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Pierson v. City of Phoenix

United States District Court, D. Arizona

October 24, 2017

Winston O Pierson, Plaintiff,
v.
City of Phoenix, Defendant.

          ORDER

         Before the Court is Defendant's Motion for Summary Judgment and Plaintiff's Cross Motion for Summary Judgment. (Docs. 35, 40.) The motions are fully briefed. For the following reasons, Defendant's motion is granted and Plaintiff's motion is denied.[1]

         LOCAL RULE OF CIVIL PROCEDURE 56.1

         This District's Local Rules of Practice impose specific requirements on the form and content of summary judgment motions. “Any party filing a motion for summary judgment must file a statement, separate from the motion and memorandum of law, setting forth each material fact on which the party relies in support of the motion.” LRCiv 56.1(a). Each of these facts “must refer to a specific admissible portion of the record where the fact finds support (for example, affidavit, deposition, discovery response, etc.).” Id. Likewise:

Any party opposing a motion for summary judgment must file a statement, separate from that party's memorandum of law, setting forth: (1) for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support.

LRCiv 56.1(b). The court may deem a movant's separate statement of facts to be true if the nonmoving party does not comply with these rules. See Szaley v. Pima Cty., 371 Fed. App'x 734, 735 (9th Cir. 2010).

         Defendant submitted a separate statement of facts setting forth each material fact upon which it relies in its memorandum of law. (See Doc. 36.) Each paragraph cites to specific evidence in the record against which no admissibility objections have been raised. In violation of LRCiv 56.1(b), however, Plaintiff did not submit a separate statement of correspondingly numbered paragraphs indicating whether he disputes or admits the facts asserted by Defendant, along with additional facts that he believes preclude summary judgment. Because Plaintiff failed to submit a separate statement of facts, his memorandum of law fails to “include citations to the specific paragraph in the statement of facts that supports assertions made in the memorand[um.]” LRCiv. 56.1(e). Although courts generally construe the pleadings of pro se litigants liberally, “pro se litigants are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Accordingly, the Court deems Defendant's separate statement of facts to be undisputed for purposes of this order. Szaley., 371 Fed. App'x at 735.

         FACTUAL BACKGROUND

         Plaintiff is a 52-year-old African American male who has been employed by Defendant for over 30 years. (Doc. 36 ¶¶ 1, 8.) He has worked in Defendant's Neighborhood Services Department (NSD) as a Neighborhood Preservation Inspector I (Inspector I) for about 17 years. (¶ 1.) In October 2015, NSD Code Compliance Manager Robert Lozier initiated a hiring process for an open Neighborhood Preservation Inspector II (Inspector II) position with NSD. (¶ 2.) The Inspector II job posting required code enforcement and case management-related experience. (¶ 6.) This requirement could be met by a candidate with two or more years of experience as an Inspector I or by demonstrating team supervision and quality control/productivity analysis experience. (Id.) Other preferred skills included demonstrated experience in process improvement/efficiency initiatives, public speaking/presentations, and leadership skills, training, and education. (Id.) Based on these criteria, Plaintiff was one of nine candidates selected to interview for the Inspector II position. (¶ 7.)

         The candidates participated in the first round of interviews on February 8, 2016, before a four-person panel selected by Mr. Lozier. (¶¶ 9, 13.) The panel recommended candidates for additional interviews based on their performance during their first-round interviews. (¶ 15.) The panel's notes on the summary of Plaintiff's interview performance stated: “didn't answer the questions directly, great handshake, presents self well, left wanting more from answers.” (¶ 19.) One panel member concluded that Plaintiff's interview “was one of the worst of the day.” (¶ 20.) During deliberations, the panel reached a consensus that Plaintiff and one other candidate should not move forward in the process. (¶ 23.) Conversely, all four panel members agreed that two candidates would definitely move forward in the process-Bettina Manasseri and Reyes Espinoza. (¶ 24.) The panel members did not discuss or consider any applicant's race, sex, age, or other protected status during the interview process. (¶ 27.)

         At the conclusion of the second-round interviews, a second panel recommended Ms. Manasseri, a 27-year-old Hispanic female, for the Inspector II position. (¶ 30.) Ms. Manasseri's resume established that she had the skills required for the Inspector II position, including over two years of experience enforcing codes, ordinances and regulations, and more than one year of supervisory experience. (¶ 63.)

         On June 8, 2016, Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC), challenging his failure to receive an Inspector II promotion. (¶ 37.) On June 29, 2016, the EEOC issued a no cause finding and a Dismissal and Notice of Rights on Plaintiff's charge. (¶ 38.)

         Plaintiff filed this action in July 2016, alleging employment discrimination on the basis of his race, age, and sex. (Doc. 1.) Specifically, Plaintiff challenges Defendant's promotion decisions in 2012 and 2016. (Id.) Plaintiff seeks to recover compensatory damages for mental or emotional injuries, as well as punitive damages. (Doc. 36 ¶ 65.) Defendant has moved for summary judgment on all counts. (Doc. 35.) In his response memorandum, Plaintiff cross-moves for entry of summary judgment. (Doc. 40.)

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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.” Id. at 323. The burden then shifts to the non-movant to establish the existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical ...


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