The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [doc. ) #31] and DIRECTING ENTRY OF JUDGMENT
In this Title VII action, plaintiff Oscar Gonzalez alleges that he was discriminated against on the basis of his race and he suffered retaliation as a result of his protected activity. Defendant moves for summary judgment. The motion has been fully briefed and for the reasons set forth below, the motion will be granted.
From April 2002 until October 2006, plaintiff Gonzalez worked at the Department of Transportation, Federal Motor Carrier Safety Administration at the Otay Mesa field office. Gonzalez was trained for an auditor position, a position at which he performed well. In June 2005, after attending training, Gonzalez became a safety investigator ("SI"). During the academy, the portion of the training concerning how to do an enforcement case was missing but plaintiff had been doing investigator work from 2002.
Barbara Griggs was the acting supervisor of the SIs from February until May 2006. In February and March 2006, Griggs noted inaccuracies with plaintiff's compliance reviews ("CR") that resulted in cancellation of enforcement actions. Because of plaintiff's errors, Griggs placed plaintiff on a 10-week informal training schedule that included assigning plaintiff to work directly and individually with SIs having more experience, Lynda Holst and Don Tomlinson. Plaintiff was expected to be able to complete a CR on his own at the end of the ten weeks.
During plaintiff's informal training in May 2006, Holst became the supervisor of the SI and Griggs no longer was the acting supervisor. At the end of the training session, neither Griggs, Tomlinson nor Holst assessed plaintiff as being able to complete a CR independently. As a result of the informal training assessment, plaintiff was placed on a performance improvement plan ("PIP"), the notice of which cites to four specific occurrences involving CRs or enforcement cases or both for four different carriers as reasons for placing plaintiff on a PIP. The PIP notice stated that plaintiff was failing to meet the critical job duties of conduting CRs and subsequent enforcement cases. It also described several deficiencies Tomlinson or Holst observed between between April 17 and June 23, 2006.
The relevant performance expectations Gonzalez would be required to meet were set forth in the PIP. Those expectation included: conducting CRs, preparing an enforcement action, and providing technical assistance and outreach. When plaintiff was put on the PIP, he was denied a within-grade increase in his pay. The PIP commenced on July 5, 2006 and ended in mid-September 2006.
At the conclusion of the PIP, Holst recommended that plaintiff be removed from his position because he (1) could not independently conduct a CR without making numerous errors; (2) could not accurately prepare an enforcement case and was unable to use the agency's tools available to him; and (3) could not accurately answer carriers' questions. (Exh. N, Notice of Proposal to Remove.) Each area of concern was supported by several examples. Terry Wolf, the Division Administrator and the deciding official, followed Holst's recommendations and terminated plaintiff's employment effective February 18, 2007. (Exh.. P)
B. Legal Standard for Summary Judgment
Rule 56 of Federal Rules of Civil Procedure empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c).
The moving party's burden on summary judgment depends on whether it bears the burden of proof at trial with respect to the claim or defense at issue. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." See C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). If the moving party does not bear the burden at trial, it can meet its burden on summary judgment by pointing out the absence of evidence with respect to any one element of the claim or defense. See Celotex, 477 U.S. at 325.
If the movant meets its burden on summary judgment, the burden shifts to the non-movant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324. In this regard, the non-movant must "go beyond the pleadings" and rely on "evidentiary materials" such as his "own affidavits, or . . . the depositions, answers to interrogatories, and admissions on file" to designate specific facts in opposition to the summary judgment motion. Celotex, 477 U.S. at 324 (internal quotation marks omitted). These evidentiary materials must show that genuine factual issues remain which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). If the moving party meets its burden, the party opposing summary judgment "may not rely merely on allegations or denials of its own pleading; rather, its response must ... set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). All inferences drawn from the evidence must be viewed in the light most favorable to the non-moving party, Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992), but inferences must be based on evidence which, if believed, would be sufficient to support a judgment for the nonmoving party. Celotex, 477 U.S. at 322. Moreover, inferences cannot be created by pointing to "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (citations omitted). Instead, deference to the nonmoving party has limits: (1) a plaintiff cannot rest on allegations in his pleadings to overcome a motion for summary judgment, Brinson, 53 F.3d at 1049; and (2) self-serving affidavits do not establish a genuine issue of material fact if they fail to state facts based on personal knowledge or are too conclusory. Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).
Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are jury functions, and are not appropriate for resolution by the court on a summary judgment motion. Id.
In count one of the complaint, plaintiff alleges a discrimination claim based on his status as a naturalized American citizen with Mexican heritage. (Comp. ¶32.) Defendant argues, however, that plaintiff cannot pursue this claim because he failed to exhaust his administrative remedies. Although plaintiff filed an opposition to defendant's motion, Gonzalez has not addressed in any manner his discrimination claim in his response. It appears plaintiff has abandoned his discrimination claim; therefore, the Court will not consider this claim further.
Also n his complaint, plaintiff alleges retaliation with respect to his placement on the PIP and his discharge. Defendant argues, however, that the only proper and timely claim is for a Title VII retaliatory discharge. In his opposition, plaintiff appears to have abandoned his claim as to retaliation in connection with the PIP. Accordingly, the Court will consider the retaliation claim as limited to plaintiff's employment termination which is based upon ...