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Abell v. United States Department of Interior

United States District Court, D. Idaho

September 30, 2019

LEANN ABELL, Plaintiff,


          Ronald E. Bush, Chief U.S. Magistrate Judge.

         Pending before the Court are (1) Defendant's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (Dkt. 32), and (2) Plaintiff's Motion to Strike Declarations Submitted in Reply (Dkt. 48). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


         Plaintiff LeAnn Abell is a 57-year-old botanist who works for the BLM's Coeur d'Alene District - she has worked for the BLM since 1988 and has been a full-time botanist for the Coeur d'Alene District since 1999. Through this action, Abell claims that she has been discriminated against, retaliated against, and subjected to a hostile work environment because of her age. See generally Am. Compl., ¶¶ 20-29 (Dkt. 8) (asserting lone cause of action as “Claim of Discrimination, Hostile Work Environment, and Retaliation Based on Age”). Through the at-issue Motion, Defendant argues that summary judgment is appropriate because “(1) nearly all of the purported acts or omissions upon which Abell bases her claims do not constitute adverse employment actions; (2) many of the purported adverse employment actions took place long before Abell contacted the Equal Employment Office and thus are not actionable; (3) there were legitimate, nondiscriminatory reasons for any counselling or discipline; (4) there is no causal link between Abell's age and the purported adverse employment actions; and (5) the purported harassment was not severe or pervasive.” Def.'s MSJ, pp. 1-2 (Dkt. 32).


         Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal purposes of summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is “not a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact “that may affect the outcome of the case.” Id. at 248.

         The evidence must be viewed in the light most favorable to the non-moving party, and the court must not make credibility findings. See id. at 255. Direct testimony of the non-movant must be believed, however implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the court is not required to adopt unreasonable inferences from circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to a material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the non-moving party's case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9thCir. 2000). This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. See Devereaux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her . . . affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324 (internal quotation marks omitted).

         However, the court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). Instead, the “party opposing summary judgment must direct [the court's] attention to specific triable facts.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9thCir. 2003).


         A. Age Discrimination Claim

         The Age Discrimination in Employment Act (“ADEA”) makes it “unlawful for an employer . . . to discharge any individual, ” or otherwise discriminate against an employee because of her age. 29 U.S.C. § 623(a). “To prove discrimination because of age, [Abell] must introduce evidence from which a reasonable jury could conclude, in light of common experience, that it was more likely than not that the employer's adverse action was motivated by consideration of [her] age.” Maxfield v. Brigham Young Univ.-Idaho, 27 F.Supp.3d 1077, 1086 (D. Idaho 2014) (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80 (1978)). “Age discrimination can be established through either direct or indirect evidence.” Mousaw v. Teton Outfitters, LLC, 2016 WL 5746344, at *4 (D. Idaho 2016) (citing Coghlan v. Am. Seafoods Co., LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)). However, simply proving age “played a role” in the adverse action is not enough to prevail; rather, “a plaintiff must prove that age was the ‘but-for' cause of the employer's adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (holding that mixed-motive theory applicable to Title VII claims is not available in ADEA claims).

         The Ninth Circuit utilizes the three-step McDonnell Douglas burden-shifting framework to analyze age discrimination cases. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Under this framework, the employee must first establish a prima facie case of age discrimination; once the employee has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action; if the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination. See Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

         A plaintiff can establish a prima facie age discrimination case based on circumstantial evidence by showing the following: (1) that she is a member of a protected class; (2) that she was qualified for her position and performing her job satisfactorily; (3) that she experienced adverse employment action; and (4) that similarly situated individuals outside of the protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (citing Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). “The requisite degree of proof necessary to establish a prima facie case for . . . ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis, 26 F.3d at 889; see also Chuang v. Univ. of Cal Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (“As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment.”).

         The ADEA defines an adverse employment action as one that “materially affect[s] the compensation, terms, conditions, or privileges of . . . employment.” Chuang, 225 F.3d at 1126; see also 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.”). Abell initially alleges that she “suffered adverse employment actions because of her age, ” specifying “those actions” within her Amended Complaint as including:

• Being denied opportunities that would lead to promotion;
• Being denied training opportunities that would lead to pay raises and/or promotions;
• Being subjected to increased standards of performance that other younger workers are not subjected to;
• Being denied opportunities to relocate her position;
• Being denied opportunities to work a more favorable schedule; and
• Being disciplined without cause and because of her age.

Am. Compl., ¶ 20 (Dkt. 8); see also Id. at ¶¶ 21-23 (alleging that no explanation for claimed adverse actions exists, other than age discrimination; Abell's supervisors took no action on complaints about said discrimination; and younger employees were (and are) treated more favorably than Abell).

         Defendant disagrees, arguing that “Abell cannot recall being demoted, being denied any specific promotion, or losing any benefits within the past five years.” Mem. ISO MSJ, p. 14 (Dkt. 32-1) (citing Ex. B to Wucetich Decl. at 129:16-131:21 (Dkt. 32-26)). In turn, Defendant attempts to identify various “perceived slights” that, while possibly representing adverse employment actions in Abell's mind, actually do not.[2] See Id. at pp. 15-21. For instance, Defendant argues that:

• “The Letter Of Counsel Was Just A Written Warning”;
• “Abell Cannot Base Her Claim On A Purported Failure To Promote Because She Did Not Seek Out Any Promotions”;
• “The Purported Denial Of Training Requests Did Not Affect The Terms And Conditions Of Abell's Employment”;
• “The Denial Of Abell's Request To Be Transferred To A Supervisor In Another Field Office Was Not An Adverse Employment Action”;
• “The Purported Denial Of Abell's Request To Switch To A First-40 Work Schedule Is Not An Adverse Employment Action”;
• “Adding A Teamwork Criteria To The Entire Field Office's Performance Evaluations Was Not An Adverse ...

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