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Ramirez v. Nicholson

November 27, 2007


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Defendant R. James Nicholson, Secretary of Veterans Affairs, moves for summary judgment on Plaintiff Carlos Ramirez's employment discrimination complaint. Plaintiff opposes the motion. For the reasons set forth below, the motion for summary judgment is granted in part and denied in part. The court grants summary judgment in favor of Defendant on all claims except the claim arising from Plaintiff's March 14, 2005 demotion.


On March 14, 2006 Plaintiff commenced this employment discrimination action seeking relief from alleged age and national origin discrimination and review of the administrative decision of the Merit Systems Protection Board ("MSPB") denying his claims of discrimination. Plaintiff is presently a 73 year old Filipino who, in "1987, went to work for the Department of Veteran's Affairs ("DVA") as a file clerk (GS-3)."

(Compl. ¶¶6-8). Over the years, Plaintiff was promoted and achieved the pay grade of GS-13. (Compl. ¶7).

In mid-2002 Plaintiff began to socially interact with a Caucasian female co-worker, Ms. Pastorek, who was about 20 years younger than Plaintiff. (Compl. ¶¶10-11). Plaintiff "felt that he needed to inform management of the situation because this female co-worker was one of plaintiff's subordinates." (Compl. ¶11). Plaintiff informed his second level supervisor, Michael Dusenberry, of the situation. Plaintiff was informed by Dusenberry that Plaintiff should tell his first line supervisor, Mark Daniels, of the situation so that either plaintiff or his girlfriend could be moved out of the same chain of command. (Compl. ¶12). When informed of the relationship, Daniels allegedly became agitated and shouted at Plaintiff. (Compl. ¶14). Almost immediately thereafter, Plaintiff alleges that, among other things, he suffered the following adverse consequences: in 2003 he was subjected to an unjustified formal reprimand, he was transferred to a different work section, his work was ignored, he was required to provide weekly written reports on his work, there was a proposal to terminate his employment, and he was placed on a Performance Improvement Plan ("PIP"). Id. In 2004, Plaintiff was subjected to further alleged acts of harassment consisting of a continuation of the PIP, the denial of a pay grade increase, and a demotion.

In May 2004 Plaintiff contacted a DVA Equal Employment Opportunity ("EEO") Counselor and thereafter filed a formal complaint of discrimination with the DVA. (Compl. ¶16). After exhausting his claims within the DVA, on June 28, 2005 plaintiff filed a "mixed case" appeal to the MSPB. (Compl. ¶16). On February 14, 2006 the MSPB issued a decision adverse to Plaintiff. Id.

The parties do not dispute the following background facts. Shortly after Plaintiff informed management about his relationship with Ms. Pastorek, Plaintiff was transferred to a then recently vacated Triage Team Coach position in April 2003. Plaintiff agreed to the transfer as he recognized that he and Ms. Pastorek could not work in the same chain of command. The Triage Coach position did not affect Plaintiff financially.

Following the transfer and at all relevant times, Barbara Meyers was Plaintiff's immediate supervisor, and Mark Daniels her immediate supervisor. Mark Daniels supervised about 180 employees and was the direct supervisor of Barbara Meyers.*fn1 Between April 16, 2003 and March 15, 2004 Plaintiff was subjected to 27 complained of acts consisting of reprimands, suspensions, Report of Contacts ("ROC"), Letters of Counseling, Extension of the Performance Improvement Plan , Admonishments, denial of within grade pay increase, and lastly, on March 15, 2004 Plaintiff was demoted to a GS-11 pay grade position as a Senior Veterans Service representative. (Exhs. M, AW, Z, AA, Y, AB, AX, AC, AD, AE, AF, AG, AH, AL, AK, AL, AM, AN, AO, AP, AQ, AR, AS, AT, AU, AZ, AV). Plaintiff continues to work at the GS-11 pay grade. The parties also do not dispute that prior to Plaintiff's promotion to Team Coach, and after his demotion, Plaintiff received fully satisfactory to excellent work-related appraisals.

Based upon the above generally described conduct, Plaintiff alleges two claims for discrimination based on age and race or national origin. Plaintiff challenges his demotion and alleged workplace harassment under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq., as amended; Title VII of the Civil Rights Act, as amended, 42 U.S.C. §2000e-20003(16) (based on national origin); and the Civil Service Reform Act ("CSRA"), codified in various sections of Title 5 of the United States Code. Plaintiff also seeks review of the MSPB decision denying his claims. Defendant moves for summary judgment on all claims. Plaintiff opposes the motion.


Legal Standards

A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] 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.'" Id. at 324, 106 S.Ct. At 2553 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, when "'the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.'" Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) ...

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