he could not find his existing PIV card and believed he had previously turned it in to Field Operations Supervisor Thomas Roddey. Id. at p. 6, ¶ 37. Subsequently, Plaintiff was issued a new PIV card. Id. at p. 6, ¶ 38.

Plaintiff complains that he was not issued a PIV card in a timely fashion. (Doc. 137 at p. 8.) As mentioned above, when Plaintiff returned to work from his indefinite suspension he was issued an access card set to that of a BPA instead of an SBPA because he was on administrative only duties pending the outcome of the internal investigation. (Doc. 128 at pp. 5-6, ¶ 33.) In an email dated September 12, 2013, SOS Johnson informed the Ajo Station employees that the issuance of PIV cards would commence the next day, and that to get a new PIV card they were required to have two forms of identification and their current PIV card. (Doc. 128 at p. 6, ¶ 34.) On or around September 19, 2023, BPA John S. Wissel informed Plaintiff that he would not be issued a PIV card until he was cleared in the internal investigation. Id. at p. 6, ¶ 35. On November 1, 2013, SBPA Devin Reno told Plaintiff that he could go to Sector to get his new PIV card and reminded him that he could still use his old access card. Id. at p. 6, ¶ 36. Defendant's evidence establishes that PIV cards became required for building and computer access in March of 2014. Id. at p. 5, ¶ 32. Plaintiff received his PIV card in December 2013. (Doc. 128-4 at p. 11; Doc 137 at p. 10.)

This Court finds that the delay in Plaintiff receiving his PIV card is not a materially adverse employment action. Defendant demonstrates that PIV cards were not required for building and computer access until March of 2014. Plaintiff received his PIV card in December 2013. While Plaintiff complains that he had to borrow access cards from others to do certain tasks, there is no evidence that Plaintiff was unable to complete any of his administrative duties using his exiting access card. Plaintiff has also failed to offer any evidence that the delay in receiving is PIV card resulted in any adverse employment consequence.

Plaintiff claims that in the course of receiving his new PIV card he was verbally admonished for losing his old PIV card (and he denies losing his old PIV card). (Doc. 137 at p. 11.) The claim that Plaintiff was verbally admonished for losing a PIV card is not at issue. Even if Plaintiff's claim that he was improperly verbally admonished was at issue (and it is not at issue), a verbal admonishment is not a materially adverse employment action. See Reiter v. Metro. Transportation Auth. of the State of New York, No. 01 CIV. 2762 (JGK), 2002 WL 31190167, at *3 (S.D.N.Y. Sept. 30, 2002) (holding that “[v]erbal admonishment which employee of city transit authority received from supervisor after employee complained informally about alleged retaliatory conduct was not adverse employment action, as required to support claim for retaliation in violation of Title VII; verbal admonishment did not affect in any way employee's position, salary, or working conditions.”).

Shared Office, Desk and Phone While on Administrative Duties Assignment: On June 7, 2013, Deputy Chief Patrol Agent Padilla ordered Plaintiff to report for duty beginning June 19, 2013, in an administrative only capacity pending investigation and possible administrative action. (Doc. 128 at p. 2, ¶ 8.) Upon his return to administrative duty in June 2012, Plaintiff was assigned to office 204, desk number 20, and phone extension 2669. Id. at p. 2, ¶ 9.

Plaintiff complains that his assignment to a shared office, desk, and phone upon his return from his indefinite suspension is an adverse action. However, Plaintiff testified that he had an office space and equipment for his use, even if he had to share it with others. (Doc. 128-3 at pp. 22-24.) Plaintiff testified that, “It was all shared offices. Mostly shared offices.” Id. at p. 24. He testified that he was not timely in presenting his reports or getting back to his supervisors as a result of having to share an office but he also testified that he did not suffer any adverse consequence as a result of not timely getting the necessary information to his supervisors. Id. In light of the forgoing, this Court finds that Plaintiff's administrative assignment in which he had to share an office, desk and a telephone is not an adverse employment action. See, e.g., Lopez v. Ashcroft, No. 03-00011 DAE LEK, 2006 WL 8436009, at *7 (D. Hawai'i Apr. 20, 2006) (holding that lack of telephone at employee's desk not an adverse employment action where evidence established that telephones were shared by employees).

Lack of Authorization to Receive AUO: Defendant's proffered evidence establishes that while on administrative-only duties pending investigation, SBPAs work eight-hour days and are not permitted to act in a law enforcement or supervisory capacity, have supervisorlevel computer access, or earn AUO. (Doc. 128 at pp. 2-3, ¶ 13.) Plaintiff complains about the fact that he was not authorized to earn AUO.⁸ Id. at p. 3, ¶ 14. This Court finds that Defendant's enforcement of a policy that provides that while an SBPA is on administrative-only duties, he is not permitted to earn AUO is not an adverse employment action. Plaintiff admits that he takes no issue with his administrative only assignment. Thus, per the relevant CBP policy, Plaintiff was not able to receive AUO.

8 Plaintiff is not complaining that he was ordered to return on administrative-only duties. (Doc. 128 at p. 3, ¶ 14.)

In sum, this Court finds that Plaintiff has failed to establish that any of the 2013 Employment Acts are adverse employment actions. Therefore, this Court finds that Defendant is entitled to entry of summary judgment on Plaintiff's Title VII claims related to the 2013 Employment Acts.

ii. The 2013 Employment Acts Are Not Severe or Pervasive

Defendant also argues that the 2013 Employment Acts are not severe or pervasive. (Doc. 126 at pp. 15-17.) This Court agrees.⁹

9 Because this Court finds that the 2013 Employment Acts are not materially adverse employment actions this finding is presented in the alternative.

To establish that she was subjected to a hostile work environment, a plaintiff must establish that “her workplace [was] permeated with discriminatory intimidation ... that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). A plaintiff must show not only that he subjectively believed his workplace environment was hostile, but also that a reasonable person could perceive it to be objectively hostile. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871-72 (9th Cir. 2001) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)). 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 (quoting Harris, 510 U.S. at 23). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Nichols, 256 F.3d at 872. See also, Faragher, 524 U.S. at 787-88; Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).

Based on the undisputed facts, that Plaintiff had to share office space, computers, or telephones, and wait to get a new PIV card until after explaining why his existing card was unaccounted for are appropriately classified as inconveniences. Plaintiff testified that he suffered no adverse consequences for any delay in getting information to his supervisors that his shared office experience may have caused. As explained above, this Court finds that Plaintiff has failed to produce any evidence that the delay in receiving his PIV card caused him to suffer an adverse employment action. Furthermore, Plaintiff eventually received a PIV card before the time that PIV cards were required for building and computer access.

Also, the denial of overtime, the denial of exercise time, and the inability to earn AUO, the health insurance premium bill cancellation and the denial of administrative time for house hunting were all based on the interpretation and application of policies. This Court finds that a reasonable employee would not find a one-time change from overtime to compensatory travel time an objectively hostile act when there was no overtime to give. Nor would a reasonable employee consider an employer's failure to cancel a health insurance premium that he did not request be cancelled initially upon taking active duty leave an objectively hostile act. Here, the evidence establishes that as soon as the appropriate personnel became aware of Plaintiff's desire to have his health insurance premium cancelled, the issue was investigated and it was cancelled.

This Court finds the same with respect to the denial of Plaintiff's second request for administrative house hunting time and the ability to exercise while on duty. Plaintiff asked for and received a discretionary request for 40 hours of house hunting time. Plaintiff was not eligible to receive more administrative house hunting time. Similarly, under the applicable policy, Plaintiff was not eligible to exercise while on duty.

Considering the larger picture, Plaintiff alleges independent employment events that have no discriminatory connotations. This Court agrees with Defendant that these independent employment events fairly amount to inconveniences, misunderstandings, disagreements about the application of policies and practices to the facts presented at the time, or perceived generally unfair treatment. See, e.g., Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (recognizing that not everything that makes an employee unhappy is an adverse employment action); Offord v. City of Fulshear, No. CV H-19-2386, 2020 WL 4227423, at *2 (S.D. Tex. July 22, 2020), aff'd, 861 Fed.Appx. 536 (5th Cir. 2021) (finding that “[t]wo discrete acts in a commission charge for discrimination” did not raise a claim for hostile work environment.”). This Court finds that no reasonable employee would consider the 2013 Employment Acts, whether considered alone or in combination, to be harassment.

But even if the 2013 Employment Acts could be considered harassing behavior, they were not severe enough to alter the terms of Plaintiff's employment, and therefore, cannot create a hostile work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (recognizing that “not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII.”); Clark, 2020 WL 914524, at *10 (holding that “[w]hile prohibiting [the p]laintiff from starting her day at a certain time and restricting her ability to exercise may be obstacles, those obstacles were minor and ‘[n]ot every employment decision amounts to an adverse employment action.'”).

Plaintiff urges the Court to find that he was subject to a hostile work environment and a fair understanding of his position is that he genuinely believes that he suffered discrimination. However, subjective belief, even if genuine, is not enough. A plaintiff must establish conduct that is both subjective and objectively severe or pervasive enough to constitute an abusive work environment. See, e.g., Brooks v. Fast Park and Relax, No. 21 CV 516-TUC-LAB, 2022 WL 3359678, at *3 (D. Ariz. Aug. 15, 2022) (dismissing complaint alleging hostile work environment finding that the plaintiff's genuine belief that he suffered discrimination insufficient to state a claim for relief).

This Court finds that there is no genuine issue of material fact concerning whether the 2013 Employment Acts are objectively severe or pervasive such that they constitute a hostile work environment. As a result, this Court finds that Plaintiff fails to establish that he was subjected to sufficiently severe or pervasive conduct to establish his hostile work environment claim.

iii. There is No Genuine Issue of Material Fact as to Whether the 2013 Employment Acts Were Unlawfully Motivated

For disparate treatment and hostile work environment based on race, color, national origin, or prior EEO activity, a plaintiff must establish that her protected status was a motivating factor for the adverse action.¹⁰ Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013). For a retaliation claim, a plaintiff must establish the adverse action would not have occurred but for the protected activity. Id. at 362-63; Lombardi v. Castro, 675 Fed.Appx. 690, 691 (9th Cir. 2017). As discussed below, this Court finds that Plaintiff fails to offer evidence of discriminatory or retaliatory motive on the part of Defendant for the 2013 Employment Acts.

10 Because this Court finds that the 2013 Employment acts are not: (1) materially adverse actions and (2) sufficiently severe or pervasive to create a hostile work environment, this finding is presented in the alternative.

Change of Overtime to Travel Compensatory Time: As established by Defendant, CBP did not have overtime available for employees in November 2013. (Doc. 128 at p. 7, ¶¶ 43-46.) Plaintiff testified that he believes that his overtime for travel was discriminatorily changed to compensatory time because other agents purportedly received overtime when they applied to receive it. (Doc. 128-3 at pp. 35-36.) Significantly, however, the evidence proffered by Defendant establishes that the employees that Plaintiff claims to have received overtime, did not receive overtime. (Doc. 121-2 at pp. 2-3 (under seal); Doc. 128-7 at p. 36.) At his deposition, Plaintiff could not name a BPA who received overtime for training travel in November 2013. (Doc. 128 at p. 7, ¶ 47.) Plaintiff testified:

Q. You believe the real reason was an attempt to discriminate against you because of your race, national origin, color or in retaliation for EEO activity?

A. Yes, I do.

Q. And why do you believe that?

A. Because when other agents applied for the overtime, they did receive the overtime, but when it came to the plaintiff, being myself, I did not receive any overtime and was given the reasons about - - or rather excuses about managing - - it just did not make sense, and funding issues.

Q. Okay. Other than you, are you aware of any other Border Patrol agent or supervisory Border Patrol agent who traveled to attend - - who traveled from the Ajo station to attend training in November of 2013 who received overtime for that training?

A. I can't remember off the top of my head.

(Doc. 128-3 at pp. 35-36.)

This Court finds that Plaintiff's testimony is speculative. Speculation is insufficient to create a genuine issue of material fact for summary judgment purposes. A “[p]laintiff[] cannot survive summary judgment based on speculation alone.” Discovery Land Co. LLC v. Berkley Ins. Co., No. CV-20-01541-PHX-ROS, 2023 WL 2503634, at *16 (D. Ariz. Mar. 14, 2023) (citing Centeno v. Am. Liberty Ins. Co., 2019 WL 4849548, at *6 (D. Ariz. Oct. 1, 2019) (granting defendant's motion for summary judgment finding that plaintiff's “speculative and conclusory evidence . . . lacks the probative value to raise a genuine issue of material fact regarding [defendant's] intent”)). Accordingly, this Court finds that Plaintiff's testimony is insufficient to create a genuine issue of material fact.

Administrative Leave Request for House Hunting: SOS Reggie Johnson testified that he denied Plaintiff's request for house hunting time in August 2013 because Plaintiff and his family had already relocated to the Ajo Station and, thus, Plaintiff was not eligible for administrative house hunting leave time under CBP policy. (Doc. 128 at p. 5, ¶¶ 27-29.) As mentioned above, Plaintiff transferred to the Ajo Station in January of 2012 and, as Plaintiff testified, his family joined him that same year. (Doc. 128-3 at p. 7.) Plaintiff alleges that his second house hunting leave request was denied because of his race, national origin, color, or in retaliation for his EEO activity, testifying:

Q. Why do you believe that you were denied the administrative time due to your race, national origin, color or in reprisal for your EEO activity?

A. Because other agents were given househunting relocation time frames, I was denied. Other agents were even given bonuses to relocate. They were given - - - I think it was at least, at the very least, $20,000, maybe $30,000, but I was not given any dollars. I was not asking for the money, I was just asking for the leave, which was denied based on race, color, national origin and retaliation for filing the EEO complaint.

Q. Okay. And do you know of anyone who was given administrative time to house hunt over a year after they had started work at the Ajo station?

A. I can't even - - I'm not sure who was given that, but the agents who relocated, most of them were given the househunting if they applied for it. If they applied for it they were given it.

Q. Okay. How is it that you know that anybody - - any other agent who applied for administrative time for househunting got administrative time for househunting? How do you know that? What is the basis for that statement?

A. Because for an agent to get the househunting, all they had to do was to submit a memorandum, and once they submitted a memorandum, then it went

to the administrative side of the defendant, and the defendant would sign off. But for me, when I did the same exact thing, it was denied.

(Doc. 128-3 at pp. 27-28.) Plaintiff testified that he could not remember names “off the top of [his] head” but “what he could come up with” were two SBPAs and added that he is “just not sure for now.” (Doc. 129-3 at pp. 29-30.) He also testified that he was “thinking also about” another SPBA. Id. at p. 30. This Court finds that Plaintiff's testimony is speculation. Speculation is insufficient to create a genuine issue of material fact for summary judgment purposes. See Discovery Land Co. LLC, 2023 WL 2503634, at *16. Accordingly, this Court finds that Plaintiff's testimony is insufficient to create a genuine issue of material fact.

On Duty Exercise Request: Plaintiff testified that Defendant was unlawfully motivated in denying his request to exercise while on duty stating:

I believe so because other agents would exercise, but because of my national origin and the reprisal factor, I brought management and filed an EEO complaint. That was the reason why I was denied these privileges that other agents were getting, yet I was denied.

(Doc. 128-3 at p. 19.) He testified that he “used to see” two SBPAs “at the station exercising while on duty, yet [he] could not.” Id. at p. 20. He also testified, however, that, “[i]t's hard to tell if they were on administrative duty - - administrative uncontrollable overtime or it was their day off, but I could see them during regular work hours exercising.” Id. He continued on to testify, “They were exercising - - it's hard to tell, correct without their record to see if that day, they were on duty, it's hard for me to know.” Id. at pp. 20-21.

This Court finds that Plaintiff's testimony is speculation. Speculation is insufficient to create a genuine issue of material fact for summary judgment purposes. See Discovery Land Co. LLC, 2023 WL 2503634, at *16. Accordingly, this Court finds that Plaintiff's testimony is insufficient to create a genuine issue of material fact.

Health Insurance Premium: Plaintiff testified that he believes that he was charged for a health insurance premium when he was on active duty leave due to his race, color, national origin, and prior EEO activity, testifying:

Because it was reprisal, national origin, race, and color because once -- I've been in the United States military for almost 20 years. Any time I went on active duty or some kind of training, I should not have been charged the healthcare benefit because the military gives you the same healthcare benefit, but this was just a total violation of the regular way of things in retaliation.

(Doc. 128-3 at pp. 25-26.) The evidence set forth above demonstrates that Plaintiff did not request the cancellation of his health insurance when he went on active duty leave in 2012. The evidence further establishes that when it was brought to Defendant's attention that Plaintiff wished to cancel his healthcare insurance retroactively the issue was researched and the bill for the health care premium was eventually cancelled. Plaintiff has failed to offer any evidence that he was damaged as a result of receiving a bill for the healthcare premium. Plaintiff's testimony, based on his belief that he was discriminatorily charged for his health insurance premium, is insufficient to create a genuine issue of material fact for summary judgment purposes. See Discovery Land Co. LLC, 2023 WL 2503634, at *16. Accordingly, this Court finds that Plaintiff's testimony is insufficient to create a genuine issue of material fact.

PIV Card: Regarding his failure to timely receive a PIV card, Plaintiff testified:

Q. Were you not informed at that time that the agency was doing its own investigation of you?

A. Yes, the agency had to do their own investigation, but when it came down

to the PIV card, it was only brought up to me that my investigation was still - - I was still under investigation, yet all the other administrative Border Patrol agents, all the other administrative supervisors were never denied a PIV card, yet they were still on administrative duties like myself. So that was not the main reason I was denied a PIV card. The main reason was because of my skin color, national origin and race and retaliation.

(Doc. 128-3 at p. 32.) Plaintiff gave the names of two other agents who he believed were under investigation and yet were issued a PIV card. Id. at p. 33. Defendant has presented evidence that one agent that Plaintiff identified as having been issued a PIV card while under investigation was, in fact, not issued a PIV card while he was under investigation. (Doc. 128 at p. 6, ¶ 41; Doc. 128-7 at p. 20.) Defendant has also presented evidence that the other agent that Plaintiff identified as having been issued a PIV card while under investigation “had no issues that prevented him from obtaining a PIV card.” (Doc. 128 at p. 7, ¶ 42; Doc. 128-7 at p. 20.)

Plaintiff has offered no evidence to rebut Defendant's showing that the two agents that he identified as having received a PIV card while under investigation did not receive a PIV card as he so testified. (Doc. 137 at p. 8.) Rather, in his response he alleges that Agent Weissel and SOS Johnson provided “false testimony.” Id. at pp. 10, 12. Plaintiff's allegation is wholly unsupported. This Court finds that Plaintiff's testimony that he believes that he was not issued a PIV card because of his race speculation. His testimony is therefore insufficient to create a genuine issue of material fact for summary judgment purposes. See Discovery Land Co. LLC, 2023 WL 2503634, at *16.

Shared Office, Desk, and Telephone While on Administrative Duties Assignment: Plaintiff testified that:

Were it not for my color, I would have been given computer access. At least for the retaliation part, I would have been given equipment, an office, a telephone, which I did not - - I had to fend for my own, and that I would perform my administrative work.

(Doc. 128-3 at p. 19.) Plaintiff's testimony that he believes that he was discriminatorily assigned to a shared office and related office equipment is insufficient to create a genuine issue of material fact for summary judgment purposes. See Discovery Land Co. LLC, 2023 WL 2503634, at *16.

Lack of Authorization to Receive AUO: Plaintiff testified that the denial of his ability to earn AUO was due to his race, color, national origin, and prior EEO activity because “if anybody was on administrative duties, they were able to - be it supervisor or Border Patrol agent, they could get administrative uncontrollable overtime.” (Doc. 128 at p. 3, ¶ 15.) However, Plaintiff's belief that he was discriminatorily denied the ability to earn AUO is insufficient to create a genuine issue of material fact for summary judgment purposes. See Discovery Land Co. LLC, 2023 WL 2503634, at *16.

As set forth above, this Court finds that there is no genuine issue of material facts on the issue of whether the 2013 Employment Acts were unlawfully motivated.

In sum, this Court finds that: (1) the 2013 Employment Acts are not materially adverse employment actions; (2) the 2013 Employment Acts do not rise to the level of severe or pervasive conduct; and (3) there is no genuine issue of material fact as to whether the 2013 Employment Acts were unlawfully motivated. Accordingly, this Court finds that Defendant is entitled to summary judgment in its favor on Plaintiff's claims concerning the 2013 Employment Acts.

b. The 2014 Performance Bonus Denial

i. There Is No Evidence of Discriminatory Motive for the 2014 Performance Bonus Denial

Plaintiff alleges that he was not given a performance award for fiscal year 2014 because of his race, color, and national origin. (Doc. 128 at p. 12, ¶ 71.) The denial of a performance bonus constitutes an adverse employment action for purposes of Title VII. Defendant does not dispute this. Rather, Defendant argues that Plaintiff fails to present evidence that the denial of a 2014 performance bonus was based on a discriminatory motive. As explained below, this Court agrees with Defendant.

At his 2017 deposition, Plaintiff testified:

Q. Okay. But you'd been on indefinite suspension for approximately ten months, correct?

A. The ten months overlapped in two different fiscal years, two different calendar years. So I was put on indefinite suspension in 2012 time frame around August/September. And I came back to the Ajo Border Patrol Station in 2013, time frame June 19, 2013. So management had every chance to give me a Performance Appraisal like any other Supervisor.

Q. What's your position on why they didn't?

A. When I got back to the Ajo Border Patrol Station, I got disparate treatment. And I was not treated fairly or equally like any other Supervisor, the Caucasian supervisors, at the Ajo Border Patrol Station.

Q. Was that a result of your being indefinitely suspended?

A. I am not sure how they came to blackball me. And any little thing in regards to my duties or my performance, it was treated very unfairly. And it was a constant disparate treatment that I got from Management Officials.

Q. Now . . . when you sat down with Mr. Ramirez in April of 2012, he told you that you were doing well, and that your performance was above and beyond, and he wrote all these comments.

How was your interaction with him between April of 2012 and then the August/September time frame when you went on indefinite suspension? Did anything happen that changed his opinion of your performance in those period of months?

A. During those period of months the only thing that happened is - - it was two things that happened. I was put on indefinite suspension. Before that I deployed with the Army for about a month. So I don't see how that changed his opinion.

And when I came back, that's when I started getting all this disparate treatment from my Performance Appraisal to Performance Bonus, and the other issue that I've raised in my initial claim.

Q.... So do you feel that Mr. Ramirez started treating you differently after you came back from indefinite suspension because of your race or your color, the things that you've raised in this EEO Complaint, or because of the indefinite suspension?

A. I feel because of my race and color, it was combined that I started getting all this different treatment.

Q. Then why wasn't he treating you that way before the indefinite suspension?

A. Before the indefinite suspension he wrote all these good comments. But during that time frame when I got back, and this touches on my other claim that I raised, my first claim, I received disparate treatment not because of my job, not because I was doing poorly. I did not get any Performance Bonus, not because I was doing a bad job, but just because I was labeled and - -

Q. Labeled what?

A. Because I was labeled based on race, just because I'm from Kenya. To me, it did not make sense. I was separated from all these other Caucasian Supervisors, and that's how I brought this to the attention of the EEO.

Q. I guess my question to respond to that is how come you weren't getting that treatment before the indefinite suspension?

A. Well, that treatment before the indefinite suspension, let's not - - let's come back to before the indefinite suspension, how it all happened.

So I was suspended for no fault of my own. I was cleared of all charges. Yet that in itself has been able to be put on my record by the same Watch Commanders like I did something wrong. By the same Responsible Management Officials, to include even the Chief of Tucson Sector, the former Chief Padilla.

So all this, it does tie in to, no fault of my own, yet I just happened to be from a different race, a different color, a different country that I was born in. That's what I believe.

Q. Can you point tot anything that happened between the time when you arrived at the Ajo Border Patrol Station and started being supervised by Mr. Ramirez that led you to believe he was treating you different because of your race or your color?

A....So to answer your question, I couldn't back then, as I recall it, I can't really pinpoint and say this is how racist they were to me. But after coming back from suspension, I can clearly say this is now racist because I did not get a Performance Bonus like all the other Caucasians. I did not get my evaluation done in the same left and right limits. Mine was just looked at differently. And I cannot stop saying the same thing, it's because of my race, color, and national origin.

Doc. 128-9 at pp. 9-13.)

This Court agrees with Defendant that Plaintiff's testimony is vague and conclusory. As a result, this Court finds that Plaintiff's testimony is not evidence of discrimination or retaliation. Also as pointed out by Defendant, WC Ramirez recommended Plaintiff receive a performance award in for 2015, finding that his performance that year exceeded expectations. (Doc. 128 at p. 9, ¶ 56.) This Court agrees with Defendant that the fact that Plaintiff was given a performance award by WC Ramirez for 2015 weakens his (already unsubstantiated) claim that WC Ramirez had animus towards Plaintiff based on his race, color, or national origin and that alleged animus motivated WC Ramirez to withhold a 2014 performance bonus award from Plaintiff.

In his response, Plaintiff urges that he was not given a 2014 performance bonus “since he had initiated an EEO protected activity ongoing from the 2013 employment actions.” (Doc. 137 at p. 30.) He also argues that “[t]he single African American who received a performance award does not demonstrate that the Agency's actions were not based on discrimination because that employee was SOS Reggie Johnson [and] SOS Johnson did not have any EEO protected activity . . . [.]” Id.

However, Plaintiff's claim is that he was denied a 2014 performance bonus based on his color, race and national origin. Plaintiff's claim that he was denied a 2014 performance bonus in retaliation for protected activity is not before the Court. See Doc. 128 at p. 12, ¶ 71; Doc. 128-3 at p. 37 (Plaintiff's testimony that whether CBP discriminated against him based on race, color, and national origin when he did not receive a 2014 performance award accurately describes his claim regarding his 2014 performance award that he is asserting in this case).

In light of the foregoing, this Court finds that Plaintiff has failed to proffer evidence that the denial of a 2014 performance bonus was based on his race, national origin and color.

ii. There is a Non-Discriminatory Reason for the 2014 Performance Bonus Denial

Assuming, arguendo, that there is a genuine issue of material fact as to whether Plaintiff was denied a 2014 performance bonus based on his race, national origin and color),¹¹ as explained below this Court finds that Defendant has established that there is a legitimate non-discriminatory reason for denying Plaintiff a 2014 performance bonus. Defendant has proffered evidence that the relevant CBP policy provides that performance awards “are used to recognize significant employee accomplishments and/or achievements that are clearly above and beyond what is normally expected.” (Doc. 128 at pp. 7-8, ¶ 49.) The policy provides that awards are “reserved for truly exceptional contributions that further CBP's organizational goals and the effective accomplishment of its mission.” Id. Further, the policy provides that “[successful completion of assigned tasks or short term-projects ... do not merit a cash award.” Id.

11 (and this Court finds that there is not a genuine issue of material fact)

WC Ramirez did not believe that Plaintiff's performance for the 2014 rating period went above and beyond what was ordinarily expected of an SBPA so he did not recommend that Plaintiff receive a performance award. (Doc. 128 at p. 8, ¶ 51.) WC Barker did not recommend that Plaintiff receive a 2014 performance bonus stating that Plaintiff “did nothing above and beyond what was expected of him other than his regular Supervisory Border Patrol Officer duties.” Id. at p. 8, ¶ 52. WC Gomez did not recommend that Plaintiff receive a 2014 performance bonus explaining that Plaintiff did not work for him, and he “never witnessed him going above and beyond what was expected of him as a Supervisory Border Patrol Agent.” Id. at p. 8, ¶ 53. WC Benavides did not recommend that Plaintiff receive a 2014 performance bonus because Plaintiff did not work directly for him during that time and when Plaintiff had worked for him in the past, he (Plaintiff) had done nothing above what is expected of a SBPA. Id. at p. 8, ¶ 54. The Deputy Patrol Agent in Charge did not approve a 2014 performance bonus for Plaintiff because none of the WCs recommended that Plaintiff receive one and he trusts the WCs's judgment. Id. at p. 8, ¶ 55. Additionally, CBP records proffered by Defendant establish that in fiscal year 2014, of the 15 employees that WC Ramirez supervised, two employees were not recommended for awards-Plaintiff and a Hispanic employee. The only other black employee that WC Ramirez supervised did receive an award. (Doc. 128 at p. 9, ¶ 59.)

The job description for an SBPA includes planning work assignments, setting and adjusting priorities, assigning work based on operational priorities and considering the difficulties and requirements of specific assignments, supervising agents in the preparation and evaluation of cases in both criminal and administrative proceeding, outreach to the public to gain support for the Border Patrol's mission, and performing the full functions of a BPA. Id. at p. 9, ¶ 57.

Plaintiff testified that it is a basic responsibility for SBPAs to supervise and mentor the agents assigned to them and to help them to perform their responsibilities, as well as providing encouragement and guidance to the agents. (Doc. 128 at p. 9 ¶ 58; Doc. 128-3 at p. 9.) He also testified that basic responsibilities of the SBPA job include monitoring the border, apprehending individuals who unlawfully enter the United States, assisting with the rescue, apprehension, and prosecution of such individuals. Id.; Doc. 128-3 at p. 10.

Plaintiff was asked in his 2017 deposition to provide examples of conduct during the 2014 rating period that met the criteria for a performance bonus. Plaintiff offered two examples. First, Plaintiff testified:

One time I was in charge of leading the operation for -- it was a rescue. So when the Mexican authorities, they give us grid coordinates to find missing persons or dead bodies. And I was in charge of moving in a team. We went in and laid in. In the process of laying in, we apprehended it was about, as I recall, maybe 200 to 300 pounds of marijuana. I moved in with one of the agents to go do the paperwork. I wrote up the paperwork, and all the other agents, I diverted them to go and search for the dead bodies. And choppers

came in, helicopters, it was a big operation. At the end of the day I also ensured the agents stayed safe, they were hydrating. We had water dropped in by the helicopter, that way the search-and-rescue could continue. So that was just one of the major events that I performed.

(Doc. 128 at p. 10, ¶ 64.) Plaintiff testified that he thought that this event surpassed normal SBPA responsibilities explaining:

It surpassed my normal duties because when you wake up, you motivate agents to wake up at 0400 just to go lay in. That way they can apprehend illegal activities and contraband crossing the United States border. That's just leadership right there. And then you lay in with them, and sure enough, here came the mules trickling in with bundles in their back. We were able to apprehend them, no incident at all. Case accepted by Prosecution, AUSA took the case. We had the evidence. Then in the middle of that, a different call came in. So I was supposed to cut my agents, that they did their shares, their share of work. But they wanted to help and get the missing persons, possibly maybe dead, and they asked for my permission. I gave them the authority, as long as you hydrate, stay safe, stay in radio contact, because radio is very poor, almost nothing, and make sure you move in pairs. So I approved their comp time or what used to be overtime because they went above and beyond, so. And they were motivated. Dehydrated they became, but they did surpass because of the leadership that was given to them. They did surpass their normal duties.

(Doc. 128-9 at pp. 17-18.) Plaintiff's second example was:

One time we were at the checkpoint. And just like when your office comes over to the stations and gives us classes on uncooperative motorists, so I read up on uncooperative motorists. And they came to the checkpoint. And sure enough, this woman, she didn't want to cooperate. She refused us to search the trunk of the vehicle. So I was able to get a canine, the canine hit for drugs. And through tact and patience I told the woman, it's okay, just talk to me. Let me know what's going on. It looks better for you when you talk to me. And she told me everything, she had the drugs in the trunk. So it was a smooth arrest. We moved the vehicle into Secondary because it was at Primary at the checkpoint. No incident, AUSA accepted the case, so, and it was a good case.

(Doc. 128-9 at pp. 18-19.)

Defendant argues that Plaintiff's two examples are not “truly exceptional contributions” warranting an award per CBP policy. Defendant insists, rather, that Plaintiff's examples demonstrate typical Border Patrol activities. Defendant offers, for instance, that in fiscal year 2014, Tucson Sector BPAs made a total of 87,915 apprehensions, seized 971,180 pounds of marijuana, had 39,454 cases accepted for criminal prosecution, and conducted 509 rescue operations. (Doc. 128 at p. 11, ¶ 68.)

This Court agrees with Defendant that Plaintiff's proffered examples demonstrate successful execution of the basic expectations and responsibilities of a SBPA, including mentoring and supervising agents, rescuing migrants in trouble, organizing and deploying assets and resources appropriately, and assisting with prosecutions. As mentioned above, to be eligible for a performance based award an SPBA must do more than the successful completion of assigned tasks or short-term projects. This Court agrees with Defendant and finds that Plaintiff has failed to present evidence that he did anything during the 2014 rating period that was above and beyond the ordinary requirements of the SBPA position.

This Court finds that the undisputed evidence establishes that Plaintiff was denied a 2014 performance bonus because his superiors, applying CBP policy, determined that he failed to meet the criteria for receiving a performance based award.

iii. Plaintiff Has Failed to Show that Defendant's Non-Discriminatory Reason for the 2014 Performance Bonus Denial is Pretext

Because Defendant has proffered evidence of a legitimate non-discriminatory reason for denying Plaintiff a 2014 performance bonus, Plaintiff must produce “specific and substantial” evidence that creates a genuine issue of material fact as to whether he was denied a 2014 performance bonus because of his race, national origin, or color. See Stegall v. Citadel Borad. Co., 350 F.3d 1061, 1066-67 (9th Cir. 2003). In his response, Plaintiff claims that Defendant's proffered reason for denying him a 2014 performance bonus is pretext. (Doc. 137 at pp. 13-14.) He claims that he has put forth evidence that Defendant's reason for denying him a 2014 performance bonus is pretext because “[a]ll the Defendant's immediate management did not keep any notes to show the Plaintiff's comparators [ . . .] performed at an exceptional level or went ‘above and beyond' in the performance of their duties.” Id. at p. 13. He also claims to have established because his 2014 performance review “did not contain any justification for the provided ratings, nor does it provide any feedback that Plaintiff could use to improve.” Id. at p. 14. He also claims that, “[t]he Defendant (sic) statement from all the Watch Commanders that [he] was ‘an average performing supervisor' was so general, conclusory, and vaporous as to offer no substantive explanation of the Defendant (sic) action to deny Plaintiff a [p]erformance [b]onus.” Id. See also, Doc. 137 at pp. 30-31. This Court address Plaintiff's arguments below.

Comparators: Plaintiff argues that two Caucasian BPAs received a performance award in 2014, and thus the reason that he did not receive one must be discrimination. This Court agrees with Defendant's assertion, however, that Plaintiff has not come forward with evidence showing that these two Caucasian SBPAs were comparable to him “in all material respects.” Selig, 447 F.3d at 755. As mentioned above, WC Ramirez conducted Plaintiff's 2014 performance assessment and did not recommend Plaintiff for an award. WC Ramirez testified he did not directly supervise the two Caucasian SBPAs that Plaintiff mentioned, so he played no role in whether or not they received an award. (Doc. 128-7 at p. 56.) Defendant has also offered evidence that the two Caucasian SBPAs were given performance awards based on positive feedback from their supervisors. See, e.g., Doc. 128-8 at pp. 11-13 (establishing that one SBPA “exhibited professionalism and dedication in all aspects of his position” and was “always willing to volunteer for any assignment or tasking and assists agents at every opportunity[,]” and the other SBPA “is always the first to step up and work tirelessly until the job is complete,” “leads from the front,” and “exemplifies the core values of the Border Patrol.”). As laid out above, the WCs at the Ajo Station concurred that Plaintiff's performance was not so exceptional as to merit a 2014 performance bonus. (Doc. 128 at p. 8, ¶¶ 51-54.)

Plaintiff claims he “volunteered for different Forward-Operating Base positions in Boundary Camp.” (Doc. 137 at p. 30.) While that may be the case, without any explanation of what this volunteer occurred entailed, this Court is left to speculate that this single volunteer occurrence demonstrates that his performance was equal to or better than the two SBPAs that Plaintiff identified. Without more, this Court finds that Plaintiff's subjective assessment of his own and others' performance is not sufficient to defeat summary judgment. See, e.g., Igwe v. E.I. DuPont De Nemours & Co., 180 Fed.Appx. 353, 356 (3d Cir. 2006) (granting summary judgment for employer where the plaintiff offered no evidence to undermine the legitimate reason for not giving him a bonus “[b]eyond his own opinion that [employer] treated him wrongfully, unprofessionally, and unfairly.”); Schiff v. City & Cnty. of San Francisco, 816 F.Supp.2d 798, 820 (N.D. Cal. 2011), aff'd, 528 Fed.Appx. 743 (9th Cir. 2013) (holding that “[t]he fact that Schiff personally does not believe the asserted reasons why he was not promoted is not sufficient to transform those reasons into a pretext for discrimination.”).

Justification for Rating: Plaintiff was assessed in writing and he was offered extensive explanation on what types of achievements or activities were included in each stated goal. See Doc. 128-7 at pp. 43-49 (Plaintiff's Employee Plan and Appraisal Form). Plaintiff complains that Defendant did not keep notes regarding his performance throughout the year to justify his performance assessment. However, he has offered no authority that stands for the proposition that a Defendant must do so.

This Court agrees with Defendant that while it is helpful to document an employee's performance throughout the year, a failure to do so is not evidence that an employee's assessment was pretext for race, color, or national origin discrimination. See Shrader v. Palos Anesthesia Assocs., S.C., No. 01 C 2450, 2004 WL 2167909, at *6 (N.D. Ill. Sept. 24, 2004) (finding that “[the p]laintiff has offered no case law, and the [c]ourt has found none, requiring mathematical precision in the awarding of a discretionary bonus, as long as [it was] was not based on [race, color, or national origin].”); Pignato v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994) (holding that “[i]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible.”).

Plaintiff also complains that he was not provided feedback on how he could improve. However, he fails to connect this assertion to an alleged showing of pretext on Defendant's part. Additionally, he received a performance award for fiscal year 2015, clearly evidencing that he improved. (Doc. 128 at p. 9, ¶ 56.)

Watch Commanders' Statements: Lastly, Plaintiff complains that the WCs' testimony that he “was ‘an average performing supervisor' was so general, conclusory, and vaporous as to offer no substantive explanation of the Defendant (sic) action to deny Plaintiff a [p]erformance [b]onus.” (Doc. 137 at pp. 30-31.) This Court disagrees. As laid out above, the proffered testimony from the several WCs is sufficiently substantive to rebut Plaintiff's allegation that he was denied a 2014 performance bonus for the reason he alleges. See Doc. 128 at p. 8, ¶¶ 51-55 (setting forth WCs' testimony).

Plaintiff is required to present evidence sufficient for a rational trier of fact to find that the defendant intentionally discriminated against him. See Wallis, 26 F.3d at 892. To avoid summary judgment, his evidence must be specific, substantial, and significantly probative. Id. This Court finds that Plaintiff has failed to present the requisite specific, substantial, and significantly probative evidence of intentional discrimination.

In sum, this Court finds that there is no genuine issue of material fact for trial on Plaintiff's claim that he was unlawfully denied a 2014 performance bonus. Accordingly, this Court recommends that the district court grant Defendant summary judgment.

c. Plaintiff's Motion for Partial Summary Judgment

As set forth above, Plaintiff moves for partial summary judgment on the claims that he was subject to a hostile work environment as a result of: (1) “[o]n July 10, 2013, [he] was charged a health care premium during the time he was on active duty[;] and (2) “[o]n December 17, 2013, [he] was notified that management had changed the time he spent traveling for training on Sunday, November 17, and Saturday, November 23, from overtime to travel compensatory time.” (Doc. 113 at pp. 1-2.)

As explained above, this Court finds that there is no genuine issue of material fact for trial on the issue of whether the circumstance surrounding Plaintiff being billed for his health insurance premium when he went on active duty military leave constitute an adverse employment action. Also, as explained above, this Court finds that there is no genuine issue of material fact for trial on the issue of whether the circumstances surrounding the change of Plaintiff's overtime for travel to compensatory time constitute an adverse employment action. This Court has also found that the circumstances surrounding both the health insurance premium bill and the change of Plaintiff's overtime for travel to compensatory time are not objectively hostile employment experiences. This Court has also found that Defendant has proffered evidence of legitimate, nondiscriminatory reasons for events surrounding the health insurance premium and the change of Plaintiff's overtime for travel to compensatory time.

Because the parties rely on the same legal theories and same set of material facts on the issues raised by Plaintiff in his Motion for Partial Summary Judgment, this Court's recommendation that the district court grant Defendant's Motion For Summary Judgment translates into a recommendation that the district court deny Plaintiff's Motion for Partial Summary Judgment. See We Are Am., 297 F.R.D. at 381.

V. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that the district court GRANT Defendant's Motion for Summary Judgment and DENY Plaintiff's Motion for Partial Summary Judgment. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:19-CV-220-RM.