# Faramarz Naeim v. Robert L. Wilkie

> District Court, C.D. California · March 11, 2022

URL: https://www.frixlaw.com/law-library/cases/9979353

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9979353

## How later opinions describe it (automated extraction)

- noting that plaintiff must identify a protected activity that is “protected by the statutes [plaintiff] sues under”

## Opinion text

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Case 2:19-cv-06126-DDP-AFM Document 113 Filed 03/11/22 Page 1 of 20 Page ID #:5911
O

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
FARAMARZ NAEIM, ) Case No. 2:19-cv-06126-DDP (AFMx)
)
Plaintiff, ) ORDER GRANTING
) DEFENDANT’S MOTION FOR
v. ) SUMMARY JUDGMENT
)
DENIS R. MCDONOUGH, in his Official )
[Dkt. 62]
Capacity, Secretary, Department of )
Veterans Affairs, and DOES 1 through )
10, )
Defendants. )
)
)

Presently before the court is a Motion f or Summary Judgment, filed by Defendant
D e n i s R . M c D o n o u gh, in his Official Capacity , Secretary, Department of Veterans Affairs

(“ Defendant”). (Dkt. 62.) Having considered the submissions of the parties and having
heard oral argument, the court GRANTS the m otion, and adopts the following Order.

///
// /
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I. BACKGROUND
Dr. Faramarz Naeim (“Plaintiff”) worked for Defendant as a staff pathologist at
the VA Greater Los Angeles Healthcare System (the “VA”) for approximately thirteen
years, until Plaintiff was 78 years old. (Dkt. 83, Naeim Declaration (“Decl.”) ¶ 1.)
Plaintiff specialized in hematopathology, which involves the diagnosis, evaluation, and
analysis of blood-related disorders. (Id. ¶ 3.)
In January 2018, Dr. Michael Lewis became acting chief of the pathology
department at the VA, and Plaintiff’s direct supervisor. (Dkt. 65-1, Ex. H, Lewis Depo. at
42:15-17.) Lewis reported to the Chief of Pathology and Laboratory Services for the
Veteran Integrated Service Network 22 (“VISN”),1 Dr. Jessica Wang-Rodriguez. (Id., Ex.
M, Wang-Rodriguez Depo. at 7:11-15; id., Ex. K, Toney Depo. at 25:4.)
Between 2016 and 2018, the VA’s pathology department experienced staffing
shortages. (Dkt. 65-1, Ex. K, Toney Depo. at 126:20-127:9; id., Ex. M, Wang-Rodriguez
Depo. at 142:13-16, 248:2-11; id., Ex. H, Lewis Depo. at 89:23-90:24; id. Ex. I, Ulirsch Depo.
at 255:2-13.) By January 2018, there were a total of five full-time staff pathologists within
the department, including Plaintiff. (Id., Ex. K, Toney Depo. at 260:21-261:12; id., Ex. H,
Lewis Depo. at 346:5-16.)
On January 22, 2018, Dr. Lewis implemented a plan to proctor all department
pathologists in three service areas: autopsies, cytology, and frozen sections. (Id., Ex. H,
Lewis Depo. at 342:19-22; see also Dkt. 65-2, Ex. GG-II.)2 Up to this point in time,

1 VISN 22 is an office that manages VA hospitals in a particular geographical region.
(Dkt. 65-1, Ex. A, Brown Depo. at 23:25-24:4.) VISN 22 includes the Greater Los Angeles
VA. (Id.)
2 Proctoring typically involves the observation and evaluation of a new pathologist or
pathologist acquiring new skills (the “proctee”), by a physician already competent and
privileged in a particular service area (the “proctor”). The proctor and proctee assume
such roles until the proctor is satisfied that the proctee has gained knowledge sufficient
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Plaintiff’s job assignments at the VA were limited to hematopathology cases. (Dkt. 84-1,
Ex. CCCCC at 6:16-20; id., Ex. DDDDD at 2:12-5:17.) In response to Dr. Lewis’ first
proctoring request, Plaintiff told Dr. Lewis that he was concerned with performing
services outside of hematopathology. (Id., Ex. GG.) Plaintiff said that Dr. Wang-
Rodriguez had previously requested that he perform other services, and that when he
voiced similar concerns regarding his competency in those areas, Dr. Wang-Rodriguez
withdrew her request. (Id.) Plaintiff also stated that although he was a “board-certified
AP/CP pathologist,” he had not practiced in certain areas of pathology “since [his]
residency training program and after [he] obtained [his] boards in 1973.” (Id.) In
response, Dr. Lewis told Plaintiff that all staff pathologists would “receive proctoring and
support” as well as the “full support and resources to succeed.” (Id.) On the same day,
Dr. Lewis informed Plaintiff that his work schedule would change starting February 5,
2018. (Dkt. 65-2, Ex. BB.) Prior to the change, Plaintiff was the only staff pathologist with
a modified schedule. (Dkt. 65-1, Ex. H, Lewis Depo. at 228:25-229:24, 341:8-15; id., Ex. G,
Naeim Depo. at 118:6-13.)
On January 24, 2018, Plaintiff complained to Chief of Staff, Dr. Scotte Hartronft,
and Dr. Wang-Rodriguez, regarding Dr. Lewis’ proctoring-related requests and Dr.
Lewis’ decision to change Plaintiff’s schedule. (Id., Ex. CC.) Plaintiff stated that he
believed his change of schedule was “retribution with the goal of intimidating and
harassing” because he had voiced his concerns about Dr. Lewis’ proctoring plan. (Id.)
Plaintiff also requested that he be removed from Dr. Lewis’ supervision and re-assigned
to another supervisor, until the “issues [were] investigated and resolved.” (Id.) In
response, Dr. Wang-Rodriguez informed Plaintiff that “the needs of the service changed”
and that the adjustment to his schedule was “necessary.” (Id.) She also stated that there

to independently interpret the diagnosis, and until the proctor feels the proctee is
competent. (Dkt. 65-1, Ex. M, Wang-Rodriguez Depo. at 199:8-20.)
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were “challenges” due to “recent turnover of staff pathologists” and that Dr. Lewis was
“trying very hard to get all the areas of pathology covered while . . . recruiting for
additional pathologists.” (Id.) Dr. Wang-Rodriguez acknowledged that Plaintiff’s
“primary role [was] hematopathology”; “[h]owever, given the diminished hemepath
caseload overtime, [they] need[ed] to identify other duties as assigned by [Dr. Lewis] to
justify a full time appointment.” (Id.)
On January 29, 2018, Dr. Lewis issued Plaintiff a “Proposed Reprimand” on the
basis that Plaintiff had not attended a mandatory department faculty meeting a year
earlier. (Dkt. 83-2, Ex. PP at VA00003615; id., Ex. QQ at VA00003617-3619.) Although Dr.
Lewis upheld the reprimand, it is undisputed that the reprimand was never effectuated.
(See id., Ex. RR.) On January 31, 2018, Plaintiff went on medical leave, which he argues
constituted a constructive discharge. (Dkt. 69, Opp. at 24; Dkt. 65-1, Naeim Depo. at
260:19-261:4.)
On February 8, 2018, Plaintiff sent Dr. Hartronft a second complaint concerning
Plaintiff’s grievances with Dr. Lewis. (Dkt. 83-2, Ex. TT at VA004845-46.) Plaintiff stated
that he believed Dr. Lewis’ “requests to perform services outside [the scope of his
practice] [were] intended to make [Plaintiff] resign or retire.” (Id. at VA004846.)
Moreover, Plaintiff mentioned that he had “filed a harassment complaint to the Office of
Resolution Management.” (Id.)
By March 1, 2018, Dr. Wang-Rodriguez and Dr. Lewis became aware that Plaintiff
had initiated an EEO complaint against the VA and had named Dr. Lewis as a
responding management official. (Id., Ex. YY at VA00003728.) On April 19, 2018,
Plaintiff filed a formal EEO complaint for age discrimination, harassment, and retaliation,
based on the events above. (Dkt. 83-3, Ex. KKK.)
On May 3, 2018, Defendant determined that Plaintiff had violated the VA’s policy
by allowing his California medical license to expire. (Dkt. 65-1, Ex. V, Termination
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Letter.) As relevant here, Defendant’s licensing policy is set forth in “VA Handbook
5021.” The licensing policy provides, in relevant part that,
Employees are responsible for maintaining all qualifications required
for appointment and for providing evidence of these qualifications,
e.g., fully and unrestricted licensure in a State, when requested. An
employee who fails to meet or who fails to present evidence of
meeting statutory, e.g., 38 U.S.C. 7402, or regulatory requirements for
appointment will be separated.

(Dkt. 65-1, Ex. S.)
On April 30, 2018, the Credentialing and Licensing Office informed Dr. Lewis that
Plaintiff had not renewed his California medical license, which expired that day. (Id., Ex.
U at VA00003923.) After several email exchanges between Dr. Lewis and the
Credentialing Office, Dr. Hartronft, who was also included on the email thread, stated
that Plaintiff’s expired license needed to be reported to Human Resources (“HR”)
“immediately” because he believed that a physician was “automatically removed from
employment without any active license.” (Id. at VA00003921.) Several other individuals
were included on this email thread, including Dr. Wang-Rodriguez and HR staff. (Id.)
At some point later, Dr. Lewis checked the Medical Board of California website and
verified that, as of April 30, 2018, Plaintiff had not paid his licensing renewal fee. (Id., Ex.
H, Lewis Depo. at 277:9-14.) On May 1, 2018, Dr. Lewis proposed that Plaintiff be
terminated “[a]s this [was] a condition of employment at the VA.” (Id., Ex. T at
VA00003921.)
After verifying the lapse on the California Medical Board’s website and waiting a
day to make sure the website was updated, HR Specialist, Don Heuman, prepared
Plaintiff’s termination letter. (Id., Ex. C, Heuman Depo. at 40:14-20, 50:8-12, 52:13-16,
52:17-53:8, 53:23-54:2, 84:3-5, 102:6-16; id. Ex. D, Heuman Depo. at 227:2-12, 235:2-12.) On
May 2, 2018, Mr. Heuman presented the letter to VA Medical Director, Ann Brown for
her review. According to Defendant, Ms. Brown was the only VA employee authorized
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to make termination decisions. (Ex. 63-3, Ex. C, Heuman Depo. at 55:23-56:7.) After
confirming that Plaintiff’s license had lapsed, Ms. Brown signed Plaintiff’s termination
letter, for failure to maintain an active, current, full, and unrestricted license. (Id., Ex. A,
Brown Depo. at 41:7-42:13, 45:4-10, 46:16-19, 50:9-12; Ex. D, Heuman Depo. at 205:17-
206:1; Ex. V, Termination Letter.) The termination letter was mailed to Plaintiff that same
day. (Id., Ex. V; Heuman Depo. at 179:17-19.) Plaintiff received the termination letter on
May 3, 2018, and paid his renewal fee on May 4, 2018, which then reactivated his license.
(Id., Ex. G, Naeim Depo. at 57:10-23, 62:6-64:4.) Shortly thereafter, Plaintiff opted to retire
in lieu of his termination. (Id., Ex. C, Heuman Depo. at 178:3-15, 179:20-180:17; Ex. D,
Heuman Depo. at 206:10.)
On July 16, 2019, Plaintiff filed suit against Defendant, alleging that he “was
unlawfully discriminated against, harassed, subjected to a hostile work environment,
retaliated against and forced into retirement[,]” in violation of the Age Discrimination in
Employment Act (“ADEA”). (See generally Dkt. 16, First Amended Complaint.)
Defendant now moves for summary judgment, or alternatively, partial summary
judgment with respect to all of Plaintiff’s claims. (Dkt. 62, Mot.)
II. LEGAL STANDARD
Summary judgment is appropriate where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show “that
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). A party seeking summary judgment bears the
initial burden of informing the court of the basis for its motion and of identifying
portions of the pleadings and discovery responses that demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All
reasonable inferences from the evidence must be drawn in favor of the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not
bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate
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that “there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party
opposing the motion, who must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party
“fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,” and material facts are those “that might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There
is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
It is not the court’s task “to scour the record in search of a genuine issue of triable
fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel have an obligation to
lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th
Cir. 2001). The court “need not examine the entire file for evidence establishing a
genuine issue of fact, where the evidence is not set forth in the opposition papers with
adequate references so that it could conveniently be found.” Id.
III. DISCUSSION
A. Age Discrimination Under the Age Discrimination in Employment Act
(“ADEA”)
The ADEA makes it unlawful for an employer to “fail or refuse to hire or . . .
discharge any individual [who is at least forty years old] or otherwise discriminate
against any individual with respect to his compensation, terms, conditions or privileges
of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiff
contends that he was subjected to disparate treatment based on his age. Under a
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“disparate treatment” theory of discrimination, a plaintiff in an ADEA case must produce
evidence that gives rise to an inference of unlawful discrimination, either through direct
evidence of discriminatory intent or through the burden shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Vasquez v. Cnty. of Los Angeles,
349 F.3d 634, 640 (9th Cir. 2003); Diaz v. Eagle Produce Ltd. P’ship, F.3d 1201, 1207 (9th Cir.
2008).
1. Direct Evidence
“Direct evidence is evidence which, if believed, proves the fact [of discriminatory
animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
1221 (9th Cir. 1998) (internal quotation marks omitted) (alteration in original). In the
context of an ADEA claim, direct evidence “is defined as evidence of conduct or
statements by persons involved in the decision-making process that may be viewed as
directly reflecting the alleged discriminatory attitude sufficient to permit the fact finder
to infer that that attitude was more likely than not a motivating factor in the employer’s
decision.” Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004) (citation,
internal quotation marks, and ellipses omitted). Moreover, the direct evidence “must be
evidence directly tied to the adverse employment decision.” France v. Johnson, 795 F.3d
1170, 1173 (9th Cir. 2015), as amended on reh’g (Oct. 14, 2015).
Plaintiff cites to several remarks about his age by Dr. Wang-Rodriguez, Plaintiff’s
second-level supervisor, as direct evidence of discriminatory intent. (See Dkt. No. 84-1,
Ulirsch Depo. at 97:23-98:1; 128:22-24-129:13; 136:4-18.) Plaintiff’s former supervisor, Dr.
Rudolf Ulirsch, testified that Dr. Wang-Rodriguez “frequently” stated that Plaintiff
“should retire,” and that he was “old.” (Dkt. 84-1, Ex. SSSSS, Ulirsch Depo. at 97:12-98:1;
Dkt. 65-1, Ex. J, Ulirsch Depo. at 154:6-17.) Viewing Plaintiff’s evidence in the light most
favorable to him, such comments demonstrated Dr. Wang-Rodriguez’s discriminatory
attitude or motive toward the class protected by the ADEA.
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However, Plaintiff has not demonstrated that such discriminatory attitude or
motive played a significant or substantial role in Defendant’s termination, the adverse
employment action underlying Plaintiff’s age discrimination claims. More specifically,
Plaintiff has not offered evidence such that a reasonable jury could conclude that the true
reason for Plaintiff’s termination was because of Dr. Wang-Rodriguez’s discriminatory
attitude or motive. Plaintiff does not show that Dr. Wang-Rodriguez made any
comments about his age when the licensing issue was discussed between upper
management and HR. The evidence does not show that Dr. Wang-Rodriguez was
meaningfully involved in the decision-making process.3 Dr. Hartronf, not Dr. Wang-
Rodriguez, initially acknowledged that Plaintiff’s expired license needed to be reported
to HR because he believed it warranted automatic separation. Moreover, Plaintiff has not
offered evidence to show that Ms. Brown’s decision was influenced by Dr. Wang-
Rodriguez’ discriminatory animus for Plaintiff. Although Plaintiff has submitted some
evidence to illustrate Dr. Wang-Rodriguez’s general discriminatory attitude or motive
toward Plaintiff during his employment, he has not met his burden to show that her
discriminatory attitude or motive played a significant or substantial role in his
termination. See France, 795 F.3d at 1173.
2. The McDonnell Douglas Test
Plaintiff’s age-discrimination claim may also survive summary judgment if
Plaintiff can establish a prima facie case under the ADEA either through direct evidence of

3 Plaintiff’s evidence concerning Dr. Wang-Rodriguez’s involvement is also weak. The
only evidence Plaintiff offers shows that on May 1, 2018, Dr. Wang-Rodriguez reached
out to the HR Department for the VISN to obtain further guidance on Plaintiff’s medical
license issue and proposed removal. In fact, a member of HR confirmed that unless there
was a delay by the State Licensing Board, “maintaining a valid unrestricted license is a
condition of employment” and that Plaintiff “should be released from federal service
immediately for failure to meet the condition of employment.” (Dkt. 92-1, Ex. JJJ at
VA002423.)
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discriminatory intent or circumstantially that he was: “(1) at least forty years old; (2) [he]
performing his job satisfactorily; (3) discharged, and (4) either replaced by substantially
younger employees with equal or inferior qualifications or discharged under
circumstances otherwise ‘giving rise to an inference of age discrimination.’” Diaz, 521
F.3d at 1207. “An inference of discrimination can be established by showing the
employer had a continuing need for the employee[‘s] skills and services in that their
various duties were still being performed . . . or by showing that others not in their
protected class were treated more favorably.” Sheppard v. David Evans and Assoc., 694
F.3d 1045, 1049-50 (9th Cir. 2012) (quoting Diaz, 521 F.3d at 1207-08).
Here, the undisputed facts show that Plaintiff was 78 years old at the time of his
termination. (Dkt. 83-4, Ex. AAAA.) Thus, the first and third element of Plaintiff’s prima
facie case are satisfied. However, Defendant disputes whether Plaintiff has established
the remaining two elements: (2) whether Plaintiff was performing his job satisfactorily;
and (4) whether he was replaced by a younger employee or other circumstances giving
rise to an inference of age discrimination.
i. Element (2): Job Performance
Defendant argues that Plaintiff cannot show that he was satisfactorily performing
his job. Defendant reasons that Plaintiff committed a major policy violation leading to
his termination—namely, that Plaintiff allowed his California medical license to expire.
(Mot. at 12:9-10.) However, this Court agrees with the view that, as one court within this
circuit concluded, “an employee’s violation of company policy cannot alone establish
failure to perform.” Lopez v. Delta Air Lines, Inc., No. CV 16-4497 DSF (AJWx), 2017 WL
6520612, at *4 (C.D. Cal. July 31, 2017) (citing Diaz, 521 F.3d at 1208).4 Thus, the court
finds Defendant’s argument premature at this stage of the McDonnell Douglas test.

4 To find Defendant’s “nondiscriminatory reason” as a predicate for finding that Plaintiff
failed to make a prima facie case improperly imports the later stages of the McDonnell
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Plaintiff offers evidence demonstrating that he was performing satisfactorily at the
time of his termination. Plaintiff’s evidence shows he was “consistently rated as
‘outstanding’ or ‘highly satisfactory’ on [his] yearly performance reviews . . . for clinical
services and teaching.” (Dkt. 83-1, Ex. I.) The performance review, dated December 7,
2017, rates Plaintiff as “outstanding” in all measured categories. (Id.) Moreover, Plaintiff
was neither disciplined nor received a single complaint from his supervisors, staff
pathologists, clinicians or pathology residents regarding his service or behavior prior to
Dr. Lewis becoming Plaintiff’s supervisor in January 2018. (Dkt. 84-1, Ex. EEEEE at 2:8-
20; Ex. PPPPP, Naeim Depo. at 126:16-20, 296:18-19.) The court is satisfied that such
evidence is sufficient to establish, for purposes of considering Defendant’s summary
judgment motion, that Plaintiff was performing his job satisfactorily. See, e.g., Dominick v.
Wal-Mart Stores, Inc., CV 13-8247-PCT-JAT, 2015 WL 1186229, at *5 (D. Ariz. Mar. 16,
2015) (finding that a satisfactory performance review alone provides adequate, prima facie
evidence of satisfactory performance). Accordingly, Plaintiff has met his burden on this
element.
ii. Element (4): Inference of Age Discrimination
Next, the fourth element in establishing a prima facie case requires Plaintiff to show
that Defendant replaced him with a substantially younger employee with equal or

Douglas inquiry into the initial prima facie stage. If the court were to give credence to
Defendant’s argument, then an employee who has violated company policy could never
enjoy the opportunity to rebut Defendant’s nondiscriminatory reason and show
discrimination. The Sixth Circuit’s reasoning in Cline v. Catholic Diocese of Toledo, 206 F.3d
651, 663 n.7 (6th Cir. 2000) is highly informative. The court concluded that at the
summary judgment stage, as in trial, the court should reserve the question of whether the
plaintiff was “qualified” until the “production stage.” Id. (quoting St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502 (1993)). Thus, “whether . . . a plaintiff makes a prima facie case
must be ascertained by weighing the plaintiff’s evidence that [he] was meeting [his]
employer’s legitimate expectations, not by considering the nondiscriminatory reasons
produced by the defendant as its reason for terminating him.” Id. at 662.
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inferior qualifications or that he was terminated under circumstances otherwise giving
rise to an inference of discrimination. Shortly after Plaintiff’s termination, Defendant
hired hematopathologist Dr. Jacob Pilley, who is over forty years younger than Plaintiff.
(Dkt. 84-1; Ex. LLLLL, Wang-Rodriguez Depo. at 123:13-23; id., Ex. DDDDD at 9:1-9.) Dr.
Pilley was the only pathologist providing hematopathology services after Plaintiff. (id.,
Ex. LLLLL, Wang-Rodriguez Depo. at 125:8-11.) Further, Dr. Pilley was “fresh out of
fellowship.” (id., Ex. RRRRR, Kletecka Depo. at 136:12-13.) Drawing all inferences in the
light most favorable to Plaintiff, the evidence supports the inference that Plaintiff was
replaced by a pathologist of equal or inferior qualifications. Accordingly, Plaintiff has
met his minimal burden for this element, and therefore also, his prima facie case under the
ADEA.
3. Defendant’s Legitimate, Nondiscriminatory Reason
By making his prima facie case, Plaintiff raises a rebuttable presumption that
Defendant violated the ADEA. See Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248,
254 (1981). “Once a prima facie case has been made, the burden of production shifts to the
defendant, who must offer evidence that the adverse action was taken for other than
impermissibly discriminatory reasons.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir. 1994) (citing Burdine, 450 U.S. at 254). In other words, Defendant must “offer a
legitimate nondiscriminatory reason for [Plaintiff’s] termination.” Id. at 892. Defendant’s
burden at this stage is minimal: it is one of production, not persuasion. Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010).
Defendant contends that Plaintiff was terminated for a legitimate,
nondiscriminatory reason—namely, for failing to maintain an unrestricted California
medical license pursuant to the VA’s licensing policy. “Several courts have recognized
that violation of company policy is a legitimate, nondiscriminatory reason for
terminating an employee.” Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1169-70
(C.D. Cal. 2013) (collecting cases); see also Earl v. Nielsen Media Research, Inc., 658 F.3d
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1108, 1112 (9th Cir. 2011) (finding that the defendant “articulated a legitimate,
nondiscriminatory reason for [the plaintiff’s] termination by pointing to her multiple
violations of company policy”). Here, the VA’s licensing policy provides, in relevant
part, that an “employee who fails to meet or who fails to present evidence of meeting the
statutory, e.g., 38 U.S.C. 7402, or regulatory requirements for appointment will be
separated.”5 Plaintiff was only licensed in the state of California. And under California
law, physicians must “pay the full biennial renewal fee at the time of license renewal [i.e.,
prior to the license expiration date]” to have an “active, current license.” (Dkt. 84-1, Ex.
FFFFFF.) Plaintiff did not pay his renewal fee by April 30, 2018, the date his license
expired. According to Defendant, because Plaintiff did not do so until May 4, 2018,
Plaintiff’s license fell into “delinquent” status for four days, thus restricting his ability to
practice medicine in California during that period, in violation of the VA’s licensing
policy. (See Dkt. 84-1, Ex. YYYYY.) As such, Defendant has satisfied its burden by
offering a legitimate, nondiscriminatory reason for Plaintiff’s termination. The burden
thus shifts back to Plaintiff to show that Defendant’s stated reason is pretextual.
4. Pretext
Because Defendant has met its burden of providing a legitimate,
nondiscriminatory reason for terminating Plaintiff, “the presumption [of unlawful
discrimination] created by the prima facie case [ ] disappears.” Dominick, 2015 WL
1186229, at *6 (quoting Wallis, 26 F.3d at 892) (alteration in original). “A plaintiff may
demonstrate pretext in either of two ways: (1) directly, by showing that unlawful
discrimination more likely than not motivated the employer; or (2) indirectly, by
showing that the employer’s proffered explanation is unworthy of credence because it is
internally inconsistent or otherwise not believable.” Earl v. Nielsen Media Research, Inc.,

5 Federal law requires physicians to be “licensed to practice medicine, surgery, or
osteopathy in a State.” 38 U.S.C. § 7402.
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658 F.3d 1108, 1112-13 (9th Cir. 2011). “When the plaintiff offers direct evidence of
discriminatory motive, a triable issue as to the actual motivation of the employer is
created even if the evidence is not substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d
1217, 1221 (9th Cir. 1998). Where evidence of pretext is circumstantial, rather than direct,
the plaintiff must produce “specific” and “substantial” evidence “to create a triable issue
with respect to whether the employee intended to discriminate on the basis of [age].” Id.
at 1222.
Plaintiff contends that Dr. Wang-Rodriguez’s comments constitute direct evidence
that the reasons for Plaintiff’s termination were pretextual. However, as discussed
above, these comments were not directly tied to Plaintiff’s termination. See Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996). Plaintiff also has not offered
any circumstantial evidence to contradict that the reason for his termination was
legitimate and nondiscriminatory. There is no evidence to suggest that anyone other
than Ms. Brown had authority to make the decision to terminate Plaintiff. There is no
evidence to suggest that Ms. Brown had, on a separate occasion, enforced the policy
differently by choosing a less punitive measure of discipline, other than immediate
termination. Whether Ms. Brown had discretion to terminate Plaintiff for allowing his
license to expire may have been a key issue to consider at trial, had the evidence existed
on this record. Plaintiff’s own interpretation of the policy and what he thought should
happen in terms of discipline, however, do not create a triable issue of fact. Moreover,
Plaintiff offers no evidence to suggest that Ms. Brown knew anything about Plaintiff
when she was asked to review the grounds for his termination, including how old he
was, or whether any of Plaintiff’s colleagues wanted to terminate him because of age-
based animus.
Because Plaintiff has not produced sufficient direct evidence, or “specific” and
“substantial” circumstantial evidence of pretext, Plaintiff’s age discrimination claim fails.
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B. Hostile Work Environment
Next, Defendant moves for summary judgment against Plaintiff’s claim that he
was subjected to a hostile work environment in violation of the ADEA. To establish a
prima facie hostile work environment claim, Plaintiff must demonstrate he was “(1)
subjected to verbal or physical conduct because of his age, (2) the conduct was
unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the
conditions of plaintiff’s employment and create an abusive working environment.” Juell
v. Forest Pharmaceuticals, Inc., 456 F. Supp. 2d 1141, 1157 (E.D. Cal. 2006) (internal
quotations and brackets omitted).
A hostile work environment claim is based upon the cumulative effect of
individual acts that may not themselves be actionable. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-16 (2002). In determining whether a hostile work environment
claim exists that is actionable, the court looks to all the circumstances, including:
frequency of discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or merely an offensive utterance; and whether it unreasonably interferes
with an employee’s work performance. Id.
Plaintiff points to several interactions involving himself, Dr. Lewis and Dr. Wang-
Rodriguez, as evidence of an abusive working environment. Plaintiff’s evidence
indicates that when Dr. Lewis became Plaintiff’s supervisor in January 2018, Dr. Lewis
informed all staff pathologists, including Plaintiff, that they would begin proctoring in
three service areas. In response to Dr. Lewis’ requests, Plaintiff stated that he did not feel
competent to perform services in the areas outside of hematopathology.
On the same day, Dr. Lewis also informed Plaintiff that he was changing Plaintiff’s
schedule, which happened to match the schedules of the other department pathologists.
Subsequently, Plaintiff complained to Dr. Hartronft and Dr. Wang-Rodriguez about his
schedule change and Dr. Lewis’ proctoring plan. Plaintiff stated that Dr. Lewis’ decision
“suggest[ed] that his intention was retribution with the goal of intimidating and
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harassing [him] to go along with his plan.” Plaintiff also stated that his interactions with
Dr. Lewis caused him stress and “negatively affected both [his] physical and mental
health.” Plaintiff further requested that he be removed from Dr. Lewis’ supervision and
reassigned to another supervisor. In response, Dr. Wang-Rodriguez explained that due
to “recent turnover of staff pathologists,” the department “need[ed] all hands on deck . . .
and [Plaintiff’s] full cooperation and contribution to the department,” and that “given the
diminished hemepath caseload overtime, [the department] need[ed] to identify other
duties as assigned by [Dr. Lewis] to justify a full time appointment.”
Several days later, Dr. Lewis sent Plaintiff a notice of “Proposed Reprimand” for
failing to attend a “mandatory VA GLA Pathology Department Faculty meeting on
January 24, 2017.” The reprimand was ultimately not effectuated.
A week later, Plaintiff voiced a second complaint to Dr. Hartronft, stating that Dr.
Lewis’ requests constituted “coerced malpractice” and was a “strategy to make [him]
resign or retire” given that he had communicated that he was no longer competent in
these areas. Plaintiff also stated that he had filed a harassment complaint to the Office of
Resolution Management and was entitled to protection under the Department of
Veterans Affairs Accountability and Whistleblower Act of 2017.
To summarize up to this point, over the course of one week, Dr. Lewis instructed
Plaintiff to begin proctoring in pathology services outside of his specialty, modified his
schedule, and issued a “Proposed Reprimand,” which the undisputed evidence shows
was never effectuated. Moreover, in response to Plaintiff’s complaints, Dr. Wang-
Rodriguez explained that due to staffing issues, the department needed his “full
cooperation and contribution,” and that his workload needed to increase to justify a full-
time position. Although the actions about which Plaintiff complains could be construed
as harsh and unpleasant, such conduct does not show that Plaintiff’s workplace was
“sufficiently permeated with discriminatory intimidation, ridicule, and insult . . . ,” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), such that it was “subjectively and objectively”
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abusive. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Plaintiff also has not
demonstrated that such acts were age-related.
Because Plaintiff has not raised a genuine issue of material fact as to whether his
harassment was based on age, the court finds that Plaintiff’s claim based on hostile work
environment fails as a matter of law.
C. Constructive Discharge
Plaintiff alludes briefly in his moving papers to a constructive discharge theory.
“Constructive discharge occurs when the working conditions deteriorate, as a result of
discrimination, to the point that they become sufficiently extraordinary and egregious to
overcome the normal motivation of a competent, diligent, and reasonable employee to
remain on the job to earn a livelihood and to serve his or her employer.” Brooks v. City of
San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). To prove a constructive discharge claim, “a
plaintiff must show there are triable issues of fact as to whether a reasonable person in
his position would have felt that [he] was forced to quit because of intolerable and
discriminatory working conditions.” Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1184 (9th
Cir. 2005), as amended by, 433 F.3d 672 (9th Cir. 2006) (internal quotation marks and
citations omitted).
The standard to prove a constructive discharge claim is higher than that required
to prove a hostile work environment claim. Brooks, 229 F.3d at 930 (“Where a plaintiff
fails to demonstrate the severe or pervasive harassment necessary to support a hostile
work environment claim, it will be impossible for her to meet the higher standard of
constructive discharge: conditions so intolerable that a reasonable person would leave
the job.”). A plaintiff must at least show some aggravating factors that compelled him or
her to quit, such as a continuous pattern of discriminatory treatment. Schnidrig v.
Columbia Machine, Inc., 80 F.3d 1406, 1412 (9th Cir. 1996).
Plaintiff points to the same evidence in support of his hostile work environment
claim. Given the court’s conclusion that Plaintiff’s working conditions were not
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“sufficiently permeated with discriminatory intimidation,” the court likewise cannot see
how a reasonable jury could find that Plaintiff was driven from the workplace. See
Brooks, 229 F.3d at 930. For this reason, Plaintiff has not raised a genuine issue as to
constructive discharge based on age discrimination. As such, Plaintiff’s claim for
constructive discharge fails.
D. Retaliation
The ADEA similarly protects from retaliation an employee who has opposed age
discrimination, or participated in investigations, proceedings, or litigation concerning
age discrimination. 29 U.S.C. § 626(d). Retaliation must be shown by evidence that (1)
Plaintiff engaged in a protected activity; (2) Plaintiff was subjected to an adverse action;
and (3) there was a causal link between the protected activity and the employer’s action.
See Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008); Xin Liu v. Amway Corp., 347 F.3d
1125, 1143 (9th Cir. 2003). As above, Plaintiff may rely on the McDonnell Douglas
framework at the summary judgment stage beginning with Plaintiff’s burden to establish
his prima facie case. Xin Liu, 347 F.3d at 1143. Defendant must then articulate a
legitimate, non-retaliatory reason for the challenged action. Plaintiff thereafter must
demonstrate that this reason is pretext for retaliation.
Plaintiff contends that he engaged in the following “protected” activities: (1) on
January 24, 2018, Plaintiff complained to Dr. Wang-Rodriguez and Dr. Hartronft about
Dr. Lewis’ proctoring plan and his changed schedule; (2) on February 8, 2018, Plaintiff
complained to Dr. Hartronft about his personal grievances with Dr. Lewis, that he
considered himself a whistleblower, and that he filed a harassment complaint to the
Office of Resolution Management; (3) on April 4, 2018, Plaintiff requested FMLA leave;
(4) between January and February 2018, Plaintiff “initiated” an EEO complaint against
the VA, naming Dr. Lewis as a responding management official; and (5) on April 19,
2018, Plaintiff filed a formal EEO complaint for age discrimination, retaliation, and
harassment.
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The court finds that Plaintiff’s two informal complaints are not protected
activities. Although informal complaints to a supervisor can constitute a protected
activity, Ray v. Henderson, 217 F.3d 1234, 1240, n.4 (9th Cir. 2000), the protected activity
must actually be protected under the ADEA statute. See Stewart v. Wilkie, No. 2:18-CV-
01887-ODW (SKx), 2019 WL 1114866, at *3 (C.D. Cal. Mar. 11, 2019) (“None of Plaintiff’s
conduct concerns unlawful employment discrimination based on age; as such, it is not
protected activity under the ADEA.”); Lalau v. City of Honolulu, 938 F. Supp. 2d 1000, 1018
(D. Haw. 2013) (noting that plaintiff must identify a protected activity that is “protected
by the statutes [plaintiff] sues under”). Here, there is no mention of age-based
discrimination, harassment, or retaliation in either of the communications that were sent
to Dr. Wang-Rodriguez or Dr. Hartronft. Thus, because the content of Plaintiff’s
complaints was not about Plaintiff’s age, they do not constitute protected activities.
Likewise, Plaintiff’s decision to take FMLA leave does not constitute a protected activity
as a matter of law because the ADEA statute does not protect an employee’s right to take
a medical leave. See Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007). Nevertheless,
there is no dispute that when Plaintiff “initiated” and subsequently filed an EEO
complaint for age-based discrimination, harassment, and retaliation, he engaged in
protected activity. As such, Plaintiff can establish the first element of his prima facie case.
With respect to the second element, there is no dispute that Plaintiff was
terminated, which qualifies as an adverse employment action. See Fonseca v. Sysco Food
Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004). As such, the second element of
Plaintiff’s prima facie case is satisfied.
However, Plaintiff has not established the requisite causal connection between his
protected activity and his termination. As with Plaintiff’s age discrimination claim, here,
there is no evidence that the relevant decision-maker involved in Plaintiff’s termination,
Ms. Brown, knew that Plaintiff filed, let alone “initiated,” an EEO complaint. Brooks, 1 F.
Supp. 3d at 1037 (“In general, if the decision maker does not have knowledge of the
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plaintiff’s protected activity, there can be no retaliation for engaging in that activity.”).
1
As discussed above, Plaintiff does not offer evidence to show that anyone other than Ms.
2
Brown had authority to decide whether to terminate Plaintiff. Moreover, Defendant’s
3
evidence, which Plaintiff does not contradict, suggests that Ms. Brown conducted her
4
own independent investigation to verify that there were legitimate grounds for Plaintiff’s
5
termination. Thus, even if Dr. Lewis and Dr. Wang-Rodriguez were motivated to
6
terminate Plaintiff for retaliatory reasons, there is no evidence Ms. Brown’s decision to
7
terminate Plaintiff was based on anything other than her own independent assessment
8
that Plaintiff had violated the VA’s licensing policy by failing to timely renew his medical
9
10 license. See Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 806 (9th Cir. 2009) (“[W]here
11 the evidence shows ‘that the final decision-maker made a wholly independent, legitimate
12 decision to discharge the plaintiff, uninfluenced by the retaliatory motives of’ Brown, we
13 hold that the neutrality of the decisionmaking process eliminated any ‘causal’ link to
14 Brown’s bias.” (internal citations omitted)).
15 Because Plaintiff has failed to satisfy his prima facie case, Plaintiff’s retaliation claim
16 under the ADEA fails.
17 IV.CONCLUSION
18 For the above reasons, the court GRANTS Defendant’s Motion for Summary
19 Judgment.
20 IT IS SO ORDERED.
21
22 Dated: March 11, 2022
23
24
25 ___________________________________
26 DEAN D. PREGERSON
27 UNITED STATES DISTRICT JUDGE
28 20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9979353. Public record. Not legal advice.