United States District Court, D. Arizona
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., ...