Allen v. Express Facility Management

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brittany Allen, No. CV-24-00676-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Express Facility Management, 13 Defendant. 14 15 16 Before the Court is Defendant Express Facility Management’s (“EFM”) motion for 17 summary judgment (Doc. 52), which is fully briefed (Docs. 61, 62). For the following 18 reasons, the Court grants the motion. 19 I. Background 20 On December 27, 2023, Plaintiff Brittany Allen sued EFM in state court alleging 21 she experienced discrimination, harassment, sexual harassment, and retaliation during her 22 employment at EFM. (Doc. 1-1 at 2, 4-5.) On March 27, 2024, EFM filed a notice of 23 removal in this Court, alleging both federal question jurisdiction pursuant to 28 U.S.C. § 24 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1 at 2-3.) EFM now 25 moves for summary judgment. (Doc. 52.) 26 II. Legal Standard 27 Summary judgment is appropriate when there is no genuine dispute as to any 28 material fact and, viewing those facts in a light most favorable to the non-moving party, 1 the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is 2 material if it might affect the outcome of the case, and a dispute is genuine if a reasonable 3 jury could find for the non-moving party based on the competing evidence. Anderson v. 4 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment may also be entered 5 “against a party who fails to make a showing sufficient to establish the existence of an 6 element essential to that party’s case, and on which that party will bear the burden of proof 7 at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 8 The party seeking summary judgment “bears the initial responsibility of informing 9 the district court of the basis for its motion, and identifying those portions of [the record], 10 if any, which it believes demonstrate the absence of a genuine issue of material fact.” Id. 11 at 323 (quotation omitted). The burden then shifts to the non-movant to establish the 12 existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do 13 more than simply show that there is some metaphysical doubt as to the material facts” it 14 must “come forward with specific facts showing that there is a genuine issue for trial.” 15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal 16 quotation and citation omitted). “If the nonmoving party fails to produce enough evidence 17 to create a genuine issue of material fact, the moving party wins the motion for summary 18 judgment.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies. Inc., 210 F.3d. 1099, 19 1103 (9th Cir. 2000). 20 In considering a motion for summary judgment, the court must regard as true the 21 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 22 material. Anderson, 477 U.S. at 255. However, the non-moving party may not merely rest 23 on its pleadings; it must produce some significant probative evidence tending to contradict 24 the moving party’s allegations, thereby creating a material question of fact. Id. at 256-57 25 (holding that the plaintiff must present affirmative evidence to defeat a properly supported 26 motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 27 1989) (“A summary judgment motion cannot be defeated by relying solely on conclusory 28 allegations unsupported by factual data.” (citation omitted)). 1 III. Analysis 2 To withstand the motion for summary judgment, Allen must point to specific facts 3 showing that there is a genuine issue for trial. In her Response (Doc. 61), Allen merely 4 alleges she “experienced multiple bouts of racism, harassment, and sexual harassment” 5 during her employment with EFM. (Doc. 61.) But the Response itself is not evidence, and 6 Allen proffers no evidence controverting EFM’s motion, as required by Rule 56. See Fed. 7 R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact . . . is genuinely disputed must support 8 the assertion by . . . citing to particular parts of materials in the record, including 9 depositions, documents, electronically stored information, affidavits or declarations, 10 stipulations (including those made for purposes of the motion only), admissions, 11 interrogatory answers, or other materials.”). “The court need consider only the cited 12 materials” in the briefings. Fed. R. Civ. P. 56(c)(3); see also Keenan v. Allan, 91 F.3d 1275, 13 1279 (9th Cir. 1996) (noting it is not the court’s task “to scour the record in search of a 14 genuine issue of triable fact,” but rather, the court relies “on the nonmoving party to 15 identify with reasonable particularity the evidence that precludes summary judgment.” 16 (citations omitted)). Accordingly, under Rule 56(e)(2), the Court deems EFM’s facts as 17 undisputed for the purposes of its motion and will proceed to determine if EFM has 18 demonstrated it is entitled to summary judgment as a matter of law. See Fed. R. Civ. P. 19 56(e)(3). 20 To establish both her sexual harassment and generalized harassment claims, Allen 21 must show “(1) the existence of a hostile work environment to which the plaintiff was 22 subjected, and (2) that the employer is liable for the harassment that caused the hostile 23 environment to exist.” Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006) (citation 24 omitted). Further, to satisfy the first element of the sexual harassment claim, Allen must 25 show that “(1) she was subjected to verbal or physical conduct of a sexual nature, (2) this 26 conduct was unwelcome, and (3) this conduct was sufficiently severe or pervasive to alter 27 the conditions of employment and create an abusive working environment.” Id. (quotation 28 omitted). The “working environment must both subjectively and objectively be perceived 1 || as abusive, and the objective analysis is done from the perspective of a reasonable woman.” 2|| Fuller vy. Idaho Dep’t of Corr., 865 F.3d 1154, 1161 (9th Cir. 2017) (internal quotation || marks omitted). Because Allen has proffered no evidence to the Court and EFM’s evidence 4|| demonstrates the absence of a hostile work environment, Allen has not shown there is a 5 || material question of fact for trial. EFM is therefore entitled to summary judgment on || Allen’s sexual harassment and harassment claims. 7 Likewise, to demonstrate a discrimination claim, Allen must establish a prima facie 8 || case of discrimination. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). To do so, Allen “must offer evidence that give[s] rise to an inference of unlawful 10 || discrimination, either through the framework set forth in McDonnell Douglas Corp. v. 11 || Green or with direct or circumstantial evidence of discriminatory intent.” /d. (internal 12 || quotation marks omitted). Under McDonnell Douglas, unlawful discrimination is 13 || presumed if Allen can show that “(1) she belongs to a protected class, (2) she was performing according to her employer’s legitimate expectations, (3) she suffered an 15 || adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably.” /d. n.5 (quotation omitted). Otherwise, Allen must offer 17 || direct evidence “which, if believed, proves the fact [of discriminatory animus] without 18 || inference or presumption.” Jd. (quotation omitted). Because Allen has produced no 19 || evidence to the Court, and EFM’s evidence reveals neither discriminatory animus nor that || the McDonnell Douglas requirements are met, EFM is entitled to judgment on this claim. 21 IT IS ORDERED that EFM’s motion for summary judgment (Doc. 52) is 22 || GRANTED. The Clerk of the Court is directed to enter judgment accordingly and 23 || terminate the case. 24 Dated this 15th day of September, 2025. 25 - 26 J _—S □□ ee 27 Do . Rayes 38 Senior United States District Judge -4-