Pinder v. Emp't Dev. Dep't

• Decision Date: 04 January 2017
• Docket Number: No. 2:13–cv–00817–TLN–DB,2:13–cv–00817–TLN–DB
• Citation: 227 F.Supp.3d 1123
• Court: U.S. District Court — Eastern District of California
• Parties: Frank PINDER, Plaintiff, v. EMPLOYMENT DEVELOPMENT DEPARTMENT, et al., Defendants.

227 F.Supp.3d 1123

Frank PINDER, Plaintiff,

v.EMPLOYMENT DEVELOPMENT DEPARTMENT, et al., Defendants.

No. 2:13–cv–00817–TLN–DB

United States District Court, E.D. California.

Signed January 4, 2017

Filed January 5, 2017

George Harvey Jones, M, George H. Jones, Sacramento, CA, for Plaintiff.

Michelle A. Marzahn, Department of Justice, Sacramento, CA, for Defendants.

ORDER

Troy L. Nunley, United States District Judge

This matter is before the Court pursuant to Defendants Employment Development Department ("EDD"), Richard Rogers and David Derks's (collectively hereinafter referred to as "Defendants") Motion for Summary Judgment or, alternatively, Summary Adjudication. (ECF No. 50.) Plaintiff Frank Pinder ("Plaintiff") opposes Defendants' motion. (ECF No. 58.) Defendants have filed a reply. (ECF No. 60.) The Court has carefully considered the arguments raised by the parties. For the reasons set forth below, Defendants' Motion for Summary Judgment or, alternatively, Summary Adjudication is GRANTED.

I. FACTUAL BACKGROUND ¹

Plaintiff is an African American male. (Pl.'s Resp. to Defs.' separate statement of undisputed material facts, ECF No. 58–1 at ¶ 1.) On or about January 4, 2010, Plaintiff began working for EDD as a System Software Specialist III Supervisor for the Business Applications Services Group. (ECF No. 58–1 at ¶ 2.) Plaintiff supervised a staff of approximately 20 people. (SeeDefs.' Resp. to Pl.'s separate statement of undisputed material facts, ECF No. 60–3 at ¶ 4.) Plaintiff alleges that he received no "complaints" and was not otherwise "counseled about [his] performance" during his first month of employment. (Pl.'s Decl., ECF No. 58–3 at ¶ 9.) The parties seem to agree that Plaintiff had no immediate supervisor during that period. (ECF No. 60 at 4; Pl.'s Dep.,² 18:18–19.)

Derks, a white male, began his employment with EDD as the Client Solutions Section Chief on or about February 2, 2010. (ECF No. 58 at 5; ECF No. 58–1 at ¶ 7; ECF No. 60 at 3–4.) Derks was Plaintiff's immediate supervisor from February until on or about August 30, 2010. (ECF No. 58–1 at ¶¶ 8, 34.)

In approximately February 2010, Derks informed Plaintiff that there was a perception by Plaintiff's staff that Plaintiff was unable to perform his job. (ECF No. 58–1 at ¶ 9.) Plaintiff claims there was no such perception but does not dispute being told this. (ECF No. 58–1 at 4; Pl.'s Dep., 19:10–11.)

Derks removed Plaintiff from participating in hiring panels to interview new staff members because Derks received feedback that Plaintiff argued with other members of the interview panel in front of the interviewees. (ECF No. 58–1 at ¶ 14.) Plaintiff claims he was removed in February 2010 as a result of an interview that took place in January 2010. (ECF No. 58–1 at 5; Pl.'s Dep., 40:3–44:5.)

Beginning in February 2010, Plaintiff and Derks had one-on-one meetings on a near weekly basis until August 2010. (ECF No. 58–1 at ¶ 11.) Plaintiff in his deposition also identified impromptu one-on-one meetings. (See, e.g. , Pl.'s Dep., 54:1, 6.) The parties seem to agree that these were work-related meetings. (ECF 50–2 at ¶ 10; see, e.g. , Pl.'s Dep., 52:19–20, 54:6–18.) In his declaration, Derks stated that he "conducted regular one-on-one meetings with Plaintiff regarding project status, work performance, and expectations." (ECF No. 50–4 at ¶ 7.) Plaintiff's discussions of these meetings in his deposition are consistent with that description. (See generally Pl.'s Dep., 51:12–72:24.)³ Plaintiff's deposition testimony provided a non-exhaustive list of topics that were subjects of one-on-one meetings with Derks on unspecified days. (See Pl.'s Dep., 51:12–72:24.) These included Plaintiff's difficulties having his staff perform assignments, Plaintiff's alleged failure to provide Derks with requested data, and discussions of Derks's dissatisfaction with Plaintiff's responses to technical questions regarding information technology. (See Pl.'s Dep., 55:3–13, 55:14–56, 61:4–6, 63:3–15.) Plaintiff recounts that "in some instances [at these meetings Derks] would tell me I am not doing my job" and that this feedback was "a common thing every day." (Pl.'s Dep., 54:16–18, 60:6–9, 69:10–11.)

Plaintiff viewed Derks's criticism to have stemmed from alleged deficiencies on Derks's part, e.g., inexperience working with state and union employees, lack of technical understanding and difficulty controlling Derks's anger. (See, e.g. , Pl.'s Dep., 56:4–9, 61:4–9, 66:1–2.) Plaintiff viewed Derks's behavior, tone, word choice and questions during one-on-one meetings to be inappropriate, unprofessional and condescending. (See, e.g. , Pl.'s Dep., 54:9–11, 60:17–61:10, 72:1–22). Plaintiff described Derks's manner as "aggressive" and did not like Derks's "tone" and "demeanor" when Plaintiff perceived Derks to be "upset" or "something was wrong." (Pl.'s Dep., 54:9–18.) Plaintiff viewed some of the work related questions asked by Derks as condescending because they covered things Plaintiff "obvious[ly] ... should have known" from the qualifications Plaintiff listed on his résumé. (Pl.'s Dep., 60:17–61:10.) Plaintiff was particularly upset by the way he was told to "sit" during a specific one-on-one meeting and characterized this as a "racial comment" in his deposition. (Pl.'s Dep., 72:1–24 ("[T]here was something in his language and the way he said it, it was like he was talking to a dog."))

Other than the one instance of being told to "sit," Plaintiff did not identify any other specific instance of perceived "racial comments" made by Derks. (Pl.'s Dep., 72:1–24.) Additionally, Plaintiff stated that Derks had never discussed anyone else's race to Plaintiff's knowledge. (Pl.'s Dep., 72:17–20.) When asked generally what Plaintiff perceived as motivating Derks to ask Plaintiff "condescending" questions, Plaintiff responded that he did not know. (Pl.'s Dep., 65:3–66:2) ("I don't know what he saw in me.... [T]o answer your question why he acts like that.... I don't know what was going on with him.") When asked about Plaintiff's perception of Derks interaction with other employees, Plaintiff indicated that Derks was "forceful with everyone" and recounted that on one occasion members of Plaintiff's team were unwilling to complete a task for Derks because they were "not happy with [Derks's] way of talking to them or dealing with them...." (Pl.'s Dep., 55:21–22, 57:25–58:2.)

On or about May 7, 2010, Derks informed Plaintiff by email that he was "disappointed" in incomplete data received from Plaintiff. (ECF No. 58–1 at ¶ 15; ECF No. 50–4 at ¶ 10.)

On or about May 11, 2010, Derks reassigned procurement responsibilities from Plaintiff to another staff member. (ECF No. 58–1 at ¶ 16.) In his declaration Derks stated that this was done because "Plaintiff had not completed or managed the procurements[,] there were tight deadlines [and] Plaintiff's primary technical resource was frustrated with Plaintiff's leadership." (ECF No. 50–4 at ¶ 11.)

On or about May 11, 2010, Derks informed Plaintiff that EDD management was concerned Plaintiff was not technically qualified, and this perception was affecting Plaintiff's ability to lead his group. (ECF No. 58–1 at ¶ 17.) Derks offered to train Plaintiff on the technical environment of EDD. (ECF No. 58–1 at ¶ 17.)

On or about May 12, 2010, Plaintiff spoke with EDD's mediation group about Derks's "behavior," forwarding them a copy of an email⁴ about reassigning Plaintiff's procurement responsibilities and received a mediation form. (ECF No. 58–1 at ¶ 18; ECF No. 60–3 at ¶ 26.) In Plaintiff's deposition he describes speaking to an unnamed person at what appears to be EDD's mediation office⁵ regarding his "concerns about not having the opportunity to do my job and not doing the duties that I was hired to perform." (Pl.'s Dep., 75:12–19.)

On or about May 14, 2010, Plaintiff received his first probationary report with an overall rating of "unacceptable." (ECF No. 58–1 at ¶ 19.) The report detailed concerns about perceived deficiencies in Plaintiff's job performance. (ECF No. 58–1 at ¶ 19; ECF No. 50–4 at ¶ 13.) In his declaration Derks states that he prepared the report "several days" prior to Plaintiff receiving it and that it had been reviewed prior to it being given to Plaintiff. (ECF No. 50–4 at ¶ 13.) Rogers, an African American male, was the "Reviewing Officer" for Plaintiff's first probationary report. (ECF No. 58–1 at ¶ 6; ECF No. 60–3 at ¶ 27.) During the period that Derks was Plaintiff's immediate supervisor, Rogers was Plaintiff's second-line supervisor. (ECF No. 58–1 at ¶ 5.) Derks reported to Rogers. (ECF No. 58–1 at ¶ 7.) Rogers previously held Plaintiff's position before Plaintiff was hired. (ECF No. 58–1 at ¶ 3.) Rogers made the ultimate decision to hire Plaintiff. (ECF No. 58–1 at ¶ 4.)

On or about May 24, 2010, Derks had a one-on-one meeting with Plaintiff and provided him with a memorandum entitled "Weekly One–One Review." (ECF No. 58–1 at ¶ 20.) During the meeting and in the memorandum, Derks informed Plaintiff that Derks had determined that Plaintiff had not met certain expectations and deadlines described in the memorandum. (ECF No. 58–1 at ¶ 20.) Plaintiff disputes having failed to meet those expectations and deadlines. (ECF No. 58–3 at ¶ 29.) The parties disagree about whether Plaintiff failed to turn in certain time cards for Derks's review at this meeting. (ECF No. 58–1 at ¶ 20; ECF No. 58–3 at ¶ 29.)

On or about May 27, 2010, Plaintiff filed a complaint with EDD's EEO Office, alleging that he was experiencing discrimination based on race, as well as bias/harassment and retaliation. (ECF No. 58–1 at ¶ 21.) The complaint attached the first probationary performance evaluation, the May 24, 2010 memorandum from Derks, and a rebuttal to the probation report. (ECF No. 58–1 at ¶ 21.) On or about May 28, 2010, Plaintiff provided Derks with a "rebuttal" to the first probationary performance evaluation. (ECF No. 58–1 at ¶ 22.)

On or about June 1, 2010, Derks communicated...