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Edward M. Salazar v. Gary Locke

March 12, 2012

EDWARD M. SALAZAR, PLAINTIFF,
v.
GARY LOCKE, UNITED STATES SECRETARY OF COMMERCE, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This action, filed pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), proceeds before the undersigned in accordance with Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Defendant moves for summary judgment. Dckt. No. 26. For the reasons stated herein, the court recommends that defendant's motion be granted.

I. BACKGROUND

Plaintiff initiated this action on April 28, 2010 against Gary Locke, the United States Secretary of Commerce, alleging that the United States Census Bureau retaliated against him, in violation of Title VII, because he engaged in Equal Employment Opportunity ("EEO") activity. Compl., Dckt. No. 1. In October 2010, the court granted defendant's motion to dismiss plaintiff's complaint with leave to amend based on plaintiff's failure to comply with Rule 8, noting that "although plaintiff's complaint makes it clear that he is alleging a retaliation claim under Title VII, the complaint consists of a lengthy narrative and does not separate out specific factual allegations in a manner that would permit defendant to respond to those allegations." Dckt. No. 16 at 2.

On October 28, 2010, plaintiff filed an amended complaint against Locke. First Am. Compl. ("FAC"), Dckt. No. 17. Specifically, plaintiff alleges the Census Bureau retaliated against him for his prior EEO activity by: (1) not selecting plaintiff for a Partnership and Data Specialist position for which he had applied; (2) not permitting plaintiff to apply for the Assistant Manager for Quality Assurance and Partnership and Data Specialist positions, which were only open to current Stockton Local Census Office employees; (3) not calling plaintiff back to work in August 2007; and (4) not selecting plaintiff for a Partnership Specialist position for which he had applied. Id. at 2-8.

Defendant answered the complaint, Dckt. No. 19, and now moves for summary judgment on plaintiff's claims. Def.'s Mot. Summ. J. ("MSJ"), Dckt. No. 26. Plaintiff opposes the motion. Pl.'s Opp'n to MSJ ("Opp'n"), Dckt. No. 27.

II. PLAINTIFF'S CENSUS BUREAU EMPLOYMENT HISTORY

A. Plaintiff's Early Employment with the Census Bureau

Plaintiff originally worked for the Census Bureau in 1980, from October 1988 to September 1990, and then from January 1997 through July 1999.*fn1 Pl.'s May 5, 2011 Dep. ("Dep."), Def.'s Ex. A, at 13:13-14:24. As a result of that service, in 1998 and 1999, plaintiff filed numerous formal EEO complaints against the Census Bureau. Id. at 47:13-15; see also Decl. of Cynthia R. Shipley ("Shipley Decl."), ¶ 3; Pl.'s Resp. SUF ¶ 60. Plaintiff filed a judicial action based on his 1998 and 1999 EEO claims in September 2002.*fn2 Dep. at 53:14-21; Def.'s Ex. W; Pl.'s Resp. SUF ¶ 62. In April 2004, the district court granted summary judgment for defendant, which was affirmed by the Ninth Circuit in April 2006. Def.'s Exs. X, Y; Pl.'s Resp. SUF ¶¶ 63-64. It is undisputed that the Census Bureau, and specifically, Janet McStay, the Area Manager for the 2008 Census Bureau Dress Rehearsal in San Joaquin County, were aware of plaintiff's 1998-99 EEO activity at all relevant times. Def.'s Resp. to Pl.'s Req. for Admission 1, Pl.'s Ex. 1.

B. Plaintiff's Application for and Non-Selection as a Partnership and Data Specialist Plaintiff contends that on April 27, 2006, McStay called plaintiff on behalf of Dorothy Ballard, the Assistant Regional Director, with information on Census Bureau positions. Dep. at 36:4-8; Opp'n at 2; see also McStay Decl. ¶ 2; Pl.'s Disputed Facts ("Pl.'s DF"), Dckt. No. 27 at 2, ¶ 1. Plaintiff contends that during the phone call on April 27, 2006, McStay "brought up" plaintiff's prior EEO cases and said that because of plaintiff's EEO cases, plaintiff "could not be hired unless it was on the agreement . . . ." Dep. at 36:8-13; Pl.'s DF ¶¶ 1-3. McStay does not dispute that she gave plaintiff information about available positions and the application process during the April 27 phone call and directed plaintiff to check a website known as QuickHire for more information and job updates. Opp'n at 2; McStay Supp. Decl., Dckt. No. 29-2, ¶ 3. However, McStay does dispute plaintiff's contention that she brought up plaintiff's EEO activity and that she stated that his hiring would depend on "the agreement." McStay Supp. Decl. ¶ 3. McStay contends that the information she provided to plaintiff was "the same information [she] would give to any applicant during a lengthy discussion of qualifications, eligibility, and suitability." Id. She also contends that she did not "attempt to intimidate or discourage [plaintiff] from applying" and "never said that his prior EEO cases would prevent him from applying or from being considered." Id.

On or about November 27, 2006, the Census Bureau issued a recruiting bulletin for the position of Partnership and Data Specialist, and on December 7, 2006, plaintiff submitted his application for the position. McStay Decl. ¶¶ 7, 10; see also McStay Exs. A, B; Pl.'s Resp. SUF ¶¶ 18, 19. On December 13, 2006, McStay conducted telephonic interviews with plaintiff and another candidate, Irenemaree Castillo. McStay Decl. ¶¶ 11, 12; Pl.'s Resp. SUF ¶ 22. McStay selected Castillo for the position. McStay Decl. ¶ 12; Dep. at 41:17-19; Pl.'s Resp. SUF ¶ 23. Plaintiff contends that he was more qualified than Castillo and that McStay selected Castillo instead of plaintiff in retaliation for plaintiff's 1998-99 EEO activity. Dep. at 46:11-47:25, 50:23-51:19, 113:7-16; Pl.'s DF ¶¶ 4-16. McStay contends that she selected Castillo because she was more qualified for the position than plaintiff "due to the breadth and depth of her knowledge and experience working with local officials and community groups, and her extensive experience in managing program goals and objectives in both the private and public sector." McStay Decl. ¶ 12; see also McStay Ex. D. McStay avers that plaintiff "was not selected for the position because he did not demonstrate the understanding of local issues and community groups that Ms. Castillo did." Id. ¶ 12. According to McStay, plaintiff's "work experience consisted of a series of 13 relatively short-term positions over a ten-year period," while Castillo "had a distinguished work record in planning and implementing programs and partnerships with a wide variety of community, national and international groups." Id.

On February 7, 2007, plaintiff filed EEO Complaint No. 07-63-00035D ("0035D Claim") alleging that the decision not to select plaintiff for the position was in retaliation for his previous EEO activity. Def.'s Ex. F; Pl.'s Resp. SUF ¶ 25. Plaintiff's claim was investigated from March to June 2007, and in June 2008, an EEOC administrative judge issued a decision adverse to plaintiff. Def's Exs. G, H, I; Pl.'s Resp. SUF ¶¶ 26-28. In July 2008, the Department of Commerce adopted the administrative judge's decision, which plaintiff appealed to the Office of Federal Operations ("OFO"). Def.'s Ex. J, at 1; Pl.'s Resp. SUF ¶ 29. The OFO affirmed the Department of Commerce's decision in February 2010. Def.'s Ex. J, at 1; Pl.'s Resp. SUF ¶ 30. McStay was aware of plaintiff's 0035D Claim. See Pl.'s Ex. 6 (McStay affidavit submitted in connection with the 0035D Claim); Def.'s Ex. I at 12 (referencing McStay's affidavit in connection with the 0035D Claim).

C. Plaintiff's Inability to Apply for Two Stockton Positions and Plaintiff Not Being Called Back to Work in August 2007

On or about July 16, 2007, the Census Bureau issued a recruiting bulletin for the position of Assistant Manager for Quality Assurance, seeking applicants who were "current Stockton [Local Census Office] employees." Dep. at 62:4-63:12; McStayDecl. ¶ 13; see also McStay Decl. Ex. E; Pl.'s Resp. SUF ¶ 31. On or about July 24, 2007, plaintiff was told by the Census Bureau that only those currently employed with the Agency could apply for the Assistant Manager for Quality Assurance position. Dep. at 62:2-13; Pl.'s Resp. SUF ¶ 33. Then, on or about August 3, 2007, the Census Bureau issued a recruiting bulletin for the position of Partnership and Data Services Specialist, again seeking applicants who were "current Stockton [Local Census Office] employees." Dep. at 56:10-15; McStay Decl. ¶ 14; see also McStay Decl. Ex. F; Pl.'s Resp. SUF ¶ 34. On or about August 14, 2007, plaintiff was told by the Census Bureau that only those currently employed by the Agency could apply for the Partnership and Data Services Specialist position. Dep. at 55:2-17; Pl.'s Resp. SUF ¶ 36.

Plaintiff also claims that in August 2007 others were called back to work for the Census Bureau who had less experience and lower scores than he did. Dep. at 66:18-22; Pl.'s Resp. SUF ¶ 37. However, plaintiff does not remember who told him this and he cannot identify specific individuals who were called back. Dep. at 66:23-67:20; Pl.'s Resp. SUF ¶ 37.

Plaintiff argues that his inability to apply for the two positions and the fact that he was not called back to work when other, less-qualified employees were amounted to retaliation because Census Bureau management knew he "was available to work for the census bureau" during the relevant times, and "they manipulated and circumvented the whole recruitment, hiring and selection process" to ensure that plaintiff was not hired for the position. Opp'n at 28; Dep. at 58:19-59:6. Plaintiff contends that he was "blacklisted" because of his prior EEO activity and that he was bypassed for numerous positions. Dep. at 68:21-25; Pl.'s DF ¶ 27. However, plaintiff does not dispute that he was not a Stockton employee during the recruitment periods for both the Assistant Manager for Quality Assurance and Partnership and Data Services Specialist positions. Dep. at 58:6-18, 63:13-19.

McStay contends that she decided to post the Assistant Manager for Quality Assurance and Partnership and Data Services Specialist positions internally because of guidance she received from Census Bureau headquarters. McStay Decl. ¶ 15. She contends she relied on a policy that provided that if enough qualified internal candidates were anticipated, the Census Bureau could post the vacancies internally. Id.; see also McStay Exs. G, H. According to McStay, she posted the positions internally because at least nine internal candidates potentially qualified for the Assistant Manager for Quality Assurance position and at least three internal candidates potentially qualified for the Partnership and Data Services Specialist position. McStay Decl. ¶ 15. She avers that "[r]etaliation played no role whatsoever in [her] decision process." Id.

With regard to plaintiff's complaint that he was not called back into work in August 2007, McStay contends that the Census Bureau recalled staff using computer-generated certification lists through its DAPPS automated system. Id. ¶ 16. Local Census Office selection clerks selected staff from the computer-generated lists and followed a specific procedure for doing so. Id. ¶¶ 16-18.

On September 21, 2007, plaintiff filed EEO Complaint No. 07-63-00214D ("0214D Claim") alleging that defendant did not allow him to apply for the July and August 2007 Census Bureau positions and did not call him back to work in August 2007 as discrimination and retaliation for his prior EEO activity. Def.'s Ex. K; Pl.'s Resp. SUF ¶ 40. Plaintiff's claim was investigated, and in July 2009 an EEOC administrative judge issued a decision adverse to plaintiff. Def.'s Exs. M, N, O; Pl.'s Resp. SUF ¶¶ 41-43. In August 2009, the Department of Commerce adopted the administrative judge's decision, which plaintiff appealed to the OFO. Def.'s Ex. P, at 1; Pl.'s Resp. SUF ¶ 44. The OFO affirmed the Department of Commerce's decision in February 2010. Def.'s Ex. P, at 1; Pl.'s Resp. SUF ¶ 45.

McStay was aware of plaintiff's 0214D Claim. See Pl.'s Ex. 25 (affidavit of McStay stating that she was aware of plaintiff's 0214D Claim and was a responding official in that complaint); Def.'s Ex. O at 12 (referencing McStay's affidavit in connection with the 0214D Claim).

D. Non-Selection for Partnership Specialist Position

On or about August 7, 2008, the Census Bureau issued a recruiting bulletin for the position of Partnership Specialist, and plaintiff submitted his application for the position on August 20, 2008. Dep. at 71:1-10; McStay Decl. ¶ 19; Pl.'s Resp. SUF ¶¶ 46-47. McStay contends there were four applicants, including plaintiff, for two available positions. McStay Decl. ¶ 20. On or about September 2008, McStay and Hector Maldonado, the selecting officials, selected Barbara Ferry and Joe Jimenez for the Partnership Specialist positions. Id. ¶¶ 20, 21; see also McStay Decl. Ex. J; Dep. Ex. 18. The candidates were ranked by their final rating scores, and Ferry, Jimenez, and plaintiff all had scores of 98. However, both Ferry and Jimenez were eligible for a veteran's preference, making their final rating scores higher than plaintiff's. McStay Decl. ¶ 20; see also McStay Decl. Ex. J.

On November 13, 2008, plaintiff filed EEO Complaint No. 09-63-00004D ("00004D Claim"), alleging that his non-selection for the Partnership Specialist position was retaliatory for his earlier EEO activity. Def.'s Ex. R; Pl.'s Resp. SUF ¶ 54. Plaintiff's claim was investigated from December 2008 to April 2009, and in July 2009, an EEOC administrative judge issued a decision adverse to plaintiff. Def's Exs. S, T, U; Pl.'s Resp. SUF ¶¶ 55-57. Also in July 2009, the Department of Commerce adopted the administrative judge's decision, which plaintiff appealed to the OFO. Def.'s Ex. V, at 1; Pl.'s Resp. SUF ¶ 58. The OFO affirmed the Department of Commerce's decision in January 2010. Def.'s Ex. V, at 1; Pl.'s Resp. SUF ¶ 59.

E. Plaintiff's Employment as a Crew Leader Assistant

Plaintiff was employed by the Census Bureau in a term position as a Crew Leader Assistant in Stockton from April 30, 2007 through June 30, 2007, when he was terminated for lack of work. Dep. at 17:11-20:5; Dep. Exs. 2-4; Pl.'s Resp. SUF ¶¶ 4-6. On or about January 5, 2009, plaintiff was again hired by the Census Bureau in a term position as an Enumerator in South Sacramento, and he worked in that position until August 30, 2009, when he was again terminated for lack of work. Dep. at 21:8-26:6; Dep. Exs. 5-10; Pl.'s Resp. SUF ¶¶ 7-12. Then, on November 10, 2009, plaintiff was again hired by the Census Bureau as a Clerk in Elk Grove; on December 27, 2009, he was promoted to an Office Operations Supervisor; and on April 20, 2010, he was promoted to a Field Operations Supervisor. Dep. 27:4-28:19, 31:25-32:14; Dep. Exs. 11-12; Def.'s Exs. B, C; Pl.'s Resp. SUF ¶¶ 13-16. He was terminated on April 25, 2010. Dep. at 30:21-25; Def.'s Ex. C; Pl.'s Resp. SUF ¶ 17.

III. MOTION FOR SUMMARY JUDGMENT

Defendant moves for summary judgment on all of plaintiff's claims, contending that plaintiff cannot establish a prima facie case of retaliation since (1) plaintiff did not suffer any adverse employment actions, (2) there is no causal link between plaintiff's protected activity and the agency's actions, and (3) assuming plaintiff were able to establish a prima facie case of retaliation, he is unable to rebut the legitimate, non-retaliatory and non-discriminatory reasons for defendant's actions. MSJ at 9-22.

A. Summary Judgment Standard

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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 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 ...


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