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Arias v. McHugh

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 17, 2010

FREDDY ARIAS, PLAINTIFF,
v.
JOHN MCHUGH, SECRETARY OF THE ARMY, DEFENDANT.

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.)

II. Discussion

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 produce specific, substantial evidence of pretext." Id. "In other words, the plaintiff must tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Id.

A. Evidentiary Objections

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). After receiving defendant's Reply and plaintiff's Opposition to defendant's motion to dismiss, the court determined that there were many evidentiary objections to the evidence supplied by both parties and granted the parties an extension of time to resubmit their briefs an evidence to take into account the evidentiary objections.

Despite the court's April 23, 2010 Order (Docket No. 62) admonishing the parties that statements of undisputed fact are not evidence subject to the Federal Rules of Evidence, plaintiff filed an amended list of objections to several of defendant's stated undisputed facts rather than to the evidence in support of those statements. (Docket No. 71.) To the extent that plaintiff's objections are to the stated undisputed facts themselves as conclusions drawn from the exhibits proffered by defendant, they are inappropriate and are overruled. Plaintiff's amended list of objections also include several blanket objections to multiple sources of evidence listed in support of a statement of undisputed fact. This also contravenes the court's April 23, 2010 Order, which required the parties to separately list each evidentiary objection, "specifically identifying the statement objected to in the evidence and its location, citing the applicable Federal Rule of Evidence, and articulating the objection made therein." (Docket No. 62.) It is impossible for the court to understand, let alone rule upon, broad blanket objections. To the extent that plaintiff broadly objects to the various evidence cited in support of the statements of undisputed fact objected to, those objections are also overruled as inappropriate.

The remainder of plaintiff's unorganized and confusing objections are on the basis of relevance, hearsay, lack of foundation, lack of personal knowledge, prejudice, improper character evidence, and assuming facts not in evidence. The court has reminded the parties that on summary judgment, the evidence need not be in a form that is admissible at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Furthermore, many of these objections are unnecessary when made to evidence presented in support of a motion for summary judgment, as the court is not in danger of prejudice and the summary judgment standard dictates that summary judgment can be granted "only when there is no genuine dispute of material fact. See Burch, 433 F. Supp. 3d at 1119-20. Plaintiff's objections are therefore overruled.

B. Arias's Declaration

"The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). This is because "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. at 266 (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir. 1985)).

The "sham affidavit rule" may be invoked only if a district court makes "a factual determination that the contradiction was actually a sham" and "the inconsistency between a party's deposition testimony and subsequent affidavit . . . [is] clear and unambiguous." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009) (internal quotations marks, citations omitted). Accordingly, "the non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition [and] minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit." Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995). Plaintiff submitted a declaration in opposition to defendant's motion for summary judgment (Docket No. 70) that defendant contends portions of which ought to be striken as a sham declaration.

Specifically, defendant contends that plaintiff's representations that he was a "Park Ranger" contradict his prior statements that he was a "student park ranger," and his representations that he was a "permanent citizen" and "mischaracterized as a non-US citizen" contradict his earlier admissions that he was not---and still is not--a United States citizen while he was employed by the Army. The evidence is uncontraverted and plaintiff has repeatedly stated that he was always a student employee at Pine Flat Lake. Any representations that plaintiff was a permanent "Park Ranger" will therefore be ignored by the court in deciding defendant's motion to dismiss. Likewise, the evidence is uncontraverted and plaintiff has repeatedly stated that he was not and is not a United States citizen. The court will therefore ignore any reference to the fact that plaintiff was a United States citizen in evaluating defendant's motion to dismiss.

Defendant also objects to statements in plaintiff's declaration that he "never demonstrated a poor work attitude" and that he remained positive about his job. The court finds these statements to be merely plaintiff's opinion as to his prior work performance and a minor discrepancy with the prior testimony to which the government compares it. Plaintiff has repeatedly called attention to his positive reviews and lack of confrontations with LaFrentz or other employees before the incidents that form the basis of this lawsuit. These statements, therefore, will be considered as evidence in deciding defendant's motion to dismiss.

C. Claims Properly

Before the Court In order to maintain a suit alleging employment discrimination against an agency of the United States, a claimant must exhaust his administrative remedies in accordance with published procedures. See Leorna v. United States Dep't of State, 105 F.3d 548, 550 (9th Cir. 1997) (citing Brown v. General Serv. Admin., 425 U.S. 820, 832 (1976)); 42 U.S.C. § 2000e-16. Federal regulations require that a federal employee raise a discrimination claim with an Equal Employment Opportunity ("EEO") counselor within forty-five days of an adverse employment action. See Leorna, 105 F.3d at 550 (citing 29 C.F.R. § 1614.105(a)). This forty-five day limit acts as a "statute of limitations for filing suit." Johnson v. U.S. Treas. Dep't., 27 F.3d 415, 416 (9th Cir. 1994). The EEO may dismiss a complaint or portions thereof for, inter alia, failure to comply with the forty-five day limit, and failure to state a claim. 29 C.F.R. § 1614.107.

A partial dismissal of a complaint is reviewable by an EEOC administrative judge on request for a hearing on the entire complaint before the agency issues a final decision, or appealed to the EEOC Office of Federal Operations ("OFO") within thirty days of a final decision on the remaining claims in the complaint. (See, e.g., Amended Taylor Decl. Ex. 33.) Any decisions not challenged are waived. (Id.)

Federal courts lack subject matter jurisdiction over employment discrimination claims that have not been presented and exhausted in the administrative process. 42 U.S.C. § 2000e-16. Plaintiffs bear the burden of showing they have exhausted their administrative remedies and that the federal courts have jurisdiction over their claims. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936).

Plaintiff's suit is founded on eleven alleged acts of discrimination, all of which were raised in either plaintiff's first or second complaint to the Army EEO office. Eight of the acts of discrimination at issue in this case were accepted for review by the Army EEO office and three were rejected. The fact that the Army EEO office rejected three of the alleged acts of discrimination that plaintiff raises in this suit is not enough to preclude this court's jurisdiction over claims that stem from those acts. All of the claimed incidents of discrimination in plaintiff's Complaint are therefore properly before the court.

D. First Cause of Action for Race and National Origin Discrimination

1. Actions Alleged in First EEO Complaint

It is not disputed that plaintiff belongs to a protected class and that prior to the implementation of the new security measures that plaintiff performed his job satisfactorily. Defendant does not argue that the security measures do not constitute an adverse employment action. Primarily at issue is whether similarly situated employees outside of plaintiff's protected class received more favorable treatment than plaintiff. The evidence in the record indicates that Manning e-mailed all front-line managers in the Sacramento District asking them about non-citizen employees once he became aware of non-citizen contractors of various nationalities in the Sacramento District that had access to sensitive information. LaFrentz apparently responded to Manning's e-mail indicating that there were two non-U.S. citizen student employees at Pine Flat Lake, and Manning made the two student employees at Pine Flat Lake as well as two other non-U.S. citizen employees brought to his attention comply with updated security measures.

The evidence plaintiff points to in support of the contention that the changes were the result of unlawful discrimination is that Manning's e-mails that LaFrentz forwarded to plaintiff indicated that plaintiff and Galvan's e-mail notifiers and access cards would have to indicate their "Mexican citizenship" and referred to them as "Mexican citizens."*fn5

(Amended Taylor Decl. Ex. 8-10.) Plaintiff and Galvan were both Mexican citizens at the time and were the only non-citizen employees at Pine Flat Lake affected by Manning's security policies. While there is evidence that the security policies were applied to other non-U.S. citizen employees in the Sacramento district, (See (Amended Taylor Decl. Ex. 33, at 4), there remains a material dispute as to whether other non-U.S. citizen employees were directed to have their country of citizenship revealed in the same way that Manning directed that plaintiff's Mexican citizenship be revealed. Plaintiff has therefore met his prima facie burden.

Defendant has, in turn, articulated a legitimate, nondiscriminatory reason for implementing the challenged security measures. Namely, the heightened security concerns that arise when non-citizen employees of the Department of Defense have access to sensitive information and computer systems and the related need to identify non-citizen employees. Plaintiff has, however, provided evidence of pretext sufficient to meet his burden under McDonnell Douglas. Plaintiff's supervisors knew that he was not a U.S. citizen when he was hired and originally issued his access card, Outlook identifier, and citation authority. Yet it was not until long after plaintiff began working at Pine Flat Lake that he was required to comply with the regulations. That Manning stated in his e-mails that plaintiff had to reveal his "Mexican" citizenship rather than simply his status as a non-U.S. citizen is also evidence sufficient to withstand summary judgment that Manning's justification for the security measures could be pretext.

2. Actions Alleged in Second EEO Complaint

With respect to plaintiff's alleged race and national origin discrimination claims that stem from his second EEO complaint for being listed as AWOL on August 6, 2006, being placed on administrative leave on August 6, 2007, and being terminated from his position on August 27, 2007, plaintiff has also met his prima facie burden. Again, it is not disputed that plaintiff is a member of a protected class and that the challenged actions are adverse employment actions. Plaintiff has also provided evidence in the form of performance reviews and awards that he performed his job in an overall satisfactory manner prior to and after the events at issue occurred sufficient to withstand summary judgment. At issue is whether others outside of plaintiff's protected class were treated more favorably than plaintiff.

Individuals are similarly situated when they have similar jobs and display similar conduct. See, e.g., Vasquez v. City of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003); see also Wall v. Nat'l R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir. 1983) (employees not similarly situated where other employees do not have disciplinary record). The employees need not be identical; they must simply be similar "in all material respects." Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). The evidence in the record suggests that the operational distinction between a student park ranger and permanent park ranger was minimal. (Compare Amended Taylor Decl. Ex. 3 with id. Ex. 5). For purposes of establishing his prima facie burden, the court will consider permanent park rangers to be similarly situated in all material respects to student park rangers. Plaintiff generally compares himself to Park Rangers Anderson, Hershey, Thompson, Ehrke, and Coons. (Amended Taylor Decl. Ex. 38 (Pl's Resp. to Interrogatories Set One) ¶¶ 1-2.)

With respect to plaintiff's being marked AWOL on August 6, 2006, the evidence indicates that other employees were not present at their booths or positions but were not punished in a manner similar to plaintiff. This is sufficient to satisfy plaintiff's prima facie burden. Defendant satisfies its burden by arguing that its legitimate, non-discriminatory reason to mark plaintiff AWOL was that plaintiff failed to work the entirety of his shift as required by attendance policies. However, evidence that other employees were not marked AWOL as plaintiff was that day raises a material dispute of fact with respect to whether the stated reason for marking plaintiff as AWOL was mere pretext for a discriminatory motive.

With respect to plaintiff being put on administrative leave and eventually being terminated from his position as a student park ranger, plaintiff compares himself specifically to Park Rangers Coons and Thompson. Park Ranger Coons was terminated by LaFrentz for, inter alia, disobeying orders, lack of professionalism, and bad judgment. (Amended Taylor Decl. Ex. 18.) Plaintiff argues that he should not have been placed on administrative leave or terminated because Coons was not terminated until after multiple incidents of bad behavior whereas plaintiff alleges he was terminated only after one incident. Plaintiff also compares himself to Park Ranger Thompson, who in 2005 was late to park ranger training in Jackson, California because he overslept from being intoxicated the night before. (Thompson Dep. (Docket No. 58) 24-25.) La Frentz was Thompson's team leader at the time, and LaFrentz told Thompson he would have to report Thompson's absence to plaintiff's supervisor when they returned from the retreat. (Id. at 25.) Thompson's supervisor decided not to formally punish Thompson for being late to the training. (Id.) Plaintiff, however, was counseled and punished for arriving to work late on August 6, 2007, the end result of which was his termination. These comparisons are sufficient to satisfy plaintiff's prima facie burden that he was treated differently than other park rangers at Pine Flat Lake.

Defendant has articulated a legitimate, non-discriminatory reason for marking plaintiff AWOL, placing him on administrative leave, and eventually terminating him. Specifically, defendant argues that plaintiff violated workplace attendance policies and was insubordinate to management. The evidence is undisputed that plaintiff had been counseled about attendance policies before the August 6, 2007 incident and that he had previously been marked AWOL. On August 6, 2007, plaintiff arrived to work one hour late. Furthermore, plaintiff admits that he called LaFrentz a "jerk," that he told him to "hurry up" off the telephone, that he refused to talk on the phone to Foster when asked, and that he left work without having his leave slip signed. Plaintiff's comparison to Park Rangers Coons and Thompson, however, raises a material fact as to whether plaintiff was disciplined and eventually terminated because of a discriminatory motive and is sufficient to withstand a motion for summary judgment.

E. Second Cause of Action for Retaliation

Under Title VII, an employer may not take any adverse employment action against an employee who has opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in any manner in any investigation, proceeding or hearing under Title VII. 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burden-shifting framework applies to retaliation claims under FEHA and Title VII. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003); Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 475-76 (1992). The employee must establish a prima facie case by showing that the employee engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action. Stegall, 350 F.3d at 1065-66; Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1453 (2002). Then the employer has the burden to articulate a legitimate, non-retaliatory reason for the action taken. The employee then bears the ultimate burden of demonstrating that any such reason was merely a pretext for a discriminatory motive, and that the retaliation was intentional. Stegall, 350 F.3d at 1066; Akers, 95 Cal. App. 4th at 1453.

The first two prongs necessary to establish a prima facie burden of retaliation do not appear to be in dispute. Plaintiff was charged AWOL, put on administrative leave, and ultimately terminated. Plaintiff made contact with the Equal Employment Opportunity Commission on September 27, 2006, and filed his first discrimination complaint on November 2, 2006. LaFrentz was interviewed by an EEO counselor on November 27, 2006, and plaintiff's EEO claim was denied on June 26, 2008. Plaintiff was placed on administrative leave on August 6, 2007 and was terminated from his position on August 27, 2007. Other than the fact that defendant was aware of plaintiff's protected activity, plaintiff does not provide any direct evidence in support of his allegations that the administrative actions taken against him were done to retaliate for filing an EEO complaint.

The timing of alleged retaliatory conduct, however, can provide circumstantial evidence of retaliation that is sufficient to create a prima facie case of retaliation. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that causation can be inferred from timing alone); see also Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) (stating that a prima facie case of causation was established when discharges occurred forty-two and fifty-nine days after EEOC hearings); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (stating that sufficient evidence existed where adverse actions occurred less than three months after complaint filed, two weeks after charge first investigated, and less than two months after investigation ended). But see McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124-25 (9th Cir. 2004) (holding temporal link alone did not establish prima facie case of retaliation where the "events were separated by a year and a half").

Plaintiff was placed on administrative leave more than eight months after plaintiff filed his EEO complaint and LaFrentz was interviewed by an EEO counselor. However, the evidence in the record shows that the Army EEO investigation was still pending at the time of plaintiff's termination---indeed, the investigation was not completed until ten months after plaintiff had been terminated from his position at Pine Flat Lake. While in some circumstances the gap in time between the filing of an EEO complaint and the adverse employment action can be too great to support an inference of causation based on timing alone, see, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (nine month gap between complaint of discrimination and adverse employment action too great to support inference of causation), in this case plaintiff has met his prima facie burden. Unlike in Cornwell, the evidence in this case is undisputed that plaintiff's supervisor in fact was aware of plaintiff's EEO complaint and participated in the ongoing investigation of plaintiff's claims of discrimination.

The court has already explained that defendant has articulated a legitimate, non-discriminatory reason for placing plaintiff on administrative leave and subsequently terminating him. Plaintiff's comparison to Park Rangers Thompson and Coons nevertheless raises a material dispute as to whether the disciplinary actions taken against him were the result of plaintiff's protected EEO activity, and the court will therefore deny defendant's motion for summary judgment.

F. Third Cause of Action for Disability Discrimination Under the Americans With Disabilities Act

The federal government may not be sued under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-83, because it is specifically excluded from the ADA's definition of "employer." See 42 U.S.C. §§ 1211(2), 12111(5)(B); Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). Rather, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., provides the exclusive judicial remedy for claims based on a federal employee's disability. See, e.g. McGuinness v. United States Postal Serv., 744 F.2d 1318, 1322-1323 (7th Cir. 1984); Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-414 (9th Cir. 1985). While plaintiff's third cause of action for disability discrimination is brought under the ADA, the court will interpret it as one brought under the Rehabilitation Act.

"To establish a prima facie case of disability discrimination, a plaintiff must show (1) he is disabled within the meaning of the statute; (2) he is otherwise qualified for the position; (3) he was adversely treated because of his disability; and (4) he worked for the federal government." Wilborn v. Ashcroft, 222 F. Supp. 2d 1192, 1207 (S.D. Cal. 2002) (citing Reynolds v. Brock, 815 F.2d 571, 573-74 (9th Cir. 1987)). If a plaintiff can establish a prima facie case of disability discrimination, "the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision. The burden then shifts back to the plaintiff to produce evidence sufficient to allow a reasonable factfinder to conclude that defendant's articulated reason is pretextual." Id. "In other words, [ ] plaintiff 'must tender a genuine issue of material fact as to pretext in order to avoid summary judgment.'"

Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1983) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)).

The Americans with Disabilities Act, whose standards of substantive liability are incorporated in the Rehabilitation Act, defines "disability" as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (B) a record of such an impairment, or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Plaintiff's third cause of action alleges that he is disabled due to severe mental anxiety and emotional stress. (FAC ¶ 45.) The regulations define a physical or mental impairment as:

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h). The regulations further provide that the term "substantially limits" means:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Id. § 1630.2(j)(1). The ADA defines "major life activities" as including: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working," as well as including major bodily functions. 42 U.S.C. § 12102(2)(A)-(B). The regulations further inform that:

(3) With respect to the major life activity of working--

(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3). Finally, the regulations provide guidance for determining whether all three elements of "disability"---physical or mental impairment, substantially limiting, major life activity--are met:

(2) The following factors should be considered in determining whether an individual is substantially limited in a major life activity:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment; and

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

Id. § 1630.2(j)(2).

The evidence in the record indicates that plaintiff sometimes experienced stress at work that caused him to lose the ability to concentrate, request sick leave, and leave his scheduled shifts early. This is sufficient to survive summary judgment as to whether plaintiff is "disabled" under the statute. Likewise, there is sufficient evidence that plaintiff was otherwise qualified for his position, as he performed his job for years in an exemplary manner and continued to perform satisfactorily even after he began experiencing stress on the job. Similarly, plaintiff has presented evidence sufficient to meet his prima facie burden that he was adversely treated because of his workplace stress. On August 6, 2007, plaintiff left work after a heated exchange with LaFrentz during which he presented a leave slip seeking time off for stress. There is evidence that plaintiff sought to remove himself from LaFrentz's presence, and that as a result of his stress he called LaFrentz a "jerk" and would not talk to Foster on the phone when asked. The disciplinary actions taken against plaintiff are also evidence that defendant failed to make reasonable accommodations for plaintiff's stress disability.

The same evidence explained earlier satisfies defendant's burden to provide a non-discriminatory reason for the disciplinary actions taken against plaintiff. Specifically, that plaintiff was late to work due to sleeping in, that he called LaFrentz a "jerk" and left work without having his leave slip approved. Yet a material issue of fact remains as to whether these actions were taken because of plaintiff's disability. The court will therefore deny defendant's motion for summary judgment with respect to plaintiff's third cause of action.

IT IS THEREFORE ORDERED that defendant's motion for summary judgment be, and the same hereby is, DENIED.


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