Opinion
3:21-cv-333-JR
08-07-2023
WILMORE LEE WASHINGTON, III, Plaintiff, v. JANET YELLEN, Secretary of the Treasury, et al., Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff, Wilmore Washington, brings this action alleging employment discrimination and retaliation relating to his employment as an internal revenue agent in Phoenix, Arizona. After defendants moved for summary judgment on October 15, 2021, the Court appointed volunteer counsel to assist plaintiff with discovery. See Orders dated January 24 and 25, 2022 (ECF 33 and 34). Volunteer representation concluded on or about February 10, 2023 (ECF 45).
After allowing defendants' time to respond to plaintiff's further discovery requests, the Court provided plaintiff with an additional 60 days to respond to the motion for summary judgment. (ECF 48). Before responding to the motion for summary judgment, plaintiff moved for an adverse inference asserting defendants failed to fully respond to his discovery requests. For the reasons stated below, the Court should deny the motion for an adverse inference and grant the motion for summary judgment.
BACKGROUND
The Internal Revenue Service (IRS) hired plaintiff as a revenue agent in 2009. On November 18, 2016, plaintiff's supervisor, Damaris Pimental, evaluated plaintiff's performance as generally exceeds fully successful with a performance score of 3.8. Defense Exs. at p. 129 (ECF 21-1). Pimental did note, with respect to one case, plaintiff:
did not take the appropriate actions to complete this case in the most efficient manner. You did not have periods of inactivity and you worked on it every month, but it took you 537 days to complete this audit. I noticed that you promptly scheduled a meeting with the taxpayer and 44 days to hold the initial interview on 6/27/2014 and continued working the case every month. It seems that you were not working the case significantly and you were doing little things and slowly working on the case. You also needed to summarize the activity you were working on more clearly.Id. at p. 138
On December 12, 2016, Christopher Eippert took over as plaintiff's supervisor and expressed concerns with plaintiff regarding lack of timely actions and procrastination and provided plaintiff with feedback indicating his performance had decreased in a number of critical job elements. Id. at pp. 82-85.
Plaintiff applied for a position as a GS-12 level revenue agent toward the end of 2016 and, after learning he was not selected, initiated a non-selection complaint. Plaintiff initiated a formal complaint on May 17, 2017. That complaint is still under adjudication at the administrative level. Id. at p. 218. Plaintiff is not seeking review of that decision in this Court. Id.
On July 5, 2017, Eippert completed a mid-year evaluation. Id. at pp. 142-67. Eippert noted specific examples of problem areas in plaintiff's performance. Plaintiff refused to sign an acknowledgement of receipt of the review. Id. at p. 142.
On November 22, 2017, Eippert completed plaintiff's annual review and rated plaintiff as fully successful with a total score of 3.6. Id. at p. 169. Program manager John Murphy acted as the reviewing official. Again, Eippert noted specific areas in which plaintiff could improve. E.g., id. at pp. 177 (failure to follow whistleblower guidance, not completing minimum income probe steps); p. 192 (applying time to cases that is not supported by the work done); p. 193 (numerous significant gaps of inactivity). Again, plaintiff refused to sign the evaluation. Id. at p. 169.
After the 2017 review, plaintiff contacted an Equal Employment Opportunity (EEO) counselor and lodged a complaint on February 16, 2018. Id. at pp. 200-02. Plaintiff asserted:
the fact that I have filed a discrimination complaint against Southwestern area and others for not getting a promotion, I have suffered employee retaliation and harassment from the southwestern area (territory manager John Murphy and my current group manager Christopher Eippert), I do believe others there as well.
The employee retaliation action occurred November 23, 2017, and it was by my Current Group Manager Christopher Eippert. The harassment has continued since the time I have filed the prior EEO complaint in which my current group manager was aware of it.
Biweekly meetings which went on for two hours, daily visit to my desk to check on me, even when I was on vacation, he came to look at my desk ridiculing me when I was ask for help highly critical of my work making me feel bad for taking time off including sick days requesting for opportunities for training and being denied and opportunities (Territory manager as well) I had a case with NAT and initial interview, he disrespected me in the POA while I was interview by putting me down I missed a meeting by him overextending and then in write up talks about my overage, makes it hard for me to close cases, smirked at me for my overage in which he has presided an entire year, based on the last manager, I was able to close and my overage was very low,but he has kept me there he did not respond to email of concerns and rebuttals.
I am still in the same place with cases I was last year, it is a hostile environment, the overage was put on me during that time and it is still there, the cases I closed
prior to Christopher Eippert as my manager has been way more. This environment has also affected my health in a negative way which forced me in taking more SL and AL.Id. at p. 201.
Before this Court, plaintiff alleges claims for retaliation and harassment. Specifically, plaintiff alleges:
John Murphy, Shelley Foster, and Christopher Eippert held me back because of being an African American Male. This case is about how, due to my race, sex and my prior EEO activity against John Murphy for non-promotion, they reduced my appraisal score to Fully Successful from highly competitive Exceeds Fully Successful, to make me ineligible for future promotions. They tried to downgrade me, failed my prior successfully evaluated cases, my rebuttals were ignored, put me in PIP program, denied me opportunities and these activities coincided with progress of non-promotion EEO (race, sex). Chris micromanaged me, made me feel bad for taking time off, highly critical of my work, refused to close cases to create overages. John intentionally targeted due to African American Male, Shelley Foster condoned it.Complaint (ECF 1) at p. 5.
Plaintiff submits over 400 pages of attachments to his response to the motion for summary judgment. Much of it contains hearsay such as statements of his own version of the facts as stated in his EEO complaints. In recommending the grant of summary judgment, this Court has not considered inadmissible evidence plaintiff purports supports his claims of retaliation and discrimination. In addition, plaintiff repeatedly claims defendants lie under oath and are engaged in a coverup. Plaintiff even suggests the EEO investigator helped protect the lies. Response (ECF 54) at p. 14. In this respect, plaintiff engages in speculation which is insufficient to raise a question of fact. See Munoz v. Mabus, 630 F.3d 856, 865 (9th Cir. 2010) (“Merely denying the credibility of the employer's proffered reasons is insufficient to withstand summary judgment.”).
A. Retaliation
To state a claim for retaliation under Title VII, a plaintiff must demonstrate: (1) he engaged in a protected activity; (2) he suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment decision. Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008).
1. 2017 Annual Review
As noted above, plaintiff asserts he suffered adverse employment actions because he filed a complaint of discrimination related to his non-selection for a GS-12 position. The primary action of which plaintiff complains is his 2017 yearly evaluation in which his overall performance rating dropped from 3.8 to 3.6. While plaintiff alleges this slight drop from “generally exceeds fully successful” to “fully successful” made him ineligible for future promotions, defendants state the performance rating did not affect his compensation or privileges of employment. Plaintiff provides no admissible evidence demonstrating the rating affected his employment conditions. Indeed, despite submitting a 60-page brief in response to the motion for summary judgment and over 400 pages of attachments, plaintiff does not address the issue of how the performance rating resulted in adverse consequences. See Response (ECF 54) at pp. 6-7 (plaintiff disputes the facts regarding why he received the evaluation rating but does not address how it resulted in an adverse employment condition). Accordingly, plaintiff fails to present a prima facie case of retaliation with regard to his performance appraisal. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) (“A tangible employment action 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.”); Taitt-Relf v. Olympus Corp. of Americas, 2019 WL 4261059, at *2 (N.D. Cal. Sept. 9, 2019) (To establish employment retaliation it is not enough to show that the employee has been subj ected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.).
2. Case Reviews
Plaintiff alleges defendants failed his prior successfully evaluated cases. Plaintiff does not identify the cases he claims were previously successful. Plaintiff merely asserts John Murphy removed his previous supervisor because she would not agree to participate in discriminating against plaintiff and Christopher Eippert was willing to harass plaintiff in order to get his own promotion. Response (ECF 54) at pp.7-8. Plaintiff fails to demonstrate the reviews resulted in adverse employment actions. Indeed, as noted above, his performance score dropped only .2 of a point under Pimental which did not adversely impact his compensation or privileges of employment. Accordingly, plaintiff fails to demonstrate a prima facie case of retaliation based on case reviews.
3. Rebuttals
Plaintiff alleges his rebuttals were ignored. It is not clear why plaintiff believes this was an adverse employment action, but the record shows that Eippert provided a written response to plaintiff's rebuttals regarding his 2017 annual rating. Defense Exs. at pp. 204-11 (ECF 21-1). Plaintiff fails to demonstrate a prima facie case of retaliation based on his rebuttals.
4. Training
In his February 2018 EEO complaint, plaintiff asserts he was denied training opportunities. Defense Exs. at p. 201 (ECF 21-1). The record show plaintiff was not selected for a QuickBooks license because there is a limited number of licenses available, plaintiff's group already had a QuickBooks resource person, and it was not relevant to plaintiff's duties. Id. at p. 58. Plaintiff asserts he was the only one who did not receive a license in his group, but plaintiff's own submissions show that another person in addition to plaintiff was interested in obtaining a license when available and non-defendant Mary Lou Silva noted she did not want the current users replaced. Plaintiff's Ex. F at p. 15 (ECF 54-7). Plaintiff does not provide sufficient evidence to allow a trier of fact to infer an adverse employment action or a causal link to his protected activity as plaintiff provided no evidence Silva was aware of the EEO complaint.
Plaintiff asserts he was denied medical marijuana training while a white woman in his group was provided the training. In May 2017, in plaintiff's duty station, two slots for medical marijuana training became available. The selectee from plaintiff's group had experience in auditing medical marijuana issues as she had testified in such cases in Colorado, had a higher pay grade, and at the time, plaintiff was not working at the “fully successful” level. Plaintiff's Ex. H at p. 23 (ECF 54-9); Defense Exs. at pp. 59-60. (ECF 21-1). Plaintiff does not present evidence to connect this decision to retaliation for his complaint. Moreover, plaintiff does not show how the failure to provide training materially affected his job such that it was an adverse employment decision. As such, plaintiff has failed to present a material issue of fact as to whether denials in training opportunities demonstrate a prima facie case of retaliation.
5. Acting Manager Role
Plaintiff asserts John Murphy told Eippert not to select plaintiff for an acting managing role for a day due to vacation conflicts because “it can come back to bite you.” As with plaintiff's other allegations of retaliation, he fails to demonstrate this was an adverse employment decision sufficient to make out a prima facie case of retaliation.
6. Biweekly Meetings
Plaintiff asserts Eippert required him to attend biweekly meetings for up to two hours. However, Eippert met with all of his agents at least once a month for one to two hours to discuss their cases. Defense Exs. at pp. 21, 50-51. (ECF 21-1). Plaintiff fails to demonstrate an issue of fact as to any retaliatory motive for the meetings.
7. Time off
Plaintiff alleges Eippert made him “feel bad” for taking time off. However, the record shows Eippert approved plaintiff's request for time off. Defense Exs. at pp.54-57. (ECF 21-1). While Eippert did suggest plaintiff consider shortening one request for 104 hours of leave due to some cases with upcoming deadlines, Eippert nevertheless approved plaintiff's leave request. Id. Plaintiff again fails to present a prima facie case of retaliation given the lack of adverse employment action and link to his complaint.
Plaintiff cites an email to John Murphy suggesting that Eippert should deny the 104 hours of leave until the cases with upcoming deadlines were resolved (Plaintiff's Ex. F at p. 20 (ECF 54-7). However, plaintiff testified that Eippert did approve plaintiff's entire vacation request. Deposition of Wilmore Lee at p. 87 (attached to Supplemental Declaration of Austin Rice-Stitt (ECF 56-1) at p. 2).
8. Work Critique
Plaintiff alleges Eippert was overly critical of his work. However, Eippert testified to numerous occasions in which he made other revenue agents aware of their mistakes as well. Defense Exs. at pp.17-18. (ECF 21-1). Plaintiff again fails to demonstrate a sufficiently adverse employment action or a link to his complaint of discrimination.
B. Hostile Work Environment
To state a claim for hostile work environment, a plaintiff must allege that (1) he was subjected to unwelcome verbal or physical conduct because of his race, and (2) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment. Pringle v. Wheeler, 478 F.Supp.3d 899, 912 (N.D. Cal. 2020).
To determine whether conduct was sufficiently severe or pervasive to violate Title VII, courts look at the totality of the circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Plaintiff must show a concerted pattern of harassment of a repeated, routine, or generalized nature. Faragher v. City of Boca Raton, 524 U.S. 775, 788, (1998); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994). In addition, the working environment must be both subjectively and objectively perceived as abusive. Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as amended (Jan. 2, 2004). Subjectively, the evidence must show that the harassment is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, i.e., pollute the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position. McGinest, 360 F.3d at 1113. Objectively, courts look at “all the circumstances,” including “the frequency of the 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.” Harris, 510 U.S. at 23; McGinest, 360 F.3d at 1113. The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. Harris, 510 U.S. at 23.
Plaintiff's allegations and the little admissible supporting material he provides simply does not rise to the level of severe and pervasive unwelcome conduct based on race such that a trier of fact could reasonably conclude that the conditions of his employment were abusive. While plaintiff complains of several instances of unwanted conduct in the form of critiques and perceived undeserved performance evaluations, he paints a picture of nothing more than a difference of opinion as to his work performance. See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1109 (9th Cir. 2008) (performance related comments insufficient to demonstrate hostile work environment based on race). Accordingly, defendants are entitled to summary judgment on this claim.
To the extent plaintiff's complaint raises a discrimination claim based on the failure to promote or constructive discharge, such claims have not been exhausted and plaintiff agrees they are not before this Court. Defense Exs. at pp.218, 225. (ECF 21-1). As such, defendants are entitled to summary judgment as to all claims alleged in the complaint and the case should be dismissed.
C. Motion for Adverse Inference
Plaintiff moves the Court to make an adverse inference against defendants asserting defendants have withheld documents to protect John Murphy against whom:
they have enough evidence that he constantly Discriminated and Harassed Plaintiff until his health deteriorated, but still want him to enjoy the benefits of being Territory Manager and continue his discriminatory practices because of being from privileged race, while Defendant uses all his power to try to suffocate Plaintiff voice by putting their knee on his neck and make it extremely difficult to have a fair chance in this Court Case due to his underprivileged race.Motion (ECF 50) at p. 23)
This Court has previously denied plaintiff's request for spoilation finding an insufficient basis to demonstrate destruction of evidence. In addition, the Court ordered defendant IRS to provide all records requested by plaintiff or certify it has exhausted all reasonable efforts to locate any such documents. Defendant subsequently certified that all relevant and responsive documents in its possession have been provided to plaintiff (ECF 49). The Court was persuaded the first time plaintiff asserted spoilation and the Court is not persuaded now that defendant withheld any relevant discovery or destroyed such evidence knowing it had a duty to preserve it. The motion should be denied.
CONCLUSION
Defendants' motion for summary judgment (ECF 20) should be granted and plaintiff's motion for an adverse inference (ECF 50) should be denied. A judgment should enter.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.