Taloren Govan v. Security National Financial Co

FILED
NOT FOR PUBLICATION DEC 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TALOREN GOVAN, an unmarried man, No. 11-16499
Plaintiff - Appellant, D.C. No. 2:10-cv-00057-DGC
v.
MEMORANDUM *
SECURITY NATIONAL FINANCIAL
CORPORATION, a Utah corporation;
CRYSTAL ROSE FUNERAL HOME
INCORPORATED, an Arizona
corporation; GREER-WILSON
FUNERAL HOME INCORPORATED, an
Arizona corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted December 6, 2012 **
San Francisco, California
Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Taloren Govan appeals the district court’s order granting summary judgment
to defendants Security National Financial Corporation and the funeral homes Greer
Wilson and Crystal Rose (collectively, “SNFC”) on his claims of discrimination
and retaliation based on race and religion in violation of Title VII, the Arizona
Civil Rights Act, and 28 U.S.C. § 1981. We have jurisdiction pursuant to 28
U.S.C. § 1291. After de novo review, we affirm.
Govan worked at several funeral homes owned by SNFC between 2008 and
2010. He was hired at Crystal Rose Funeral Home in June 2008, and shortly after
was promoted to manager. Govan was transferred to the financially ailing Adobe
Chapel and changed from a salaried to an hourly employee. Reorganization did
not save Adobe, which closed not long after Govan arrived. When Adobe closed,
Govan’s job was eliminated, and he was once again transferred, this time to be a
runner at Greer Wilson, a third SNFC home. In March 2009, Govan’s pay was cut
as a part of a broad pay reduction program to avoid layoffs. His pay was cut more
than others’ to align his wage with his duties as a runner. Unhappy with his
treatment, and allegedly having been subject to a few discriminatory comments,
Govan filed a complaint with the EEOC in August 2009, alleging that SNFC
discriminated against him on the basis of race and religion. The following month,
Govan developed a bulging disk in his back and told his supervisor that he would
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not return until he recovered. Govan was cleared to return to Greer Wilson in
April 2010, but with a restriction that he not lift bodies. At that time, Greer Wilson
management notified Govan that his former position was not available but offered
him work on an on-call basis. Govan accepted this offer. Next, however,
following a short period of work as a runner, Govan resigned on June 11, 2010.
Crystal Rose and Greer Wilson closed in December 2010.
The district court properly granted summary judgment on Govan’s claims
that the various changes to his employment were adverse employment actions
constituting disparate treatment based on his race and religion. We agree with the
district court’s judgment that Govan did not establish a prima facie case of
discrimination under McDonnell Douglas for some of these changes to his
employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). But
even if Govan had established a prima facie case for every change, SNFC proffered
legitimate, nondiscriminatory reasons for each of its employment actions. See
Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005) (citing St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07 (2005)). Govan did not raise a
genuine issue of material fact as to whether these legitimate, nondiscriminatory
reasons were pretextual. See id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 507–08 (2005); see also Noyes v. Kelly Servs., 488 F.3d 1163, 1169 (9th Cir.
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2007) (applying the McDonnell Douglas burden-shifting regime to a reverse
religious-discrimination claim). The record tells the story of SNFC facing
financial challenges and responding by moving employees, including Govan, to
different posts and altering pay scale and changing hours. If the characterization is
correct, that is not in itself actionable. The key question here was whether these
financial developments and larger-picture changes were merely a cover for what
was improper discriminatory treatment of Govan. Because, as the district court
held, Govan did not raise a genuine factual issue on pretext, the general picture
presented by management survived and the discrimination claims relating to these
changes of position for Govan failed.
Govan next claims that SNFC subjected him to a hostile work environment
on account of his race and religion. The district court properly granted SNFC’s
motion for summary judgment on this claim because the incidents Govan alleged
were not “sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive work environment.” Vasquez v. Cnty. of Los
Angeles, 349 F.3d 634, 642 (9th Cir. 2003).
Govan also claims that SNFC unlawfully retaliated against him because he
filed a charge of discrimination with the EEOC. Summary judgment was proper
on this claim because Govan did not show a causal link between his protected
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activity and the alleged materially adverse action, his change from full-time to on-
call status after a long medical leave. See Surrell v. Cal. Water Serv. Co., 518 F.3d
1097, 1108 (9th Cir. 2008). To establish a causal link sufficient to survive
summary judgment based only on temporal proximity, the protected activity and
the adverse action must be “very close,” Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001) (per curiam), unless the plaintiff has presented a “valid
reason for the delay” and offered “other evidence to support the inference of a
retaliatory motive,” Porter v. Cal. Dept. of Corr., 419 F.3d 885, 895 (9th Cir.
2005). Here the two events were more than six months apart—too distant to
support an inference of causation based on timing alone. See Clark Cnty., 532 U.S.
at 273–274 (citing cases finding periods of three and four months too long).
Govan’s proffered “valid reason for the delay” is that SNFC retaliated against him
when he returned from medical leave, which he argues was the “very first
opportunity they had to adversely affect Mr. Govan’s employment following his
protected activity.” But Govan still worked for SNFC after he filed his EEOC
charge, so SNFC had time to retaliate against him before his injury if it had chosen
to do so. Govan is left only with the timing of his alleged materially adverse
employment action. In the circumstances shown by this record, Govan’s proof is
insufficient to establish a prima facie case of retaliation.
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Finally, the district court correctly ruled that Govan’s claim of negligent
supervision is barred by the exclusive-remedy provisions of Arizona’s workers’
compensation statute, which preclude tort claims against an employer unless the
employee’s injury is caused by the employer’s “willful misconduct.” See Ariz.
Rev. Stat. Ann. § 23-1022 (1995); Irvin Investors, Inc. v. Super. Ct., 800 P.2d 979,
980–82 (Ariz. Ct. App. 1990).
We affirm the district court’s rejection of Govan’s intentional infliction of
emotional distress claim because he did not oppose SNFC’s motion for summary
judgment on this claim and did not raise or support this claim in his opening brief.
See Fed. R. App. P. 28(a)(9)(A).
AFFIRMED.
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