United States District Court, D. Hawaii
WILLIS C. McALLISTER, Plaintiff,
ADECCO USA INC., et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (ECF NO. 349)
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
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”). 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.
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
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.
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.
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.
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.
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.
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).
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.
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
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.
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.
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.
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.
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,  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.
STANDARD OF REVIEW
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).
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).
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).
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).
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.
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. §
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).
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 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
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