FINDINGS AND RECOMMENDATIONS
This matter came before the court on September 11, 2009 for hearing of defendant's motion for summary judgment (Doc. No. 42). Plaintiff Joanna O. Easterly, proceeding pro se, appeared telephonically on her own behalf. Lynn Trinka Ernce, Esq. appeared on behalf of defendant Pete Geren, Secretary of the Army. Oral argument was heard, and defendant's motion for summary judgment was taken under submission.
For the reasons set forth below, the undersigned now recommends that defendant's motion be granted.
When plaintiff commenced this action, she was a member of the California Army National Guard and an employee of the Department of the Army. On June 28, 2007, plaintiff commenced this action by filing a complaint in which she disagreed with an unspecified EEOC decision and alleged various forms of discrimination by defendants Army and Secretary. The vague and conclusory pleading was dismissed with leave to amend. Plaintiff filed a timely amended complaint on July 27, 2007, alleging four claims against defendants Army, Secretary, EEOC, and Does 1-50. The court authorized service of the amended complaint on defendants Army, Secretary, and EEOC.
In her amended complaint plaintiff alleged that she repeatedly requested a day of leave for the day of a mandatory event in May 2003 due to her disabled daughter's illness, but the requests were denied and she was forced to take her daughter with her to the event, to the detriment of the child's health. Plaintiff claimed that the denial of leave constituted discrimination by defendants Army and Secretary in violation of the Family Medical Leave Act ("FMLA"), the Americans With Disabilities Act ("ADA"), the Due Process Clauses of the Fifth and Fourteenth Amendments, Title VII, 42 U.S.C. §§ 1983 and 1985, and 18 U.S.C. § 245.
In her amended complaint, plaintiff also describes an incident that occurred on December 7, 2003, when a co-worker made a derogatory gesture toward plaintiff, stared at her, and made sexual gestures within plaintiff's personal space. Plaintiff alleged that there were four witnesses, she reported the incident through the chain of command, no action was taken, the co-worker continued to harass her, and her subsequent complaints about harassment were ignored. Plaintiff alleged that defendants Army and Secretary caused or permitted a hostile work environment, gender discrimination, and sexual harassment, in violation of plaintiff's rights under Title VII and her rights to due process under the Fifth and Fourteenth Amendments.
Next, plaintiff alleged that she was retaliated against in various ways after she contacted the EEO Office to file a complaint in June 2004. She claimed that various individuals refused to assist her with a pay issue, placed an offensive screensaver on her phone, wrote a negative performance appraisal related to her personal family issues, refused to promote her, and moved her to a lower pay grade position with no computer, phone or desk, which caused plaintiff to suffer such severe stress that she was forced to take five weeks off from work. Plaintiff alleged that defendants Army, Secretary, and EEOC caused or permitted the discrimination, retaliation, and hostile work environment to occur, in breach of their duties to plaintiff and in violation of her rights.
Finally, plaintiff alleged in her amended complaint that she was traumatized by a hostile work environment, on-going retaliation, and continuing harassment that was caused or permitted by defendants Army, Secretary, and EEOC. Plaintiff alleged that defendants violated her rights under the Fifth and Fourteenth Amendments, 42 U.S.C. §§ 1983 and 1985, and 18 U.S.C. § 245.
On May 9, 2008, the undersigned issued findings and recommendations with respect to a motion to dismiss filed by the defendants recommending that the motion to dismiss be granted and that: (a) Defendants Department of the Army, Equal Employment Opportunity Commission, and Does 1-50 be dismissed with prejudice; (b) all claims under the Family Medical Leave Act, the Americans With Disabilities Act, 42 U.S.C. §§ 1983 and 1985, the Due Process Clauses of the Fifth and Fourteenth Amendments, 18 U.S.C. § 245, and 28 U.S.C. § 1343 be dismissed with prejudice; (c) Title VII and Rehabilitation Act claims based on denial of a quality step increase, a negative performance evaluation, and transfer to a different section at a lower grade be dismissed with prejudice; (d) all remaining Title VII and Rehabilitation Act claims of discrimination, sexual harassment, hostile work environment, and retaliation proceed solely against defendant Secretary of the Army; and that defendants be granted leave to file an amended Answer to plaintiff's first amended complaint. Those findings and recommendations were adopted in full by the assigned district judge on September 26, 2008.
On October 9, 2008, the defendant filed an answer to the amended complaint. Thereafter, a scheduling order was issued under which discovery closed in this case on July 10, 2009. The defendant's timely motion for summary judgment now pending before the court with respect to the remaining claims followed.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Legal Standards Applicable to a Motion for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).
A party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," ...