United States District Court, D. Hawaii
ORDER GRANTING WITH RESPECT TO RACE DISCRIMINATION
CLAIMS AND DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AS
MOOT WITH RESPECT TO WITHDRAWN SEX DISCRIMINATION CLAIM;
ORDER DENYING PLAINTIFF JINENDRA JINADASA'S MOTION FOR
Oki Mollway United States District Judge
papers he has filed in this case, Plaintiff Jinendra
Jinadasa, proceeding pro se, projects himself as a
person with the best of intentions who seeks to right the
wrongs he says minority employees suffer while employed by
Defendant Brigham Young University-Hawaii (“BYU
Hawaii”). Jinadasa is not proceeding as a class
representative and so may not seek remedies on behalf of
others. He may only seek remedies for harm he has personally
suffered, which in theory may include harm suffered as he
tried to protect others from unlawful discrimination.
court's order of January 25, 2016, left for adjudication
the following claims: (1) Jinadasa's Title VII, Title IX,
and § 1981 disparate treatment claims based on the
allegations that Mindy Clark was paid more and disciplined
less than Jinadasa, as asserted in Counts I, III, and IV of
the Fourth Amended Complaint; and (2) Jinadasa's
retaliation claim under Title VII, asserted in Count II of
the Fourth Amended Complaint.
BYU Hawaii and Jinadasa seek summary judgment with respect to
the remaining claims. At the hearing, Jinadasa withdrew with
prejudice his gender-based discrimination claims.
Accordingly, the court denies as moot BYU-Hawaii's
motions to the extent they seek partial summary judgment with
respect to the gender discrimination claims. The court grants
BYU-Hawaii summary judgment with respect to the remaining
claims and denies Jinadasa's motion.
SUMMARY JUDGMENT STANDARD.
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 concerning whether a material
fact is 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).
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.
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.”).
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.”
April 24, 2007, BYU-Hawaii hired Jinadasa as a Web Architect.
See Decl. of Kevin Schlag ¶ 5, ECF No. 132-1,
PageID # 1538; Videotaped Depo. of Jinendra Jinadasa at 46,
ECF No. 132-5, PageID # 1563. Kevin Schlag, who was
Jinadasa's supervisor at BYU-Hawaii, offered Jinadasa the
position with a starting salary of $44, 000 per year, which
Jinadasa accepted. Id. at 46-47, PageID #s 1563-64.
has previously told this court that he is black and from
Ethiopia, Africa. See ECF No. 44, PageID # 331; ECF
No. 61, PageID # 517; see also Transcript of
Proceedings, Jan. 11, 2016, at 23, ECF No. 111, PageID #
1126. Jinadasa says he found a pay stub for a Caucasian
Portal Administrator, Mindy Clark, who was paid $5, 954.17
per month, or $71, 450.04 per year. See ECF No.
115-1, PageID # 1245. Jinadasa says that he had more relevant
work experience and a more difficult job with greater
responsibilities. He argues that the difference in pay must
therefore have been based on his race. See ECF No.
115, PageID #s 1230-31. Jinadasa contends that he was also
discriminated against based on his race when he was suspended
for having violated BYU-Hawaii's Honor Code. According to
Jinadasa, Clark was not suspended for her Honor Code
violations. See ECF No. 115, PageID # 1227.
differing treatment of Jinadasa and Clark lies at the heart
of this case. The court examines the factual detail as
necessary in the discussion below.
Because Jinadasa Has Withdrawn His Gender Discrimination
Claims With Prejudice, the Court Denies as Moot
BYU-Hawaii's Motion With Respect to the Gender
sought partial summary with respect to Jinadasa's
remaining disparate treatment gender discrimination claims.
See ECF No. 120. At the hearing on the motion,
Jinadasa withdrew his gender discrimination claims with
prejudice. Given that withdrawal, the court denies as moot
BYU-Hawaii's motion to the extent it seeks partial
summary judgment with respect to the gender discrimination
The Court Grants Partial Summary Judgment In Favor of
BYU-Hawaii With Respect to Jinadasa's Remaining Disparate
Treatment Race Discrimination Claims, Which Are Based on Pay
and Discipline Differences Between Mindy Clark and
also seeks partial summary judgment with respect to
Jinadasa's disparate treatment race-based claims asserted
under Title VII and 42 U.S.C. § 1981. That motion is
relevant part, § 1981 prohibits race discrimination in
the making and enforcement of contracts. Title VII similarly
prohibits discrimination based on race, color, religion, sex,
or national origin:
(a) It shall be an unlawful employment practice for an
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2.
plaintiff may establish disparate treatment in violation of
§ 1981 or Title VII through direct evidence or,
alternatively, through the familiar McDonnell
Douglas burden shifting framework. See Surrell v.
California Water Serv. Co., 518 F.3d 1097, 1105
(9th Cir. 2008) (discussing standard with respect
to Title VII and § 1981 claims). Jinadasa lacks direct
evidence of disparate treatment. The court therefore applies
the McDonnell Douglas framework to these motions for
framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), begins by requiring a
plaintiff to establish a prima facie case of discrimination.
The degree of proof required to establish a prima facie case
for summary judgment is minimal. See Coghlan v. Am.
Seafoods Co., 413 F.3d 1090, 1094 (9th Cir.
2005). A prima facie case of disparate treatment requires a
plaintiff to establish that: (1) the plaintiff is a member of
a protected class; (2) the plaintiff was qualified for the
position in issue; (3) the plaintiff suffered an adverse
employment decision; and (4) one or more employees outside
the protected class with comparable qualifications and work
records did not suffer similar adverse employment decisions.
See, e.g., White v. Pac. Media Grp., Inc.,
322 F.Supp.2d 1101, 1110 (D. Haw. 2004).
plaintiff must demonstrate that his or her situation is
similar in all material respects to that of employees who
received more favorable treatment. See Moran v.
Selig, 447 F.3d 748, 755 (9th Cir. 2006).
However, “a plaintiff is not obligated to show
disparate treatment of an identically situated
employee.” McGuinness v. Lincoln Hall, 263
F.3d 49, 54 (2d Cir. 2001) (cited approvingly in
Selig). Instead, “individuals are similarly
situated when they have similar jobs and display similar
conduct.” Hawn v. Exec. Jet Mgmt. Inc., 615
F.3d 1151, 1160 (9thCir. 2010) (citing Vasquez
v. Cnty. of Los Angeles, 349 F.3d 634, 641
(9th Cir. 2003) (finding employee not similarly
situated if he “did not engage in problematic conduct
of comparable seriousness” to plaintiff's
the McDonnell Douglas framework, once a plaintiff
succeeds in presenting a prima facie case, the burden then
shifts to the defendant to articulate a “legitimate,
nondiscriminatory reason” for its employment decision.
Noyes v. Kelly Servs., 488 F.3d 1163, 1168
(9th Cir. 2007). “Should the defendant carry
its burden, the burden then shifts back to the plaintiff to
raise a triable issue of fact that the defendant's
proffered reason was a pretext for unlawful
Jinadasa's Disparate Treatment Claims Based on Unequal
Pay Fail Because He and Mindy Clark Were Not Similarly
asserting disparate treatment in the form of unequal pay,
Jinadasa points to Mindy Clark's salary, which was higher
than his. But Jinadasa presents no evidence suggesting that
he and Clark were similarly situated. Jinadasa therefore
fails to show that there is any genuine issue of fact going
to whether he has a prima facie case of disparate treatment
relating to pay.
to Eugenia Soliai, the Assistant Director & Equal
Opportunity Manager at BYU-Hawaii, BYU-Hawaii's Human
Resources Department establishes the salary ranges for
administrative and staff positions at BYU-Hawaii.
See Decl. of Eugenia Soliai ¶ 1-2, ECF No.
132-2, PageID # 1549. The Human Resources Department sets the
salary grade according to “the scope of
responsibilities assigned with the job and the amount of
discretion and independent judgment required to be exercised
by an employee in that position.” Id. ¶
3, PageID # 1550. The Human Resources Department also makes
starting salary recommendations based on the position's
salary grade and an individual's work experience and
education. In making that recommendation, the Human Resources
Department does not consider student employment to be work
experience. Id. ¶¶ 4-5.
to his resume, Jinadasa has a Bachelor of Science degree in
International Business Management with a minor in Information
Technology. ECF No. 115-12, PageID # 1279. Jinadasa was hired
as a Web Architect, which, even before Jinadasa had applied
for that position, the Human Resources Department had
designated as having a salary grade of “52.”
See Decl. of Kevin Schlag ¶ 5, ECF No. 132-1,
PageID # 1538; Decl. of Kevin Schlag ¶ 6, ECF No. 144-2,
PageID # 1909.
Schlag hired Jinadasa, the Human Resources Department
recommended that Jinadasa's starting salary be $44, 300.
See Schlag Decl. ¶ 7, ECF No. 132-1, PageID #
1538. Schlag says that, at the time he hired Jinadasa, he did
not think Jinadasa had “much relevant, real world
experience.” Id. ¶ 8. Jinadasa had done a
little web design and development, but most of his experience
related to repairing computers and networks. Id. His
duties included the following:
[being] responsible for supporting department web pages,
developing graphics and layouts for the website, transferring
web pages into the new Drupal system (a content management
system), testing and analyzing traffic on the website,
providing website training to department staff, and helping
department staff with special website requests. Jinadasa also
spent a large amount of his time helping departments to
maintain website content, which included changing pictures
Id. ¶ 9, PageID # 1539.
to her resume, Clark had a Bachelor's degree in Computer
Information Systems. ECF No. 115-11, PageID # 1276. Schlag
Clark was the primary administrator for the PeopleSoft
portal. PeopleSoft was a system that housed sensitive
personnel and student data, such as accounting records,
social security numbers, contact information, payroll,
financial aid, and grades. As the Portal Administrator, Clark
was responsible for, among other things, maintaining and
securing the PeopleSoft system, customizing PeopleSoft for
the needs of BYUH's faculty, staff, and students, and
troubleshooting technical and user issues.
Id. ¶ 12, PageID #s 1539-40. BYU-Hawaii's
Human Resources Department set the salary grade for the
Portal Administrator position at “53.” Schlag
says that “the Portal Administrator position was more
complex than the Web Architect position because PeopleSoft
requires a deeper level of technical understanding. A Web
Architect uses well-developed tools and standards to make web
pages. A Portal Administrator, on the other hand, needs to
use tools that are harder to use, and the required skills are
less prevalent in the labor marketplace.” Id.
¶ 13, PageID # 1540. Schlag also viewed Clark's
college degree as more relevant to her position than
Jinadasa's degree was to his. Id. ¶ 17,
PageID # 1541.
and Clark had different jobs with different responsibilities.
On the present record, they cannot be said to have been
similarly situated. Even if Jinadasa could be said to have
been a better employee with more responsibilities than Clark,
and even if his Web Architect position could be deemed more
important than Clark's Portal Administrator position,
that would not support a prima facie case of disparate
treatment of similarly situated employees. BYU-Hawaii was
allowed to pay different amounts to employees in different
positions even if someone else might have equated certain job
duties or backgrounds. BYU-Hawaii's determination of what
it chose to value does not, absent more, show discrimination
against employees based on race. Notably, the lower job
classification that resulted in the lower salary for the Web
Architect position was set before Jinadasa had even applied
for the job. This court therefore looks at whether Jinadasa
has more than the differing valuations to support his claim
of unequal pay based on race.
hearing on the present motions, Jinadasa referred to having
submitted a chart to the court indicating that 75% of
BYU-Hawaii's employees are white. It appears that
Jinadasa was referring to Exhibit H to his motion for summary
judgment, which indicates that BYU-Hawaii's
administration has 33 white employees and 9 minority
employees. See ECF No. 115-8, PageID # 1264. Even
assuming Jinadasa presents admissible evidence as to the
racial make up of the administration, that make up does not
support the disparate treatment claim Jinadasa is advancing
with respect to his pay. Jinadasa is claiming that he was
treated differently from a similarly situated employee of a
different race. Jinadasa does not even argue that he and the
bulk of BYU-Hawaii's primarily white administration were
similarly situated. Jinadasa therefore cannot simply point to
a statistic as evidence that he was paid less than a
similarly situated employee of a different race.
also mentioned at the hearing that there was a pay disparity
between Caucasian and non-Caucasian employees at BYU-Hawaii.
But Jinadasa provided the court with no evidence to that
effect. Under Local Rule 56.1(f), this court has no
“duty to search and consider any part of the court
record not otherwise referenced in the separate and concise
statements of the parties.” A mere assertion of a
general pay disparity is insufficient to raise a genuine
issue of fact as to whether Jinadasa was paid less than any
similarly situated employee because of his race.
Jindasa's Disparate Treatment Claims Based on Unequal
Discipline Fail Because He Raises No Genuine Issue of Fact As
to Whether the Discipline Related to Comparable
was suspended for 5 days in October 2012, 3 days with pay and
2 days without pay. See Decl. of Norman Black.
¶ 4, ECF No. 132-2, PageID # 1545. The Fourth Amended
Complaint alleges that the suspension was based on alleged
violations of the university's Honor Code. See
Fourth Amended Complaint ¶ 31, ECF No. 61, PageID # 524.
It further alleges that “Caucasians and others who had
committed more serious offenses were never
disciplined.” Id. Jinadasa specifically
alleges that Mindy Clark, who was allegedly a similarly
situated female Caucasian employee, violated the Honor Code
and used profanity but was not subjected to any discipline.
Id. ¶ 24, PageID # 522. BYU-Hawaii seeks
partial summary judgment with respect to this unequal
discipline claim. The court grants that request, as Jinadasa
fails to demonstrate that Clark was a similarly situated
person who received lesser discipline.
about November 5, 2008, Jinadasa sent his supervisor, Kevin
Schlag, an e-mail in which he complained that Mindy Clark had
referred to President Obama as “satan.”
See Decl. of Kevin Schlag ¶ 22, ECF No. 132-1,
PageID # 1542. Schag counseled Clark, telling her that her
coworkers believed that the comment was offensive. On
November 6, 2008, Clark sent an apology to Schlag, stating,
“I wanted to apologize for some comments I made the day
after the election. They were not meant to hurt and it was
disrespectful of me. Please accept my apologies.” ECF
No. 132-7, PageID # 1749.
about December 31, 2009, Jinadasa sent Schlag another e-mail
complaining that Clark was stressed at work and used the word
“shit.” See Decl. of Kevin Schlag ¶
23, ECF No. 132-1, PageID # 1542. Schlag says he again
counseled Clark. Clark apologized for her language.
suspension arose out of a series of statements he made that
BYU-Hawaii deemed insubordinate, irreverent, unprofessional,
and increasingly hostile. Schlag, who supervised both Clark
and Jinadasa, reacted by counseling Jinadasa “as to his
rude, unprofessional, disrespectful, and insubordinate
communications.” See Decl. of Kevin Schlag
¶ 25, ECF No. 132-1, PageID # 1542.
behavior spanned a long period. On February 5, 2010, for
example, Jinadasa sent Schlag an e-mail complaining that
Schlag had not consulted Jinadasa about a particular
decision, accusing Schlag of having ignored Jinadasa's
plea for 2 student workers, stating that Jinadasa was annoyed
by Schlag's email concerning a web policy, and saying
that Jinadasa did not appreciate Schlag's e-mails asking
Jinadasa to “improve relations.” See ECF
No. 132-5, PageID #s 1713-14. Schlag responded,
“I'll give you a bit of time to cool off, but
I'd like to address this sooner rather than later.”
Id., PageID # 1713.
9, 2010, Jinadasa received an e-mail that asked how a new
software would interface with Drupal. See ECF No.
132-5, PageID # 1711. Jinadasa responded, “We heard
rumors but were never involved in anything or were asked to
research and see the integration process.” Id.
Schlag then sent an e-mail to Jinadasa stating, “You
must have missed a meeting, when we talked about this in our
dept meeting a while ago.” Id., PageID # 1710.
Yes we talked about it. Is there not a process where the
actual web people test the product and are given a chance to
see what the product can do before ...