MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiff Freddy Arias brought this action against John McHugh in his official capacity as Secretary of the Army*fn1 for damages and cost recovery pursuant to the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-83, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2006). Defendant John McHugh, Secretary of the Army, now moves for summary judgment on plaintiff's First Amended Complaint ("FAC") pursuant to Federal Rule of Procedure 56 on the basis that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law.
I. Factual and Procedural Background
Plaintiff is was at all relevant times a lawfully admitted permanent U.S. resident, and was hired by the U.S. Department of the Army on October 7, 2002, through the Student Temporary Employment Program ("STEP")*fn2 as an office clerk at Pine Flat Lake. (See Pl.'s Response to Def.'s Statement of Undisputed Facts (Docket Nos. 67-68) ¶¶ 11, 14; Amended Taylor Decl. (Docket No. 65) Ex. 1.) In January of 2003, plaintiff changed positions to become a student park ranger at Pine Flat Lake (Pl.'s Response to Def.'s Statement of Undisputed Facts ¶ 15; Amended Taylor Decl. Ex. 2.) Plaintiff eventually worked through the Student Career Experience Program ("SCEP"). (Amended Taylor Decl. Ex. 7.)*fn3 Students in either STEP or SCEP programs can be non-citizens, provided they are a lawfully admitted permanent resident or otherwise authorized to be employed. 5 C.F.R. § 213.3202(a)(6), (b)(6). SCEP students must obtain U.S. citizenship, however, before they are eligible to be noncompetitively converted to a term, career, or career conditional appointment. Id. § 213.3202(b)(6)(ii).
In 2006 Ken Manning, the security officer for the Sacramento District of the Army Corps of Engineers, discovered three non-citizen contractors in the Sacramento District with access to Department of Defense occupied buildings and computer systems in violation of their contracts. (Amended Taylor Decl. Ex. 53 (Manning Depo.) 16-17.) In response, Manning set out to determine if there were any other non-U.S. citizens working in the Sacramento District who were not complying with security protocol. (Id. at 15-17.) Manning sent an e-mail request to front-line supervisors in the District requesting them to identify anyone who was not a United States citizen working in their area. (Id. at 16.) Manning received e-mails in response that revealed four additional non-citizens, all of whom were employed under student-excepted appointments and were not complying with governing security regulations for non-citizens. (Id. at 17.)
Two of these employees, plaintiff and Hector Galvan, worked in the student program at Pine Flat Lake. Both plaintiff and Galvan were Mexican citizens. Manning believed that the Department of Army regulations required all non-citizen employees to be identified as such in all Department of Defense communications, and that such employees would have to have their access cards modified to display a red stripe. (Id. at 18, 31-32.) Manning advised managers on August 22, 2006, that security regulations must be enforced; specifically, that any non-U.S. citizen employees must change their Outlook e-mail identifier and access card to reflect their non-citizenship status. (See Amended Taylor Decl. Ex. 36 (Pl's Resp. to Req. for Admissions Set One) ¶¶ 51, 58.) Access cards of non-citizens were to be changed to have a red stripe when before they had a white stripe, and the Outlook identifier was changed to include "Non-US Citizen". (Pl.'s Index of Exhibits Ex. 9.) On August 24, 2006, plaintiff's supervisor, Michael LaFrentz, forwarded Manning's e-mail to plaintiff and Galvan and instructed them to comply. (Amended Taylor Decl. Ex. 8-10.) Non-citizen employees in the Sacramento District also had their citation-issuing authority revoked. (See Amended Taylor Decl. Ex. 54 (Friedman Depo.) 17-19; id. Ex. 48 (LaFrentz Depo.) 27-28.) On September 25, 2006, plaintiff's citation authority was revoked and he had to relinquish his badge and citation book. (Amended Taylor Decl. Ex. 36 (Pl's Resp. to Req. for Admissions Set One) ¶ 65.)
On September 27, 2006, plaintiff made contact with the Equal Employment Opportunity Commission and filed his first discrimination complaint on November 2, 2006. (See Amended Taylor Decl. Ex. 14.). Plaintiff alleged race, national origin, and disability discrimination and retaliation for the (1) change in his Outlook identifier; (2) change in his access card; (3) revocation of his citation authority; (4) transfer from the SCEP program down to the STEP program on September 25, 2006; (5) stress caused by the situation and subsequent need to request several days sick leave(6); discriminatory jokes he experienced at work related to his ethnic background; (7) assignment to work Christmas due to discrimination or possible retaliation for filing his EEOC complaint; (8) denial of a training opportunity in December 2006; and (9) charging him as AWOL on October 6, 2006. (Amended Taylor Decl. Ex. 14, 21.) Claims 1, 2, and 3 were accepted by the Army's EEO office for investigation, and claims 4-9 were dismissed because they had not previously been brought to the attention of an EEO counselor as required by the regulations. (Amended Taylor Decl. Ex. 21.)
Plaintiff's EEO claim was denied on June 26, 2008. (Amended Taylor Decl. Ex. 33.) The EEOC opinion stated that it was denying plaintiff's claims because classification on citizenship is not actionable, none of the alleged actions were "ultimate employment decisions" subject to Title VII protection, decisions were not based on his race or national origin, no retaliation occurred since the issues raised in the complaint occurred prior to his EEO protected activity, and plaintiff's disability claim arose after the events that gave rise to the action. (Id. Ex. 33.)
On October 9, 2006, plaintiff was scheduled to work at the Fresno Columbus Day Fair and showed-up for work late and left early, for a total of 1.5 hours, without requesting permission in advance and in violation of attendance policies. (Amended Taylor Decl. Ex. 12-13.) LaFrentz talked to plaintiff on October 12, 2006 about complying with his time schedule and his work performance and attitude. (Id. Ex. 13.) Plaintiff submitted a retroactive request for leave for the October 9, 2006 incident, which was denied on October 13, 2006. (Id. Ex. 12.) Plaintiff's reason for seeking leave for the time missed was "due to school ending at 1400" and "to catch-up on school work." (Id.) Plaintiff was therefore charged with being Absent Without Leave ("AWOL"). (Id. Ex. 13.) On October 13, 2006, plaintiff was issued a "Need for Improvement" memorandum which cautioned that the citizenship issue should not interfere with plaintiff fulfilling his job responsibilities. (Id. Ex. 13.)
Plaintiff's next annual review by LaFrentz, covering the period from May 1, 2006 through April 31, 2007, was positive, but not as positive as plaintiff's earlier reviews. (See (Amended Taylor Decl. Ex. 29.) Plaintiff took leave on May 6, 2007 as a result of stress, and again took leave on July 20, 2007 after a meeting with LaFrentz regarding plaintiff's work duties. (See Amended Taylor Decl. Ex. 20.) In July 2007 plaintiff was agin counseled about leave policies. (Amended Taylor Decl. Ex. 20, 22.)
On August 6, 2007, plaintiff called LaFrentz five minutes after he was scheduled to appear for work and told LaFrentz he overslept and would be an hour late to work. (Amended Taylor Decl. Ex. 23, 29.) LaFrentz then called his supervisor, Calvin Foster, to inform him he was inclined to charge plaintiff as AWOL. (Id. Ex. 23-24.) Foster then called his supervisor, Jim Sander, and informed him of his phone call with LaFrentz. (Id. Ex. 24.) When plaintiff showed-up for work, LaFrentz engaged plaintiff in a conversation which became heated. (Id. Ex. 23, 29.) Plaintiff walked out of LaFrentz's office during the conversation and prepared a request for sick leave to present to LaFrentz. (Id. Ex. 23, 29.) LaFrentz called Foster again informing him of the conversation. While LaFrentz was on the phone, plaintiff re-entered LaFrentz's office and presented a leave slip for sick leave for his remaining shift. (Id.) LaFrentz told plaintiff to wait until he was finished with his phone conversation, to which plaintiff responded that he was leaving and that LaFrentz had better "hurry up." (Id. Ex. 23, 29.) Foster requested LaFrentz to put plaintiff on the telephone so Foster could speak with plaintiff, which plaintiff refused. (Id. Ex. 23-24, 29.) Plaintiff left LaFrentz's office and called him a "jerk" in front of other employees. (Id. Ex. 23, 29.) Plaintiff then left work without having his leave request approved. LaFrentz conveyed these events fo Foster, who subsequently conveyed them to Sander. (Id. Ex. 24.)
Foster and Sander decided to place plaintiff on paid administrative leave pending an investigation into the August 6, 2007 incident. (Id. Ex. 24-26.) LaFrentz subsequently signed a removal letter on August 20, 2007 terminating plaintiff, which was effective August 27, 2007. (Amended Taylor Decl. Ex. 27-28.) The letter cited attendance-related offenses and "discourtesy in the workplace" as the reasons for plaintiff's termination. (Id. Ex. 27.)
Plaintiff filed his second EEOC complaint of discrimination on October 6, 2007, again pleading discrimination on the basis of race, national origin, and retaliation. (Id. Ex. 29.) Plaintiff alleged race and national origin discrimination and retaliation for (a) the August 6, 2006 AWOL charge; (b) the May 17, 2007 level 3 performance rating; (c) being placed on administrative leave on August 6, 2007; (d) receiving a July 20, 2007 call from LaFrentz regarding plaintiff's July 21 and 22 requests for leave; (e) being asked to sign a leave slip signed by LaFrentz and harassment by him on July 23, 2007; and (f) the August 27, 2007 termination of employment. (Id. Ex. 29, 32.) On October 24, 2007, the EEOC accepted claims a, c, and f and dismissed claims b, d, and e for failure to bring those claims to the EEOC within forty-five days of their occurrence as required by the regulations. (Id. Ex. 32.) Plaintiff's complaint was denied on March 19, 2009, because plaintiff filed the instant lawsuit on September 19, 2008. (Id. Ex. 34]; see 29 C.F.R. § 1614.107(a)(3) (dismissing EEO complaints that are the basis of a civil action in federal court involving the complainant, provided 180 days have passed since complainant filed the EEO complaint).
Plaintiff filed the instant lawsuit on September 19, 2008 in the Northern District of California, which merged the two EEO complaints in one federal action. (Docket No. 1.) The action was transferred to this district on March 13, 2009. (Docket No. 14.) Plaintiff filed an amended complaint on April 21, 2009. (Docket No. 22.) Before the court is defendant's motion for summary judgment.*fn4
Plaintiff alleges in three causes of action for race and national origin discrimination, disability discrimination, and retaliation that the discriminatory conduct he experienced consisted of: (1) being erroneously classified as a foreign national instead of as a lawful U.S. permanent resident on August 22, 2006; (2) being identified as a non-U.S. citizen by his access card that displayed a red stripe instead of a white stripe on October 10, 2006; (3) having his Outlook e-mail identifier changed to include the information that he is a non-citizen on August 23, 2006; (4) having his citation authority removed; (5) being threatened to be removed from the SCEP program; (6) having his performance rating downgraded on May 17, 2007; (7) being charged as AWOL for coming in to work late on August 6, 2007; (8) being placed on administrative leave of August 6, 2007; (9) being terminated on August 27, 2007; (10) defendant's failure to provide reasonable accommodations for his disability; and (11) defendant's failure to put an end to the harassment plaintiff experienced at work. (See FAC.)
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Id. at 256. On issues for which the ultimate burden of persuasion at trial lies with the nonmoving party, the moving party bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the nonmoving party's case or by demonstrating that the nonmoving party cannot produce evidence to support an essential element of its claim or defense. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
Once the moving party carries its initial burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). On those issues for which it will bear the ultimate burden of persuasion at trial, the nonmoving party "must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103.
In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court also may not engage in credibility determinations or weigh the evidence, for these are jury functions. Anderson, 477 U.S. at 255.
Claims of race and national-origin discrimination under Title VII are evaluated pursuant to the burden-shifting framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, "the burden of production first falls on the plaintiff to make out a prima facie case of discrimination." Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005). He may do so by showing that (1) he belongs to a protected class; (2) he performed his job satisfactorily prior to the disparate treatment; (3) he was subjected to an adverse employment action; and (4) similarly situated employees outside the protected class received more favorable treatment. Id.; see Raad Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003). If plaintiff fails to carry his initial burden to establish a prima facie case of discrimination, summary judgment is appropriate. If plaintiff successfully establishes his prima facie case, the "burden of production, but not persuasion,  shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802).
Assuming the employer articulates a legitimate, nondiscriminatory reason for its actions, plaintiff, in order to survive summary judgment, bears the burden of supplying evidence to the court that gives rise to an inference of intentional discrimination. See Coghlan, 413 F.3d at 1094 (citing St. Mary's Honot Ctr. at 507-08.). At this stage of the analysis, "[t]he mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment" in favor the employer. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). Rather, "[i]n response to the defendant's offer of nondiscriminatory reasons, the plaintiff must ...