United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is the Motion for Summary Judgment by
Defendant Sally Jewell. (Doc. 33.) For the following reasons,
the Court grants the motion.
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.
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).
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)).
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.
Keith "failed to create a triable issue concerning
whether his job performance was
satisfactory." 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.").
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
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.)
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 ...