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Sullivan v. Bank of America NA

United States District Court, D. Arizona

September 29, 2016

Pamela C Sullivan, Plaintiff,
v.
Bank of America NA, Defendant.

          ORDER

          Honorable Jennifer G. Zipps United States District Judge

         Pending before the Court is Magistrate Judge Bruce G. Macdonald's Report and Recommendation (R&R) recommending that Defendant's Motion for Summary Judgment be granted. (Doc. 94.) Plaintiff has filed an objection to the Report and Recommendation to which Defendant has replied. (Docs. 97, 99.) After considering the Report and Recommendation and the arguments raised in Plaintiff's Objection, the Court will overrule the objection and adopt Judge Macdonald's Report and Recommendation.

         STANDARD OF REVIEW

         When reviewing a Magistrate Judge's Report and Recommendation, this Court “shall make a de novo determination of those portions of the report ... to which objection is made, ” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b) (1)(c); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States Dist. Ct., 501 F.2d 196 (9th Cir. 1974)). By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate Judge's factual findings, but not necessarily the Magistrate Judge's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failing to object to a Magistrate Judge's legal conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal”); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).

         DISCUSSION[1]

         The ADEA makes it unlawful “to discharge any individual ... because of such individual's age.” 29 U.S.C. § 623(a)(1). ADEA claims that are based on circumstantial evidence of discrimination are evaluated under the three-stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004)). Under this framework, the employee must first establish a prima facie case of age discrimination. Id. (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). In order to establish a prima facie case, the employee must demonstrate that she was (1) at least forty years old, (2) performing her 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. If the employee has justified a presumption of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. Id. If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination. Id.

         Here, the Magistrate concluded as a matter of law that Plaintiff cannot establish her prima facie case because she was not replaced by a substantially younger employee or discharged under circumstances otherwise giving rise to an inference of age discrimination. The Magistrate further concluded that Plaintiff cannot demonstrate that the Defendant's stated reasons for her termination were pretextual. Plaintiff objects to the Magistrate Judge's conclusion that Defendant Bank of America (BOA) is entitled to summary judgment. Plaintiff claims that the R&R incorrectly concluded that there was no material issue of fact as to whether: (1) Plaintiff was discharged under circumstances giving rise to an inference of age discrimination; and (2) BOA's stated reason for termination was pretextual.[2]

         1. No reasonable jury could conclude that Plaintiff was discharged under circumstances giving rise to an inference of age discrimination

         It is undisputed that Plaintiff was replaced by an individual nine years her senior, and therefore Plaintiff cannot prove the fourth element of her prima facie case by showing that she was replaced by a substantially younger employee. Plaintiff contends, however, that she was nonetheless discharged under circumstances otherwise giving rise to an inference of age discrimination.[3] In support of this contention, Plaintiff first claims that it was “common knowledge” among BOA employess that BOA had a custom and practice of setting unreachable goals and performance standards so that it could later justify adverse employment actions. The only proof submitted in support of this claim, however, is a statement by Plaintiff in a declaration and an undecipherable document titled “Southwest Region Review” which Plaintiff characterizes as “BOA performance statistics.” (Doc. 88, pg. 8; Doc. 88-1, pgs. 7-12.) Plaintiff has not established that she is qualified to opine as to the reasonableness of BOA's performance standards, nor does she explain how the “Southwest Region Review” sets performance standards. Plaintiff's proffered evidence does not give rise to an inference of discrimination. Furthermore, even if BOA did set unreachable goals and performance standards for its employees, such a policy would not automatically give rise to an inference of age discrimination absent evidence that the goals were specifically challenging for older employees.

         Second, Plaintiff claims that the R&R improperly gave weight to the fact that Plaintiff's immediate supervisor and his supervisor were both older than Plaintiff. Although the R&R mentioned the ages of Plaintiff's supervisors in its factual background, it did not give weight to their ages in analyzing whether Plaintiff had raised an inference of discrimination in her prima facie case.

         Third, Plaintiff argues that the short temporal proximity between the protected activity (turning 40) and the adverse action (her termination, eight days later) constitutes a circumstance giving rise to an inference of age discrimination. Plaintiff's argument is based on citation to Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002), which holds that in a retaliation claim, a plaintiff may demonstrate a causal link between the protected activity and the adverse employment decision where an adverse employment action follows on the heels of protected activity. Villiarimo has no relevance in this age discrimination disparate treatment case. Furthermore, it is undisputed that Plaintiff received notice of her termination 60 days earlier, when she was provided with a Transitional Assignment Agreement. (Doc. 76, Ex. 1, pg. 159.)

         Fourth, Plaintiff asserts that the R&R disregarded evidence of a pattern and practice of age discrimination by BOA. According to Plaintiff, four of the six other employees who shared Plaintiff's job title and were over 40 have left BOA. The only admissible evidence submitted by Plaintiff on this issue, however, is BOA's response to Plaintiff's Interrogatory #17. (Doc. 88-1, pg. 43.) In the interrogatory and the response, the parties identify five, not six, other BOA employees who shared Plaintiff's job title. (Id.) Of those five, only one was terminated: two retired, one resigned, and one is still employed by BOA. (Id.) Plaintiff has not produced evidence of a pattern or practice of discrimination.

         Finally, Plaintiff argues that age discrimination can be inferred from the fact that, after leaving BOA, Plaintiff was hired for a management position at a smaller bank and has been an outstanding employee. The fact that Plaintiff is doing well at her current job does not tend to prove that BOA discharged Plaintiff under circumstances giving rise to an inference of age discrimination. At best, the evidence supports the Magistrate's assumption that Plaintiff was performing her job satisfactorily.

         Accordingly, the Court adopts the Magistrate Judge's conclusion that Plaintiff cannot establish her prima facie case because she was not replaced by a substantially younger employee with equal or inferior qualifications or discharged under ...


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