collecting 21 cases where stray remarks were found to be insufficient to create a genuine issue of 22 pretext
How later courts described this case
- collecting 21 cases where stray remarks were found to be insufficient to create a genuine issue of 22 pretext
- finding the plaintiff’s evidence sufficient to 3 raise a question of fact regarding disputed statements, but still insufficient to raise a 4 question of fact regarding pretext
- circumstantial evidence of pretext must be “specific and 2 substantial”
- finding eighteen 10 || months too long and collecting cases finding twelve, eight, five, and four months too 11 || long to raise in inference of retaliation
Written by the judges who cited it.
The opinion
Case 2:19-cv-05078-ODW-JC Document 95 Filed 03/25/22 Page 1 of 17 Page ID #:3848
O
1
2
3
4
5
6
7
8 United States District Court
9 Central District of California
10
11 CLIFFORD MERLO, Case № 2:19-cv-05078-ODW (JCx)
12 Plaintiff, ORDER GRANTING
13 v. DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [63]
14 DENIS MCDONOUGH,
15
Defendant.
16
I. INTRODUCTION
17
Plaintiff Dr. Clifford Merlo brings this action against Defendant Denis
18
McDonough, Secretary of Veterans Affairs, U.S. Department of Veterans Affairs (the
19
“VA”), alleging the VA discriminated against him on the basis of his age in violation
20
of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”). (First
21
Am. Compl. (“FAC”) ¶ 1, ECF No. 17.) Dr. Merlo also claims the VA retaliated
22
against him in violation of the ADEA for his complaints relating to the alleged age
23
discrimination. (Id.) The VA moves for summary judgment on Dr. Merlo’s claims.
24
(Mot. Summ. J. (“Mot.” or “Motion”), ECF No. 63.) For the reasons discussed below,
25
the Court GRANTS the VA’s Motion.1
26
27
28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
Case 2:19-cv-05078-ODW-JC Document 95 Filed 03/25/22 Page 2 of 17 Page ID #:3849
1 II. BACKGROUND
2 The following facts are undisputed unless otherwise noted.
3 Dr. Merlo, born in 1953, was a radiation oncologist in the Department of
4 Radiation Oncology (the “Department”) at the VA West Los Angeles Healthcare
5 Center from January 2012 through May 2015. (Def. Statement of Uncontroverted
6 Facts (“DSUF”) 1–2, ECF No. 63-1.) Dr. Ahmad Sadeghi was Dr. Merlo’s immediate
7 supervisor and the official that decided to hire Dr. Merlo. (DSUF 3–4.) Dr. Sadeghi
8 was ultimately responsible for making Department personnel decisions, including
9 hiring and firing. (Pl. Additional Material Facts (“PAMF”) 41, 41B, ECF No. 66-1.)
10 A. DR. MERLO’S EMPLOYMENT WITH THE VA
11 In 2011, Dr. Sadeghi hired Dr. Merlo on a fee-for-service basis. (FAC ¶ 10;
12 Decl. Ahmad Sadeghi (“Sadeghi Decl.”) ¶ 5, ECF No. 64-1.) In August 2012, Dr.
13 Merlo was hired in a thirteen-month temporary appointment. (DSUF 8.) Dr. Merlo’s
14 temporary appointment was subsequently extended several times, to March 31, 2014,
15 October 31, 2014, and finally May 1, 2015. (Decl. Tanae McNeal (“McNeal Decl.”)
16 ¶¶ 14–16, Exs. 16–18, ECF No. 64-2.) In July 2013, January 2014, and August 2014,
17 Dr. Merlo received performance reviews completed on preprinted forms, each with a
18 written note to the effect that it was “good to have him” in the Department.
19 (PAMF 72; Decl. G. Samuel Cleaver (“Cleaver Decl.”) Ex. 62, ECF No. 67-1.)
20 Although these performance reviews were generally positive, Dr. Merlo often
21 sent suggestive emails to colleagues such as one telling his female colleagues come to
22 work “au natural,” and another commenting, “Oh, I bet you’d like to stick me.”
23 (DSUF 9.) He also routinely raised day-to-day issues with higher-ups like the
24 Secretary of the VA or the VA National Director of Radiation Oncology without
25 consulting Dr. Sadeghi. (DSUF 11, 18.) His superiors counseled him more than once,
26 about a patient complaint against him, his improper charting, and his inappropriate
27 emails. (DSUF 10, 19–21; Decl. Dean C. Norman (“Norman Decl.”) ¶ 9, ECF
28 No. 64-3.)
2
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1 In August 2014, Dr. Sadeghi renewed Dr. Merlo’s temporary appointment for a
2 final term, to expire on April 30, 2015. (PAMF 54; Cleaver Decl. Ex. 52.) Dr.
3 Sadeghi believed that Dr. Merlo’s appointment could not be renewed again beyond
4 this final extension because of limitations set by the VA. (DSUF 22; Sadeghi Decl.
5 ¶ 21.) He also believed it should not be renewed again in light of Dr. Merlo’s
6 cumulative conduct. (DSUF 23; Sadeghi Decl. ¶ 21.)2
7 B. DR. MERLO’S COMPLAINTS
8 Dr. Merlo asserts that, in November 2014, Dr. Sadeghi told Dr. Merlo that he,
9 Dr. Merlo, was getting older and needed to retire to make room for two UCLA
10 residents. (PAMF 55.) The VA disputes this assertion. (Def. Resp. PAMF 55, ECF
11 No. 74-1; Sadeghi Decl. ¶ 18 (“I never mentioned age because I am in this business
12 for many years and I know that this is a very sensitive issue[].”).)
13 On December 12, 2014, Dr. Merlo emailed Dr. Sadeghi, several higher-ups, and
14 an EEO Specialist, complaining about the November comment and requesting a
15 permanent position. (PAMF 59.) From February 2015 to May 2015, Dr. Merlo
16 complained informally about the November comment and continued to ask for a
17 permanent position. (PAMF 60–62, 64.)
18 In April and May 2015, the parties mediated and agreed that (1) Dr. Merlo’s
19 appointment would be extended to May 30, 2015, and (2) Dr. Merlo would
20 acknowledge in a signed Memorandum of Understanding that “the reason for the
21 separation [of employment] will be recorded as expiration of appointment.”
22 (PAMF 63, DSUF 24–25.) Dr. Merlo’s last day with the VA was May 30, 2015. (See
23 PAMF 77.)
24 On June 26, 2015, Dr. Merlo submitted a formal EEO complaint, of which
25 Dr. Sadeghi was notified on August 12, 2015. (PAMF 64, 65; Cleaver Decl. Ex. 55.)
26
2 Dr. Merlo purports to dispute these facts, which concern only what Dr. Sadeghi believed. (See Pl.
27
Statement Genuine Disputes (“PSGD”) 22–23, ECF No. 66-1.) Nevertheless, for the reasons
28 discussed below including those in section IV.A., the Court finds that Dr. Merlo fails to adequately
support the dispute.
3
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1 C. JOB ANNOUNCEMENTS
2 In June 2015, the VA posted a job announcement for a permanent radiation
3 oncologist in the Department. (DSUF 27.) Dr. Merlo applied but was not selected.
4 (PAMF 79; DSUF 30.) The successful applicant withdrew their application in
5 October 2015, so the VA closed that posting and issued a new job announcement to
6 advertise the position again. (DSUF 30–32.) Dr. Merlo applied and was not selected.
7 (PAMF 83–84.) On November 15, 2016, Dr. Sadeghi made the decision to offer the
8 position to the successful applicant, who accepted and was hired. (DSUF 33.)
9 D. PROCEDURAL BACKGROUND
10 The Court has discussed the proceedings of Dr. Merlo’s administrative
11 complaint in its prior orders and does not repeat that history here. (See Order Mot.
12 Dismiss & Recons. (“Order”) 3, ECF No. 28.) After receiving the Final Agency
13 Decision in favor of the VA, Dr. Merlo filed this action for age discrimination and
14 retaliation in violation of the ADEA. (See FAC; Compl., ECF No. 1.) The Court
15 previously established that the scope of Dr. Merlo’s claims is limited to age
16 discrimination after March 1, 2015, and retaliation for age discrimination complaints.
17 (See Order 8 n.2, 12.) The VA now moves for summary judgment as to both claims.
18 (Mot.) The Motion is fully briefed. (Opp’n, ECF No. 66; Reply, ECF No. 74.)
19 III. LEGAL STANDARD
20 A court “shall grant summary judgment if the movant shows that there is no
21 genuine dispute as to any material fact and the movant is entitled to judgment as a
22 matter of law.” Fed. R. Civ. P. 56(a). The burden of establishing the absence of a
23 genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett,
24 477 U.S. 317, 322–23 (1986), and the court must view the facts and draw reasonable
25 inferences in the light most favorable to the nonmoving party, Scott v. Harris,
26 550 U.S. 372, 378 (2007); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.
27 2000). A disputed fact is “material” where the resolution of that fact might affect the
28 outcome of the suit under the governing law, and the dispute is “genuine” where “the
4
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1 evidence is such that a reasonable jury could return a verdict for the nonmoving
2 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Once the moving party satisfies its burden, the nonmoving party cannot simply
4 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a
5 material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322–23;
6 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal.
7 Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
8 (9th Cir. 1987). A “non-moving party must show that there are ‘genuine factual issues
9 that properly can be resolved only by a finder of fact because they may reasonably be
10 resolved in favor of either party.’” Cal. Architectural, 818 F.2d at 1468 (quoting
11 Anderson, 477 U.S. at 250). “[I]f the factual context makes the non-moving party’s
12 claim implausible, that party must come forward with more persuasive evidence than
13 would otherwise be necessary to show that there is a genuine issue for trial.” Id.
14 Though the Court may not weigh conflicting evidence or make credibility
15 determinations, there must be more than a scintilla of contradictory evidence to
16 survive summary judgment. Addisu, 198 F.3d at 1134. The court should grant
17 summary judgment against a party who fails to demonstrate facts sufficient to
18 establish an element essential to his case when that party will ultimately bear the
19 burden of proof at trial. See Celotex, 477 U.S. at 322.
20 Pursuant to Local Rules 56-1 through 56-3, parties moving for summary
21 judgment must file a proposed “Statement of Uncontroverted Facts” that should set
22 out “the material facts as to which the moving party contends there is no genuine
23 dispute.” A party opposing the motion must file a “Statement of Genuine Disputes”
24 setting forth all material facts as to which it contends there exists a genuine dispute.
25 “[T]he Court may assume that the material facts as claimed and adequately supported
26 by the moving party are admitted to exist without controversy except to the extent that
27 [they] are (a) included in the ‘Statement of Genuine Disputes’ and (b) controverted by
28 declaration or other written evidence filed in opposition to the motion.”
5
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1 IV. PRELIMINARY ISSUES
2 Before considering the merits of the Motion, the Court first addresses Dr.
3 Merlo’s egregious disregard for this Court’s rules and procedures. The VA is not
4 blameless in this respect, and its failings must similarly be addressed. The Court also
5 considers the parties’ filings related to evidentiary objections.
6 A. DISREGARD OF RULES AND PROCEDURES
7 The Scheduling and Case Management Order (“Scheduling Order”) requires
8 parties to “prepare papers in a fashion that will assist the Court.” (Scheduling
9 Order 6, ECF No. 35.) Accordingly, each paragraph in a Statement of Uncontroverted
10 Facts, Statement of Genuine Disputes, or Statement of Additional Material Facts
11 “should contain a narrowly focused statement of fact . . . [and] address a single subject
12 in as concise a manner as possible.” (Id.) “Where the opposing party is disputing the
13 fact in whole or part, the opposing party must . . . [list] the opposing party’s evidence
14 controverting the fact.” (Id.) “No argument should be set forth in this document.”
15 (Id. at 7.) “[D]isputing a material fact without any reasonable basis for doing so [or]
16 identifying additional facts in opposition to the motion without any reasonable basis
17 for believing that the additional facts will materially affect the outcome of the motion”
18 is grounds for sanctions under Federal Rule of Civil Procedure 11. (Id.)
19 1. Plaintiff’s Noncompliance
20 Dr. Merlo’s Statement of Genuine Disputes and Additional Material Facts
21 violates all of the above rules, making it extremely onerous for the Court to identify
22 what facts are truly in dispute and whether competent evidence supports any genuine
23 issue. For instance, Dr. Merlo often purports to dispute a fact put forward by the VA,
24 but then includes that fact in his own statement of additional material facts. (Compare
25 PSGD 5 (disputing that “Dr. Sadeghi was the official that decided not to renew
26 Plaintiff’s VA appointment”), with PAMF 41B (asserting “Dr. Sadeghi remained the
27 ultimate decision maker concerning personnel issues” in the Department).)
28 Additionally, rather than cite to evidence in support of his purported disputes,
6
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1 Dr. Merlo either relies on improper argument and legal conclusions or, perhaps most
2 egregiously, repeatedly cites a block of his additional asserted facts. (See, e.g., PSGD
3 5 (citing PAMF 52–57, 66–73, 81, 93; 55–66, 94–95; 80–93; 69–72; 54, 76, 76A,
4 92).) Another method of “response” Dr. Merlo favors is to simply ignore the asserted
5 fact and argue his own version of events. (See, e.g., PSGD 18–22.)
6 The Court is inclined to strike the Opposition and related documents as a
7 sanction for Dr. Merlo’s egregious disregard of rules and procedures. See Fed. R. Civ.
8 P. 11(c). However, as judicial resources have already been expended to untangle
9 Dr. Merlo’s obfuscation, the Court declines to strike the offending filings.
10 Nevertheless, the Court disregards Dr. Merlo’s disputes of fact to the extent they cite
11 to his own additional facts rather than competent evidence, are nonresponsive, or
12 include improper argument and legal conclusions. Further, the Court disregards Dr.
13 Merlo’s additional material facts to the extent they address more than a single subject,
14 fail to cite evidentiary support, or include improper argument and legal conclusions.
15 Adding to the confusion, Dr. Merlo filed five Notices of Errata, purportedly
16 “correcting” previous errors. (See Notices of Errata, ECF Nos. 71, 86, 88, 92, 93.)
17 The first of these was filed three days after his opposition brief was due, and rather
18 than “correct clerical errors,” it changes, supplements, and adds new evidence. This is
19 improper and prejudicial to the VA’s preparation of its reply. Accordingly, the Court
20 STRIKES Dr. Merlo’s first Notice of Errata, (ECF No. 71). See Johnson v. Cate,
21 No. 1:10-cv-00803-AWI-MJS (PC), 2015 WL 5321784, at *3 (E.D. Cal. Sept. 10,
22 2015) (citing Bias v. Moynihan, 508 F.3d 1212, 1223–24 (9th Cir. 2007)). As for the
23 other Notices of Errata, (ECF Nos. 86, 88, 92, 93), the Court sees no benefit in
24 considering them. These materials only further highlight Dr. Merlo’s counsel’s
25 carelessness, while unnecessarily burying the Court in reams of paper.
26 2. Defendant’s Noncompliance
27 The VA is not blameless. The Scheduling Order directs that all assertions of
28 fact in the Memorandum of Points and Authorities “should be supported with citations
7
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1 to the paragraph number in the Separate Statement that supports the factual
2 assertions.” (Scheduling Order 9.) Nevertheless, more than half of the VA’s factual
3 assertions in its Memorandum cite to only evidence and not to the Separate Statement.
4 (See Mot. 3.) The VA’s failure to cite the SUF contravenes the Court’s rules and
5 denies Dr. Merlo the opportunity to clearly dispute asserted facts. Accordingly, as a
6 point of clarification, the Court does not rely on any factual assertion in either party’s
7 Memoranda that is not directly supported by the DSUF or the PAMF.
8 B. EVIDENTIARY MATTERS
9 A party objecting to evidence is required to submit a separate memorandum in
10 the specified format, identifying the objectionable evidence and providing very brief
11 argument regarding the objections. (Scheduling Order 8.) Dr. Merlo nominally
12 objects to two of the VA’s uncontroverted facts in his PSGD, but files no separate
13 memorandum with his purported objections to the evidence. The Court therefore
14 disregards Dr. Merlo’s objections, both as unsupported and as improperly raised.
15 The VA did file a separate memorandum with its objections to Dr. Merlo’s
16 evidence. (ECF No. 74-2.) Where the objected evidence is unnecessary to the
17 resolution of the summary judgment motion or supports facts not in dispute, the Court
18 need not resolve those objections here. To the extent the Court relies on objected-to
19 evidence in this Order, those objections are OVERRULED. See Burch v. Regents of
20 Univ. of Cal., 433 F. Supp. 2d 1110, 1122 (E.D. Cal. 2006) (proceeding with only
21 necessary rulings on evidentiary objections).
22 Finally, Dr. Merlo’s Response to the VA’s Evidentiary Objections includes
23 improper argument and additional evidence, and the Court accordingly STRIKES it
24 as an impermissible surresponse. (ECF No. 75.)
25 V. DISCUSSION
26 The VA moves for summary judgment on Dr. Merlo’s claims for age
27 discrimination and retaliation in violation of the ADEA.
28
8
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1 A. AGE DISCRIMINATION
2 On a defendant’s motion for summary judgment, claims of age discrimination
3 under the ADEA are evaluated pursuant to the burden-shifting framework provided in
4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).3 See Whitman v. Mineta,
5 541 F.3d 929, 932 (9th Cir. 2008). Under the McDonnell Douglas framework, “the
6 burden of production first falls on the plaintiff to make out a prima facie case of
7 discrimination.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
8 To establish a prima facie case of age discrimination under the ADEA, “the plaintiff
9 must show that he was: (1) a member of a protected class [age 40–70]; (2) performing
10 his job in a satisfactory manner; (3) discharged; and (4) replaced by a substantially
11 younger employee with equal or inferior qualifications.” Nidds v. Schindler Elevator
12 Corp., 113 F.3d 912, 917 (9th Cir. 1996). Plaintiff’s prima facie case requires only a
13 minimal showing. Coghlan, 413 F.3d at 1094.
14 Once the plaintiff establishes a prima facie case, “the burden of production
15 shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
16 employment decision.” Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). This is
17 not a burden of persuasion and does not involve credibility. Wallis, 26 F.3d at 892. If
18 the employer provides a nondiscriminatory reason, the presumption of discrimination
19 falls away. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
20 The burden then rests with the plaintiff, who is “afforded the opportunity to prove by a
21 preponderance of the evidence that the legitimate reasons offered by the defendant
22 were not its true reasons, but were a pretext for discrimination.” Id. (internal
23 quotation marks omitted). A plaintiff may meet this burden with direct or
24 circumstantial evidence, or both. Coghlan, 413 F.3d at 1094–95.
25
26
3 Claims of discrimination under the ADEA, Title VII, and California’s Fair Housing and
27
Employment Act are assessed similarly. See Earl v. Nielsen Media Rsrch., Inc., 658 F.3d 1108,
28 1112 (9th Cir. 2011); Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994). Therefore, cases
involving these Acts are relevant to the ADEA analysis.
9
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1 The adverse actions at issue here are the May 2015 nonrenewal of temporary
2 appointment and the October 2015 and November 2016 nonselection for the
3 permanent radiation oncologist position. The Court need not decide whether Dr.
4 Merlo can establish a prima facie case for either because it is clear that his claim for
5 age discrimination fails by the final stage of the burden-shifting framework. See
6 Chavez v. JP Morgan Chase & Co., 731 F. App’x 592, 594 (9th Cir. 2018) (affirming
7 summary judgment where the plaintiff failed to carry her burden to show pretext).
8 To meet its initial burden, the VA must produce evidence of its legitimate
9 business reasons for not renewing Dr. Merlo’s temporary appointment. No assessment
10 of credibility may take place concerning defendant’s offered nondiscriminatory
11 reasons at this stage. See Wallis, 26 F.3d at 892. Here, the VA’s evidence includes Dr.
12 Sadeghi’s declaration indicating he believed the appointment could not be renewed
13 again due to VA policy and also that it should not be renewed due to Dr. Merlo’s
14 cumulative unsatisfactory conduct and disinterest in modern techniques and research.
15 (Sadeghi Decl. ¶¶ 9–13, 15–17, 21.) Dr. Sadeghi’s declaration also sets forth the VA’s
16 legitimate business reasons for not selecting Dr. Merlo for the permanent radiation
17 oncologist position, including that Dr. Sadeghi believed the selected candidates were
18 better qualified, demonstrated a desired interest in modern techniques and research
19 that Dr. Merlo did not, and that Dr Merlo’s conduct during his employment with the
20 VA had not been entirely satisfactory. (Id. ¶¶ 26–27.) The VA thus meets its burden to
21 offer legitimate nondiscriminatory reasons for the nonrenewal and nonselection. See
22 Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1275–76 (9th Cir. 1981) (finding selection
23 of a better qualified applicant was a legitimate nondiscriminatory reason).
24 The presumption of discrimination thus falls away and the burden rests with Dr.
25 Merlo to show the VA’s reasons are pretextual. Dr. Merlo fails to carry this burden,
26 with either direct or circumstantial evidence.
27
28
10
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1 1. Direct Evidence of Pretext
2 Direct evidence is “evidence which, if believed, proves the fact of
3 discriminatory animus without inference or presumption.” Godwin v. Hunt Wesson,
4 Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). “When the plaintiff offers direct evidence
5 of discriminatory motive, a triable issue as to the actual motivation of the employer is
6 created even if the evidence is not substantial.” Id.
7 Dr. Merlo contends he has produced direct evidence of discriminatory intent,
8 specifically the statement by Dr. Sadeghi that Dr. Merlo was getting older and should
9 retire to make room for two UCLA residents. (PAMF 55.) However, even accepting
10 as true the disputed assertion that Dr. Sadeghi made such a comment, see Scott,
11 550 U.S. at 378, it is not “direct evidence” because additional inference is needed to
12 find that Dr. Sadeghi failed to renew or rehire Dr. Merlo due to his age. Dr. Merlo
13 contends the remark was made in November 2014, which is months after the terminal
14 extension of Dr. Merlo’s appointment was made in August 2014, and months before
15 his appointment expired in May 2015. Dr. Merlo points to no other specific similar
16 remark by Dr. Sadeghi suggesting animus during this time period or any time prior.
17 Such isolated and stray remarks, not directly tied to the adverse employment action,
18 constitute “‘at best weak circumstantial evidence’ of discriminatory animus.”
19 Pottenger v. Potlatch Corp., 329 F.3d 740, 747 (9th Cir. 2003) (emphasis added); see
20 also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284 (9th Cir. 2000) (collecting
21 cases where stray remarks were found to be insufficient to create a genuine issue of
22 pretext). Therefore, Dr. Merlo does not demonstrate pretext through direct evidence.
23 2. Circumstantial Evidence of Pretext
24 The Court next examines whether Merlo submits circumstantial evidence
25 sufficient to raise a triable issue as to pretext. Circumstantial evidence “is evidence
26 that requires an additional inferential step to demonstrate discrimination.” Coghlan,
27 413 F.3d at 1095. A plaintiff may establish pretext with circumstantial evidence (1) by
28 affirmatively demonstrating an employer’s bias, or (2) by negating the employer’s
11
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1 proffered explanation as being “unworthy of credence.” Id. (quoting Texas Dep’t
2 Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). When evidence of pretext is
3 circumstantial, it must be “specific and substantial” to raise a triable issue as to
4 pretext. Id.
5 Dr. Merlo first seeks to establish Dr. Sadeghi’s animus affirmatively, with
6 evidence that Dr. Sadeghi told him he was getting older and should retire. (See
7 PAMF 55.) He also seeks to show the VA’s proffered reasons are unworthy of
8 credence, with evidence that the VA gave conflicting reasons for not renewing his
9 appointment and that his performance while employed with the VA was satisfactory.
10 (See PAMF 68, 70, 72.)
11 As discussed above, isolated stray remarks not tied to the adverse employment
12 action constitute only weak circumstantial evidence and without more are insufficient
13 to raise a triable issue of fact. See Pottenger, 329 F.3d at 747. This is particularly so
14 where, as here, there is also evidence of the plaintiff’s poor performance or the
15 plaintiff offers no other indicia of discriminatory intent. See Holtzclaw v. Certainteed
16 Corp., 795 F. Supp. 2d 996, 1014 (E.D. Cal. 2011) (“[T]hese isolated and stray
17 remarks are insufficient to establish discrimination without other indicia of
18 discriminatory intent.” (internal quotation marks omitted)); Chavez, 731 F. App’x
19 at 595 (finding remark from manager, “you should be retired by now,” did not raise
20 triable issue of fact where employer submitted evidence of poor performance).
21 Dr. Merlo next argues that the VA gave conflicting reasons for the decision not
22 to further renew his temporary appointment, suggesting discriminatory motive. (See
23 PAMF 68.) This argument is unavailing. “Although ‘fundamentally different
24 justifications for an employer’s action . . . give rise to a genuine issue of fact with
25 respect to pretext,’” Pottenger, 329 F.3d at 746, the reasons identified by Dr. Merlo
26 “are not incompatible, and therefore not properly described as ‘shifting reasons,’”
27 Nidds, 113 F.3d at 918. Dr. Sadeghi believed a temporary appointment could be
28 renewed only three or four times, which Dr. Merlo’s appointment had. (Sadeghi Decl.
12
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1 ¶ 21; Cleaver Decl. Ex. 72 (“Sadeghi 2017 Dep.”) 148:10–24.) Moreover, both Dr.
2 Sadeghi and Dr. Norman submit declaration testimony and supporting evidence that
3 Dr. Merlo’s cumulative conduct was unsatisfactory. (Sadeghi Decl. ¶¶ 9–17; Norman
4 Decl. ¶¶ 6–12.) Dr. Steve P. Lee told the EEO investigator that Dr. Merlo’s term was
5 about to end and there was “no further need for the professional services that [Dr.
6 Merlo] could provide.” (Cleaver Decl. Ex. 59, ¶ 5.) These approaches to Dr. Merlo’s
7 termination may vary, but they are not “fundamentally different” or altogether
8 contradictory justifications; therefore, they fail to raise a triable issue as to pretext.
9 See Foster v. City of Oakland, 649 F. Supp. 2d 1008, 1021 (N.D. Cal. 2009) (citing
10 Nidds, 113 F.3d at 918) (finding the plaintiff failed to raise a triable issue as to pretext
11 where the defendant’s “explanations were not incompatible”).
12 Finally, Dr. Merlo argues the evidence shows his job performance was
13 satisfactory when his appointment expired. He points to the VA’s response to his
14 request for admission (“RFA”) during the EEO proceeding and the three VA
15 performance reviews. (PAMF 70, 72.) In the EEO proceeding, the VA responded
16 affirmatively to an RFA that Dr. Merlo was performing his job satisfactorily; however,
17 the VA also objected to the request as “vague and ambiguous” and denied a similar
18 RFA in the instant case. (See Cleaver Decl. Exs. 60–61.) And the performance
19 reviews are merely check-box forms with a brief written comment and were all
20 completed prior to Dr. Merlo’s final six-month extension. (See id. Ex. 62.) The
21 reviews constitute only weak circumstantial evidence of pretext in light of their
22 timing, their generalized nature requiring little reflection, and the contrasting evidence
23 of cumulative unsatisfactory conduct. See Pottenger, 329 F.3d at 746 (finding that
24 positive performance reviews constituted only weak circumstantial evidence of pretext
25 where evidence of negative performance was also present). Although this evidence
26 may be sufficient to permit a jury to find that Dr. Merlo’s performance was
27 satisfactory in some respects, the evidence is weak, and in the context of Dr. Merlo’s
28 otherwise weak evidentiary showing, it is insufficient to render pretext triable. See
13
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1 Coghlan, 413 F.3d at 1095 (circumstantial evidence of pretext must be “specific and
2 substantial”); Coleman, 232 F.3d at 1285 (finding the plaintiff’s evidence sufficient to
3 raise a question of fact regarding disputed statements, but still insufficient to raise a
4 question of fact regarding pretext).
5 This conclusion is bolstered by the “same actor” inference. “[W]here the same
6 actor is responsible for both the hiring and the firing of a discrimination plaintiff, and
7 both actions occur within a [few years], a strong inference arises that there was no
8 discriminatory action.” Coghlan, 413 F.3d at 1096. It is undisputed that Dr. Sadeghi
9 is responsible for all personnel decisions in the Department.4 (PAMF 41B.) He made
10 the initial appointment and terminal decision within two to three years. (See PAMF 54
11 (Dr. Sadeghi requested the terminal extension in August 2014); DSUF 2 (initial
12 appointment 2012 and last day 2015).) Therefore, the same actor inference applies.
13 Dr. Merlo does not satisfy the “extraordinarily strong showing of discrimination”
14 required to defeat this inference. Coghlan, 413 F.3d at 1097.
15 For these reasons, the Court concludes that Dr. Merlo fails to present sufficient
16 evidence of pretext to survive summary judgment. See Schechner v. KPIX-TV,
17 686 F.3d 1018, 1027 (9th Cir. 2012) (affirming summary judgment where same actor
18 inference weakened plaintiff’s showing of pretext).
19 B. RETALIATION
20 Dr. Merlo also asserts a retaliation claim under the ADEA, which makes it
21 unlawful for an employer to retaliate against an employee for opposing unlawful age
22 discrimination. See 29 U.S.C. § 623(d). The McDonnell Douglas burden-shifting
23 framework is also used to analyze ADEA retaliation cases. See Wallis, 26 F.3d at 889.
24 The plaintiff first must establish a prima facie case of retaliation; the defendant
25
26 4 Dr. Sadeghi made the decisions to hire Dr. Merlo and to not renew his temporary appointment.
(DSUF 4, 5; PAMF 41, 41B.) Dr. Merlo attempts to contest that Dr. Sadeghi made the nonrenewal
27
decision, but he fails to support the dispute. (See PSGD 5.) Regardless, the VA’s evidence
28 indisputably establishes that Dr. Sadeghi was responsible for both decisions. (See Sadeghi Decl.
¶¶ 4, 21, Ex. 1; Norman Decl. ¶ 16; Decl. Steve P. Lee ¶¶ 12–13, 17, 22, Exs. 28, 31, ECF No. 64-4.)
14
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1 employer must then proffer legitimate, nonretaliatory reasons for the adverse action;
2 and the plaintiff must show that the defendant’s reasons are pretextual. See id.
3 1. Nonrenewal
4 To establish a prima facie case of retaliation, a plaintiff must establish that
5 (1) he engaged in a protected activity; (2) he suffered an adverse employment action;
6 and (3) there is a causal link between his protected activity and the adverse
7 employment action. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064
8 (9th Cir. 2002).5 “To show the requisite causal link, the plaintiff must present
9 evidence sufficient to raise the inference that h[is] protected activity was the likely
10 reason for the adverse action.” Patel v. Cal. Dep’t Pub. Health, No. 2:15-cv-02471-
11 KJN, 2018 WL 4006554, at *19 (E.D. Cal. Aug. 17, 2018) (alteration in original)
12 (quoting Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)). The
13 nonrenewal-retaliation claim fails at the start because Dr. Merlo does not raise a
14 triable issue as to a causal link.
15 The undisputed facts and evidence establish that Dr. Merlo first complained of
16 age discrimination on December 12, 2014. (See PAMF 59; Cleaver Decl. Ex. 53
17 at EA038.) But it is also undisputed that, as of November 1, 2014, the adverse
18 employment action of a terminal extension was already taken against him. (DSUF 13;
19 Sadeghi Decl. ¶ 8; McNeal Decl. ¶ 16, Ex. 18.) And before that, in August 2014, Dr.
20 Sadeghi and Dr. Lee requested that Dr. Merlo’s temporary appointment expire in
21 2015. (DSUF 12; PAMF 54; Cleaver Decl. Ex. 52.) Therefore, the protected activity
22 could not possibly have been the cause of the adverse employment action and, as a
23 result, the VA is entitled to judgment as a matter of law on the causal link element.
24 See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (finding the plaintiff
25 “ha[d] not shown that any causal connection exists” where the defendant learned of
26 the protected activity at least one day after the adverse employment decision).
27
5 “[T]he ADEA anti-retaliation provision is parallel to the anti-retaliation provision contained in
28 Title VII” so Villiarimo and other Title VII cases are relevant to the ADEA analysis. Poland v.
Chertoff, 494 F.3d 1174, 1180 n.1 (9th Cir. 2007) (internal quotation marks omitted).
15
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1 As Dr. Merlo fails to raise a triable issue regarding causation, the nonrenewal-
2 retaliation claim fails and the VA is entitled to judgment as a matter of law.
3 2. Nonselection
4 Like the age discrimination claim discussed above, the nonselection-retaliation
5 claim fails at the pretext stage: Dr. Merlo does not carry his burden to show the VA’s
6 legitimate business reasons for his nonselection were pretextual for retaliation. A
7 plaintiff may establish pretext for retaliation in the same ways as discrimination, by
8 persuading the court that an employer’s motivation was more likely retaliatory or by
9 showing that “the employer’s proffered explanation is unworthy of credence.” Stegall
10 v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003), as amended (Jan. 6, 2004)
11 (quoting Burdine, 450 U.S. at 256).
12 Dr. Merlo refers to his discrimination pretext arguments as also establishing
13 pretext for retaliation. (Opp’n 21 (referring to the grounds “discussed above”).) The
14 Court has addressed these arguments. Dr. Merlo offers only weak circumstantial
15 evidence, which is insufficient to establish pretext. Accordingly, for the same reasons
16 discussed above herein, these arguments fail to establish pretext for retaliation. See
17 supra, § V.A.
18 Additionally, Dr. Merlo relies on temporal proximity to support causation and
19 pretext for the nonselection-retaliation. (Opp’n 17–18.) “[T]iming alone will not
20 show causation in all cases; rather, in order to support an inference of retaliatory
21 motive, the [adverse employment action] must have occurred fairly soon after the
22 employee’s protected expression.” Holtzclaw, 795 F. Supp. 2d at 1020 (first quoting
23 Villiarimo, 281 F.3d at 1065 (internal quotation marks omitted); and then citing
24 Breeden, 532 U.S. at 273–74 (stating temporal proximity must be “very close”)). It is
25 the closing of an open position that constitutes an adverse employment action. See
26 Rowell v. Sony Pictures Television Inc., 743 F. App’x 852, 854 (9th Cir. 2018) (citing
27 Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 1986) (stating that
28 the “‘adverse employment decision’ is the closing of the job opening” to plaintiff)).
16
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1 Here, Dr. Merlo submitted a formal complaint of age discrimination on June 26,
2 || 2015, of which Dr. Sadeghi received notice on August 12, 2015. In October 2015, the
3 || VA closed the first posting without hiring anyone and issued a new announcement for
4|| the same position. It was not until November 2016 that Dr. Sadeghi hired the
5 || successful applicant and the permanent radiation oncologist position finally closed.
6 || Thus, at least two months passed between the most recent protected activity (August
7 || 2015) and the first closing (October 2015), and fourteen months passed before the
8 | final adverse decision (November 2016). Fourteen months “is simply too long” to
9 || create an inference of pretext. See Villiarimo, 281 F.3d at 1065 (finding eighteen
10 || months too long and collecting cases finding twelve, eight, five, and four months too
11 || long to raise in inference of retaliation). And although two months may be
12 | sufficiently close in time to raise an inference of retaliation, such tenuous temporal
13 || proximity, without more, constitutes only weak circumstantial evidence. See Breeden,
14 || 532 U.S. at 273-74; Holtzclaw, 795 F. Supp. 2d at 1020. Even considered together
15 || with the weak circumstantial evidence “discussed above,” it does not amount to the
16 || “substantial” evidence of pretext necessary to satisfy Dr. Merlo’s burden. See
17 || Coghlan, 413 F.3d at 1095.
18 Dr. Merlo fails to present sufficient evidence of pretext to survive summary
19 || judgment on the nonselection-retaliation claim.
20 VI. CONCLUSION
21 For the reasons discussed above, the Court GRANTS Defendant’s Motion for
22 | Summary Judgment on Plaintiff's age discrimination and retaliation claims under the
23 | ADEA. (ECF No. 63). All remaining dates and deadlines are VACATED.
24
25 IT IS SO ORDERED.
26 Se) oy
27 March 25, 2022 Meds Leek VA
28 OTIS D. HT, II
UNITED STATES DISTRICT JUDGE
17