Opinion
1: 03-CV-5800-SMS, Order Granting Defendant's Motion for Summary Judgment (Doc. 22).
February 1, 2006
ORDER DIRECTING THE CLERK TO ENTER JUDGMENT FOR DEFENDANT AND AGAINST PLAINTIFF
Plaintiff is proceeding with a civil action in this Court. The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and the case has been assigned to the Magistrate Judge to conduct all further proceedings, including trial and the entry of a final judgment.
I. Background
Plaintiff's first amended complaint was filed on January 5, 2004. Plaintiff alleged that she, a Black African-American, had suffered employment discrimination because of race, age, sex, national origin, disability, reprisal for "prior EEO activity," and violation of 29 C.F.R. §§ 1614.101 and 1614.203. She alleged that after she suffered a condition of her back that was a handicap, Plant Manager Kenneth M. Fennell refused to provide work for Plaintiff since June 25, 1995, despite her being able to do work; she was singled out, required to leave the post office, and was charged as being absent without leave. She further alleged that Defendant followed a policy and practice of discriminating against African-Americans on account of their race and of retaliating against complainants in the EEO process, including inflicting reprisals against employees who filed EEO complaints, failing to accommodate employees, refusing to pay EEO complainants for their time, and refusing work to qualified handicapped employees. Finally, she alleged that Defendant wrongfully terminated Plaintiff on or about June 27, 1995, and knowingly permitted repeated harassment of Plaintiff. She sought damages of $300,000.00; reimbursement for lost wages and lost benefits from June 27, 1995; and an immediate return to work.
The complaint was served on Defendant John E. Potter, Defendant Postmaster General, on January 15, 2004.
Defendant answered on April 6, 2004, admitting that it was subject to Title VII of the Civil Rights Act of 1964, and further admitting Plaintiff's status as a former employee of Defendant, Plaintiff's having been given EEO counseling on or about February 18, 1999, and Plaintiff's having been charged with an extended absence or absence without leave in a notice dated July 17, 1996. Defendant further admitted that Plaintiff received an administrative decision from the EEOC, Appeal No. 01A04120, dated on or about March 4, 2003; an EEOC Administrative Judge issued a decision dated February 23, 2000, without a hearing, pursuant to 29 C.F.R. § 1614.109(g); and the EEOC Office of Federal Operations issued a decision affirming Defendant's final decision on or about September 18, 2002. Defendant denied the allegations of discrimination. Defendant asserted affirmative defenses, including Plaintiff's not being a qualified individual with a disability within the meaning of the Rehabilitation Act of 1973; failure to articulate a prima facie case of discrimination; Defendant's actions were taken for legitimate, nondiscriminatory, and non-pretextual reasons; Plaintiff failed to mitigate damages; reduction of damages from other benefits; lack of causation; failure to show a claim for disability harassment exists under the Rehabilitation Act; and failure to exhaust administrative remedies.
On July 18, 2005, Defendant filed a motion for summary judgment, or, in the alternative, partial summary judgment, including a memorandum of points and authorities, statement of undisputed material facts in support of the motion, and declarations of Kristi C. Kapetan and Carole A. Hughes with exhibits. Because no opposition was filed, the Court vacated the hearing on the motion and deemed the matter submitted for decision by order dated September 2, 2005. Plaintiff subsequently filed on September 9, 2005, a motion for a hearing on the motion for summary judgment. By order dated September 14, 2005, the Court construed Plaintiff's motion as a request to submit late opposition to the motion for summary judgment and to have a hearing; the Court denied Plaintiff's motion. The Court directed that a collective bargaining agreement that Plaintiff submitted with the request be returned to Plaintiff.
II. Undisputed Facts
The undisputed facts submitted by Defendant in support of the motion are as follows:
1. On February 10, 1990, Plaintiff began her employment with the USPS as a mail processor. (Exhibit 6 to Deposition of Belinda Travis, ("Travis Depo."), 63:23-64:12.)
2. Plaintiff was apparently injured and went out on leave on June 27, 1995. (Exhibit 8 to Travis Depo., 66:7-67:4.)
3. On March 21, 1996, the USPS sent Ms. Travis an extended absence letter instructing her to submit medical documentation no later than April 12, 1996, to substantiate her absence. (Travis Depo., 66:14-67:4.)
4. On July 17, 1996, Defendant issued Plaintiff a "Notice of Removal" indicating that Plaintiff would be terminated from the USPS for failure to follow instructions and extended absence. (Exhibit 8 to Travis Depo., 66:7-67:4.)
5. Plaintiff filed a grievance against this letter, which the USPS denied on November 8, 1996, for Plaintiff's failure to follow the instructions in the notice of removal. (Exhibit 9 to Travis Depo., 68:18-69:3.)
6. The matter was submitted to arbitration, and in the arbitration award dated September 9, 1998, Plaintiff was required to go to a fitness for duty exam and "[if] the grievant is not found fit for duty, . . . the removal is upheld." (Exhibit 10 to Travis Depo., 69:11-70:23.)
7. The arbitrator who issued this award is an African-American woman. (Travis Depo., 62:2-8.)
8. Plaintiff did not appeal the September 9, 1998 arbitration award. (Travis Depo., 70:12-23.)
9. On November 11, 1998, Plaintiff underwent a fitness for duty examination. In the Fitness for Duty Report, Dr. Huene stated that Plaintiff should not do any heavy lifting. Dr. Huene further states, "Certainly, there is no objective limitation of any significant abnormality." (Ex. 12 to Travis Depo., 71:24-72:6.)
10. Plaintiff's job position required her to be able to carry up to seventy pounds. (Ex. 6 to Travis Depo., 63:23-64:12.)
11. On December 30, 1998, Defendant sent a letter of termination to Plaintiff. (Ex. 14 to Travis Depo., 72:8-16.)
12. The arbitrator subsequently found on April 2, 1999, that Plaintiff could "not return . . . to duty without limitations" and upheld Defendant's removal from employment with the USPS. (Ex. 15 to Travis Depo., 73:24-74:5.)
13. On March 20, 1999, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), disputing the termination letter issued to her by USPS on December 30, 1998. (Travis Depo., 75:6-75:16.)
14. In a letter dated March 25, 1999, the EEOC accepted for investigation the issue of Plaintiff's termination. (Exhibit 1 to Declaration of Carole A. Hughes.)
15. On September 23, 1999, the USPS filed a motion for a conclusion of the case without a hearing. On October 28, 1999, Plaintiff submitted a request for the issue to be heard by an administrative law judge. (Exhibit 18 to Travis Depo., 75:24-76:17.)
16. On February 23, 2000, an administrative law judge dismissed the complaint without a hearing, finding no discrimination. The sole issue addressed by the administrative law judge was whether or not Plaintiff was discriminated against in her termination from service with USPS. (Exhibit 2 to Declaration of Carole A. Hughes.)
17. Plaintiff appealed the decision of February 23, 2000, and the decision was upheld both initially and upon reconsideration. (Exs. 18, 20 and 22 to Travis Depo., 75:24-76:17; 77:15-78:24.)
18. Prior to the EEOC complaint which led to this litigation, Plaintiff filed and settled a complaint of race discrimination regarding supervisory conduct prior to her termination. Plaintiff did not appeal or exhaust the administrative remedies available to her after the settlement of said complaint. (Travis Depo., 32:1-10; 33:14-15.)
19. Plaintiff submitted a second Fitness for Duty Report issued by Dr. Huene on July 8, 1999, stating that Plaintiff is "released to return to work activities without restrictions." The work activities referred to are those required for a "mark up clerk, automated, Level IV." (Ex. 18 to Travis Depo.)
20. Plaintiff testified that she could walk long enough to go grocery shopping for forty-five minutes, stand in one place for fifteen minutes, twist her back carefully, and lift her granddaughter, who weighs about twenty pounds. (Travis Depo., 55:7-58:13.)
21. Plaintiff names similarly situated individuals outside of her protected gender class that were treated more favorably without providing any specifics regarding the circumstances of employment of those named; she does not have any personal knowledge of those named. (Exs. 3 4 to Travis Depo., Travis Depo., 43:10-58:8.)
22. Plaintiff cannot provide names or ages of individuals she alleges to be younger than she and treated more favorably than she while working at the post office. (Travis Depo., 48:5-8.)
23. Plaintiff provides a general statement of individuals of other races experiencing favorable employment treatment, but does not provide names or specific circumstances of that treatment. (Exs. 3 4 to Travis Depo., Travis Depo., 43:10-58:8.)
24. There were no statements, references, comments, or other verbal utterances indicating Plaintiff was being discriminated against on the basis of her age, sex, or race. (Travis Depo., 48:16-50:8, Exs. 3 4.)
This fact is misnumbered as 26 on Defendant's separate statement of undisputed material facts.
III. Summary Judgment
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is the moving party's burden to establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978).
Where a party with the ultimate burden of persuasion at trial as to a matter moves for summary judgment, it must demonstrate affirmatively by evidence each essential element of its claim or affirmative defense and must establish that there is no triable issue of fact as to each essential element such that a rational trier of fact could render a judgment in its favor. Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). If a party moves for summary judgment with respect to a matter as to which the opposing party has the ultimate burden of persuasion at trial, then the moving party must show that the opposing party cannot meet its burden of proof at trial by establishing that there is no genuine issue of material fact as to an essential element of the opposing party's claim or defense; the moving party must meet the initial burden of producing evidence or showing an absence of evidence as well as the ultimate burden of persuasion. Nissan Fire Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the opposing 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. Id. (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). In order to 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. Id.
However, "where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file."Celotex Corp. v. Catrett, 477 U.S. 317, 323. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. Rule 56(e);Matsushita, 475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
The Court is not obligated to consider matters that are in the record but are not specifically brought to its attention; the parties must designate and refer to specific triable facts. Even in the absence of a local rule, for evidence to be considered, the party seeking to rely on it must specify the fact by indicating what the evidence is or says and must indicate where it is located in the file. Although the Court has discretion in appropriate circumstances to consider other material, it has no duty to search the record for evidence establishing a material fact. Carmen v. San Francisco United School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).
A party moving for summary judgment is entitled to the benefit of any relevant presumptions that support the motion provided that the facts giving rise to the presumption are undisputed.Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 (9th Cir. 1982).
IV. Scope of the Present Action
In the first amended complaint, Plaintiff alleges acts of discrimination by Defendant other than Defendant's terminating Plaintiff's employment, including refusing to provide work for Plaintiff since June 25, 1995, singling out Plaintiff, requiring her to leave the post office, and charging her as being absent without leave. She further alleged that Defendant followed a policy and practice of discriminating against African-Americans on account of their race and of retaliating against complainants in the EEO process, including inflicting reprisals against employees who filed EEO complaints, failing to accommodate employees, refusing to pay EEO complainants for their time, and refusing work to qualified handicapped employees.
The claim filed by Plaintiff with the EEOC is not in the record. However, the EEO's own descriptions of the issues presented, and its recital of the scope of the investigation of Plaintiff's discrimination complaint made to the EEO, indicate that the only issue was whether Defendant's terminating Plaintiff by way of the letter dated December 30, 1998, was discriminatory with respect to race, color, religion, sex, national origin, age, disability, and retaliation (prior EEO activity). (Hughes Decl., Ex. 1; Travis Depo., Ex. 22.) There is no evidence that Plaintiff disagreed with the defined issues, objected, or otherwise sought to expand the scope of the EEO proceeding.
Generally, before filing suit on a statutory employment discrimination claim, the aggrieved employee must have exhausted the employee's administrative remedy by filing a timely and sufficient charge with the appropriate administrative agency and obtained a "right to sue" letter. 42 U.S.C. § 2000e-5(b), (f)(3). The filing of a sufficient administrative claim that includes the matters forming the basis of a later judicial claim, and the receipt of a right-to-sue letter, have been referred to as jurisdictional pre-requisites to maintaining a Title VII action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973) (filing charges with the EEOC and receiving notice of the right to sue are jurisdictional prerequisites to filing a suit in federal court); B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002). The purpose of the requirement of administrative exhaustion is to give the charged party notice of the claim and to permit investigation and conciliation by the administrative agency, as well as to narrow the issues for prompt adjudication and decision. Id.
A judicial complaint may encompass any discrimination like or reasonably related to the allegations of the EEOC charge.Freeman v. Oakland Unified School District, 291 F.3d 632, 636 (9th Cir. 2002) (quoting Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973)). A district court's jurisdiction extends to all allegations of discrimination that either fell within the scope of the EEOC's actual investigation or an EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Freeman, 291 F.3d at 636. A district court must inquire whether the original EEOC investigation would have encompassed the additional charges made in the court complaint but not included in the EEOC charge itself. Id. The language of EEOC charges must be liberally construed because the charges are often made by lay people who are not expert in the technicalities of formal pleading; the crucial element of the charge is the factual statement. B.K.B., 276 F.3d at 1100. Allegations of discrimination not included in the administrative charge may not be considered by a district court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. Id. Factors appropriately considered are the alleged basis of the discrimination, dates of the discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, locations at which discrimination is alleged to have occurred, and the extent to which the judicial claims are consistent with the Plaintiff's original theory of the case. Id.
With respect to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621- 634 (ADEA), EEOC enforcement processes are generally applicable. 29 U.S.C. § 794a(a); 29 U.S.C. § 633a(b) and (c). A plaintiff under the Rehabilitation Act must exhaust administrative remedies as a prerequisite to filing a judicial action, and the judicial action is limited to claims raised in the administrative proceeding and those reasonably related thereto. Brown v. General Services Administration, 425 U.S. 820, 832 (1976); Leong v. Potter, 347 F.3d 1117, 1121-22 (9th Cir. 2003); Boyd v. United States Postal Service, 752 F.2d 410, 413-14 (9th Cir. 1985). An ADEA plaintiff must exhaust administrative remedies with the EEOC as a prerequisite to filing a judicial action, and the judicial action is limited to claims which have been raised in the EEOC charge unless they are reasonably related to the allegations of the charge. 29 U.S.C. § 626(c), (d); Albano v. Schering-Plough Corp., 912 F.2d 384, 386 (9th Cir. 1990).
The postal service is an employer subject to the ADEA with respect to personnel actions affecting employees who are at least forty years of age. 29 U.S.C. § 633a(a).
Here, the dates of the additional discriminatory acts alleged by Plaintiff in her judicial complaint necessarily preceded the time of the discharge. The Defendant's conduct mainly had to do with distribution of work and discipline; they were not related to the sole issue remaining after the arbitration, namely, the result of Plaintiff's fitness for duty examination, and Defendant's conduct undertaken with respect to Plaintiff thereafter. Plaintiff's broader allegations of a generalized policy and practice of harassment, racial discrimination, and retaliation against complainants in the EEO process were not necessarily inconsistent with the theory of the complaint, but they were likewise unlike the conduct involved in Plaintiff's termination; because of their scope, they appear necessarily to have involved more persons and other periods of time. A reasonable investigation of Plaintiff's administrative complaint of discriminatory discharge would have focused on the reason for Plaintiff's discharge, the results of the fitness for duty examination, and the physical requirements of Plaintiff's work. Although the theory of discrimination in discharge was compatible with that underlying the additional discriminatory acts, there does not appear to be a reasonable relationship between the charged conduct and the additional conduct complained of in this action. See Aramburu v. The Boeing Co., 112 F.3d 1398, 1409-10 (10th Cir. 1997) (holding that where the administrative charge was for discriminatory discharge based on Mexican-American ancestry, and it involved allegedly unfair application of attendance policy, Plaintiff did not exhaust his claim of hostile work environment on the basis of Mexican ancestry which related to harassment and being required to work beyond medical restrictions because such claim was not reasonably related to the administrative claim); Tart v. Hill Behan Lumber Co., 31 F.3d 668, 673 (8th Cir. 1994) (holding that filing a charge of discriminatory discharge based on race did not exhaust a claim of racial harassment in the workplace in a case involving state law governed by Title VII standards).
It is true that in some sense the Plaintiff's absence, the availability of work, and the earlier treatment of Plaintiff may have played some part in Plaintiff's termination. However, the presence of some relatively distant, logical relationship between Defendant's earlier treatment of Plaintiff on the job and the ultimate decision to terminate Plaintiff based on her physical condition is something different from, and significantly less than, a reasonable relationship such that Plaintiff's generalized claims of discrimination and retaliation would be included in an EEOC investigation of discharge based on the arbitration and award and the Plaintiff's fitness for duty. To conclude otherwise would do violence to the policies underlying the requirement of exhaustion of administrative remedies.
V. Disparate Treatment under Title VII
Title 42 U.S.C. § 2000e(2)(a)(1) and (2) provides in pertinent part that it is 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 of employment, because of such individual's race, color, religion, sex, or national origin; or to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
Proof of discrimination requires proof that an adverse employment action was suffered because of the protected characteristic. This may be proved by a theory of disparate treatment, disparate impact, or failure to accommodate where there is a duty to do so.
A plaintiff in a suit for discriminatory treatment pursuant to Title VII of the Civil Rights Act of 1964 must prove that there has been intentional discrimination on prohibited grounds, that is, that similarly situated individuals were treated differently because of a protected characteristic, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15 (1977); discriminatory motive must be proved, id., and it must be shown that it was the determinative factor or influence in the adverse employment action, Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
A plaintiff must carry the initial burden to establish a prima facie case of racial discrimination. Thereafter, the employer has the burden of proof to articulate a legitimate, nondiscriminatory reason for the challenged action. The plaintiff must then show by a preponderance that the employer's stated reason for the action was in fact mere pretext. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-806 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In order to demonstrate a prima facie case, a plaintiff must offer evidence that gives rise to an inference of unlawful discrimination. Burdine, 450 U.S. at 253-54. A plaintiff may accomplish this by introducing direct evidence of discriminatory intent (i.e., evidence which, if believed, proves the fact [here discriminatory animus] without inference or presumption, Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998); by introducing evidence that suggests that the employment decision was based on an illegal discriminatory criterion; or by using factors such as those set forth in McDonnell Douglas at 802 (there, showing membership in a protected class, qualification for a position, rejections despite qualifications, and the employer's continuing to seek applicants). Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1148-49 (9th Cir. 1997).
Because the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff, the burden of persuasion never shifts; rather, a defendant's burden is to rebut the presumption of discrimination by producing evidence that the reason for the challenged action was legitimate and nondiscriminatory. The defendant need not persuade the Court that it was actually motivated by the proffered reasons; it is sufficient that the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.Burdine, 450 U.S. at 254-55. This requirement is met if the defendant clearly sets forth through admissible evidence the reasons for the challenged action that are legally sufficient to justify a judgment for the defendant. Id. at 255. Once this burden of production is met, the presumption raised by the prima facie case is rebutted, and it disappears. Id.
The plaintiff's burden at this point is to persuade the Court that the plaintiff has been the victim of intentional discrimination, which may be accomplished either 1) directly by persuading the Court that a discriminatory reason more likely motivated the employer, or 2) indirectly by showing that the employer's proffered explanation is unworthy of credence.Burdine, 450 U.S. at 256.
Here, Plaintiff did show that she was a member of protected classes (race, color, sex, national origin) and suffered an adverse employment action.
As to Plaintiff's qualifications for her position, Plaintiff's complaint was unverified, so it cannot constitute evidentiary material in the usual sense. Plaintiff has not submitted direct evidence warranting a conclusion that she successfully performed her job at the time of termination. However, she did submit evidence from which an inference may be drawn that Plaintiff was qualified to perform her job.
Exhibit 6 to Plaintiff's deposition is a form regarding the medical examination and assessment completed on or about February 1, 1990, near the time of Defendant's hiring of Plaintiff. The pre-employment portion of the form states that it embodies information to be used to determine fitness for duty. With respect to the functional requirements of Plaintiff's position as a mail processor, it indicates that an essential factor of her duty was to perform "Heavy lifting, up to 70 pounds." Another essential requirement was "Heavy carrying UP TO 70 Lbs." (Decl. of Kapetan, Ex. 1, Travis Depo. at 63-64, Ex. 6.) Dr. Huene's evaluation of November 11, 1998, which precipitated Plaintiff's dismissal, was that Plaintiff had a normal range of motion of the cervical spine, shoulder, elbow, forearm, wrist, and hand; comparable grasping power with slight tenderness over the left lateral epicondyle that increased with gripping and grasping; and normal range of motion of the lumbar spine, hip, knee, ankle, and foot. The neurological exam in the upper and lower extremities was negative; reflexes were intact; and there was no evidence of any motor loss or sensory deficit. (Id. at p. 3.) The diagnostic impression was lateral epicondylitis, left elbow; chronic low back pain without objective findings; and no objective findings in the region of the left arm, wrist, hand, foot, or right shoulder. Any permanent residuals were subjective in nature and slight such that they would not interfere with any work activities. He found no specific objective factors of any abnormality aside from scoliosis, which would not interfere with any activity. Although there was tenderness to palpation in the lumbosacral area, there were no significant findings that would be compatible with a lumbar disc problem. The only work preclusion was, "I would recommend that she not do any very heavy lifting." (Decl. of Kapetan, Ex. 1, Travis Depo. at 72, Ex. 14, Letter from Huene.)
Moderate lifting was defined as lifting of fifteen to forty-four pounds, and light lifting under fifteen pounds.
The Court is faced with a discrepancy, in that Plaintiff's position appeared to require "heavy" lifting, whereas Plaintiff's fitness for duty exam precluded only "very heavy" lifting. It is possible that Dr. Huene's preclusion covered lifting of seventy pounds or less; however, it is also possible that "very heavy" lifting was lifting in excess of the heavy lifting requirement of seventy pounds, and that therefore Dr. Huene's evaluation did not preclude Plaintiff from performing her position. This Court is required to draw in favor of Plaintiff, the non-moving party, all favorable inferences from the evidence.
Plaintiff testified at deposition that she tried not to bend or stoop and instead would get on her knees or use her feet, she was very careful about her back in lifting, she knew she could lift twenty pounds for a short period of time, and she would try but was not sure if she could lift anything much over twenty pounds. (Decl. Kapetan, Ex. 1, Travis Depo. at 55-58.) However, this testimony apparently described Plaintiff's condition at the time of her deposition, and it was not inconsistent with her position's requirements of intermittent bending; further, because of Plaintiff's uncertainty in her testimony, it was not even necessarily inconsistent with the requirement of heavy lifting and carrying. (Id., Ex. 1, Ex. 6 to Travis Depo.)
Accordingly, the Court concludes that Plaintiff has submitted evidence that warrants an inference that she was capable of performing, or qualified to perform, her position at the time of termination.
However, Plaintiff failed to show that Plaintiff's position remained open and was ultimately filled by a person not a member of the protected class. See, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). In this regard, she has failed to produce evidence warranting an inference of discriminatory intent as the determinative factor in her discharge.
With respect to discriminatory animus based on gender, Plaintiff's testimony at deposition that similarly situated individuals who were not female were treated more favorably does not suffice to suggest animus because Plaintiff has not submitted evidence to establish that the individuals were similarly situated with respect to the significant circumstances. (Id., Ex. 1 at 47-48.) It has been recognized that evidence of treatment of others in comparable circumstances may be probative of motive. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). However, the proponent of comparative evidence has the burden of establishing that the circumstances and actions in question are sufficiently comparable to warrant the inference in question. See Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992) (imposing on the plaintiff the obligation to establish that for the same or similar conduct in all pertinent respects he was treated differently from similarly-situated non-minority employees); Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir. 2004) (requiring the proponent of evidence that other employees, who were not in the protected class, were treated better, to establish that they were similarly situated, including showing that the individuals had dealt with the same supervisor, had been subject to the same standards, and had engaged in the same conduct without any mitigating or distinguishing circumstances, and determining that a mere opinion that other employees were not treated similarly was insufficient and amounted to no more than speculation, conjecture, or fantasy).
Plaintiff gave workers' names but did not know the employees or their age, race, or disability; Plaintiff was just given the names by the union. Plaintiff's responses to interrogatories naming male employees who were allowed to work and for whom accommodations were made, (id., Ex. 4 at 2), also suffered from a lack of detail that would warrant an inference of animus.
Plaintiff testified that there were no verbal utterances by agents of Defendant that supported her gender discrimination claim. (Kapetan Decl., Ex. 1 at 48-49.)
The Court concludes that Plaintiff has not submitted evidence warranting an inference of discriminatory animus based on gender.
With respect to racially discriminatory animus, the Court finds similarly insufficient Plaintiff's statement under oath in her responses to the first set of interrogatories that employees of the postal service of other races were allowed to work, and accommodations were made for their conditions. (Kapetan Decl., Ex. 1, Travis Depo., Exs. 3 and 4.)
Here, there is an absence of evidence as to the pertinent circumstances of actions undertaken with other employees, such as the standards applied, the similarity of the circumstances, or the presence of any mitigating or distinguishing circumstances. Although Plaintiff testified that health and safety employee Pauline, who was Mexican, was given accommodations, Plaintiff did not know the nature of her condition, her restrictions, or the accommodation. (Travis Depo. at 45-46.) Plaintiff was told by the union people that some disabled people had been given accommodations by the postal service, but she did not personally know the employees, their names, or the nature of their injuries. (Id. at 46-47.) The mere statement that accommodations were made for others who were allowed to work, without evidence of the circumstances, does not warrant an inference of racially discriminatory animus.
Plaintiff testified that there were no verbal utterances by agents of Defendant that would support her claim of racial discrimination. (Kapetan Decl., Ex. 1 at 48-50.)
The fact that Plaintiff previously complained that she had suffered race discrimination by another supervisor, Malanie, at some previous time (Kapetan Decl., Ex. 1, pp. 32-33) does not support an inference of racial discrimination because the evidence does not disclose any relationship between the two events, whether it be based on time, similar circumstances, or otherwise, that would warrant an inference of animus. Cf., Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1149 (9th Cir. 1997).
There being no other evidence suggesting that racially discriminatory animus was a factor in Plaintiff's termination, the Court concludes that Plaintiff failed to make a prima facie case of racial discrimination with respect to her termination.
There is no other evidence before the Court suggesting that the reason for Plaintiff's termination was discriminatory, or otherwise indicating that Defendant's actions or the circumstances surrounding them would warrant an inference that discrimination based on gender, race, color, or national origin. Therefore, the Court concludes that Plaintiff failed to make a prima facie case of discrimination on these bases with respect to her termination.
VI. Retaliation Claim under Title VII
A federal employee has a claim under Title VII for retaliation by the federal government as an employer for prior EEO activity, such as filing an EEO complaint. White v. General Services Administration, 652 F.2d 913, 916-17 (9th Cir. 1981); Ayon v. Sampson, 547 F.2d 446, 449-50 (9th Cir. 1976). An employer undertaking an adverse employment action can violate the anti-retaliation provisions of Title VII in either of two ways: 1) if the adverse employment action occurs because of the employee's opposition to conduct made an unlawful employment practice by the statute, or 2) if it is in retaliation for the employee's participation in the machinery set up by Title VII to enforce its provisions. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997).
To establish a prima facie case of retaliation, a plaintiff must establish that 1) the plaintiff engaged in a protected activity, 2) the plaintiff suffered an adverse employment action; and 3) there was a causal connection between the activity and the employment decision. Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003). Initiating contact with an EEO counselor constitutes a protected activity. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997). Termination is an adverse employment action. Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004).
The FAC refers to reprisal for prior EEO activity, but the nature of this is not specified. There is a further reference to a pattern and practice of retaliating against complainants in the EEO process, including inflicting reprisals against employees who filed EEO, failing to accommodate employees, refusing to pay EEO complainants for their time, and refusing work to qualified handicapped employees. However, as previously analyzed, there was no mention of this broader pattern or practice in the administrative charge, and it was not reasonably related to the charge or an investigation thereof. Thus, the analysis will cover the allegation of reprisal for prior EEO activity in connection with Plaintiff's termination.
The evidence reveals that prior to the EEOC complaint which led to this litigation, Plaintiff filed and settled a complaint of race discrimination regarding supervisory conduct prior to her termination, and Plaintiff did not appeal or exhaust the administrative remedies available to her after the settlement of the complaint. (Travis Depo. at 32-33.) With respect to the substance of the complaint, Plaintiff testified that she was always sweeping, but there was a rule that a worker was supposed to sweep and feed; further, she felt that Malanie, a supervisor, would not allow her to take a break with co-workers because of her race. Plaintiff talked to Manny Fernando, an EEO advisor, who facilitated a settlement pursuant to which Plaintiff dropped her claim, and the supervisor agreed to stop the offending practices. Plaintiff did not recall when she filed the complaint regarding the prior incident. The Court has not been directed to evidence of the timing of the incident or the EEO process relating to it. (Id.)
Temporal proximity or other circumstances may warrant an inference of retaliatory motive. Porter v. California Department of Corrections, 419 F.3d 885, 895 (9th Cir. 2005). Here, there are no circumstances in evidence that would tend to establish a causal connection between the protected activity and the termination.
Accordingly, the Court concludes that Plaintiff has not demonstrated a prima facie case of retaliation for protected activities under Title VII.
VII. Discrimination under the ADEA
Under the Age Discrimination in Employment Act, 29 U.S.C. § 633a(b) and (c), personnel actions shall be made free from any discrimination based on age. Under the ADEA, it is unlawful 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 of employment because of such individual's age, or to limit or classify employees in any way that would tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of age. 29 U.S.C. § 623(a). In litigating under the ADEA, a plaintiff is met with the same requirements for a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 309 (1996) (assuming the McDonnell-Douglas framework applied to ADEA cases); Enlow v. Salem-Keiser Yellow Cab. Co., Inc., 389 F.3d 802, 811-12 (9th Cir. 2004) (stating applicability in ADEA cases involving circumstantial evidence).
Here, Plaintiff's evidence of discriminatory animus based on age was insufficient to raise an inference of discrimination. Plaintiff declared in answers to interrogatories and in her deposition testimony that younger employees with disabilities were allowed to work with accommodations for their condition such as light-duty positions, but she did not know their names or their ages; she was just assuming they were younger than she. (Kapetan Decl., Ex. 1 at 44-45, Ex. 4 to Travis Depo at 1.) She gave no information as to the nature of their conditions or the accommodations in question. Under the circumstances, there is insufficient data regarding similarity of the situations to warrant an inference of discrimination based on age.
VIII. Rehabilitation Act
The Rehabilitation Act provides that no otherwise qualified individual with a disability in the United States shall solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under various programs or activities that receive federal assistance or are conducted by an executive agency, and specifically the United States Postal Service. 29 U.S.C. § 794(a). With respect to claims of discrimination by a federal employee, the remedies, procedures, and rights set forth in Title VII of the Civil Rights Act of 1964 are applicable. 29 U.S.C. § 794a. This remedy is exclusive and requires exhaustion of administrative remedies. Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985).
With respect to the Rehabilitation Act, Plaintiff is met with the requirement of stating a prima facie case. Douglas v. Anderson, 656 F.2d 528, 530-32 (9th Cir. 1981) (applying theMcDonnell Douglas burden-shifting framework to a Rehabilitation Act claim). Plaintiff must show that 1) Plaintiff had a disability covered by the act; 2) Plaintiff was otherwise qualified for the position; 3) Plaintiff worked for a covered entity; and 4) the employer took adverse action against the plaintiff solely because of a disability. Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990). If the plaintiff makes out a prima facie case of wrongful termination, the burden shifts to the defendant to demonstrate a legitimate, nondiscriminatory reason for the termination. Id. Summary judgment for a defendant is still proper if the defendants can rebut any prima facie case with evidence of a nondiscriminatory reason for the termination. Id.
As to Plaintiff's disability, Plaintiff must prove that she is a qualified individual with a disability. The standards used to determine whether an act of discrimination violated the Rehabilitation Act are the same standards applied under the Americans with Disabilities Act ("ADA"). Coons v. Secretary of the United States Department of the Treasury, 383 F.3d 879, 884 (9th Cir. 2004). According to the ADA, an individual is disabled if that individual (1) has a physical or mental impairment that substantially limits one or more of the individual's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.Id.
The evidence indicates that Plaintiff can walk for forty-five minutes, stand for fifteen minutes in one place, and can twist her back and lift about twenty pounds; Plaintiff cannot perform any very heavy lifting, although physical examination revealed that at the time of termination, she suffered no objective limitation of any significant abnormality. She avoided bending, but the extent of her ability to bend is not shown.
Although lifting may be considered a major life activity, Plaintiff has not shown a substantial limitation of her lifting ability. Cf. Thompson v. Holy Family Hospital, 121 F.3d 537, 539-40 (9th Cir. 1997) (holding that inability to lift over twenty-five pounds or to perform heavy lifting was not a substantial limitation). As to the life activity of working, as previously discussed, one reasonable inference warranted by the evidence is that Plaintiff could perform her job's lifting requirement; another is that she could not. Even if the only reasonable inference were that Plaintiff could not perform her position, Plaintiff has not produced evidence showing that her condition excludes her from an entire class of jobs, as the Supreme Court has held is required:
To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.Sutton v. United air Lines, Inc., 527 U.S. 471, 492 (1999). Plaintiff claimed that she could perform another job in the postal service that involved using a new machine. (Travis Depo. at 50.) Plaintiff has not shown that she had a disability within the meaning of the statute.
Based on the state of the evidence, it follows that Plaintiff has not demonstrated that she had a medical record of an impairment that substantially limited a major life activity.
Further, there is no evidence that Plaintiff was regarded as having an impairment that substantially limited a major life activity. The fact of her termination for lack of fitness for her position warrants an inference that she was regarded as unable to perform her job due to lack of lifting ability, but not that she was suffering from a disability within the meaning of the statute.
IX. Plaintiff's Response to the Motion
Plaintiff filed a response to Defendant's motion for summary judgment, arguing that her witnesses and evidence had not been heard, and responding to various points. By order dated September 14, 2005, the Court denied Plaintiff's request for a hearing and determined that she was not entitled to be heard in opposition to the motion because she had failed to show good cause for her failure to file a timely opposition. Thus, the Court will not consider on the merits materials submitted by Plaintiff in opposition to the motion.
X. Disposition
In summary, with respect to her discharge, Plaintiff has failed to produce evidence warranting an inference of discriminatory intent on the basis of race, ancestry, sex, national origin, age, or disability. She has also failed to produce evidence warranting an inference of retaliatory discharge. Plaintiff has failed to make a showing sufficient to establish the existence of elements essential to her case and on which she will bear the burden of proof at trial. Defendant is entitled to judgment as a matter of law on Plaintiff's claims.
Accordingly, it IS ORDERED that
1) Defendant's motion for summary judgment IS GRANTED; and
2) The Clerk IS DIRECTED to enter judgment for Defendant John E. Potter, Postmaster General, United States Postal Service, and against Plaintiff Belinda M. Travis.
IT IS SO ORDERED.