Lane v. Wilkie

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9 UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA

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ANDRE LANE, Case No. 3:19-cv-1918-LAB-MSB

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Plaintiff,

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vs. ORDER GRANTING IN PART AND

14 DENYING IN PART MOTION FOR

15 ROBERT WILKIE, Secretary, SUMMARY JUDGMENT [Dkt. 24]

Department of Veterans Affairs,

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Defendant.

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18 Andre Lane, a secretary working for the Department of Veterans’ Affairs

19 (the “VA”), suffers from post-traumatic stress disorder, anxiety, and depression.

20 Because these conditions were interfering with his job performance, he asked

21 the VA for several accommodations. Over a nineteen-month dialogue, the VA

22 granted some of his requests, but it didn’t give him everything he wanted. Lane

23 filed an Equal Employment Opportunity complaint, and three months later, he

24 received a negative performance review citing longstanding performance

25 issues that hadn’t warranted a negative review before.

26 Lane alleges that the VA’s denial of his requests for accommodation was

27 discriminatory, and that his negative performance review was retaliatory. He

1 to engage in the interactive accommodation process.

2 Because there are genuine disputes over whether Lane’s negative

3 review was retaliatory and whether the VA discriminated against Lane in failing

4 to accommodate his request for a flexible start time, the Court denies the VA’s

5 Motion for Summary Judgment as to those claims. But Lane hasn’t offered

6 evidence to support any other bases for his discrimination and failure to

7 accommodate claims, nor has he identified a genuine factual dispute over the

8 existence of a hostile work environment, so the Court grants the Motion as to

9 those claims. And because federal law doesn’t provide a standalone claim for

10 failure to engage in the accommodation process, the VA is entitled to judgment

11 as a matter of law on that claim, too.

12 Background

13 Beginning in December 2004, Andre Lane worked at the VA Medical

14 Center in San Diego as a Secretary in the Radiology Department. After

15 experiencing conflict with his supervisor, Charlene Godbold, Lane filed a union

16 grievance against her and requested a transfer to a new supervisor. He

17 received that transfer in February 2017, when he began working under Tricia

18 Schabbehar, who moved him to a new office closer to hers.

19 The next month, he requested accommodation for his disability due to

20 post-traumatic stress disorder, anxiety, and depression. Lane’s briefing

21 discusses three potential accommodations. First, Schabbehar had moved

22 Lane to an office closer to her; Lane asked to be moved back to his former

23 private office. Second, he asked for a flexible start time between 8:00 and

24 10:00 a.m. each day. And third, at some point after Schabbehar became his

25 supervisor, Lane told her that he was interested in transferring to a different

26 department.

27 Over months of written and in-person discussions, the VA offered Lane

1 different private office. Lane declined that office—according to his medical

2 provider, its proximity to Godbold’s office exacerbated his symptoms. There’s

3 no indication that the discussions included Lane’s interest in transfer, but he

4 remained in the Radiology Department throughout. Lane then brought his

5 concerns to an Equal Employment Opportunity Counselor and filed an EEO

6 Complaint in June 2018.

7 That September, Lane sat down with Schabbehar for a performance

8 review. Although Lane had long struggled to fulfill his timekeeping duties, he

9 had received a rating of at least “Fully Successful” for several years prior. But

10 this time, Schabbehar rated Lane “Needs improvement to be Fully Successful,”

11 relying primarily on the same timekeeping issues. The next month, Lane again

12 requested accommodations—some requests were new, but others were

13 functionally identical to his earlier requests. When the VA denied the October

14 2018 requests, Lane took a month of leave, returned briefly, and then resigned

15 on November 25, 2018. He brought this action against the VA Secretary, a

16 position then held by Robert Wilkie and now held by Denis McDonough. The

17 VA now moves for summary judgment on all of Lane’s claims.

18 Standard

19 “The court shall grant summary judgment if the movant shows that there

20 is no genuine dispute as to any material fact and the movant is entitled to

21 judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court views the

22 evidence in the light most favorable to Lane, but “bald assertions or a mere

23 scintilla of evidence in his favor are both insufficient to withstand summary

24 judgment.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). The moving

25 party can meet its burden by merely “pointing out to the district court [ ] that

26 there is an absence of evidence to support the nonmoving party’s case.”

27 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Fed. R. Civ.

1 disputed by “citing to particular parts of materials in the record . . .; or . . .

2 showing that the materials cited do not establish the absence . . . of a genuine

3 dispute.” Fed. R. Civ. P. 56(c)(1), (2).

4 Analysis

5 I. The Rehabilitation Act Doesn’t Create a Claim for Failure to

6 Engage in the Interactive Process

7 Lane’s Complaint seeks to impose liability for failure to engage in the

8 Rehabilitation Act’s required interactive process. 29 U.S.C. § 794. But such a

9 failure, if proven, wouldn’t support a standalone claim.1 Instead, it would shift

10 the summary judgment burden on Lane’s claim for failure to accommodate: the

11 VA would need to prove the unavailability of a reasonable accommodation.

12 See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (employer failing

13 to engage in interactive process in Rehabilitation Act case “may incur liability if

14 a reasonable accommodation would have been possible”) (cleaned up); Snapp

15 v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (failure to

16 engage in interactive process under ADA shifts summary judgment burden).

17 Lane relies on Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128

18 (9th Cir. 2001), to argue otherwise, but that case doesn’t support his position.

19 There, the Ninth Circuit held that a failure to engage in the interactive process

20 made “liability . . . appropriate if a reasonable accommodation without undue

21 hardship to the employer would otherwise have been possible.” Id. at 1139

22 (emphasis added). In other words, a failure to engage isn’t enough to establish

23 liability on its own.

24 Because failure to engage in the interactive process isn’t a claim upon

25 which relief can be granted, the VA is entitled to judgment as a matter of law

26 and the Motion is GRANTED as to that claim.

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1 As discussed below, Lane hasn’t pointed to anything in the record to support

1 II. Hostile Work Environment

2 The VA is entitled to judgment as a matter of law on Lane’s hostile work

3 environment claim. To prevail on his claim, Lane must show: “(1) that he was

4 subjected to verbal or physical conduct of a . . . nature [directed to the protected

5 characteristic]; (2) that the conduct was unwelcome; and (3) that the conduct

6 was sufficiently severe or pervasive to alter the conditions of the [his]

7 employment and create an abusive work environment.” Vasquez v. Cty. of Los

8 Angeles, 349 F.3d 634, 642 (9th Cir. 2003). Hostile attitudes or general incivility

9 aren’t enough. The “verbal or physical conduct” that would support such a claim

10 must make the workplace environment “objectively and subjectively offensive.”

11 Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (emphasis added),

12 citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–22 (1993).

13 Lane argues that the conduct need not be verbal or physical—retaliatory

14 conduct can establish a hostile work environment, too. But he relies on Ray v.

15 Henderson, 217 F.3d 1234 (9th Cir. 2000), which doesn’t support that

16 argument. In Ray, the Ninth Circuit held that a retaliation claim could be

17 supported with evidence of a hostile work environment. Id. at 1245. Lane reads

18 Ray backwards, trying to support his hostile work environment claim with

19 evidence of retaliation. Ray isn’t relevant to Lane’s hostile work environment

20 claim.

21 Only verbal or physical conduct will do, then. The only evidence he

22 identifies of such conduct is another employee’s testimony that Schabbehar

23 “shame[d]” or “ridicule[d]” Lane. But there’s no indication that the shaming or

24 ridicule were related in any way to Lane’s disability, and thus “offensive.”

25 Faragher, 524 U.S. at 787. Nor is there evidence that Schabbehar’s shaming

26 and ridicule were severe or pervasive enough to create an abusive work

27 environment. (See Menogue Dep. Tr., Dkt. 26-1 Ex. C at 39:1–40:12.)

1 The other conduct Lane relies on is a series of management decisions,

2 such as the refusal to return Lane to his former office. (See Dkt. 26 at 9.) These

3 actions may have made his work unpleasant and inconvenient, but they aren’t

4 the verbal or physical conduct necessary to support a legal claim for hostile

5 work environment. See Vasquez, 349 F.3d at 642.

6 With no evident verbal or physical conduct going beyond “the ordinary

7 tribulations of the workplace,” id., Lane hasn’t established a genuine material

8 dispute on his hostile work environment claim. The Motion is GRANTED as to

9 that claim.

10 III. Discrimination and Failure to Accommodate2

11 Lane fails to establish a genuine question of fact as to most, but not all,

12 bases for his discrimination claim. A discrimination claim under the

13 Rehabilitation Act requires the plaintiff to prove that he has a disability, is

14 otherwise qualified for employment, and suffered an adverse action because

15 of his disability. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080,

16 1087 (9th Cir. 2001) (elements of discrimination under Americans with

17 Disabilities Act); see also 29 U.S.C. § 794.

18 There’s no dispute over Lane’s disability or his qualification for

19 employment. The parties dispute instead the adverse action prong, which Lane

20 seeks to satisfy with the VA’s purported failure to accommodate his disability.

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22 2 Lane’s Complaint asserts separate claims for discrimination and failure to

accommodate, both under the Rehabilitation Act. That statute doesn’t

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expressly proscribe the failure to accommodate an employee’s disability, but

24 such a failure can be discrimination that the Rehabilitation Act prohibits. See

Zukle v. Regents of the Univ. of Calif., 166 F.3d 1041, 1045–46 (9th Cir. 1999).

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Because Lane relies on the failure to accommodate and his constructive

26 termination theory (which the Court rejects in this Order) to support his

discrimination claim and because he conflates the discrimination and failure to

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accommodate claims in his briefing, the Court treats the Complaint’s

1 An employer subject to the Rehabilitation Act must make reasonable

2 accommodations that would enable its qualified employee to perform the

3 essential functions of the position. See 28 C.F.R. § 35.130(b)(7) (2016);

4 Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002).

5 Lane first bears the burden of “show[ing] that an accommodation seems

6 reasonable on its face, i.e., ordinarily or in the run of cases.” Dark v. Curry

7 County, 451 F.3d 1078, 1088 (9th Cir. 2006) (cleaned up, emphasis in original),

8 quoting U.S. Airways v. Barnett, 535 U.S. 391, 401–02 (2002). He must do

9 more than identifying the accommodation—a plaintiff must show that,

10 “ordinarily or in the run of cases,” such an accommodation would “impose[] no

11 fundamental alteration in the nature of the program or undue financial or

12 administrative burdens.” Giebeler v. M & B Associates, 343 F.3d 1143, 1157

13 (9th Cir. 2003). If Lane succeeds, the burden shifts to the VA to produce

14 evidence that the requested accommodation wasn’t reasonable. Dark, 451

15 F.3d at 1088. But as discussed above, failure to engage in the process shifts

16 the burden on summary judgment to the employer to prove the unavailability

17 of a reasonable accommodation. See Snapp, 889 F.3d at 1095.

18 A. The VA Participated in the Interactive Process

19 Lane doesn’t establish that the VA failed to participate in the interactive

20 process. At a November 2017 meeting between the VA, Lane, and his counsel

21 “and at all subsequent meetings,” Lane asserts, the VA told him that “the only

22 purpose of the meeting was [for Lane to offer his] suggestions for

23 accommodation” and didn’t “offer[] any input into the accommodation process.”

24 (Lane Decl., Dkt. 26-3 at ¶¶ 10–11.) But those meetings aren’t the entirety of

25 the VA’s participation in the process. The VA’s written communications provide

26 alternatives to Lane’s denied requests, seek more information as needed, and

27 follow up on the VA’s information requests that didn’t receive a response. (See,

1 VA’s participation in the interactive process won’t permit the Court to shift the

2 summary judgment burden to the VA.

3 B. Lane Establishes a Genuine Fact Issue as to One Accommodation

4 Lane points to three denied accommodations: 1) a flexible start time; 2)

5 transfer to a different position; and 3) return to Lane’s old private office. (Dkt.

6 26 at 7–8.)3 But he only establishes genuine disputes of fact as to the first.

7 1. Flexible Start Time

8 Lane sought to move his start time from 7:30 each morning to a flexible

9 start time between 8:00 and 10:00 a.m. (See Compl., Dkt. 1, ¶ 19; Dkt. 24-2 at

10 MSJ-329.) Adoption of a flexible work schedule is ordinarily reasonable, see,

11 e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 503–06 (3d Cir. 2010), so Lane

12 meets his burden of showing facial reasonableness.

13 The VA must then demonstrate that the request wasn’t reasonable. It

14 refused to fully grant Lane’s request—offering only to push his start time back

15 to 7:45 a.m—because “[e]ssential functions of timekeeping must be completed

16 daily by . . . 10:00 a.m. on various days,” and because Lane’s position involved

17 supporting other employees, who would need to know before 10:00 a.m.

18 whether they would have secretarial support. (Dkt. 24-2 at MSJ-329; Dkt. 24-8

19 ¶ 14; Schabbehar Decl., Dkt. 24-3 at ¶ 40.) The first justification is limited to

20 “various days,” so it can’t explain why the requested accommodation wouldn’t

21 be reasonable on other days. And the second doesn’t explain why Lane

22 couldn’t let his co-workers know whether and when he would come in with an

23 email or a phone call. The VA hasn’t shown that Lane’s request for a flexible

24 schedule was unreasonable, so the Motion is DENIED as to Lane’s

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26 3 Lane refers to these as “examples,” but the Court doesn’t have to guess at

which other requests Lane may rely on to establish genuine questions of

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material fact. See Fed. R. Civ. P. 56(c) (parties must “cit[e] to particular parts

1 discrimination claim for failure to reasonably accommodate that request.

2 2. Transfer to Another Department

3 Lane also informed Schabbehar that he was interested in transferring to

4 another department. (See Dkt. 26-1 Ex. B at 12:2–8.) But there’s no evidence

5 that this request (if it was a request at all) was intended to accommodate his

6 disability, (id. at 12:12–17; Dkt. 26 at 7), and Lane doesn’t offer any support for

7 the facial reasonableness of transfer. (See id.); Hamilton v. GlaxoSmithKline,

8 LLC, 414 F. Supp. 3d 1286, 1295 (D. Mont. 2019) (requesting transfer to a

9 different supervisor not “reasonable on its face”); see also Dark, 451 F.3d at

10 1089 (plaintiff established reasonableness of transfer request by identifying

11 open or soon-to-be-open positions). The Motion is GRANTED as to the claim

12 for failure to accommodate Lane’s request for transfer to another department.

13 3. Lane’s Prior Office

14 Lane next argues that the VA should have accommodated him by

15 returning him to the private office he worked in before Schabbehar became his

16 supervisor. (Dkt. 26 at 8.) He doesn’t provide any authority to suggest that

17 provision of a specific office is reasonable in the run of cases. (See id.) And

18 while his past use of that office may qualify as a “special circumstance[]

19 warrant[ing] a finding” of reasonableness, Barnett, 535 U.S. at 405,

20 circumstances had made Lane’s continued use of that particular office unduly

21 burdensome: not only was that office no longer available, but it was too far

22 away for Lane’s new supervisor, Schabbehar, to supervise him effectively.

23 (Dkt. 24-3 ¶¶ 16–20.) The Motion is GRANTED as to the claim for failure to

24 accommodate this request.

25 4. Other Requests

26 Lane hasn’t met his burden to show that any other request for

27 accommodation was reasonable on its face—he doesn’t identify any factual

1 Motion is GRANTED as to Lane’s discrimination claim for any other requested

2 accommodation.

3 IV. Constructive Discharge

4 The parties clash over whether Lane establishes genuine factual

5 disputes for his constructive discharge “claim.” (See Dkt. 26 at 10; Dkt. 28 at

6 9–10.) But the Complaint doesn’t include a claim for constructive discharge.

7 (See Dkt. 1.) Nevertheless, a constructive discharge can serve as an adverse

8 employment decision supporting a claim for discrimination. See Jordan v.

9 Clark, 847 F.2d 1368, 1377 (9th Cir. 1988). Constructive discharge occurs

10 when, “looking at the totality of the circumstances, a reasonable person in the

11 employee’s position would have felt that he was forced to quit because of

12 intolerable and discriminatory working conditions.” Wallace v. City of San

13 Diego, 479 F.3d 616, 626 (9th Cir. 2007). Both a hostile work environment and

14 adverse employment decisions can support a constructive discharge theory.

15 See Penn. State Police v. Suders, 542 U.S. 129, 140–41 (2004).

16 While constructive discharge is “normally a factual question left to the

17 trier of fact,” Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987),

18 courts may resolve it as a matter of law where the plaintiff fails to present facts

19 showing that the situation is “sufficiently extraordinary and egregious to

20 overcome the normal motivation of a competent, diligent, and reasonable

21 employee to remain on the job.” Poland, 494 F.3d at 1186; “An employee who

22 quits without giving his employer a reasonable chance to work out a problem

23 has not been constructively discharged.” Id. at 1185, quoting Tidwell v. Meyer’s

24 Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996).

25 As a matter of law, Lane fails to present facts sufficient to support his

26 constructive discharge claim. Lane fails to establish the existence of a hostile

27 work environment. See supra, Section II. But he can also establish constructive

1 “working conditions so intolerable that a reasonable person in the employee’s

2 position would have felt compelled to resign[.]” Poland v. Chertoff, 494 F.3d

3 1174, 1186 (9th Cir. 2007). He relies on several actions that purportedly

4 created a hostile environment: his negative performance review; the purported

5 failure to engage in the accommodation process; the “failure to provide him

6 with effective accommodations;” Schabbehar’s “spiteful handling of [his]

7 accommodation requests and use of his old office;” and her “ridiculing him in

8 front of others.” (Dkt. 26 at 10.) Taken together, though, Lane hasn’t provided

9 sufficient evidence of extraordinary or egregious conditions that would compel

10 a reasonable employee to resign.

11 As discussed above, the VA did engage in the accommodation process,

12 so its purported failure in that regard can’t support Lane’s constructive

13 discharge theory. And Lane doesn’t identify any facts suggesting that

14 Schabbehar’s handling of his accommodation requests was “spiteful” or

15 amounted to “harass[ment].” (See id.)

16 That leaves only the performance review, Schabbehar’s asserted

17 “riducul[e],” and the denial of Lane’s accommodation requests. But Lane fails

18 to present evidence that these were “sufficiently extraordinary and egregious

19 to overcome the normal motivation of a competent, diligent, and reasonable

20 employee to remain on the job.” Poland, 494 F.3d at 1186.

21 A negative performance review isn’t extraordinary. Lane doesn’t offer any

22 competent evidence for his assertion that his review was a precursor to

23 termination, but even so, the expectation of eventual termination wouldn’t

24 create working conditions so intolerable that a reasonable person would feel

25 compelled to resign.

26 Schabbehar’s behavior towards Lane didn’t compel his resignation,

27 either. “[C]om[ing] after” people, sending “very stern e-mails that make [them]

1 in front of [their] peers” may be poor treatment and poor management. But

2 without more, the Court can’t conclude that Schabbehar’s conduct was out of

3 the ordinary, much less so egregious that a reasonable employee would resign.

4 (See Dkt. 26-1 Ex. C at 37:15–40:17).

5 The VA’s denial of Lane’s accommodation requests, too, is neither

6 extraordinary nor egregious. The VA: 1) placed Lane in a semi-private office

7 after offering an available private office; 2) didn’t transfer him to a different

8 department after he expressed interest in a transfer but didn’t apparently

9 connect that interest to his disability; and 3) refused to allow a flexible work

10 schedule. Even if the rigid work schedule may support a discrimination claim,

11 none of these three actions are so extreme that a reasonable person in Lane’s

12 position would feel compelled to quit.

13 The circumstances Lane identifies, individually or taken as a whole,

14 aren’t so extraordinary or egregious that they amount to constructive

15 discharge. Lane can’t rely on that theory to support any of his claims.

16 V. Retaliation

17 Lane’s claim for retaliation relies on one adverse action: the VA’s

18 assessment of Lane’s work as “[n]eed[ing] improvement to be Fully Successful”

19 in September 2018. (Dkt. 26 at 4–6.)4 And while there’s evidence that Lane’s

20 performance did need improvement to meet the VA’s standards, Lane provides

21 just enough evidence of pretext to avoid summary judgment on that claim.

22 Retaliation claims are subject to a three-stage burden-shifting test under

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24 4 As he did with his discrimination claim, Lane argues that this action is just one

among several that could support his claim. But again, the Court won’t guess

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at which actions Lane believes are retaliatory or the facts that he believes

26 support that conclusion. As to any action not specifically identified in

connection with this claim, Lane doesn’t “cit[e] to particular parts of materials

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in the record” or “show[] that the materials [the VA] cite[s] do not establish the

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). A plaintiff

2 must first demonstrate a prima facie case of retaliation: the plaintiff engaged in

3 a protected activity; he was subjected to an adverse employment decision; and

4 there was some causal link between the two. Folkerson v. Circus Circus

5 Enters., 107 F.3d 754, 755 (9th Cir. 1997). The burden then shifts to the

6 defendant to show a non-retaliatory reason for the adverse action it took. Id.

7 The plaintiff must then present “specific and substantial” evidence that the

8 defendant’s non-retaliatory reason is pretextual. Stegall v. Citadel

9 Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). Even evidence of

10 pretext that “appears weak” “[i]n the face of strong evidence . . . showing

11 legitimate reasons for [the defendant’s] actions” is enough to avoid summary

12 judgment. Yartzoff v. Thomas, 809 F.2d 1371, 1377–78 (9th Cir. 1987).

13 A. Lane Presents a Prima Facie Retaliation Case

14 Lane establishes each element of a prima facie case. The first is that he

15 engaged in protected activity. There’s no dispute that Lane’s engagement in

16 the Equal Employment Opportunity process from March 2017 forward—

17 including his requests for accommodation in that month, the meetings between

18 Schabbehar, Hines, Lane, and Lane’s counsel beginning in March 2018, and

19 his June 19 EEO Complaint—was protected.

20 There’s evidence of the second element, an adverse action, too.

21 Undeservedly negative performance reviews can be adverse employment

22 decisions supporting a claim for retaliation. Yartzoff, 809 F.2d at 1375. And at

23 this stage of the analysis, Lane doesn’t have to prove that those reviews were

24 “undeserved.” See id. at 1376 (finding that plaintiff “clearly met” burden to prove

25 prima facie case based on “issuance of a subaverage performance rating”

26 without analyzing whether the rating was deserved). It doesn’t matter whether

27 the performance review would lead inexorably to Lane’s termination. The

1 employment.” See Chuang v. Univ. of California Davis, Bd. of Trustees,

2 225 F.3d 1115, 1126 (9th Cir. 2000). And while a written warning or a

3 performance improvement plan might not meet this standard, a performance

4 review does. Compare Sanchez v. California, 90 F. Supp. 3d 1036, 1056 (E.D.

5 Cal. 2015) (warnings and performance improvement plans) with Brooks v. City

6 of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (“[I]ssuance of an undeserved

7 negative performance review” can constitute an adverse employment

8 decisions).

9 The VA tries to avoid this rule by insisting that Lane’s progress review

10 wasn’t a performance evaluation at all, but “simply a mid-year guidepost . . .

11 not the final annual rating.” (Dkt. 28 at 4.) But the document was issued twelve

12 days before the end of a year-long appraisal period, not at “mid-year,” and with

13 no time to turn things around before any “final annual rating.” (Id.; Dkt. 24-1 at

14 MSJ-150, 152.) Lane’s evidence of a negative performance review satisfies the

15 adverse action element of his retaliation claim.

16 The bar for demonstrating the third element, a causal link, isn’t high.

17 Where an administrative complaint is involved, it’s enough to show “the

18 employer’s knowledge that the plaintiff engaged in protected activities and the

19 proximity in time between the protected action and the allegedly retaliatory

20 employment decision.” Yartzoff v. Thomas, 809 F.2d at 1376. When

21 Schabbehar issues the negative performance review, she was aware, at a

22 minimum, of the recent accommodation requests she received and her recent

23 meetings with Lane’s counsel. (See Dkt. 24-8 ¶¶ 5–7, 12.) This temporal

24 proximity is enough to establish prima facie causation.

25 B. The VA Provides a Non-Retaliatory Explanation

26 With Lane presenting a prima facie case of retaliation, the VA must

27 demonstrate a non-retaliatory reason for the negative performance review. It

1 Schabbehar—identified areas that needed improvement, (Dkt. 24-1 at

2 MSJ-147), but Lane didn’t improve. For example, to be considered “Fully

3 Successful” or better in the “Administrative Support” category, Lane needed to

4 have fewer than three erroneous or untimely timecard entries over the course

5 of 2018. (Id. at MSJ-150.) Schabbehar’s emails to Lane indicate that he had

6 dozens. (Id. at MSJ-132–38, 337–39.) Under the standards the VA provided to

7 Lane, that level of performance is below the level warranting a “Fully

8 Successful” or “Exceptional” rating. In other words, he “[n]eed[ed] improvement

9 to be Fully Successful or better” under the stated performance standards, a

10 non-retaliatory reason for giving Lane that rating.

11 C. Lane Identifies Sufficient Evidence of Pretext to Avoid Summary

12 Judgment

13 Lane must then point to specific evidence that this explanation is

14 pretextual. Even evidence that “appears weak” “[i]n the face of strong evidence

15 . . . showing legitimate reasons for [the VA’s] actions” is enough to establish a

16 genuine dispute over pretext. Yartzoff, 809 F.2d at 1377.5

17 He meets this burden. The VA didn’t always apply its standards

18 according to their terms. Lane’s timekeeping issues weren’t new—only his poor

19 performance rating was. (See Godbold Decl. ¶ 6 (Lane’s prior supervisor

20 “regularly observed and/or received complaints . . . regarding [Lane’s]

21 substantive [timekeeping] errors”); Dkt. 26-1, Ex. B at 20 (Lane was rated “Fully

22 Successful” for several years prior).) The change in Lane’s rating without any

23 apparent change in performance clears the low bar for avoiding summary

24 judgment, so the Motion is DENIED as to Lane’s claim for retaliation.

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5 In Yartzoff, the evidence was so weak that the court took note of the “many

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incidia of spuriousness” in the plaintiff’s claims and cautioned that “he may well

1 CONCLUSION

2 The bar for avoiding summary judgment is low, but Lane clears it for only

3 two of his claims. The VA’s Motion for Summary Judgment is GRANTED as to

4 Lane’s claims for hostile work environment and failure to engage in the

5 interactive process. The Motion is GRANTED as to all bases for the

6 discrimination claim based on failure to accommodate except the VA’s failure

7 to provide a flexible start time. It’s DENIED as to the discrimination claim based

8 on that theory. And it’s DENIED as to Lane’s claim for retaliation.

9 IT IS SO ORDERED.

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Dated: July 30, 2021

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12 HON. LARRY ALAN BURNS

United States District Judge

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