Bruce v. Becerra

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 BRANDON SINCLAIR BRUCE, Case No.: 3:22-cv-00115-JES-JLB

12 Plaintiff, ORDER DENYING PLAINTIFF’S

MOTION FOR SUMMARY

13 v.

JUDGMENT AND GRANTING

14 XAVIER BECERRA, acting in his DEFENDANT’S MOTION FOR

official capacity as the Secretary of the SUMMARY JUDGMENT

15

Department of Health and Human

16 Services, [ECF Nos. 31, 44]

17 Defendant.

18

19 Plaintiff Brandon Sinclair Bruce (“Plaintiff”) brings claims of employment

20 discrimination and retaliation against the Secretary of the U.S. Department of Health and

21 Human Services (“Defendant”). Before the Court are competing Motions for Summary

22 Judgment, which are fully briefed. ECF Nos. 31, 44. After considering the arguments,

23 briefs, and caselaw, the Court DENIES Plaintiff’s Motion for Summary Judgment and

24 GRANTS Defendant’s Motion for Summary Judgment.

25 I. BACKGROUND

26 Plaintiff commenced this action on January 28, 2022, raising disparate treatment

27 employment discrimination and retaliation claims. ECF No. 1 at 2. In his Complaint,

28 Plaintiff alleges that Defendant violated his rights under Title VII of the Civil Rights Act

1 of 1964 (“Title VII”) and the Rehabilitation Act of 1973 (“Rehabilitation Act” or “Rehab

2 Act”) when he was not selected on June 9, 2020 for a GS-14 position with Center for

3 Tobacco Products (“CTP”), which was one tier higher than his position at the GS-13

4 level. Id.; ECF Nos. 31 at 2, 44 at 1.

5 On March 11, 2020, Plaintiff applied for the GS-14 position. ECF No. 44 at 1.

6 Plaintiff was interviewed on April 10, 2020, by Michelle Jackson (“Jackson”), Elenita

7 Ibarra-Pratt (“Ibarra-Pratt”), and Steve Hilbert (“Hilbert”). Id. at 2; ECF No. 31 at 2. The

8 panel interviewed 14 applicants seeking to hire multiple people to be placed in different

9 CTP subdivisions. Id. Particularly, the panel expected to hire 1 to 2 people to work in the

10 Division of Business Operations (“DBO”), 1 to 2 people to work in the Division of

11 Promotion, Advertising, and Labeling (“DPAL”), and 1 person to work in the Division of

12 State Programs (“DSP”). Id. at 2-3. Each applicant was asked nine uniform questions,

13 and their responses were scored separately on a scale by each of their interviewers. Id. at

14 2. Plaintiff’s combined score (“CS”) was 99. ECF No. 44 at 4.

15 During the hiring process, Defendant required Plaintiff to submit three references.

16 Id. at 8; ECF No. 38 at 1. Undisputedly, one of Plaintiff’s references was contacted by

17 Carlene Farris-Clarke (“Farris-Clarke”), Deputy Director of the DBO, on May 5, 2020.

18 ECF No. 44 at 3. Thereafter, on June 9, 2020, Plaintiff was informed that he was not

19 selected for the GS-14 position. Id. at 4. Instead, Thomas Lawson (“Lawson”), a Black

20 male, CS 100, and Thomas Laubacher (“Laubacher”), a white male, CS 114, were

21 selected for the DBO role. ECF No. 31 at 3-4. Kimberly Viola (“Viola”), a white female,

22 CS 110, was selected for the DPAL role. Id. at 4. And Carley Lockheed (“Lockheed”), a

23 white female, CS 100, was selected for the DSP role. Id.

24 Prior to Plaintiff’s candidacy for the GS-14 position, Jackson was named in a prior

25 Equal Employment Opportunity (“EEO”) complaint involving Plaintiff in June and July

26 2019. ECF Nos. 31 at 8, 44 at 3, 21. In that matter, Plaintiff sought to ensure that he

27 received reasonable accommodations, and that Defendant honored those

28 accommodations. Id.; ECF No. 52 at 3. There, an administrative judge (“AJ”) found that

1 Jackson discriminated against Plaintiff by failing to engage in the interactive process

2 regarding Plaintiff’s reasonable accommodation requests. ECF No. 31 at 8.

3 Plaintiff’s claims against Defendant arise from Plaintiff’s non-selection and prior

4 protected activity involving Jackson. These claims include Title VII disparate treatment

5 on the basis of race, color, and gender, Rehab Act disparate treatment on the basis of

6 disability, and Title VII retaliation for his prior protected activity. See generally ECF No.

7 44.

8 On March 16, 2023, this action was transferred to the undersigned. ECF No. 26.

9 On March 24, 2023, Defendant’s filed a Motion for Summary Judgment on the above

10 claims. ECF No. 31. That same day, Plaintiff cross-moved for summary judgment

11 without properly noticing Defendant. ECF No. 32. On May 18, 2023, the Court issued an

12 Order striking Plaintiff’s ex parte motion. ECF No. 41. On June 2, 2023, Plaintiff re-filed

13 his Cross-Motion for Summary Judgment on all claims. ECF No. 44.

14 II. LEGAL STANDARD

15 When parties submit cross-motions for summary judgment, the court must consider

16 each motion on its own merits. See Fair Hous. Council v. Riverside Two, 249 F.3d 1132,

17 1136 (9th Cir. 2001). The court will grant summary judgment when, viewing the facts in

18 a light most favorable to the nonmovant, “there is no genuine dispute as to any material

19 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

20 56(a). Facts are “material” if it might affect the outcome of the case. Anderson v. Liberty

21 Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A factual dispute is

22 “genuine” if there is sufficient evidence that a reasonable jury could find for the

23 nonmoving party. Far Out Prods. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing

24 Anderson, 477 U.S. at 248-49).

25 Summary judgment may also be entered “against a party who fails to make a

26 showing sufficient to establish the existence of an element essential to that party’s case,

27 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

28 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); see also Dixon v. Sentinel Ins. Co.,

1 2010 U.S. Dist. LEXIS 46454, at *5-6 (D. Or. Apr. 8, 2010) (“[T]he court must consider

2 each motion separately to determine whether either party has met its burden . . . .”).

3 On cross-motions for summary judgment, when a plaintiff bears the burden of

4 proof, he must prove all essential elements of his claims. See Leuenberger v. Walmart,

5 Inc., No. 2:22-cv-01598-CDS-BNW, 2024 U.S. Dist. LEXIS 3502, at *3 (D. Nev. Jan. 5,

6 2024) (citing S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003)). In

7 contrast, when a defendant does not shoulder the burden of proof, his motion for

8 summary judgment faces a lighter burden. See First Pac. Networks v. Atl. Mut. Ins. Co.,

9 891 F. Supp. 510, 513 (N.D. Cal. 1995). In such case, the defendant need only point to

10 the insufficiency of the plaintiff’s evidence to shift the burden to the plaintiff to raise

11 genuine factual disputes as to each claim. See id.

12 At the summary judgment stage, the “court’s function is not to weigh the evidence

13 and determine the truth but to determine whether there is a genuine issue for trial.”

14 Assurance Co. of Am. v. Ironshore Specialty Ins. Co., No. 2:13-cv-2191-GMN-CWH,

15 2015 U.S. Dist. LEXIS 98990, at *6-7 (D. Nev. July 29, 2015) (citing Anderson, 477

16 U.S. at 249).

17 III. DISCUSSION

18 Plaintiff brings claims for (1) disparate treatment discrimination on the basis of

19 race and color in violation of Title VII; (2) disparate treatment discrimination on the basis

20 of gender in violation of Title VII; (3) disparate treatment discrimination on the basis of

21 disability in violation of the Rehabilitation Act; and (4) retaliation in violation of Title

22 VII. See ECF Nos. 1, 44. Both parties cross-move for summary judgment on all four

23 claims.

24 A. Title VII Disparate Treatment

25 Plaintiff argues that his summary judgment motion should be granted because he

26 was treated less favorably than other similarly situated candidates for the GS-14 roles

27 because of his race, color, and gender and Defendant cannot proffer a legitimate

28 nondiscriminatory reason for his non-selection. See generally ECF No. 44. Defendant

1 cross-moves, contending that Plaintiff cannot establish a prima facie showing of

2 discrimination because some of the selectees for the GS-14 roles shared the same

3 protected characteristics as Plaintiff and “the facts demonstrate that Defendant did not

4 treat others who were similarly situated any differently than Plaintiff.” ECF No. 31 at 6.

5 Defendant further contends that even if Plaintiff can make out a prima facie showing of

6 discrimination, the legitimate non-discriminatory reason for Plaintiff’s non-selection was

7 that the selectees’ interview scores were higher than Plaintiff’s. Id.

8 Under Title VII, a claim for disparate treatment arises when an individual is

9 “singled out and treated less favorably than others similarly situated on account of race,

10 color, religion, sex, or national origin.” Co v. Wal-Mart Stores, Inc., No. 2:23-cv-03822-

11 AB-E, 2023 U.S. Dist. LEXIS 145550, at *13 (C.D. Cal. Aug. 18, 2023) (citing Jauregui

12 v. Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)); see McGinest v. GTE Serv. Corp., 360

13 F.3d 1103, 1121 (9th Cir. 2004). In the absence of direct evidence of discrimination, a

14 plaintiff can establish a prima facie case by using the burden-shifting framework in

15 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Opara v. Yellen, 57 F.4th

16 709, 721 (9th Cir. 2023). To establish a prima facie case under McDonnell Douglas, a

17 plaintiff must show: “(1) he belongs to a protected class; (2) he was qualified for the

18 position; (3) he was subject to an adverse employment action; and (4) similarly situated

19 individuals outside his protected class were treated more favorably.” Chuang v. Univ. of

20 Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). The central focus of a disparate

21 treatment inquiry is whether a plaintiff is treated “less favorably than others because of

22 their [protected class].” Gardias v. San Jose State Univ., No. C04-04086 HRL, 2009 U.S.

23 Dist. LEXIS 29701, at *42 (N.D. Cal. Mar. 31, 2009) (quoting Furnco Constr. Corp. v.

24 Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949 (1978)).

25 If the plaintiff succeeds in demonstrating a prima facie case, discrimination is

26 presumed and “the burden of production shifts to the [defendant-employer] to articulate a

27 legitimate nondiscriminatory reason for the employment decision.” Leong v. Potter, 347

28 F.3d 1117, 1124 (9th Cir. 2003). Finally, the burden returns to the plaintiff to show that

1 the articulated reason is a pretext for discrimination. Id.; Chuang, 225 F.3d at 1124.

2 “Despite this intermediate shifting of the evidentiary burdens, the ultimate burden of

3 persuasion ‘remains with the plaintiff.’” Merrick v. Hilton Worldwide, Inc., 867 F.3d

4 1139, 1146 (9th Cir. 2017).

5 1. Race and Color Discrimination

6 Plaintiff seeks summary judgment on his race and color discrimination claim,

7 arguing that he was treated less favorably in consideration for the DBO role because he

8 was required to submit references. ECF No. 44 at 7. In urging this view, Plaintiff states

9 that another Black candidate, Lawson, was required to submit references while white

10 candidates were not. Id. Plaintiff claims that Defendant only subjecting him and Lawson

11 to a reference check conflicts with Defendant’s policy to require references from all

12 candidates before hiring. Id. at 7-8; ECF No. 44-3 at 452.

13 In its moving and opposing papers, Defendant contends that Plaintiff has failed to

14 establish a prima facie case of race discrimination because one of the two DBO selectees,

15 Lawson, is Black, and therefore shares the same protected characteristic as Plaintiff. ECF

16 Nos. 31 at 6, 46 at 4. For this reason, Defendant maintains that “the facts demonstrate that

17 Defendant did not treat others who were similarly situated any differently than Plaintiff

18 based on [race and color.]” ECF No. 46 at 4. The Court disagrees.

19 As an initial matter, the first three elements of the McDonnell Douglas analysis are

20 not in dispute. Defendant’s cross-motion nor opposing papers contest Plaintiff’s race or

21 color. Plaintiff’s qualification for the role is also uncontested as the record shows that

22 Defendant extended an interview offer to Plaintiff because he was qualified. ECF No. 31-

23 4 at 3. It is also well-established that non-selection or non-promotion constitutes an

24 adverse employment action. See Breiner v. Nev. Dep’t of Corr., 610 F.3d 1202, 1208 (9th

25 Cir. 2010). Accordingly, the Court turns to the fourth element.

26 a. Less Favorable Treatment

27 First, Defendant argues that the reference submission requirement could not have

28 been because of race because one of the two DBO selectees, Lawson, is Black and

1 therefore cannot establish a prima facie case of discrimination. ECF Nos. 31 at 6; 38 at 1;

2 46 at 4. Defendant is mistaken. “[A] plaintiff is not precluded from bringing suit merely

3 because a person of the same protected class is selected for the challenged position.” Diaz

4 v. Am. Tel. & Tel., 752 F.2d 1356, 1360 (9th Cir. 1985); see Caldwell v. Washington, 278

5 F. App’x 773, 776 (9th Cir. 2008) (“[Plaintiff-Appellant] presented a successful prima

6 facie case of disparate treatment under the McDonnell Douglas framework despite the

7 fact that the chosen candidate was a member of the same relevant protected class as

8 [her].”). Thus, this argument is unavailing.

9 Second, although the record shows that, of the three other white candidates, only

10 Plaintiff and Lawson were required to submit references, Defendant argues that this

11 differential treatment was not based on race. ECF Nos. 38 at 1, 46 at 4-5. Rather,

12 Defendant states that the existing policy required candidates not currently working in the

13 Office of Compliance and Enforcement (“OCE”) of the DBO to submit references and

14 Plaintiff and Lawson were not working in the OCE at the time of their interviews. See

15 ECF No. 38 at 1. Plaintiff counters, stating that the actual written policy was that all

16 candidates were required to provide references. ECF No. 44 at 7-8. Plaintiff also claims

17 that Defendant’s explanation is incredulous because Defendant cannot produce

18 documents illustrating this policy and Defendant has confirmed in responses to Plaintiff’s

19 interrogatories and request for production that it has no evidence of OCE requiring non-

20 OCE candidates to provide references during the same time Plaintiff interviewed for the

21 GS-14 position. Id. at 7. Plaintiff, however, does not cite any specific interrogatories or

22 production requests in the record showing this response from Defendant. Id.

23 Because Defendant points to nowhere in the record evincing a written policy

24 mandating reference submissions from non-OCE workers, Defendant instead cites Farris

25 Clarke’s affidavit describing this policy, the candidates that were required to provide

26 references are Black, and hiring documents provide that all candidates must submit

27 references, a reasonable jury could find that Plaintiff was subjected to less favorable

28 treatment on account of his race. ECF No. 44-3 at 452; see generally ECF Nos. 31, 38,

1 46. Therefore, Plaintiff has satisfied the McDonnell Douglas elements and thus raised a

2 rebuttable presumption of discrimination.

3 b. Non-Discriminatory Reason and Pretext

4 Defendant asserts that even if Plaintiff prevails in making a prima facie showing,

5 Defendant’s legitimate non-discriminatory reason for Plaintiff’s non-selection is that his

6 interview score was lower than the selectees. ECF No. 46 at 5. In the parties’ cumulative

7 summary judgment briefing, Plaintiff sidesteps Defendant’s articulated non-

8 discriminatory reason for its employment decision by never directly addressing how the

9 interview score rationale is pretext for race-based discrimination.

10 Accordingly, the Court is guided by Ninth Circuit authority holding that a plaintiff

11 cannot prevail on summary judgment “simply by making out a prima facie case,” rather

12 “the plaintiff must produce ‘specific, substantial evidence of pretext.’” Wallis v. J.R.

13 Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). Plaintiff has not produced such evidence

14 here.

15 As a result, the Court denies Plaintiff’s Motion for Summary Judgment and grants

16 Defendant’s Motion for Summary Judgment.

17 2. Gender Discrimination

18 Plaintiff moves for summary judgment on his gender discrimination claim,

19 asserting that his non-selection for the DPAL and DSP roles was based on gender

20 because two female candidates were selected. ECF No. 44 at 12-13. Defendant cross-

21 moves, arguing that there are no genuine issues of material fact that scoring had anything

22 to do with gender and Plaintiff has produced no evidence suggesting an inference of

23 discrimination showing otherwise. ECF Nos. 31 at 6, 38 at 2-3. The Court agrees.

24 At the outset, the first three McDonnell Douglas elements are not contested.

25 Plaintiff is a male, was qualified for the GS-14 roles, and suffered an adverse

26 employment decision as a result of his non-selection. The Court therefore grounds its

27 analysis on the fourth element.

28 In making the argument that Plaintiff was treated less favorably because of his

1 gender, he points to the scoring decisions of one interview panelist: “the . . . ratings and

2 scores by Steven Hilbert show that Steven Hilbert gave Plaintiff’s response to Question

3 No. 7 a ‘2’ rating, whereas he gave Carolyn Lockeed, a ‘4’ rating, despite there being no

4 apparent difference or discernible rationale provided by Steven Hilbert to justify the

5 lower candidate score to Plaintiff. As a result, Plaintiff has made a prima facie case

6 showing discrimination on the basis of sex.” ECF No. 44 at 12-13. Plaintiff further argues

7 that Hilbert’s scoring is unsupported because his interview notes contained “incomplete

8 sentences” which shows “a visible and clear inconsistency in all of Steven Hilbert’s

9 ratings for candidates as he scored Kimberly Viola’s answers to Question 2 and 5 as level

10 4 ratings.” Id. at 13.

11 To survive summary judgment in an employment discrimination case, a plaintiff

12 “must do more than express an opinion or make conclusory statements.” See Oberg v.

13 Pub. Util. Dist. No. 2, C.A. No. 96-36026, 1998 U.S. App. LEXIS 2680, at *4 (9th Cir.

14 Feb. 17, 1998). Unless the plaintiff offers sufficient evidence to establish his prima facie

15 case, the defendant is entitled to judgment as a matter of law. See Rangel v. T-Mobile

16 USA, Inc., No. 2:23-cv-03922-MCS-MRW, 2024 U.S. Dist. LEXIS 134743, at *16 (C.D.

17 Cal. July 30, 2024) (citing Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099,

18 1106 (9th Cir. 2000)).

19 While the Court agrees that factual disputes may exist, none are material. Plaintiff

20 merely advances opinions and conclusory statements that in one of the nine questions he

21 received a lower score by Hilbert than the two female selectees, and he believes Hilbert’s

22 interview notes do not justify his scoring decision. ECF No. 44 at 12-13. Although it is

23 clear that women were hired for the DPAL and DSP roles instead of Plaintiff, this alone

24 does not sufficiently establish a prima facie case. See Cornwell v. Electra Cent. Credit

25 Union, 439 F.3d 1018, 1028 n.6 (9th Cir. 2006) (“[A] plaintiff [may not] create a genuine

26 issue of material fact by relying solely on the plaintiff’s subjective belief that the

27 challenged employment action was unnecessary or unwarranted.”). Thus, no reasonable

28 jury could infer gender discrimination.

1 Because Plaintiff has not established the fourth element required to set forth a

2 prima facie case, Defendant is entitled to summary judgment.

3 B. Rehab Act Disparate Treatment

4 Plaintiff raises a disability-based disparate treatment claim, alleging that Farris-

5 Clarke intentionally chose not to contact each of his references but contacted all of

6 Lawson’s references, a non-disabled candidate, for the DBO role. ECF Nos. 44 at 14, 35

7 at 7. Plaintiff contends that such actions constitute differential treatment on the basis of

8 disability. Id. In response, Defendant argues Farris-Clarke reached out to all of Plaintiff’s

9 references and even if she had not Plaintiff presents no evidence linking the alleged

10 failure to his disability. ECF Nos. 38 at 4, 46 at 6.

11 Under the Rehabilitation Act, organizations receiving federal funding are

12 prohibited from “discriminating against people with disabilities.” Mark H. v. Hamamoto,

13 620 F.3d 1090, 1097 (9th Cir. 2010). Courts analyze such disability discrimination claims

14 using the McDonnell Douglas burden-shifting scheme. See Mattioda v. Nelson, 98 F.4th

15 1164, 1178 (9th Cir. 2024); Brown v. Brennan, No. 16-cv-06972-EDL, 2019 U.S. Dist.

16 LEXIS 247972, at *22 (N.D. Cal. Oct. 7, 2019). To establish a prima facie case, a

17 plaintiff must show that (1) he is a person with a disability; (2) otherwise qualified for

18 employment; and (3) suffered discrimination because of his disability. See Mattioda, 98

19 F.4th at 1178. Only if a Plaintiff demonstrates a prima facie case, the burden shifts to the

20 employer to articulate a legitimate non-discriminatory reason for the adverse employment

21 action. See id. “If the employer meets that burden, then the employee must show that the

22 employer’s reason is pretextual.” Id.

23 Neither party disputes the first two elements. ECF Nos. 31, 44. The Court’s

24 analysis accordingly turns to whether Plaintiff established that he suffered discrimination

25 because of his disability. The Court finds Plaintiff has not. Again, here, Plaintiff

26 demonstrates a factual dispute, but not a material one. Namely, out of three references

27 Plaintiff submitted, Plaintiff avers that Defendant only contacted one. ECF No. 44 at 14.

28 Defendant factually challenges Plaintiff’s assertions arguing that Farris-Clarke “reached

1 out to all of Plaintiff’s professional references.” ECF No. 46 at 6. Defendant directs the

2 Court to Farris-Clarke’s affidavit stating that she called one reference and emailed

3 another who lived in Japan but never received a timely response to make hiring decisions.

4 Id. (citing ECF No. 31-4 at 3). Farris-Clarke’s affidavit is silent as to the third reference.

5 ECF No. 31-4 at 3. Whether Defendant contacted one or none of Plaintiff’s references,

6 Plaintiff fails to meet its burden of showing how either scenario was because of his

7 disability. Anderson, 477 U.S. at 248 (“As to materiality, the substantive law will identify

8 which facts are material. Only disputes over facts that might affect the outcome of the

9 suit . . . will properly preclude the entry of summary judgment.”).

10 Because Plaintiff failed to meet his prima facie burden to show that his non-

11 selection was because of his disability, the Court does not continue the McDonnell

12 Douglas burden-shifting analysis. Consequently, Defendant is entitled to summary

13 judgment.

14 C. Retaliation

15 Plaintiff invites the Court to enter summary judgment in his favor on his retaliation

16 claim asserting that his interviewers for the various GS-14 roles “establish[ed] a

17 deliberate and intentional effort to marginalize and diminish Plaintiff’s candidacy”

18 because of his previous protected activity. ECF No. 44 at 21. Specifically, Plaintiff

19 alleges that, Farris-Clarke, Hilbert, and Jackson, communicated with Defendant’s in-

20 house counsel to inquire about Plaintiff’s prior protected activity. Id. Defendant argues

21 that the record is devoid of evidence evincing a causal link between Plaintiff’s prior

22 protected activity and his non-selection. ECF No. 46 at 8. The Court agrees and rejects

23 Plaintiff’s invitation.

24 Courts analyze Title VII retaliation claims by applying the McDonnell Douglas

25 scheme. See Mendoza v. DeJoy, No. 21-cv-00991-H-JLB, 2022 U.S. Dist. LEXIS

26 239023, at *10 (S.D. Cal. Dec. 20, 2022) (citing Surrell v. Cal. Water Serv., 518 F.3d

27 1097, 1105-06 (9th Cir. 2008)). To establish a prima facie case of Title VII retaliation, a

28 plaintiff must show that: (1) he engaged in protected activity, (2) he suffered an adverse

1 employment action, and (3) there is a causal link between the protected activity and the

2 adverse employment action. Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir.

3 2008). “Once established, the burden shifts to the defendant to set forth a legitimate, non-

4 retaliatory reason for [the adverse employment action].” Surrell, 518 F.3d at 1108. If

5 defendant articulates such a reason, plaintiff must demonstrate that the defendant’s stated

6 reason is pretextual. Id. Entry of summary judgment for the defendant is appropriate

7 where the plaintiff fails to make a prima facie showing of a Title VII claim. See Yartzoff

8 v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987).

9 Defendant concedes that Plaintiff engaged in a protected activity. ECF No. 31 at 8.

10 Defendant identifies this activity as a previous employment matter where an AJ found

11 that Jackson discriminated against Plaintiff “by failing to sufficiently engage in the

12 interactive process [regarding] his accommodation requests.” Id. Plaintiff’s non-selection

13 constituting as an adverse employment action is undisputed. The Court thus resolves the

14 parties Cross-Motions for Summary Judgment based on the third element requiring but-

15 for causation. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 133 S. Ct.

16 2517, 2533 (2013).

17 Though, Defendant had knowledge of Plaintiff’s June and July 2019 protected

18 activity concerning his reasonable accommodation requests, ECF Nos. 31-4 at 1, 44 at 3,

19 the eleven-to-twelve-month time lapse between that event and Plaintiff’s June 2020 non-

20 selection is too remote to suggest causality. Manatt v. Bank of Am., 339 F.3d 792, 802

21 (9th Cir. 2003) (explaining that temporality alone is sufficient to infer causation, but a

22 time lapse of nine months supports no such inference); Clark Cty. Sch. Dist. v. Breeden,

23 532 U.S. 268, 273-74, 121 S. Ct. 1508, 1511 (2001) (recognizing that cases that accept

24 temporality alone to show causation uniformly hold that the temporal proximity must be

25 very close and collecting cases holding that a three- or four-month gap is too long).

26 The time lapse between each interviewer’s alleged knowledge and Plaintiff’s non-

27 selection fares no better. As to Hilbert, Plaintiff alleges that “Hilbert sought legal advice

28 from [Defendant’s] General Counsel . . . concerning Plaintiff’s prior EEO activity, which

1 || involves Plaintiff's claims of discrimination based on disability, on June 27, 2019, and

2 ||July 8, 2019, that is, nine [] months before Plaintiffs interview.” ECF No. 44 at 21. A

3 nine-month gap is too attenuated, let alone an eleven-to-twelve-month gap that exists

4 || between Hilbert’s alleged knowledge and the non-selection. An eleven-to-twelve-month

5 || time gap also exists between Jackson’s knowledge and Plaintiffs non-selection as she

6 || was the subject of Plaintiff's prior protected activity. See ECF Nos. 31, 44. As to Farris-

7 || Clarke, Plaintiff’s briefing provides no argumentation or evidentiary support as to why

8 || Plaintiff alleges causality. ECF No. 44. As such, no reasonable jury can infer

9 || causation based on temporal proximity alone.

10 Plaintiff offers no other circumstantial evidence to establish a but-for causation, as

11 || causation need not be established by temporality alone. Plaintiff bears the burden of

12 || establishing every element of his claim, and Plaintiff has failed to show the requisite

13 causal link between his protected activity and his non-selection. Plaintiff's Motion for

14 ||Summary Judgment on this claim is denied.

15 Given that Plaintiff has not carried his prima facie burden to establish causality,

16 || the Court need not assess the parties’ non-retaliatory or pretext arguments. Consequently,

17 || Defendant is entitled to summary judgment.

18 IV. CONCLUSION

19 For the reasons stated above, Defendant’s Motion for Summary Judgment is

20 || GRANTED and Plaintiff's Motion for Summary Judgment is DENIED. The Clerk of

21 Court is directed to enter judgment for Defendants and against Plaintiff.

22 IT IS SO ORDERED.

23 ||Dated: August 21, 2024 5

4 he A ae

25 Honorable James E. Sunmons Jr.

6 United States District Judge

27

28