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Leskinen v. Perdue

United States District Court, E.D. California

June 21, 2019

SONNY PERDUE, Secretary of the United States Department of Agriculture, Defendant.


          Kendall J. Newman, Judge

         Plaintiff alleges claims of sexual harassment, hostile work environment, and retaliation against Defendant in connection with her tenure as an intern with the USDA in 2016. (ECR No. 1.) Presently before the Court is Defendant's motion for summary judgment. (ECF No. 40.) Plaintiff opposes (ECF No. 54), and also filed a motion objecting to the authority of magistrate judges to hear dispositive motions (ECF No. 56), a motion requesting further discovery (ECF No. 55), and five motions to strike the affidavits of Defendant's supporting witnesses (ECF Nos. 58, 59, 60, 61, and 62).[1]

         After carefully considering the written briefing, the record, and the applicable law, the Court DENIES Plaintiff's ancillary motions, and recommends that Defendant's motion for summary judgment be GRANTED.


         In March of 2016, Plaintiff (a student at American River College) applied for a Pathways Internship with the National Agricultural Statistics Service (“NASS”), an agency within the United States Department of Agriculture. Prior to starting, Plaintiff emailed USDA H.R. Specialist Rhonda Gray to request starting her internship at a GS-7 level, due to prior federal employment. Gray submitted Plaintiff's question to Kevin Barnes, Director of Western Field Operations for NASS. Barnes replied: “Since this is a student internship and not a permanent position, I prefer to maintain the offer at GS-5 step 1. Upon successfully performing in her intern position and completing the required 640 hours, she will be eligible for the GS-7 step 1.” Plaintiff signed an internship agreement that stated she would be eligible for conversion to a career position after completing a minimum of 640 hours of work in the internship program under a 2 year appointment, and that “eligibility for conversion does not guarantee the agency will decide to opt for conversion.” The internship agreement also required Plaintiff to maintain a “half-time course load (2 classes) as defined by the educational institution.” American River College defines “half-time” as between 6-11 credits. Plaintiff started her internship on May 18, 2016.

         Shortly thereafter, Plaintiff's supervisor Curt Stock told her he wanted to “help” her with her promotion. Stock said the previous intern quit because she didn't want his help. Stock once blocked her from leaving her desk and mentioned again how he could “help” her, and when Plaintiff told Stock that what he was asking was against the rules, Stock replied “hang the rules;” Plaintiff then asked Stock in a loud voice if she could leave, and Stock acquiesced. Later, during Plaintiff's harassment-prevention training, Stock stated “that's not how the real world worked.” In July of 2016, after Stock again mentioned “helping” her, Plaintiff stated her belief that all she needed to do was complete 640 hours of work to receive a promotion. Plaintiff did not report any of this conduct to the officer manager, Chris Messer, or any other of Stock's supervisors.

         In October of 2016, Stock conducted Plaintiff's performance review, gave her the highest rating (10), and rated her “fully successful” in each of the categories. Plaintiff asked Stock whether this rating was sufficient for promotion, and he replied it was. Stock told her she had reached her 640 hours, and Plaintiff asked about the promotion she believed she was entitled to (allegedly per Barnes). Stock asked her for a hug at this meeting, and that a co-worker once yelled “Bend Over!” when she left Stock's office. Stock then followed up with Angie Hill, H.R Management Analyst in D.C., about the alleged pre-employment agreement. Hill told Stock that Plaintiff was promotion eligible “after a year of time-in-grade as a student.” Stock forwarded the email to Messer, who told Plaintiff the GS-7 promotion could be revisited in March of 2017.

         In early November, Plaintiff wrote Gray to inquire whether she could drop a class and still remain eligible for the internship. Gray errantly responded that Plaintiff needed to maintain “part-time” status, and suggested Plaintiff contact her institution “to find out if dropping one of your classes would make you less than part-time.” Plaintiff then told Gray her school informed her that 1-5 credits was “part-time”; Plaintiff provided Gray with a verification form, which Gray filed in Plaintiff's personnel file. Gray told Plaintiff “everything was ok” with her college enrollment, so Plaintiff dropped a class-leaving her registered as “part-time” but less than “half-time.” On November 15, Lor'rie White, Senior Budget and Accounting Tech in Plaintiff's office, informed Messer that it appeared Plaintiff was only enrolled in one class; Messer confirmed this fact with Plaintiff on December 8. When Plaintiff was leaving for the day on the 8th, a co-worker “pointed his backside up in the air” at her. Plaintiff called in sick on Friday, December 9.

         On December 12, 2016, Plaintiff left a copy of “Memo of Understanding and Other Issues/Invocation of the No Fear Act” on Messer's desk alleging hostile and sexually-harassing actions by Stock. The following day, Messer (in the presence of Stock and White) terminated Plaintiff from the internship. Messer informed Plaintiff she was being let go because she was registered as less than half-time, in derogation of her employment agreement and federal statutes. //// //// //// //// After participating in the EEO process, Plaintiff filed the instant complaint, alleging Title VII harassment and retaliation. (ECF No. 1.) Defendant now moves for summary judgment under Rule 56[3], and Plaintiff opposes. (ECF Nos. 40, 56.)


         I. Plaintiff's Seven Ancillary Motions

         Prior to reaching the merits of Defendant's summary judgment motion, the Court takes up Plaintiff's objections and miscellaneous motions. This includes: (A) her contention that the Magistrate Judge lacks authority to issue findings and recommendations on motions for summary judgment in pro se cases (ECF No. 56); (B) her request for further discovery in order to support her opposition to Defendant's summary judgment motion (ECF No. 55); and (C) her motions to strike five declarations relied upon by Defendant (ECF Nos. 58, 59, 60, 61, and 62).

         A. Magistrate judges have authority to issue findings and recommendations on dispositive motions, including summary judgment motions.

         Legal Standard

         Title 28 U.S.C. § 636 governs the jurisdiction, powers, and temporary assignment authority of Magistrate Judges. The statutes provides:

(A) a [district] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action . . .;
(B) a [district] judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A) . . . .

28 U.S.C. § 636(b)(1)(A-B). Rule 72 of the Federal Rules of Civil Procedure, regarding findings and recommendations on dispositive motions, states that “[a] magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense . . ., ” and that “[t]he magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Rule 72(b)(1) Local Rule 302 for the Eastern District of California states that in Sacramento, the Magistrate Judge is to oversee “all actions in which all the plaintiffs or defendants are proceeding in propria persona, including dispositive and non-dispositive motions and matters.” L.R. 302(c)(21).


         Plaintiff acknowledges that the undersigned has authority to hear Defendant's motion for summary judgment under the local rules, but asserts the local rule runs afoul of 28 U.S.C. § 636 and her right to equal protection under the Fourteenth Amendment to the U.S. Constitution.

         Plaintiff is correct that 28 U.S.C. § 636 does not provide authority for magistrate judges to resolve dispositive motions, including motions for summary judgment. 28 U.S.C. § 636(b)(1)(A). However, in so arguing, Plaintiff conveniently omits reference to section B, which provides explicit authority for a magistrate judge to conduct summary judgment proceedings and submit proposed findings of fact and recommendations to a district judge. See § 636(b)(1)(B); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en banc) (reminding that “certain matters (for example, non-dispositive pretrial matters) may be referred to a magistrate judge for decision, while certain other matters (such as case-dispositive motions [and] petitions for writs of habeas corpus) may be referred only for evidentiary hearing, proposed findings, and recommendations.”) (emphasis added). Local Rule 302(c)(21) derives from § 636, and the Ninth Circuit has upheld this allocation of judicial resources in numerous instances. See Houghton v. Osborne, 834 F.2d 745, 748 (9th Cir. 1987) (“[28 U.S.C. § 636(b)(1)(B)] authorizes a magistrate to submit to the district court proposed findings of fact and recommendations for the disposition of . . . a motion for summary judgment.”); see also Flam v. Flam, 788 F.3d 1043, 1047 (9th Cir. 2015) (finding that “a magistrate judge should provide a report and recommendation to the district court [on a remand motion] that is subject to de novo review . . . .”).

         Thus, in submitting these proposed findings and recommendations to Judge Nunley, the undersigned acts within his authority. Houghton, 834 F.2d at 748. Further, Plaintiff's equal protection challenge falls flat, as pro se litigants are not a suspect class. Wolfe v. George, 486 F.3d 1120, 1126 (9th Cir. 2007); see also Raiser v. L.A. Cnty. Sheriff, 2014 WL 6976211, at *2 (C.D. Cal. Nov. 18, 2014) (rejecting an equal-protection challenge to a local rule prohibiting electronic filing by pro se litigants on rational basis grounds). Should Plaintiff disagree with this F&R, she may file objections within fourteen days-which the district judge may consider before issuing any dispositive order. See Rule 72(b)(2) and (b)(3).

         B. Further discovery is not essential, as the Court reads all facts in Plaintiff's favor and Plaintiff's claims are otherwise legally foreclosed.

         Legal Standard

         Under Rule 56(d), the non-movant to a motion for summary judgment may request additional time to develop facts “essential to justify its opposition.” If shown by affidavit or declaration, the Court may (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Id. A party invoking this rule “must identify by affidavit ‘the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.'” Sec. & Exch. Comm'n v. Stein, 906 F.3d 823, 833 (9th Cir. 2018) (quoting Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006)). “The facts sought must be ‘essential' to the party's opposition to summary judgment, and it must be ‘likely' that those facts will be discovered during further discovery. Id. (quoting Rule 56(d); Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998)).

         Parties' Arguments

         Plaintiff requests “[d]iscovery proceed in accordance with [Rule] 56(d), ” which the Court construes as a request for a continuance of the summary judgment proceedings due to Plaintiff's asserted need to develop facts essential to her opposition. (See ECF No. 55.) Plaintiff states she needs to “address nexus, but/for, state of mind, inferences, disparate treatment, due care and other issues of genuine material dispute, ” that she asserts will consist of “both documentation and witness testimony that currently is in sole possession of the Defendant.” (Id. at pp. 1-2.) Plaintiff then lists the documents and depositions she seeks, and generally describes why she wants the depositions and documents. Id. at pp. 3-4.

         Defendant generally opposes, arguing Plaintiff is merely attempting to “forestall” summary judgment. (ECF No. 64-2 at p. 2.) Defendant contends a continuance is unnecessary, given that their motion for summary judgment accepts her factual allegations as true for purposes of the motion, that Plaintiff failed to identify specific facts she hopes to adduce, and that Plaintiff cannot otherwise “rest on the hope of obtaining contradictory admissions from Defendant's declarants.” Id. at pp. 2-3.


         The Court was initially concerned with the speed at which Defendant moved for summary judgment. The docket indicates that the district court adopted this Court's findings and recommendations denying Defendant's motion to dismiss in September of 2018, and denied Plaintiff's motion for reconsideration on January 3, 2019. (ECF Nos. 28, 39.) Defendant then filed its motion for summary judgment-complete with 37 exhibits- just four days later, on January 7, 2019. (ECF No. 40.)

         However, a close examination of Plaintiff's claims and the record indicate that further discovery will not aid Plaintiff in opposing summary judgment. The Court takes Plaintiff's statements made in her declaration as true, and resolves all inferences in her favor. For example, Defendant's witness Kevin Barnes asserts that Plaintiff never called him on November 14, (ECF No. 40-29), but Plaintiff states in her declaration that she did in fact speak with Barnes on that day (ECF 54-1 at p. 37); thus the Court takes it as true that Plaintiff called Barnes that day. The same holds true for Plaintiff's contentions that Stock and others made particular statements, such as Gray gave Plaintiff incorrect information regarding the internship requirements, and the like. Therefore, Plaintiff's general request to depose Stock, Gray, Barnes and other witnesses is unfounded and unnecessary, and Plaintiff does not indicate any specific information that would affect the Court's findings and recommendations. See Tatum, 441 F.3d at 1100-01 (affirming denial of continuance per Rule 56 where movant failed to identify how the lack of transcripts of multiple witnesses was essential to his opposition); Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996) (affirming discovery denial where movant “listed a number of facts that, even if established, would not have precluded summary judgment”).

         Further, Plaintiff's general allusions to “pretext” in emails and “defamatory information” in her personnel file are unspecific and will not ward off summary judgment on her retaliation claim. Cf. Stein, 906 F.3d 823, 833 (9th Cir. 2018) (affirming denial of Rule 56(d) motion where the movant “failed to identify with specificity facts likely to be discovered that would justify additional discovery[, ]” or how the additional facts would preclude summary judgment, and the evidence sought was “the object of mere speculation[.]”); with Calloway v. Veal, 571 Fed.Appx. 626, 628 (9th Cir. 2014) (“These written requests appear relevant and narrowly tailored. For example, Calloway requested-but apparently never received-his complete medical records. Calloway requested the California Medical Facility's (CMF) contraband watch policy so that he could determine precisely what the written policy was and whether warden M. Veal was responsible for it. Calloway also requested production of other prisoner's claims against the warden and Dr. Andreasen, which might lead to discovery of relevant evidence.”). Accordingly, Plaintiff's motion to stay these proceedings is denied.

         C. Plaintiff's Objections to Evidence/Motions to Strike Declarations

          Plaintiff filed five “objection[s] to evidence and motion[s] to strike” concerning certain statements made in declarations relied upon by Defendant in its summary judgment motion.

         1.The declaration of Joseph Freuh (and reference to Plaintiff's previous discrimination suit), as an attack on Plaintiff's credibility, is given no weight in these proceedings.

         Defendant filed a declaration from U.S. Attorney Joseph Freuh in support of its motion for summary judgment. (See ECF No. 40-35.) The declaration makes one statement of substance, referring to Exhibit 27, which is a copy of a complaint filed by Plaintiff in an unrelated discrimination case. (ECF No. 40-36 re: Laura Leskinen v. Diagnostic Pathology Medical Group, Inc., Sacramento County Superior Court Case No. 34-2008-00007569 (2009)).

         Plaintiff contends the declaration of Joseph Freuh should be stricken as irrelevant under Fed.R.Evid. 401 and 402. (ECF No. 60, objecting to 40-35.) The Freuh declaration cites to a copy of a complaint filed by Plaintiff in California Superior Court in a separate harassment suit. (See ECF No. 40-36.) Plaintiff contends this other lawsuit ...

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