Huerta v. Nielsen ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID HUERTA, Case No. 18cv1640-MMA (LL) 12 Plaintiffs, ORDER GRANTING DEFENDANT’S 13 v. MOTION FOR SUMMARY JUDGMENT 14 CHAD F. WOLF, Acting Secretary of Homeland Security,1 et al., 15 [Doc. No. 33] Defendants. 16 17 18 Plaintiff David Huerta is a Seized Property Specialist with United States Customs 19 and Border Protection (“CBP”), Department of Homeland Security. He brings this action 20 pro se pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, which 21 protects federal employees from discrimination based on race, color, religion, sex, or 22 national origin. Plaintiff has filed a First Amended Complaint in which he alleges that 23 his supervisor racially discriminated and retaliated against him. See Doc. No. 20. The 24 government moves for summary judgment as to all claims. See Doc. No. 33. Plaintiff 25 26 27 1 Chad F. Wolf is now the Acting Secretary of Homeland Security. Pursuant to Federal Rule of Civil Procedure 25(d), Acting Secretary Wolf is substituted for former Secretary Kirstjen Nielsen as the 28 1 opposes the motion. See Doc. No. 41. The government filed a reply brief in support of 2 the motion. See Doc. No. 38. The Court took the matter under submission on the briefs 3 pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 40; Fed. R. Civ. P. 78(b). For the 4 reasons set forth below, the Court GRANTS the government’s motion for summary 5 judgment. 6 BACKGROUND 7 1. Plaintiff’s Allegations2 8 Plaintiff self-identifies as a non-Hispanic Caucasian. Port Director Rosa 9 Hernandez is Hispanic. Plaintiff alleges that Hernandez repeatedly discriminated against 10 him in favor of other Hispanic employees. Plaintiff further alleges that Hernandez 11 retaliated against him for filing complaints against her with the Equal Employment 12 Opportunity Commission (“EEOC”). 13 On May 1, 2014, Plaintiff alleges that he and a Hispanic co-worker, Enrique 14 Gutierrez, argued. According to Plaintiff, Hernandez then reassigned Plaintiff to the 15 Fines, Penalties, and Forfeiture Office (“FPF”), but did not reassign Gutierrez. Plaintiff 16 alleges that the seven-day suspension he ultimately received for his part in the verbal 17 altercation was based on a falsified statement submitted by Hernandez. Plaintiff alleges 18 that Hernandez’s actions were motivated by racial animus and in retaliation for an EEOC 19 complaint Plaintiff filed against her December 2008. 20 In December 2015, Plaintiff claims that Hernandez recommended Gutierrez 21 receive a discretionary performance award, but she did not recommend that Plaintiff 22 receive an award. Plaintiff alleges that Hernandez’s discrepant treatment was motivated 23 by racial animus and in retaliation for the EEOC complaint Plaintiff filed against her in 24 July 2014. 25 26 27 2 This section provides a summary of Plaintiff’s allegations, as set forth in the First Amended Complaint, and should not be construed as factual findings. 28 1 On February 25, 2016, Plaintiff alleges that he applied for a temporary duty 2 assignment at the Port of Philadelphia, but Hernandez denied his request in retaliation for 3 Plaintiff’s previously filed complaints against her. Plaintiff further claims that Hernandez 4 previously granted Hispanic employees’ applications for temporary duty assignments and 5 her denial of his request was retaliatory and motivated by racial animus. 6 2. Undisputed Facts3 7 Plaintiff and Gutierrez, who has since retired, did not get along and Plaintiff did 8 not like Gutierrez. See Pl. Depo. at 52-52, Def. Ex. A., Doc. No. 33-2 at 17-18.4 In 9 September 2008, Plaintiff and Gutierrez engaged in a verbal altercation which led to 10 disciplinary measures being taken against both men. Plaintiff believed Hernandez 11 disciplined him more harshly than Gutierrez and filed an EEOC complaint against 12 Hernandez alleging “retaliation/reprisal” on the basis of race. See Def. Ex. B, Doc. No. 13 33-2 at 52. Plaintiff ultimately entered into a settlement agreement with the government 14 which resolved his complaint against Hernandez. See Def. Ex. C. 15 On May 1, 2014, Plaintiff and Gutierrez once again argued. As Plaintiff’s fourth- 16 level supervisor, Hernandez was not present and did not witness the incident. See Def. 17 Ex. I. Marcia Gomez, an FPF officer under Hernandez’s direct supervision, advised 18 Hernandez of the altercation. See id. Hernandez directed Gomez to issue cease and 19 20 21 3 This section provides a summary of the material facts of this case. Facts that are immaterial for purposes of resolving the current motion are not included in this recitation. The material facts are taken 22 from the government’s separate statement of undisputed facts, together with pertinent supporting exhibits and relevant deposition testimony submitted by the government. The Court notes that Plaintiff 23 did not respond to the government’s separate statement of undisputed facts and did not object to the government’s evidence. Plaintiff did not submit his own separate statement of undisputed facts nor did 24 he submit any evidence, documentary, testimonial, or otherwise, in support of his opposition to the 25 motion for summary judgment. Moreover, neither Plaintiff’s First Amended Complaint nor his opposition brief are submitted under penalty of perjury and therefore may not be used as an opposing 26 affidavit under Federal Rule of Civil Procedure 56. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 27 4 All citations to electronically filed documents refer to the pagination assigned by the CM/ECF system 28 1 desist letters to both Plaintiff and Gutierrez; Gomez did so. See Def. Exs. G, F. 2 Hernandez also instructed Gomez to contact Labor and Employee Relations Specialist 3 Mary Buenrostro “for further guidance as to potential discipline to include a referral to 4 the Joint Intake Center.” See Def. Ex. I, Doc. No. 33-4 at 19. Per Hernandez’s direction, 5 Gomez advised Plaintiff that he would be reassigned to the FPF department pending 6 completion of an investigation into the incident and final assessment. See id. at 20. 7 According to Hernandez, she “elected to move [Plaintiff] in lieu of Mr. Gutierrez” 8 because she “saw no reasonable way . . . to have both employees remain assigned to that 9 location and not potentially violate their Cease and Desist Letters.” See id. at 20-21. 10 Hernandez reassigned Plaintiff to the FPF department rather than Gutierrez based on 11 concerns and CBP policies regarding Gutierrez working in the FPF department under his 12 wife’s chain of command. See id. at 21. 13 On July 1, 2014, Plaintiff filed an EEOC complaint against Hernandez alleging 14 “retaliation/reprisal” on the basis of race. See Def. Ex. J., Doc. No. 33-4 at 27. Plaintiff 15 requested monetary damages, permission to return to his normal assignment, and 16 Gutierrez’s reassignment to a different work location. See id. at 29. 17 CBP dispatched a factfinder to conduct an administrative inquiry into the May 1, 18 2014 incident. See Def. Ex. D. Several third-party witnesses provided sworn 19 testimonials indicating that Plaintiff threatened Gutierrez with bodily harm. See id. On 20 December 10, 2014, Acting Assistant Port Director Vona Rossilli issued written 21 recommendations proposing that both Plaintiff and Gutierrez serve ten-day suspensions 22 without pay. See Def. Exs. E, F. On May 19, 2015, Port Director of the San Ysidro Port 23 of Entry Sidney Aki, the deciding official, ultimately determined a seven-day suspension 24 was appropriate discipline for both men.5 See Def. Ex. K, L. 25 26 27 5 Although immaterial, the Court notes that the parties intermittently refer to Plaintiff’s suspension as a five-day suspension. However, the record reflects that Director Aki issued a seven-day suspension, five 28 1 On November 25, 2015, Plaintiff sought leave to amend his EEOC complaint 2 against Hernandez. See Def. Ex. N. Plaintiff requested, inter alia, removal of the 3 suspension from his record, reimbursement of the missed pay, and reassignment of 4 Gutierrez to the FPF department. See id. 5 Meanwhile, “[a]t the end of 2015, the Branch Chief submitted nominations for an 6 employee Superior Achievement Award, which were cash awards given to employees for 7 notable performance. As he had in years prior, the Branch Chief nominated all Seized 8 Property Specialists who had worked in the vault during the annual inventory that year. 9 He did not nominate [Plaintiff], however, who was still on his detail in the Forfeitures 10 Office during the annual inventory.” Def. Ex. S, Doc. No. 33-5 at 35. 11 On February 25, 2016, Plaintiff filed a new EEOC complaint against Hernandez 12 alleging retaliation for his previously filed complaints. See Def. Ex. O. Plaintiff also 13 claimed that “Hernandez made sure I was not put in for [a Superior Achievement] award 14 to punish me.” Id., Doc. No. 35-5 at 18. 15 In February 2016, Plaintiff requested a temporary duty (“TDY”) assignment at the 16 Port of Philadelphia, scheduled to begin on March 15, 2016. See Def Ex. P. Because she 17 “had planned an unannounced inventory to occur during the period that the assignment 18 would have occurred,” Hernandez recommended that Plaintiff’s request be denied. Def. 19 Ex. S, Doc. No. 33-5 at 35. Pete Flores, the Director for Field Operations San Diego, 20 received Plaintiff’s request but did not forward the request based on the staffing needs at 21 Plaintiff’s permanent duty station. See id., Doc. No. 33-5 at 21; see also Flores Decl., 22 Def. Ex. P. The unannounced inventory occurred as planned and was in fact 23 unannounced. See Def. Ex. S, Doc. No. 33-5 at 42. 24 On March 14, 2016, Plaintiff sought leave to amend his EEOC complaint against 25 Hernandez, alleging that she denied his TDY request as retaliation for Plaintiff’s 26 previously filed complaints against her. See Def. Ex. R. 27 On May 30, 2017, an administrative judge issued a written ruling denying 28 Plaintiff’s request to amend his July 2014 EEOC complaint based on untimeliness, 1 finding in favor of CBP on Plaintiff’s discrimination and retaliation claims, and 2 dismissing Plaintiff’s complaint. See Def. Ex. S. 3 LEGAL STANDARD 4 “A party may move for summary judgment, identifying each claim or defense – or 5 the part of each claim or defense – on which summary judgment is sought. The court 6 shall grant summary judgment if the movant shows that there is no genuine dispute as to 7 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 8 P. 56(a). The party seeking summary judgment bears the initial burden of establishing 9 the basis of its motion and of identifying the portions of the declarations, pleadings, and 10 discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. 11 Catrett, 477 U.S. 317, 323 (1986). A fact is material if it could affect the outcome of the 12 suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 13 (1986). A dispute about a material fact is genuine if there is sufficient evidence for a 14 reasonable jury to return a verdict for the non-moving party. Id. at 248. 15 The party opposing summary judgment cannot “‘rest upon the mere allegations or 16 denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts 17 showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records, 18 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (quoting Fed. R. Civ. P. 19 56(e)). However, as the Ninth Circuit recently reminded district courts, “it should not 20 take much for plaintiff in a discrimination case to overcome a summary judgment 21 motion.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 499 (9th Cir. 2015) (citations 22 and internal quotation omitted); see also Schechner v. KPIX-TV, 686 F.3d 1018, 1022 23 (9th Cir. 2012) (“As a general matter, the plaintiff in an employment discrimination 24 action need produce very little evidence in order to overcome an employer’s motion for 25 summary judgment.”). 26 In cases where a party is self-represented, courts apply the general summary 27 judgment standard, but construe the pro se litigant’s pleadings liberally in his or her 28 favor. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court 1 has instructed federal courts to liberally construe the ‘inartful pleading’ of pro se 2 litigants.”) (citations omitted). 3 DISCUSSION 4 Title VII is the exclusive remedy for claims of employment discrimination by 5 federal employees. See Brown v. General Servs. Admin., 425 U.S. 820, 829-35 (1976); 6 Taylor v. Geithner, 703 F.3d 328, 333 (9th Cir. 2013). Title VII prohibits consideration 7 of “race, color, religion, sex, or national origin in employment practices,” thereby 8 establishing protected classes. 42 U.S.C. § 2000e-2(m). Plaintiff’s burden on summary 9 judgment is “to establish a prima facie case and, once the employer articulate[s] a 10 legitimate, nondiscriminatory reason for its actions, to raise a genuine factual issue as to 11 whether the articulated reason was pretextual.” Sischo-Nownejad v. Merced Community 12 College Dist., 934 F.2d 1104, 1110 (9th Cir. 1991). 13 Plaintiff claims he was discriminated against by Hernandez on the basis of race and 14 retaliated against by Hernandez for filing EEOC complaints against her. According to 15 Plaintiff, Hernandez is responsible for Plaintiff’s temporary transfer to another 16 department and seven-day suspension after the May 1, 2014 incident involving Gutierrez, 17 as well as lost opportunities for a performance award and a TDY assignment. 18 The government moves for summary judgment in its favor, arguing that Plaintiff 19 fails to establish a prima facie case of discrimination or retaliation based on any of 20 Hernandez’s actions. The government further contends that Hernandez had no part in 21 most of the events at issue and to the extent she played an active decision-making role, 22 she had legitimate reasons for those actions. The government further avers that Plaintiff 23 fails to put forth any evidence to raise a genuine dispute as to whether Hernandez’s 24 reasons for her actions were in fact pretext for discrimination or retaliation. 25 // 26 27 28 1 A. Relevant Law 2 Discrimination in the form of disparate treatment occurs when, predicated upon a 3 particular trait, an employee receives treatment less favorable than other employees. See 4 Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012). In pertinent part, Title 5 VII’s disparate treatment provision provides: “[A]n unlawful employment practice is 6 established when the complaining party demonstrates that race, color, religion, sex, or 7 national origin was a motivating factor for any employment practice, even though other 8 factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). 9 “To establish a prima facie case, plaintiffs must offer evidence that gives rise to an 10 inference of unlawful discrimination,” which they may do with “circumstantial evidence 11 by showing: (1) that they are members of a protected class; (2) that they were qualified 12 for their positions and performing their jobs satisfactorily; (3) that they experienced 13 adverse employment actions; and (4) that similarly situated individuals outside their 14 protected class were treated more favorably, or other circumstances surrounding the 15 adverse employment action give rise to an inference of discrimination.” Hawn v. Exec. 16 Jet Mgmt., Inc., 615 F.3d 1151 at 1156 (9th Cir. 2010) (citations, internal quotation 17 marks, and brackets omitted). The parties do not appear to dispute that Plaintiff belongs 18 to a protected class and was qualified for his job. Accordingly, the Court’s analysis 19 below will focus on the third and fourth elements. 20 “Title VII’s antiretaliation provision forbids employer actions that ‘discriminate 21 against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII 22 forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII 23 ‘investigation, proceeding, or hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 24 25 26 6 Plaintiff has not proffered any “direct evidence” of racial discrimination or retaliation, i.e., “evidence which, if believed, proves the fact” of discriminatory or retaliatory motive “without inference or 27 presumption.” Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004). Accordingly, Plaintiff’s claims are governed by the burden-shifting framework set forth in McDonnell Douglas Corp. 28 1 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3). To support a prima facie claim of 2 retaliation, Plaintiff must show “that (1) he engaged in a protected activity; (2) his 3 employer subjected him to an adverse employment action; and (3) a causal link exists 4 between the protected activity and the adverse action.” Ray v. Henderson, 217 F.3d 5 1234, 1240 (9th Cir. 2000). The parties do not dispute that Plaintiff engaged in protected 6 activity by filing EEOC complaints against Hernandez on several previous occasions. 7 Accordingly, the Court’s analysis will focus on the second and third elements. 8 If the elements of a prima facie case are met, “[t]he burden of production, but not 9 persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory 10 reason for the challenged action. If the employer does so, the plaintiff must show that the 11 articulated reason is pretextual ‘either directly by persuading the court that a 12 discriminatory reason more likely motivated the employer or indirectly by showing that 13 the employer’s proffered explanation is unworthy of credence.’” Chuang v. Univ. of 14 California Davis, Bd. of Trustees, 225 F.3d 1115, 1123–24 (9th Cir. 2000) (internal 15 citation omitted) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 16 256 (1981)). 17 B. Analysis 18 As discussed above, Plaintiff’s discrimination and retaliation claims arise out of 19 four discrete employment actions: the seven-day suspension and temporary assignment to 20 the FPF department as a result of the May 1, 2014 incident involving Gutierrez, as well as 21 the failure to receive a performance award in 2015 and the denial of his TDY request in 22 2016. The Court considers each action in turn. 23 i. Seven-Day Suspension 24 The government argues that Plaintiff fails to establish a prima facie case of 25 discriminatory or retaliatory treatment by Hernandez based on the seven-day suspension 26 he received as a result of the May 1, 2014 argument with Gutierrez. The government 27 does not contest that the suspension qualifies as an adverse employment action but points 28 out that Hernandez did not suspend Plaintiff – the ultimate decision was tasked to Port 1 Director Aki. The government further points to the fact that Plaintiff did not receive less 2 favorable treatment than Gutierrez – Aki suspended both men for seven days. Plaintiff 3 does not dispute either of these key facts. Accordingly, he cannot establish a prima facie 4 case of discrimination or retaliation by Hernandez. 5 Even if Plaintiff could establish a prima facie case of either discrimination or 6 retaliation, the record is replete with evidence demonstrating that CBP had legitimate 7 non-discriminatory, non-retaliatory reasons for suspending both Plaintiff and Gutierrez 8 for their unprofessional behavior. Moreover, Plaintiff proffers no evidence to suggest the 9 reasons for the seven-day suspension were pretextual. 10 A plaintiff may demonstrate pretext by showing that the employer’s proffered 11 explanation is unworthy of credence because it is “internally inconsistent or otherwise not 12 believable.” Chuang, 225 F.3d at 1127. “When evidence of pretext is circumstantial, 13 rather than direct,” as in this case, “the plaintiff must produce ‘specific’ and ‘substantial’ 14 facts to create a triable issue of pretext.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 15 1222 (9th Cir. 1998). Plaintiff puts forth no evidence that the reasons for his suspension 16 were pretextual. As a general matter, Plaintiff testified during his deposition that he 17 never had any personal interaction with Hernandez. See Pl. Depo. at 55, Def. Ex. A, Doc. 18 No. 33-2 at 18. Plaintiff further testified that he believed Hernandez was biased against 19 him “in particular,” not Caucasians specifically, and Plaintiff admitted he has no evidence 20 to suggest Hernandez is racist or biased against all non-Hispanic Caucasians. Id. at 75, 21 Doc. No. 33-2 at 23. Simply put, Plaintiff produces no actual evidence, circumstantial or 22 otherwise, that he was disciplined for the May 1, 2014 incident based on his race. 23 Plaintiff offers only bare allegations and speculation. “[A] plaintiff’s belief that a 24 defendant acted from unlawful motive, without evidence supporting that belief, is no 25 more than speculation or unfounded accusation about whether the defendant really did act 26 from an unlawful motive.” Carmen v. San Francisco Unified School District, 237 F.3d 27 1026, 1028 (9th Cir. 2001). 28 Nor does Plaintiff demonstrate that Hernandez’s actions were a pretext for 1 retaliation based on Plaintiff’s previously filed EEOC complaints. As the Ninth Circuit 2 has held, a months-long “lapse between protected activity and an adverse employment 3 action is simply too long, by itself, to give rise to an inference of causation.” Villiarimo 4 v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). Here, Plaintiff’s 5 engagement in a protected activity occurred years prior to Plaintiff’s seven-day 6 suspension following the May 1, 2014 altercation with Gutierrez. And even if this period 7 of time was somehow sufficient to infer causation, “timing alone,” when “accompanied 8 by evidence” of a plaintiff’s behavior problems, and “coupled with a complete lack of 9 evidence of retaliatory intent, is neither specific nor substantial circumstantial evidence.” 10 Davenport v. Bd. of Trs. of the State Ctr. Cmty. College Dist., 654 F. Supp. 2d 1073, 11 1102 (E.D. Cal. 2009). 12 Accordingly, the government is entitled to summary judgment in so far as 13 Plaintiff’s claims arise out of his seven-day suspension following the May 1, 2014 verbal 14 altercation with Gutierrez. 15 ii. Temporary Assignment to FPF Department 16 Plaintiff claims that his transfer at Hernandez’s direction to the FPF department 17 following the May 1, 2014 incident was discriminatory and retaliatory. The government 18 argues that Plaintiff fails to make a prima facie case of discrimination or retaliation by 19 Hernandez based on his temporary assignment to the FPF department. The record clearly 20 reflects that Gutierrez received different treatment – he was permitted to continue with 21 his normal assignment during the course of the ensuing investigation – however, the 22 government contends that Plaintiff’s temporary assignment to the FPF department does 23 not qualify as an adverse employment action. 24 In a Title VII retaliation case, “[a]n action is an adverse employment action if a 25 reasonable employee would have found the action materially adverse, which means it 26 might have dissuaded a reasonable worker from making or supporting a charge of 27 discrimination,” and in a Title VII discrimination case “[a]n action is an adverse 28 employment action if it materially affects the terms, conditions, or privileges of 1 employment.” Ninth Circuit Civil Jury Instructions, 10.10 & 10.11 (citing Burlington 2 No. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), and Chuang v. Univ. of Cal. 3 Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir. 2000)). 4 Plaintiff testified during his deposition that by virtue of the transfer he lost 5 opportunities to earn overtime pay. See, e.g., Pl. Depo. At 129-30, Doc. No. 33-2 at 37. 6 Viewed in the light most favorable to Plaintiff, a reasonable jury could find that his 7 reassignment constituted an adverse employment action. See Fonseca v. Sysco Food 8 Servs. of Ariz., Inc., 374 F.3d 840, 847–48 (9th Cir. 2004) (holding that denial of 9 opportunity to earn overtime pay can be an adverse employment action). 10 However, even assuming Plaintiff has established a prima facie case of 11 discrimination or retaliation, the record amply supports the government’s assertion that 12 Hernandez directed that Plaintiff be temporarily reassigned to the FPF department for 13 legitimate reasons, taking into consideration agency protocols and regulations, as well as 14 the need to separate Plaintiff and Gutierrez due to the cease and desist letters. And, as set 15 forth above, Plaintiff admits he has no evidence to support his speculation to the contrary 16 or to create a genuine dispute regarding pretext for Hernandez’s actions. 17 Accordingly, the government is entitled to summary judgment in so far as 18 Plaintiff’s claims arise out of his temporary assignment to the FPF department following 19 the May 1, 2014 verbal altercation with Gutierrez. 20 iii. 2015 Performance Award 21 Plaintiff also faults Hernandez for his failure to receive a performance award in 22 2015. Plaintiff alleges that because he was transferred to the FPF department at 23 Hernandez’s direction, he was unable to participate in the inventory process that would 24 have made him eligible for such an award. The government argues that Plaintiff cannot 25 establish a prima facie case of discrimination or retaliation by Hernandez because she did 26 not take part in the nomination process, and in any event, the nominating authority had 27 legitimate reasons for not putting Plaintiff’s name forward for an award. 28 Plaintiff does not dispute the factual basis for those reasons nor does he offer any 1 evidence to suggest those reasons were a pretext for racial discrimination by Hernandez. 2 Plaintiff speculated during his deposition that Hernandez “didn’t want to see [him] get an 3 award,” but admitted under oath that he had no evidence that Hernandez directed the 4 nominating official to omit Plaintiff from the nomination list for the award. Pl. Depo. at 5 80-81, Doc. No. 33-2 at 24-25. 6 There is no evidence in the record that Hernandez participated in the nomination 7 process for the 2015 performance award. As such, Plaintiff cannot establish a prima facie 8 case of discrimination or retaliation by Hernandez arising out of his failure to receive the 9 award. Moreover, the government has offered evidence establishing a legitimate reason 10 why Plaintiff did not receive an award that year – he did not perform the work for which 11 the employees were awarded. Plaintiff’s speculation regarding some behind-the-scenes 12 involvement by Hernandez is insufficient to raise a genuine issue regarding pretext. 13 Accordingly, the government is entitled to summary judgment in its favor in so far 14 as Plaintiff’s claims arise out of his failure to receive a 2015 performance award. 15 iv. 2016 TDY Request 16 Finally, Plaintiff claims that as a result of Hernandez’s discriminatory and 17 retaliatory actions he was denied an opportunity for a temporary duty assignment at the 18 Port of Philadelphia in Spring 2016. Once again, Plaintiff cannot establish a prima facie 19 case of either discrimination or retaliation by Hernandez. The evidence reflects that 20 Hernandez did not make the ultimate decision to deny Plaintiff’s 2016 TDY request. 21 Plaintiff avers that Hernandez recommended his request be denied in order to 22 discriminate and retaliate against him. Plaintiff offers no evidence to support this 23 allegation. But even assuming its truth, the government has put forth evidence 24 demonstrating that CBP had a legitimate reason for denying Plaintiff’s TDY request. The 25 TDY assignment conflicted with an unannounced scheduled special inventory, and 26 Plaintiff was needed to assist. See Flores Decl. ¶ 9, Def. Ex. P., Doc. No. 33-5 at 21. 27 And once again, Plaintiff has no evidence of pretext. 28 Accordingly, the government is entitled to summary judgment in so far as 1 || Plaintiff's claims arise out of the denial of his request for a temporary duty assignment at 2 || the Port of Philadelphia in March 2016. 3 C. Conclusion 4 Even if Plaintiff could establish a prima facie case of racial discrimination or 5 || retaliation by Hernandez as to any of the employment actions at issue in this case, the 6 || government has proffered evidence sufficient to demonstrate that those actions were 7 || based on legitimate non-discriminatory, non-retaliatory reasons. Plaintiff received a 8 ||seven-day suspension following the May 1, 2014 incident involving Gutierrez because 9 || the agency’s investigation established that both men engaged in unprofessional behavior 10 |/in the work place. Plaintiff was temporarily reassigned to the FPF department to 11 || facilitate the cease and desist letters received by both himself and Gutierrez; transferring 12 || Gutierrez was not practical and arguably would have violated protocols because his wife 13 || was a supervisor in the FPF department. Plaintiff did not receive a 2015 performance 14 || award because he did not perform the relevant work that year. And Plaintiff’s 2016 TDY 15 || request was denied because personnel were needed in San Diego to complete an 16 || unannounced scheduled inventory. Plaintiff fails to challenge the government’s evidence 17 || or put forth any evidence to support a genuine dispute as to whether any of these reasons 18 || were a pretext for racial discrimination or retaliation for engaging in protected activity. 19 || Accordingly, the government is entitled to summary judgment in its favor on Plaintiffs 20 || discrimination and retaliation claims. 21 CONCLUSION 22 Based on the foregoing, the Court GRANTS the government’s motion for 23 ||summary judgment in its entirety. The Court DIRECTS the Clerk of Court to enter 24 || judgment accordingly and terminate this action. 25 IT IS SO ORDERED. 26 || DATED: August 17, 2020 [hth LH - hillr 7 HON. MICHAEL M. ANELLO United States District Judge 28