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LOGAN v. PRINCIPI

United States District Court, N.D. California


September 16, 2004.

BRIDGET LOGAN, Plaintiff,
v.
ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs Defendant.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; VACATING HEARING
(Docket Nos. 27, 39)
Before the Court is defendant's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, proceeding pro se, has filed opposition,*fn1 to which defendant has replied. Having considered the papers filed in support of and in opposition to defendant's motion, the Court deems the matter suitable for decision thereon, VACATES the hearing scheduled for September 17, 2004, and rules as follows.

BACKGROUND

  Plaintiff is an employee of the Department of Veterans Affairs, (see Compl. at 1), where she works as a medical clerk/program support clerk, (see Logan Dep. at 26:24-27:8).*fn2 Plaintiff, in her complaint, alleges the following: "On the basis of race and reprisal (participation in an EEO protected activity), I was subjected to harassment, a hostile work environment and working conditions. On the basis of disability (adjustment disorder with anxiety and mental depression) and reprisal, management failed to accommodate." (See Compl. at 2.) Plaintiff also alleges that defendant "refused to transfer [plaintiff] after [she was] physically pushed by a nurse practitioner." (See id.) Plaintiff further alleges: "[Defendant] failed to acknowledge my disability, removal of derogatory correspondence in personnel file, and reimbursement of leave without pay." (See id.) Plaintiff alleges the "discrimination" occurred from December 6, 1999 to the "present."*fn3 (See id.)

  LEGAL STANDARD

  Rule 56 provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R. Civ. P. 56(c).

  The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See Celotex, 477 U.S. at 324 (quoting Rule 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial, "`inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" See Matsushita, 475 U.S. at 587 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

  DISCUSSION

  Plaintiff's complaint, liberally construed, alleges defendant discriminated against plaintiff, i.e., subjected plaintiff to disparate treatment, on the basis of plaintiff's race and disability, retaliated against plaintiff for her exercise of protected activity, failed to accommodate plaintiff's disability, and subjected plaintiff to a hostile work environment.

  Defendant, in his motion, argues that plaintiff cannot establish any of her claims. Defendant's motion is supported by a memorandum of points and authorities and by four declarations.*fn4 Although plaintiff has submitted various documents in support of her opposition, plaintiff, with one exception noted below, has not submitted any admissible evidence in support of her opposition.

  First, plaintiff's "affidavit," filed August 31, 2004, and her "declaration," filed September 3, 2004, are not verified and thus include only argument.*fn5 Moreover, although plaintiff has attached exhibits to both of said filings, she did not authenticate any of those exhibits or otherwise show they are admissible and, accordingly, defendant's objection to the exhibits is hereby SUSTAINED. Second, the first of the two declarations filed September 13, 2004, specifically, the declaration in which plaintiff purports to authenticate some or all of the exhibits attached to her September 3, 2004 filing, as well as new exhibits attached to her September 13, 2004 filing, is insufficient to authenticate any such exhibit because plaintiff's declaration does not include any statement from which a trier of fact could find the "`matter in question is what its proponent claims.'" See Federal Rule of Evidence 901(a); Orr v. Bank of America, NT & SA, 285 F. 3d 764, 773 (9th Cir. 2002) (holding "unauthenticated documents cannot be considered in a motion for summary judgment").*fn6

  Finally, although the second of the two declarations filed September 13, 2004, specifically, the one to which no exhibits are attached, includes a few statements of fact that appear to be within plaintiff's personal knowledge, the vast majority of said documents consist of legal argument, (see, e.g., Declaration, filed September 13, 2004 at 3:21-23 (plaintiff "declaring" that "defendants are liable for both compensatory and exemplary damages")). Consequently, the only admissible evidence offered in support of plaintiff's opposition are the few statements of fact contained in the second of the two declarations filed September 13, 2004.

  Turning to the above-referenced statements of fact, the Court finds that none pertains to the claims plaintiff alleges in her complaint. Some of the statements relate facts pertaining to the procedural manner in which plaintiff filed opposition, (see, e.g., id. at 2:7-14, 2:17-18), and have no bearing on the merits of plaintiff's claims. The remaining statements refer to matters not in dispute, specifically, plaintiff's informing her supervisors that her co-worker had "assaulted" her, (see id. at 4:8-11), and matters not relevant to plaintiff's claims, specifically, plaintiff's having incurred an "injury" as a result of the incident involving her co-worker,*fn7 (see id.). Accordingly, to the extent plaintiff has submitted admissible evidence in support of her opposition, such evidence does not assist plaintiff in establishing a material issue of fact warranting a trial.

  The Court next turns to the question of whether defendant has met his burden to show the absence of a genuine issue of fact as to plaintiff's claims. See Henry v. Gill Industries, Inc., 983 F. 2d 943, 950 (9th Cir. 1993) (holding motion for summary judgment appropriately granted only where moving party shows "there are no genuine issues of material fact"; observing "party opposing the motion is under no obligation to offer affidavits or any other materials in support of its opposition"). Having fully considered defendant's evidence, and the arguments set forth in the accompanying memorandum of points and authorities, the Court, for the reasons discussed below, finds that defendant has demonstrated the lack of any genuine issue of material fact and has shown he is entitled to judgment as a matter of law.

  A. Disparate Treatment

  Plaintiff, at her deposition, identified the following actions as discriminatory in nature: plaintiff's supervisor "had a smirk on her face" when plaintiff reported that she had been pushed by a co-worker, and then "nothing was done immediately,"*fn8 (see Logan Dep. at 34:20-25); plaintiff was "lied on by being written up for things [she] did not do," (see id. at 35:18-19); plaintiff was suspended without pay for one day "due to the write-ups," (see id. at 35:19-20, 290:15-17); and plaintiff was "constantly detailed to different locations,"*fn9 (see id. at 35:21-22). Also, although unclear from plaintiff's deposition, it appears, as defendant submits, that plaintiff is alleging that her receipt of "written counseling" after the "push" incident was an adverse employment action. (See Def.'s Mot. at 12:3.)

  Even assuming, arguendo, each of the employment decisions on which plaintiff bases the instant action constitutes an adverse employment action, defendant has shown that plaintiff lacks evidence that any similarly situated person outside of plaintiff's protected class(es) was treated more favorably than plaintiff, or any other evidence, whether direct or circumstantial, of discriminatory treatment. See Fonseca v. Sysco Food Services of Arizona, Inc., 374 F. 3d 840, 847 (9th Cir. 2004) (holding plaintiff, to establish prima facie case of discrimination, must, inter alia, offer evidence that "similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination"). Moreover, although plaintiff has submitted insufficient evidence to shift the burden to defendant to do so, defendant has articulated legitimate non-discriminatory reasons for the written counseling, written reprimand, and one-day suspension, and shown plaintiff lacks evidence to establish defendant's articulated reasons are a pretext for unlawful discrimination. See id. at 849 (holding, where defendant articulates "legitimate, non-discriminatory reason" for adverse employment action, plaintiff must offer evidence to show reason given is "pretext").

  B. Retaliation

  Assuming, arguendo, each of the employment decisions on which plaintiff bases the instant action constitutes an adverse employment action, defendant has shown that plaintiff lacks evidence to establish a causal link between any such action and her protected activity. See Manatt v. Bank of America, NA, 339 F. 3d 792, 800 (9th Cir. 2003) (holding plaintiff, to establish prima facie case of retaliation, must, inter alia, offer evidence to support finding "causal link exists between the protected activity and the adverse action"). Moreover, as discussed above, defendant, although not required to do so, has articulated legitimate non-discriminatory reasons for giving plaintiff written counseling, a reprimand, and a one-day suspension, and shown that plaintiff lacks any evidence to demonstrate defendant's articulated reasons are a pretext for unlawful retaliation. See id. (holding, where defendant articulates "legitimate, non-discriminatory reason" for adverse employment action, plaintiff must offer evidence to show that reason given is "pretext").

  C. Failure to Accommodate

  Defendant has shown that plaintiff lacks any evidence to demonstrate her mental impairment substantially limits any major life activity or that plaintiff's requests, to the extent not granted, were related to plaintiff's mental impairment, let alone that any such request, if granted, would have assisted her in performing her job. See Mustafa v. Clark County Sch. Dist., 157 F. 3d 1169, 1176 (9th Cir. 1998) (holding plaintiff, to establish failure to accommodate claim, must establish, inter alia, that her impairment "substantially limits one or more major life activities" and that any rejected accommodations would "have resulted in his ability to perform the essential functions of his job"). Additionally, as defendant has further shown, plaintiff lacks any evidence to dispute defendant's showing that many of plaintiff's requests were granted.

  D. Hostile Work Environment

  Defendant has shown that plaintiff lacks evidence to support a finding that she was subjected to verbal or physical conduct because of her membership in a protected group or her participation in protected activity, and lacks evidence that any unwelcome conduct was sufficiently severe or pervasive to alter the conditions of her employment. Accordingly, plaintiff lacks evidence to establish a prima facie hostile work environment claim. See Manatt, 339 F. 3d at 798 (holding plaintiff, to establish prima facie hostile work environment claim, must, inter alia, offer evidence she was subjected to verbal or physical conduct "because of" her membership in protected class and that the conduct was "sufficiently severe or pervasive to alter the conditions of [her] employment").

  E. Plaintiff's Arguments

  As discussed above, the admissible evidence plaintiff has submitted in opposition to defendant's motion is insufficient to create a triable issue of fact. The balance of plaintiff's opposition consists of argument. The Court, having fully considered plaintiff's argument, finds that plaintiff has failed to show why defendant's motion should not be granted.

  To the extent plaintiff argues that defendant's motion is procedurally insufficient for failure to include a "sufficient statement of uncontroverted facts," (see Pl.'s "Affidavit" at 2:1-2), plaintiff is incorrect, as the motion is supported by a detailed statement of uncontroverted facts, (see Def.'s Mot. at 3-8). To the extent plaintiff makes additional allegations in support of her claims, (see, e.g., Pl.'s "Affidavit" at 2:26 (alleging one of defendant's declarants "perjured herself"), such allegations are insufficient to defeat defendant's motion. See Celotex, 477 U.S. at 324 (holding where moving party has met burden to show absence of disputed issues of fact warranting trial, opposing party must, to defeat motion, offer evidence establishing existence of triable issues). To the extent that plaintiff appears to allege entirely new claims, such as a claim for battery or for violation of Occupational Safety and Health Act ("OSHA") requirements, such claims are not alleged in the complaint and, consequently, are not before the Court. See Coleman v. Quaker Oats Co., 232 F. 3d 1271, 1292-93 (9th Cir. 2000) (holding plaintiffs, whose complaint alleged employment discrimination under theory of disparate impact, could not, at summary judgment stage, add new theory of discrimination based on disparate impact; noting that "[a] complaint guides the parties' discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff's allegations").*fn10

  Finally, to the extent plaintiff seeks a continuance to enable her to "call as witnesses [] many of the transferred non white employees," (see Pl.'s "Amended Declaration" at 8:1-4), plaintiff's request is insufficient. Plaintiff has not stated the "particular facts" she expects any witness would offer, has not identified any witness, has not explained why the statements of any witness would be sufficient to defeat the motion, and has not explained why she was unable to offer, with her opposition, declarations from any such "witnesses." See Mackey v. Pioneer Nat'l Bank, 867 F. 2d 520, 523-24 (9th Cir. 1989) (holding opposing party, to be entitled to continuance of motion for summary judgment, must set forth "particular facts" witnesses would offer, explain why such facts would be sufficient to defeat the motion for summary judgment, and state why such party "cannot immediately provide `specific facts' demonstrating a genuine issue of material fact").

  CONCLUSION

  For the reasons expressed above, defendant's motion is hereby GRANTED.

  The Clerk shall close the file.

  This order terminates Docket Nos. 27 and 39.

  IT IS SO ORDERED.


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