The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Michael Chertoff, Secretary, Department of Homeland Security moves for summary judgment on Plaintiff Cathy Kennedy Reyes' claims of unlawful employment retaliation under Title VII of the Civil Rights Act of 1964, specifically 42 U.S.C. §2000e. Reyes claims two incidents of adverse employment action allegedly taken in retaliation for her prior Equal Employment Opportunity Commission complaints. Having considered all of the evidence in the light most favorable to Plaintiff, the Court finds that Defendant is entitled to summary judgment on Plaintiff's Complaint. Accordingly, Defendant's Motion for Summary Judgment is Granted.
Plaintiff began working for the United States Border Patrol in January 1985. Reyes Declaration ¶ 1. In 1991, she began working for the United States Customs Service Canine Unit.
Reyes Decl. ¶ 8. In 1994, she became part of the "currency program" in the Canine Unit, working with dogs to detect and identify unlawful importation of cash at the United States - Mexico border. Reyes Decl. ¶ 9. In April 1997, Plaintiff found herself in the middle of a disagreement between managers over the use of overtime. Plaintiff's decision to work overtime at the authorization of one manager despite the override of another manager led to an admonishment by the second manager,*fn1 followed by Plaintiff's filing of an "EEO complaint."*fn2 Reyes Decl. ¶10. Plaintiff began to experience workplace difficulties shortly after the April 1997 conflict with management. Reyes Decl. ¶ 12.
In August 1998, she was accused of daily improperly crossing against the flow of pedestrian traffic across the United States - Mexico border with her child. Reyes Decl. ¶¶16-19. In early September 1998, Plaintiff received a Letter of Caution from Canine Enforcement Chief, Thomas L. Iverson.*fn3 Again in mid-September 1998, another Canine Unit employee reported to a supervisor that he had witnessed Plaintiff driving her government vehicle in a dangerous manner. Reyes Decl. ¶21. In October 1998, Plaintiff received another Letter of Caution from Canine Enforcement Chief, Thomas L. Iverson concerning Plaintiff's reckless driving of a government vehicle. Reyes Decl. ¶26; Defendant's Memorandum of Points and Authorities, Exhibit C-9. In December 1998, five Canine Unit Officers signed a letter outlining some 23 areas of serious problems with Plaintiff's work performance and asked for Plaintiff's removal from the midnight team. Reyes Decl. ¶30; see also Defendant's Memorandum of Points and Authorities, Exhibit D-10. Plaintiff was immediately moved off of the midnight shift to another shift. Reyes Decl. ¶34.
Approximately eight months later, in August 1999, Plaintiff and 13 other officers applied for a temporary (90 day) position as a Canine Unit team leader. Plaintiff was not selected. Approximately two years later, near the end of a pregnancy, she requested an inter-office transfer from one location to another. She did not receive the transfer. Plaintiff alleges in her Complaint that these two management decisions were taken in retaliation for her prior protected EEO activity.
A. Burden of Proof on Summary Judgment
As noted, Defendant is moving for summary judgment on Plaintiff's claims -- claims which Plaintiff would have the burden of proof at trial. Thus, Defendant "is not required to produce evidence showing the absence of a genuine issue of material fact with respect to" the claims. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989), cert. denied, 110 S.Ct. 51 (1989). Nor is Defendant required to "support his motion with affidavits or other similar materials negating" the claims. Id. at 1543. Rather, Defendant "need only point to shortfalls in the Plaintiff's case to demonstrate the absence of evidence" supporting her claims. Id.*fn4 Defendant may do this by simply pointing to the pleadings and arguing that Plaintiff has failed to establish an element essential to her case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To defeat summary judgment, Plaintiff "must respond with more than mere hearsay and legal conclusions." Orr v. Bank of America, NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (citation omitted). Plaintiff also "must do more than simply show that there is some metaphysical doubt as to the material facts*fn5 ." Id. (citation omitted); see also Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Rather, Plaintiff must come forward with sufficient evidence demonstrating to the Court that there are genuine issues of material fact to be decided at trial. Fed. R. Civ. P. 56(e). To do so, Plaintiff "may not rely merely on the unsupported or conclusory allegations of her pleadings." Coverdell v. Department of Social and Health Services, State of Wash., 834 F.2d 758, 769 (9th Cir. 1987) (citations omitted); see also Celotex Corp., 477 U.S. at 324. That is, the Plaintiff "may not rest upon the mere allegations or denials of her pleadings," but must respond "by affidavits or . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. Put differently, the Plaintiff must "present affirmative evidence from which a jury might return a verdict in her favor." Phelps Dodge Corp., 865 F.2d at 1542 (citation and internal quotation omitted). And, "a complete failure of proof concerning an essential element of her case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
B. Elements of a Title VII Retaliation Claim
To establish a prima facie retaliation claim under Title VII, a plaintiff must show that: (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) a causal link exists between the protected activity and the employer's action. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000).
The anti-retaliation provision does not protect an employee from all retaliation, only retaliation which produces material harm. In the words of the Supreme Court, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405, 2415 (2006). Thus, the adverse action must ...