The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 31)
Presently before the Court is Defendant Janet A. Napolitano's (Defendant) motion for summary judgment or, in the alternative, partial summary judgment. (MSJ, ECF No. 31.) Also before the Court are Plaintiff Marie Shadoan's (Plaintiff) opposition to Defendant's motion (Opp., ECF No.
38) and Defendant's reply to Plaintiff's opposition (Rep., ECF No. 40). The Court heard oral argument on September 20, 2012, and the matter was thereafter taken under submission. Having considered the parties' arguments and the law, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion.
Due to the extensive factual background of this case, described in detail throughout the parties' pleadings, the Court recites those facts here only where necessary to explain its reasoning. Plaintiff joined the Special Agent in Charge (SAC), San Diego Cyber Crimes Group of the Department of Homeland Security on April 23, 2009. (First Amended Complaint (FAC), ECF No. 9 ¶¶ 10, 13.) At that time, Maurice Wrighten (Wrighten), the Group Supervisor (GS), assigned Special Agent Aida Vasquez (Vasquez) to be Shadoan's Field Training Officer (FTO). (FAC ¶¶ 13-14.) The majority of Plaintiff's allegations involve either GS Wrighten or FTO Vasquez.
Plaintiff, who is Caucasian, alleges that she was offended and humiliated by Vasquez's name-calling and inappropriate comments. (FAC ¶¶ 14-16.) During the first weeks of Plaintiff's employment in April and early May 2009, Vasquez made comments that Plaintiff spoke Spanish, looked Mexican, and did not look like "a white girl." (Opp. Exh. 1 pp. 51, 54-55.) Vasquez also gave Plaintiff the nickname "Mari Guadalupe." (Id. at 54, 61, 74.) According to Vasquez, it was common for agents to have Hispanic nicknames and she was unaware that Plaintiff was offended. (MSJ Exh. 10, pp. 36-37.) In another incident on June 19, 2009, Vasquez commented that Plaintiff watched pornography. (Opp. Exh. 1 pp. 110-11.) Vasquez also referred to a male co-worker as Plaintiff's boyfriend. (Id. at 111-12.)
On May 2, 2009, Plaintiff was assigned to shadow Vasquez on port duty. (FAC ¶ 18.) Plaintiff alleges that Vasquez showed up late and later reprimanded Plaintiff for failing to show any interest in her duties. (Id.) Defendant alleges that Plaintiff was texting on her phone and declined to fingerprint a suspect when asked. (MSJ p. 2-3.) Plaintiff admits to texting, but alleges that she declined to fingerprint only because she wanted to observe the procedure. (MSJ Exh. 19 pp. 213-14.)
On May 7, 2009, Plaintiff did not remain at work for a briefing and could not be reached by telephone. (MSJ p. 2; Opp. Exh. 1 pp. 97-99.) At a meeting the next day, Vasquez and Plaintiff discussed the miscommunication and another incident where Plaintiff wore sandals to the courthouse. (Opp. Exh. 1 pp. 93-94, 100.) Vasquez allegedly stated that Plaintiff's job and evaluation were in Vasquez's hands. (FAC ¶ 19.) Details of this meeting are contentious, but a witness states that Plaintiff was "pretty calm" and that she was neither "disrespectful" nor said anything "inappropriate." (Opp. Exh. 6 pp. 20-21.) Plaintiff admits that she "may have come off rude." (MSJ Exh. 19 p. 102.) Plaintiff was also told at this meeting that she would have to attend weekly interagency meetings. (Opp. Exh. 1 p. 105.) Plaintiff was so required because she allegedly tended to leave immediately without interacting with agents from other law enforcement agencies. (MSJ Exh. 12 p. 66.)
On July 13, 2009, Vasquez told Plaintiff that she wanted to talk to her "woman to woman" about her performance. (FAC ¶ 19.) Around July 30, 2009, Plaintiff alleges that Vasquez was "badmouthing the Plaintiff," but does not detail what was said. (FAC ¶ 26; MSJ Exh. 19 p. 251.) On August 24, 2009, Plaintiff was reprimanded for telling a co-worker that her work "sucked" and was the "same shit different day." (FAC ¶ 28; MSJ Exh. 19 p. 180.) On August 26, 2009, Plaintiff was taken off the schedule to attend training and allegedly replaced by either Vasquez or male co-workers. (FAC ¶ 29; Opp. Exh 1. p. 205.)
On September 3, 2009, Plaintiff complained to Wrighten about Vasquez's comments and requested a transfer to a new FTO. (FAC ¶ 30.) The following day, Wrighten advised Plaintiff that she could not file an EEO complaint because she did not tell Vasquez that her comments were offensive. (FAC ¶ 32.) On September 9, 2009, Wrighten informed Vasquez that her comments offended Plaintiff, and Vasquez made no further offensive comments. (MSJ p. 5.)
On September 8, 2009, Plaintiff was assigned to FTO Don Buffington (Buffington), who Plaintiff alleges was inexperienced and unqualified. (FAC ¶ 33.) Defendant alleges the more experienced agents in the unit were not chosen because they were too busy to take on the assignment or set to transfer soon. (MSJ p. 4.) Thereafter, Wrighten was informed that Plaintiff's performance under Buffington was unsatisfactory for allegedly disregarding or ignoring instructions and wasting the time of others. (MSJ Exh. 11 p. 53; MSJ Exh. 12 pp. 66-67.) Plaintiff also allegedly put a sticky note on a case file describing it as "BS" but she denies the incident. (FAC ¶ 38; Opp. Exh. 1 p. 182-83.)
On September 9, 2009, Wrighten received an email soliciting input about Plaintiff's scheduled promotion. (MSJ p. 5.) On September 24, 2009, Wrighten informed Plaintiff that he would not be recommending her for promotion. (FAC ¶ 34.) Wrighten contacted Associate Legal Advisor Michele Kenney (Kenney) to prepare a letter memorializing his decision. (MSJ p. 6.) Wrighten also contacted court clerks regarding Plaintiff's behavior, and was informed that Plaintiff did not do anything unprofessional but "acted like a snob." (MSJ Exh. 22.)
On September 25, 2009, Wrighten presented the non-promotion letter to Plaintiff. (FAC ¶ 37.) Immediately after, Wrighten and Plaintiff met with Assistant Special Agent in Charge (ASAC)
Lorraine Concha (Concha) to discuss the letter. (FAC ¶ 39.) Details of this meeting are contentious, but Plaintiff alleges that Concha told Plaintiff she needed to learn how to get along with "all people of color" if she wanted to stay. (FAC ¶ 39.) Defendant alleges that Plaintiff rolled her eyes, cut the ASAC off, said she disagreed with the decision, and got up to leave. (MSJ p. 6.)
Following this meeting, Concha and Wrighten met with SAC Miguel Unzueta (Unzueta). (Id.) After discussing Plaintiff's conduct, Unzueta decided to terminate Plaintiff. (Id.) Kenney prepared a letter terminating Plaintiff for unsatisfactory conduct, which Unzueta issued on November 13, 2009. (Id.) This termination is the basis for Plaintiff's retaliation claim, as set forth in her First Amended Complaint. (FAC ¶ 46.)
There are other incidents that occurred prior to and throughout the litigation which are at issue in this case. These incidents will be described here and referenced below. One incident involved Plaintiff and Vasquez. Plaintiff alleges that Vasquez did not provide Plaintiff with adequate training and assigned her to secretarial duties. (FAC at ¶ 17.) Defendant alleges that all Cyber Crimes employees were required to make copies or deliver documents from time to time, and that nobody except Plaintiff objected to such "secretarial work." (MSJ p. 2.) Plaintiff also alleges that a Caucasian male probationary agent, Pete Oleson (Oleson), was treated more favorably compared to her. (Opp. p. 3.) Oleson received thirteen Conduct & Efficiency Reports from Vasquez while Plaintiff received none. (Opp. Exh. 7 p. 65.) The only report on Plaintiff was filled out by Wrighten, and never seen by Plaintiff until after her termination. (Opp. Exh 12; Opp. Exh. 1 p. 138.)
Another incident involved Plaintiff and Wrighten. When first meeting Plaintiff in April 2009, Wrighten allegedly stated that Plaintiff should not have been placed in his group and that he was unsure of why she was there. (FAC ¶ 13.) According to Wrighten, he was expressing a gender-neutral opinion that new agents would benefit from being assigned to a border unit before joining the specialized Cyber Crimes unit. (Opp. Exh. 19 pp. 56-57.) Later, in June of 2009, Wrighten allegedly stated to Plaintiff that she was just "fucking around over there." (Opp. Exh. 1 pp. 220-21.)
A final incident occurred after Plaintiff's termination. Plaintiff alleges that the probationary agent who replaced her, an African-American male, was also subject to racial and sexual discrimination. (Opp. p. 8; Opp. Exh. 7 pp. 79-84.)
Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where (1) the moving party demonstrates the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Material," for purposes of Rule 56, means that the fact, under governing substantive law, could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute is "genuine" if a reasonable jury would be able to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.
The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex, 477 U.S. at 323. The movant can carry his burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party "failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 322--23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 324. The nonmoving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Ninth Circuit has set a high standard for granting summary judgment in employment
discrimination cases. "We require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by the fact-finder, upon a full ...