United States District Court, D. Arizona
ORDER
Douglas L. Rayes United States District Judge
This
matter returns to the Court from the Ninth Circuit's
mandate directing the Court to decide whether Plaintiff has
established a prima facie case of retaliation. (Doc. 89-1 at
2.) The Court relies on the parties' summary judgment
briefing (Docs. 62, 66, 69), which more than adequately
addresses the issue, to make this determination. For the
following reasons, the Court finds that Plaintiff has
established a prima facie case of retaliation and, therefore,
summary judgment for Defendant is not appropriate.
I.
Background[1]
On
April 26, 2018, the Court granted summary judgment in favor
of Defendant on Plaintiff's claims of unlawful
discrimination and retaliation under Title VII. (Doc. 74.)
Plaintiff appealed the grant of summary judgment on his
retaliation claim, as well as an earlier order dismissing his
claim for damages arising from an on-the-job car accident.
(Doc. 79.) The Ninth Circuit affirmed the Court's
dismissal of Plaintiff's accident-related Title VII
claim, but vacated and remanded the decision on
Plaintiff's retaliation claim, finding that the Court
erred in granting summary judgment based on Plaintiff's
failure to establish that the Federal Aviation
Administration's (“FAA”) legitimate
nondiscriminatory reasons for his job reassignment were
pretextual. (Doc. 89-1 at 2.) When ruling on Defendant's
summary judgment motion, the Court assumed (without deciding)
that Plaintiff had demonstrated a prima facie case of
retaliation. (Doc. 74 at 8.) The Ninth Circuit therefore
directed the Court on remand to decide whether Plaintiff
established a prima facie case of retaliation such that his
claim survives summary judgment.[2]
II.
Legal Standard
To
establish a prima facie case of retaliation in violation of
Title VII, a plaintiff must show that (1) he engaged in
protected activity; (2) he thereafter was subjected by his
employer to an adverse employment action; and (3) a causal
link exists between the protected activity and the adverse
employment action. See Porter v. Cal. Dep't of
Corr., 419 F.3d 885, 894 (9th Cir. 2005) (citing Ray
v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000)).
III.
Analysis
Plaintiff
has established a prima facie case that Defendant unlawfully
retaliated against him by reassigning him to the Southern
Arizona System Support Center (“SSC”) in response
to his participation in the EEO complaint process. (Docs. 66
at 3- 6; 1 at 17.)
First,
Plaintiff engaged in protected activity by expressing his
intent to and by submitting an EEO complaint. Ray v.
Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); see
also Sias v. City Demonstration Agency, 588 F.2d 692,
695 (9th Cir. 1978) (“It is well settled that the
participation clause shields an employee from retaliation
regardless of the merit of his EEOC charge.”).
Second,
the FAA subjected Plaintiff to an adverse employment action
by reassigning him from the Central Arizona SSC to the
Southern Arizona SSC location. A materially adverse
employment action is any action that might well deter a
reasonable employee from engaging in future protected
activity. Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 54 (2006) (“The
anti-retaliation provision seeks to prevent employer
interference with ‘unfettered access' to Title
VII's remedial mechanisms by prohibiting employer actions
that are likely to deter discrimination victims from
complaining to the EEOC”). Plaintiff's reassignment
substantially increased his daily drive to over 266 miles
round-trip. (Doc. 66 at 4.) Such a lengthy and tiresome
routine might reasonably deter an employee from engaging in
future protected activity.
Third,
Plaintiff has established a causal link between the protected
activity and the adverse employment action. As underscored by
the Ninth Circuit, Plaintiff declared that his supervisor
told him, “I don't know why you have to file EEO,
after [I] told you not to, ” “I am very
disappointed at you, ” and “You are driving to
Tucson every day now. I have to show that I did
something!” (Doc. 89-1 at 2.) A causal link may also be
inferred because the FAA decided to reassign Plaintiff little
more than a week after becoming aware of Plaintiff's
intent to file an EEO complaint. Dawson v. Entek
Int'l, 630 F.3d 928, 936 (9th Cir. 2011) (“The
causal link can be inferred from circumstantial evidence such
as the employer's knowledge of the protected activities
and the proximity in time between the protected activity and
the adverse action.”). Specifically, on September 24,
2012, Plaintiff emailed his supervisor, Mary Hart, notifying
her that he intended to file an EEO complaint. (Doc. 63 at
5.) Ms. Hart thereafter forwarded the complaint.
(Id.) On October 2, 2012, Steven Sherwood,
Plaintiff's second line supervisor, issued an email
relaying the decision to reassign Plaintiff to the Southern
Arizona SSC. (Id. at 7.)
Because
Plaintiff has established a prima facie case of retaliation,
and in light of the Ninth Circuit's conclusion that
Plaintiff has raised a genuine issue of fact as to pretext,
Plaintiff's retaliation claim survives summary judgment.
IT
IS ORDERED that the parties appear for a telephonic
conference on November 22, 2019 at 10:00
a.m. before Judge Douglas L. Rayes to discuss
setting a trial date and other pretrial deadlines. Counsel
for Plaintiff is responsible for making the necessary
arrangements for the conference call. All parties
...