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Keith v. Jewell

United States District Court, D. Arizona

June 29, 2016

Benjamin Keith, Plaintiff,
Sally Jewell, Secretary of the U.S. Department of the Interior, Defendant.


          Honorable G. Murray Snow United States District Judge

         Pending before the Court is the Motion for Summary Judgment by Defendant Sally Jewell. (Doc. 33.) For the following reasons, the Court grants the motion.


         Plaintiff Benjamin Keith, a 54 year old contract employee with the Bureau of Indian Education, was employed as a Facility Manager at the Kaibeto Boarding School. The school principal, Phyllis Newell-Yazzie, detailed him to the positions of Residential Assistant and Security Guard and then ultimately chose not to renew his annual employment contract. Keith brings the present suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.


         I. Legal Standard

         The Court grants summary judgment when the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In making this determination, the Court views the evidence "in a light most favorable to the non-moving party." Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). "[A] party seeking summary judgment always 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). The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248).

         II. Analysis

         "The ADEA makes it unlawful ‘to discharge any individual . . . because of such individual's age.'" Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting 29 U.S.C. § 623(a)(1)). ADEA claims based on circumstantial evidence of discrimination are evaluated pursuant to the three-stage burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diaz, 521 F.3d at 1207. "Under this framework, the employee must first establish a prima facie case of age discrimination." Id. If a prima facie case is established, "the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action." Id. The burden then shifts back to the employee who must "prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination." Id. "As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment." Id. (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)).

         To establish a prima facie case of disparate treatment, a plaintiff must demonstrate that he was "(1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise ‘giving rise to an inference of age discrimination.'" Id.

         Here, Keith "failed to create a triable issue concerning whether his job performance was satisfactory."[1] See Id. at 1208. Defendant had produced evidence of various failures to perform important job functions, often with serious repercussions. (Doc. 34 at ¶ 19-26.) Keith's only attempt to "set forth specific facts showing that there is a genuine issue for trial, " as is required by Rule 56(e), is to state that Keith "denies in whole or in part . . . nearly half of all facts contained within Defendant's Motion for Summary Judgment, " listing all of the disputed facts by number, without comment or discussion. (Doc. 37 at 1-2.) Keith's only evidence is Keith's declaration, submitted in tandem with his statement of facts and mirroring the statement of facts almost verbatim. (Doc. 38-1.) This is wholly insufficient. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990) ("Rule 56(e) provides that judgment ‘shall be entered' against the nonmoving party unless affidavits or other evidence ‘set forth specific facts showing that there is a genuine issue for trial.' The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.").

         Moreover, Keith purports to "deny" Defendant's various facts regarding his failures to perform his job functions, but he explicitly or implicitly concedes that the job functions were not performed. See Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.").

         Defendant produced evidence that in October 2010, Principal Yazzie generated a work order to cut down protruding bed frames that had sharp edges in a girls' dormitory. (Doc. 34 at ¶ 19.) Some of the bed frames were cut down but others were not. (Id.) Keith conceded that he checked only "a portion of the bed rails" and that he "decided that because all of the bed rails checked thus far were correct, it was not necessary to check each and every bed rail." (Doc. 38 at ¶ 19.)

         Keith does not dispute that he "failed to repair or have his staff repair a water leak in the laundry room of a housing unit, which resulted in the growth of black mold in the staff's living quarters, which had to be abandoned after staff members grew ill from breathing toxic mold spores, " nor that he "admitted he did not inspect the repair or fill out a work order to inspect for mold, " nor that Principal Yazzie reported that he was "smiling" during their discussion of this issue, such that she ...

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