The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING SUMMARY JUDGMENT WITH RESPECT TO THE FAILURE TO PROMOTE AND PUBLIC POLICY CLAIMS, AND DENYING SUMMARY JUDGMENT WITH RESPECT TO RETALIATION CLAIM
Plaintiff Lymari Graciano claims that Hawaii Pacific University ("HPU") discriminated against her based on race when it failed to promote her, and when it terminated her after she complained about race discrimination. Graciano also asserts a claim of discrimination in violation of public policy.
HPU seeks summary judgment. The court grants summary judgment with respect to the claim of failure to promote in Count I and the claim of discrimination in violation of public policy in Count III of the Complaint. But the court denies summary judgment with respect to the retaliation claim asserted in Count II of the Complaint.
II. SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position that a material fact is or is not genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. At least some "'significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").
In adjudicating summary judgment motions, the court must view all evidence and inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." Id.
It is undisputed that, in October 2008, Graciano was hired by HPU, a private institution, to be a Grants Manager in HPU's Office of Sponsored Projects ("OSP"). Graciano was to help with general grant administration, which included maintaining a database of all information needed to meet reporting requirements. She was also supposed to coordinate review and submission of grant proposals, as well as work with grant recipients to maintain post-award records. See ECF No. 27-4.
The Grants Manager position description required the following education and experience:
A Bachelor's Degree in Accounting; knowledge of continually changing regulations pertaining to the management of sponsored projects; demonstrated working knowledge of sponsored project accounting and reporting functions, including sponsor expenditure and reporting requirements, federal Cost Accounting Standards, GAAP; federal agency processes, federal and state laws and regulations governing grants, OMB A-21, A-133 . . . [;] experience in both the pre-award and post-award states of grants management and; ability to supervise and motivate professional and administrative support staff; and 3 year's experience in university grants administration.
Before being hired for the Grants Manager position, Graciano interviewed with John Kearns, the Vice President of Academic Affairs, and Martha Sykes, the person in charge of OSP. See Deposition of Lymari Ophelia Graciano taken Jan. 19, 2012, at 84, ECF No. 27-2. At the time of the interview, Sykes had already announced that she was resigning effective May 31, 2009. Id. at 84-86. Claire Cooper, the former Associate Vice President of Human Resources at HPU, says that it was Kearns who hired Graciano for the Grants Manager position. See Declaration of Clair Cooper ¶ 5, May 2, 2012, ECF No. 28; Plaintiff's Concise Statement ¶ 2, ECF No. 33.
Graciano sought a promotion to Sykes's old position as Director of OSP. A position description set forth the minimum qualifications for that position: "Bachelors Degree in Business Administration, Accounting, Public Administration or equivalent . . . Ability to multi-task in a complex, time sensitive environment[.] Strong knowledge of federal, state and other applicable regulations[.] At least five (5) years directly related experience leading a sponsored research office." ECF No. 27-5.
In connection with her application to be the OSP Director, Graciano submitted a resume indicating that she had received a "Bachelor of Liberal Arts" from Harvard University, cum laude, in "Social Science Economics" in 2005. See ECF No. 27-8 and 32-32. In a letter to the search committee for the position, Graciano stated that she had a "Bachelors Degree in Economics." See ECF No. 32-10. Graciano had also apparently told people at HPU that she had an undergraduate degree in Economics. See ECF No. 32-6 (April 28, 2009, letter or reference from Martha Sykes stating, "With her background in economics (a BS in Economics from Harvard University) . . . Ms. Graciano is well qualified to enter the MBA program at Hawaii Pacific University"); ECF No. 32-7 (April 28 2009, letter of reference from Dr. John Kearns that stated, "Ms. Graciano's undergraduate degree was in Economics").
Graciano indicated in her deposition, however, that she had a degree in Social Science and had taken only one economics class. See Graciano Depo. at 12-13. As Graciano puts it, "Economics is a class that I took that was closest to the job description." Id. at 13. In other words, Graciano had misstated her educational background.*fn1
HPU indicates that a search committee evaluated the candidates and that the OSP Director position was offered to the candidate who had the highest ranking, who was not Graciano. That person did not accept the position. See Cooper Decl. ¶ 11. HPU says that the position was then left unfilled. Id. Kearns was part of the search committee for the OSP Director position.*fn2
Graciano says that it was actually Sykes who was in charge of choosing her replacement as OSP Director, not a search committee. See Affidavit of Lymari O. Graciano ¶ 2, May 21, 2012, ECF No. 26-2. Graciano says that Sykes "deliberately gave less weight to criteria that matched up with [Graciano's] ...