1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REHEMA STEPHENS, No. 2:16-cv-1849-JAM-EFB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 COUNTY OF SACRAMENTO

DEPARTMENT OF HUMAN

15 ASSISTANCE OF NORTHERN

CALIFORNIA WELFARE DIVISION,

16 Defendant. 17

18

19 20 This case was before the court on February 27, 2019 for hearing on the sole defendant 21 County of Sacramento’s (hereafter “County”) motion for summary judgment (ECF No. 35) and 22 the court’s November 16, 2018 order directing plaintiff to show cause why sanctions should not 23 be imposed for her failure to timely respond to the County’s motion (ECF No. 36).1 Attorney 24 Glen Williams appeared on behalf of the County, and plaintiff appeared pro se. For the following 25 reasons, the order to show cause is discharged and it is recommended that the County’s motion be 26 granted. 27 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 28 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 I. Order to Show Cause 2 The County noticed its motion for summary judgment for hearing on November 28, 2018. 3 ECF No. 35. In violation of Local Rule 230(c), plaintiff failed to timely file an opposition or 4 statement of non-opposition to the motion. Accordingly, the hearing on the motion was 5 continued and plaintiff was ordered to show cause why sanctions should not be imposed for her 6 failure to respond to the motion. ECF No. 36. Plaintiff was also ordered to file an opposition or 7 statement of non-opposition to the pending motion. 8 In response, plaintiff explains that she was diligently working on her response to the motion 9 but was unable to finish it before the original deadline. ECF No. 37. Plaintiff also filed a 10 declaration in opposition to the County’s motion (but not a formal opposition) and a response to 11 defendant’s Statement of Undisputed Facts. ECF Nos. 38, 39. In light of plaintiff’s 12 representation and her pro se status, the order to show cause is discharged and no sanctions are 13 imposed. 14 II. Defendant’s Motion for Summary Judgement 15 A. Undisputed Facts 16 Plaintiff’s complaint alleges claims against the County of Sacramento for racial 17 discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil 18 Rights Act of 1964 (“Title VII”). ECF No. 1. 19 On December 2, 2013, plaintiff was hired as a Human Services Specialist (“HSS”) at the 20 County of Sacramento Department of Human Assistance. Decl. of Donna Doyle (“Doyle Decl.”) 21 ¶ 4; Decl. of Rehema Stephens (“Stephens Decl.”) ¶ 4. Following her completion of her HSS 22 Induction class on March 10, 2014, plaintiff was assigned to a unit at the Bowling Green Bureau 23 and commenced a twelve-month probationary HSS position. Doyle Decl. ¶ 7; Compl. ¶7. 24 Plaintiff’s immediate supervisor was Carmen Espinoza, who reported to Project Manager Donna 25 Doyle. Doyle Decl. ¶ 7. 26 On March 17, 2014, Espinoza met with plaintiff to discuss plaintiff’s interest in taking the 27 African American Cultural Special Skills Exam. Decl. of Carmen Espinoza (“Espinoza Decl.”) ¶ 28 9; Stephens Decl. ¶ 13. During the conversation, Ms. Espinoza told plaintiff to do her “due 1 diligence” because “dealing with that particular demographic can be difficult.” Stephens Decl. 2 ¶ 13. When plaintiff asked Ms. Espinoza if she was referring to black people, Ms. Espinoza 3 stated that many people make the mistake of “thinking that because they’re of the same race and 4 culture they have an automatic in.” Id. Plaintiff then asked Ms. Espinoza if she was suggesting 5 that plaintiff not take the exam, to which Espinoza replied, “No, I’m just making sure you have 6 all the facts.” Id. 7 After this conversation, the working relationship between plaintiff and Ms. Espinoza 8 deteriorated and multiple disputes arose. Stephens Decl. ¶¶ 14-17, 19-22; Espinoza Decl. ¶¶ 10- 9 14. At plaintiff’s request, Ms. Doyle held a meeting on April 2, 2014 to discuss the comments 10 Ms. Espinoza made on March 17 and her subsequent interactions with plaintiff. Stephens Decl. 11 ¶¶ 23, 25. At the meeting—which was attended by Ms. Doyle, Ms. Espinoza, plaintiff, and 12 plaintiff’s union representative, Mechele Dews—plaintiff requested she be assigned to another 13 unit with a different supervisor. Id. ¶ 25. Ms. Doyle denied that request. Id. 14 On May 23, 2014, plaintiff was called into Ms. Doyle’s office and given a Notice of 15 Release from Probationary Status. Id. ¶ 27. Ms. Doyle informed plaintiff that her employment 16 was being terminated because she was insubordinate to her direct supervisor, unprofessional with 17 clients, and demonstrated an inability to work well with her coworkers. Id. 18 B. Summary Judgment Standard 19 Summary judgment is appropriate when there is “no genuine dispute as to any material 20 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 21 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 22 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 23 to determine those facts in favor of the nonmovant. Crawford–El v. Britton, 523 U.S. 574, 600 24 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Nw. Motorcycle Ass’n v. 25 U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). At bottom, a summary judgment 26 motion asks whether the evidence presents a sufficient disagreement to require submission to a 27 jury. 28 ///// 1 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 2 or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323–24 (1986). Thus, the rule functions to 3 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 4 trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 5 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, 6 under summary judgment practice, the moving party bears the initial responsibility of presenting 7 the basis for its motion and identifying those portions of the record, together with affidavits, if 8 any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 9 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving 10 party meets its burden with a properly supported motion, the burden then shifts to the opposing 11 party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); 12 Anderson, 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 13 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 14 to summary judgment procedures. Depending on which party bears that burden, the party seeking 15 summary judgment does not necessarily need to submit any evidence of its own. When the 16 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 17 need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National 18 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 19 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U .S. at 20 323–24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive 21 issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, 22 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 23 should be entered, after adequate time for discovery and upon motion, against a party who fails to 24 make a showing sufficient to establish the existence of an element essential to that party’s case, 25 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 26 circumstance, summary judgment must be granted, “so long as whatever is before the district 27 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 28 ///// 1 To defeat summary judgment the opposing party must establish a genuine dispute as to a 2 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 3 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 4 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 5 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 6 determined by the substantive law applicable for the claim in question. Id. If the opposing party 7 is unable to produce evidence sufficient to establish a required element of its claim that party fails 8 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 9 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 10 at 322. 11 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 12 the court must again focus on which party bears the burden of proof on the factual issue in 13 question. Where the party opposing summary judgment would bear the burden of proof at trial on 14 the factual issue in dispute, that party must produce evidence sufficient to support its factual 15 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 16 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 17 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 18 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 19 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such 20 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 21 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 22 The court does not determine witness credibility. It believes the opposing party’s 23 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 24 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 25 proponent must adduce evidence of a factual predicate from which to draw inferences. American 26 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., 27 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at 28 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th 1 Cir. 1995). On the other hand, “[w]here the record taken as a whole could not lead a rational trier 2 of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 3 U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any 4 reasonable inferences that might be drawn from it could not support a judgment in favor of the 5 opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any 6 genuine dispute over an issue that is determinative of the outcome of the case. 7 C. Discussion 8 Plaintiff alleges three claims under Title VII. First, she alleges that the termination of her 9 employment was motivated by racial animus. ECF No. 1 at 8-9. Second, she claims her 10 employment was terminated in retaliation for participation in protected activities. Id. at 9-11. 11 Lastly, she alleges that she was subjected to a hostile work environment.2 Id. at 9. 12 1. Disparate Treatment and Retaliation 13 An employee may show violations of Title VII by proving disparate treatment, a hostile 14 work environment, or retaliation for protected activities. To establish a prima facie case of 15 disparate treatment under Title VII, a plaintiff must introduce evidence that “give[s] rise to an 16 inference of unlawful discrimination.” Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987) 17 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To establish a 18 prima facie case under Title VII, a plaintiff must offer proof: (1) that she belongs to a class of 19 persons protected by Title VII; (2) that the she performed her job satisfactorily; (3) that the 20 plaintiff suffered an adverse employment action; and (4) that her employer treated her differently 21 than a similarly situated employee who does not belong to the same protected class as the 22 plaintiff.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citations 23 and internal quotations omitted). 24 ///// 25

26 2 In the introductory section of the complaint, plaintiff alleges that she was denied due process “when a written complaint of racial discrimination was made.” ECF No. 1 ¶ 1. The 27 complaint, however, does not allege a due process claim. Significantly, in response to an interrogatory served by defendant, plaintiff confirmed that she only asserts claims under Title VII. 28 Decl. of Shanan Hewitt, Exs. B (ECF No. 35-3 at 14) & C (ECF No. 35-3 at 23). 1 Similarly, a prima facie case for retaliation is dependent upon a threshold showing of facts 2 sufficient to give rise to an inference of unlawful retribution for having complained of 3 discrimination or otherwise engaged in activity protected by Title VII. Thus, to establish a prima 4 facie case of retaliation, plaintiff must establish that “(1) [s]he engaged in protected activity, (2) 5 [s]he suffered an adverse personnel action, and (3) there was a causal link between the two.” 6 Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988); Yartzoff, 809 F.2d at 1375. 7 If plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a 8 legitimate, non-discriminatory (and, here, non-retaliatory) reason for its decision. Manatt v. Bank 9 of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003). Once an employer does so, the plaintiff bears the 10 burden of proving that the articulated reason was merely a pretext for a discriminatory motive. 11 Id.; Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir. 2002) (en banc) (citing Price 12 Waterhouse v. Hopkins, 490 U.S. 228, 260 (1989)). 13 a. Prima Facie Case 14 In applying the shifting burdens analysis, the starting point is whether plaintiff has 15 produced sufficient evidence to establish a prima facie case. The Ninth Circuit has noted that “[a] 16 plaintiff alleging employment discrimination ‘need produce very little evidence in order to 17 overcome an employer’s motion for summary judgment. This is because the ultimate question is 18 one that can only be resolved through a searching inquiry-one that is most appropriately 19 conducted by a factfinder, upon a full record.’” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 20 (9th Cir. 2008) (internal citations omitted); see also Peterson v. Hewlett-Packard Co., 358 F.3d 21 599, 603 (9th Cir. 2004) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 22 (9th Cir. 1988)). 23 The County does not dispute that plaintiff, who is African-American, is a member of a 24 protected class, nor does it dispute that plaintiff’s termination was an adverse employment action. 25 ECF No. 35-1 at 23. It argues, however, that plaintiff has not established a prima facie case 26 because she cannot demonstrate that racial discrimination was a motivating factor to terminate her 27 employment. Id. 28 ///// 1 Plaintiff’s disparate treatment claim hangs on her contention that Ms. Espinoza’s March 2 17, 2014 statements regarding plaintiff’s intent to take the African American Cultural Special 3 Skills exam reflected racial animus towards plaintiff and African Americans and that further 4 conflicts between the plaintiff and her supervisor stemmed from that animus. Plaintiff contends 5 that Ms. Espinoza’s statement “dealing with that particular demographic can be difficult” has 6 racial undertones that could be construed as hostile to a particular race. While that one statement 7 is the only racial incident identified by plaintiff, and even if it is somewhat ambiguous as to 8 whether it evinces actual animus, there is evidence reflecting that plaintiff’s relationship with 9 Espinoza was strained following the March 17 conversation. 10 After the conversation, Espinoza began making more frequent visits to plaintiff’s work 11 station. Stephens Decl. ¶ 14. According to plaintiff, Espinoza stopped by plaintiff’s work station 12 on March 27, 2014 and simply stared at her and a coworker. Id. ¶ 20. Allegedly, after an 13 awkward pause, Espinoza stated that she didn’t need anything and was just passing by. Id. The 14 following month, plaintiff informed Espinoza and Doyle that she had been feeling uneasy since 15 the March 17 conversation. Id. ¶ 25. In response, Doyle stated that plaintiff may have 16 misunderstood or misperceived Espinoza’s intention. Id. The following month, plaintiff’s 17 employment was terminated. Id. ¶ 27. 18 As noted, the threshold for establishing a prima facie case of disparate treatment is low. 19 The single statement to plaintiff with the racial overtone about difficulty “dealing with that 20 particular demographic” combined with the temporal proximity of plaintiff’s termination 21 following her telling Espinoza and Doyle of her discomfort since the March 17 conversation is 22 sufficient to establish a prima facia case that the termination was motivated both by racial animus 23 and retaliation for complaining about the March 17 statement. See Davis, 520 F.3d at 1089. 24 As for plaintiff’s retaliation claim, the County also argues plaintiff has failed to show a 25 causal link between any protected activity and her release from employment. Specifically, the 26 County contends that plaintiff has not provided any evidence suggesting the termination of her 27 employment was motivated by retaliation. ECF No. 35-1 at 27. But this argument ignores the 28 proximity in time between the complaint and the firing. 1 Establishing a causal link “requires proof that the unlawful retaliation would not have 2 occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. 3 Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (concluding that a plaintiff making a 4 retaliation claim under Title VII “must establish that his or her protected activity was a but-for 5 cause of the alleged adverse action by the employer”). “To show the requisite causal link, the 6 plaintiff must present evidence sufficient to raise the inference that her protected activity was the 7 likely reason for the adverse action.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 8 1982). “The causal link can be inferred from circumstantial evidence such as the employer’s 9 knowledge of the protected activities and the proximity in time between the protected activity and 10 adverse action.” Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011) (citing Jordan v. 11 Clark, 847 F.2d 1368, 1376 (9th Cir. 1988)); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 12 268, 273 (2001) (per curiam) (holding that a court may not infer causation from temporal 13 proximity unless an employer’s knowledge of protected activity and an adverse employment 14 action are “very close” in time). 15 In her declaration, plaintiff states that she emailed Doyle on March 27, 2014 to complain 16 about the remarks Espinoza made ten days earlier. Id. ¶ 23. A meeting was held on April 2, 17 2014, to address plaintiff’s complaint. Id. ¶ 25. It was at that meeting Doyle informed plaintiff 18 that she had misinterpreted Espinoza’s intentions. Id. Seven weeks later, plaintiff’s employment 19 was terminated. Id. ¶ 27. While there is no direct evidence that plaintiff was terminated for 20 submitting her complaint to Doyle, plaintiff can meet her burden through indirect evidence. The 21 date on which plaintiff made her complaint to Doyle is sufficiently proximate to the termination 22 of her employment to “raise the inference that her protected activity was the likely reason for the 23 adverse action.” Cohen, 686 F.2d at 796; see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 24 1065 (9th Cir. 2002) (finding a prima facie case of causation where plaintiffs were discharged 25 from employment 42 and 52 days after the alleged protected activity)); Yartzoff, 809 F.2d at 1376 26 (holding that sufficient evidence existed where adverse actions occurred less than three months 27 after the complaint was filed, two weeks after the charge was first investigated, and less than two 28 months after the investigation ended). 1 Accordingly, plaintiff has proffered sufficient evidence to satisfy the low burden of 2 establishing a prima facia case. 3 b. Legitimate, Non-Discriminatory Reason 4 The County argues that plaintiff’s employment was terminated due to insubordination and 5 unprofessionalism, which are legitimate, non-discriminatory reasons for terminating plaintiff’s 6 employment. ECF No. 35-1 at 26-27. 7 When a plaintiff establishes a prima facie case, the burden of producing evidence that 8 legitimate, nondiscriminatory reasons existed for the adverse employment action shifts to the 9 defendant, but the burden of persuasion remains with the plaintiff. Burdine, 450 U.S. at 256. 10 “The employer need not persuade the court that it was actually motivated by the proffered 11 reasons: ‘It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it 12 discriminated against the plaintiff.’” Yartzoff, 809 F.2d at 1376 (quoting Burdine, 450 U.S. at 13 254-55). Thus, a defendant “need only produce admissible evidence which would allow the trier 14 of fact rationally to conclude that the employment decision had not been motivated by 15 discriminatory animus.” Id. 16 Here, the County has submitted evidence demonstrating that plaintiff was uncooperative, 17 difficult to work with, and insubordinate. For instance, on March 13, 2014, Espinoza tried to 18 speak with Plaintiff, but Plaintiff declined to speak with her, excusing herself by saying that she 19 had just gotten back from getting lunch and had not eaten yet. Espinoza Decl. ¶ 7. The following 20 week, Espinoza instructed plaintiff to complete the Time On Aid (“TOA”) sheets assistance 21 recertification packets. Id. ¶ 8. In response, plaintiff confronted Espinoza, expressing that, upon 22 talking with her peers, she had learned that other employees were not required to have TOA 23 sheets reviewed. Id. Although Espinoza explained that it was policy that a review of TOA sheets 24 be completed, it was later discovered that plaintiff had not completed her TOA sheets correctly. 25 Id. Espinoza also discovered that plaintiff had been working on her TOA sheets with her sister, 26 Shontae Stephens – Espinoza’s peer and another supervisor at the Department – rather than 27 seeking assistance from Espinoza, as plaintiff had been instructed. Id. ¶¶ 8, 15. 28 ///// 1 On March 24, 2014, plaintiff informed Espinoza that she left early the previous day due to 2 a family emergency in violation of the County’s policy that employees seek approval for leave, 3 including leave for an emergency. Id. ¶ 10; Doyle Decl. ¶ 10. Espinoza asked plaintiff to come 4 to her office to discuss her leaving early the prior day. Espinoza Decl. ¶ 10. In response, plaintiff 5 stated, “Walk all the way over there?” Id. On the same date, Espinoza met with plaintiff to 6 discuss one of plaintiff’s cases. During the conversation, plaintiff spoke to Espinoza in a tone 7 that Espinoza found confrontational. Id. ¶ 11. Espinoza also learned that plaintiff had failed to 8 complete a traffic log ticket for her client, which was one of plaintiff’s responsibilities. Id. A few 9 days later, Espinoza asked plaintiff to come to her office to discuss a matter, and plaintiff again 10 complained about walking “all the way over there.” Id.¶ 13. After further discussions, plaintiff 11 stated she was frustrated and needed a minute. Id. Espinoza waited a minute before speaking 12 again but was interrupted by plaintiff stating: “I said I need a minute, that means you need to 13 leave.” Id. ¶ 13. 14 In early May 2014, two employees complained that plaintiff had been acting 15 unprofessional towards them and plaintiff’s clients. Id. ¶ 16, Ex. D. Thereafter, Doyle conducted 16 a review of all probationary employees. Id. ¶ 17. The review of plaintiff’s 16 cases showed that 17 12 were deficient with errors. Id. Although plaintiff had subsequently corrected seven of the 18 errors, five cases remained incomplete. Id. Shortly after this review, plaintiff’s employment was 19 terminated. Id. ¶ 18. 20 This evidence, none of which plaintiff disputes, demonstrates that plaintiff acted in an 21 unprofessional manner when interacting with her supervisor and coworkers, and that she failed to 22 follow office procedures. Accordingly, the County has presented evidence in support of an 23 articulated legitimate, nondiscriminatory basis for terminating plaintiff’s probationary 24 employment. 25 c. Pretext 26 Plaintiff can demonstrate pretext by “directly persuading the court that a discriminatory 27 [or retaliatory] reason more likely motivated the employer[,] or indirectly by showing that the 28 employer’s proffered explanation is unworthy of credence.” Stegall v. Citadel Broad. Co., 350 1 F.3d 1061, 1066 (9th Cir. 2003) (quoting Burdine, 450 U.S. at 248 (citation omitted)). “‘Direct 2 evidence is evidence which, if believed, proves the fact [of discriminatory or retaliatory animus] 3 without inference or presumption.’” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 4 1998) (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)). “When the 5 plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation 6 of the employer is created even if the evidence is not substantial.” Godwin, 150 F.3d at 1221. In 7 contrast, when direct evidence is unavailable, and the plaintiff proffers only circumstantial 8 evidence that the employer’s motives were different from its stated motives, plaintiff must show 9 “specific” and “substantial” evidence of pretext to survive summary judgment. Id. at 1222. To 10 meet this burden, plaintiff “cannot simply show the employer’s decision was wrong, mistaken or 11 unwise.” Dep’t of Fair Employment & Housing v. Lucent Techs., 642 F.3d 728, 746 (9th Cir. 12 2011). She “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, 13 or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable 14 fact-finder could rationally find them unworthy of credence.” Id. 15 Here, plaintiff has failed to produce evidence that can satisfy that standard. She simply 16 fails to show that the County’s proffered reasons for terminating her employment are pretextual. 17 Plaintiff describes different incidences when supervisors, including Espinoza, spoke aggressively 18 towards her. See Stephens Decl. ¶¶ 22, 24. But she does not dispute the facts surrounding any of 19 the incidences of unprofessional conduct described above. Accordingly, plaintiff has not shown 20 that the proffered nondiscriminatory reason for terminating her employment was pretextual. 21 Accordingly, the County is entitled to summary judgment on plaintiff’s disparate 22 treatment and retaliation claims. 23 2. Hostile Work Environment 24 Plaintiff’s also alleges that she was subjected to a hostile work environment after she 25 complained about Ms. Espinoza’s March 17, 2014 statements. ECF No. 1 ¶¶ 29-30. 26 To establish a prima facia hostile work environment claim, plaintiff must proffer evidence 27 showing “(1) she was ‘subjected to verbal or physical conduct’ because of her race, (2) ‘the 28 conduct was unwelcome,’ and (3) ‘the conduct was sufficiently severe or pervasive to alter the 1 conditions of [her] employment and create an abusive work environment.’” Manatt v. Bank of 2 America, N.A., 339 F.3d at 798. “The work environment must be both subjectively and 3 objectively perceived as abusive.” Campbell v. Hawaii Dept. of Edu., 892 F.3d 1005, 1017 (9th 4 Cir. 2019). “In determining whether a work environment is sufficiently hostile, the court 5 evaluates the totality of the circumstances, ‘including the frequency of the discriminatory 6 conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive 7 utterance; and whether it unreasonably interferes with an employee’s work performance.’” Fuller 8 v. Idaho Dept. of Corrections, 865 F.3d 1154, 1161 (9th Cir. 2017). [T]he required showing of 9 severity or seriousness of the harassing conduct varies inversely with the pervasiveness or 10 frequency of the conduct.” Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991). 11 Here, plaintiff has failed to produce evidence demonstrating conduct that was sufficiently 12 severe to alter the conditions of her employment and create an abusive work environment. She 13 identifies a single statement which she relies upon as evidence of racial animus. But as noted 14 supra, even that statement is ambiguous as to Espinoza’s intent. Plaintiff may well have found it 15 offensive, but it does not rise to the level of severe and pervasive hostility that is actionable under 16 Title VII. See Manatt v. Bank of America, NA, 339 F.3d at 798-99. 17 Plaintiff states that after the Espinoza’s March 17 statement, Espinoza began visiting 18 plaintiff’s work station 5-6 times a day. Stephens Decl. ¶ 14. She also states that on March 20, 19 2014, Espinoza switched the time for a regularly scheduled meeting, which interfered with 20 plaintiff’s lunch break. Id. ¶ 16. On March 25, 2014, Espinoza stopped by plaintiff’s work 21 station, said hello, and then proceeded to stand and stare at plaintiff and a coworker. After an 22 awkward pause, the coworker left and Espinoza stated that she “didn’t really want anything, I was 23 just passing by.” Id. ¶ 19. Plaintiff further declares that on April 1, 2014, a different supervisor 24 “began aggressively asking me about why I did not respond to the PA calls regarding a client.” 25 Id. ¶ 24. 26 While plaintiff may have subjectively found these interactions offensive and believed 27 them to be related to the March 17 incident, the described incidences are not the type that can be 28 fairly characterized as “sufficiently severe or pervasive to alter the conditions of [her] 1 | employment and create an abusive work environment.’” Manatt, 339 F.3d at 798. Accordingly, 2 | the County is also entitled to summary judgment on plaintiff’ s hostile work environment claim. 3 UL. Conclusion 4 Accordingly, it is hereby ORDERED that the November 16, 2018 order to show cause 5 || (ECF No. 36) is discharged and no sanctions are imposed. 6 Further, it is RECOMMENDED that: 7 1. The County’s motion for summary judgment (ECF No. 35) be granted; and 8 2. The clerk be directed to enter judgment in defendant’s favor and close the case. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: September 10, 2019. 17 Datta Zot Sn ao 18 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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