“[A] plaintiff who violates company policy and fails to improve his 8 performance despite a warning has not demonstrated satisfactory performance.” 9 (internal quotation marks omitted)
How later courts described this case
- “[A] plaintiff who violates company policy and fails to improve his 8 performance despite a warning has not demonstrated satisfactory performance.” 9 (internal quotation marks omitted)
- finding the plaintiff failed to establish she performed her job 11 satisfactorily where, despite written warnings, she continued to perform poorly
- proceeding with only necessary rulings on evidentiary objections
Written by the judges who cited it.
The opinion
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1111 MARGARET SKIPPS, as personal Case No. 2:19-CV-10557-ODW (AGRx)
representative for the estate of
1122 ALEXANDER REAGAN MA’ALONA, ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
1133 Plaintiff, JUDGMENT [21]
1144 v.
1155 Alejandro Mayorkas, Secretary, United
States Department of Homeland Security,
1166 in his official capacity1; et al.,
1177
Defendants.
1188
1199 I. INTRODUCTION
2200 On December 13, 2019, Plaintiff Margaret Skipps, acting as personal
2211 representative for the estate of Alexander Reagan Ma’alona, initiated this employment
2222 discrimination action against Defendant Alejandro Mayorkas, Secretary of the
2233 Department of Homeland Security. (Compl., ECF No. 1.) Plaintiff alleges that
2244 Ma’alona, who passed away in 2018, worked for the Transportation Security
2255 Administration (“TSA”) as a Transportation Security Officer from 2002 to 2012 and
2266 was improperly removed from federal service because of his race, color, and sex in
2277
1 Pursuant to Federal Rule of Civil Procedure 25(d), Alejandro Mayorkas, the current Secretary of
2288 the Department of Homeland Security, is automatically substituted as the proper defendant in this
action in place of Chad Wolf.
1 violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). (See generally id.)
2 Before the Court is Defendant’s Motion for Summary Judgment. (Mot. Summ. J.
3 (“MSJ”), ECF No. 21.) For the reasons discussed below, the Court GRANTS
4 Defendant’s Motion.2
5 II. BACKGROUND3
6 The following facts are undisputed. As a result of the September 11, 2001
7 terrorist attacks, Congress passed the Aviation and Transportation Security Act of
8 2001 (“ATSA”), which created the TSA. (Def.’s Statement of Uncontroverted Facts
9 (“DSUF”) 1, ECF No. 21-1.) The ATSA granted TSA broad authority to “assess
10 threats to transportation,” “enforce security-related regulations and requirements,” and
11 “oversee the implementation, and ensure the adequacy of security measures at
12 airports.” (DSUF 3.) Pursuant to the ATSA and TSA policy, all Transportation
13 Security Officers must pass an annual proficiency review to remain employed at the
14 TSA. (DSUF 4.)
15 In 2012, the time of Ma’alona’s removal, the TSA conducted the proficiency
16 review through an annual re-certification process called the Performance
17 Accountability and Standards System (“PASS”). (DSUF 5.) The 2012 PASS
18 assessments were conducted in several categories, including image mastery, standard
19 operating procedures, practical skills, and on-screen alarm resolution protocol mastery
20 (“OMA”). (DSUF 6.) Each assessment had a remediation and re-assessment process
21 designed to provide an employee who did not pass the assessment an additional
22
23
2 Having carefully considered the papers filed in connection with the Motion, the Court deemed the
24
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
25 3 The Court OVERRULES all boilerplate objections and improper argument in the parties’
Statement of Uncontroverted Facts and Statement of Genuine Issues. (See Scheduling and Case
26 Mgmt. Order 7–9, ECF No. 14.) Further, where the objected evidence is unnecessary to the
resolution of the Motion or supports facts not in dispute, the Court need not resolve those objections
27
here. To the extent the Court relies on objected-to evidence in this Order, those objections are
28 OVERRULED. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1122 (E.D. Cal.
2006) (proceeding with only necessary rulings on evidentiary objections).
1 opportunity to improve their performance. (DSUF 7.) Any employee that failed to
2 pass the assessment after three attempts was subject to removal. (DSUF 9.)
3 Ma’alona signed a form acknowledging he understood the PASS assessment
4 components and metrics. (DSUF 13.) On August 1, 2012, Ma’alona failed his first
5 assessment in the OMA category. (DSUF 14.) That same day, Ma’alona was notified
6 that he had up to fifteen calendar days to prepare for his second attempt to pass the
7 OMA assessment; he also received remediation training from an instructor.
8 (DSUF 15.) Ma’alona chose to retake the OMA assessment the following day and
9 failed a second time. (DSUF 18.) Again, Ma’alona was informed that he had up to
10 fifteen days to prepare for his third and final attempt to pass the assessment; he
11 received additional mediation training on August 7, 2012. (DSUF 19, 20.) Ma’alona
12 decided to take the OMA assessment on August 10, 2012, when he failed for a third
13 time. (DSUF 21.)
14 On August 28, 2012, Ma’alona submitted a letter to the TSA’s Assistant
15 Federal Security Director for Screening at Los Angeles International Airport, in which
16 he requested additional training and a fourth attempt to pass the OMA assessment.
17 (DSUF 24.) On October 1, 2012, Assistant Federal Security Director for Screening,
18 Jason Pantages issued a Notice of Proposed Non-Disciplinary Removal, for
19 Ma’alona’s failure to meet the annual proficiency review requirements. (DSUF 26.)
20 Pursuant to the Notice, Ma’alona submitted a written and an oral response, again
21 requesting a fourth opportunity to take the OMA assessment. (DSUF 27.) After
22 reviewing Ma’alona’s file, oral and written responses, the Acting Deputy Assistant
23 Federal Security Director, Geoff Shearer, determined Ma’alona’s assessments were
24 administered properly, on the dates of Ma’alona’s choosing, and the remediation
25 provided met the requirements of the 2012 PASS guidance. (DSUF 29.) On
26 December 4, 2012, Shearer issued a Notice of Decision on Proposed Non-Disciplinary
27 Removal, which upheld Pantages’s recommendation to remove Ma’alona from federal
28 service. (DSUF 31.)
1 On December 13, 2019, Plaintiff initiated this employment discrimination
2 action on behalf of Ma’alona, who was a male Asian/Pacific Islander with dark brown
3 skin, alleging disparate treatment on the basis of race, color, and sex (Counts I–III).
4 (Compl. ¶¶ 12, 53–91.) Presently before the Court is Defendant’s Motion for
5 Summary Judgment on all counts.
6 III. LEGAL STANDARD
7 A court “shall grant summary judgment if the movant shows that there is no
8 genuine dispute as to any material fact and the movant is entitled to judgment as a
9 matter of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable
10 inferences in the light most favorable to the nonmoving party. Scott v. Harris,
11 550 U.S. 372, 378 (2007). A disputed fact is “material” where the resolution of that
12 fact might affect the outcome of the suit under the governing law, and the dispute is
13 “genuine” where “the evidence is such that a reasonable jury could return a verdict for
14 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
15 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues
16 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d
17 730, 738 (9th Cir. 1979). Moreover, though the Court may not weigh conflicting
18 evidence or make credibility determinations, there must be more than a mere scintilla
19 of contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc.,
20 198 F.3d 1130, 1134 (9th Cir. 2000).
21 Once the moving party satisfies its burden, the nonmoving party cannot simply
22 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a
23 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett,
24 477 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
25 475 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan
26 Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated
27 allegations and “self-serving testimony” create a genuine issue of material fact.
28 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). The court
1 should grant summary judgment against a party who fails to demonstrate facts
2 sufficient to establish an element essential to his case when that party will ultimately
3 bear the burden of proof at trial. See Celotex, 477 U.S. at 322.
4 Pursuant to the Local Rules, parties moving for summary judgment must file a
5 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that sets out
6 “the material facts as to which the moving party contends there is no genuine dispute.”
7 C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of Genuine
8 Disputes” setting forth all material facts as to which it contends there exists a genuine
9 dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that material facts as claimed
10 and adequately supported by the moving party are admitted to exist without
11 controversy except to the extent that such material facts are (a) included in the
12 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written
13 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3.
14 IV. DISCUSSION
15 Defendant argues Plaintiff cannot establish a prima facie case of disparate
16 treatment under Title VII because Ma’alona did not perform his duties to the TSA’s
17 legitimate expectations for Transportation Security Officers. (MSJ 7–9.) The Court
18 agrees.
19 Title VII prohibits employers from discriminating against any individual on the
20 basis of race, color, religion, sex, or national origin. Weil v. Citizens Telecom Servs.
21 Co., 922 F.3d 993, 1002 (9th Cir. 2019); 42 U.S.C. § 2000e-2(a)(1). To establish a
22 prima facie case of disparate-treatment discrimination, the plaintiff must show that:
23 (1) he belongs to a protected class; (2) he was performing according to his employer’s
24 legitimate expectations; (3) he suffered an adverse employment action; and
25 (4) similarly situated individuals outside of the plaintiff’s protected class were treated
26 more favorably. Gowdin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998).
27 Plaintiff fails to raise a triable issue of material fact as to the second element,
28 which requires evidence Ma’alona was performing to the TSA’s legitimate
1 expectations. Here, all Transportation Security Officers were required to pass the
2 annual proficiency review to remain employed at the TSA. It is undisputed that
3 Ma’alona failed to attain a qualifying score on his OMA assessment after three
4 attempts. (DSUF 14, 18, 21; Opp’n 7, ECF No. 22.) In light of the critical nature of
5 the TSA’s role in securing the safety of the traveling public, this was not a “minor”
6 performance issue. See, e.g., Diaz v. Eagle Produce Ltd., 521 F.3d 1201, 1208
7 (9th Cir. 2008) (“[A] plaintiff who violates company policy and fails to improve his
8 performance despite a warning has not demonstrated satisfactory performance.”
9 (internal quotation marks omitted)); Swan v. Bank of Am., 360 F. App’x, 903, 905
10 (9th Cir. 2009) (finding the plaintiff failed to establish she performed her job
11 satisfactorily where, despite written warnings, she continued to perform poorly).
12 Therefore, the Court finds that no reasonable jury could conclude Ma’alona was
13 performing to the TSA’s legitimate expectations.
14 Nevertheless, Plaintiff attempts to raise a genuine dispute as to whether
15 Ma’alona was performing to the TSA’s legitimate expectations by highlighting
16 Ma’alona’s qualifying scores on annual proficiency tests taken prior to the 2012 PASS
17 assessment, and performance reviews from prior years. (Opp’n 8–9.) But Plaintiff
18 misses the point. There is no dispute that in 2012, Ma’alona failed to pass the annual
19 proficiency review after three attempts in contravention of the ATSA and TSA policy.
20 Even if Ma’alona performed well in the years leading up to 2012, that does not change
21 Ma’alona’s failure to perform according to TSA’s legitimate expectations at the time
22 he was removed from federal service. Therefore, Plaintiff fails to establish a prima
23 facie case of disparate treatment.
24 Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment.
25 ///
26 ///
27 ///
28 ///
1 Vv. CONCLUSION
2 For the foregoing reasons, the Court GRANTS Defendant’s Motion. (ECF
3 || No. 21.) The Court will issue judgment.
4 IT IS SO ORDERED.
5
6 August 27, 2021 2
g OTIS D. GHT, II
9 UNITED STATES DISTRICT JUDGE
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