Maureen Uche-Uwakwe v. R. Nicholson , 473 F. App'x 544 ( 2012 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                               MAR 30 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MAUREEN UCHE-UWAKWE,                             No. 10-55708
    Plaintiff - Appellant,            D.C. No. 5:05-cv-00983-VAP-OP
    v.
    MEMORANDUM*
    R. JAMES NICHOLSON, Secretary of
    Veteran Affairs; BRIAN KAWAHARA;
    CHI-LEUG CHAN, also known as Roy
    Chan, AKA Roy Chan; ELISA ALMERA,
    Defendants - Appellees.,
    Appeal from the United States District Court
    for the Central District of California
    Virginia A. Phillips, District Judge, Presiding
    Argued and Submitted November 17, 2011
    Pasadena, California
    Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.
    Appellant Maureen Uche-Uwakwe (Uche-Uwakwe) alleges that she was
    discriminated against based on her race while working as a pharmacist for a
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    medical center operated by Appellee Secretary of Veterans Affairs. Uche-Uwakwe
    challenges the district court’s order granting Appellees’ motion for summary
    judgment and dismissing her complaint with prejudice.
    The district court acted within its discretion in sua sponte excluding
    evidence submitted for summary judgment that was not properly authenticated,
    with two exceptions. See Las Vegas Sands, LLC v. Nehme, 
    632 F.3d 526
    , 532-33
    (9th Cir. 2011). First, the district court abused its discretion in excluding the Equal
    Employment Opportunity (EEO) testimony of the VA Center’s EEO Manager,
    Sam Maze, and the VA Center’s Employee Relations Specialist, Greg Underwood,
    because they were signed by each witness and included a certification that
    complied with the requirements of 
    28 U.S.C. § 1746
    (2).
    Second, the district court abused its discretion in excluding the EEO records
    submitted with a declaration from Underwood because, as an employee in the
    Human Resources Department, Underwood had sufficient familiarity and
    understanding of the records to authenticate them. See Fed. R. Evid. 803(6); see
    also Orr v. Bank of America, NT & SA, 
    285 F.3d 764
    , 773-74 & n.8 (9th Cir.
    2002), as amended.
    Considering the admissible evidence, Uche-Uwakwe failed to raise a
    material issue of fact regarding her prima facie case for failure to promote because
    2
    she offered no evidence concerning the identity of the person who was chosen to
    fill the position. See Dominguez-Curry v. Nevada Transp. Dep’t, 
    424 F.3d 1027
    ,
    1037 (9th Cir. 2005). Uche-Uwakwe also failed to raise a material issue of fact
    regarding her hostile work environment claim because the actions alleged were not
    sufficiently severe or pervasive. See, e.g., Sanchez v. City of Santa Ana, 
    936 F.2d 1027
    , 1031, 1037 (9th Cir. 1990); see also Vasquez v. County of Los Angeles, 
    349 F.3d 634
    , 642-44 (9th Cir. 2004), as amended; Kortan v. California Youth Auth.,
    
    217 F.3d 1104
    , 1106-07, 1110-11 (9th Cir. 2000).
    However, Uche-Uwakwe’s statements did raise a material issue of fact
    regarding her prima facie case of disparate treatment because she avowed in her
    deposition that others engaged in conduct that she was accused of, and yet did not
    receive multiple Reports of Contact (ROCs) or a formal reprimand from the Chief
    Pharmacist. See Hawn v. Exec. Jet Mgmt., 
    615 F.3d 1151
    , 1156 (9th Cir. 2010).
    Uche-Uwakwe also presented sufficient admissible evidence to raise a material
    issue of fact regarding her retaliation claim, based primarily on the temporal
    relationship between the time she sought EEO counseling or filed an EEO
    complaint and the receipt of ROCs and reprimands. See Dawson v. Entek
    International, 
    630 F.3d 928
    , 937 (9th Cir. 2011).
    3
    In addition, Uche-Uwakwe proffered sufficient direct and circumstantial
    evidence, including a supervisor’s statement that Nigerians are “stubborn and
    inflexible” and the evidence supporting her retaliation claim, to raise an issue of
    material fact as to pretext. See Vasquez, 
    349 F.3d at 642
    . She also exhausted her
    administrative remedies as to her surviving claims. See 
    29 C.F.R. § 1614.105
    (a)(1); see also Kraus v. Presidio Trust Facilities Div./Residential Mgmt.
    Branch, 
    572 F.3d 1039
    , 1044-45 (9th Cir. 2009).
    AFFIRMED in part, REVERSED in part, and REMANDED.
    Costs are awarded to plaintiff.
    4
    FILED
    Uche-Uwakwe v. Nicholson, 10-55708                                             MAR 30 2012
    MOLLY C. DWYER, CLERK
    GOODWIN, Circuit Judge, dissenting:                                          U.S. COURT OF APPEALS
    I respectfully dissent. Even if we consider the evidence that the district
    court improperly excluded, Uche-Uwakwe has not raised a genuine issue of
    material fact that she suffered an adverse employment action.
    I agree with the majority that the district court should have considered the
    Maze and Underwood affidavits and the EEO records that were authenticated by
    Greg Underwood. I also agree with the majority that, even after considering the
    additional evidence, summary judgment was proper on Uche-Uwakwe’s Title VII
    claims for failure to promote and for hostile work environment. I disagree,
    however, with the majority’s analysis of the disparate treatment and retaliation
    claims.
    A. Disparate treatment
    A prima facie case of disparate treatment under Title VII requires the
    plaintiff to show that “(1) he belonged to a protected class; (2) he was qualified for
    his job; (3) he was subjected to an adverse employment action; and (4) similarly
    situated employees not in his protected class received more favorable treatment.”
    Anthoine v. N. Central Counties Consortium, 
    605 F.3d 740
    , 753 (9th Cir. 2010).1
    1
    For other cases that discuss the four-element test for a disparate treatment
    claim, see Nicholson v. Hyannis Air Serv., Inc., 
    580 F.3d 1116
    , 1123 (9th Cir.
    Uche-Uwakwe has not alleged an adverse employment action. “[A]n
    adverse employment action is one that materially affects the compensation, terms,
    conditions, or privileges of employment.” Davis v. Team Elec. Co., 
    520 F.3d 1080
    , 1089 (9th Cir. 2008) (internal quotation marks and alterations omitted).
    “Among those decisions that can constitute an adverse employment action are
    termination, dissemination of a negative employment reference, issuance of an
    undeserved negative performance review and refusal to consider for a promotion.”
    Brooks v. City of San Mateo, 
    229 F.3d 917
    , 928 (9th Cir. 2000). On the other
    hand, “we have held that declining to hold a job open for an employee and
    badmouthing an employee outside the job reference context do not constitute
    adverse employment actions.” 
    Id. at 929
    .
    The majority concludes that the reports of contact and the formal reprimand
    letter from the Chief Pharmacist, Dr. Brian Kawahara, qualify as adverse
    employment actions, but I disagree.
    1. Reports of contact
    Between January 3, 2002, and June 24, 2004, coworkers, doctors, and
    2009); Davis v. Team Elec. Co., 
    520 F.3d 1080
    , 1089 (9th Cir. 2008); Moran v.
    Selig, 
    447 F.3d 748
    , 753 (9th Cir. 2006); Peterson v. Hewlett-Packard Co., 
    358 F.3d 599
    , 603 (9th Cir. 2004); Kang v. U. Lim Am., Inc., 
    296 F.3d 810
    , 818 (9th
    Cir. 2002); Chuang v. Univ. of Cal., 
    225 F.3d 1115
    , 1123 (9th Cir. 2000).
    patients filed thirty formal reports of contact against Uche-Uwakwe for what they
    claimed to be disrespectful or unprofessional behavior.2
    Uche-Uwakwe has not presented any evidence that those reports of contact
    affected the compensation, terms, conditions, or privileges of employment. See
    Davis, 
    520 F.3d at 1089
    . She has also not presented any evidence that those
    reports of contact were disseminated, that they were undeserved, or that her
    employer encouraged employees to file them. See Brooks, 
    229 F.3d at 928
    .
    Therefore, the reports of contact do not qualify as an adverse employment action.
    2. The reprimand letter
    On August 26, 2004, after the thirty reports of contact had been filed, Dr.
    Brian Kawahara issued a letter titled “Notice of Proposed Reprimand” to Uche-
    Uwakwe.3 The letter discussed several specific incidents in which Uche-Uwakwe
    was alleged to have acted unprofessionally or disrespectfully. Dr. Kawahara met
    with Uche-Uwakwe, read the letter to her, gave her two copies, let her read the
    letter, and asked her to sign and date it.4 They did not discuss the matter, and the
    meeting was adjourned.
    Uche-Uwakwe has not presented any evidence that this reprimand letter
    2
    II ER 190-223.
    3
    II ER 180-83.
    4
    II ER 67-68.
    affected the compensation, terms, conditions, or privileges of her employment, see
    Davis, 
    520 F.3d at 1089
    , or that the letter was disseminated or undeserved, see
    Brooks, 
    229 F.3d at 928-29
    . Accordingly, the reprimand letter does not qualify as
    an adverse employment action.
    B. Retaliation
    To establish a prima facie case of retaliation, the employee must show (1)
    that she engaged in a protected activity, (2) that she was subsequently subjected to
    an adverse employment action, and (3) that a causal link exists between the two
    events. Dawson v. Entek Int’l, 
    630 F.3d 928
    , 936 (9th Cir. 2011).
    The majority again determines that the reports of contact and the reprimand
    letter qualify as adverse employment actions. For the reasons stated above, I do
    not agree that those actions are adverse employment actions.
    I respectfully dissent and would affirm summary judgment on all claims.
    4