Overton v. Mayorkas

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dixie Overton, No. CV-22-01450-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Alejandro N. Mayorkas, Secretary of U.S. Department of Homeland Security, 13 Defendant. 14 15 16 Pending before the Court are Defendant Alejandro N. Mayorkas’s Motion for 17 Summary Judgment (Doc. 62) and Motion to Seal (Doc. 64). Also pending is Plaintiff 18 Dixie Overton’s Motion to Seal (Doc. 70). For the following reasons, Defendant’s Motion 19 for Summary Judgment is granted, and both Motions to Seal are denied. 20 BACKGROUND 21 Plaintiff Dixie Overton is a current employee1 of the United States Department 22 of Homeland Security (DHS), Immigration and Customs Enforcement. (Doc. 1 at 1). She 23 is female and a single mother. (Id.). Overton filed this lawsuit against Defendant Alejandro 24 N. Mayorkas in his official capacity as the Secretary of DHS and brings disparate 25 treatment, retaliation, and hostile work environment claims against DHS. (Id. at 1, 10-12). 26 Overton began employment at DHS on January 26, 2014. (Doc. 1 at 4). Karl 27 1 At oral argument, Overton’s attorney stated that Overton resigned from DHS on August 28 17, 2020 and returned to DHS on June 20, 2021. For all relevant times in this case, Overton was employed at DHS. (Doc. 1 at 1). 1 Kirk was her direct supervisor for the entirety of her employment. (Doc. 72 at 1). 2 In November 2018, Overton applied to a Management Program Analyst (MPA) 3 position at DHS. (Doc. 73 at 9). The hiring panel for that position included Kirk and two 4 other employees. (Id.; Doc. 73-2 at 70 of 76). During the first step of the hiring process, 5 which involved reviewing and grading the candidates’ resumes, the Complaint alleges that 6 Kirk directed the other members of the hiring panel to lower their original scores for 7 Overton’s resume. (Doc. 73 at 9). Based on a unanimous decision, the hiring panel did 8 not select Overton for the MPA position at that time. (Doc. 73 at 9; Doc. 73-2 at 76 of 76). 9 While Kirk was a supervisor at DHS between 2018 and 2019, employees brought 10 allegations against Kirk regarding workplace harassment and misconduct.2 (Doc. 73 at 2). 11 The allegations included that he belittled single moms, (Doc. 73 at 2; Doc. 71-9 at 2 of 3), 12 exhibited “harassing punching behaviors,” (Doc. 73 at 2; Doc. 71-14 at 4 of 4), made 13 inappropriate comments, (Doc. 73 at 2; Doc. 73-2 at 18 of 76), and kicked a door (Doc. 73 14 at 2; Doc. 73-6 at 11 of 28). Kirk also allegedly sent a picture of his wife in a bikini to 15 employees at DHS. (Doc. 73 at 10; Doc. 73-3 at 12 of 27). Katrina Kane, a fellow 16 employee at DHS, met with Kirk in 2019 to address this alleged behavior. (Doc. 73 at 2; 17 Doc. 71-23 at 2). The Office of Professional Responsibility (OPR) at DHS investigated 18 the allegations against Kirk. (Doc. 73 at 2-3; Doc. 63-2 at 25-26 of 114). Based on OPR’s 19 investigation, DHS charged Kirk with “Failure to Follow Instructions,” because Kane 20 warned Kirk not to shadowbox near employees but Kirk continued to do so, and 21 “Inappropriate Conduct,” because of Kirk’s alleged statements, shadowboxing, and 22 sending of inappropriate pictures to employees. (Doc. 73 at 2-3; Doc. 73-2 at 19-20 of 76). 23 DHS suspended Kirk for two days because of these charges. (Doc. 73 at 3; Doc. 73-6 at 24 10 of 28). 25 On March 6, 2020, Overton filed an Equal Employment Opportunity (EEO) 26 complaint against Kirk, alleging gender discrimination. (Doc. 73 at 4; Doc. 71-2 at 2-4 of 27 2 Two female employees, who filed EEO complaints against Kirk, eventually quit their jobs at DHS. (Doc. 73-4 at 7-8 of 34; Doc. 73-2 at 32-33 of 76). In total, eight employees, 28 whom Kirk supervised, quit their jobs, and six of those employees were women. (Doc. 73 at 4; Doc. 73-4 at 7-9 of 34). 1 4). Kane worked to resolve Overton’s EEO complaint, which resulted in the execution of 2 a settlement agreement on April 13, 2020. (Doc. 73 at 4; Doc. 73-6 at 21-22 of 28). One 3 of the terms of the settlement agreement involved promoting Overton to an MPA position. 4 (Doc. 73 at 4; Doc. 71-3 at 2 of 6). 5 On April 14, 2020, Kirk issued a “letter of reprimand” to Overton because of her 6 arrest that occurred a year and a half earlier. (Doc. 73 at 5; Doc. 71-10 at 2-4 of 4). On 7 September 22, 2018, Overton had been arrested based on allegations that she committed 8 domestic violence. (Doc. 1 at 4). Overton had reported the arrest to Kirk the next day on 9 September 23, 2018. (Doc. 73 at 4). One month after Overton’s arrest, the prosecutor 10 dropped the charges. (Doc. 1 at 4). The Administrative Inquiry Unit (AIU) of DHS 11 investigated Overton’s arrest and concluded its investigation on July 3, 2019. (Doc. 73 at 12 4). In April 2020, DHS instructed Kirk to make a final decision on whether to discipline 13 Overton for the arrest. (Doc. 73 at 5; Doc. 73-2 at 25-26 of 76). In deciding what action 14 to take, Kirk consulted with a specialist, who recommended that Kirk issue a letter of 15 reprimand, which is the “most common outcome in cases where an employee is arrested.” 16 (Doc. 73 at 5; see Doc. 73-2 at 26-27 of 76). 17 On June 7, 2020, DHS promoted Overton from Mission Support Specialist 18 (MSS) to the MPA position. (Doc. 73 at 6; Doc. 63-1 at 12 of 160). After her promotion 19 to the MPA position, Kirk allegedly required Overton to continue her MSS duties. (Doc. 20 73 at 6; Doc. 71-27 at 2 of 2). The only training that Overton allegedly received for the 21 MPA position involved Kirk helping her read and analyze data over the course of two 22 weeks. (Doc. 73 at 7). Jay McClain, the only other person at the time who held an MPA 23 position at DHS, allegedly received four hours of training per day over the course of two 24 months from Kirk and another employee. (Doc. 73 at 7; Doc. 73-2 at 54, 59-60 of 76). 25 Kirk also allegedly was present at McClain’s cubicle more often than he was at Overton’s 26 cubicle. (Doc. 73 at 11; Doc. 73-4 at 17 of 34). Kirk testified that he and other employees 27 had trained Overton “starting back in 2016.” (Doc. 73 at 7; Doc. 73-2 at 50 of 76). 28 On June 17, 2020, Kirk issued Overton a “Performance Work Plan” (PWP). 1 (Doc. 73 at 8; Doc. 71-11 at 3 of 3). Overton communicated to Kirk that the PWP contained 2 unrealistic goals and that she would not have enough time to review it. (Doc. 73 at 8). 3 Kirk gave the same PWP to both McClain and Overton. (Id.; see Doc. 71-12). 4 On June 19, 2020, Overton emailed Kirk and Kane “requesting additional time 5 to review the PWP, asking for the meeting that day to be rescheduled, and requesting the 6 presence of a female supervisor during” the meeting about the PWP. (Doc. 73 at 8). Kirk 7 did not bring a female supervisor to the meeting, but he brought a third-party male 8 supervisor instead. (Id.). 9 Kirk also allegedly criticized Overton’s performance in emails with other 10 employees copied, (Doc. 73 at 9; Doc. 71-1 at 4-5 of 11), and contacted Overton on her 11 personal cell phone while she was on leave from work, (Doc. 73 at 10; Doc. 63-1 at 39 of 12 160). 13 Overton filed a Complaint against DHS on August 26, 2022, raising Title VII claims 14 of disparate treatment, retaliation, and hostile work environment. (Doc. 1). On March 29, 15 2024, DHS filed a Motion for Summary Judgment (Doc. 62), seeking to dismiss all three 16 claims. On that same day, DHS filed a Motion to Seal (Doc. 64), requesting to file under 17 seal 15 of the 23 exhibits in support of its Motion for Summary Judgment. Plaintiff also 18 filed a Motion to Seal on June 28, 2024 (Doc. 70), concurring with Defendant’s Motion to 19 Seal and requesting to file under seal 29 of the 35 exhibits in support of Plaintiff’s 20 Statement of Facts. 21 DISCUSSION 22 I. Motion for Summary Judgment 23 a. Legal Standard 24 A court must grant summary judgment if the pleadings and supportive documents, 25 viewed in the light most favorable to the non-moving party, “show that there is no genuine 26 issue as to any material fact and that the moving party is entitled to judgment as a matter 27 of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 28 On a motion for summary judgment, the movant bears the burden of establishing the 1 absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 2 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). “In order to carry its burden of production, 3 the moving party must either produce evidence negating an essential element of the 4 nonmoving party's claim or defense or show that the nonmoving party does not have 5 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 6 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the 7 movant “carries its burden of production, the nonmoving party must produce evidence to 8 support its claim or defense.” Id. at 1103. “If the nonmoving party fails to produce enough 9 evidence to create a genuine issue of material fact, the moving party wins the motion for 10 summary judgment.” Id. 11 There is no issue for trial unless sufficient evidence favors the non-moving party. 12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely 13 colorable or is not significantly probative, summary judgment may be granted.” Id. at 249- 14 50. Nevertheless, the non-movant's evidence is “to be believed, and all justifiable 15 inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for summary 16 judgment, the judge must view the evidence presented through the prism of the substantive 17 evidentiary burden.” Id. at 254. Ultimately, “the trial judge's summary judgment inquiry 18 as to whether a genuine issue exists will be whether the evidence presented is such that a 19 jury applying that evidentiary standard could reasonably find for either the plaintiff or the 20 defendant.” Id. at 255. 21 i. Disparate Treatment Claims 22 To prove disparate treatment under Title VII, Overton must first establish a prima 23 facie case of discrimination under the McDonnell Douglas framework. McDonnell 24 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of 25 discrimination, Overton must show (1) she belongs to a protected class; (2) she was 26 performing according to her employer’s legitimate expectations; (3) she suffered an 27 adverse employment action; and (4) similarly situated employees were treated more 28 favorably or other circumstances surrounding the adverse employment action give rise to 1 an inference of discrimination. Reynaga v. Roseburg Forest Products, 847 F.3d 678, 691 2 (9th Cir. 2017) (citing McDonnell Douglas, 411 U.S. at 802). 3 If Overton succeeds in establishing a prima facie case, the burden of production 4 shifts to DHS to articulate a legitimate, nondiscriminatory reason for taking the adverse 5 employment action. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658 (9th 6 Cir. 2002) (citing McDonnell Douglas, 411 U.S. at 802). If DHS does so, Overton must 7 then demonstrate that DHS’s articulated reason is a pretext for unlawful discrimination by 8 “either directly persuading the court that a discriminatory reason more likely motivated the 9 employer or indirectly by showing that the employer’s proffered explanation is unworthy 10 of credence.” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124. (9th Cir. 2000). 11 Overton’s evidence “must be both specific and substantial to overcome the legitimate 12 reasons” set forth by DHS. Aragon, 292 F.3d at 659. 13 Overton offers five theories of how DHS “subjected [Overton] to adverse 14 employment actions and treated her differently than similarly situated employees outside 15 of her protected class.” (Doc. 72 at 11). For the reasons set forth below, Overton’s 16 disparate treatment claim, under any of these theories, does not withstand Defendant’s 17 Motion for Summary Judgment. 18 1. Less Training 19 Overton first argues that DHS discriminated against her because DHS “gave Jay 20 McClain better, longer, more robust training for the MPA position” than she received. 21 (Doc. 72 at 11). Overton, however, fails to make out a prima facie claim of disparate 22 treatment under this theory because Overton does not establish an adverse employment 23 action. 24 Overton contends that the only training she received for the MPA position involved 25 Kirk “helping her read and analyze data” over the course of two weeks. (Doc. 73 at 7). 26 Overton argues that she received less training than the male employee in the same position, 27 because he received four hours of training each day over the course of two months. (Doc. 28 73 at 7; Doc. 73-2 at 54, 59-60 of 76). Overton also points to Kirk’s testimony, however, 1 that he and other employees at DHS had provided training to Overton for many years 2 “starting back in 2016.” (Doc. 73 at 7; Doc. 73-2 at 50 of 76). 3 Overton does not cite a single case to support the proposition that a female employee 4 receiving less training than a male employee in the same position constitutes an adverse 5 employment action. (See Doc. 72 at 10-13). Nor was the Court able to find one. Rather, 6 federal courts have consistently recognized that less training, or even failure to train, itself 7 does not amount to an adverse employment action. C.f. Brooks v. Firestone Polymers, 8 L.L.C., 640 Fed. Appx. 393, 397 (5th Cir. 2016) (holding that “failure to train” alone “does 9 not constitute an ultimate employment decision or an adverse employment action”); Hill v. 10 Rayboy-Brauestein, 467 F.Supp.2d 336, 352 (S.D.N.Y. 2006) (“When an employee cannot 11 show material harm from a denial of training, such as a failure to promote or a loss of career 12 advancement opportunities, there is no adverse employment action.”); Roberson v. Game 13 Stop, Inc., 395 F.Supp.2d 463, 469 (N.D. Tex. 2005) (holding that “failure to train” does 14 not constitute an adverse employment action “where the alleged failure to train an 15 employee is one of adequacy and where no formal program of training exists”); but see 16 Clay v. United Parcel Service, 501 F.3d 695, 710 (6th Cir. 2007) (holding that “deprivation 17 of increased compensation as the result of a failure to train constitutes an adverse 18 employment action”). 19 Nor does Kirk’s more frequent presence at McClain’s cubicle amount to an adverse 20 employment action. See Fushi v. Bashas’ Inc., No. CV-10-02519, 2013 WL 231048, at *3 21 (D. Ariz. Jan. 22, 2013) (“To the extent that [plaintiff] alleges that she was discriminated 22 against by [a fellow employee] because he would sometimes converse more with male 23 employees than with the females . . . such behavior . . . even if true, does not amount to an 24 adverse employment action.”). 25 The alleged facts, even viewed in the light most favorable to Overton, do not give 26 rise to an inference of discrimination. Overton does not provide any evidence to show that 27 the lack of training was due to her gender, or that lack of training limited her opportunities 28 or, itself, resulted in other adverse action. Accordingly, this theory fails because Overton 1 does not establish a prima facie case of disparate treatment. 2 2. Interference with Promotion 3 Overton next argues that DHS discriminated against her because “Kirk interfered” 4 with her opportunity for a promotion “to the MPA position in 2018.” (Doc. 72 at 11). 5 Overton alleges that, during the first step of the hiring process for the MPA position, Kirk 6 directed other members of the hiring panel to lower their scores for Overton’s resume, and 7 “[a]s a result of the lower score, [DHS] selected a male for the MPA position.” (Doc. 72 8 at 13). Overton fails to make a prima facie case of gender discrimination under this theory, 9 however, because she does not provide admissible evidence that Kirk directed other 10 members of the hiring panel to lower their scores for Overton’s resume during the first step 11 of the hiring process or that any of the members of the hiring panel in fact lowered their 12 scores. (Doc. 73 at 9). 13 Although Overton alleges in her Response to Defendant’s Motion for Summary 14 Judgment that Kirk directed the other members of the hiring panel to lower their scores for 15 Overton’s resume, (Doc. 72 at 13), Overton also alleges in her Statement of Facts that “Kirk 16 did not specifically tell [another member of the hiring panel] to lower [Overton’s] score, 17 but his behavior led her to believe that is what he wanted her to do.” (Doc. 73 at 9). 18 Overton points to Exhibit 12, where a member of the hiring panel in fact states in a sworn 19 affidavit that “Kirk did not specifically advise me to lower [Overton’s] resume score.” 20 (Doc. 71-6 at 3 of 8). According to Exhibit 12, the member of the hiring panel states, “I 21 felt like [Kirk] desired that we change our resume scores, but he did not state that 22 specifically, and I did not change my scoring.” (Doc. 71-6 at 4 of 8). Thus, Overton’s 23 allegation that Kirk directed the panel to lower their scores and interfered with Overton’s 24 candidacy for the promotion is not supported in the record. To the contrary, the record 25 indicates that Kirk did not direct the members of the panel to lower their scores of 26 Overton’s resume, and the members of the panel did not lower their scores of Overton’s 27 resume. (See Doc. 71-6 at 3-4 of 8). As such, Overton raises no genuine dispute of material 28 fact regarding whether Kirk interfered with her promotion. 1 Even if, viewing the facts in the light most favorable to Overton, Overton was able 2 to establish a prima facie case of discrimination, Overton does not create any genuine 3 dispute of material fact regarding DHS’s legitimate, non-discriminatory reason for 4 interfering with Overton’s promotion. See Chuang, 225 F.3d at 1124. DHS articulated 5 that the other male employee, who received the promotion to the MPA position in 2018, 6 was “more qualified than” Overton. (Doc. 62 at 9). Specifically, DHS describes how the 7 other male employee had “extensive experience in computers, spreadsheets, and power 8 point presentations from past positions as well as program management experience,” that 9 he had “mastered” a complex ICE database regarding commercial air operations, was “very 10 methodical,” and that he provided “very proficient and accurate weekly reporting of 11 commercial removals.” (Id.). 12 Overton has raised no genuine dispute of material fact that DHS’s articulated reason 13 is a pretext for unlawful discrimination. Overton does not provide any evidence to suggest 14 that the chosen candidate did not have the credentials highlighted by DHS. Moreover, 15 Overton herself states that Kirk directed the hiring panel to lower their scores of Overton’s 16 resume because he was “upset” that the other members of the hiring panel had scored 17 Overton’s resume as a joint exercise between the two of them, instead of individually. 18 (Doc. 72 at 13). Overton has not pointed to any evidence that indicates a “discriminatory 19 reason more likely motivated [Kirk] or indirectly by showing that the [Kirk]’s proffered 20 explanation is unworthy of credence.” Chuang, 225 F.3d at 1124. 21 Accordingly, Overton does not establish a prima facie case of gender discrimination 22 under this theory. Even if Overton did establish a prima facie case of gender 23 discrimination, Overton raises no genuine dispute of material fact that DHS’s legitimate, 24 non-discriminatory reason is pretextual. As such, this theory for a disparate treatment 25 claim fails. 26 3. Remaining Theories of Disparate Treatment 27 Overton additionally asserts the following three theories of disparate treatment: 28 “Kirk made her continue performing the duties of her former position;” Overton’s “request 1 to have a female supervisor present for her meetings was denied;” and “Kane made gender- 2 based, insulting statements to her.” (Doc. 72 at 11). Overton does not provide any 3 argument or further factual basis for these theories, nor does Overton cite authority to 4 support the proposition that any of these actions constitute disparate treatment. (See id. at 5 10-14). Accordingly, Overton has raised no genuine dispute of material fact regarding 6 whether these actions constitute disparate treatment, and as a result, these remaining 7 theories fail. Therefore, the Court grants Defendant’s Motion for Summary Judgment on 8 the disparate treatment claim. 9 ii. Retaliation Claim 10 A retaliation claim under Title VII follows the same McDonnell Douglas burden- 11 shifting framework discussed above. Equal Employment Opportunity Com’n v. Swissport 12 Fueling, Inc., 916 F.Supp.2d 1005, 1028 (D. Ariz. 2013). To make out a prima facie case 13 of retaliation, Overton must show that (1) she engaged in protected activity; (2) DHS 14 subjected her to an adverse employment action; and (3) a causal link exists between the 15 protected activity and the adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 16 2000). Once Overton establishes a prima facie retaliation claim, “the burden shifts to 17 [DHS] to articulate a legitimate nondiscriminatory reason for its decision.” Id. If DHS 18 articulates such reason, Overton must demonstrate a genuine issue of material fact as to 19 whether the reason advanced by DHS was a pretext for a discriminatory motive. Brooks, 20 229 F.3d at 928. 21 To begin, Overton has shown that she engaged in protected activity. Overton filed 22 an EEO Complaint, alleging gender discrimination, against Kirk on March 6, 2020. (Doc. 23 73 at 4; Doc. 71-2 at 2-4 of 4); see Boswell v. Potter, 51 Fed. Appx. 661, 663 (9th Cir. 24 2002) (finding that employee “clearly engaged in a protected activity by filing EEO 25 complaints”). 26 Overton has failed to show, however, that DHS subjected her to an adverse 27 employment action. An adverse employment action involves any decision by an employer 28 that affects “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 1 2000e–2(a)(1). Overton contends that the letter of reprimand, issued by Kirk on April 14, 2 2020, constitutes an adverse employment action. (Doc. 72 at 7-9; Doc. 71-25 at 2 of 2). 3 “A letter of reprimand may constitute an adverse employment action.” Silva v. Chertoff, 4 No. CV 04-220, 2007 WL 1795786, at *7 (D. Ariz. June 20, 2007) (citing Vasquez v. Cnty. 5 of Los Angeles, 349 F.3d 634 (9th Cir. 2003)). But the Ninth Circuit has held that “a 6 negative evaluation that does not remain in the employee’s file is not an adverse 7 employment action.” Alexander v. Principi, 16 Fed. Appx. 755, 758 (9th Cir. 2001). 8 Moreover, a letter of reprimand does not constitute an adverse employment action, where 9 the letter of reprimand remained in the employee’s file temporarily and the employee faced 10 no actual employment consequences from the letter. Silva, 2007 WL 1795786, at *7 11 (holding that a letter of reprimand “does not constitute an adverse employment action” 12 because the letter remained in the employee’s file “for a period not to exceed eighteen 13 months” and “there was no employment consequence as a result of the letter”); but see 14 Principi, 16 Fed. Appx. at 758 (finding an adverse employment action where employee 15 “was given a letter of reprimand and suspended”). 16 Here, Overton does not allege that she experienced any employment consequences 17 as a result of the letter of reprimand, and the letter remained in her file only temporarily. 18 Overton points to the letter of reprimand itself, which states that the letter was to remain in 19 Overton’s employee file “for a period not to exceed two (2) years from the date that it was 20 issued.” (Doc. 71-25 at 2 of 2). And rather than allege that the letter resulted in any 21 employment consequences, Overton alleges that she was promoted shortly after the 22 issuance of the letter. Kirk issued the letter of reprimand on April 14, 2020, and DHS 23 promoted Overton to the MPA position on June 7, 2020. (Doc. 71-10 at 2 of 4; Doc. 63-1 24 at 12 of 160). Although Overton highlights that the letter warns “more serious disciplinary 25 action, up to and including [Overton’s] removal from the Federal service may be initiated 26 if [Overton] engage[s] in similar misconduct in the future,” the use of such language does 27 not amount to an adverse employment action. Silva, 2007 WL 1795786, at *7 (finding that 28 a letter of reprimand does not constitute an adverse employment action, even where the 1 letter “contains harsh language and advises [employee] that any future misconduct may 2 result in severe disciplinary action”); see also Nunez v. City of Los Angeles, 147 F.3d 867, 3 875 (9th Cir. 1998) (holding that “threats and harsh words are insufficient” for an adverse 4 employment action). 5 To be sure, federal courts require a plaintiff to allege additional employment 6 consequences in order for a letter of reprimand to constitute an adverse employment action. 7 C.f. Melton v. U.S. Dept. of Labor, 373 Fed. Appx. 572, 578 (6th Cir. 2010) (holding that 8 a warning letter was not “discipline” and “not actionable as retaliation” where the letter 9 had no effect on employee’s condition of employment); Harris v. Potter, 310 F.Supp.2d 10 18, 21 (D.D.C. 2004) (“Courts in this Circuit have held that formal letters of admonishment 11 and disciplinary notices that have no effect on an employee’s grade or salary level do not 12 constitute adverse employment action.”); Ogden v. Brennan, 657 Fed. Appx. 232, 235 (5th 13 Cir. 2016) (holding that a “letter of warning” does not constitute an “adverse employment 14 action” because it does not affect “job duties, compensation, or benefits”). Since Overton 15 has not alleged any additional employment consequences, and the letter remained in her 16 file only temporarily, Overton has not raised any genuine dispute of material fact whether 17 the letter of reprimand itself constitutes an adverse employment action. 18 In her Response to Defendant’s Motion for Summary Judgment, Overton states that 19 she does not “frame her retaliation claim as being limited to only one adverse employment 20 action (the Letter of Reprimand).” (Doc. 72 at 7). But Overton focuses exclusively on the 21 letter of reprimand as the only alleged adverse employment action in the supporting 22 argument for her retaliation claim. (See id. at 7-10). Overton does not name a single other 23 alleged adverse employment action in the context of her retaliation claim. To the extent 24 that Overton refers to one of the five actions that she labels as adverse employment actions 25 in her disparate treatment claim, because Overton provides no supporting argument, 26 Overton raises no genuine dispute of material fact whether any of those actions constitute 27 retaliation. Accordingly, the Court grants Defendant’s Motion for Summary Judgment on 28 the retaliation claim. 1 2 iii. Hostile Work Environment Claim 3 To establish a prima facie case for hostile work environment premised on gender 4 under Title VII, Overton must establish that (1) she was subjected to verbal or physical 5 conduct of a harassing nature that was based on her gender; (2) the conduct was 6 unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions 7 of her employment and create an abusive working environment. Nagar v. Foundation 8 Health Systems, Inc., 57 Fed. Appx. 304, 305 (9th Cir. 2003). The court must “consider 9 all circumstances, including the frequency of the discriminatory conduct; its severity; 10 whether it is physically threatening or humiliating, or a mere offensive utterance; and 11 whether it unreasonably interferes with an employee’s work performance.” Davis v. Team 12 Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008). “Simply causing an employee offense 13 based on an isolated comment is not sufficient to create actionable harassment under Title 14 VII.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004). Rather, Overton 15 must show that the workplace was so “permeated with discriminatory intimidation, 16 ridicule, and insult” that it was sufficiently “severe or pervasive to alter the conditions of 17 the victim’s employment and create an abusive working environment.” Harris v. Forklift 18 Systems, Inc., 510 U.S. 17, 21 (1993). 19 Even considering all of the examples referenced in her Response to Defendant’s 20 Motion for Summary Judgment, Overton fails to establish the first element of a hostile 21 work environment claim. Overton has failed to direct the Court to any evidence that would 22 indicate that Overton herself was subjected to objectionable conduct on the basis of her 23 gender. 24 Overton contends that the following allegations “alone establish triable issues which 25 preclude summary judgment on the hostile work environment” claim: DHS investigated 26 and disciplined Kirk for workplace misconduct; other employees filed complaints 27 regarding Kirk “belitting single moms,” “shadowboxing in the office,”3 and “making 28 3 At oral argument, Overton’s attorney highlighted two examples in the record involving physical conduct by Kirk where Overton was present. First, Overton was present in an 1 inappropriate comments;” Kirk looked another employee “up and down” at a marathon; 2 and Kirk sent a photo of his wife in a bikini to other employees. (Doc. 72 at 14-16). But 3 Overton provides no facts suggesting that she was personally subjected to any of this 4 alleged conduct. She cannot make out a hostile work environment claim based on alleged 5 conduct to which she was not subjected. See Nagar, 57 Fed. Appx. at 305 (holding that 6 the first element of a hostile work environment claim requires the plaintiff to demonstrate 7 that “she was subjected to verbal or physical conduct of a harassing nature that was based 8 on her . . . gender”). 9 Moreover, the additional allegations regarding verbal harassing conduct to which 10 Overton was subjected do not satisfy the first element of a hostile work environment claim 11 either. Overton provides the following allegations: Kirk gave Overton a PWP that 12 “contained unrealistic goals and she did not have adequate time to review it” (Doc. 72 at 13 16); Kirk denied Overton’s request to have a female supervisor present for the PWP 14 meeting, but instead brought a third-party male supervisor to the meeting (Doc. 72 at 17; 15 add citation about male); Kirk criticized Overton’s performance in the MPA role (Doc. 72 16 at 17); Kirk asked Overton to continue performing the duties in her former MSS role (Doc. 17 72 at 17); and Kirk contacted Overton on her personal cell phone while she was on annual 18 and emergency sick leave (Doc. 72 at 17). This evidence does not show that the workplace 19 at DHS was “permeated with discriminatory intimidation, ridicule, and insult.” Harris, 20 510 U.S. 17, 21 (1993). Even if, as Overton alleges, Kirk made a statement to the effect 21 that Overton should “put on her big girl panties” and “let bygones be bygones,” (Doc. 72 22 at 17), the Ninth Circuit has made clear that “[s]imply causing an employee offense based 23 on an isolated comment is not sufficient to create actionable harassment under Title VII.” 24 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004). 25 Thus, Overton has failed to demonstrate a triable issue as to the existence of a 26 gender-based hostile work environment. Accordingly, the Court grants Defendant’s 27 office that she shared with three other employees when Kirk kicked the door of the office. (Doc. 63-1 at 37 of 160). Second, Overton witnessed Kirk “throw punches in the air.” (Id. 28 at 38 of 160). Neither of these examples support any inference of gender discrimination or satisfy the first element of a hostile work environment claim. 1 Motion for Summary Judgment on the hostile work environment claim. 2 3. Motions to Seal 3 In the Ninth Circuit, a party seeking to seal a document must overcome a “strong 4 presumption of access to judicial records” by meeting the “compelling reasons” standard. 5 Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). That is, 6 the party must “articulate compelling reasons supported by factual findings that outweigh 7 the general history of access and public policies favoring disclosure.” Id. (internal 8 quotations and citations omitted). Compelling reasons must be shown “even if the 9 dispositive motion, or its attachments, were previously filed under seal or protective order.” 10 Id. at 1179. 11 “What constitutes a ‘compelling reason’ is ‘best left to the sound discretion of the 12 trial court.’” Center for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 13 2016) (quoting Nixon v. Warner Commnc’ns, Inc., 435 U.S. 589, 597 (1978)). Generally, 14 ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify 15 sealing court records exist when such ‘court files might have become a vehicle for improper 16 purposes.’” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 597). “The mere 17 fact that the production of records may lead to a litigant’s embarrassment, incrimination, 18 or exposure to further litigation will not, without more, compel the court to seal its records.” 19 Id. (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003). 20 DHS requests the Court to seal the following 15 exhibits: “Exhibits 4, 5, 7, 8, 9, 21 12, 13, 15, 16, 17, 18, 19, 20, 22, 23.” (Doc. 64 at 2). In support of its Motion to Seal, 22 DHS highlights that this Court already issued an order acknowledging the privacy of those 23 exhibits, as they “contain the identifying information of persons, including persons who 24 are federal employees.” (Doc. 64 at 1). Yet, “even if the dispositive motion, or its 25 attachments, were previously filed under seal or protective order,” DHS must still provide 26 articulable facts that show compelling reasons to seal those exhibits. See Kamakana, 447 27 F.3d at 1179. DHS states that the 15 exhibits “were obtained by the [g]overnment pursuant 28 to internal investigations in response to employment discrimination charges, without 1 regard to whether those charges were deemed meritorious or not.” (Doc. 64 at 2). But the 2 “mere fact that production of records may lead to a litigant’s embarrassment, incrimination, 3 or exposure to litigation will not, without more, compel the court to seal its records.” 4 Kamakana, 447 F.3d at 1179. DHS further argues, vaguely, that such exhibits “include 5 internal emails, affidavits, and memoranda between government employees and/or 6 officials concerning personnel matters.” (Doc. 64 at 2). DHS thus seeks relief that is 7 overbroad, making “blanket requests to seal a large volume of documents,4 without 8 offering [articulable facts] for each document or explaining why entire documents, rather 9 than discrete portions of them, must be sealed.” See Marsteller v. MD Helicopter Inc., No. 10 CV-14-01788, 2017 WL 5479927, at *2 (D. Ariz. Nov. 15, 2017) (denying motion to seal). 11 Since DHS has failed to provide sufficient justification, Defendant’s Motion to Seal is 12 denied. 13 Overton requests the Court to seal the following 29 exhibits: Exhibits “6 through 14 31, and 33 through 35.” (Doc. 70 at 1). Overton does not provide any articulable facts 15 showing a compelling reason to seal those 29 exhibits. (See id. at 1-2). Nor does Overton 16 offer any supporting argument in her Motion besides a vague statement that “29 exhibits 17 contain content that may be governed by the Privacy Act.” (See id.). Since Overton has 18 failed to provide any justification, Plaintiff’s Motion to Seal is denied. 19 IT IS THEREFORE ORDERED that Defendant Alejandro N. Mayorkas’s 20 Motion for Summary Judgment (Doc. 62) is granted. 21 IT IS FURTHER ORDERED that Defendant Alejandro N. Mayorkas’s Motion to 22 Seal (Doc. 64) is denied. The Clerk’s Office is directed to file Doc. 65 onto the public 23 docket bearing the same document number with the file date remaining the same. 24 IT IS FURTHER ORDERED that Plaintiff Dixie Overton’s Motion to Seal (Doc. 25 70) is denied. The Clerk’s Office is directed to file Doc. 71 onto the public docket bearing 26 the same document number with the file date remaining the same. 27 / / / 28 4 The exhibits that DHS requests to seal amount to over 200 pages. 1 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 2|| and enter judgment accordingly. 3 Dated this 28th day of October, 2024. ‘ of Warn Son) 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17-