Lucas v. Tempe Union High School District

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Tempe Union High School District's (“Defendant”) Motion for Summary Judgment (“Motion, ” Doc. 57). The Court now rules on the Motion.

         I. BACKGROUND

         On September 14, 2018, Defendant filed the pending Motion (Doc. 57). Plaintiffs filed a timely Response (Doc. 62) on November 5, 2018. Defendant then filed a timely Reply on December 3, 2018 (Doc. 69).

         The operative, seven-count Complaint (Doc. 25) alleges claims for race- and age-based employment discrimination. (Doc. 25 at 2).

         A. Facts

         Plaintiff Tammy Lucas (“Plaintiff”) brought this action against Plaintiff's former employer. (Doc. 25 at 1). Plaintiff's husband, Paul Lucas, is also listed as a plaintiff in this case, but only Plaintiff maintained an employment relationship with Defendant at any relevant time. (Id.); see supra Part III. The following facts are either undisputed or recounted in the light most favorable to the non-moving party.^[1]

         Plaintiff is a 51-year-old African-American woman. (Defendant's Statement of Facts (“DSOF”), Doc. 58 ¶ 1; Plaintiff's Statement of Facts (“PSOF”), Doc. 66 ¶ 1; see also Doc. 62 at 2). Plaintiff began working as a receptionist at Marcos de Niza High School (“MDN”) in 2014 under the supervision of the Assistant Principal, who is Hispanic. (DSOF ¶¶ 2-3, 6; PSOF ¶¶ 2-3, 6). At the time, she was the only African-American in the front office at MDN. (PSOF at 13). Plaintiff's contract was renewed for the school years beginning in 2015 and 2016, but not renewed for the school year beginning in 2017. (DSOF ¶¶ 8, 44; PSOF ¶¶ 8, 44). Plaintiff initially received “good” performance evaluations from Defendant, but Defendant asserts that her performance began to suffer in 2016. (DSOF ¶¶ 10-12; PSOF ¶¶ 10-12). Defendant states, and Plaintiff disputes, that Plaintiff's performance suffered because she neglected her duties of answering the school phone and took personal calls on her cell phone during business hours. (DSOF ¶ 15; PSOF ¶ 15).

         In March of 2016, Plaintiff applied for a Student Services position at MDN, but was not selected for the position. (DSOF ¶¶ 24, 27; PSOF ¶¶ 24, 27). Defendant selected a Hispanic individual over Plaintiff. (DSOF ¶ 27; PSOF ¶ 27). Plaintiff states, and Defendant disputes, that she began facing harassing conduct from her Hispanic co-workers immediately after she applied for the Student Services position. (DSOF ¶ 32; PSOF ¶ 32). Plaintiff lodged complaints with the Assistant Principal and other superiors regarding the conduct she encountered, which led to several meetings with superiors. (DSOF ¶¶ 33- 35; PSOF ¶¶ 33-35). Plaintiff suffered negative health events following these meetings and began seeing a therapist. (PSOF at 19). Plaintiff states that her Hispanic co-workers continued their harassing behavior, which included providing false notes about Plaintiff's alleged misbehavior at work to superiors. (PSOF at 20). Plaintiff eventually filed an EEOC charge against Defendant on November 22, 2016. (DSOF ¶ 42; see also Doc. 25 at 8).

         In March of 2017-after Plaintiff filed her EEOC charge-Plaintiff was placed on a performance improvement plan (“PIP”), citing continued performance-related issues. (DSOF ¶ 42; PSOF ¶ 42). Following the end of that school year, Defendant decided not to renew Plaintiff's employment contract for the subsequent year. (DSOF ¶ 44; PSOF ¶ 44).

         II.LEGAL STANDARD

         Summary judgment is appropriate when “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. 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).

         A. Admissibility of Evidence at the Summary Judgment Stage

         Although previously silent on the issue of admissibility of evidence at summary judgment, the 2010 revision to Federal Rule of Civil Procedure (“Federal Rule”) 56 clarified that “materials cited to support or dispute a fact need only be capable of being ‘presented in a form that would be admissible in evidence.'” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed.R.Civ.P. 56(c)(2)); see also Maurer v. Indep. Town, 870 F.3d 380, 384 & n.1 (5th Cir. 2017) (noting that the 2010 amendment effectively overruled prior Fifth Circuit precedent that required admissible evidence to oppose summary judgment).

         Consistent with the applicable Federal Rules, the Ninth Circuit historically applies a double standard to the admissibility requirement for evidence at the summary judgment stage. See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed. 1998). With respect to the movant's evidence offered in support of a motion for summary judgment, Ninth Circuit precedent required that it be admissible both in form and in content. See Canada v. Blains Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) (“This court has consistently held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment” (emphasis added); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976) (“Exhibits which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment” (emphasis added)). “Because verdicts cannot rest on inadmissible evidence and a grant of summary judgment is a determination on the merits of the case, it follows that the moving party's affidavits must be free of hearsay.” Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1121 (E.D. Cal. 2006) (internal quotation marks and citations omitted; emphasis in original).

         With respect to the non-movant's evidence offered in opposition to a motion for summary judgment, the Ninth Circuit stated that the proper inquiry is not the admissibility of the evidence's form, but rather whether the contents of the evidence are admissible. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (holding that, at summary judgment, the district court should consider unsworn, inadmissible hearsay statements written by the plaintiff in a diary about her diabetes symptoms to support an ADA discrimination claim); see also Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment” (emphasis added)). Accordingly, the Ninth Circuit consistently holds that a non-movant's hearsay evidence may establish a genuine issue of material fact precluding a grant of summary judgment. See Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001) (reasoning that, at summary judgment in an employment discrimination suit, a plaintiff's declaration that a school official “did make [an inflammatory] statement would be enough to establish a genuine issue of fact” despite concerns over hearsay and double hearsay). Thus, “[m]aterial in a form not admissible in evidence may be used to avoid . . . summary judgment[.]” Tetra Techs., Inc. v. Harter, 823 F.Supp. 1116, 1120 (S.D.N.Y. 1993) (emphasis in original)).

         Additionally, “unlike objections to foundation and hearsay, objections that evidence is not relevant or is misleading are superfluous at the summary judgment stage.” Quanta Indem. Co. v. Amberwood Dev. Inc., No. CV-11-01807-PHX-JAT, 2014 WL 1246144, at *2-3 (D. Ariz. Mar. 26, 2014) (internal quotation marks and citations omitted). “‘Objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself' and are thus ‘redundant' and unnecessary to consider here.” Patterson v. Reliance Standard Life Ins. Co., 986 F.Supp.2d 1140, 1144 (C.D. Cal. 2013) (quoting Burch, 433 F.Supp.2d at 1119).

         III. PRELIMINARY ISSUES

         A. Defendant's Evidentiary Objections

         As a preliminary matter, Defendant objects to several of Plaintiff's exhibits and statements of fact (or evidence underlying the statements) on the grounds that they are inadmissible. (Doc. 69 at 1-3).^[2] As detailed herein, however, a non-moving party may establish a genuine issue of material fact at the summary judgment stage by relying on evidence that is not in an admissible form. See supra Part II(A). To the extent Plaintiff relies on hearsay evidence to support her claims at this stage, that evidence “could be presented in an admissible form at trial-namely, the plaintiff [or appropriate individual] could testify from her personal knowledge.” Cook v. Lee, No. CV-17-02569-PHX-DGC (JFM), 2019 WL 2525373, at *3 (D. Ariz. June 19, 2019) (citing Fraser, 342 F.3d at 1036). Accordingly, Defendant's evidentiary objections are overruled without prejudice to raise any appropriate objections at trial. Just as Defendant's Reply (Doc. 69) “attempt[s] to object” to various facts offered by Plaintiff “in the context of its legal argument, ” the Court will do the same in its analysis. (Doc. 69 at 3).^[3]

         B. Derivative Claims

         Next, Defendant points out that the operative Complaint (Doc. 25) “does not allege facts to support any claim by Plaintiff's husband, Paul Lucas, and [it] does not assert any claim personal to him.” (Doc. 57 at 7). Plaintiffs confirm that “[Paul] Lucas has not and did not intend to bring a derivative claim.” (Doc. 62 at 2). Consequently, “[Plaintiff] concedes that [Paul] Lucas's claim . . . should be dismissed.” (Id.). To the extent the Complaint (Doc. 25) could be read to state a claim by Paul Lucas, Defendant is entitled to summary judgment on any such claim brought by Paul Lucas.

         C. Punitive Damages

         Additionally, the Complaint (Doc. 25) seeks punitive damages for Counts I through VI. (See Doc. 25 at 10-14). Defendant points out that “[t]he only defendant here is Tempe Union High School District, ” and “[p]ublic entities are not subject to punitive damages under federal or state law.” (Doc. 57 at 14 (citing 42 U.S.C. § 1981a(b)(1); Ariz. Rev. Stat. § 12-820.04)). Likewise, Plaintiff “concedes” that “the punitive damages claim should be dismissed.” (Doc. 62 at 2). Accordingly, the Court finds that Defendant-a public entity cannot be subject to punitive damages in this case.

         D. Pinpoint Citations

         Finally, Defendant argues that Plaintiff's Response (Doc. 62) violates Federal Rule 56(c)(1)(A) by failing to cite “particular parts of materials in the record” in “asserting that a fact cannot be or is genuinely disputed.” (See Doc. 69 at 3-4 (citing Fed.R.Civ.P. 56(c)(1)(A)). Here, Plaintiff states in her Response (Doc. 62) that she “presented admissible relevant evidence in her [PSOF, ] which is incorporated herein by reference because of page limits.” (Doc. 62 at 5). Plaintiff then fails to provide any pinpoint citations to particular parts of the record throughout her entire Response (Doc. 62). (See generally id.). Page limits do not excuse a party from providing pinpoint citations in the body of a brief or memorandum. See Fed. R. Civ. P. 56(c)(1)(A). Defendant argues that “[t]his omission alone should entitle Defendant to summary judgment.” (Doc. 69 at 3). Federal Rule 56(c)(3) states that “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). Despite Plaintiff's failure to comply with the Federal Rules or Local Rules regarding citations, the Court nevertheless “cull[s] through the record to try to locate evidence for Plaintiff on each claim” where it may be found. (Doc. 69 at 4); see supra n.1.^[4]

         IV. DISCUSSION

         Plaintiff asserts four types of claims on the basis of race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981: hostile work environment, disparate treatment, retaliation, and failure to hire. (See Doc. 25 at 2). Plaintiff also asserts a single claim under 29 U.S.C. § 623 for failure to hire on the basis of age. (See id.). “The Court notes at the outset that legal principles applicable to the Title VII claims apply with equal force to the claims brought under § 1981.” See Newton v. Suncrest Healthcare Ctr., LLC, No. CV-08-711-PHX-DGC, 2009 WL 4151180, at *1 (D. Ariz. Nov. 23, 2009) (citing Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 851 (9th Cir. 2004) (disparate treatment)); Mannatt v. Bank of Am., NA, 339 F.3d 792, 798, 800-01 (9th Cir. 2003) (hostile work environment and retaliation)).

         A. Disparate Treatment ...