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Clarken v. Pritzker

United States District Court, D. Arizona

April 24, 2015

Michael P. Clarken, Plaintiff,
v.
Penny Pritzker[1], Secretary of Department of Commerce, Defendant.

ORDER

BERNARDO P. VELASCO, Magistrate Judge.

The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c).

Pending before the Court is Defendant's Motion for Summary Judgment ("MSJ") (Doc. 36). Upon consideration of Defendant's MSJ, Plaintiff's Response to Defendant's MSJ ("Response.") (Doc. 44), Defendant's Reply in support of MSJ ("Reply") (Doc. 46), and oral argument, the Court grants Defendant's Motion for Summary Judgment as set forth below.

I. Background

Plaintiff, Michael Clarken, initiated this action on December 12, 2012. Complaint, (Doc. 1). On August 19, 2013, Mr. Clarken filed a Second Amended Complaint asserting that he was denied re-employment with Defendant Agency's Tucson Telephone Center ("TTC") in an attempt to conceal Defendant's failure to provide reasonable accommodation for Plaintiff's disability and a hostile work environment characterized by "excessive speed-ups that had an adverse and disparate impact on the production numbers of both the disabled as well as the elderly" and that he was "unlawfully retaliated against for complaining about these intolerable work conditions to his union representative." Second Amended Complaint, (Doc. 18). Mr. Clarken seeks back wages for the three years after his last application for re-employment at the TTC was denied. Id.

Defendant moves for summary judgment, arguing that Mr. Clarken failed to exhaust administrative remedies with regard to his claims of age discrimination, that his discrimination claim is meritless because Plaintiff cannot demonstrate that the Agency failed to rehire him under circumstances that give rise to an inference of disability discrimination, and cannot demonstrate a causal connection between his 2005 administrative complaint, and his 2007 non-selection for re-employment. Defendant further argues that even if Plaintiff could establish a prima facie claim of discrimination or retaliation, the Agency has articulated legitimate, non-discriminatory reasons for Plaintiff's non-selection, and Plaintiff cannot demonstrate pretext.

II. Motion for Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 6(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record]...which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks and citation omitted). Once satisfied, the burden shifts to the nonmoving party to demonstrate through production of probative evidence that an issue of fact remains to be tried. Id. at 324. At the summary judgment stage, the court must not weigh evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmoving party's evidence is presumed true and all inferences are to be drawn in the light most favorable to that party. Eisenberg v. Insurance Co. of North Amer., 815 F.2d 1285, 1289 (9th Cir. 1987).

Only disputes over facts that might affect the outcome of the suit will prevent the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Thus, if the record taken as a whole "could not lead a rational trier of fact to find for the nonmoving party, " summary judgment is warranted. Miller v. Glenn Miller Production., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). If the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden of production under Rule 56 by producing, "evidence negating an essential element of the nonmoving party's claim or defense..., " or by showing, after suitable discovery, that the "nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-1106 (9th Cir. 2000).

III. Evidentiary Objections

Plaintiff disputes only the Defendant's characterization of an e-mail, dated July 9, 2004, found at Defendant's Statement of Facts ("DSOF") ¶ 2, Ex. 2. See PSOF, ¶ 2. The Court resolves this objection in the body of the Order to the extent the disputed evidence has bearing on the motion before it.

Plaintiff objects to the admissibility of Paragraphs 13 through 16 of Defendant's Statement of Facts as overly compound in violation of LRCiv. 56.1. Plaintiff does not dispute the substantive facts in these paragraphs, and has submitted no additional statement of facts, pursuant to LRCiv 56.1(b)(2).[2] Objections to evidence must state the specific ground on which the objection rests as to each particular item of evidence. The Court cannot consider blanket objections without analysis applied to each specific item of plaintiff's evidence to which defendants purport to object. See, e.g., Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1033 (C.D.Cal.2013) ("the Court will not scrutinize each objection and give a full analysis of identical objections raised as to each fact").

Plaintiff also objects to Defendant's Statement of Facts, Paragraphs 1, 3 through 13, and 17 through 26, for providing only background material in non-compliance with this Court's Local Rules prohibiting inclusion of facts in a factual statement that are not necessary to decide the motion. See LRCiv 56.1(a). The Court, recognizing the preference for resolving cases on the merits and further finding that the Defendant's Statement of Facts are material to the Court's resolution of this motion, declines Plaintiff's suggestion to deny the motion on these grounds. To the extent Plaintiff's objection is construed as a relevancy objection, the Court does not address each objection but, because the Court may rely only on relevant evidence in addressing the motion for summary judgment, the Court's citation to evidence subject to a relevance objection means the objection has been overruled. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). ("As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted.").

IV. Summary of Material Facts

The Court finds the following material facts to be undisputed except where otherwise noted.

A. Plaintiff's Employment with the Tucson Call Center, April to July 2004

The U.S. Department of Commerce is part of the Executive Branch of the Federal government and is made up of a number of bureaus and activities, one of which is the U.S. Census Bureau. See, 13 U.S.C. §2. In addition to the constitutionally mandated decennial census, see U.S. Const. Art. 1 § 2, the Agency conducts periodic, continuing surveys, often sponsored by other government agencies and entities. A large number of the surveys conducted by the Census Bureau are conducted by employees of the National Processing Center ("NPC").[3] NPC is headquartered in Jeffersonville, Indiana, and also has a telephone call center located in Tucson, Arizona.[4] The Tucson Contact Center employs telephone interviewers who are responsible for conducting surveys via telephone, answering respondents' questions, handling both ...


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