Campbell v. Yellen

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CATHERINE CAMPBELL, CASE NO. 2:23-cv-00637-JHC 8 Plaintiff, ORDER GRANTING MOTION FOR 9 SUMMARY JUDGMENT v. 10 JANET YELLEN, 11 Defendant. 12 13 14 I 15 INTRODUCTION 16 This employment matter comes before the Court on Defendant’s Motion for Summary 17 Judgment. Dkt. # 36. Plaintiff Catherine Campbell alleges that Defendant, her former employer, 18 created a hostile work environment and engaged in acts of employment discrimination and 19 retaliation. See generally Dkt. # 1. Defendant seeks summary judgment, contending that 20 Plaintiff’s claims fail as a matter of law. Dkt. # 36. Because Plaintiff does not make a prima 21 facie case for any of her claims, the Court GRANTS Defendant’s motion. 22 // 23 // 24 1 II 2 BACKGROUND 3 A. Factual Background 4 1. Tension between Plaintiff and her supervisor 5 Plaintiff was born in 1946, and she started working as an attorney in the IRS Chief 6 Counsel’s Office (IRSCC) in 1984. Dkt. # 37-1 at 2, 8. In her nearly 35 years of service, she 7 never faced performance-related discipline and won several awards for high quality work during 8 her tenure. Id. at 2. She was also generally evaluated as “fully successful” over the course of her 9 career. Dkt. # 37-3 at 5:4–7. 10 But Plaintiff’s experience at work soured after March 2018, when a new supervisor, 11 Melissa Lang, was appointed to oversee the office where she worked. Dkt. # 37-1 at 27. Lang 12 came from a different division that resolved large cases with corporate employers. Dkt. # 40 at 13 3. Not long after arriving, Lang had concerns with Plaintiff’s work. Dkt. # 37-1 at 54. And she 14 informed Plaintiff, both orally and in writing, of these concerns. Id. When Lang reviewed 15 Plaintiff’s work, she routinely offered comments, left suggestions, and noted necessary revisions. 16 Id. According to Plaintiff, it then took her longer to complete her work because she needed to 17 address these “erroneous corrections and changes[.]” Id. at 2. 18 Plaintiff’s relationship with Lang, however, began to deteriorate further in early 2019. 19 See Dkt. # 37-3 at 6:7–9. At the time, Plaintiff had a new granddaughter, and she was often 20 asked to babysit during weekday hours. Dkt. # 40 at 4–5. She submitted a standing request to 21 telework on Wednesdays (and the occasional Friday) because she “need[ed] to help with the 22 baby.” Dkt. # 37-1 at 21. Lang told Plaintiff that she would coordinate with management and 23 determine whether her standing request for telework would be granted. Id. at 22. When Plaintiff 24 followed up with Lang about this request, Lang informed her that it was denied. Id. at 75. Lang 1 instructed Plaintiff to “use our established process of requesting leave and telework in advance 2 by sending me an Outlook calendar event. Per usual, your requests will be considered in light of 3 the workload/staffing needs that arise in the office.” Id. at 76. 4 On April 16, 2019, Plaintiff asked Lang if she could earn 1.5 “credit hours” for that day. 5 Id. at 23.1 But Lang did not approve this request because she thought the work that Plaintiff 6 intended to do could be finished during regular work hours. Id. Plaintiff responded and said, 7 All I am doing is working 40 hours a week with small timing adjustments that enable me to care for my granddaughter as the family needs my help. Instead of 8 working 5.5 or 6 hours of my tour of duty on Wednesdays, I work those hours in 1.5 [hour] increments on the [remaining] days of the week. 9 Id. When Plaintiff’s Union Steward talked to Lang about this credit hour denial, he noted that 10 Plaintiff “just wants to take care of her granddaughter” and that she should be entitled to 11 “flexibility in her personal life.” Id. at 73. Lang later reiterated that Plaintiff would need to 12 request and receive approval before working credit hours. Id. at 76. Lang also required Plaintiff 13 to include in her request “the number of hours you are requesting, when you plan to work them, 14 and what you plan to work on.” Id. 15 Later in April 2019, there were two instances when Lang could not contact Plaintiff at 16 work. Id. at 74–75. On the second occasion, Lang messaged Plaintiff on Lync (the IRSCC 17 internal messaging platform) during her core hours and Plaintiff did not respond. Id. at 75. Lang 18 expressed concern that Plaintiff was not covering her core hours and said, “I would appreciate it 19 if you could assuage those concerns through promptly responding to my messages while you are 20 21 1 Credit hours are “any hours within the flexible band which are in excess of an employee’s basic 22 work requirement and which the employee works, with supervisory approval, so as to vary the length of the workweek or workday.” Dkt. # 37-1 at 24. Said differently, so long as a supervisor granted prior approval, earning credit hours gave IRSCC employees more flexibility in their work schedule and 23 allowed them to work a few extra hours one day so they could work less on a different day. Id. Ad hoc, daily schedule changes were also allowed, but only if approved by management and these changes were 24 “subject to workload requirements.” Id. IRSCC employees also needed to work “core hours.” Id. 1 on scheduled telework.” Id. Plaintiff responded that her “absence was inadvertent” and that she 2 “always try[s]to be attentive” while teleworking. Id. After several other instances when Lang 3 could not contact Plaintiff during work hours, Lang emailed her and said, “I would like you to 4 keep [me] appraised of your comings and goings in the office and while teleworking. Please 5 send me an email when you begin work and when you leave for the day.” Id. at 15; see id. at 6 76–78, 81–84. 7 Another source of friction between Plaintiff and her supervisor was timekeeping. See id. 8 at 76. In one instance, Lang noticed Plaintiff’s timesheet did not match her pre-approved 9 telework, so Lang said she would not approve “time in the future to the extent it does not match 10 with what I have pre-approved.” Id. at 77. Plaintiff responded with an explanation and said she 11 was concerned that Lang would ever think that she did not work her mandated hours. Id. In 12 another instance, Plaintiff requested 17 hours of travel compensatory time after a business trip to 13 Florida, but Lang approved only 14.25 hours.2 Dkt. # 37-2 at 48. Plaintiff maintains that she 14 was granted fewer hours because Lang scrutinized “each component of the time report in an 15 effort to discover errors,” but she also concedes that an “insignificant error” was found in the 16 calculation of the travel time. Id. at 2. Lang says that she “carefully reviewed” Plaintiff’s 17 request but adds that she reviewed the request in the same manner she reviews all the 18 information and documents submitted to her. Id. at 48. 19 Plaintiff and Lang also clashed over correspondence to taxpayers. See id. at 35–37. In 20 September 2019, Plaintiff sent an error-filled letter that included “an incorrect docket number, 21 incorrect phone number, a type over on the office letter head, and an incorrect office-identifier.” 22 Id. at 38. Lang only received a copy of the letter after it was sent and could not correct the 23 2 Travel compensatory time allows IRSCC employees to be compensated for time spent traveling 24 on official business. Dkt. # 37-2 at 47. 1 errors. Id. Afterward, Lang required Plaintiff to submit all her work for review before it was 2 filed or mailed. Id. Only a few weeks later, Plaintiff submitted a letter to Lang that contained 3 the wrong zip code, the wrong docket number, the wrong office number, and other mistakes. Id. 4 at 13–14. Lang required Plaintiff to fix these errors. Id. 5 In November 2019, Plaintiff emailed Lang, saying that she had emailed a taxpayer to 6 confirm his address. Id. at 18. Lang became concerned that this email violated office policy 7 about permissible email communications with taxpayers. Id. This concern was made even 8 worse because Lang had orally counseled Plaintiff regarding this policy two other times in recent 9 months. Id. at 19. Lang had also sent Plaintiff a copy of this office policy a few months prior, 10 along with follow-up emails to memorialize their discussions. Id.3 After conferring with her 11 supervisors, Lang issued Plaintiff a written reprimand in February 2020 “because of a failure to 12 follow supervisory directions.” Id. at 4, 20. 13 Only two weeks after she received her first written reprimand, Plaintiff sent another email 14 that violated multiple office policies. Id. at 25–26. This email contained information that was 15 not allowed to be shared with taxpayers and included a taxpayer’s Personally Identifiable 16 Information (PII). Id. at 29–30. Lang then issued Plaintiff an official reprimand in March 2020. 17 Id. at 7. As a result of this reprimand, Plaintiff was prevented from teleworking for six months, 18 but “due to the Covid-19 pandemic and the telework flexibilities put into place by the Office of 19 Chief Counsel, [Plaintiff]’s six-month suspension of telework [was] deferred indefinitely.” Id. at 20 29. 21 Along with these written reprimands, Plaintiff was not assigned to an Examination Group 22 in April 2020 based on a different supervisor’s issues with her work. Id. at 52. The Examination 23 3 Plaintiff asserts that some of this counseling was unwarranted because the office policy was not 24 circulated until after she sent at least some of these messages. Dkt. # 40 at 7. 1 Groups support IRS collection and examination agents by attending meetings, answering 2 questions, and providing training. Id. at 55. Diane Wittman—a different supervisor—requested 3 that Plaintiff not be assigned to her groups. Id. at 75. This request was made after receiving 4 complaints about Plaintiff’s lack of responsiveness, helpfulness to clients, and professionalism in 5 communications. Id. at 54. Despite not being assigned to a group for the previous two years, 6 Plaintiff still asked why she was not included this time, writing “I DID NOT SEE THAT I AM 7 ASSIGNED TO ANY EXAM GROUPS. WHY?” Id. at 71. Lang then drafted a response with 8 another supervisor that sought to explain the situation. Id. at 70. 9 2. Workplace evaluations 10 Plaintiff’s workplace evaluations memorialize the change in Lang’s assessment of her 11 work product over time. At first, Lang rated Plaintiff as “fully successful” in her fiscal year 12 2018 evaluation, but she quickly started to notice issues with Plaintiff’s work. See Dkt. # 37-1 at 13 54–55. Lang then issued Plaintiff a midyear assessment in November 2018 where she “indicated 14 several areas in which [Plaintiff] needed to improve.” Id. at 54. 15 In May 2019, Lang sent her supervisor, Peter Hochman, Plaintiff’s next annual 16 evaluation. Id. at 99. This evaluation again provided a summary rating of “fully successful.”4 17 Id. But there were “several areas needing improvement” and it was noted “that maintaining or 18 improving the current ratings required improvement.” Id. After Lang sent him the evaluation, 19 Hochman reviewed and approved it. Id. Lang then shared the evaluation with Plaintiff. Id. And 20 Plaintiff signed it. Id. 21 22 4 In her EEO complaint, Plaintiff described this appraisal “as an indication of an intent to classify 23 her work as unsatisfactory.” Dkt. # 37-1 at 8. But the record shows her “SUMMARY RATING” in this appraisal is listed as “Fully Successful” and her “Element Rating” is “Exceeds” or “Meets” for all 24 elements. Id. at 100. 1 Six months later, Lang gave Plaintiff another midyear evaluation. Dkt. # 37-2 at 80. 2 This assessment noted “serious issues” with Plaintiff’s performance. Id. And Lang wrote that if 3 this were “a rating of record,” Plaintiff’s overall summary rating would only be “Minimally 4 Acceptable.” Id. But Lang added that she was bringing these performance problems to 5 Plaintiff’s attention so that she would have a chance to correct them. Id. at 90. And Lang told 6 Plaintiff, “I am available to help you in this regard.” Id. 7 3. EEO Actions 8 In May 2019, Plaintiff contacted an EEO counselor. Dkt. # 37-1 at 3. On her intake 9 form, she noted that she was discriminated against based on her age and osteoarthritis disability. 10 Id. at 4. She also shared that she sought a reasonable accommodation because she needed “to 11 work certain hours and credit hours” to complete her work and because she wanted to continue 12 her work “free from Manager Lang’s harassment.” Id. at 5. 13 A few weeks later, an EEO counselor arranged to interview Lang about Plaintiff’s 14 complaint. Id. at 29. Lang says that she first learned of Plaintiff’s osteoarthritis disability during 15 this interview with the EEO counselor, and that this was the first time she learned Plaintiff’s 16 disability impaired her ability to type. Id. But Plaintiff maintains that she told Lang about her 17 disability even before Lang became her manager. Dkt. # 37-3 at 8:21–9:15. 18 In July 2019, Plaintiff submitted a Reasonable Accommodation (RA) request to Keona 19 Hill, an EEO Specialist in the IRSCC office. Dkt. # 37-1 at 90–91. Plaintiff’s requested 20 accommodations were: (1) “approval to work credit hours” and (2) to have her work “reviewed 21 in paper format.” Id. at 62. Plaintiff described the medical reason for her requested 22 accommodation as “I suffer from osteoarthritis, which makes typing difficult.” Id. Hill, 23 Hochman, Lang, and Plaintiff then met to discuss Plaintiff’s RA request. Id. at 94. Plaintiff 24 explained that she sought to work credit hours on Saturdays so that she would have fewer 1 distractions. Id. at 96. And she wanted to have her work reviewed on paper because it was 2 “stressful to review an entire document that is marked up with track changes.” Id. at 97. In 3 response, Plaintiff was offered a larger, high-resolution monitor and voice recognition software 4 to eliminate some typing. Id. at 97–98. Plaintiff said she would try the voice recognition 5 software but did not need the monitor. Id. She also declined additional training on track changes 6 because “the content in track changes [was] the underlying problem.” Id. at 98. 7 The next month, Plaintiff submitted a sworn EEO affidavit that expanded on her credit 8 hour accommodation request. Id. at 12. According to Plaintiff, “the denial of my earning and 9 using credit hours is not a ‘reasonable accommodation’ request as an hour earned and an hour 10 used is only one hour worked; so, it does not afford more time for an employee to complete the 11 task.” Id. And Plaintiff stated that Lang’s denial of her credit hours requests “exhibited bias, 12 discrimination, and retaliation” because it denied Plaintiff the “benefit of a flexible schedule.” 13 Id. at 13. 14 In September 2019, Hill, Hochman, Lang, and Plaintiff had another meeting to discuss 15 Plaintiff’s RA requests. Id. at 36. Management explained that her request to use credit hours as 16 a reasonable accommodation was denied because “it would not effectively address her concerns 17 that her arthritis was slowing down her ability to generate type-written work.” Id. at 64. But 18 Plaintiff could still earn credit hours so long as her manager approved. Id. Plaintiff’s request to 19 have her work reviewed in paper format was similarly denied because “it lacked nexus to [her] 20 osteoarthritis condition.” Id. Management also noted that this accommodation was not 21 appropriate because “it was designed to lower the standard by which her work was reviewed, 22 rather than to accommodate her medical condition.” Id. In her response to these denials, 23 Plaintiff reiterated that the underlying reason she sought to use credit hours was “to take 24 advantage of the benefits of flexibility in [her] work schedule[.]” Id. at 66. She added that her 1 request to have her work reviewed on paper was mainly because the “constant rejection” of her 2 work was stressful and because “in most instances, Ms. Lang’s attempted justifications [for 3 suggested changes] were inappropriate, wrong, unnecessary, or merely stylistic.” Id. at 67. 4 Plaintiff filed a second EEO complaint in April 2020. Dkt. # 11-2 at 2. In this complaint, 5 she alleged that she was subject to discrimination and harassment in retaliation for her prior EEO 6 protected activity. Id. at 15. But the United States Department of the Treasury found no 7 discrimination or harassment when it issued its Final Agency Decision. Dkt. # 11-3 at 1–11. 8 Plaintiff then retired in November 2020. Dkt. # 11-7 at 36. She filed her third and final EEO 9 complaint in February 2021, alleging constructive discharge, discrimination, and retaliation. Id. 10 at 2–4, 8. 11 B. Procedural History 12 Plaintiff filed this case on May 1, 2023. Dkt. # 1. Defendant then moved for partial 13 judgment on the pleadings. Dkt. # 10. The Court granted this motion and dismissed Plaintiff’s 14 constructive discharge claims and the claims of discrimination and retaliation in her third EEO 15 complaint because these claims were time barred. Dkt. # 27 at 21.5 Plaintiff’s motion for 16 reconsideration, Dkt. # 28, was denied. Dkt. # 31. 17 Plaintiff’s remaining claims are (1) disparate treatment and hostile work environment in 18 violation of the Age Discrimination in Employment Act (ADEA), see 29 U.S.C. § 621 et seq.; 19 Dkt. # 1 at 6–7 ¶¶ 6.1–6.8; (2) disparate treatment, hostile work environment, and failure to 20 accommodate in violation of the Rehabilitation Act of 1973, see 29 U.S.C. § 701 et seq.; Dkt. # 1 21 at 7 ¶¶ 7.1–7.8; and (3) retaliation and disparate treatment in violation of 29 U.S.C. §§ 794, 633a; 22 5 In this order, the Court granted Plaintiff leave until September 30, 2024 to file an amended 23 complaint. Dkt. # 27 at 21. Plaintiff attaches an amended complaint to her response to Defendant’s motion for summary judgment, see Dkt. # 39-1, but the Court does not consider the contents of this 24 complaint because it is untimely. 1 Dkt. # 1 at 8–9 ¶¶ 8.1–8.6. Defendant seeks summary judgment dismissal of these claims. Dkt. 2 ## 36, 42. 3 III 4 DISCUSSION 5 Summary judgment is warranted if the evidence, viewed in the light most favorable to the 6 non-moving party, shows “that there is no genuine dispute as to any material fact and the movant 7 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 8 477 U.S. 317, 322 (1986). A fact is “material” if it might affect the outcome. Anderson v. 9 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine’ only if there is 10 sufficient evidence for a reasonable fact finder to find for the non-moving party.” Far Out 11 Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248–49). 12 The moving party bears the initial burden of showing there is no genuine dispute of 13 material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. To 14 carry its burden “the moving party must either produce evidence negating an essential element of 15 the nonmoving party’s claim or defense or show that the nonmoving party does not have enough 16 evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire 17 & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets 18 its burden of production, the burden shifts to the nonmoving party to identify specific facts from 19 which a factfinder could reasonably find in the nonmoving party’s favor. Celotex, 477 U.S. at 20 324; Anderson, 477 U.S. at 250; see also Gov’t Emps. Ins. Co. v. Nadkarni, 477 F. Supp. 3d 21 1091, 1096 (N.D. Cal. 2020), aff’d, 842 F. App’x 172 (9th Cir. 2021) (“The non-moving party 22 may not rest upon mere allegations or denials of the adverse party’s evidence, but instead must 23 produce admissible evidence that shows there is a genuine issue of material fact for trial.”). 24 // 1 A. Failure to Accommodate 2 To establish a prima facie case for failure to accommodate, Plaintiff must show (1) she is 3 disabled; (2) she was qualified and able to perform the essential functions of her job with a 4 reasonable accommodation; and (3) she suffered an adverse employment action due to her 5 disability.6 Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). 6 To survive summary judgment, a plaintiff need only show that the accommodation “seems 7 reasonable on its face, i.e., ordinarily or in the run of cases.” US Airways, Inc. v. Barnett, 535 8 U.S. 391, 401 (2002). 9 The Ninth Circuit also requires an employer notified of the need for an accommodation 10 “to engage in an ‘interactive process’ through which the employer and employee can come to 11 understand the employee’s abilities and limitations, the employer’s needs for various positions, 12 and a possible middle ground for accommodating the employee.” Snapp v. United Transp. 13 Union, 889 F.3d 1088, 1095 (9th Cir. 2018). Discrimination results when an employer denies 14 “an available and reasonable accommodation.” Id. But “[a]n ‘employer is not obligated to 15 provide an employee the accommodation [she] requests or prefers, the employer need only 16 provide some reasonable accommodation.’” Zivkovic v. S. California Edison Co., 302 F.3d 17 1080, 1089 (9th Cir. 2002) (quoting E.E.O.C. v. Yellow Freight Sys. Inc., 253 F.3d 943, 951 (7th 18 Cir. 2001) (en banc)). 19 The parties’ argument centers on whether Defendant denied Plaintiff a reasonable and 20 available accommodation. Plaintiff says she was denied two such accommodations: (1) the 21 22 6 The Court evaluates Plaintiff’s claims under the Rehabilitation Act using caselaw that interprets both the ADA and the Rehabilitation Act because the latter “incorporates the ‘standards’ of Title I of the 23 ADA for proving when discrimination in the workplace is actionable[.]” Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009); see Yonemoto v. McDonald, 114 F. Supp. 3d 1067, 1111 (D. 24 Haw. 2015), aff'd, 725 F. App’x 482 (9th Cir. 2018). 1 ability “to work credit hours”; and (2) to have her work “reviewed in paper format.” Dkt. # 38 at 2 14; Dkt. # 37-1 at 61. 3 Defendant responds that these proposed accommodations were unreasonable because 4 they are unrelated to Plaintiff’s disability, osteoarthritis. Dkt. # 37 at 13–14. Defendant says that 5 working credit hours would not address Plaintiff’s “concerns that her arthritis was slowing down 6 her ability to generate type-written work” because—as she repeatedly stated, including in a 7 signed affidavit—“using credit hours is not a ‘reasonable accommodation’ request as an hour 8 earned and an hour used is only one hour worked; so, it does not afford more time for an 9 employee to complete the task.” Dkt. # 37-1 at 12; see id. at 65–66. Plaintiff also could not 10 explain the connection between her osteoarthritis and working credit hours at her deposition. 11 Dkt. # 37-3 at 10:5–21. And the record shows Plaintiff asked to use credit hours not because of 12 her arthritis but because she sought “to take advantage of the benefits of flexibility in [her] work 13 schedule” and because she “need[ed] to help” with her granddaughter. Dkt. # 37-1 at 21, 66. 14 The record similarly shows Plaintiff’s request to have her work reviewed on paper was 15 not connected to her disability. She wanted “her reviewer to make handwritten revisions to her 16 documents because that will limit the number of changes her reviewer makes.” Id. at 63. And 17 she sought to have her work reviewed on paper because “track changes can be difficult to read” 18 and because “she finds it stressful to see so many red lines in her documents and it gets 19 overwhelming.” Id. In her formal EEO complaint, Plaintiff simply wrote that tracked changes 20 are “overwhelming and not productive.” Id. at 67. At her deposition, she was asked, “How 21 would receiving changes in writing instead of tracked changes have reduced the amount that you 22 had to write?” Dkt. # 37-3 at 22:2–5. Plaintiff could only respond, “I don’t know.” Id. 23 Although Defendant did not grant the accommodations that Plaintiff requested, the 24 parties still engaged in an interactive process to find a reasonable accommodation. Defendant 1 met with Plaintiff to explain why her requested accommodations were not reasonable. Dkt. # 37- 2 1 at 63. Defendant then proposed installing voice recognition software on her computer and 3 using ergonomic office equipment. Id.; Dkt. # 40 at 8. Plaintiff accepted these alternative 4 accommodations. Dkt. # 37-1 at 36. Plaintiff says she never had a working version of the 5 dictation software, but she also admits Defendant “made [its] best effort” to install the software 6 for her and Defendant did not finish installing the software only because she retired. Dkt. # 37-3 7 at 14:14–15:7, 16:3–5. Plaintiff further concedes that Defendant supplied her with ergonomic 8 office equipment, including “several different keyboards and mice[.]” Dkt. # 40 at 8. 9 This claim does not survive summary judgment because Plaintiff does not raise a triable 10 issue of fact. Plaintiff has provided no evidence that shows her requested accommodations were 11 reasonable on their face; they were not connected to her disability. The record also shows 12 Defendant engaged in the interactive process and worked with Plaintiff to find a reasonable 13 accommodation that would fit her needs. Thus, Plaintiff has failed to show a specific reasonable 14 accommodation that Defendant failed to provide, and she does not carry her burden of showing 15 that the accommodations offered by Defendant were unreasonable. Memmer v. Marin Cnty. Cts., 16 169 F.3d 630, 633–34 (9th Cir. 1999). 17 B. Disparate Treatment 18 Claims of disparate treatment are analyzed under the burden shifting framework set out in 19 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This framework requires Plaintiff to 20 first establish a prima facie case by showing (1) she belongs to a protected class; (2) she was 21 qualified for her position; (3) she experienced an adverse employment action; and (4) similarly 22 situated employees that are not in her protected class received more favorable treatment. Id. at 23 802; Campbell v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018). If Plaintiff makes 24 her prima facie case, the burden shifts back to Defendant “to articulate a legitimate, 1 nondiscriminatory reason for the challenged conduct.” Campbell, 892 F.3d at 1012. If 2 Defendant does so, the burden shifts back to Plaintiff to show “that the reason offered is 3 pretextual.” Id. 4 It is undisputed that Plaintiff belonged to a protected class and was qualified for her 5 position. She says that she faced several adverse employment actions: 6 • management reprimanded her after she disclosed a taxpayer’s Personally Identifiable Information (PII); 7 • management issued her a written reprimanded because she disclosed PII in another instance; 8 • her ability to telework was suspended; • she had to use her Lync Communication System while in the office; 9 • her request to use credit hours as a reasonable accommodation was denied; and • she was repeatedly berated by her manager and called unprofessional. 10 Dkt. # 37-1 at 8; Dkt. # 37-3 at 3. Plaintiff purports to identify three comparator employees— 11 Ara DerHartonian, Patsy Clark, and Dan Kempland—attorneys in her office, who reported to the 12 same supervisor and were not subject to the same or similar adverse conduct. Dkt. # 37-3 at 2. 13 But she can only offer her “best estimate” about the age of these employees, and she does not 14 provide any evidence about their disability status. Dkt. # 37-4 at 13–14. And Plaintiff 15 repeatedly distinguishes herself from these employees, saying that they “have significantly less 16 experience at the IRS,” and provides virtually no evidence to show these employees had similar 17 job responsibilities or engaged in similar conduct. See id. at 13–18. 18 In response, Defendant says that Plaintiff fails to make her prima facie case. Dkt. # 38 at 19 16. Defendant says the incidents identified by Plaintiff are not “adverse employment actions” 20 because they did not change the terms and conditions of her employment. Id. at 16–17. And 21 Defendant contends Plaintiff does not identify a similarly situated employee outside of her 22 protected class that was treated more favorably. Id. Defendant also identifies evidence that 23 24 1 shows it had a legitimate, nondiscriminatory motive for the actions it took against Plaintiff. Id. 2 at 18–20. 3 Even viewed in the light most favorable to Plaintiff, her evidence does not establish a 4 prima facie case of disparate treatment. She does not point to a similarly situated employee 5 treated more favorably by Defendant but who is not in her protected class. The only instance in 6 the record when Plaintiff and a comparator employee engaged in similar conduct occurred in 7 September 2019. Dkt. # 37-2 at 28. Dan Kempland disclosed PII in an email to the Department 8 of Justice. Id. But Plaintiff and Kempland received the same discipline when they sent an email 9 containing PII for the first time—informal counseling. Id. at 18, 28–29. The record does not 10 show Defendant’s treatment of the comparator employees was more favorable than its treatment 11 of Plaintiff. 12 C. Hostile Work Environment 13 To establish a prima facie hostile work environment claim, Plaintiff must raise a triable 14 issue of fact as to whether (1) she was “subjected to verbal or physical conduct” because of her 15 membership in a protected class; (2) “the conduct was unwelcome”; and (3) “the conduct was 16 sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive 17 work environment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (quoting 18 Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002)). 19 Courts determine whether a workplace was abusive “by looking at all the circumstances,” 20 including, “the frequency of the discriminatory conduct; its severity; whether it is physically 21 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 22 with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). 23 Courts must also evaluate whether the workplace was both subjectively and objectively hostile. 24 1 Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000). To assess the objective portion 2 of the claim, courts “assume the perspective of the reasonable victim.” Id. 3 Plaintiff describes several instances that she alleges combined to create a hostile work 4 environment. One time, her manager scrutinized her travel documentation for business-related 5 travel. Dkt. # 37-4 at 14. She was later called into her manager’s office and reprimanded for 6 requesting a taxpayer’s phone number in violation of Defendant’s email policy. Id. at 14-15. 7 Plaintiff had her telework privileges revoked and was issued a written reprimand in another 8 instance because she again requested a taxpayer’s phone number over email, but this reprimand 9 was similarly unwarranted because the request was “inadvertently” attached to her email. Id. at 10 15. Plaintiff’s manager later prohibited her from signing off on correspondence and pleadings 11 without having her work reviewed—a privilege she would have otherwise enjoyed based on her 12 seniority. Id. at 16. And Plaintiff was not allowed to use credit hours, which denied her a 13 flexible work schedule. Id. at 17. 14 In addition, Plaintiff’s supervisor was condescending, dismissive, and threatening. Id. at 15 14–15. Plaintiff had to send her manager daily emails with “the time of all of [her] movements 16 during a workday.” Id. at 17. And these events eventually came to a head when Plaintiff 17 emailed her manager, “I do not understand why you are all of a sudden micromanaging my 18 ability to control my work production. When You [sic] are killing me. I have never been treated 19 like this. When I was allowed the reasonable flexibility of working credit hours, I always got my 20 work to you early.” Dkt. # 40-1 at 12. 21 Defendant responds that Plaintiff’s prima facie case fails here too. Defendant maintains 22 that Plaintiff does not show her manager’s conduct was due to her age or disability. Dkt. # 36 at 23 21. Plaintiff identified other, nondiscriminatory motives for her manager’s actions, including 24 “lack of knowledge,” “lack[] of prior experience,” and unfamiliarity with the “issues at hand.” 1 Id. at 21–22; see Dkt. # 37-1 at 16–18. At her deposition, Plaintiff acknowledged that one of the 2 reasons for her manager’s conduct could have been a genuine disagreement with her work. Dkt. 3 # 37-4 at 23:23–27:14. And when asked why she believed her manager’s action were because of 4 bias, she said, “I have no idea.” Id. at 27:11–14. 5 Defendant further contends that Plaintiff does not show the harassment she suffered was 6 severe or perverse enough to establish a hostile work environment claim. Dkt. # 36 at 23. 7 Defendant lists several cases that it says show Plaintiff’s allegations “do not meet the demanding 8 standard for a hostile work environment as a matter of law.” Id. And, according to Defendant, 9 Plaintiff’s subjective experience cannot show a hostile work environment because she does not 10 show that her manager’s conduct was objectively abusive. Id. at 24. 11 Plaintiff does not raise an issue of fact as to whether her workplace was objectively 12 hostile. Generally, “[o]stracism, micromanagement, and discipline” do not inherently support a 13 hostile work environment claim. Edgell v. Regan, 2023 WL 8702058, at *16 (W.D. Wash. Dec. 14 15, 2023) (collecting cases). And the difficulties that Plaintiff describes “are the kinds of normal 15 strains that can occur in any office setting.” Singh v. U.S. House of Representatives, 300 F. 16 Supp. 2d 48, 56 (D.D.C. 2004); see Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 17 2009) (“[T]he removal of important assignments, lowered performance evaluations, and close 18 scrutiny of assignments by management [cannot] be characterized as sufficiently intimidating or 19 offensive in an ordinary workplace context.”). The record simply does not reflect the conduct 20 required to survive summary judgment on a hostile work environment claim. See, e.g., Vasquez 21 v. Cty. of Los Angeles, 349 F.3d 634, 643–44 (9th Cir. 2003) (holding two racial epithets directed 22 at the plaintiff and other harassing conduct could not create a hostile work environment); 23 Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1990) (upholding directed verdict that 24 dismissed hostile work environment claim where employer posted a racially offensive cartoon, 1 used racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to 2 Latinos, did not provide adequate police backup to Latino officers, and kept illegal personnel 3 files on plaintiffs because they were Latino); Mangaliman v. Wahington State DOT, 2014 WL 4 1255342, at *10 (W.D. Wash. Mar. 26, 2014) (dismissing hostile work environment claim 5 despite allegations the plaintiff was called “dumb Filipino,” his supervisor “chew[ed] [him] out,” 6 supervisors “scrutinize[ed] his conduct,” and he faced “extensive performance testing.”). 7 The Court appreciates that Plaintiff was unhappy in her work environment and that she 8 may sincerely believe she was treated unfairly. But the record does not show that the conduct at 9 issue was severe or pervasive enough to rise to a cognizable hostile work environment claim. 10 D. Retaliation 11 Retaliation claims are also analyzed under the McDonnell Douglas burden shifting 12 framework. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 693 (9th Cir. 2017). To 13 make her prima facie case, Plaintiff must show (1) “that she undertook a protected activity”; (2) 14 “[her] employer subjected [her] to an adverse employment action”; and (3) “there is a causal link 15 between those two events.” Id. (quoting Vasquez, 349 F.3d at 646). “[A]n action is cognizable 16 as an adverse employment action if it is reasonably likely to deter employees from engaging in 17 protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). 18 If Plaintiff makes her prima facie case, the burden shifts to Defendant to provide a 19 legitimate, nonretaliatory reason for the adverse employment action it took. Reynaga, 847 F.3d 20 at 693. If Defendant meets this burden, then Plaintiff “has the ultimate burden of showing that 21 [Defendant’s] proffered reasons are pretextual.” Id. (quoting Steiner v. Showboat Operating Co., 22 25 F.3d 1459, 1465 (9th Cir. 1994)). 23 Plaintiff identifies only one thing that ties her protected activity to the adverse 24 employment actions she suffered: timing. Dkt. # 38 at 23. She says, “Timing is enough to infer 1 retaliation.” Id. (citing Bell v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003)). And she 2 contends that here “a jury could find that when Ms. Campbell raised concerns about the alleged 3 justification for Ms. Lang’s actions, she was forced to elevate her concerns to a formal complaint 4 process because of the inadequate response.” Id. at 23. But Plaintiff does not point to evidence 5 that shows any proximity between the time when she filed her EEO complaint (i.e., engaged in a 6 protected activity) and an adverse action by her employer. See id. 7 On the other hand, Defendant shows several months elapsed between Plaintiff’s EEO 8 complaint and the claimed adverse employment actions. Dkt. # 36 at 26. Defendant adds that 9 the events Plaintiff complains about are “too far removed” from her EEO complaint “to show 10 causation.” Id. The record shows that Plaintiff’s supervisor learned about her EEO complaint on 11 June 5, 2019. Dkt. # 37-2 at 1. Several events that Plaintiff identifies as adverse employment 12 actions occurred before this. For instance, Plaintiff was issued a mid-year assessment that 13 identified deficiencies in her work seven months before, Dkt. # 37-1 at 86; Plaintiff’s supervisor 14 denied her credit hours request seven weeks earlier, id. at 71–72; and the proposed annual 15 appraisal of Plaintiff that found she failed to improve in the areas identified in her mid-year 16 assessment was sent a month prior, id. at 99. Defendant correctly notes these events, which 17 occurred before the protected activity, “cannot logically have been caused by that protected 18 activity.” Dkt. # 36 at 25; see Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 19 F.3d 493, 507 (9th Cir. 2000) (“[W]hen adverse employment decisions are taken within a 20 reasonable period of time after complaints of discrimination have been made, retaliatory intent 21 may be inferred.”) (emphasis added). 22 The other events that Plaintiff identifies occurred months after her EEO complaint was 23 filed. The record shows that she received written counseling in February 2020, Dkt. # 37-4 at 24 15; she was prevented from teleworking in March 2020, id. at 18; and she was not assigned to an 1 Examination Group in April 2020, Dkt. # 37-2 at 70.7 It is undisputed that these events occurred 2 eight, nine, and ten months after Plaintiff filed her original EEO complaint. 3 The adverse employment actions that Plaintiff identifies occurred too long after her EEO 4 complaint to show causation, so Plaintiff does not show any “causal link” between Defendant’s 5 actions and her protected activity. This dooms her prima facie case for retaliation. Granted, 6 “causation can be inferred from timing alone where an adverse employment action follows on 7 the heels of protected activity.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th 8 Cir. 2002). But this is not true in all cases because “to support an inference of retaliatory motive, 9 the [events] must have occurred ‘fairly soon after the employee’s protected expression.’” Id. 10 (quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009–10 (7th Cir. 2000)). The Ninth 11 Circuit has also noted that a gap of four, five, or eight months between protected activity and 12 adverse action “is simply too long, by itself, to give rise to an inference of causation.” Id. (citing 13 Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398–99 (7th Cir. 1999) (four 14 months); Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (eight 15 months); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five 16 months); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (four months)). 17 Here, the adverse employment actions occurred eight, nine, and ten months after Plaintiff filed 18 her EEO complaint. Thus, the gap between her protected activity and the adverse action is too 19 long, by itself, to show causation. Because Plaintiff does not offer any evidence other than 20 timing to link her protected activity and the adverse actions, she cannot show Defendant’s 21 22 7 Plaintiff filed a second EEO complaint on April 19, 2020, nearly a week after she was not 23 assigned to an Examination Group and several months after the other events took place. See Dkt. ## 11-2 at 2; 37-2 at 70–72. Because these events took place before the second complaint was filed, they 24 similarly cannot have resulted from the protected activity. See Passantino, 212 F.3d at 507. l adverse employment actions were caused by her protected activity. So her prima facie retaliation 2 claim fails. 3 Even if Plaintiff could link the adverse actions to her protected activity, Defendant offers 4 legitimate reasons for the actions that it took and Plaintiff does not identify “specific” or 5 || “substantial” evidence of pretext. Coghlan vy. American Seafoods Co. LLC, 413 F.3d 1090, 6 1095-96 (9th Cir. 2005) (“[W]hen the plaintiff relies on circumstantial evidence [of pretext], that 7 evidence must be specific and substantial to defeat the employer’s motion for summary g || judgment.) (quotation marks omitted); Dkt. # 38 at 10 (stating that Plaintiff relies on 9 “circumstantial evidence of pretext as to the true motives for the IRS ’s actions and inactions 10 || here’); see also Dkt. # 36 at 24-27. Consequently, she cannot succeed on this claim. 11 IV 12 CONCLUSION 13 For the above reasons, the Court GRANTS Defendant’s motion for summary judgment. 14. || Dkt. #36. The Court DISMISSES Plaintiffs claims with prejudice; this includes any claim on 15 || which Plaintiff did not provide argument in opposition to the motion. 16 Dated this 2nd day of April 2025. oka 4 Chur 18 John H. Chun United States District Judge 19 20 21 22 23 24 ORDER GRANTING MOTION FOR SUMMARY