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September 16, 2004.

ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs Defendant.

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

(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.


  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.)


  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)).


  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 ...

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