Free Motion for Summary Judgment - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, v. Anthony Principi, Secretary Department of Veteran's Affairs, Defendant. The defendant, R. James Nicholson,1/ Secretary Department of Veteran's Affairs, by and through undersigned counsel, respectfully moves the Court , pursuant to Rule 56, F.R.Civ.P., to grant summary judgment for the defendant and dismiss the Amended Complaint with prejudice. Further, the defendant seeks an Order, pursuant to Rule 36(a), F.R.,Civ.P., deeming as "admitted" certain responses to defendant's Requests for Admission.2/ CIV-03-2300 PHX ROS
MOTION FOR SUMMARY JUDGMENT and MOTION

PURSUANT TO Rule 36(a)

On January 1, 2005 R. James Nicholson replaced Anthony Principi as the Secretary of the Department of Veterans Affairs. See, Rule 25(d)(1), F.R.Civ.P. In addition to the argument set forth on pages 6-8herein, see also Defendant's Statement of Facts (DSOF) paragraphs 6-8, 31-33, 36-41 and 52 incorporated herein by this reference.
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Respectfully submitted this 30th day of May 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney MEMORANDUM OF POINTS AND AUTHORITIES I. Subject Matter Jurisdiction. 42 U.S.C. §2000e-16, as amended, is the exclusive remedy for federal employees claiming employment discrimination. Brown v. GSA, 425 U.S. 820, 835 (1976); Clements v. U.S., 766 F.2d 1358 (9th Cir. 1985). Title VII specifically requires a federal employee to exhaust administrative remedies as a precondition to filing suit." Vinieratos v. United States, 939 F.2d 762, 768 (9th Cir.1991). Exhaustion of administrative remedies under Title VII requires that the complainant file a timely charge with the federal agency thereby allowing the agency time to investigate the charge. Lyons v. England, 307 F.3d 1092, 1104 (9th Cir., 2002). The only timely claims before this Court involve alleged retaliation. Ms. Martha Slaughter-Payne (Payne) is currently employed as an Employee Relations Specialist, GS0230-09 at the Carl T. Hayden Veterans Affairs Medical Center (CTHVAMC) in Phoenix, Arizona. The Amended Complaint contains allegations from two separate EEO complaints: (1) her non-selection for a Computer Specialist Position (Agency Case No. 200P-2674) herein after the "Non-Selection Case. and (2) a series of events in late 2001which involved her transfer to new position and related matters, herein after the "Transfer Case."(Agency Case No. 200P-0644-2002100409). Payne subsequently added additional charges to this EEO complaint. II. Burdens of Proof To establish a prima facie case of retaliation, Payne must show (1) that she engaged in protected activity; (2) that she suffered an adverse employment action; and (3) that a causal connection existed between the protected activity and the adverse action.
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Tarin v. County of Los Angeles, 123 F .3d 1259, 1263 n. 2, 1264 (9th Cir.1997); Wallis v. J.R. Simplot Company, 26 F.3d 885, 891 (9th Cir. 1994). A showing that the adverse action closely followed the protected activity may satisfy the third element of the prima facie case. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir.1986). Once established, the defendant must offer a legitimate, non-discriminatory reason for the adverse employment action; this articulation shifts the burden back to the plaintiff to show that the employer's proffered reason was a pretext for retaliation. Tarin, 123 F .3d at 1264. A plaintiff can prove pretext either (1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.' " Lyons v. England, 307 F.3d at 1113; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir.1998).To meet her ultimate burden, Payne must produce reliable evidence. Payne may not simply state generalizations, Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995), 3/ nor may she rely on the mere
temporary proximity between the protected activity and the retaliation to create a triable issue of fact after the employer has, as here, offered legitimate reasons for his actions. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir.2002); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987); Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731 (9th Cir. 1986). III. The Legal Standards Governing Summary Judgment. The general principles of summary judgment apply with equal force to employment discrimination claims. Godwin, 150 F.3d at 1222; Wallis. 26 F.3d at 890-91 (9th Cir. 1994); Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir. 1990). Summary judgment is appropriate for discrimination claims

Chandler v. Roudebush, 425 U.S. 840, 861, 863 n. 39 (1976)( "Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal sector trial de novo."); In Nolan, the Ninth Circuit held that dispositive motions may be based on the administrative record in Title VII cases. See also, Charles v. Garrett, 12 F.3d 870, 873 (9th Cir.1993); Nolan v. Cleland, 686 F.2d 806, 811 (9th Cir. 1982); Clark v. Chasen, 619 F.2d 1330, 1337 (9th Cir.1980).
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when the plaintiff does nothing more that present conclusory allegations. Hoeppner v. Crotched Mountain Rehabilitation Center Inc., 31 F3d 9, 14 (1st Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Although Title VII protects against discrimination, it does not afford protected groups special preference or place upon the employer an affirmative duty to accord them special treatment.42 U.S.C.§ 2000e-2(j); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Sessions v. Rusk State Hosp., 648 F.2d 1066, 1071 (5th Cir. 1981); Wynn v. Columbus Mun. Separate Sch. Dist., 692 F. Supp. 672, 684 (N.D. Miss. 1988). A plaintiff may not defeat a motion for summary judgment merely by denying the credibility of the proffered reason for the challenged employment action. Wallis, 26 F.3d at 890; Schuler v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir.1986). Nor may a plaintiff create a genuine issue of material fact by the plaintiff's subjective belief that the challenged employment action was unnecessary or unwarranted. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996). In response to the defendant's proffer of legitimate and nondiscriminatory reasons, the plaintiff must produce "specific, substantial evidence of pretext." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). ARGUMENT I. Plaintiff has not established that her non-selection for the Computer Specialist, above the GS-5 level or the GS 11 Human Resources Position was retaliatory.

a. The Non-Selection for Computer Specialist Position (Agency Case No. 200P-2674). Payne was a GS-09 Vocational Rehabilitation Specialist at the CTHVAMC when she learned, on November 30, 2000, that she was not selected for the position of Computer Specialist, GS-344-5/7/9. On December 1, 2000, Payne filed an EEO complaint alleging her non-selection was in reprisal for prior EEO activity. Mr. Moore selected Mr. Robert L. Pyle for the position at issue. DSOF ¶'s 1, 18-30. Payne claims that her non-selection was in retaliation for protected activity because (1) she was the clearly superior candidate for the position, (2) despite her qualifications she was not selected in favor of a less qualified white male, (3) in her opinion, Pyle's skills, technical experience and knowledge were inferior to hers, (4) the selecting and approving officials knew

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of her protected activity4/ and (5) the stated reasons for the defendant's actions were

pretextual. DSOF ¶ 16. The defendant is not required to prove the selecting official made the best decision, but only that its reasons for selecting Pyle over the plaintiff were legitimate and nondiscriminatory. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796-97 (9th Cir., 1982). Thus, as here, "[t]he record shows no more than a denial of promotion as a result of a dispute over qualifications," the defendant is entitled to summary judgment. Millbrook v. IBP, Inc., 280 F.3d 1169, 1178-82 (7th Cir., 2002); Bennun v. Rutgers State University, 941 F.2d 154, 170 (3rd Cir. 1991); Molthan v. Temple University, 778 F.2d 955, 962 (3rd Cir. 1985). Pyles's specific knowledge, experience, and skills made him the most likely of the candidates to excel in meeting management's goals for the vacant position. Robert Jones was the recommending official and Richard Moore was the selecting official. DSOF ¶'s 27-29. Payne erroneously claims, in her application, that she was qualified at the GS-9/11 level for the Computer Specialist position. DSOF ¶ 20. However, Payne and other applicants for the Computer Specialist were mistakenly given higher GS grade rankings than warranted due to errors by the CTHVAMC Human Resources Department (HR). DSOF ¶'s 26,27
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When Jones discovered the HR error and determined that none of

the six (6) referred candidates qualified above a GS-5 ranking. DSOF ¶' 26, 27. As this error effected several of the 6 final candidates, there simply was no unlawful retaliation. O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 985-86 (7th Cir. 2001)( Policy applied to all equally. No pretext shown.); Armstrong v. City of Dallas, 997 F.2d 62, 67 Fn. 20 (5th Cir.1993)( No pretext, guidelines applied to all employees.) Further, a mere procedural error, does not establish a prima facie case of retaliation or "pretext." Nor

On October 8, 1998, Payne filed an EEO case against Mr. Richard Moore, Assistant Administrator, IRM, for his failure to select her for a computer position and harassment based on Race (African American)and Sex (female). Agency Case # 200P1543 and 98-3542. 13 VA employees applied, 6 were referred for consideration and 7 were deemed not to have met the minimum requirements for the position. DSOF ¶ 24.
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does it constitute "direct evidence." Blue v. Widnall 162 F.3d at 546 (Failure of an agency to follow personnel regulations during employment process is not evidence of "pretext."). Finally, Payne has failed to establish that the error, if any, was the result of retaliation or was pretextual. Cohen, 686 F.2d at 796-97; Morita v. Southern Cal. Permanente Medical Group, 541 F.2d 217, 218-20 (9th Cir. 1976); Schaulis v. CTB/McGrawHill, Inc.,496 F. Supp. 666, 670 (N.D. Cal. 1980). The requirements for this position were contained in the Job Description. Payne did not meet these requirements above the GS-5 level, nor did any of the other candidates. DSOF ¶'s 26, 27. However, Pyles had actual experience with the computer systems in question and, therefore, his selection had a good faith, legitimate and non-discriminatory basis. DSOF ¶ 26-29. The selectee, Pyle, was more qualified than Payne with respect to the criteria that CTHVAMC had established for this specific Computer Specialist position. EXHIBIT 18. Cotton v. City of Alameda, 812 F.2d 1245, 1249 (9th Cir., 1987). Payne's personal assessment of her computer skills and competence does not raise a genuine issue of material fact. Coleman v. Quaker Oats Co.232 F.3d 1271, 1285 (9th Cir. 2000); Bradley, 104 F.3d at 270. Payne simply did not have the degree of experience or training that Pyle possessed with respect to the specific computer systems at issue. Blue, 162 F3d at 546. DSOF ¶ 26-29. When specifically challenged as to her qualifications for Computer Specialist at the GS-7 and GS-9 levels ( Defendant's Requests for Admission (RTA) #84-116 6/ )Payne
merely repeated several statements: Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable Plaintiff to admit nor deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. Plaintiff was responsible for the installation, programming and maintenance of a mainframe computer, as that term is commonly used in the computer industry for the NAACP. Furthermore, while in Personnel, Plaintiff completed an installation on or about 1997 or 1998. See EEO file.
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Please note Payne deleted the section headings on pages 23 and 26 of the RTA EXHIBIT 1 c , in her responses. EXHIBIT 1 b.
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See document submitted by Defendant, Bates Labeled 1st SET-RPD #001000123. Also see Plaintiff's Official Personnel File under training. Plaintiff possesses experience in operating systems structure, related systems logic and of system hardware as applied to clustered CPUs (central processing unit) for the NAACP. Furthermore, while in Personnel, Plaintiff completed an installation on or about 1997 or 1998. See EEO case file. Plaintiff was required to understand the relationships between I/O (input/output), memory, and CPU capacity to correctly analyze system performance for the NAACP. Furthermore, while in personnel, Plaintiff completed an installation on or about 1997 or 1998. See EEO case file. Plaintiff was required to correctly integrate new devices into the Alpha system, and develop utilization methodology for these devices for the NAACP. Furthermore, while in personnel, Plaintiff completed an installation on or about 1997 or a998. See EEO case file. Additionally, Plaintiff correctly integrates new devices into the Alpha system and develops utilization methodology fir these devises in her present position.

As these were incomplete and evasive responses to the RTA's her responses must be deemed admissions that she was not qualified above the GS-5 level. Therefore, pursuant to Rule 36,F.R.Civ. P., the defendant respectfully requests the Court for an Order deeming, as admitted , the matters set forth in defendant's Requests for Admissions # 84-116. ASEA v. Southern Pacific Transportation, 669 F.2d 1242,1247 (9th Cir. 1981); Perez v. Miami-Dade County, 297 F.3d 1255, 1263-64 (11th Cir., 2002). Therefore, Payne did not qualify above the GS-5 level for this computer position. Furthermore, now for the first time Payne alleges additional computer experience gained by (1) working for the NAACP (no dates given) or (2) working in the CTHVAMC personnel department in 1997 or 1998 or (3)what ever information is contained in " Bates Labeled 1st SET-RPD #001-000123." However, none of this new information was set forth in her application dated November 11, 2000 (DSOF¶ 7) As a result, such matters are inadmissible, irrelevant and this Court must disregard such information. The candidate selection process is based upon the information set forth in the application. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1463 (9th Cir., 1985)(Employee, not employer, has duty to set forth relevant data in the application), overruled on other grounds by, Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262 (9th Cir.1991); DeHerrera v. Stone, 1993 WL 793931* 7 (Failure to clearly set forth relevant work experience, ultimately led to non-selection.). The simple truth is that no
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discriminatory motive or intent can be reasonably inferred from the "hindsight generated" personal information or opinions of this plaintiff. Farrokhi v. Laura Ashley, Inc., 82 F.Supp. 2d 1248, 1251 (D. N.M. 1999).7/ When, as here, evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment must be granted, even though the plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption. Wallis , 26 F.3d at 890-91. Payne has failed to establish that the stated reasons for her non-selection for the computer position were pretextual and that she was qualified above the GS-5 level. Therefore, the defendant is entitled to summary judgment on paragraphs 25, 26,27, and 29 of the Amended Complaint. b. Plaintiff lacked the minimum qualifications for the GS-11 Human Resource Management Specialist position. Payne cannot establish, as a matter of law, that she was qualified for this position. Therefore, a prima facie case has not been established and summary judgment must be granted. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1275 (9th Cir. 1981); Hogan v.Henderson, 102 F. Supp. 2d 1180, 1190-93 (D. Ariz. 2000). Payne did not have the required minimum qualification of one year specialized experience in pay grade GS-9 in Human Resources. DSOF ¶ 43-52. Furthermore, in her response to RTA # 39 she simply responded: 39. Admit that one of the OPM requirements for minimal qualifications for a GS-11position for a current employee, is one year time in grade at GS-9 and one year of specialized experience at the GS-9 level in the same area of expertise as the GS-11position. Response: Denied Refer to Qualification Standards for General Schedule Positions of the Office of Personnel Management; Bates Labeled #00539-#00545. Once again, her response was incomplete and evasive. Therefore, pursuant to Rule 36,F.R.Civ. P., the defendant respectfully requests the Court for an Order deeming, as admitted, the matters set forth in defendant's Request for Admissions # 39. ASEA, 669
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This is allegation # 6 infra on page 9.
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F.2d at 1247); Perez, 297 F.3d at 1263-64. Further, the OPM requirements applied to all candidates and therefore, they cannot be viewed as retaliatory in nature. In any event, she did not meet the minimum OPM requirements to be considered a candidate for this position. DSOF ¶ 48,49. Therefore, the defendant is entitled to summary judgment as to paragraphs 39, 40, 41, 42, 43, 44, 45, 55 and 56 of the Amended Complaint, as a matter of law. II. Plaintiff has failed to establish retaliation in her "Transfer Case" (Agency Case No. 200P-0644-2002100409) The plaintiff was employed by the CTHVAMC as a GS-09 Vocational Rehabilitation Specialist when, on October 31, 2001, she filed an EEO complaint alleging retaliation for prior EEO activity when: (1) she received a Voluntary Separation Incentive Payment letter on September 20, 2001, (2) when she received a job offer for a GS-7 position on September 26, 2001, (3) she received a notice on October 17, 2001, that her position was pending a Reduction in Force, (4) on December 4, 2002 she was transferred to the position of Employee Relations Specialist GS-9 by John Fears, Director, CTHVAMC, (5) she was requested, in January 2002, to develop a training program prior to attending a meeting in San Francisco, (6) when, on February 11, 2002, she was notified that she was not qualified for a Human Resources Management Specialist position that she had applied for,8/ and (7) on February 20, 2002, she was required to log in and out when she left her work area. DSOF¶'s 31,42 . a. The defendant is entitled to summary judgment on allegations 1 through 4. All of these alleged adverse employment actions arose from the same legitimate and non-discriminatory actions by the defendant, the elimination of VA programs at the CTHVAMC. DSOF¶'s 31-40. A total of sixteen (16) VA employees were affected by these budget cuts. Most importantly, these budget cuts had been in the planning stage for months and Payne was well aware of them. DSOF¶'s 31-39; EXHIBITS 2, 24, 28; Lieberman Declaration, VanHalderan Declaration; Martinez Declaration.
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See discussion Section I. b, supra..
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In an effort to mitigate the economic impact, the VA offered incentives to these employees. Payne rejected all of these incentives and requested a transfer to other positions. The five alternative positions she requested (DSOF )were unavailable and in lieu of being terminated she was transferred to the HR position without a decrease in pay or benefits. DSOF ¶ 31- 39; EXHIBITS 2, 37; Lieberman Declaration pp. 6-19. When required to support her allegations Payne demonstrated that she lacked evidence to establish that: (1) one or more of the five positions that she listed were vacant, (2) she was qualified for one or more of the positions, (3) that one or more of these positions was exempt from the OPM competitive selection process, (4) that the offer of the GS-7 Human Resource Assistant position (without loss of pay and with retention of grade) and to the GS-9 Employee Specialist position were pretextual, (5) the VA was not required to notify her of the request for RIF authority and (6) that the defendant's stated reasons for elimination of programs were pretextual. See, DSOF ¶'s 31- 39; and Responses RTA ## 14,18-24,29-32, 35-37. Therefore, pursuant to Rule 36,F.R.Civ. P., the defendant respectfully requests the Court for an Order deeming, as admitted, the matters set forth in defendant's RTA # 14,18-24,29-32, 35-37. ASEA, v. 669 F.2d at1247; Perez , 297 F.3d at 1263-64. Furthermore, Payne cannot dispute the fact that had CTHVAMC been granted RIF authority, Payne could have been placed in a position that was otherwise unavailable under OPM regulations, as OPM regulations are waived by the provisions of RIF regulations. RTA #37. In fact she was well aware of this waiver. DSOF¶ 39; EXHIBITS 28, 37. Therefore, Payne allegations that she was unlawfully "RIFFED" not only lack a basis in fact but are clearly disingenuous. MARTINEZ Declaration, p.8. The defendant was attempting to and did keep her employed during the fiscal shortfall. To prove retaliation under the anti-discrimination clause of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., an employee must show a serious and material change in the terms, conditions, or privileges of employment. Moreover, the employee's subjective view of the significance and adversity of the employer's action is
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not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances. Davis v. Town of Lake Park, 245 F.3d 1232, (11th Cir. 2001). It is clear that "[n]ot every employment decision amounts to an adverse employment action." Strother v. University of So. Cal. Permanente Medical Group, 79 F.3d 859, 869 (9th Cir., 1996). "Only non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) ; Ray v. Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000). The fact that the defendant did everything he could, under then existing circumstances, to provide employment to Payne at the same grade and pay levels, is obviously not retaliatory action. Lieberman Declaration, pp. 5-6, 9, 11-17. Payne's allegations of retaliation which arise from the defendant's efforts to keep her employed, are simply frivolous. See Response RTA# 8; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996); Wallis , 26 F.3d at 891; Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994). Therefore, the defendant is entitled to summary judgment on paragraphs 31,32, 33, 34, 35, 36, 38, 55, and 56 of the Amended Complaint. b. Defendant is entitled to summary Judgment on allegations 5 and 7- Sign in log and program development for training. The daily "sign in sign out log" was required of all HR employees including supervisory staff. Therefore, having to sign the log was not an adverse employment action or retaliation as a matter of fact and law. Brook, 229 F.3d at 928. DSOF ¶ 54. Payne also asserts retaliation because she was requested, in January 2002, to develop a training program prior to attending a meeting in San Francisco. DSOF ¶ 53. The request for her to prepare a training program for the San Francesco conference was part of her full-time responsibilities for her new position as Human Resources Management Services (OWCP) GS-9. Whereas, Sharon Hutton and Ginger Rice were merely filling in part-time along with their other responsibilities until a full time

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employee was available. DSOF ¶ 53. Such trivial workplace requirements do not constitute a valid basis for alleging retaliation. Foraker v. Apollo Group, Inc., 2006 WL 964489 *4 (D. Ariz., 2006). Moreover, the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances. Davis v. Town of Lake Park, 245 F.3d 1232, (11th Cir. 2001). It is clear that "[n]ot every employment decision amounts to an adverse employment action." Strother, 79 F.3d at 869. "Only non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation." Brooks, 229 F.3d at 928; Ray, 217 F.3d at 1237. As there is no merit to these allegations of retaliation they must be dismissed. III. Plaintiff's has failed to prove "pretext." In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court held that a plaintiff may rely on either circumstantial or direct evidence to defeat a motion for summary judgment in a civil action under Title VII. Costa, 539 U.S. at 92, 100. The burden has shifted to Payne to produce either direct evidence,9/ or "specific" and "substantial" circumstantial evidence, that the defendant's reasons for the adverse actions were a mere pretext to retaliate against her. Villiarimo, 281 F.3d at 1063; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998). Payne offers no direct evidence of pretext, and merely offers conclusory assertions that the alleged adverse employment actions constituted retaliation. In Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) the Supreme Court held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 147. Payne has failed to show that the Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact in issue without inference or presumption." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990).
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defendant's version of these events was manufactured as a pretext to retaliate against her. In McGinest v. GTE Service Corp., 360 F.3d 1103, 1122-24 (9th Cir., 2004), the Ninth Circuit applied Costa to determine what evidence a plaintiff must offer to survive summary judgment. The only issue remaining in a discrimination case, after the defendant has rebutted the McDonnell Douglas presumption, is "discrimination vel non:" ...in this case it is not particularly significant whether McGinest relies on the McDonnell Douglas presumption or, whether he relies on direct or circumstantial evidence of discriminatory intent to meet his burden. Under either approach, McGinest must produce some evidence suggesting that GTE's failure to promote him was due in part or whole to discriminatory intent, and so must counter GTE's explanation that a hiring freeze accounted for its failure to promote him. Id. at 1123. Additionally, the Ninth Circuit requires that a plaintiff relying upon circumstantial evidence to prove pretext and defeat summary judgment must present "specific" and substantial " evidence. Cornwall v. Electra Central Credit Union, 439 F.3d 1018, 103031, and fn.9 (discussion of post-Costa decisions) (9th Cir. 2006); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). Therefore, she does not even reach the final stage of adjudication contemplated by Reeves. As a result, Payne has failed to properly establish that the stated reasons for the defendant's actions were pretextual. Therefore, the defendant is entitled to summary judgment and dismissal of paragraphs 25-29, 32-45, 54, 55 and 56 of the Amended Complaint. IV. Plaintiff has not identified similarly situated individuals who were treated differently. Payne has failed to meet the burden of establishing the "minimal showing necessary to establish co-workers were similarly situated." Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002); Bowden v. Potter, 308 F. Supp. 2d 1108, 1116 (D. Cal., 2004). The Bowden court concluded that "similarly situated does not require that the employees be identically situated. The employees need not necessarily have the same supervisor, be subject to the same standards, and engage in the same

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conduct. The relevance of such factors depends on the circumstances and nature of the case. The critical question is whether the plaintiff and the other employee are similarly situated in `all material aspects.'" Bowden, 308 F. Supp. 2d at 1118. Using the Bowden methodology, it is clear that Payne has failed to show that similarly situated employees, who had not engaged in protected conduct were treated more favorably. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Mouton v. Las Vegas Clark County Library Dist., 52 Fed. Appx. 339, 340 (9th Cir., 2002); Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir.2002); Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir.2000). Based on the above deficiencies in plaintiff's entire case, summary judgment and dismissal of the Amended Complaint is warranted because plaintiff has not offered evidence sufficient to support a finding that the defendant treated similarly situated employees more favorably than he treated her. V. Plaintiff has not established a causal link between her prior protected activity and her allegations of retaliation. In the absence of direct evidence, the causal link may be inferred by the temporal proximity of the protected conduct and the alleged retaliation. However, the timing must be "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). In order to support an inference of retaliatory motive, the alleged retaliation must have occurred fairly soon after the employee's protected expression. Villiarimo, 281 F.3d at 1065(holding that an 10-month period was too long to support an inference of retaliatory causation)(collecting cases); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987)(Less than 3 months, sufficient proximity.); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir.2000)(One year too long). Once the plaintiff establishes a close proximity of events, the defendant must offer a legitimate, non-discriminatory reason for the adverse employment action; this articulation shifts the burden back to the plaintiff to show that the employer's proffered reason was a pretext for retaliation. Tarin, 123 F .3d at 1264. To meet this burden, Payne must produce reliable evidence. She may not simply state generalizations, Warren, 58
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F.3d at 443, nor may she rely on the mere proximity in time between the protected activity and the adverse employment action to create a triable issue of fact after the employer has offered legitimate reasons for its actions. Miller, 797 F.2d at 731. The dispositive inquiry is whether these events were causally linked. The only evidence Payne offers of a causal link between the alleged retaliatory events is that, in her opinion, they were close in time to prior protected conduct. Yet, "such an inference is not compelled where other evidence provides a reasonable basis for inferring that adverse action was not retaliatory." Knickerbocker, 81 F.3d at 912. A careful analysis reveals she has failed to establish a causation link. Payne prepared a listing of her protected activity. EXHIBIT 34 . Payne filed an EEO complaint against Mr. Moore in October, 1998. This is simply too long ago and too attenuated to permit an inference of retaliation for her non-selection for the Computer Specialist Position in November, 2000. Clark County School District v. Breeden, 532 U.S. 268, 273(2001) (20 months between protected activity and adverse action established "no causality at all"); Jamal v. Wilshire Mgmt. Leasing Corp., 320 F. Supp. 2d 1060, 1079-1080 (D. Or., 2004)( 15 months to two years too attenuated).Therefore, Payne has failed to establish the required causational link that Moore retaliated against her because of her prior protected activity. Villiarimo , 281 F.3d at 1068; Schultze v. White 2005 WL 406386, **6 (7th Cir. 2005)(A two-year gap cannot establish a causal link between the two events.). Payne did participate in a protest marches on May 26, 2000, October 6, 2000, August 31, 2001.DSOF ¶ 55. However, with respect to her allegations 1-7, infra at pages 8-12, it is already established that all these events were related to the elimination of VA programs due to budget cuts, lack of qualifications and trival workplace complaints. The budget cuts were a matter of common knowledge at CTHVAMC and but for the budget cuts these events would not have occurred. Ruggles v. California State University, 797 F.2d 782, 785 (9th Cir., 1986). In any event, all of this occurred in a three to four month time period. Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir., 2002)(Mere temporal proximity will rarely be sufficient in and of
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itself to create a triable issue.); Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (3-month period meant no temporal proximity); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (4-month period meant no temporal proximity). In sum, Payne relies exclusively on her conclusory assertions that retaliation explains all the events of which she complains. This is simply not sufficient to defeat a summary judgment motion. Tyndall v. Dynaric, Inc., 997 F.Supp. 721, 725 (E.D.Va. 1998); Smith v. Planas, 975 F. Supp. 303, 309 (S.D.N.Y. 1997); Smith v. American Express, 853 F.2d 151, 154-55 (2nd Cir. 1988). An employee's own subjective belief of discrimination, no matter how honestly and genuinely held, cannot serve as a basis for judicial relief in a Title VII action. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); Amendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152-53 (5th Cir. 1995). Therefore, as to allegations 1-7, the closeness in time between the protected activity and the defendant's actions is fully explained and well documented in the record. While Payne presents only the circumstantial evidence of timing to explain the adverse employment actions as retaliation, the defendant has presented specific evidence to explain his actions. Green v. Maricopa County Collage Sch. Dist., 265 F. Supp.2d 1110,1128 (D.Ariz., 2003). Absent the causal link, Payne cannot establish that the defendants legitimate and non-discriminatory reasons were pretextual. In fact, the sequence of events was completely fortuitous in a busy government hospital. Villiarimo, 281 F.3d at 1064-65. Thus, Payne has failed to establish a triable issue of causal link between the retaliation alleged in 1-7 infra and her prior protected activity. Carter v. Ball, 33 F.3d 450, 460 (4th Cir.1994) (granting defendant summary judgment despite plaintiff's ability to show temporal proximity evidence because pretext evidence was lacking); Cross v. Bally's Health & Tennis Corp., 945 F.Supp. 883, 889 (D.M.D.1996). Therefore, the defendant is entitled to summary judgment on allegations 1-7 and dismissal of the Amended Complaint. VI. Payne race discrimination, disparate treatment and disparate impact claims
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are non-justiciable. Although Payne pleads causes of action for race discrimination, disparate treatment and disparate impact, she failed to exhaust the mandatory administrative remedies to pursue such claims in federal court. Sommatino v. United States, 255 F.3d 704, 707-08 (9th Cir., 2001); Brown v. Puget Sound Elec., 732 F.2d 726, 729-30 (9th Cir., 1984); Pacheco v. Mineta, 2006 WL 1195989 *2-*7 (5th Cir. 2006). Therefore, this Court must dismiss paragraphs 47, 48, 49, 50, 51, 52, 53, 58, 59, 60 and 61 of the Amended Complaint. IV. Conclusion In sum, although afforded the opportunity over the past three years to produce admissible and relevant evidence, Payne's has utterly failed to produce evidence even suggestive of retaliation. WHEREFORE, the defendant prays that the Court grant defendant's motion and enter summary judgment and dismissal of the Amended Complaint. Respectfully submitted this 30th day of May 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

CERTIFICATE OF SERVICE
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I hereby certify that on May 30, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 Attorney for plaintiff Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona 85012-1839 3225 North Central Avenue, Room 305 Phoenix, Arizona 85012 s\ John R. Mayfield Office of the U.S. Attorney

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