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Marquez v. Glendale Union High School District

United States District Court, D. Arizona

October 9, 2018

Louise Marquez, Plaintiff,
v.
Glendale Union High School District, Defendant.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court are Defendant's Motion for Summary Judgment (Doc. 67) and Plaintiff's Motion for Partial Summary Judgment (Doc. 70). The Court now rules on these motions.

         I. INTRODUCTION

         Defendant Glendale Union High School District (hereinafter “Defendant” or the “District”) employed Plaintiff Louise Marquez (hereinafter “Plaintiff”) as a computer programmer from October 2001 until Plaintiff's employment terminated on October 1, 2014. (Doc. 68 ¶¶ 1, 63; Doc. 69 ¶¶ 1-2). Plaintiff claims that her termination was illegally motivated by her age, disability, and statutorily protected activity. (Doc. 3 ¶¶ 1-2). Particularly, Plaintiff alleges that Defendant violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. (“ADA”), the Rehabilitation Act, 29 U.S.C. § 793, et seq. (“Rehabilitation Act”), and the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). (Doc. 3 ¶¶ 1-2).[1] Defendant denies each of Plaintiff's claims, and raises the affirmative defense that Plaintiff failed to mitigate her damages. (Doc. 10 at 1-7).

         On May 18, 2018, Defendant filed its pending Motion for Summary Judgment (Doc. 67), contending that Plaintiff failed to support each of her remaining claims and that no genuine dispute of material fact exists such that Defendant is entitled to judgment as a matter of law. (Doc. 67 at 1). Plaintiff filed an Amended Response to Defendant's Motion for Summary Judgment (Doc. 83) on July 16, 2018, [2] to which Defendant filed a Reply (Doc. 84) on July 27, 2018.[3]

         Also on May 18, 2018, Plaintiff filed her pending Motion for Partial Summary Judgment (Doc. 70) on her Eighth Cause of Action, which alleges interference with Plaintiff's rights under the FMLA, and on Defendant's affirmative defense of failure to mitigate damages. (Doc. 70 at 1). Defendant filed its Response in Opposition to Plaintiff's Motion for Partial Summary Judgment (Doc. 80-1) on July 6, 2018, [4] to which Plaintiff filed a Reply (Doc. 85) on July 27, 2018.[5]

         II. BACKGROUND

         The following facts providing relevant background are drawn from the parties' statements of fact, briefs, and from parts of the record.

         Plaintiff was an at-will employee for the District. (Doc. 77-1 at 149, 152). As a computer programmer, Plaintiff was responsible for writing, maintaining, and developing computer code relating to District student data, which she primarily accomplished throughout her tenure at the District by using a Linux-based programming language. (Doc. 68 ¶¶ 3-4; Doc. 77 ¶¶ 3-4). In 2007, the District purchased new student information and data management software, which used a different programming language known as Structured Query Language (“SQL”). (Doc 68 ¶¶ 5-6; Doc. 77 ¶¶ 5-6). That year, Plaintiff attended training on SQL Transact with all of the other programmers, (Doc. 77-1 at 26, Marquez Depo., 98: 10-24; Doc. 77-1 at 71, Beveridge Depo., 33: 16-22). In 2010, Ashley Hyman, another computer programmer, attended SQL Reporting training, which Plaintiff claims she was not provided the opportunity to attend. (Doc. 77 ¶ 93). Although Plaintiff requested external SQL Reporting training, she never received such training prior to her termination. (Doc. 77 ¶ 94; Doc. 77-1 at 135, ¶¶ 18-19). Nevertheless, Plaintiff had other training resources available to her, (Doc. 77-1 at 27, Marquez Depo, 101:5- 103:18), and frequently received instruction on SQL from Denis Alcock, another programmer, (Doc. 68 ¶ 25).

         Over several years, the District gradually transitioned from the Linux-based software to the new SQL software. (Doc. 68 ¶ 7; Doc. 77 ¶ 7). By the beginning of the 2014-2015 school year, the transition from the Linux software to the SQL software was nearly complete. (Doc. 68 ¶ 26; Doc. 77-1 at 41, Dean Depo., 29: 1-21). However, Plaintiff asserts that there was still significant work that required use and knowledge of Linux at the beginning of the 2014-2015 school year. (Doc. 77 ¶ 13).

         From 2005 until August 2014, Jordan Beveridge served as the Director of the IT department at the District. (Doc. 69 ¶ 3). Gail King was Plaintiff's immediate supervisor from 2007 until September 1, 2012. (Doc. 77 ¶¶ 83-84). Thereafter, Mr. Beveridge served as Plaintiff's supervisor until approximately July 2014, at which time Ms. Hyman was promoted and became Plaintiff's immediate supervisor. (Doc. 69 ¶ 5; Doc. 75 ¶ 5; Doc. 69-1 at 41, Hyman Depo., 9:1-10). Although Plaintiff did not have any difficulties with Ms. Hyman when they were both programmers, Plaintiff asserts that problems arose with Ms. Hyman once she became Plaintiff's supervisor. (Doc. 77-1 at 23, Marquez Depo., 82:11-16). For example, Plaintiff claims that Ms. Hyman told Plaintiff: “I would rather have 100 young ones than one of you, ” (Doc. 83 at 13), although Defendant contends Ms. Hyman did not make this comment, (Doc. 67 at 15).

         On approximately September 1, 2014, Josh Dean replaced Mr. Beveridge as Director of the IT Department. (Doc. 69 ¶ 7). In anticipation of this transition, Mr. Beveridge and Mr. Dean began discussing the restructuring of the IT department in early August. (Doc. 68 ¶ 28; Doc. 77 ¶ 28). In accordance with the restructuring, the District approved new programmer job descriptions emphasizing the need for training and experience in SQL Reporting on September 7, 2014, and October 1, 2014. (Doc. 77-1 at 97-100).

         With the exception of one performance evaluation from 2010 expressing that Plaintiff did not meet job performance standards in five of the seven evaluated categories, there is little evidence in the record discussing Plaintiff's performance prior to April 2014. See (Doc. 77-1 at 144-46). Plaintiff's April 30, 2014 performance evaluation was an improvement, as she received satisfactory ratings in five of the seven categories. (Doc. 77-1 at 140-42). Thereafter, however, Plaintiff encountered frequent scrutiny from her supervisor, Ms. Hyman, for allegedly: failing to meet deadlines, (Doc. 68 ¶ 21); resisting learning and using SQL, (Doc. 68 ¶¶ 14, 39); failing to actively communicate when she ran into project delays or needed help, (Doc. 68 ¶ 35); and for making mistakes including incorrectly uploading certain information on September 3, 2014 (Doc. 68 ¶ 36). Ms. Hyman met with Plaintiff to discuss these alleged performance issues on September 8, 2014.

         On September 9, 2014, Plaintiff improperly coded new student attendance information, (Doc. 68 ¶ 40), although Plaintiff claims the error was a result of Ms. Hyman sending her the wrong instructions, (Doc. 77 ¶ 99). On September 12, 2014, Plaintiff met with Ms. Hyman and Human Resources Director Tom Hernandez to again discuss Plaintiff's alleged performance issues, including the requirement that Plaintiff use SQL, complete projects on time, and communicate with her coworkers regarding problems. (Doc. 68 ¶ 41; Doc. 77 ¶ 41). Following this meeting, Defendant issued a written reprimand to Plaintiff summarizing her performance issues on September 15, 2014. (Doc. 68 ¶ 43; Doc. 77 ¶ 43). Also on September 15, 2014, Mr. Hernandez provided Plaintiff with information on three open job positions within the District to which Plaintiff could transfer. (Doc. 68 ¶ 45; Doc. 77 ¶ 45). That same day, Plaintiff completed three transfer request forms for these open positions, writing “I do not have enough SQL Query and Report Builder experience to meet deadlines” as the reason for transfer, although Plaintiff claims she wrote this statement “under duress and at Mr. Hernandez's direction.” (Doc. 68 ¶ 46; Doc. 77 ¶¶ 45-46).

         On September 16, 2014, Plaintiff was not feeling well and sought emergency medical care. (Doc. 69 ¶ 8). Subsequently, Plaintiff emailed Ms. Hyman requesting sick leave for that day. (Doc. 68 ¶ 49; Doc. 68-2 at 77, Hyman Depo., 43:4-22; Doc. 77 ¶¶ 49-50). Plaintiff claims that she told Ms. Hyman that she had a brain tumor when she contacted Ms. Hyman on September 16, (Doc. 68-2 at 10-11, Marquez Depo., 110:22-111:15), but Ms. Hyman asserts that she had no idea that Plaintiff had a brain tumor until after Plaintiff no longer worked at the District, (Doc. 68-2 at 77-78, Hyman Depo., 43: 23-44:9). Nevertheless, the parties agree that Plaintiff never shared any information regarding a treatment plan or the work related impact of any diagnosis with Ms. Hyman. (Doc. 68 ¶ 51; Doc. 77 ¶ 51).

         From September 16 through September 29, Plaintiff did not report to work and instead phoned or emailed in daily requests to use sick leave. (Doc. 68 ¶ 57; Doc. 77 ¶ 57). In total, Plaintiff used 11 days of sick leave in this period. (Doc. 69 ¶ 20). Plaintiff did not tell any other District employees-including Mr. Beveridge, Mr. Hernandez or Mr. Dean-that she was seeing a doctor for a possible brain tumor. (Doc. 77 ¶ 52; Doc. 68-2 at 10, Marquez Depo., 110:2-21).

         On September 24, 2014, Ms. Hyman emailed Plaintiff requesting medical documentation for that day's absence and for any further absences in light of Plaintiff's use of her ten discretionary days for the year. (Doc. 69 ¶ 14; Doc. 69-3 at 10; Doc. 75 ¶ 14). Plaintiff then emailed Mr. Hernandez on September 25, 2014, asking what form of medical records she should provide in response to Ms. Hyman's request for documentation. (Doc. 69 ¶ 15; Doc. 69-3 at 10; Doc. 75 ¶ 15). The next day, Mr. Hernandez spoke to Plaintiff regarding the medical documentation needed. (Doc. 69 ¶ 16). On September 29, 2014, Plaintiff notified Defendant that she scheduled a doctor's appointment for October 6, 2014 specifically for the purpose of obtaining the medical documentation Defendant had requested, and also stated that when she visited the doctor on September 22 she had been unaware that she needed to obtain medical documentation to submit to the District. (Doc. 69 ¶ 17; Doc. 69-3 at 12; Doc. 75 ¶ 17). Nevertheless, at no time from September 16 until October 1 did Plaintiff provide Defendant with any medical documentation or doctor's notes explaining the nature of the condition that necessitated her time off of work. (Doc. 68 ¶ 58; Doc. 77 ¶ 58).

         On September 30, 2014, Mr. Hernandez called Plaintiff to inform her that her position had been dissolved due to the restructuring of the IT department. (Doc. 68 ¶ 61; Doc. 77 ¶ 61). Following up on October 1, 2014, Mr. Hernandez sent Plaintiff an email notifying her that despite the elimination of her position due to the restructuring, she was eligible to reapply for any district position for which she might be qualified. (Doc. 69 ¶ 19; Doc. 69-1 at 30; Doc. 75 ¶ 19). Plaintiff's employment with the District ended effective October 1, 2014. (Doc. 68 ¶ 63; Doc. 77 ¶ 63). At the time of her termination, Plaintiff had 92 days of accrued sick leave, 25 days of accrued vacation leave, and was almost 60 years old. (Doc. 69 ¶ 21; Doc. 75 ¶ 21; Doc. 77-1 at 124).

         In December 2014, Plaintiff filed a Charge of Discrimination with the EEOC. (Doc. 77-1 at 124). Thereafter, Plaintiff filed the instant action on September 30, 2016. (Doc. 1). In discovery, Defendant sought and received information concerning Plaintiff's efforts to mitigate damages, which Defendant's vocational expert used to prepare an Earning Capacity Evaluation detailing Plaintiff's efforts in finding employment as well as potential job opportunities available to her in the Phoenix area. (Doc. 69 ¶¶ 29-30; Doc. 75 ¶¶ 47-50).

         III. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate 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). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. at 56(c)(1)(A-B). Thus, summary judgment is mandated “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).

         Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and the elements of the cause of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that may affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         At the summary judgment stage, the Court's role is to determine whether there is a genuine issue available for trial. There is no issue for trial unless there is sufficient evidence in favor of the non-moving party for a jury to return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. (citations omitted).

         IV. DISCUSSION

         A. Age Discrimination under the ADEA

          Defendant has moved for summary judgment on Plaintiff's Third Cause of Action, which alleges age discrimination under the ADEA. Under the ADEA, it is unlawful for an employer “to discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). The statute's protections are “limited to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a). In order for an employer to be liable for age discrimination under the ADEA, “the plaintiff's age must have ‘actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome.'” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). See also Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 176 (2009) (“To establish a disparate-treatment claim under the plain language of the ADEA, . . . a plaintiff must prove that age was the ‘but-for' cause of the employer's adverse decision.”). Nevertheless, the plaintiff does not have the burden of proving that age was the “but-for” cause of the employer's adverse decision in order to survive summary judgment; rather, the plaintiff bears the burden of showing “but-for” causation at trial. Shelley v. Geren, 666 F.3d 599, 607-08 (9th Cir. 2012).

         Courts analyze ADEA claims differently depending on whether the claim relies on direct or circumstantial evidence. See Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004). “Direct evidence, in the context of an ADEA claim, is defined as ‘evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision.'” Id. (quoting Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999)). Accordingly, if the plaintiff's ADEA discrimination claim relies on direct evidence, the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), does not apply. Id.; see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 112 (1985) (“The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). In contrast, claims of age discrimination based on circumstantial evidence are analyzed under the McDonnell Douglas three stage burden-shifting framework. Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (citing Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008)).

         Here, Plaintiff has only produced circumstantial evidence of age discrimination in the form of comparator evidence and an alleged stray comment. Specifically, Plaintiff points to the fact that Defendant fired the only other Computer Programmer over age 40 just two months after Plaintiff's termination as evidence of unlawful age discrimination against an individual in the same protected class as Plaintiff. (Doc. 83 at 12-13). As evidence indicating that Defendant may have been hostile toward employees over age 40, a “well-defined and protected group, ” such an incident could demonstrate that Defendant had a discriminatory animus toward older employees. Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1014 (9th Cir. 1999); see also Heynes v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995) (holding that the district court erred in excluding testimony about employer's harassment of other female employees, as such evidence was relevant to proving a discriminatory motive for termination because “an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group.”).

         Plaintiff also alleges that Ashley Hyman, her supervisor at the time of the termination of her employment, made an ageist comment during a meeting with Plaintiff in August 2014 after Plaintiff asked Ms. Hyman for four days of bereavement leave. (Doc. 83 at 13; Doc. 77 ¶ 96). In response to this request, Plaintiff claims that Ms. Hyman stated: “I would rather have 100 young ones than one of you.” (Doc. 83 at 13). According to Defendant, Ms. Hyman denies making this comment, or any other ageist remarks, to Plaintiff. (Doc. 67 at 15). In her Amended Response to Defendant's Motion for Summary Judgment, Plaintiff acknowledges that Ms. Hyman's alleged statement is a “stray comment” which, when standing alone, may not be sufficient to prove discrimination. (Doc. 83 at 12-13). Generally, “stray remarks not directly tied to the decision-making process are not direct evidence capable of defeating summary judgment.” France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2015) (citing Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (“[S]tray remarks are insufficient to establish discrimination.”)).

         In this case, Plaintiff has not proffered any evidence that Ms. Hyman's remark about her age was directly tied to Plaintiff's termination. Even drawing all inferences in Plaintiff's favor, [6] Plaintiff has, at most, surmised that Mr. Hernandez's decision to terminate Plaintiff was impacted by Ms. Hyman's alleged discriminatory animus. (Doc. 83 at 13). To support this theory, Plaintiff points to the fact that Ms. Hyman was only 26 years old at the time of Plaintiff's termination, (Doc. 83 at 13; Doc. 77 ¶ 16), and claims that “[w]hile Ms. Hyman was not an ultimate decision-maker” in ending Plaintiff's employment, “she was certainly in a position that would have required her input and involvement as to how the restructuring would be implemented, ” (Doc. 77 ¶ 125). Regardless, Plaintiff failed to proffer any evidence that Ms. Hyman recommended Plaintiff's termination based on Plaintiff's age or that this “stray comment” was related to any decision-making process. Moreover, the comment is vague and not necessarily probative of discriminatory intent, as it is not clear whether Ms. Hyman would prefer “100 young ones” because she dislikes Plaintiff for being “old, ” or merely because she would prefer having more workers than less. Thus, the Court concludes that the comparator evidence produced by Plaintiff and Ms. Hyman's alleged stray comment are circumstantial evidence of age discrimination requiring application of the three-stage, burden-shifting framework of McDonnell Douglas. (Doc. 83 at 12). See France, 795 F.3d at 1173; Sheppard, 694 F.3d at 1049 (citing Diaz, 521 F.3d at 1207); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996).

         1. The Prima Facie Case

         To make out an ADEA claim based on circumstantial evidence of discrimination, the plaintiff must first establish a prima facie case by demonstrating 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.” Diaz, 521 F.3d at 1207. The requisite degree of proof necessary to establish a prima facie case is minimal on summary judgment, and does not need to meet a preponderance of the evidence standard. Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).

         Should the plaintiff succeed in showing a prima facie case, the burden then shifts “to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action.” Diaz, 521 F.3d at 1207 (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)); see also Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). Then, if the employer satisfies its burden, the plaintiff “must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.” Id. (citing Coleman, 232 F.3d at 1281).

         The parties do not dispute that Plaintiff is at least forty years old and a member of the class protected under the ADEA. Accordingly, the first element of Plaintiff's prima facie case is met. The third element of Plaintiff's prima facie case is also met, as neither party denies that Plaintiff's employment with the District terminated. Rather, the contention lays in the second and fourth elements as Defendant claims that Plaintiff cannot establish a prima facie case of age discrimination because Plaintiff was not performing her job satisfactorily, and because Plaintiff “fails to point to any similarly-situated individuals outside her protected class who were treated more favorably.” (Doc. 67 at 14).

         a. Whether Plaintiff was Performing Satisfactorily

         At issue is whether Plaintiff was performing her job satisfactorily. To satisfy the second element of her prima facie case, Plaintiff “need only produce substantial evidence of satisfactory job performance sufficient to create a jury question on this issue.” Douglas, 656 F.2d at 533. See also Chuang, 225 F.3d at 1124 (“[T]he plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment” because “the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.”) (internal quotations omitted).[7]

         In support of its claim that Plaintiff was not performing her work satisfactorily, (Doc. 67 at 14), Defendant points to various deposition testimony, emails, and Plaintiff's written reprimand from the District in order to establish that Plaintiff: lacked expertise in SQL system programming, (Doc. 68 ¶ 14); resisted learning and using SQL, (Doc. 68 ¶¶ 14, 39); failed to meet deadlines, (Doc. 68 ¶ 21); did not actively communicate when she ran into project delays or needed help, (Doc. 68 ¶ 35); and made mistakes including incorrectly uploading certain information on September 3, 2014 and failing to properly code new student attendance information on September 9, 2014, (Doc. 68 ¶¶ 36, 40). Defendant also points out the fact that Plaintiff wrote: “I do not have enough SQL Query and Report Builder experience to meet deadlines” on each of the three transfer request forms she completed in September 2014 as evidence that “Plaintiff, by her own admission, lacked the skills necessary to satisfactorily perform her duties.” (Doc. 67 at 14; Doc. 68 ¶ 46).

         Contrarily, Plaintiff claims that she had “a long and well-established record of satisfactory performance.” (Doc. 83 at 15). To rebut Defendant's argument on this point, Plaintiff stated that the Written Reprimand she acquired on September 15, 2014 was the first disciplinary action she received in her entire 13 year tenure with the District, (Doc. 77 ¶ 78; Doc. 77-1 at 133, ¶ 4), and noted she was never placed on a performance improvement plan, (Doc. 77 ¶ 79; Doc. 77-1 at 134, ¶ 5). Plaintiff also avers that: she never refused to use SQL and continued to use Linux pursuant to Ms. Hyman's instruction to support the users of Linux-based programs, (Doc. 77 ¶ 87; Doc. 77-1 at 134-36, ¶¶ 8-13, 20); she regularly used SQL, (Doc. 77 ¶ 88; Doc. 77-1 at 135, ¶¶ 13, 15); the error she made on September 3, 2014 where she incorrectly uploaded student information was not arduous to correct and Plaintiff fixed this error in minutes, (Doc. 77-1 at 136, ¶ 22-23); her error on September 9, 2014 was the result of Ms. Hyman sending her the incorrect instructions, (Doc. 77-1 at 136, ¶ 24); and she only wrote “I do not have enough SQL Query and Report Builder experience to meet deadlines” on the transfer request forms she completed because she “was under duress and feared further discriminatory and retaliatory actions from Ms. Hyman, ” (Doc. 77-1 at 137, ¶¶ 28). Plaintiff's only support for these statements is her deposition testimony and unsigned Declaration[8] in support of her Response to Defendant's Motion for Summary Judgment. See (Doc. 77-1 at 133-38). Nevertheless, Plaintiff's own deposition and declaration testimony, albeit uncorroborated and self-serving, are sufficient to establish a genuine dispute of material fact on the issue of satisfactory job performance at the summary judgment stage since Plaintiff's testimony is “based on personal knowledge, legally relevant, and internally consistent.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 498 (9th Cir. 2015). See also Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 660 (9th Cir. 2002) (noting that an employee's own statement that he was performing at a level equal to that of other employees may be sufficient to establish a prima facie case even though such self-assessment testimony regarding job performance is not enough to create a triable issue of fact on the question of pretext).

         Further, Plaintiff claims she achieved satisfactory performance ratings throughout her tenure in Defendant's employ, (Doc. 77 ¶ 75-76), pointing to her April 30, 2014 performance evaluation, (Doc. 77-1 at 140-42). This evaluation assessed Plaintiff's performance in seven areas and applied a one through four rating scale, with a one being “unsatisfactory” and a four designating that the employee “exceeds expectations.” (Doc. 77-1 at 140-42). A rating of three indicated the employee's performance was “satisfactory.” (Doc. 77-1 at 140-42). In this April 2014 evaluation, made just five months prior to Plaintiff's termination, Plaintiff was rated at three in five of the seven performance areas: attendance/punctuality, grooming and dress, human relations skills, accepts direction, and project completion. (Doc. 77-1 at 140-42). In the other two performance areas, decision making and teamwork, Plaintiff received ratings of two, a grade indicating the employee “needs specific improvement” in those areas. (Doc. 77-1 at 140-42).[9]

         Beyond this performance evaluation, Plaintiff also set forth evidence that she received regular pay increases throughout her tenure with the District, including a pay increase in her contract for the 2014-2015 school year. (Doc. 77 ¶ 77; Doc. 77-1 at 133, ¶ 3). These facts support the conclusion that Plaintiff's performance is in dispute. See Swan v. Bank of Am. Corp., No. 207-CV-00217-PMP-LRL, 2008 WL 2859066, at *5 (D. Nev. July 22, 2008), aff'd sub nom. Swan v. Bank of Am., 360 Fed.Appx. 903 (9th Cir. 2009) (determining that the plaintiff “presented a prima facie showing of satisfactory performance” where the plaintiff offered as evidence “her own declaration that she was doing a satisfactory job, receiving bonuses, and achieving improved customer service scores”); Berdan v. Ortho-McNeil Pharm., Inc., No. C-96-207-VRW, 1997 WL 811782, at *2-3 (N.D. Cal. Dec. 31, 1997) (finding that the plaintiff demonstrated a genuine dispute of material fact on the satisfactory performance element where the plaintiff pointed to her “11 years of commendable and satisfactory service as evidence that she was performing her job in a satisfactory manner”).

         To rebut Defendant's claims that she was not performing satisfactorily, Plaintiff also points to the deposition testimony of Gail King, Plaintiff's immediate supervisor from 2007 until September 1, 2012. (Doc. 77 ¶¶ 83-84). Even after Ms. King was no longer Plaintiff's direct supervisor, Ms. King continued to work for the District's IT Department as an independent contractor. (Doc. 77 ¶¶ 83-84). In her deposition, Ms. King indicated that she disagreed with the District's decision to terminate Plaintiff because she knew Plaintiff to be a hard-worker, and because there was still work that Plaintiff could do for the District in Linux and Infinite Campus. (Doc. 77 ¶¶ 83-84; Doc. 77-1 at 91, King Depo. 38:10-25). Coupled with Plaintiff's April 2014 performance review indicating that her performance was satisfactory five months prior to her termination, Ms. King's deposition testimony also constitutes evidence creating a genuine dispute of fact as to whether Plaintiff was performing satisfactorily. See Bahri v. Home Depot USA, Inc., 242 F.Supp.2d 922, 946 (D. Or. 2002) (noting that the plaintiff presented sufficient evidence that he was performing satisfactorily to support a prima facie case of age discrimination where he uniformly met job expectations in his performance reviews and appraisals prior to the arrival of an allegedly discriminatory supervisor).

         Finally, the Court notes that both Plaintiff and Defendant have introduced in the record an Earning Capacity Evaluation completed by Defendant's vocational expert which demonstrates a genuine dispute of material fact on the issue of satisfactory performance.[10] Despite Defendant's contentions that Plaintiff lacked expertise in SQL programming (Doc. 68 ¶ 14; Doc. 84 at 7), Defendant's own vocational expert indicated in his Earning Capacity Evaluation that he believed Plaintiff was a qualified candidate for positions such as “SQL Developer” and “SQL Database Administrator.” (Doc. 75-1 at 38). Defendant's expert opined that these are jobs which “Ms. Marquez could obtain, perform and maintain considering her skills.” (Doc. 75-1 at 38-39). Accordingly, the Court finds that there is a genuine dispute of material fact on the issue of satisfactory performance for this additional reason as well. As a result, Plaintiff has made a showing sufficient to meet the satisfactory performance element of her prima facie case.

         b. Whether the Circumstances of Plaintiff's Termination Establish an Inference of Discrimination

         Also at issue is whether Plaintiff can show that the circumstances of her discharge from Defendant's employ give rise to an inference of discrimination. A plaintiff can establish an inference of discrimination by “showing the employer had a continuing need for [the employee's] skills and services in that [her] various duties were still being performed . . . or by showing that others not in [her] protected class were treated more favorably.” Diaz, 521 F.3d at 1207-08 (citation omitted). This element can also be met by a showing that the plaintiff was “replaced by a substantially younger employee with equal or inferior qualifications.” Coleman, 232 F.3d at 1281 (citing Nidds, 113 F.3d at 917).

         Defendant claims that Plaintiff is unable to meet this fourth element of her prima facie case of age discrimination because Plaintiff “fails to point to any similarly-situated individuals outside her protected class who were treated more favorably.” (Doc. 67 at 14). In support of this contention, Defendant asserts that Plaintiff received the same opportunity for SQL training as her coworkers. (Doc. 67 at 14-15; Doc. 68 ¶¶ 17-20). Nevertheless, Plaintiff has presented evidence that at least one individual “similarly situated”[11] to her-another non-supervisor programmer-received additional SQL training which Plaintiff was not afforded the opportunity to attend. (Doc. 77 ¶¶ 18, 93). Specifically, Plaintiff indicated that Ashley Hyman, born in 1986 and thus outside of Plaintiff's protected class, attended SQL Reporting training in 2010, (Doc. 77 ¶¶ 16, 18, 93), which was prior to the time Ms. Hyman became Plaintiff's supervisor, (Doc. 68 ¶ 15). Additionally, Plaintiff demonstrated that she requested SQL Reporting training, but Defendant never allowed her to attend this training with an external provider as they had permitted Ms. Hyman to do. (Doc. 77 ¶¶ 91-95; Doc. 77-1 at 135, ¶¶ 16-19). Therefore, Plaintiff has presented sufficient evidence to establish a genuine dispute of material fact as to whether she received the same opportunity for SQL training as her coworkers, and, accordingly, whether she was treated less favorably than similarly-situated individuals outside of her protected class.

         Plaintiff also introduced evidence that two individuals younger than her[12]-Ben Guidry and Kevin Greenberg-were promoted to Computer Programming positions on or about July 1, 2015.[13] (Doc. 77 ¶¶ 106, 108; Doc. 83 at 12). Specifically, Mr. Guidry was born in 1989, and Mr. Greenberg was born in 1985. (Doc. 77-2 at 2). As individuals younger than forty promoted to the same job from which Plaintiff had been terminated, Mr. Guidry and Mr. Greenberg constitute similarly situated individuals outside of Plaintiff's protected class who were treated more favorably than Plaintiff. See Diaz, 521 F.3d at 1207-08 (citation omitted). Further, with regard to Mr. Guidry, Plaintiff has made a showing that she was “replaced by a substantially younger employee with equal or inferior qualifications.” Coleman, 232 F.3d at 1281 (citation omitted). Specifically, Mr. Alcock's deposition testimony indicates that, in his opinion, Mr. Guidry did not appear to have any programming experience when Mr. Alcock began working with him, (Doc. 77-1 at 56, Denis Alcock Depo. at 42: 10-25, 43: 1-9, 57: 11-25, 58: 1-7), whereas Plaintiff had been working as a programmer for Defendant since October 2001, (Doc. 68 at ¶¶ 1, 63). Mr. Alcock also states in his deposition that although he believed Mr. Guidry was “doing good work in SQL, ” Mr. Guidry's tasks were “not to the degree that Louise was asked to do.” (Doc. 77-1 at 58, Denis Alcock Depo. at 57: 9-25, 58: 1-7). Accordingly, Plaintiff has made a showing sufficient to meet the fourth element of her prima facie case.

         Defendant relies upon comparator evidence in an effort to defeat an inference of age discrimination, claiming that two of Plaintiff's “peers” during the relevant time period were also over the age of 40. (Doc. 67 at 15; Doc. 68 ¶¶ 73-74). However, this argument is inapposite. “Under McDonnell Douglas, a plaintiff must show that an employer treated similarly situated individuals outside the plaintiff's protective class more favorably, not that the employer treated all other members within the class less favorably.” Chuang, 225 F.3d at 1124 n. 8. Thus, the fact that Defendant has pointed to other individuals within Plaintiff's class who allegedly worked for the District in the same time frame is irrelevant. Moreover, Plaintiff revealed that one of these “peers” pointed out by Defendant actually retired from the District as of July 1, 2014 and thereafter only worked as an independent contractor. (Doc. 77 ¶ 105; Doc. 83 at 12 n. 7). Accordingly, because that peer no longer worked as a full-time computer programmer at the time Plaintiff's position was dissolved, he was not “similarly situated” to Plaintiff and cannot be used as a comparator by Defendant. See Vasquez, 349 F.3d at 641, as amended (Jan. 2, 2004) (“[I]individuals are similarly situated when they have similar jobs and display similar conduct.”).

         Ultimately, Plaintiff has produced evidence refuting Defendant's contention that she is unable to establish that the circumstances of her discharge give rise to an inference of discrimination. As a result, Plaintiff has made a showing sufficient to her prima facie case.

         2. Legitimacy of Defendant's Explanation for the Termination of Plaintiff's Employment

         Because Plaintiff established a prima facie case, a presumption of discrimination was raised, thereby shifting the burden to Defendant to produce evidence that Plaintiff was discharged for a legitimate, nondiscriminatory reason. See Douglas, 656 F.2d at 533. This requires the employer only “to set forth a legally sufficient explanation” for the adverse employment action taken. Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir. 1985). The employer's burden is “one of production, not persuasion, thereby involving no credibility assessment.” Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1148-49 (9th Cir. 2006) (citation omitted).

         Here, Defendant has produced evidence indicating that Plaintiff's position was dissolved as part of a restructuring in the IT department and due to the IT department's need for a programmer with SQL experience. (Doc. 67 at 15; Doc. 84 at 8). According to Defendant, the District began discussing and planning a reorganization of its IT department in early August 2014 (before Plaintiff had ever called in sick) when Jordan Beveridge, the IT Director at the time, notified the District that he had accepted another job. (Doc. 68 ¶¶ 27-28). Defendant notes that the restructuring discussions included selecting Josh Dean to head the IT department, the elimination of Plaintiff's Linux-based position, and the approval of a new programmer job description emphasizing the need for SQL skills in light of the District's “virtual completion of the District's transition” to an SQL-based system. (Doc. 68 ¶¶ 28-29, 32, 38). Due to the District's “new computer system being SQL-based, ” Defendant claims that “there was no longer a need for a Programmer without SQL skills such as Plaintiff.” (Doc. 84 at 9). Further, Defendant presented evidence indicating that when Mr. Hernandez called Plaintiff to inform her that her position had been eliminated due to the restructure, Mr. Hernandez told Plaintiff that she was entitled to reapply for any available position within her department or elsewhere in the District. (Doc. 84 at 9).

         The Court finds that this evidence satisfies Defendant's burden to articulate a legitimate, non-discriminatory reason for the elimination of Plaintiff's employment at the District. Defendant has “clearly set forth through the introduction of admissible evidence, reasons for its employment decision which, if believed by the trier of fact, would support a finding that the employment action was not a result of unlawful discrimination.” Noyes, 488 F.3d at 1169 (citation and internal quotations omitted); see also Aragon, 292 F.3d at 661 (holding that poor job performance constitutes a legitimate, nondiscriminatory reason for terminating the plaintiff's employment); Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1295 (9th Cir. 2001) (holding that a reduction in force constituted a legitimate, nondiscriminatory reason for terminating employee).

         3. Pretext

         Once the employer articulates a legitimate, nondiscriminatory reason for the challenged action, the burden then shifts back to the plaintiff to raise a genuine factual question as to whether the proffered reason is pretextual. Lowe, 775 F.2d at 1008. The plaintiff can prove pretext “(1) indirectly, by showing that the employer's proffered explanation is ‘unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang, 225 F.3d at 1124. “All of the evidence-whether direct or indirect-is to be considered cumulatively.” Shelley, 666 F.3d at 609 (citing Chuang, 225 F.3d at 1124). Although the plaintiff may use circumstantial evidence to show pretext, the evidence must be “specific” and “substantial.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). Nevertheless, due to the “inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact.” Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991).

         Plaintiff is able to produce specific, substantial evidence of pretext by showing Defendant's explanation may be unworthy of credence. In response to Defendant's claim that Plaintiff was terminated because “her position was dissolved due to the IT restructure and the need for a programmer with SQL experience, ” (Doc. 84 at 8), Plaintiff offered evidence that the District promoted another employee, Mr. Guidry, to computer programmer despite his lack of experience in SQL just nine months after the termination of Plaintiff's employment. (Doc. 68 ¶¶ 1, 63; Doc. 77-1 at 56-58, Alcock Depo., at 42: 10-25, 43: 1-9, 57: 9-25, 58: 1-7; Doc. 83 at 16). Beyond suggesting that Defendant's termination decision was insincere and dishonest, Plaintiff's proffered evidence creates a factual dispute as to whether she was better qualified for the computer programmer position than Mr. Guidry. Compared to Mr. Guidry, Plaintiff presented evidence (beyond her own self-serving statements[14]) that she was able to perform SQL based tasks at a higher level than Mr. Guidry. See (Doc. 77-1 at 58, Alcock Depo., at 57: 9-25, 58: 1-7) (stating that although he believed Mr. Guidry was “doing good work in SQL, ” Mr. Guidry's tasks were “not to the degree that Louise was asked to do.”). “Evidence of a plaintiff's superior qualifications, standing alone, may be sufficient to prove pretext.” Shelley, 666 F.3d at 610 (citing Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) and Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1492 (9th Cir. 1995) (“A district court's finding that a Title VII plaintiff's qualifications were clearly superior to the qualifications of the applicant selected is a proper basis for a finding of discrimination.”)).

         To the extent that this argument by Plaintiff resembles that made by Plaintiff in her prima facie case to demonstrate that the circumstances of her termination establish an inference of discrimination, supra, the Court acknowledges that Plaintiff cannot satisfy her burden as to pretext “simply by restating the prima facie case and expressing an intent to challenge the credibility of the employer's witnesses.” Lindahl, 930 F.2d at 1437-38. “Still, because of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact.” Id. at 1438.

         Plaintiff also contends that Defendant's failure to follow its policy and practice of placing Plaintiff on a performance improvement plan prior to her termination is evidence of pretext. (Doc. 83 at 16). Notably, “[a] plaintiff may also raise a triable issue of pretext through evidence that an employer's deviation from established policy or practice worked to her disadvantage.” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117 (9th Cir. 2011). In this case, Plaintiff points to the deposition testimony of Tom Hernandez, the Human Resources Director, indicating that, although not a requirement, it is strongly suggested that District employees follow progressive discipline. (Doc. 77 ¶ 115-16; Doc. 77-1 at 12, Hernandez Depo., 183: 6-19). According to Hernandez's deposition testimony, this progressive discipline policy includes various levels of discipline including verbal warnings, receipt of a memo of understanding, receipt of a letter of reprimand, suspension (with or without pay), and, ultimately, recommendation for termination. (Doc. 77 ¶ 115; Doc. 77-1 at 7, Hernandez Depo., ...


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