Uche-Uwakwe v. Shinseki (972 F. Supp. 2d 1159, 2013)

United States District Court for the Central District of California 2013-09-18

Citations

Full opinion text

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SHINSEKPS MOTION FOR SUMMARY JUDGEMENT

VIRGINIA A. PHILLIPS, District Judge.

Defendant Eric K. Shinseki’s Motion for Summary Judgment came before the Court for hearing on September 16, 2013. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court GRANTS IN PART AND DENIES IN PART the Motion.

I. BACKGROUND

On September 12, 2012, Plaintiff Maureen Uche-Uwakwe (“Plaintiff’) filed a Complaint against Defendants Eric K. Shinseki, in his official capacity as the Secretary of Veterans Affairs (“VA”), and Brian Kawahara, alleging the following claims: (1) retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 et seq. (“Title VII”), against Defendant Shinseki; (2) race and ancestry discrimination in violation of 42 U.S.C. § 1981, against all Defendants; and (3) “harassment/hostile work environment,” in violation of 42 U.S.C. § 1981, against all Defendants. (See Compl., Doc. No. 1.) The Complaint alleged, inter alia, that Plaintiff was subjected to harassment at the Loma Linda Veterans Affairs Medical Center (“LLVAMC”), where Plaintiff was the only African-American pharmacist, causing her to make numerous complaints both informally and formally, including filing Equal Employment Opportunity (“EEO”) complaints and a federal lawsuit that named her co-workers, supervisors, and the Chief of Pharmacy Services, Brian Kawahara. (See Compl. 9191 8-34.)

On December 5, 2012, Plaintiff filed a First Amended Complaint (“FAC”), naming the same Defendants in the case caption but directing the claims against only Defendant Shinseki, for retaliation in violation of Title VII, and for harassment/hostile work environment in violation of Title VII. (See FAC, Doc. No. 18.) Plaintiff then filed a “Joint Stipulation to Amend Amended Complaint” on January 3, 2013, and filed a Second Amended Complaint (“SAC”) on January 8, 2013. (See Doc. Nos. 19, 20.)

In the SAC, Plaintiff alleged claims for retaliation in violation of Title VII against Defendant Shinseki, and “harassment/hostile work environment” in violation of Title VII against Defendant Shinseki; despite naming Kawahara as a Defendant, Plaintiff did not allege any claims against him in the SAC. (See SAC.)

On January 14, 2013, Plaintiff filed a Notice of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1) as to Defendant Kawahara. (See Doc. No. 21.) Defendant Shinseki filed an Answer to the SAC on January 24, 2013. (See Doc. No. 23.)

On August 19, 2013, Defendant Shinseki (hereinafter “Defendant”) filed a Notice of Motion and Motion for Summary Judgment (“Motion”), along with the Declaration of Cory Werdebaugh (“Werdebaugh Deck”) and attached Exhibits 1 through 6, the Declaration of Indira Cameron-Banks (“Cameron-Banks Deck”) and attached Exhibits 7 through 11, and a Statement of Uncontroverted Facts and Law (“DSUF”). (See Doc. NO. 49.) On August 22, 2013, Defendant filed a Notice of Errata, attaching a corrected version of Exhibit 8 to the Cameron-Banks Declaration. (See Doc. No. 50.)

On August 26, 2013, Plaintiff filed Opposition to the Motion (“Opposition” or “Opp’n”), along with a Separate Statement of Undisputed Facts in Support of Plaintiffs Opposition (“PSUF”), the Declaration of Maureen Uche-Uwakwe (“Uche-Uwakwe Decl.”) and attached Exhibits A through S, the Declaration of Joseph D. Curd (“Curd Decl.”) and attached Exhibits T through AA, Objections to Evidence in Support of Opposition (“PI. Evid. Obj”), and Notice of Lodging of Authorities in Support of Opposition. (See Doc. No. 51.) Plaintiff also filed a Notice of Errata, correcting the hearing time for the Motion reflected on the cover page of her Opposition papers.

On August 31, 2013, Defendant untimely filed a Reply in support of his Motion, the Declaration of Cory Werdebaugh in support of the Reply (“Supp. Werdebaugh Decl.”) and attached Exhibit 13, the Declaration of Indira Cameron-Banks (“Supp. Cameron-Banks Decl”) and attached Exhibits 14 and 15, and Evidentiary Objections to the Uche-Uwakwe Declaration.

On September 3, 2013, Defendant filed a Notice of Lodging the Table of Contents and Table of Authorities, apparently inadvertently omitted from the Reply filing, as well as a Notice of Lodging Proposed Order, apparently also inadvertently not filed with the moving papers. (See Doc. Nos. 57, 58.)

II. LEGAL STANDARD

A court shall grant a motion for summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that “under the governing law, there can be but one -reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998) (citing Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505); Retail Clerks Union Local 618 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Where the moving party has the burden at trial, “that party must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331, 106 S.Ct. 2548. The burden then shifts to the non-moving party “and requires that party ... to produce evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.; Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Fed.R.Civ.P. 56(a).

Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party’s case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Instead, the moving party’s burden is met by pointing out that there is an absence of evidence supporting the non-moving party’s case. Id. The burden then shifts to the non-moving party to show that there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144.

A genuine issue of material fact will exist “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987).

III. EVIDENTIARY RULINGS

Before setting forth the uncontroverted facts in this action, the Court examines the admissibility of the evidence offered by both sides in support of, and opposition to, the Motion.

“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002). “Authentication is a ‘condition precedent to admissibility,’ and this condition is satisfied by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’ ” Id. (citation omitted).

A. Plaintiff’s Objections

Plaintiff objects to portions of the Declaration of Cory Werdebaugh filed in support of the Motion, as well as to several DSUFs.

1. Objections to Werdebaugh Declaration

Plaintiff objects to a sentence in paragraph 7 of the Werdebaugh Declaration, ie., “I remember the Chief of HR ... related to workers’ compensation liability” on the basis of hearsay, that it lacks foundation, and that it calls for a legal conclusion. (See PI. Obj. at 2.) The Court sustains Plaintiffs hearsay objection and finds the assertion inadmissible, as it is not offered against a party opponent who made the statement. See Fed.R.Evid. 801(d)(2).

Plaintiff objects to a sentence in paragraph 8 of the Werdebaugh Declaration, ie., “I believe that it was an appropriate ... chronically understaffed at that time” on the basis that it lacks foundation, and is irrelevant. (See PI. Obj. at 2.) The Court sustains Plaintiffs lacks foundation objection and finds the assertion inadmissible, as the declarant has not established any personal knowledge of the staffing needs of the outpatient pharmacy and she has not provided her personal knowledge that she was familiar with the circumstances under which Plaintiff had previously been reassigned or how she know those issues were “no longer applicable.” See Fed. R.Evid. 602.

Plaintiff objects to another sentence in paragraph 8 of the Werdebaugh Declaration, ie., “I also recall that ... performance as an outpatient pharmacist” on the basis of hearsay and that it lacks foundation. (See PI. Obj. at 3.) The Court sustains Plaintiffs hearsay objection and finds the assertion inadmissible, as statements made by Plaintiffs “line supervisor in the inpatient pharmacy” are inadmissible hearsay and not offered against a party opponent who made the statement. See Fed. R.Evid. 801(d)(2).

Plaintiff objects to a portion of a sentence in paragraph 9 of the Werdebaugh Declaration, ie., “which places an undue burden on the pharmacy service” on the basis that it lacks foundation and personal knowledge. (See PL Obj. at 3.) The Court sustains both objections, as the declarant has not established the declarant’s personal knowledge of the staffing needs of the pharmacy service. See Fed.R.Evid. 602.

2. Objections to Defendant’s SUF’s

The Court sustains Plaintiffs objections to the following of DSUFs on the basis that' the cited evidence does not support the purported statement of fact: ¶¶ 3, 14, 19, 28, 33, 34, and 35. As to DSUF ¶ 3, the Court finds a portion of the fact is supported by. the cited evidence, but the statement “but desired it as a personal educational goal” is not supported; accordingly, the Court will not consider that portion. Likewise, as to DSUF ¶ 28, the Court finds a portion of the fact is supported by the cited evidence, but the statement “despite a direct request from a Privacy Officer” is not supported and the Court will not consider it. Finally, as to DSUF ¶ 35, the Court finds portions of the fact is supported by the cited evidence: “At the time, Plaintiff, as an outpatient pharmacist;” and “could not be properly supervised or evaluated [by] the inpatient pharmacy supervisor.”

The Court overrules Plaintiffs objections to DSUFs ¶¶ 7,12, 40, and 41.

B. Defendant’s Objections

Defendant objects to portions of the Maureen Uehe-Uwakwe Declaration.

Defendant objects to paragraph 2 of the Uehe-Uwakwe Declaration on the basis of relevance, undue prejudice, and that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action. (See Def. Evid. Obj. at 1.) The Court sustains Defendant’s relevance objection as to the following portion of paragraph 2 and finds this portion inadmissible: “My first line supervisor at the ... apply for a permanent, full-time pharmacist.” The Court overrules Defendant’s remaining objections to this paragraph.

Defendant objects to paragraph 3 of the Uehe-Uwakwe Declaration on the basis of relevance, undue prejudice, speculation, and lacks foundation. (See Def. Evid. Obj. at 1-2.) The Court sustains Defendant’s relevance objection as to the following portion of paragraph 3 and finds this portion inadmissible: “I was trained as an inpatient pharmacist ... Monday through Friday.” The Court overrules Defendant’s remaining objections to this paragraph.

Defendant objects to paragraph 4 of the Uehe-Uwakwe Declaration on the basis of relevance, undue prejudice, hearsay, and that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action. (See Def. Evid. Obj. at 2.) The Court overrules Defendant’s objections to this paragraph.

Defendant objects to paragraph 14 of the Uehe-Uwakwe Declaration on the basis that Plaintiff did not lay sufficient foundation for her assertion that she “know[s] you can be disciplined or lose your job if you are AWOL, especially for that long a time.” (See Def. Evid. Obj. at 2-3.) Although Plaintiff did not expressly identify her basis for this understanding, the Court overrules the objection because Plaintiff has been employed at LLVAMC for over ten years and this information reasonably falls within the purview of employees, especially long term employees such as Plaintiff. Defendant did not object to Plaintiffs assertion in this paragraph about the statement made to Plaintiff by Maryann Chamberlain, identified as a payroll supervisor. (See Uehe-Uwakwe Decl. at ¶ 14 (“Ms Chamberlain advised me ... had been for approximately one month.”).) The Court nevertheless finds this statement admissible for its non-hearsay purpose of effect on the listener. See Fed. R.Evid. 801(c)(2); United States v. Payne, 944 F.2d 1458, 1472 (9th Cir.1991). The statement is not admissible for the truth of the matter asserted.

Defendant objects to paragraph 17 of the Uehe-Uwakwe Declaration on the basis that it lacks personal knowledge, contains hearsay, is irrelevant, and unduly prejudicial. (See Def. Evid. Obj. at 3.) The Court sustains Defendant’s hearsay and lack of personal knowledge objections and finds the entire paragraph inadmissible.

Defendant objects to paragraph 18 of the Uehe-Uwakwe Declaration on the basis that it lacks personal knowledge, contains speculation, hearsay, and improper lay opinion, is irrelevant and unduly prejudicial, and that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action. (See Def. Evid. Obj. at 4.) The Court sustains Defendant’s lack of personal knowledge and speculation objections as to the following inadmissible assertion: “Ms. Dahlan and Dr. Kawahara also encouraged Mr. Anthony Fazio to falsify a Report of Contact against me.” The Court overrules Defendant’s remaining objections to this paragraph.

Defendant objects to paragraph 20 of the Uche-Uwakwe Declaration on the basis that it lacks personal knowledge and foundation, contains hearsay, mischaracterizes a document that speaks for itself, and lacks authentication for the attached Exhibit G. (See Def. Evid. Obj. at 4-5.) The Court sustains Defendant’s lack of personal knowledge and foundation objections as to the following portions of the paragraph which the Court considers inadmissible: “After intervention ... and substitute then with LWOP” and “Dr. Kawahara issued his own email ... by EEO Program Specialist Tana Moreland.” Moreover, the Court sustains Defendant’s authentication objection to portions of Plaintiffs Exhibit G, as Plaintiff did not write or receive the email dated June 4, 2009 from Kawahara or the email dated June 19, 2009 from Samina Sam, and Plaintiff cannot attest to those emails’ authenticity. See Orr, 285 F.3d at 774 (“a document can be authenticated [under Rule 901(b)(1) ] by a witness who wrote it, signed it, used it, or saw others do so.” (internal quotations and citations omitted)). Accordingly, the Court does not find those portions of Plaintiffs Exhibit G admissible. The Court overrules Defendant’s remaining objections to this paragraph.

Defendant objects to paragraph 21. of the Uche-Uwakwe Declaration on the basis that it lacks personal knowledge and foundation, contains hearsay, mischaracterizes a document that speaks for itself, and lacks authentication for the attached Exhibit G. (See Def. Evid. Obj. at 5-6.) The Court sustains Defendant’s lack of foundation and personal knowledge objections to the following portion of the paragraph, which the Court finds inadmissible: “Dr. Kawahara’s email ... at their own facility.” As stated supra, the Court has already sustained Defendant’s authentication objection to the relevant portions of Plaintiffs Exhibit G. The Court overrules the remaining objections to this paragraph.

Defendant objects to paragraph 22 of the Uche-Uwakwe Declaration on the basis that it lacks personal knowledge and foundation, contains hearsay, mischaracterizes a document that speaks for itself, and lacks authentication for the attached Exhibit G. (See Def. Evid. Obj. at 6-7.) Again, as stated supra, the Court has already sustained Defendant’s authentication objection to the relevant portions of Plaintiffs Exhibit G. The Court overrules Defendant’s hearsay objections as to the statements made by Cory Werdebaugh because her Declaration filed in support of the Motion provides sufficient foundation regarding her position and job responsibilities that show she could be considered an agent of Defendant for purposes of finding her statements in this regard to be vicarious admissions. See Fed.R.Evid. 801(d)(2)(D); see also Woodman v. Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir.1995) (nature of declarant’s position within organization used to determine whether or not her statement is admissible as organization’s vicarious admission); Johnson v. Weld County, Colo., 594 F.3d 1202, 1208-09 (10th Cir.2010) (employee’s statement considered admission against employee if “the employee was involved in the decisionmaking process affecting the employment action at issue”); cf. Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp., 176 F.3d 921, 927-28 (6th Cir.1999) (statement made by defendant’s district manager who was not plaintiffs direct supervisor and was not involved in negative appraisals of plaintiffs performance was not within scope of agency or employment). Moreover, the statements at issue were made during Werdebaugh’s employment, concerned matters within the scope of her employment relationship, i.e., human resources matters concerning an employee dispute, and Plaintiff is offering these statements against Defendant; the statements are not hearsay and are admissible. See Fed.R.Evid. 801(d)(2)(D); see also McDonough v. City of Quincy, 452 F.3d 8, 21 (1st Cir.2006) (“The relevant inquiry [for purposes of Federal Rule of Evidence 801(d)(2)(D) ] is whether the employee’s statement was made within the scope of employment.”).

The Court sustains Defendant’s hearsay objection as to the statements made by Sam Maze contained in paragraph 22 and finds the following statement inadmissible: “EEO Manager, Sam Maze advised me that I should confirm in writing that it would be temporary.” Plaintiff provides the Court only with Maze’s job title, which is ambiguous as to his responsibilities and job duties. In doing so, Plaintiff has not met her burden to provide evidence that Maze can be considered an agent of Defendant or that his statement was made within the scope of his employment, sufficient to impute this statement as a non-hearsay admission against Defendant. See United States v. Chang, 207 F.3d 1169, 1176 (9th Cir.2000) (proponent of the evidence has the burden to demonstrate its admissibility); Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (applying preponderance of the evidence standard to evaluation of evidence proffered as admissible under Federal Rule of Evidence 801(d)(2)); United States v. Bonds, 608 F.3d 495, 507 (9th Cir.2010). The Court overrules the remaining objections to this paragraph.

Defendant objects to paragraph 33 of the Uche-Uwakwe Declaration on the basis that it lacks foundation for Plaintiffs assertion that her “privacy was violated.” (See Def. Evid. Obj. at 7-8.) The Court overrules the objection.

Defendant objects to paragraph 35 of the Uche-Uwakwe Declaration on the basis that it lacks foundation and misstates Plaintiffs prior testimony “regarding the date AWOL designation was changed to LWOP.” (See Def. Evid. Obj. at 8.) The Court overrules the objections. In fact, Defendant’s objection about the misstatement of Plaintiffs prior testimony is misplaced, as this paragraph of the Declaration does not contain any assertions regarding when Plaintiffs AWOL designation was changed to LWOP. (See Uche-Uwakwe Decl. ¶ 35.)

Defendant objects to paragraph 41 of the Uche-Uwakwe Declaration on the basis that it lacks personal knowledge and foundation and contains hearsay. (See Def. Evid. Obj. at 8-9.) The Court overrules Defendant’s objections to this paragraph. Although Plaintiff did not provide the Court with Samineh Sam’s job responsibilities, she indicated Sam’s job title was the “outpatient supervisor.” The Court infers from Sam’s job title that her statements to Plaintiff describing the staffing in the outpatient pharmacy were made within the scope of her employment and are not hearsay. See Fed.R.Evid. 801(d)(2)(D).

Defendant objects to paragraph 42 and 43 of the Uche-Uwakwe Declaration on the basis of relevance, undue prejudice, and that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action. (See Def. Evid. Obj. at 9-10.) First, the following statement contained in paragraph 42 is inadmissible hearsay and the Court will not consider it: “and with the agreement of management at the recommendation of the Administrative Board of Investigation.” The Court sustains Defendant’s relevance objection as to the following portions of paragraphs 42 and 43 which is inadmissible: “I tried several times ... of other pharmacy employees” (paragraph 42); and “Ms. Church-Harris insulted me ... and the Associate Director regarding her harassment of me” (paragraph 43). The remaining portions of paragraphs 42 and 43 are relevant to Plaintiffs claim for retaliation here, as they demonstrate the impact of her reassignment in February 2010 to the outpatient pharmacy which would have required her to work with individuals with whom she had concerns due to their past interactions. (See Uche-Uwakwe Decl. ¶¶ 42, 43.)

The Court finds, however, the remaining assertions in paragraphs 42 and 43 to be irrelevant and unduly prejudicial, as this Court has entered summary judgment against Plaintiff on her claims for hostile work environment arising from those interactions with the outpatient pharmacy staff in a related action, resulting in final judgment on the merits, which the Ninth Circuit has affirmed. See Uche-Uwakwe v. Nicholson, No. 5:05CV983(VAP) (C.D.Cal. Mar. 30, 2010); Uche-Uwakwe v. Nicholson, 473 Fed.Appx. 544 (9th Cir.2012) (finding plaintiff failed to raise a triable issue of fact as to her claims for failure to promote and hostile work environment, but finding she raised a triable issue of fact as to her claim for disparate treatment and retaliation). The assertions contained in this paragraph concern the same “transactional nucleus of facts” as the Court has previously determined on the merits in the related litigation. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982) (finding subsequent claim brought on the same cause of action that had previously been determined in a final judgment on the merits to be barred by doctrine of res judicata). Moreover, the parties to the related action are the same as here and the factual basis for Plaintiffs hostile work environment claim concern the same facts as those previously adjudicated in the related action. See Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 323-24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (discussing three factors necessary for res judicata to apply, i.e., identity of claims, final judgment on the merits, and identity or privity between parties). Accordingly, these assertions are not admissible here, as they are barred by the doctrine of res judicata. See Western Radio Serv. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.1997) (“Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action”).

Defendant objects to paragraph 44 of the Uche-Uwakwe Declaration on the basis of relevance, undue prejudice, and that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action. (See Def. Evid. Obj. at 11.) The Court overrules Defendant’s objections, but finds the following portions to be inadmissible hearsay, as Plaintiff fails to demonstrate that any statements quoting investigation materials or statements made by the Administrative Board of Investigation are admissible: “Dr. Kawahara had charged that I altered ... Although I was exonerated;” and, “It took five months ... given diversity training.”

Defendant objects to paragraph 51 of the Uche-Uwakwe Declaration on the basis of relevance, undue prejudice, that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action, and misstates a document that speaks for itself. (See Def. Evid. Obj. at 11-12.) The Court overrules Defendant’s objections to this paragraph. Although some of the assertions contained in this paragraph concern events preceding the filing of the EEO complaints at issue here, the assertions are directly relevant to Plaintiffs claim of unlawful retaliation and provide necessary evidentiary context to her claim.

Defendant purports to object to portions of paragraph 52 of the Uche-Uwakwe Declaration, but fails to articulate any bases for his objection. Accordingly, the Court will not rule on objections not properly before the Court.

Defendant objects to paragraph 56(a)-(d) of the Uche-Uwakwe Declaration on the basis of relevance, undue prejudice, and that the assertions contained therein are outside the scope of the EEO complaints that gave rise to the present action. (See Def. Evid. Obj. at 13.) The Court overrules Defendant’s objections as to paragraph 56(a), (c), and (d) as none of these sub-paragraphs contain information previously litigated before this Court in a related action. The Court sustains Defendant’s relevance and undue prejudice objections to paragraph 56(b), however, because it contains factual assertions already adjudicated by this Court and affirmed by the Ninth Circuit in a related action. See UcheUwakwe v. Nicholson, No. 5:05CV983(VAP) (C.D.Cal. Mar. 30, 2010); Uche-Uwakwe, 473 Fed.Appx. 544 (9th Cir.2012). As discussed supra, these assertions are barred by res judicata. See Glickman, 123 F.3d at 1192. The Court overrules Defendant’s remaining objections to this paragraph.

C. Other Evidentiary Issues

As stated supra, the Court can “only consider admissible evidence in ruling on a motion for summary judgment.” See Orr, 285 F.3d at 773; Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir.1994); Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987).

1. Defendant’s Evidence

In its independent review of the admissibility of the evidence proffered by Defendant, the Court has found the following issues:

DSUF ¶ 6: The following portion is not supported by the cited evidence and the Court will not consider it: “in May 2009.”

DSUF ¶ 8: The following portion is not supported by the cited evidence and the Court will not consider it: “for the days between May 5, 2009 and June 2, 2009.”

DSUF ¶ 12: It appears the word “employee” is missing after “then a Loma Linda VAMC.” The Court construes this fact to contain the missing word for completeness.

DSUF ¶ 17: The following portion is not supported by the cited evidence and the Court will not consider it: “the removal of the EEO file constituted a violation of Loma Linda VAMC’s privacy policies.”

DSUF ¶ 18: This fact is not supported by sufficient evidence, as the Court has found the cited Werdebaugh Declaration testimony to be inadmissible hearsay, and the testimony cited from Defendant’s Exhibit 10 provides no context about the topic of the witness’s testimony sufficient to lay requisite foundation.

DSUF ¶ 24: The cited evidence does not support the factual assertion made herein and the Court will not consider it.

DSUF ¶ 30: The following portion is not supported by the cited evidence and the Court will not consider it: “that would have to be reported in a privacy breach notification database.”

DSUF ¶ 36: The cited evidence does not support the factual assertion made herein and the Court will not consider it.

DSUF ¶ 37: The following portion is not supported by the cited evidence and the Court will not consider it: “for anxiety.” In addition, there appears to be a typographical error contained in this fact; it appears “Monday, February 15, 2013” should instead read “Monday, February 15, 2010.”

For the foregoing reasons, the Court does not consider the following DSUFs to be sufficiently supported by admissible evidence and the Court will not consider them for purposes of deciding this Motion: DSUF 9191 14, 18, 19, 24, 31, 33, 34, and 36. Moreover, the Court considers only portions of the following DSUFs, for the reasons stated above: DSUF 9191 3, 6, 8, 17, 28, 30, and 37.

2. Plaintiffs Evidence

In its independent review of the admissibility of the evidence proffered by Plaintiff, the Court has found the following issues:

Uche-Uwakive Decl. ¶ 26: The following statement is inadmissible hearsay and the Court will not consider it: “My doctor also suggested that I see psychological counseling.” In addition, the following statement lacks foundation and is not admissible: “He filled out a disability form ... was also without pay.”

Uche-Uwakwe Decl. ¶ 27: The following statement is inadmissible hearsay and the Court will not consider it: “Meanwhile, I learned from talking to pharmacists and management at other VA facilities ... or temporary shift changes.”

Uche-Uwakwe Decl. ¶ 35: The following statement is inadmissible speculation and the Court will not consider it: “Dr. Sam knew what outpatient work I was performing ... conducted my performance reviews.”

Uche-Uwakwe Decl. ¶ 47: The following statement is inadmissible hearsay and the Court will not consider it: “At my primary physician’s recommendation.”

Uche-Uwakwe Decl. ¶49 & Plaintiffs Exhibits N and O: The following statements lack foundation and personal knowledge and the Court will not consider them: “On March 26, 2010, my treating physician ... letter is attached as Exhibit O.” Moreover, Plaintiffs Declaration testimony contained in this paragraph cannot provide sufficient authentication for Plaintiffs Exhibits N and O (purportedly letters from her treating physicians), as she does not attest to writing them, signing them, using them, seeing others use them, or receiving them. See Orr, 285 F.3d at 774; Fed. R.Evid. 901(b)(1).

Uche-Uwakwe Decl. ¶ 56(c): The following statement is inadmissible hearsay: “Ms. Connie Morrison ... as ordered by my doctor.” See Fed.R.Evid. 801(d)(2)(D). Plaintiff has not provided evidence that Morrison’s statements are admissible here. See Chang, 207 F.3d at 1176.

Uche-Uwakwe Decl. ¶ 56(d): The following statement is inadmissible hearsay: “Mr. Maze reminded him that I was on disability and to cease the harassment.” As stated supra, Plaintiff has not met her burden to provide evidence that Maze’s statements are admissible. See Chang, 207 F.3d at 1176; Bourjaily, 483 U.S. at 176, 107 S.Ct. 2775; Bonds, 608 F.3d at 507; Fed.R.Evid. 801(d)(2)(D).

PSUF ¶ 2: The following portion is unsupported by the cited evidence and the Court will not consider it: “Plaintiff had no problems at work until.”

PSUF ¶¶ 18, 23, 26: Exhibit 17 to the Werdebaugh Deposition does not support these PSUFs as the document lacks requisite authentication and cannot be considered by the Court. See Fed.R.Evid. 901(b); Orr, 285 F.3d at 774. The other cited evidence supports these facts suffieiently. As to PSUF ¶26, however, the cited Werdebaugh deposition testimony does not support the factual assertion made therein, but the remaining evidentiary support cited, i.e., the Uche-Uwakwe Declaration, sufficiently supports the factual assertions contained in PSUF ¶ 26.

PSUF ¶ 36: The following portion is unsupported by the cited evidence and the Court will not consider it: “and told another of Plaintiffs supervisors, Elisa Almera, that Plaintiff ... to Plaintiffs EEO activity.” The cited Maze testimony does not support the factual assertions contained in this fact.

PSUF ¶¶ 39, bO, 5b, 9b, 101: The cited evidence does not support these facts and the Court will not consider them.

PSUF ¶ bl: The cited Kawahara deposition testimony does not support this factual assertion; the other cited evidence, however, sufficiently supports this fact.

PSUF ¶ 51: The following portion contains inadmissible hearsay and the Court will not consider it: “Plaintiffs doctor suggested that she seek psychological counseling.”

PSUF ¶ 55: This fact is duplicative of PSUF ¶ 35.

PSUF ¶¶ 56, 57: These facts contain statements made by Edna Dahlan to Plaintiff which ordinarily would be considered inadmissible hearsay. The Court infers, however, from Dahlan’s title as the inpatient supervisor, that her statements to Plaintiff about scheduling a meeting were within the scope of her employment and are not hearsay. See Fed.R.Evid. 801(d)(2)(D).

PSUF ¶ 59: This fact contains statements made to Plaintiff by a canteen employee, which ordinarily would be considered inadmissible hearsay. The Court infers, however, from the employee’s title that the statements to Plaintiff about the location of her EEO file were made within the scope of the employee’s employment and are not hearsay. See Fed. R.Evid. 801(d)(2)(D).

PSUF ¶¶ 67-68, 70: These facts contain hearsay statements made by Craig Curtis, an information security officer. Plaintiff has not met her burden to provide the Court with evidence of Curtis’s job duties to demonstrate that his statements are not hearsay and were made within the scope of his employment. See Chang, 207 F.3d at 1176. Plaintiffs counsel argued at the hearing on the Motion that the Court should infer from the facts that Curtis called the February 12, 2010 meeting and had the apparent authority to issue Plaintiff a privacy violation ticket that Curtis was employed by LLVAMC and that his statements made were within the scope of his employment. The Court disagrees. Viewing all the admissible evidence submitted by both parties, the record before the Court contains no information about whether or not Curtis was employed by LLVAMC and whether or not his statements were made within the scope of his employment with LLVAMC. Accordingly, the Court does not find Curtis’s statements to Plaintiff during the February 12, 2010 meeting to be relevant to her claims here, as Plaintiff has not met her burden to establish, as necessary foundation, that Curtis was employed at LLVAMC when he made the statements.

As to PSUF ¶ 68, the cited Kawahara deposition testimony at 144:11-145:1, 145:9-20 and the Dahlan deposition testimony at 107:9-108:4 do not support the contention in this fact, but the other cited evidence sufficiently supports it.

As to PSUF ¶70, the cited evidence does not support the inclusion of “and Dr. Kawahara” in this fact. Moreover, the Kawahara testimony cited does not support the factual assertions contained in this fact.

PSUF ¶ 77: The cited evidence, i.e., Exhibit 35 to the Werdebaugh deposition, lacks necessary authentication and cannot be considered by the Court. See Fed. R.Evid. 901(b); Orr, 285 F.3d at 774. Accordingly, the Court will not consider this fact.

PSUF ¶ 79: The following statement is inadmissible hearsay and the Court will not consider it: “at her primary care physician’s recommendation.”

PSUF ¶ 82: As discussed supra, the cited evidence, i.e., Exhibit 35 to the Werdebaugh deposition, lacks necessary authentication and cannot be considered by the Court. See Fed.R.Evid. 901(b); Orr, 285 F.3d at 774. Accordingly, the Court will not consider this fact, as it is not supported by admissible evidence.

PSUF ¶¶ 86-98: These facts contain improper legal conclusions and argument, instead of statements of fact supported by admissible evidence. The Court will not consider the improper conclusions and arguments contained in these facts.

PSUF ¶ 96: This fact is irrelevant and contains inadmissible hearsay. Accordingly, the Court will not consider this fact.

PSUF ¶ 98: The cited Uche-Uwakwe Declaration testimony does not support this fact, as the testimony lacks foundation; the Court, however, finds the other cited evidence sufficiently supports this fact.

PSUF ¶ 108: The following statement is inadmissible hearsay and the Court will not consider it: “caused by work-related stress and anxiety.”

PSUF ¶ lOp This fact contains only inadmissible hearsay and the Court will not consider it.

PSUF ¶ 107: All of the cited evidence, except for paragraph 56 of the Uche-Uwakwe Declaration, does not support the assertions contained in this fact. Moreover, the following statements are unsupported by the cited evidence and the Court will not consider them: “There is substantial evidence on which a trier of fact could find that;” “and that he has failed and refused to investigate Plaintiffs claims of harassment;” and “promoting non-Blacks who were less qualified than Plaintiff.”

For the foregoing reasons, the Court does not consider the following PSUFs to be sufficiently supported by admissible evidence and the Court will not consider them for purposes of deciding this Motion: PSUF ¶¶ 39, 40, 54, 55, 75, 76, 82, 94, 96, 101, and 104. Moreover, the Court considers only portions of the following PSUFs, for the reasons stated above: PSUF ¶¶ 2, 36, 51, 67-68, 70, 79, 86-93, and 107.

IV. UNCONTROVERTED FACTS

The following material facts are supported adequately by admissible evidence and uncontroverted. They are “admitted to exist without controversy” for the purposes of this Motion. See Local Rule 56-3.

Plaintiff has worked as a pharmacist at the LLVAMC since 1999. (DSUF 91 1; PSUF ¶ 1.) Dr. Brian Kawahara (“Kawahara”) has been the Chief of Pharmacy Services at LLVAMC since approximately September 2000. (PSUF ¶ 2.)

A. Pharm. D. Degree Clinical Rotations

In July 2001, Kawahara told Plaintiff that one of the reasons why he did not select her for a promotion to a GS-12 clinical pharmacist position was because she did not have a Pharm. D. degree. (PSUF ¶ 4.) Although it was not a requirement of her job as a pharmacist at LLVAMC, Plaintiff decided to enroll in a Pharm. D. degree program through the University of Kansas to improve her chances of getting a promotion in the future. (PSUF ¶ 5; DSUF ¶¶ 3, 4.) In order to obtain the Pharm. D. degree, Plaintiff was required to complete several clinical rotations. (PSUF ¶ 9.) Plaintiff arranged to complete a clinical rotation at LLVAMC, after she worked with the Associate Chief of Staff of Education, Dr. John Byrne, to execute an “Affiliation Agreement” between LLVAMC and the University of Kansas in February 2009. (PSUF ¶ 10-11.)

Plaintiffs direct supervisor, Edna Dahlan, approved Plaintiff for one day, or eight hours, of leave per week beginning February 5, 2009 for Plaintiffs clinical rotation. (PSUF ¶ 6.) Per Plaintiffs Clerkship Guide for the Pharm. D. degree program, clinical rotations were required to be completed within four months. (PSUF ¶ 19.) In March 2009, Plaintiff realized that she would be unable to complete her rotation by her school’s deadline at the rate of eight hours of clinical rotation per week. (PSUF ¶ 7.)

Having exhausted her annual leave, Plaintiff submitted to Dahlan a request for Leave Without Pay (“LWOP”) for 40 hours per week, so she could complete her rotation that began in February 2009 by the end of April 2009. (PSUF ¶¶8, 12.) LWOP is an unpaid, approved absence that may be used instead of paid leave, but requires supervisory approval in advance. (DSUF ¶ 9.) Approval of LWOP is a matter of administrative discretion. (DSUF ¶ 10.) LLVAMC employees were permitted to submit LWOP requests for educational purposes. (DSUF ¶ 11.) If the request for LWOP was for a period exceeding 30 consecutive calendar days, then the LLVAMC employee was required to submit a written memorandum for the request, along with supporting documentation to her service chief. (DSUF ¶ 12.) The AFGE Master Agreement provides that LWOP is not discretionary “when requested by an employee who has suffered an incapacitating job-related injury or illness and is waiting adjudication of a claim for employee compensation by the Office of the Workers’ Compensation Program. ...” (PSUF ¶ 102.)

Plaintiffs request for LWOP required approval by Kawahara. (PSUF ¶ 8.) Plaintiff followed up with Kawahara to determine the status of her request for LWOP, and he stated he could not approve her request because she sought over 30 days of LWOP and that her request had to be approved by the Associate Director. (PSUF ¶ 16.) Kawahara was under the impression that Plaintiff was going to complete her clinical rotation by the end of April 2009. (DSUF ¶ 7.) Kawahara did not ask Plaintiff for any documentation to substantiate her request at that time. (PSUF ¶ 22.) Plaintiff then inquired of the acting Associate Director about her request for LWOP and was told that pharmacy management would only allow eight hours per week for the clinical rotation and advised Plaintiff to speak with Human Resources in the event she needed further assistance. (PSUF ¶ 17.) Plaintiff then consulted with Human Resources, specifically Cory Werdebaugh, to seek assistance with her request for LWOP so she should complete her clinical rotation timely. (PSUF ¶ 18-20.) Plaintiff submitted supporting documentation to Werdebaugh to Werdebaugh’s satisfaction that Plaintiffs involvement in the Pharm. D. program was legitimate and her request for LWOP was justified. (See Curd Deck, Exs. V-15 to V-19, 98:13-102:22; V-27, 139:19-140:5; X-12, 331:1-9.)

On April 13, 2009, Werdebaugh informed Plaintiff that she had worked with Kawahara and he agreed to allow Plaintiff 16 hours of LWOP per week so she could complete her clinical rotation on time. (PSUF ¶ 23; DSUF ¶¶5, 6.) Plaintiff’s resulting schedule was that she worked as a paid pharmacist on Mondays, Wednesdays, and Fridays, and performed her clinical rotation at LLVAMC on Tuesdays and Thursdays in LWOP status. (PSUF ¶ 24.)

On June 3, 2009, Plaintiff requested to switch her last clinical rotation day (Thursday, June 4, 2009) to Friday, June 5, 2009 because her preceptor would not be available that Thursday to complete Plaintiff’s evaluation. (PSUF 91 25.) Kawahara required Plaintiff to submit supporting docu-' mentation for her leave request before he would approve her request to switch her regular LWOP clinical rotation day with her paid work day. (PSUF ¶ 26.)

Without providing advance notice to Plaintiff or Human Resources, Kawahara designated Plaintiff as Absent Without Leave (“AWOL”) from the beginning of May 2009 through June 2009. (DSUF 91 8; PSUF ¶¶ 27-29, 34.) Plaintiff had only been taking the leave which had been approved during that time. (PSUF ¶ 31.) AWOL status is an unapproved unpaid absence designation and is not a disciplinary action, but can be used to support a disciplinary action. (DSUF 9191 15-16.) Plaintiff complained to Kawahara via email and copied her direct supervisor, an EEO manager, and a payroll supervisor about this designation. (DSUF ¶ 13; PSUF ¶¶ 32-34.) Human Resources mediated the dispute and Kawahara changed Plaintiffs AWOL status to LWOP status shortly thereafter. (DSUF ¶ 13; PSUF ¶ 44.)

In June 2009, Werdebaugh informed Plaintiff that pharmacy management would not authorize LWOP for Plaintiff to perform clinical rotations either at the LLVAMC or at another facility. (PSUF ¶ 45.) This required Plaintiff to complete her clinical rotations during evenings and weekends at other facilities. (Id.) Werdebaugh offered to switch Plaintiffs shift at LLVAMC to graveyard or weekends, but Plaintiff declined because she believed the shift change would have been permanent. (DSUF ¶ 21; PSUF ¶¶ 46-47.)

Around June 2009, Kawahara approved an externship for Derek Abrams, a clerk in the Pharmacy Services department at LLVAMC, to be completed at the LLVAMC pharmacy. (Curd Deck, Ex. W-ll, 12); Reply at 7 n. 6 (“It is undisputed that another Loma Linda pharmacy employee was allowed to conduct an ex-ternship for a technician license ... at Loma Linda VAMC.”) Abrams completed his externship at LLVAMC during evenings and weekends, outside of his scheduled work shifts. (See Supp. Cameron-Banks Deck, Ex. 14 at 182:2-22.)

Plaintiff filed an EEO complaint against Kawahara on August 24, 2009, complaining about his designation of her leave status as AWOL. (PSUF ¶ 48.)

Plaintiff experienced panic attacks and anxiety and she requested LWOP pursuant to the Family Medical Leave Act (“FMLA”) in September 2009. (DSUF ¶ 22; PSUF ¶ 50.) Plaintiffs request was granted and she did not return to work until October 21, 2009. (DSUF ¶23; PSUF ¶¶ 50, 53.) Plaintiff completed her Pharm. D. degree clinical rotations off-site in December 2009. (PSUF ¶ 53.)

B. Plaintiffs EEO Claim Folder

On February 10, 2010, a LLVAMC EEO manager inadvertently left Plaintiffs EEO file in the LLVAMC canteen. (DSUF ¶ 25.) Plaintiff was alerted that her file was left in the canteen and she retrieved it. (DSUF ¶ 26; PSUF ¶¶ 59, 60.) Plaintiff reviewed the file’s contents and found it contained her pending EEO claim filed August 22, 2009. (PSUF ¶ 60.) Plaintiff contacted her EEO representative and arranged to give the folder to her representative to give to her lawyer. (PSUF ¶ 61.)

The following day, Plaintiff received an email dated February 10, 2010 from Diana Gellentien, the acting EEO manager, telling her Gellentien had accidentally left Plaintiffs EEO folder in the canteen and asking Plaintiff to return it. (DSUF ¶ 27; PSUF ¶ 62.) Plaintiff replied that her attorney had the folder and that he would be contacting the VA director and the VA’s counsel because of the privacy breach. (PSUF ¶ 63.) Plaintiff did not receive a response to her email. (PSUF ¶ 64.)

On February 12, 2010, while Plaintiff was in the mail room of the pharmacy at LLCAMC, Kawahara ordered her to go with him to Dahlan’s office and escorted her there. (PSUF ¶ 65.) When Plaintiff arrived at Dahlan’s office with Kawahara, Craig Curtis, an information security officer, and Dahlan were present. (PSUF ¶ 66.) At the meeting, Plaintiff explained that she had not obtained her file illegally and she would deliver the file back to LLCAMC once she was able to speak with her attorney. (PSUF ¶ 69.)

After the meeting was over, Plaintiff attempted to leave Dahlan’s office but Kawahara closed the door and told her to stay behind with Dahlan. (PSUF ¶ 72.) Kawahara gave Plaintiff a memorandum notifying her of a reassignment to the outpatient pharmacy. (DSUF ¶ 32; PSUF ¶ 73.) The reason Kawahara gave for the transfer was that the outpatient department was understaffed. (PSUF ¶ 74.) Sam told Plaintiff that the outpatient pharmacy was not understaffed at that time and that no one had consulted her about transferring Plaintiff to the outpatient pharmacy. (PSUF ¶ 75.)

Plaintiff timely returned her EEO file to Curtis. (PSUF ¶ 71.)

Following the meeting, Plaintiff had a panic attack. (PSUF ¶ 77.) She believed that the panic attack was triggered because in 2003 she had been transferred out of the outpatient pharmacy because of harassment by her coworkers in the outpatient pharmacy. (Id.) Many of the same employees Plaintiff had problems with previously were still working in the outpatient pharmacy. (Id.) Plaintiff also believed her reassignment caused her to experience flashbacks to a 2003 investigation by the Administrative Board of Investigation (“ABOI”). (PSUF ¶ 78.) Plaintiff attempted to return to work on February 15, 2010 but felt too overwhelmed by stress and anxiety and went back on FMLA leave. (DSUF 91 37; PSUF ¶ 79.) Plaintiff remained on unpaid leave, including FMLA, LWOP, AWOL, and donated leave, from February 16, 2010 through January 31, 2012. (Werdebaugh Deck, Ex. 4-54 to 4-69.)

On March 22, 2010, Plaintiff filed an EEO complaint regarding her EEO file being left in the canteen, her treatment during the meeting with Curtis, Kawahara, and Dahlan about the file, and about her reassignment back to the outpatient pharmacy. (PSUF ¶ 80.)

C. Plaintiffs Request for Advanced Sick Leave

Plaintiff requested advanced sick leave on March 26, 2010. (PSUF ¶ 81.) Kawahara denied the request on April 28 2010, stating in a letter to Plaintiff that he denied the request because Plaintiff did not meet the criteria for advanced sick leave and due to workload and staffing requirements in the LLVAMC pharmacy. (DSUF ¶¶ 39, 40; PSUF ¶84.) Kawahara also stated in the letter that the leave was not justifiable given Plaintiffs continuing absences. (DSUF ¶ 41.) Also in the letter, Kawahara suggested that Plaintiff apply for a disability retirement or resign. (PSUF ¶ 85.) This was not the first time Kawahara suggested Plaintiff do so. (Id.)

Eight criteria must be considered for approval of an advanced sick leave request, according to LLVAMC policy. (PSUF ¶ 86.) Plaintiff believed she was unable to return to work because of her medical condition. (PSUF ¶ 87.) Plaintiff intended to return to duty and no one at the VA asked Plaintiff if she intended to do so. (PSUF ¶¶ 83, 88.) The LLVAMC Associate Director, Shane Elliott, admitted there was a need for Plaintiffs services on her return and that Plaintiff had not abused her leave. (PSUF ¶¶89, 92.) Plaintiff had worked at LLVAMC for more than one year, and Plaintiff had been rated “fully successful” by her supervisor, Dahlan. (PSUF ¶¶ 91, 93.)

On July 14, 2010, Plaintiff filed an EEO complaint for the denial of her request for advanced sick leave. (PSUF ¶ 95.)

D. Plaintiffs Return to Work

On August 5, 2011, Plaintiff advised Werdebaugh that she was available to return, but the LLVAMC would not allow her to return until January 3, 2012. (PSUF ¶ 97.) Although Plaintiff was available to return to work as of August 5, 2011, she was designated AWOL from April 22, 2010 through December 30, 2011 and as LWOP from January 3, 2012 through January 31, 2012 when she returned to work part-time. (PSUF ¶¶ 98, 105.) Plaintiff returned to full time work at LLVAMC starting on February 1, 2012. (PSUF ¶¶ 99,105.)

Plaintiff filed a worker’s compensation claim for job-related stress in November 2010, which was pending while she was on leave from November 2010 until after she returned to work in February 2012. (PSUF ¶ 100.)

Plaintiff was on FMLA leave from February 19, 2013 through April 8, 2013 due to panic attacks. (PSUF ¶ 106.)

Plaintiff is currently undergoing treatment for her psychological and physical problems. (PSUF ¶ 103.)

E. Kawahara’s Other Treatment of Plaintiff

Kawahara has given preferred shifts to Asian staff rather than to Plaintiff or other non-Asian staff in the Pharmacy Services department, even after Plaintiff attained seniority. (PSUF ¶ 107.)

Plaintiff suffered what she describes as severe emotional distress that she believes has been caused by Kawahara’s treatment of her, which she believes has gotten progressively worse after each time she reported his actions to the EEO or the Human Resources department. (PSUF ¶ 108.)

V. DISCUSSION

Defendant moves for summary judgment, or in the alternative summary adjudication, of Plaintiffs claims for retaliation and harassment/hostile work environment, both in violation of Title VII.

By way of background, courts analyze “Title VII claims through the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.2010). “Under this analysis, plaintiffs must first establish a prima facie case of employment discrimination.” Id. To establish a prima facie case, the plaintiff “must offer evidence that ‘give[s] rise to an inference of unlawful discrimination.’ ” Id. at 1156 (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981))). Alternatively, plaintiffs may establish their prima facie case “by providing direct evidence suggesting that the employment decision was based on an impermissible criterion.” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.2009) (citing Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997)).

Once the plaintiff has established a prima facie case, the burden shifts and the defendant must “provide a legitimate, nondiscriminatory reason for the employment action.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir.2003). The defendant need offer only reasons that, “taken as true, would permit the conclusion that there was a non-discriminatory reason for the adverse action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original). The defendant bears this burden of production but the burden of persuasion remains with the plaintiff: “The defendant need not persuade the court that it was actually motivated by the proffered reasons.... It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089 (citing Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978)).

Once the defendant has provided a “legitimate, nondiscriminatory reason for the employment action,” then the burden shifts back to the plaintiff to show that this articulated reason was “pretextual.” Vasquez, 349 F.3d at 641. “A plaintiff can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer’s explanation is unworthy of credence.” Id. “To show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence challenging the credibility of the employer’s motives.” Id.

At the summary judgment stage, “the district court must look at the evidence supporting the prima facie case, as well as the other evidence offered by the plaintiff to rebut the employer’s offered reasons. And, in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglas, plaintiff has failed to raise a triable issue of fact.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994) (clarifying the plaintiff’s burden at the summary judgment stage as set forth in Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir.1991)). “Thus, the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment.” Id.

The Court discusses each of Plaintiffs Title VII claims in turn.

A. Retaliation

Defendant argues that Plaintiff cannot establish a prima facie case of Title VII retaliation or evidence sufficient to rebut Defendant’s legitimate reasons for the employment decisions at issue here. (See Mot. at 6-11.)

Title VII prohibits adverse employment actions against an employee who has “opposed any practice made an unlawful employment practice by this subchapter [ (Title VII) ]” or who has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. The analysis of a retaliation case is similar to that of a discrimination case under Title VII, where the plaintiff must establish a prima facie case of retaliation, then the employer must articulate a legitimate, non-retaliatory reason for its action, and the plaintiff must show that the employer’s reason is a pretext. See Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir.2003). The elements of a prima facie case for retaliation are: (1) that the plaintiff engaged in a protected activity under Title VII, (2) that the employer subjected the plaintiff to an adverse employment action, and (3) that a causal link exists between the protected activity and the employer’s action. See Westendorf v. W. Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th Cir.2013); Villiarimo v. Aloha Is. Air, Inc., 281 F.3d 1054, 1064 (9th Cir.2002); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir.2000); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987). Plaintiff must prove that the unlawful retaliation would not have occurred “but for” the alleged wrongful or discriminatory motivation. Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013) (“a plaintiff making a retaliation claim under [Title VII] must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer”).

As he does not have the burden of proof on this issue at trial, Defendant meets his burden on the Motion by pointing to the absence of evidence. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden now shifts to the Plaintiff to establish her prima facie retaliation claim. Stegall, 350 F.3d at 1065.

1. Protected Activity

Plaintiff presents undisputed, admissible evidence that she engaged in protected activity here, by filing several EEO complaints about the treatment to which she was subjected by her employer. See Road v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir.2003) (protected activities include filing charge or complaint, providing testimony regarding employer’s alleged unlawful practices, and engaging in activity intended to oppose employer’s discriminatory practices); Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir.2007) (filing EEO claims is protected activity); (PSUF 9191 35, 37, 48, 80, 95). Moreover, Plaintiff’s evidence demonstrates that she complained to Human Resources about her treatment and spoke with an EEO counselor, which are protected activities under Title VII. See Dawson v. Entek Intern., 630 F.3d 928, 936 (9th Cir.2011) (meeting with human resources and discussing mistreatment complaint is protected activity); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir.1997) (holding that meeting with an EEO counselor is a protected activity); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 n. 19 (9th Cir.2004) (citing Hashimoto with approval); (see, e.g., PSUF ¶ 20, 23, 32-34, 44-46, 63, 108.) Plaintiff meets her burden to establish this element of her prima facie retaliation claim.

2. Adverse Employment Action

Plaintiff presents admissible evidence that Defendant subjected her to the following employment actions that she claims are adverse: (1) she was designated AWOL in May 2009 (PSUF ¶¶ 28-35, 44); (2) she was denied LWOP status to perform clinical rotations at LLVAMC in June 2009 (PSUF ¶¶ 45-47); (3) in February 2010, she was threatened with a privacy violation reproval if she did not return her EEO file (DSUF ¶ 30; PSUF ¶¶ 60-67, 69); (4) she was reassigned in February 2010 to a department from which Plaintiff had been transferred previously because of negative issues with other employees who worked in that unit and her then-supervisor (PSUF ¶¶ 72-74, 77-78); and (5) she was denied advanced sick leave and was subsequently assigned AWOL status (PSUF ¶ 84-85, 97-99). (See Opp’n at 12-13.)

An adverse employment action is “any adverse tr