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Green v. Lew

United States District Court, D. Nevada

September 10, 2014

RONALD L. GREEN, Plaintiff,
JACOB J. LEW, Secretary, Department of Treasury, Defendant,


KENT J. DAWSON, District Judge.

Presently before the Court is Plaintiff Ronald L. Green's Motion for Summary Judgment (#11). Defendant Jacob J. Lew filed a response in opposition (#18) to which Plaintiff replied (#23). Also before the Court is Defendant's Motion for Summary Judgment (#19). Plaintiff filed a response in opposition (#24) to which Defendant replied (#31). Also before the Court is Plaintiff's Motion to Strike (#22). Defendant filed a response in opposition (#25) to which Plaintiff replied (#26). Finally before the Court is Defendant's Motion to Extend Time (#13). Plaintiff filed a response in opposition (#14) to which Defendant replied (#16).

I. Background

Plaintiff is an African-American male who suffers from Dysthymic Disorder. Plaintiff worked for the Internal Revenue Service ("IRS") in Las Vegas, Nevada, as a GS-11 Revenue Agent. While working for the IRS, Plaintiff applied for a GS-12 Anti-Money Laundering Examiner position on or about July 5, 2005. There were two vacancies available for the GS-12 Examiner position. Once all applications were received, a "Best Qualified" list was created for the vacancies. The applicants on the "Best Qualified" list were Caucasian, Hispanic, and African-American. There was no data on one applicant's race. Plaintiff was tied for second on the "Best Qualified" list. Michael Sells ("Sells"), a Caucasian male who was at the top of the "Best Qualified" list, was selected for one of the vacancies on or about October 31, 2005. The remaining vacancy was not filled. Plaintiff filed an Equal Employment Opportunity ("EEO") complaint on December 12, 2005 after he was not selected for the position.

However, Plaintiff was promoted to a different position under the supervision of Herm Moeller ("Moeller") on January 8, 2006. On January 10, 2006, while under Moeller's supervision, Plaintiff requested 478 hours of sick leave. Plaintiff's request for sick leave contained a letter from his physician. When Plaintiff filed the request for sick leave, he was absent from work, so Moeller began to approve Plaintiff's absence on a day-to-day basis. Upon receiving the request, Moeller wrote Plaintiff and requested that he sign a Federal Occupational Health Authorization for Disclosure of Information ("FOH-32") release. Plaintiff did not sign the FOH-32 release or provide additional medical information at that time.

As a result, Moeller sent Plaintiff a Directive to Return to Duty and informed Plaintiff that, because he had not provided additional medical information, he must return to work or be charged absence without leave. In response, Plaintiff submitted the FOH-32 release. After receiving the form, Moeller asked Plaintiff to provide additional information to the FOH doctor. Moeller also informed Plaintiff that he would correct Plaintiff's time records to reflect Plaintiff's sick leave. Moeller then approved Plaintiff's sick leave on March 17, 2006.

While Moeller was processing Plaintiff's request, Moeller sent a management directive on February 2, 2006 ordering Plaintiff to cooperate with the IRS tax examiner who was conducting an audit of Plaintiff's tax returns. The directive also contained an instruction to consent to an extension of the statute of limitations ("Instruction to Consent"). Cindee Droge, the president of the local union chapter, responded to the directive on Plaintiff's behalf and asked Moeller to clarify or withdraw the directive. Moeller's supervisor answered Droge's questions and withdrew the Instruction to Consent on March 20, 2006.

Also during this time, Plaintiff received his annual performance appraisal on February 27, 2006, for the period of October 31, 2004 to October 31, 2005, from his previous supervisor Shirley Snider ("Snider"). In his self-evaluation, Plaintiff gave himself a perfect score. Snider, however, gave him the second-highest overall rating of "exceeds fully successful[.]" Plaintiff told Snider that he disagreed with his performance appraisal and wished to have it changed. Snider declined to change Plaintiff's score, but told Plaintiff that he could write a rebuttal. Snider instructed Plaintiff to talk to Moeller, his new supervisor, about writing a rebuttal. Snider directed Plaintiff to meet with Moeller instead of herself because Plaintiff had been recently promoted and Moeller had all of Plaintiff's documentation.

Also during this time, Snider informed Plaintiff that he may qualify for a temporary promotion for completing higher graded work. Snider asked Plaintiff to calculate the time he spent on higher graded work and submit his calculations to her. Snider forwarded Plaintiff's calculations to an IRS Labor Relations Specialist. Snider also calculated Plaintiff's time spent on higher graded work using Plaintiff's time sheets. According to Snider's calculations, Plaintiff did not qualify for the temporary promotion. As a result, Plaintiff did not receive the temporary promotion at that time. During Plaintiff's EEO proceedings, Defendant acknowledged that miscalculations may have occurred qualifying Plaintiff for the temporary 120-day promotion.

II. Standard for Summary Judgment

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment may be granted if the pleadings, depositions, affidavits, and other materials in the record show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Uncorroborated and self-serving testimony, without more, will not create a genuine issue of material fact. See Villiarimo v. Aloha Island Air Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Conclusory or speculative testimony is also insufficient to raise a genuine issue of fact. Anheuser Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995).

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Once that burden is met, the nonmoving party then has the burden of setting forth specific facts demonstrating that a genuine issue exists. See Matsushita, 475 U.S. at 587; FED. R. CIV. P. 56(e). If the nonmoving party fails to make a sufficient showing of an essential element for which it bears the burden of proof, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 322-23.

III. Analysis

Plaintiff filed his documents pro se. Therefore, the Court must construe Plaintiff's pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Additionally, the Court holds Plaintiff to less stringent standards than the formal pleadings drafted by lawyers. Id.

In the present case, there are four motions before the Court: (1) Plaintiff's motion for summary judgment; (2) Defendant's motion for summary judgment; (3) Defendant's motion for an extension of time; and (4) Plaintiff's motion to strike Defendant's combined response and motion for summary judgment.

A. Motions for Summary Judgment

Both Plaintiff's and Defendant's motions raise two issues. The first is whether Plaintiff has established a prima facie case for each of his claims. The second is whether Plaintiff has adduced evidence sufficient to establish that Defendant's legitimate reasons for his actions are merely a pretext for discrimination.

1. Plaintiff's Race Discrimination Claims

In his complaint, Plaintiff alleges that Defendant engaged in race discrimination when Plaintiff was not selected for the G-12 Examiner position. Plaintiff also alleges that Defendant engaged in race discrimination when Moeller processed Plaintiff's request for sick leave, Snider appraised Plaintiff's performance, and Plaintiff did not receive compensation for his higher-grade work. Both parties have moved for summary judgment in their favor on these claims.

a. Legal Standard

To establish a prima facie case of race discrimination in a non-selection, or failure to promote, claim, a plaintiff must show that (1) he belongs to a protected class, (2) he was qualified for the position to which he wished to be promoted, (3) he was denied a promotion to that position, and (4) the job went to someone outside the protected class. Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1094 (9th Cir. 2005).

The requirements to establish a prima facie case for other discrimination claims are: (1) the plaintiff belongs to a protected class; (2) the plaintiff was performing according to the employer's legitimate expectations; (3) the plaintiff suffered an adverse employment action; and (4) other employees with qualifications similar to the plaintiff's own were treated more favorably. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003).

An employer's action is an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity. Id. at 646. The standard is partly subjective, because it determines whether the action deterred the plaintiff, and partly objective, because it determines whether the action was reasonably likely to deter protected activity. Id . Another employee has similar qualifications to a plaintiff when he or she displays similar conduct or has a similar job. Id. at 641.

The threshold for establishing a prima facie case is minimal and does not rise to the level of a preponderance of the evidence. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). If the plaintiff's burden is met, the defendant must then show that he had a legitimate, nondiscriminatory reason for the adverse employment action. Coghlan, 413 F.3d at 1094.

Once the defendant has met his burden, the plaintiff must establish that the defendant's reasons are merely a pretext for discrimination. Id . The plaintiff may satisfy this burden by relying on direct or circumstantial evidence. Id. at 1094-1095. Direct evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer while circumstantial evidence requires an additional inferential step to demonstrate discrimination. Id. at 1095. Circumstantial evidence may be shown affirmatively through information that sufficiently shows bias, or negatively through information that shows that an employer's proffered explanation is unworthy of credence. Id . If a plaintiff seeks to establish pretext through circumstantial evidence, the evidence must be specific and substantial. Villiarimo, 281 F.3d at 1062.

b. Plaintiff's Non-selection for Promotion

Plaintiff brings a single claim against Defendant for his non-selection to the G-12 Examiner position. There were two vacancies for this particular G-12 Examiner position; the first was filled by Sells, a Caucasian male, while the second remained vacant. In light of Plaintiff's pro se status, the Court will consider both vacancies in its analysis of Plaintiff's non-selection claim. Therefore, the ...

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