Jones v. Arizona, State of ( 2021 )

1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Lavell H. Jones, No. CV-19-08210-PCT-DJH 11 Plaintiff, ORDER 12 v. 13 State of Arizona, et al., 14 Defendants. 15 16 Pending before the Court is the State of Arizona, the Arizona Board of Regents, and 17 Northern Arizona University (collectively, the “Defendants”) Motion for Summary 18 Judgment (Doc. 45). Plaintiff Lavell H. Jones (“Mr. Jones” or “Plaintiff”) filed a Response 19 (Doc. 48), and Defendants filed a Reply (Doc. 49). 20 I. Background 21 Mr. Jones, a black man, is a former employee of Northern Arizona University. (Doc. 22 1 at ¶¶ 4, 11). He began work in August 2012 as a shuttle driver. (Doc. 45-1 at 4). After a 23 March 2018 incident with a shuttle passenger, Defendants terminated his employment. 24 (Docs. 1 at ¶¶ 12, 14; 45 at 2). As described by Defendants, the incident started when 25 Plaintiff asked a passenger to move his legs. (Doc. 45-1 at 24). The passenger attempted to 26 comply, but his height made it difficult to “fully move his feet completely out of the way.” 27 (Id.) At the next stop Plaintiff exited his seat and again instructed the passenger to comply. 28 When Plaintiff resumed driving, he continued to comment on the “feet thing.” (Id.) Verbal 1 escalation between Plaintiff and the passenger occurred. (Id.) Ultimately, Plaintiff called 2 the police and pulled the bus over for removal of the passenger. (Id.) Defendants informed 3 Plaintiff that his behavior during the incident was unprofessional, inappropriate, and served 4 to escalate the situation. (Docs. 1 at ¶ 13; 19 at ¶ 13). Mr. Jones argues that the passenger 5 was “unruly and argumentative” and that he had followed the appropriate policies and 6 procedures in handling the incident, despite later censure. (Doc. 48 at 4). 7 On April 6, 2018, following the incident, Defendants placed Plaintiff on 8 administrative leave. (Docs. 1 at ¶ 14; 19 at ¶ 14). Defendants subsequently terminated 9 Plaintiff on May 1, 2018. (Docs. 1 at ¶ 14; 19 at ¶ 14). A memorandum to Plaintiff by 10 Defendants lists the March incident and several other incidents of poor employee 11 performance dating back to 2013 as the basis for his termination. (Doc. 45-1 at 22). 12 Plaintiff then filed a complaint with the EEOC on December 20, 2018. (Doc. 1 at ¶ 13 15). He brings two Claims against Defendants under Title VII for racial discrimination and 14 retaliation. (Id. at ¶¶ 6–7). Plaintiff claims he was denied promotions and excessively 15 disciplined because of his race. (Doc. 48 at 4). The Court notes that this is not the first time 16 Plaintiff has alleged that Defendants discriminated against him because of his race. In 17 2016, Plaintiff filed a complaint with the EEOC against Defendants alleging that his former 18 supervisor discriminated against him because of his race. (Doc. 45-1 at 70). The EEOC’s 19 investigation was inconclusive, and the record does not show Plaintiff filed suit after the 20 EEOC’s finding. (Id. at 72). 21 Defendants now move for summary judgment on both Claims. 22 II. Legal Standard 23 Summary judgment is generally appropriate when the evidence, viewed “in the light 24 most favorable to the non-moving party,” shows “that there is no genuine dispute as to any 25 material fact and the movant is entitled to judgment as a matter of law.” Eisenberg v. Ins. 26 Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987); Fed. R. Civ. P. 56(a). A fact is material 27 if it affects the outcome of the case under prevailing substantive law. Anderson v. Liberty 28 Lobby, Inc., 477 U.S. 242, 248 (1986). There is a genuine dispute “if the evidence is such 1 that a reasonable jury could return a verdict for the nonmoving party.” Id. However, “legal 2 conclusions couched as factual allegations” as well as “conclusory allegations of law and 3 unwarranted inferences” need not be accepted as true. Williams v. Alhambra Sch. Dist. No. 4 68, 234 F. Supp. 3d 971, 978 (D. Ariz. 2017) (quoting Pareto v. FDIC, 139 F.3d 696, 699 5 (9th Cir. 1998)). The Court may consider “hearsay evidence submitted in an inadmissible 6 form” on a summary judgment motion “so long as the underlying evidence could be 7 provided in an admissible form at trial, such as by live testimony.” JL Beverage Co., LLC 8 v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016). Summary judgment must 9 be entered “against a party who fails to make a showing sufficient to establish the existence 10 of an element essential to that party’s case, and on which that party will bear the burden of 11 proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 12 III. Discussion 13 A. Racial Discrimination 14 Defendants argue Plaintiff fails to establish a prima facie case of discrimination. 15 (Doc. 45 at 4). Title VII of the Civil Rights act of 1964 prohibits an employer from 16 discriminating based on race. 42 U.S.C. § 2000e-2(a). An employer discriminates against 17 an employee when it treats him or her “less favorably than others similarly situated on 18 account of race.” Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988). To 19 establish a prima facie case of racial discrimination under Title VII, a plaintiff “‘must offer 20 evidence that gives rise to an inference of unlawful discrimination,’ either through the 21 framework set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) or with 22 direct or circumstantial evidence of discriminatory intent.” Vasquez v. Cty. of Los Angeles, 23 349 F.3d 634, 640 (9th Cir. 2003) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 24 U.S. 248, 253 (1981)). When a plaintiff responds to a summary judgment motion, he makes 25 a choice regarding how to establish his case, either by using the McDonnell Douglas 26 framework or by producing “direct or circumstantial evidence to demonstrate that a 27 discriminatory reason more likely than not motivated” defendant. McGinest v. GTE Serv. 28 Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). 1 Here, Plaintiff responded using the McDonnell Douglas framework. (Doc. 48 at 10). 2 Establishing a prima facie case under McDonnell Douglas requires a plaintiff to show: (1) 3 he is a member of a class protected by Title VII; (2) he performed his job satisfactorily; (3) 4 he endured adverse employment action; and (4) the plaintiff’s employer gave more 5 favorable treatment to similarly situated employees outside plaintiff’s protected class. 6 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citing 7 McDonnell Douglas, 411 U.S. at 802). Once a plaintiff establishes a prima facie case, the 8 burden shifts to the defendants to show there were legitimate, nondiscriminatory reasons 9 for the adverse employment action. Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) 10 (citing McDonnell Douglas, 411 U.S. at 804). The plaintiff is then responsible for 11 establishing that the employer’s stated discriminatory reason is a pretext for discrimination. 12 Id. 13 1. Protected class 14 The parties do not dispute Mr. Jones, a black male, is a member of a protected class. 15 See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) (finding that the plaintiff met this 16 prong by proving that he was black and therefore a member of a protected class). 17 2. Job performance 18 The Parties dispute whether Plaintiff performed his job well. “If an employment 19 practice which operates to exclude [minorities] cannot be shown to be related to job 20 performance, the practice is prohibited.” Ricci v. DeStefano, 557 U.S. 557, 578 (2009) 21 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). When an employee is 22 notified that further poor job performance could lead to termination, this indicates the 23 employee’s job performance is not satisfactory. Medina v. FCH Enters., No. 12-00364, 24 2013 WL 3157526, at *26 (D. Haw. June 19, 2013); see also Buhl v. Abbott Labs., 817 F. 25 App’x 408, 411 (9th Cir. 2020) (finding that past misconduct leading to termination 26 warnings indicated performance dissatisfaction). 27 Defendants argue they terminated Plaintiff “for repeated incidents of unprofessional 28 communications and interactions in the position of Driver, Bus/Tram at Shuttle Services.” 1 (Doc. 45-1 at 22). Defendants characterize Plaintiff’s March 2018 incident as the “final 2 straw” following many documented “Needs Improvement” employee performance 3 reviews. (Doc. 49 at 11). In addition, Defendants argue that throughout Plaintiff’s employ, 4 they received complaints about Plaintiff’s behavior, which they attempted to address. (Doc. 5 45 at 4). 6 To evidence this, Defendants present several written warnings related to Plaintiff’s 7 poor job performance dating back to 2013. (See e.g., Doc. 45-1 at 22–25). In December 8 2013, Plaintiff received a letter of warning for failure to do post-trip inspections, “drive all 9 assigned routes,” and be respectful to other drivers. (Id. at 27). The letter also stated that if 10 Plaintiff’s performance did not improve, termination may be necessary. (Id.) In September 11 2014 Plaintiff received a letter of warning for hitting a student’s backpack, honking at the 12 student, and leaving a bus stop without allowing students to board. (Id. at 29–30). 13 Defendants had a performance discussion with Plaintiff in 2014 regarding unprofessional 14 communication and Plaintiff chest-bumping a coworker. (Id. at 22, 39). In 2015 Defendants 15 had a performance discussion with Plaintiff regarding inappropriate comments made to a 16 student coworker that made her uncomfortable. (Id. at 22). Plaintiff received an overall 17 “Needs Improvement” performance rating in 2015. (Id. at 56). In January 2016, Plaintiff 18 received a letter of warning for unprofessional communication with staff workers. (Id. at 19 32). Defendants instructed Plaintiff to speak professionally following this letter of warning. 20 (Id. at 23). Plaintiff received an overall “Needs Improvement” performance rating in 2016. 21 (Id. at 61). 22 Plaintiff does not dispute that these events occurred. However, Plaintiff argues that 23 his supervisor had said Plaintiff had done his job well and that his “very good” job 24 performance rating in 2017, a year prior to his 2018 termination incident establishes that 25 he performed his job satisfactorily. (Doc. 48-1 at 7–17, 20–28). Plaintiff additionally 26 asserts that his misconduct prior to 2016 should not be relevant because “[i]t was dealt with 27 in the 2016 EEOC charge and was over with.” (Doc. 48 at 12). Plaintiff also attempts to 28 refute Defendants’ allegations concerning Plaintiff’s unprofessional demeanor because he 1 was “repeatedly asked to transport alumni and . . . university management on events.” (Id. 2 at 6). 3 The Court finds that Plaintiff’s arguments do not establish “that he was doing his 4 job well enough to rule out the possibility that he was fired for inadequate job 5 performance.” Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074–75 (9th Cir. 6 1986) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir. 1979)). The fact that 7 Plaintiff had received some good performance reviews immediately before his termination 8 does not erase the litany of other reviews that show Plaintiff was not performing a 9 satisfactory job as a whole. Despite Plaintiff’s arguments that his past misconduct should 10 not be considered, the Court cannot find, nor has it been presented with, legal authority 11 stating that past performance is subject to a time-bar when evaluating an employee for 12 termination. Finally, the fact that he was asked to transport passengers to university events 13 is not surprising given his position, and it does not erase other incidents of misconduct. 14 Overall, Plaintiff’s arguments do not rule out the possibility that he was fired for inadequate 15 performance. See Sengupta, 804 F.2d at 1074–75 (finding no racial discrimination for 16 termination of an employee with lower performance evaluations during company economic 17 difficulties); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (finding 18 where an employee failed to perform a function of her job, it was not clear that she 19 performed her job well enough to rule out the possibility of termination for inadequate job 20 performance); Strong v. Progressive Roofing Servs., No. 05–1023–PHX–EHC, 2007 WL 21 2410354, at *7 (D. Ariz. Aug. 19, 2007) (citing Sengupta v. Morrison-Knudsen Co., 804 22 F.2d 1072, 1075 (9th Cir. 1986) (finding where an employee violated company policies on 23 numerous occasions and failed to offer evidence to the contrary, termination on the basis 24 of inadequate job performance was not ruled out). 25 Because the record, when viewed as whole, reflects poor job performance, Plaintiff 26 has not established the second prong of his prima facie claim.1 As Plaintiff must establish 27 1 The Court notes that, even assuming Plaintiff could make a prima facie showing, these repeated infractions and admonitions evidence legitimate, non-discriminatory reasons to 28 terminate Plaintiff. Although Plaintiff argues pretext may be inferred by the fact that some of the infractions are so remote in time, this argument, again, cites to no legal support. 1 all elements of the McDonnell Douglas framework for a prima facie case, the Court may 2 end the inquiry here. The undisputed facts show Defendants are entitled to summary 3 judgment on Plaintiff’s racial discrimination Claim in their favor. 4 B. Retaliation 5 Defendants additionally argue that summary judgment is proper because Plaintiff 6 has failed to establish a prima facie retaliation claim. Title VII of the Civil Rights Act of 7 1964 prevents employers from retaliating against employees for opposing unlawful 8 discrimination. 42 U.S.C. § 2000e-3(a). The McDonnell Douglas framework also applies 9 to Title VII retaliation claims. McGinest, 360 F.3d at 1124. To establish a prima facie case 10 of retaliation, a plaintiff must show (1) that they “engaged in protected activity”; (2) that 11 thereafter “adverse employment action” was taken against them; and (3) “a causal link 12 exists between the two” events. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 13 1982). An employee engages in protected conduct when he makes a charge, testifies, 14 assists, or participates in an investigation, proceeding or hearing regarding unlawful 15 employment practices. 42 U.S.C. § 2000e-3(a). An adverse employment act is an action 16 that is reasonably likely to deter employees from engaging in protected activity.” Ray v. 17 Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000). Termination qualifies as an adverse 18 employment action. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). To 19 establish a causal link, a plaintiff must show that the employer’s retaliation “was the but- 20 for cause of the challenged employment action.” University of Texas Sw. Med. Ctr. v. 21 Nassar, 570 U.S. 338, 362-63 (2013). Timing can establish a causal link when an 22 employer’s actions are “close on the heels” of a plaintiff’s complaint. Ray, 217 F.3d at 23 1244. 24 Plaintiff alleges Defendants terminated his employment in retaliation for 25 “engag[ing] in activity protected by Title VII.” (Doc. 1 at ¶¶ 39–40). The activity he refers 26 to is his March 14, 2016, EEOC charge filing against his former supervisor. (Doc. 45-1 at 27 70). It is undisputed that he filed an EEOC claim in March of 2016 for alleged 28 (Doc. 48 at 15–16). discrimination, which is a protected activity, and it is undisputed that Defendants terminated Plaintiff two years later, which qualifies as an adverse employment action. See Brooks, 229 F.3d at 928; see also 42 U.S.C. § 2000e-3(a). However, Plaintiff has not brought forth any evidence showing a causal link between his 2016 EEOC filing and his || 2018 termination. 6 Plaintiff merely concludes there is a causal link but does not substantiate this || assertion. (Doc. 1 at { 16; Doc. 19 at § 16). The two events are separated by two years. 8 || Plaintiffs termination was not “right on the heels” of his 2016 EEOC filing and, therefore, 9|| the timing does not establish the connection. See Ray, 217 F.3d at 1244. Additionally, because Plaintiff filed another EEOC complaint on December 20, 2018 after his 11 || termination in March 2018, the adverse employment action thus was not a result of this more recent filing. Consequently, without showing a causal connection Plaintiff fails to 13 || satisfy his burden to establish a prima facie retaliation claim. 14} IV. Conclusion 15 Mr. Jones has failed to establish a prima facie claim for racial discrimination and retaliation. Therefore, the Court must grant Summary Judgment in Defendants’ favor on both Claims. 18 Accordingly, 19 IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment || (Doc. 45) is granted. The Clerk of Court is directed to enter judgment in Defendants’ favor || and terminate this matter. 22 Dated this 26th day of July, 2021. 23 24 Ye □□ 25 norable' Diang/4. Humetewa 26 United States District Fudge 27 28 -8-