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Jinadasa v. Brigham Young University-Hawaii

United States District Court, D. Hawaii

November 9, 2016



          Susan Oki Mollway United States District Judge


         In the 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.

         This 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.

         Both 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.


         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 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).

         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.


         On 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.

         Jinadasa 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.

         BYU-Hawaii's 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.

         IV. ANALYSIS.

         A. Because Jinadasa Has Withdrawn His Gender Discrimination Claims With Prejudice, the Court Denies as Moot BYU-Hawaii's Motion With Respect to the Gender Discrimination Claims.

         BYU-Hawaii 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 claims.

         B. 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 Jinadasa.

         BYU-Hawaii 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 granted.

         In 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 employer --
(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.

         A 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 summary judgment.

         The 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).

         A 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 conduct)).

         Under 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 discrimination.” Id.

         1. Jinadasa's Disparate Treatment Claims Based on Unequal Pay Fail Because He and Mindy Clark Were Not Similarly Situated.

         In 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.

         According 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.

         According 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.

         When 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 and text.

Id. ¶ 9, PageID # 1539.

         According to her resume, Clark had a Bachelor's degree in Computer Information Systems. ECF No. 115-11, PageID # 1276. Schlag says:

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.

         Jinadasa 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.

         At the 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.

         Jinadasa 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.

         2. 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 Conduct.

         Jinadasa 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.

         On or 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.

         On or 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. Id.

         Jinadasa's 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.

         Jinadasa's 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.

         On June 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. Jinadasa replied,

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 ...

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