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McAllister v. Adecco USA Inc.

United States District Court, D. Hawaii

November 21, 2018

ADECCO USA INC., et al., Defendants.




         Pro se Plaintiff Willis C. McAllister alleges that Defendants Adecco U.S.A. Inc. (“Adecco”) and Adecco Branch Manager Curtis L. Brunk (“Brunk”) (collectively, “Defendants”) engaged in race-based employment discrimination and retaliation against Plaintiff in connection with Plaintiff's temporary work assignment at Trane U.S. Inc. (“Trane”).[1] More specifically, Plaintiff's First Amended Complaint (“FAC”) asserts claims of hostile work environment, retaliation, disparate treatment, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981 (“§ 1981”) against Adecco and unspecified claims in violation of § 1981 against Brunk. FAC ¶¶ 6.1, 6.3, ECF No. 117.

         Before the Court are (1) Defendants' Motion for Summary Judgment, ECF No. 349; (2) Defendants' Motion for Case-Terminating Sanctions, ECF No. 355; (3) Plaintiff's Motion to Strike Defendants' Motion for Case-Terminating Sanctions, ECF No. 381; (4) Plaintiff's Motion for Discovery Pursuant to Federal Rule of Civil Procedure 56(d), ECF No. 374; and (5) Plaintiff's Responses to the Court's Order directing Plaintiff to Show Cause why the Court should not strike his “corrected” Oppositions to Defendants' motions (ECF Nos. 379, 380, 382), ECF Nos. 388, 389. Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a hearing.

         For the reasons set forth below, Defendants' Motion for Summary Judgment is GRANTED; Plaintiff's Motion for Rule 56(d) Discovery is DENIED; the Order to Show Cause is VACATED; and Defendants' Motion for Case-Terminating Sanctions and Plaintiff's Motion to Strike Defendants' Motion for Case-Terminating Sanctions are DENIED as moot.


         A. Factual Background[2]

         In late 2014, Plaintiff was hired by Adecco, a temporary staffing agency. Pl.'s Dep. at 72, 98-99, ECF No. 350-2; Brunk Decl. ¶¶ 2, 10, ECF No. 350-4. On December 24, 2015, Plaintiff met with Rene Kahawaiolaʻa (“Kahawaiolaʻa”), Adecco recruiter and Plaintiff's designated Adecco representative, and completed “on-boarding paperwork, which included reviewing and acknowledging that he read Adecco's Employee Handbook and Mandatory Contact Notice. Pl.'s Dep. at 78-81, 91, 94-95, 97-98, 104-05; Brunk Decl. ¶¶ 10-12; Pl.'s Dep. Ex. 4, Answer to Admission No. 7, ECF No. 350-2; Defs.' Ex. C, ECF No. 350-6. Adecco's Employee Handbook includes an anti-harassment and anti-discrimination policy, which requires employees who experience or witness discrimination to report it to their Adecco representative or to Adecco's Employee Relations Department. Pl.'s Dep. at 109-110; Duffield Decl. ¶ 2, ECF No. 350-7; Brunk Decl. ¶ 7; Ex. B at 5-6, ECF No. 350-5.

         Pursuant to Adecco's standard practices, complaints of discrimination are forwarded to the Employee Relations Department, which takes the lead in investigating those complaints, contacts local branches and employees to get details, and if necessary, reminds reluctant employees of their obligation to provide such information. See Duffield Decl. ¶¶ 3-7.

         By signing Adecco's Mandatory Contact Notice, an employee agrees to “contact Adecco at least once per week when . . . not on assignment with Adecco to verify availability to work.” Brunk Decl., Ex. C ¶ 2(d). When an employee “has not contacted Adecco for 30 days or more, ” Adecco's normal practice is to place the employee “on ‘inactive' status.” Brunk Decl. ¶ 9.

         Starting on February 13, 2015, Adecco placed Plaintiff in a temporary assignment at Trane to receive, organize, and pull inventory for customers at Trane's warehouse. Pl.'s Dep. at 187-88; Brunk Decl. ¶ 12; Defs.' CSF ¶ 5, ECF No. 350. Adecco instructed Plaintiff to report to Trane employee Shawna Huddy (“Huddy”), who told Plaintiff that he would report to and receive assignments and instruction from her as well as two other Trane employees. Pl.'s Dep. at 182; Defs.' CSF ¶ 5. About two weeks into the assignment, Plaintiff noticed that these three Trane employees sometimes gave him conflicting instructions or assigned him tasks that had already been completed, and then “snicker[ed] and laugh[ed] about it.” Pl.'s Dep. at 183-84, 187, 190, 196; see also Defs.' CSF ¶ 9.

         On March 12, 2015, Plaintiff informed Adecco, in a lengthy email to Kahawaiola'a and Brunk, about his annoyance and frustration over the inefficiencies of receiving conflicting instructions from three individuals at Trane. Pl.'s Dep. at 78, 184-85, 200-01, 306, Ex. 7, ECF No. 350-2 at PageID # 3004-06; Brunk Decl. ¶¶ 12, 14; see also Defs.' CSF ¶ 9. The March 12 email also described Plaintiff's conversation with Huddy about those difficulties, Huddy's response that “she understood and she would try to correct the communication problems, ” and Huddy's additional comment to Plaintiff: “Just to give you a little feedback, it appears that you are learning how to fill order pretty quickly, and we will be increasing your responsibilities.” Pl.'s Dep., Ex. 7. Plaintiff explained to Kahawaiola'a that he has “never found pleasure in working with and/or for incompetent managers.” Id. And near the end of the email, Plaintiff stated:

Now, if they are doing this as a joke or game because they don't want me there, (if they dare admit it), no need, they can just call Adecco and say “we don't want a black man working in our warehouse” (if they dare admit it), or for what ever [(sic)] the reason (I understand it's all at will).

         Pl.'s Dep. at 200-01, Ex. 7. By reply email on Friday, March 13, 2015, Kahawaiolaʻa acknowledged that Plaintiff's concerns were serious and stated that she would address them with Huddy and follow up with Plaintiff the following week. Id. at 212-14, Pl.'s Dep. Ex. 4, Answers to Admissions at 28. Nothing in the record indicates that Kahawaiolaʻa ever responded to Plaintiff regarding the March 12 email.

         On Friday, March 20, 2015, Huddy met with Plaintiff to discuss his concerns. See Pl.'s Dep. Ex. 4, Answers to Admissions at 32-34; Defs.' CSF ¶ 10. Later that day, Adecco was informed that Trane ended Plaintiff's assignment. Defs.' CSF ¶ 10; Pl.'s Dep. at 215-16, Ex. 4, Answers to Admissions at 32-34; Brunk Decl. ¶ 15. That afternoon, after Kahawaiolaʻa told Brunk that Trane ended Plaintiff's assignment and she had been unable to reach Plaintiff to inform him, Brunk left Plaintiff a voicemail message telling him his assignment with Trane was terminated. Brunk Decl. ¶ 16. That evening, Plaintiff sent another lengthy email to Kahawaiolaʻa and Brunk summarizing his morning meeting with Huddy, during which Huddy said she had heard from Kahawaiolaʻa that Plaintiff had some concerns about his assignment, to which Plaintiff responded that he had sent an email to Adecco, was not prepared to discuss his concerns with Huddy, and that “it is not [his] place to tell her (and her co-managers) how to do their job.” Id. ¶ 17; Pl.'s Dep. at 215-16, Ex. 4, Answers to Admissions at 32-34; Defs.' CSF ¶ 10. Plaintiff's March 20 email further summarized the discussion that took place about Trane's supervision and procedures, and described Huddy's tone and demeanor during that meeting as “retaliatory, hostile, argumentative, provoking, and combative.” Pl.'s Dep. Ex. 4, Answers to Admissions at 32-34.

         Brunk immediately replied to Plaintiff reiterating that Trane had ended Plaintiff's assignment, indicating that he wanted to meet with Plaintiff the following Monday to discuss Plaintiff's email, and asking Plaintiff to call him. Pl.'s Dep. Ex. 4, Answers to Admissions at 32; Brunk Decl. ¶ 18. Plaintiff responded, asking Brunk to tell him before they meet, why Trane ended the assignment. Ex. 4, Answers to Admissions at 38; Brunk Decl. ¶ 19.

         On Monday, March 23, 2015, Brunk emailed Plaintiff that “it would be best to have a conversation regarding your assignment at Trane” and that it could “be via the phone or in person.” Brunk Decl. ¶ 20; Pl.'s Dep. Ex. 4, Answers to Admissions at 37. Plaintiff did not call or meet with Brunk. Brunk Decl. ¶ 21; see Pl.'s Dep. at 239-40, Ex. 4, Answers to Admissions at 38-44; see also Brunk Decl. ¶ 28; Defs.' CSF, Ex. D, ECF No. 350-3. Rather, on March 23, 2015, Plaintiff sent Brunk an email specifically describing Plaintiff's March 13 and March 20 emails to Adecco as “complaints of illegal racial discrimination, hostile work environment and retaliation, ” stated his preference that all communications be in writing, and attached a summary of the elements of a Title VII action and website links to other lawsuits against Adecco. See Pl.'s Dep. Ex. 4, Answers to Admissions at 35-37; Brunk Decl. ¶ 22; Defs.' CSF ¶ 12. Brunk forwarded Plaintiff's emails to Adecco's Employee Relations Department. Brunk Decl. ¶¶ 23-24; Duffield Decl. ¶¶ 3-4; Defs.' CSF ¶ 13.

         On March 25, 2015, Florida-based Adecco Employee Relations Manager Jessica Geyer (“Geyer”) sent Plaintiff several emails asking him to discuss his complaints and inquiring if Plaintiff was interested in continuing to work with Adecco on other assignments. Pl.'s Dep. at 262-63, Ex. 8 at ¶ 000128-29, ECF No. 350-2; see also Duffield Decl. ¶ 9; Defs.' CSF ¶13. Plaintiff responded that his complaints were in the hands of the Equal Employment Opportunity Commission (“EEOC”), and that he did want Adecco to place him on other assignments. Pl.'s Dep. at 263-64, 269, Ex. 8 at ¶ 000128. Geyer reminded Plaintiff of his obligation to report and provide details of harassment, even if he reported the harassment to the EEOC. Pl.'s Dep. at 268, 270-71, Ex. 8 at ¶ 000127. Plaintiff responded that he had already provided information to Adecco (through Kahawaiolaʻa and Brunk), attached copies of his March 13, 20, and 23 emails, and accused Geyer of retaliating by harassing him with her emails. Pl.'s Dep. at 268, 271-72, Ex. 8 at ¶ 000122; Defs.' CSF ¶ 13. On March 31, 2015, Plaintiff filed a complaint against Adecco with the EEOC. Pl.'s Dep. Ex. 4, Answers to Admissions at 26.

         On April 10, 2015, Adecco attempted to contact Plaintiff regarding a potential assignment. Pl.'s Dep. at 247-48, 253-54; Ex. 8 at ¶ 000122; Brunk Decl. ¶ 25. Plaintiff did not contact Adecco thereafter regarding his interest or availability for future assignments. Pl.'s Dep. at 318-20. Thus, Adecco “later placed [Plaintiff] on inactive status in accordance with Adecco's normal practice.” Brunk Decl. ¶¶ 25-26.

         B. Procedural Background

         Defendants filed their Motion for Summary Judgment on May 23, 2018. ECF No. 349. On May 25, 2018, the court set hearing and briefing deadlines and provided a Notice to Pro Se Litigants that outlined Plaintiff's obligations in responding to the Motion. ECF No. 351. On July 18, 2018, the court set new briefing deadlines and continued the hearing. ECF No. 356. On August 30, 2018, the Court continued the hearing again, granted Plaintiff leave to file an Opposition by September 7, 2018, and granted Defendants leave to file a Reply by September 17, 2018. ECF No. 368. Plaintiff filed a Rule 56(d) discovery motion, ECF No. 374, [3] and non-substantive Oppositions on September 7, 2018, ECF Nos. 370-71, and substantive Oppositions on September 11, 2018, ECF Nos. 380, 382. Defendants filed a Reply on September 17, 2018. ECF No. 386.[4]


         Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). If the moving party carries its burden under Rule 56(a), the burden shifts to the nonmoving party who “must do more than simply show that there is some metaphysical doubt as to the material facts [and] . . . come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citations and internal quotation signals omitted); see also Cafasso, U.S. ex re. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”). Each party must support its position that a fact is disputed or undisputed by (1) “citing to particular parts of [evidentiary] materials in the record[;]” or (2) “showing that the materials cited do not establish the absence or presence of a genuine dispute, ” or that the opposing party “cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1184 (9th Cir. 2016).

         The Court may not grant summary judgment solely because a party fails to oppose the motion. Cristobal v. Siegal, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994); Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). But, when a party fails to properly support an assertion of fact or fails to challenge the facts asserted by the moving party, the non-moving party may be deemed to have admitted the validity of those facts. See Fed. R. Civ. P. 56(e)(2); Local Rule 56.1(g).


         Defendants argue that summary judgment should be granted because Plaintiff cannot establish: (1) Adecco's liability for Trane's alleged racially discriminatory, harassing, or retaliatory conduct; (2) prima facie cases of race-based discrimination and retaliation by Adecco or that Adecco's reasons for its actions were pretextual, (3) racially harassing conduct by Adecco; and (4) that Brunk acted with racial animus or participated in any racially discriminatory act. The Court agrees and addresses these arguments in turn.

         A. Legal Standards

         1. Title VII

          Title VII makes it an unlawful employment practice for an employer 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 . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a discrimination claim in violation of Title VII “by proving the existence of a hostile work environment” or “by proving disparate treatment.” Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1109 (9th Cir. 1991), superseded by statute on other grounds as stated in Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1041 (9th Cir. 2005). Title VII also makes it unlawful for an employer to retaliate against an employee because the employee has taken an action to enforce his rights under Title VII. 42 U.S.C. § 2000e-3.

         To establish a claim for race-based discrimination or retaliation under Title VII, “a plaintiff may offer direct evidence of discrimination, ” or he “may prove his case through circumstantial evidence, following the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002); see Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008). “Direct evidence typically consists of clearly . . . racist . . . statements or actions by the [defendant].” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005).

         Where there is no direct evidence of discrimination, the Court applies the McDonnell Douglas framework. Under this framework, a plaintiff must raise an inference of discrimination, that is, a prima facie case, after which the burden shifts to the defendant to articulate a “legitimate, nondiscriminatory reason” for its employment decision. Surrell, 518 F.3d at 1106; Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). If the defendant provides such a reason, to defeat summary judgment, the plaintiff must offer evidence that “the employer's proffered nondiscriminatory reason is merely a pretext for discrimination.” Surrell, 518 F.3d at 1106 (quoting Dominguez-Curry, 424 F.3d at 1037). Even though the “intermediate burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

         2. Section 1981

         Section 1981 provides that all persons have the same right as white citizens “to make and enforce contracts, ” which includes “the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.” 42 U.S.C. § 1981. In the employment context, § 1981 “bars employers from discriminating and retaliating against employees based on the employee's race[.]” Tank v. T-Mobile USA, Inc., 758 F.3d 800, 805 (7th Cir. 2014); see Surrell, 518 F.3d at 1103 (“[Section] 1981 prohibits discrimination in the ‘benefits, privileges, terms and conditions' of employment.”) (citing 42 U.S.C. § 1981(b)) (other citation omitted).

         When analyzing a § 1981 racial employment discrimination claim, courts apply “the same legal principles as those applicable in a Title VII disparate treatment case” and “[t]ypically, [courts] apply the burden-shiting framework established in McDonnell Douglas.” Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007), abrogated on other grounds by Nat'l Assoc. of African Am.-Owned Media (“NAAAOM”) v. Charter Commc'ns, Inc., ___ F.3d ___, 2018 WL 6037642 (9th Cir. Nov. 19, 2018), (quoting Fonseca v. Sysco Food ...

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