Opinion
No. CV 05-3429-PHX-RCB.
September 30, 2007
ORDER
Currently pending before the court is a motion for summary judgment brought pursuant to Fed.R.Civ.P. 56 by defendants, Yvonne Watterson, Gateway Community High School, Gateway Community College, and Maricopa County Community College District (doc. 21); and a cross-motion for summary judgment by plaintiffs, Adeshina O. Oshilaja and Rebecca S. Indermaur (docs. 24 25). Having reviewed the parties' extensive submissions, including over 500 pages of deposition testimony, and supporting affidavits (doc. 22, 23, and 26-29), the court rules as follows.
Finding these motions suitable for resolution without oral argument, the court denies the parties' request in this regard.
Background
These facts are taken from the pleadings and from plaintiffs' depositions which "for purposes of this motion only," defendants "agree" are "true and accurate." Mot. (doc. 21) at 4.
Plaintiffs, Adeshina Oshilaja and Rebecca Indermaur, were employed by the defendant Maricopa County Community College District where they worked as math/science teachers at Gateway Community High School ("the High School"), another defendant. The High School is a charter school operating on the campus of defendant Gateway Community College in Phoenix, Arizona. The High School principal and plaintiffs' immediate supervisor, Yvonne Watterson, also is named as a defendant herein.
Plaintiff Oshilaja was hired, on a one year contract, as a math and science teacher on July 29, 1995. Doc. 22 (Def. SOF), exh. 1 thereto (Dep'n of Adeshina Oshilaja (7/21/06)) at 49-50. Thereafter, until May 2004, he continued to be employed on an annual basis. As he agreed during his deposition, from 1995 until the spring of 2004, roughly two or three months before the annual contracts were to end, another contract would be placed in his school mailbox. Id. If Mr. Oshilaja decided to continue teaching at the High School, he would sign the contract for the next academic year. Id. Plaintiff Indermaur described the annual contract process similarly, agreeing "in essence" that she was "working at the school on a year by year contract." Id., exh. 2 thereto (Dep'n of Rebecca Indermaur (8/11/06)) at 39.
The High School's population consisted of "at risk" students.Id., exh. 2 thereto at 33. Some of the students were "dropout[s]" from other, more traditional high school settings, for example.Id., exh. 1 thereto at 31. Prior to Ms. Watterson becoming principal, the High School had a number of problems, such as low attendance rates and declining enrollment. Id., exh. 2 thereto at 34-35. When Ms. Watterson became principal, the model for the High School changed. Among other things, the School became "more structured." Id. at 33. Part of that change was that the School adopted an "early college" model where students could take college as well as high school classes, thus allowing more students to attend college. Id. at 30 and 41.
Transition to this early college model was to occur during the 2004-2005 academic year. Id. at 41. Prior to that, at a January 16, 2004, faculty meeting, defendant Watterson announced that all teachers needed to reapply for their positions for the next academic year (2004-2005). Id., exh. 1 thereto at 192-93. When asked about this announcement, plaintiff Oshilaja emphatically replied that "one thing we all remember" is that we were told that "[a]ll teachers need to reapply for their job." Id. at 193 (emphasis added). He reiterated, "We all need to reapply for our job." Id. (emphasis added). When asked if he remembered the exact words, plaintiff Oshilaja again stated, "We all need to reapply for our job, all of the staff, all the teaching staff." Id. (emphasis added).
The explanation for requiring all teachers to reapply was, as plaintiff Oshilaja understood it, because of "[d]uty change[.]"Id. To him that meant that instead of teaching a combined math/science class, those subjects would be taught separately.See id. Plaintiff Oshilaja further testified that that explanation "ma[d]e sense" to him. Id. Although there may have been more said during this meeting, Mr. Oshilaja repeated that the "one important thing . . . [he] remember[ed]" was "a statement being made that all the teaching staff was going to have to reapply for their jobs[.]" Id. at 195 (emphasis added).
During her deposition plaintiff Indermaur was also questioned about this January 16, 2004 faculty meeting. She "remember[s] Ms. Watterson telling [her] and all the faculty who attended that. . . . meeting that because of the transformation that the school was going to go through in adopting this early college high school model, . . . job descriptions . . . were being changed and she encouraged all of [them] to reapply[.]" Id., exh. 2 thereto at 244. As plaintiff Indermaur readily admitted, however, she chose not to reapply. Id. Plaintiff Indermaur further agreed that she was "never" advised in writing or otherwise that she was "terminated" from job at the high school.Id. at 249; and at 66-67 In fact, when asked if she was "ever actually fired or terminated[,]" Ms. Indermaur replied, "No[;] [m]y contract came to an end" in May 2004. Id. at 66.
Unlike plaintiff Indermaur, Mr. Oshilaja decided to reapply for his teaching position. He filled out the job application and was interviewed by the screening committee — an interview which lasted 45 minutes to an hour. Id., exh. 1 thereto at 197 and 198. Defendant Watterson was one of the five members on that committee. Id. Others were also interviewed, but Mr. Oshilaja was not present as those interviews were conducted separately. Id. at 198. Based upon his own estimation from the District's disclosures, Mr. Oshilaja testified that he was "the second to the lowest" of "maybe five applicants[.]" Id. at 227. Subsequently Mr. Oshilaja received a letter advising him that the screening committee had decided to hire someone else. Id. at 199.
When specifically asked who was hired instead of him, plaintiff could not identify anyone. Instead, he responded, "[p]robably not black and not old as I am." Id. at 226. Following up, plaintiff was asked if that response was "base[d] on any personal knowledge, or [was] [it] simply based on a suspicion[.]" Id. He answered that from his "personal knowledge[,]" the people that were interviewed for "his position" were "not black" and were "younger" than him. Id. Plaintiff Oshilaja did not elaborate as to the source of his knowledge; nor did he provide any further details, such as the ages of the persons interviewed or their qualifications. When he was not rehired, his last day of employment at the High School was May 14, 2004. Id. at 18. Like plaintiff Indermaur, Mr. Oshilaja was never advised in writing or otherwise that he was terminated. Id. at 56-57; and 225. His 2003-2004 contracted ended, by its own terms; and he was not rehired.
Shortly thereafter, in June 2004, plaintiffs each filed a "Charge of Discrimination" with the Equal Employment Opportunity Commission ("EEOC") and with the Arizona Attorney General's Civil Rights Division ("CRD"). Those Charges were based solely on allegations of age discrimination in violation of the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 621 et seq. See Doc. 23, exh. 1, parts 5 and 7 thereto. Following an investigation, those Charges were dismissed and plaintiffs were issued "Notice of Right to Sue" letters by the Arizona Attorney General's CRD. Id., exh. 1 thereto.
The following year, on June 22, 2005, plaintiffs filed the present action in Arizona Superior court, Maricopa County. Defendants timely removed to this district court on October 26, 2005.
Discussion
I. Summary Judgment Standard
Pursuant to Fed.R.Civ.P. 56(c), a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is beyond dispute that "[t]he moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "The criteria of `genuineness' and `materiality' are distinct requirements." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The requirement that an issue be `genuine' relates to the quantum of evidence the plaintiff must produce to defeat the defendant's motion for summary judgment."Id. "There must be sufficient evidence `that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quotingAnderson, 477 U.S. at 248). "As to materiality, the substantive law will identify which facts are material." Anderson, 477 U.S. at 248. Here, as will be seen, the substantive law is the ADEA.
"Once the moving party meets its initial burden, . . ., the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks and citations omitted). This "[e]vidence must be concrete and cannot rely on `mere speculation, conjecture, or fantasy.'"Bates v. Clark County, 2006 WL 3308214, at * 2 (D.Nev. Nov. 13, 2006) (quoting O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986)). Similarly, "a mere `scintilla' of evidence" is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some `significant probative evidence tending to support the complaint.'" Fazio v. City County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in opposing a summary judgment motion it is not enough to "simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (citations omitted).
By the same token though, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor."Horphag, 475 F.3d at 1035 (citation omitted). "This is true even though[,]" as here, "the court is presented with cross-motions for summary judgment[.]" High Tech Gays v. Defense Ind. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (citation omitted). "Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn." Yang v. Peoples Benefit Ins. Co., 2007 WL 1555749, at *7 (E.D.Cal. May 25, 2007) (citations omitted).
On a summary judgment motion, the court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed by the Supreme Court, the ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The fact that a plaintiff is appearing pro se, as are the plaintiffs herein, does not alter the applicability of these general summary judgment rules. See Semper v. JBC Legal Group, 2005 WL 2172377, at *1 (W.D. Wash. 2005) ("Although the rule requires that the allegations of a pro se complaint be liberally construed in determining whether a viable claim has been asserted and that strict compliance with procedural/technical rules will not be expected of pro se litigants, it does not alter the summary judgment standard or otherwise give pro se non-prisoner litigants multiple opportunities to present their evidence."). The summary judgment rules apply with equal force to pro se litigants because they "must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citation omitted) ("Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.") In fact, in Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986), the Court rejected the argument that pro se non-prisoner litigants are entitled to notice from the court regarding the requirements of Rule 56. In so doing, the Court unequivocally stated that "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Id. at 1364. Accordingly, although plaintiffs are appearing pro se, they are held to the same standards as any other represented party on a motion for summary judgment.
II. Discrimination Claims
Plaintiffs' complaint can be read as asserting claims under the ADEA, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and two pendent state law claims. For now the court will focus on plaintiffs' discrimination claims.
A. Title VII
Plaintiffs explicitly assert four separate claims under Title VII: (1) "hostile work environment[;]" (2) "disparate treatment[;]" (3) "discriminatory seniority system[;]" and (4) "constructive discharge[.]" Co. (Doc. 6-2) at 5, ¶¶ 10-14; at 6, ¶¶ 15-17 and ¶¶ 18-19; and at 7-8, ¶¶ 25-27. In moving for summary judgment, defendants assumed that the court has subject matter jurisdiction over these claims; so they addressed the merits. As will be seen though, because the court lacks subject matter jurisdiction to consider these Title VII claims, it will not and, indeed, cannot address the merits of such claims.
Under Title VII it is "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1) (West 2003) (emphasis added). As the plain language of that statute indicates, an essential element of a claim thereunder is a showing that the plaintiff comes within the protected class. See Pullom v. U.S. Bakery, 477 F.Supp.2d 1093, 1100 (D. Or. 2007) ("To establish a prima facie case of discrimination . . ., a plaintiff must offer proof that[,]" among other things, that "he or she belongs to a class of persons protected by Title VII[.]")
Before a plaintiff may proceed with a Title VII action in federal court, they must first exhaust their administrative remedies. This is done by "filing a timely charge with the EEOC or the appropriate state agency." Howard v. Kiewit Pacific Corp., 2006 WL 278603, at *3 (D. Hawai'i 2006) (citing 42 U.S.C. § 2000e(f); and Freeman v. Oakland Unified School District, 291 F.3d 632, 636 (9th Cir. 2002)). This is a jurisdictional prerequisite. See id. The purpose of this administrative charge is to "giv[e] the charged party notice of the claim and narrow the issues for prompt adjudication and decision." Freeman, 291 F.3d at 636. "Subject matter jurisdiction extends over all allegations of discrimination that fell within the scope of either the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Brooks v. ATC/Vancom, Inc., 2007 WL 1063059, at *3 (D. Nev. April 4, 2007) (citing B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1100 (9th Cir. 2002)).
The Ninth Circuit has repeatedly held that EEOC charges must be construed "with utmost liberality since they are made by those unschooled in the technicalities of formal pleading." Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002) (quoting Kaplan v. Int'l Alliance of Theatrical Stage Employees, 525 F.2d 1354, 1359 (9th Cir. 1975)) (other citation omitted). "In determining whether the exhaustion requirement has been satisfied, the court may consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, and any locations at which discrimination is alleged to have occurred." Howard, 2006 WL 278603, at *3 (citing Freeman, 291 F.3d at 636). When examining these factors, the Ninth Circuit deems "[t]he crucial element of a charge of discrimination" to be "the factual statement contained therein." Freeman, 291 F.3d at 636 (internal quotation marks and citation omitted).
The plaintiffs each timely filed a "Charge of Discrimination" with the Arizona Attorney General's CRD and with the EEOC. Significantly, however, those Charges are confined to allegations of age discrimination in violation of the ADEA. Nowhere in either Charge do plaintiffs even hint at the possibility that they were discriminated against on any basis other than age. For example, in the space designated "discrimination because of[,]" plaintiffs had a choice of marking the following boxes: "Race, Color, Sex, Religion, National Origin (15/+), Age, Retaliation, Disability, and/or Other (Specify) [.]" See Doc. 23, exh. 1 thereto at parts 5 and 7. They each checked only the box marked "Age[.]" Id. Alone that might not be determinative of whether plaintiffs' EEOC Charges included Title VII claims. That fact combined with the factual statements contained in their respective EEOC Charges, however, clearly shows that age is the sole basis for plaintiffs' discrimination claims.
For ease of reference, hereinafter these documents will be referred to as "the Charges."
Plaintiffs' Charges are replete with references to age, and conspicuously silent as to any other type of alleged basis for discrimination. To illustrate, under the section entitled "DISCRIMINATION STATEMENT" both plaintiffs unequivocally stated: "I believe I have been discriminated against because of my Age[.]" Id. (emphasis added). Plaintiff Indermaur then gave her age as "64 years old (12/05/39) " and plaintiff Oshilaja gave his age as "49 years old[.]" Id., exh. 1 thereto at Part 7 thereto at 28; and Part 5 thereto at 25. Further, they both claim to have been "subjected to different terms and conditions of employment than younger teachers under age 40[.]" Id. (emphasis added). Likewise, in their "discrimination statements,[,]" both plaintiffs stated: "In or about January 2004 older teachers including myself were told we had to reapply for our positions and that contracts would no longer be renewed automatically for the next contract year." Id. (emphasis added).
Plaintiffs concluded those statements by indicating that they "believe[d] and therefore allege, that but for my age, I would not have been subjected to unequal terms and conditions of employment[.]" Id. (emphasis added). In the case of plaintiff Indermaur, she further stated that "but for [her] age" she "would not have been forced to constructively terminate [her] employment." Id., exh. 1 thereto, Part 7 at 28. In a similar vein, plaintiff Oshilaja stated that "but for [his] age" he "would not have been terminated through failure to renew [his] contract and rehire [him]." Id., exh. 1 thereto, Part 5 at 25.
As is abundantly clear by now, neither EEOC Charge mentions or even alludes to the fact that plaintiffs may be members of a protected class for purposes of establishing liability under Title VII. There is, for example, no mention of plaintiffs' race, color or national origin. Consequently, "[n]othing in th[ose] EEOC charge[s] would have indicated to investigators that the investigation should address race, color, or any type of discrimination other than age . . . discrimination." Howard, 2006 WL 278603, at *4 (citing Freeman, 291 F.3d at 637 ("where allegations in EEOC charge refer to discrimination in relation to a specific election, allegations of discrimination in other contexts, such as class size or teaching assignments, would not have been necessary to, or addressed in, the scope of the EEOC investigation")) (internal quotation marks omitted). Moreover, as in Howard, plaintiffs have not come forth with any evidence that the agency investigations included any type of discrimination other than age. See id. (citation omitted). Thus, because plaintiffs' claims for any type of discrimination other than age "were not within the scope of the [agencies'] actual investigation and could not reasonably be expected to grow out of the factual allegations of discrimination contained on the face of [their] respective charges of discrimination[,]" such claims were not administratively exhausted. See Brooks, 2007 WL 1063059, at *4 (citations omitted). Consequently, this court lacks subject matter jurisdiction over all allegations of discrimination in the complaint which are premised upon violations of Title VII. See id. The court must, therefore, grant defendants' motion for summary judgment as to these claims, albeit not for the reasons defendants proffered. See United Investors Life Ins. Co. V. Waddell Reed, 360 F.3d 960, 967 (9th Cir. 2004) (citation omitted) ("[T]he district court ha[s] a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raise the issue or not."); see also Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.") In light of the foregoing, the only remaining federal claims are those based upon alleged violations of the ADEA, which the court will next address.
B. Individual Liability
Liberally construing this pro se complaint, it can be read as asserting claims against defendant Watterson, the High School principal and plaintiffs' immediate supervisor, in both her official and individual capacities. Defendant Watterson is seeking summary judgment on the basis that as an "individual supervisor" she cannot be held liable under that statute. Mot. (doc. 21) at 12.
Ms. Watterson's position is well taken, and the plaintiffs do not argue to the contrary. To the extent the plaintiffs are asserting ADEA claims against defendant Watterson in her individual capacity, she is entitled to summary judgment. See Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 587 (9th Cir. 1993) (no individual liability under the ADEA). Likewise, because any ADEA claims against defendant Watterson in her official capacity merge with those against her employer, the defendant High School, she is entitled to summary judgment as to those claims as well. See Daniels v. Chertoff, 2007 WL 1140401, at * 6 (D. Ariz. April 17, 2007) (citations omitted) (dismissing Title VII claim against defendant employees in their official capacities "because it merge[d] with Plaintiff's claims against his employer"). Thus, the only remaining defendants are the institutional defendants.
C. ADEA
It is difficult to discern from their complaint the exact nature of plaintiffs' ADEA claims. Broadly stated, they appear to be alleging disparate treatment and constructive discharge.
The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual [who is at least 40 years old] or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1). In general two theories of liability are available to an ADEA plaintiff: (1) disparate treatment and (2) disparate impact. Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir. 2004). "Disparate treatment is demonstrated when the employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics]." Id. (internal quotation marks and citations omitted).
"`Disparate impact' claims are those where the identified employment practices are facially neutral in their treatment of different groups, but `in effect fall more harshly on one group than another and cannot be justified by business necessity.'"Wagner v. Pacific Maritime Association, 2007 WL 2407093, at *4 (D.Or. Aug. 21, 2007) (quoting Int'l Broth. Of Teamsters v. United States, 431 U.S. 324, 335 n. 10 (1977)). "The Supreme Court has not clearly addressed whether plaintiffs may bring disparate impact claims under the ADEA[,] but" the Ninth Circuit "permits such claims." Id. (citing, inter alia, Pottenger v. Potlach Corp., 329 F.3d 740, 749 (9th Cir. 2003)).
Defendants discuss disparate impact in their memorandum. The court need not address this theory of liability, however, because regardless of how liberally it reads plaintiffs' complaint, there are no allegations to support a disparate impact theory of ADEA liability. As defendants accurately note, the complaint does not allege "facially neutral . . . specific practices that are allegedly responsible for [an] adverse impact." See id. (citingSmith v. City of Jackson, 544 U.S. 228, 241 (2005)). Thus, consistent with the allegations in the complaint, the court will not consider an additional theory of ADEA liability based upon disparate impact.
"To establish a violation of ADEA under a disparate treatment theory of liability, [a plaintiff] must first establish a prima facie case of discrimination." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir. 2000) (internal quotation marks and citation omitted). "A disparate treatment age discrimination claim may be proved by direct, statistical, or circumstantial evidence that gives rise to an inference of age discrimination."Silva v. Chertoff, 2007 WL 1795786, at *5 (D. Ariz. June 20, 2007) (citations omitted). "When a plaintiff alleges disparate treatment based on direct evidence in an ADEA claim," there is no need to "apply the burden-shifting analysis set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973) in determining whether the evidence is sufficient to defeat a motion for summary judgment. Enlow, 389 F.3d at 812. "Direct evidence, in the context of an ADEA claim, is defined as evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision." Id. (internal quotation marks and citations omitted) (emphasis added).
Here, despite a lengthy record, plaintiff Oshilaja has not pointed to any direct evidence of conduct or statements by defendant Watterson or others involved in the decision-making process "that may be viewed as directly reflecting" age discrimination against him. See id. No mention is made in his supporting affidavit of any such evidence. Nor has plaintiff Oshilaja shown where in his 295 page deposition such evidence can be found.
Plaintiff Indermaur is in a similar, although not identical position. In her supporting affidavit she avers that an unnamed defendant, presumably Ms. Watterson, "constantly" called her "`Veteran' . . . instead of calling [plaintiff] by [her] name." Doc. 29 (Aff. of Rebecca Indermaur (March 25, 2007)) at 22. Assuming the veracity of this statement, it does not constitute direct evidence that the decision to require all teachers to reapply for the 2004-05 academic year was motivated by age, especially when taken in the context of the record as a whole.
Given the lack of direct evidence of age discrimination, plaintiffs must resort to the by now familiar three step burden-shifting analysis under McDonnell Douglas, which applies when an ADEA plaintiff is relying on circumstantial evidence of discrimination. Enlow, 389 F.3d at 812. The initial burden under that framework is one of production; plaintiff must establish a prima facie case here, of an ADEA violation based upon disparate treatment. See Silva, 2007 WL 1795786, at *5. "A mere showing that there was disparate treatment is not sufficient; rather [plaintiffs] must show that the alleged disparate treatment was the result of intentional discrimination based upon [their] protected class characteristics." Id. (citation omitted).
Generally, to establish a prima facie case, a plaintiff must show that "(1) she belongs to a protected class, (2) she was performing according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citations omitted). As will become apparent, plaintiffs' evidence is sorely lacking with respect to nearly all of these factors.
1. Protected Class
There is no dispute that the first element of a prima facie case is met here. Both plaintiffs were, as the ADEA mandates, "at least 40 years of age" during the relevant time frame. See 29 U.S.C. § 631(a) (West 1999). Plaintiff Oshilaja was approximately 49 years old, and plaintiff Indermaur was 64 years old. Doc. 23, exh. 1 thereto at Parts 5 and 7.
2. Performance
Although plaintiffs have easily met the first element, they have not pointed to any evidence to support the second element of a prima facie case — that they were "performing" their jobs "according to [their] employer's legitimate expectations[.]" See Godwin, 150 F.3d at 1220 (citations omitted). Their complaint alleges that they were "consistently superior according to previous evaluations." Co. (doc. 6-2) at 9, ¶ 32. Even if that is the legal applicable standard, which it is not, this conclusory allegation in the complaint is insufficient on a motion for summary judgment. It is insufficient because plaintiffs are relying upon their pleadings, rather than "set[ting] forth specific facts showing that there is a genuine issue for trial."See Fed.R.Civ.P. 56(e).
To be sure, the defendants are not asserting that plaintiffs were not performing to the defendants' legitimate expectations. But that is of no consequence because the moving party need not disprove matters, such as this, on which the opponent has the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Conversely, when the "moving party will have the burden of proof at trial," as will the plaintiffs on this particular issue, their "showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." In re Feature Realty Litigation, 2007 WL 2703002, at *4 (E.D. Wash. Sept. 13, 2007) (internal quotation marks and citation omitted). Clearly, plaintiffs' proof in the present case falls far short of that standard. Thus, because plaintiffs have not made a "showing sufficient to establish the existence of an essential element" of their ADEA disparate treatment claim, an element "on which [they will bear the burden at trial[,]" summary judgment is proper. See id. at 322.
3. "Adverse Employment Action"
Because plaintiffs have not met their burden as to one of the four elements of a prima facie case, the court could end its analysis here. For the sake of completeness, however, and giving some deference to plaintiffs' pro se status, the court will address the remaining two elements — adverse employment action and more favorable treatment.
Plaintiffs did not specifically articulate the adverse employment action which forms the basis for their ADEA causes of action. Based upon the complaint, presumably the alleged adverse employment action took three forms. The first is "involuntary termination" which from plaintiffs' standpoint occurred, in large part, because they were required to reapply for their teaching positions for the 2004-2005 academic year. See Co. (doc. 6-2) at 8, ¶ 26. According to their complaint, plaintiffs "inferred" from this requirement "that [they] were all fired[.]" Id. Plaintiffs further "inferred" from this requirement that "if . . . rehired, it would be at a lower salary scale." Id. Second, in the case of plaintiff Oshilaja, the alleged adverse employment action arises from the fact that he was not rehired despite reapplying. The third alleged adverse employment action is plaintiffs' "reassignment to menial duties[.]" Id. at 7. For the reasons set forth below, with the possible exception of not rehiring plaintiff Oshilaja, the court finds that none of these allegations support a finding of adverse employment action.
Plaintiffs make much of the fact that supposedly had they been rehired, it would have been at a lower salary. This assertion is baseless. Plaintiff Oshilaja, as a teacher at the High School for nine years, did have concerns about his salary if rehired. To alleviate those concerns, he contacted the human resources representative who assured him that if rehired, he would be "grandfathered[,]" so that he would continue to make the same salar. Doc. 23, exh. 1 thereto at 221-224. As plaintiff Oshilaja understood it, defendants had "no choice but to pay" him the same salary. Id. at 224. Given this concession, plaintiffs' attempt to introduce salary as a basis for an ADEA claim is misplaced.
Plaintiff Indermaur readily concedes that she did not reapply. Therefore, in contrast to plaintiff Oshilaja, she cannot claim an adverse employment based upon failure to rehire. See Silva, 2007 WL 1795786, at *9 (unable to find adverse employment action based upon failure to promote where plaintiff did not apply for promotion) (citing Pejic v. Hughes Helicopter, Inc. 840 F.l3d 67, 673 (9th Cir. 1988)).
a. Re-application Requirement
Generally the Ninth Circuit takes an "expansive view of the types of actions that can be considered adverse employment actions." Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (citing cases). That "expansive view" is not without limits however. The following undisputed facts persuade the court that requiring plaintiffs to reapply for their teaching positions for the 2004-2005 academic year did not amount to an adverse employment action so as to support a prima facie case of disparate treatment based on age. First of all, the court must view the re-application requirement in context. It occurred during a transition period for the High School, when the School was changing. The decision to require plaintiffs, as well as all other current teachers, to reapply is consistent with that restructuring.
Second, and more significant, as plaintiffs repeatedly acknowledged, is the fact that a ll of the teachers had to reapply, regardless of age. For example, plaintiff Indermaur testified that all teachers were "encouraged . . . to reapply[.]" Doc. 23, exh. 2 thereto at 244. Not only that, plaintiffs were employed on a year-to-year contractual basis. In light of the foregoing, even assuming arguendo the existence of the other prima facie elements, the court is hard pressed to find that plaintiffs sustained an adverse employment action when they, like all other faculty members, were required to reapply to be considered for a position for the next academic year.
b. "Involuntary Termination"
Plaintiffs fare no better with their involuntary termination argument. Termination is a form of adverse employment action. See Hedenburg v. Aramark American Food Services, Inc., 476 F.Supp.2d 1199, 1207 (W.D. Wash. 2007) ("She was terminated and thus suffered an adverse employment action, in satisfaction of the third element.") Here, the uncontroverted facts do not support a finding of involuntary termination though.
During her deposition, plaintiff Indermaur was questioned quite closely as to plaintiffs' allegations that they were terminated. Plaintiff Indermaur admitted that she was "never . . . terminated by anybody, . . . from [her] job at the high school[.]" Doc. 23, exh. 2 thereto at 249. She further admitted that defendant Watterson "did not fire" her or plaintiff Oshilaja. Id. at 251. Plaintiff Indermaur continued, "She [defendant Watterson] did not willfully terminate us according to our contract. She did that correctly." Id. This testimony is consistent with the nature of plaintiffs' employment contracts; they were annual, for one academic year. Plaintiff Oshilaja similarly testified, acknowledging that he was never informed in writing or verbally that he was terminated. Id., exh. 1 thereto at 225.
Further, as noted earlier, plaintiffs are seeking to have this court "infer" that they were involuntarily terminated in light of the re-application requirement. This argument ignores a fundamental principle of summary judgment. At this stage, the court "need not draw all possible inferences in [plaintiffs'] favor, but only all reasonable ones." Villiarim v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 n. 10 (9th Cir. 2002) (citation omitted) (emphasis in original). On this record where, inter alia, all teachers were required to reapply regardless of age, involuntary termination is not a reasonable inference; it is an unreasonable inference. Thus, the court finds, as plaintiffs' own testimony demonstrates, that there is no factual basis for a finding of involuntary termination. In turn, there can be no adverse employment action in this regard.
c. Failure to Rehire
Failure to rehire, under some circumstances, can constitute an adverse employment action. See McDonnell Douglas, 411 U.S. at 804 (failure to rehire sufficient consideration of adverse employment action). In the present case, however, because plaintiff Oshilaja is unable to satisfy all four criteria necessary to make out a prima facie case of discrimination, this failure to rehire is not sufficient to withstand defendants' summary judgment motion. d. "Assignment to Menial Duties"
Moreover, even if plaintiff Oshilaja had established a prima facie case in this regard, defendants have met their burden under the by now familiar framework of McDonnell Douglas, 411 U.S. 792, of "articulating a legitimate nondiscriminatory reason for [their] alleged discriminatory conduct." See Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). In this case that reason was plaintiff's low score during the interview process relative to the other candidates. What is more, plaintiff Oshilaja has not, as is his burden at this juncture, shown that defendants' reason for not rehiring him was pretextual. See id. Plaintiff Oshilaja could have met that burden in one of two ways. He could have shown "pretext directly, by showing that discrimination more likely motivated [defendants], or indirectly, by showing that [defendants'] explanation is unworthy of credence." See id. He did neither.
As noted earlier, plaintiffs allege that they were assigned to "menial duties" consisting of teaching subjects outside of math and science "due to a shortage of staff[.]" Co. (doc. 6-2) at 7, ¶ 23. Even if this amounts to an "adverse employment action," it cannot be the basis of any ADEA claims herein because during their depositions plaintiffs essentially abandoned this theory. They did so by agreeing that this reassignment was not menial, and further conceding that they did not have to engage in what are undisputably menial (but necessary) tasks, such as scrubbing toilets or cleaning scrubbing sinks. Doc. 23, exh. 1 thereto at 185-86; and exh. 2 thereto at 235-36. Moreover, plaintiffs' depositions reveal that they were not singled out for this reassignment based upon their age or for any other reason. "[A]ll of the four math/science teacher[s] remaining" were reassigned in this way. Id., exh. 1 thereto at 189 and 190; and exh. 2 thereto at 232-33. Indeed, as alleged in their complaint, and as they testified to during their depositions, this reassignment was necessitated by a staffing shortage. Id. Thus, this supposed assignment to menial duties cannot form the basis of a finding of adverse employment action necessary to support a prima facie case under the ADEA.
4. More Favorable Treatment
Evidence of the fourth element of a prima facie case, that "employees with qualifications similar to [plaintiffs] were treated more favorably[,]" is wholly lacking here. See Godwin, 150 F.3d at 1220. Plaintiffs refer to one teacher by name, Amanda Patrie, whom they claim was unqualified and to whom supposedly "favoritism" was shown. See Doc. 29 (Aff. Of Shelley Schauberger (March 16, 2007)) at 7; see also Resp. (doc. 24) at 8, 15 and 19. Plaintiffs also broadly state, with no cites to the record, "[i]n 2004 [they] were replaced by two younger white females." Resp. (doc. 24) at 12. These references fall far short of the proof necessary to show that employees with similar qualifications to plaintiffs were treated more favorably than they were.
Plaintiffs have not shown what their qualifications were, let alone what they were in comparison to others, such as Ms. Patrie. Moreover, the evidence shows that Ms. Patrie was a language arts teacher, and plaintiffs were both math and science teachers. Doc. 29 (Schauberger Aff.) at 5. Hence, on this basis alone there can be no finding that Ms. Patrie and plaintiffs had "similar qualifications." What is more, plaintiffs have not indicated where in the record it shows Ms. Patrie's age. "Younger" and "older" are relative terms. Assuming Ms. Patrie and plaintiffs were similarly qualified, plaintiffs have not pointed to any concrete evidence of Ms. Patrie's age. Another critical weakness in this proof is that despite what plaintiffs would like this court to infer, Ms. Patrie was not hired as their replacement. She was hired while both plaintiffs were still employed at the High School. See id. Thus, as with the second element of a prima facie, plaintiffs also have not met their burden on this fourth element.
This is how plaintiffs frequently describe themselves and "other senior staff that had been with [the] high school before the defendant [Watterson] became principal." Co. (doc. 6-2) at 3-11.
The court is keenly aware that "on summary judgment, [t]he requisite degree of proof necessary to establish a prima facie case . . . is minimal and does not even need to rise to the level of a preponderance of the evidence[.]" Metoyer v. Chassman, 2007 WL 2781909, at *7 (9th Cir. 2007) (internal quotation marks and citation omitted); see also Nidds, 113 F.3d at 917 (citations omitted) ("[V]ery little" evidence "is required in order to show a prima facie case of discrimination.") A summary of plaintiffs' evidence herein quickly shows, however, that they have not met even this minimal threshold of proof. The only element which clearly they have met is the first; plaintiffs are within the protected class under the ADEA. There is a complete absence of proof as to the second element, their job performance. Likewise, there is no proof as to the fourth element, that employees with similar qualifications to plaintiffs were treated more favorably. Finally, of the three types of alleged adverse employment action, only one is arguably supported by this record and that is the fact that defendants did not rehire plaintiff Oshilaja. Of course, without proof of each of the other three elements of a prima facie case, that failure to rehire does not allow Mr. Oshilaja to survive defendants' summary judgment motion. In short, at nearly every step of the prima facie analysis, plaintiff' evidence is legally insufficient for one reason or another. Accordingly, because plaintiffs have failed to meet their initial burden of establishing a prima facie case of discrimination, their cross-motion for summary judgment as to the ADEA disparate treatment claims is denied, and defendants' motion for summary judgment is granted. B. Constructive Discharge
This holding obviates the need for the court to proceed to the next step of the McDonnell Douglas burden shifting analysis.
As previously noted, plaintiffs specifically allege in their complaint constructive discharge in violation of the ADEA. Plaintiffs misconceive the nature of a constructive discharge claim however. The underlying factual predicate for such a claim is an employee's decision to resign. See Poland v. Chertoff, 494 F.3d 1144, 1184 (9th Cir. 2007) (quoting Penn. State Police v. Suders, 524 U.S. 129, 141 (2004)) (emphasis added) ("`Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?'"); see also Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1184 (9th Cir. 2005) (emphasis added), as amended by, 433 F.3d 672 (9th Cir. 2006), 436 F.3d 1050 ("[T]o survive summary judgment on a constructive discharge claim, a plaintiff must show there are triable issues of fact as to whether a reasonable person in [his] position would have felt that [he] was forced to quit because of intolerable and discriminatory working conditions.") In fact, in Poland, one of the reasons the Ninth Circuit gave for reversing the district court's finding of constructive discharge was the fact that plaintiff "never testified that he felt compelled or forced to resign[.]" Poland, 494 F.3d at 1186. "Instead, [plaintiff] testified that he decided to take early retirement[.]" Id.
Likewise, that factual predicate is missing here. There is no evidence that either plaintiff resigned or was forced to quit. Rather, plaintiffs' employment ended when their annual contracts did, in May, 2004. When explaining the circumstances under which she left her employment with the High School, plaintiff Indermaur frankly explained that her "contract came to an end[.]" Doc. 23, exh. 2 thereto at 66. Even an extremely generous interpretation of the constructive discharge doctrine does not, as plaintiffs suggest, encompass a situation such as this where they were required to reapply for a job after the expiration of their annual contracts.
The Ninth Circuit recently stated, albeit in a slightly different context, that it "set[s] the bar high for a claim of constructive discharge[.]" Poland, 494 F.3d at 1184. The underlying rationale for that is that "federal antidiscrimination policies are better served within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable." Id. (footnote and citations omitted). In any event, returning to the applicable summary judgment standard, viewing the evidence in the light most favorable to plaintiffs, based on this record the court "cannot see how a reasonable trier of fact could find that [plaintiffs] w[ere] "driven from the workplace" so as to support a claim for constructive discharge. See Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). Thus, as with their disparate treatment claims, because plaintiffs did not meet their burden of proof, the court must deny their cross-motion for summary judgment as to this ADEA claim as well. On the other hand, defendants's summary judgment motion on this claim is granted.
V. Supplemental State Law Claims
After a discussion of the merits, almost as an afterthought the institutional defendants assert, without any support or argument, that they "are [not] jural entities capable of being sued." Mot. (Doc. 21) at 13 (citation omitted). There is no way to discern whether defendants are asserting Eleventh Amendment immunity, or whether they are making some other related argument. The court declines to speculate as to this nature of this argument which was not briefed at all.
For the reasons discussed above, defendants are entitled to summary judgment with respect to plaintiffs' federal law based causes of action. The court therefore declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims for defamation and for violation of A.R.S. § 38-531, Arizona's "Whistle blower" Act. See 28 U.S.C. § 1367(c)(3); see also Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (quoting Carnegie-Mellon Univ. V. Cohill, 484 U.S. 343, 350 n. 7 (1988)) ("The Supreme Court has stated and we have often repeated that `in the usual case in which all federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'")
Conclusion
For the reasons set forth herein, IT IS ORDERED that:
(1) defendants' motion for summary judgment (doc. 21) is GRANTED; and
(2) plaintiffs' cross-motion for summary judgment (docs. 24 and 25) is DENIED.
The Clerk of the Court is directed to enter judgment in favor of defendants Ms. Yvonne Watterson, Gateway Community High School, Gateway Community College, and the Maricopa County Community College District; and to terminate this action.