FINDINGS AND RECOMMENDATIONS
This matter came before the court on September 7, 2012, for hearing of defendant's motion for summary judgment. Attorney Kristin M. Daily appeared for the moving party. Plaintiff, proceeding pro se, appeared on her own behalf. Oral argument was heard, and defendant's motion was taken under submission.
For the reasons set forth below, the court will recommend that defendant's motion for summary judgment be granted.
Plaintiff commenced this action on May 19, 2009, by filing her original complaint and an application to proceed in forma pauperis. (Doc. Nos. 1 & 2.) On June 15, 2009, the undersigned granted plaintiff's motion to proceed in forma pauperis and ordered service on defendant Board of Equalization (BOE). (Doc. No. 3.) On September 8, 2009, defendant moved to dismiss the original complaint. (Doc. No. 8.) Plaintiff did not file written opposition to that motion but instead, on October 8, 2009, filed a motion seeking leave of court to file an amended complaint. (Doc. No. 12.) On October 9, 2009, the Court granted both defendant's motion to dismiss and plaintiff's motion for leave to file an amended complaint. That same day plaintiff filed her first amended complaint. (Doc. No. 14.) On October 29, 2009, defendant moved to dismiss the first amended complaint. (Doc. No. 17.) On September 20, 2010, the court granted defendant's motion to dismiss the first amended complaint and also granted plaintiff leave to file a second amended complaint. (Doc. No. 27.)
On October 26, 2010, plaintiff filed her second amended complaint. (Doc. No. 28.) On November 19, 2010, defendant moved to dismiss the second amended complaint. (Doc. No. 33.) On August 26, 2011, the undersigned issued findings and recommendations, recommending that defendant's motion to dismiss be denied as to plaintiff's claims that defendant discriminated and retaliated against her by failing to hire her for the open BOE Office Technician positions in July of 2007 and September of 2007, but be granted in all other respects. (Doc. No. 38.) Those findings and recommendations were adopted by the assigned District Judge on September 29, 2011, (Doc. No. 40), and defendant filed an answer to the second amended complaint on October 7, 2011. (Doc. No. 41.)
On August 6, 2012, defendant filed the motion for summary judgment now pending before the court. (Doc. No. 57.) Plaintiff filed her opposition on August 27, 2012.*fn1 (Doc. No. 58.) Defendant filed its reply on August 30, 2012. (Doc. No. 59.)
In her second amended complaint, plaintiff alleges as follows.*fn2 On or about November 22, 2006, defendant California Board of Equalization (BOE) asked employees to volunteer to participate in a yearly holiday committee.*fn3 (Sec. Am. Compl. (Doc. No. 28) at 9.*fn4 ) Plaintiff signed up to be a committee vice chair and was the only African American holiday committee member. (Id.) As part of her role on the holiday committee, plaintiff sought to raise money for a food drive. (Id.)
On December 8, 2006, plaintiff was approached by "CAC board members/co workers," Elizabeth Reedman and Judy Weyhe, who demanded to speak with plaintiff immediately.*fn5 (Id. at 10.) Plaintiff was on the phone with a client and requested that the two co-workers leave her work cubicle. (Id.) The two co-workers did not leave but instead began yelling at plaintiff, accusing her of using the food drive for her personal gain and threatening to inform plaintiff's supervisor. (Id.) Plaintiff repeated her request that the two leave her cubicle and the two co-workers finally left when plaintiff stood and repeated her request a third time. (Id. at 10-11.)
On December 12, 2006, plaintiff completed a BOE absence request form so that she could leave work early to meet with an attorney to discuss the filing of a discrimination complaint. (Id. at 12.) Plaintiff met with Hiring Supervisor Susan Sineto to obtain approval for her leave request. (Id.) Sineto had been a BOE employee for more than ten years, was responsible for hiring plaintiff and, according to plaintiff, had "great ties and influence at BOE." (Id.) Upon learning about plaintiff's pending discrimination complaint, Sineto told plaintiff:
You do want to move up the career ladder here, right? I know you have been talking about what classes you need to take to become a Business Tax Representative, well I would not go through with this discrimination complaint because if you do no one will hire you, you will be labeled a troublemaker. You know how people talk here; you do want to move up don't you.
On January 2, 2007, plaintiff sent an e-mail inquiring about the status of her discrimination complaint to Dan Tokutomi, Richard Parrott, and Kenneth Lawson.*fn6 (Id. at 13.) On January 3, 2007, plaintiff received an e-mail response from Parrot, stating that Tokutomi would answer her inquiry. (Id.) On January 17, 2007, plaintiff again e-mailed Parrot, Tokutomi and Lawson inquiring about the status of her discrimination complaint but received no response. (Id. at 13.) On January 22, 2007, plaintiff was informed that Lynn Bartolo, the Division Chief, would eventually answer her complaint. (Id. at 14.)
On March 12, 2007, plaintiff still had not received an answer to her complaint. (Id.) Plaintiff e-mailed Bartolo about the status and was informed by Bartolo that "labor relations had closed their file and nothing would be done." (Id.) Bartolo told plaintiff that she would have to fill out another discrimination complaint. (Id.) Believing she was getting the "run around," plaintiff contacted the Equal Employment Opportunity Commission ("EEOC").*fn7 (Id.)
In July of 2007 plaintiff was interviewed for a position as an Office Technician with the BOE but was not hired. (Id. at 20.) The person hired for the position was Asian, was the sister of another employee who had worked for Parrot, had previously worked in a bar and had no experience working in the Excise Tax Division. (Id.)
In September of 2007, plaintiff spoke to Richard Parrott about another open position as a BOE Office Technician and Parrott told plaintiff that she would be interviewed for the position. (Id. at 19.) Plaintiff, however, was not interviewed and the opening was filled by a Caucasian woman with no previous work experience in the Excise Tax Division. (Id.) In this regard, plaintiff alleges that she was "qualified for the Office Technician [position and] she had the knowledge of the Excise Tax Division." (Id. at 21.) Moreover, plaintiff "was interviewed and tentatively hired for an Office Technician position with the Dept of Health and [the] Dept of Education." (Id.)
In November of 2007, plaintiff left the BOE for a position with the California Department of Corrections. (Id. at 23.)
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. Legal Standards
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 judgment as a matter of law. Fed. R. Civ. P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 ...