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1

 In March 2003, the Customs Service and United States Border Patrol were consolidated into the

newly formed United States Customs and Border Protection. At that time, the position of “Customs

Inspector” was reclassified as a “Customs and Border Protection Officer.”

ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JERRY HUDSON,

Plaintiff,

v.

MICHAEL CHERTOFF, et al.,

Defendants.

 No. C05-01735RSL

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS AND FOR

SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the Court on defendants’ “Motion to Dismiss And/Or for

Summary Judgment” (Dkt. #19). Plaintiff, an African-American, alleges that he was terminated

from his position with United States Customs and Border Protection (“CBP”) because of his

race, his disability, and in retaliation for making complaints about his employer’s discriminatory

practices and failures to accommodate his disability. Defendants now move to dismiss

plaintiff’s claims. For the reasons discussed below, defendants’ motion is granted.

II. FACTUAL BACKGROUND

Plaintiff was hired as a Customs Inspector with the United States Customs Service1

 on

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ORDER GRANTING DEFENDANTS’ MOTION 

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December 23, 2002. Since this was his first position at CBP, plaintiff was appointed as a career

conditional employee, which means that he was subject to the completion of a one-year

probationary period. This probationary period “is the final, most significant step, in the hiring

process for new employees” and is used “to observe an employee’s performance and conduct for

the purpose of determining fitness for continued and long-term employment.” Declaration of

Marion J. Mittet (“Mittet Decl.”) (Dkt. #20), Ex. B. CBP policy states that “[a]n employee

serving a probationary or trial period, who has not achieved competitive status through a prior

permanent appointment may be terminated from his/her position with a simple written notice

that generally outlines the employee’s deficiencies and specifies a termination date.” Id. The

authority to terminate probationary policies “is delegated to the Directors of Field Operations,

Special Agents-in-Charge, and Principal Headquarters Officers.” Id. Plaintiff was terminated

pursuant to this policy just five days before the expiration of his probationary period. In the

letter of termination, Director of Field Operations for the Seattle Field Office, Thomas Hardy,

stated that the decision to terminate plaintiff was made for three reasons: (1) his failure to report

a bribery attempt in a timely fashion; (2) his inability to fully perform his duties due to his

medical condition; and (3) his unexcused absence from work. Mittet Decl., Ex. G. 

A. The Bribery Attempt

While on medical leave in August of 2003, plaintiff was approached by an acquaintance

and offered a bribe in return for his assistance in moving a large amount of money into Canada

from the United States. According to CBP policy at the time, any information relating to bribery

or attempted bribery of a CBP employee was to be “immediately reported by the recipient to the

Office of Internal Affairs.” Mittet Decl., Ex. L. In this instance, plaintiff reported the attempted

bribe to his supervisors, Michael Brydie and Kenneth Williams, on September 8, 2003, a week

after returning to work from medical leave. On the same day he relayed information about the

bribe attempt to supervisors, plaintiff notified Internal Affairs of the incident. At some point

thereafter, Internal Affairs conducted an investigation of the incident and referred the matter to

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ORDER GRANTING DEFENDANTS’ MOTION 

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CBP management for further action. Thomas Hardy received his copy of the Internal Affairs

report on December 12, 2003.

B. Plaintiff’s Knee Injury

Between February and April of 2003 plaintiff injured his knee while attending the

Customs Inspector Basic Training Course in Glynco, Georgia. Though plaintiff was able to

complete the course and return to work in Blaine, Washington, he soon re-aggravated his injury

by tearing his meniscus while on duty in June of 2003. Surgery was conducted to repair the tear

on August 8, 2003. Plaintiff was away from work while recovering until September 2, 2003.

On August 28, 2003, CBP’s Injury Compensation Coordinator sent a letter to Dr. Michael

Gannon, plaintiff’s surgeon, to determine what work restrictions would apply to plaintiff when

he returned to work. Mittet Decl., Ex. M. In response to the letter, Dr. Gannon submitted a note

indicating that plaintiff could engage in “progressive activity as comfort allows” over the next

two months and that plaintiff should be excused from work as needed to attend physical therapy

appointments. Mittet Decl., Ex. N. Dr. Gannon also submitted a “Duty Status Report”

indicating tasks which plaintiff could do “as comfort allows” and other tasks which plaintiff

would be able to do in full. Mittet Decl., Ex. O. Upon returning to work, plaintiff was to be

assigned to light duty pending his full recovery. Plaintiff contends that he was nevertheless

forced into doing work functions beyond light duty despite his doctors orders.

On October 8, 2003, plaintiff submitted a new note from Dr. Gannon indicating that his

work restrictions should be extended through December 7, 2003 with the “goal of return to full

duty at that time.” Mittet Decl., Ex. P. Dr. Gannon submitted an additional note on December

2, 2003, indicating that plaintiff’s light duty restrictions should be extended further, and that he

would re-evaluate plaintiff’s progress in six weeks. Mittet Decl., Ex. Q. A week later, plaintiff

sought permission to go on paid leave from December 9 through December 24, 2003 to further

treat his knee injury. Mittet Decl., Ex. R. To support this request, plaintiff submitted a note

from his primary care physician, Dr. Gidon Fame, which stated that plaintiff required the time

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ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 4

off to “attend phsyiotherapy.” Mittet Decl., Ex. S. Plaintiff was then asked to provide a note

from Dr. Gannon confirming his leave request, which he subsequently provided to CBP on

December 11, 2003. Mittet Decl., Exs. T, U (Dr. Gannon’s note simply stated “off work

12/9/03 – 12/24/03 following surgery.”). 

On December 16, 2003, Area Port Director Margaret Fearon issued a letter to plaintiff

indicating that his leave requests had “become confusing” and that the documentation he had

provided to support those requests was “contradictory.” Mittet Decl., Ex. V. As a result, she

denied his leave request, but indicated that he would be assigned to work a later shift doing

strictly administrative duties in order to accommodate his need to attend physiotherapy during

normal working hours. Id. The letter stated that the temporary assignment would begin on

December 17, 2003 and continue for six weeks until January 28, 2004 when it was expected that

plaintiff would provide CBP with a prognosis from his physician indicating his expected date of

return to full-time status. Id. 

On December 17, 2003, the day plaintiff’s new assignment was to begin, he failed to

arrive at work as scheduled. That same day he called supervisor Kenneth Williams to report that

he had been involved in a motor vehicle accident the day prior and attached a note from a

physician confirming that he had injured his lower back and his previously injured knee and that

he had been advised to rest and attend physiotherapy for two weeks. Mittet Decl., Ex. W. It

was the following day, December 18, 2003, that plaintiff was terminated.

C. The Complaint

Five days after his termination, on December 23, 2003, plaintiff sent an e-mail to the

EEO office in Seattle, Washington and indicated that he believed that he was improperly

terminated due to his race and his disability. Declaration of Hector Steele Rojas (“Rojas Decl.”)

(Dkt. #23), Ex. T. EEO Intake Officer Linda Barnett followed up on plaintiff’s complaint and

contacted plaintiff for an interview on December 29, 2003. Mittet Decl., Ex. H. Plaintiff filed a

formal complaint on February 26, 2004. Mittet Decl, Ex. I. 

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ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 5

On June 23, 2005, EEOC Administrative Judge Zulema Hinojos-Fall issued an order

finding that plaintiff had not established a prima facie case of race discrimination, because he

failed to show that he was treated differently than similarly situated employees outside his

protected class. Mittet Decl., Ex. J. Judge Hinojos-Fall also rejected plaintiff’s disability

discrimination claim after concluding that plaintiff had failed to establish that he was “disabled”

under the Rehabilitation Act. Id. Judge Hinojos-Fall did not address plaintiff’s retaliation

claims. 

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if “a reasonable jury could return a

verdict for the nonmoving party” and a fact is material if it “might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

evidence is viewed in the light most favorable to the non-moving party. Id. “[S]ummary

judgment should be granted where the nonmoving party fails to offer evidence from which a

reasonable jury could return a verdict in its favor,” Triton Energy Corp. v. Square D Co., 68

F.3d 1216, 1221 (9th Cir. 1995), or where there is a “complete failure of proof concerning an

essential element of the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). “The mere existence of a scintilla of evidence in support of the non-moving party’s

position is not sufficient.” Trinton Energy Corp., 68 F.3d at 1221.

B. Racial Discrimination

Under Title VII, disparate treatment of employees based on race is a violation of federal

law. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002). In

determining whether plaintiff’s Title VII claim can survive summary judgement, the Court

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ORDER GRANTING DEFENDANTS’ MOTION 

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utilizes the burden-shifting framework established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). See Aragon, 292 F.3d at 658-59. Under that

framework, plaintiff must first make out a prima facie case of unlawful employment

discrimination by demonstrating that: (1) he belonged to a protected class; (2) he was qualified

for his position; (3) he was subjected to an adverse employment action; and that (4) similarly

situated employees not in his protected class received more favorable treatment. Moran v. Selig,

447 F.3d 748, 753 (9th Cir. 2006). 

If plaintiff is successful in establishing a prima facie case, the burden shifts to defendants

“to articulate a legitimate nondiscriminatory reason for [their] employment decision.” Wallis v.

J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (quoting Lowe v. City of Monrovia, 775 F.2d

998, 1005 (9th Cir. 1985), as amended, 784 F.2d 1407 (9th Cir. 1986)). If defendants are able to

rebut the presumption of discrimination raised by the prima facie showing, plaintiff must then

demonstrate that defendants’ articulated reason is a pretext for unlawful discrimination. Aragon,

292 F.3d at 658.

“The requisite degree of proof necessary to establish a prima facie case for Title VII . . .

on summary judgment is minimal and does not even need to rise to the level of a preponderance

of a doubt.” Wallis, 26 F.3d at 889. Defendants do not challenge plaintiff’s showing of the first

three elements, but instead argue that plaintiff’s Title VII claim must fail because he has failed

to put forward evidence indicating that similarly situated individuals outside of his protected

class were treated more favorably than himself. To establish this fourth necessary element, a

plaintiff seeking relief “must demonstrate, at the least, that they are similarly situated to those

employees in all material respects.” Moran, 447 F.3d at 755. In disciplinary cases, where a

plaintiff claims that he was punished more harshly than a similarly situated employee based on a

prohibited reason, “a plaintiff must show that he is similarly situated with respect to

performance, qualifications, and conduct.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618

(7th Cir. 2000). “This normally entails a showing that the two employees dealt with the same

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ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 7

supervisor, were subject to the same standards, and had engaged in similar conduct without such

differentiating or mitigating circumstances as would distinguish their conduct or the employer’s

treatment of them.” Id. at 617-18. 

Plaintiff has failed to make such a showing. He attempts to meet his burden by

identifying two Caucasian probationary employees who he contends are similarly situated, yet

treated more favorably. Plaintiff provides little information about these individuals aside from

the fact that they were probationary employees who were not terminated despite being

disciplined for “DUI offenses.” Without additional information about these individuals, it is

impossible to determine if they were similarly situated to plaintiff with regard to qualifications

and performance or if they shared the same ultimate supervisor. The absence of this

information, on its own, is fatal to plaintiff’s race discrimination claim. See Grosz v. The

Boeing Co., 455 F. Supp.2d 1033, 1040-41 (C.D. Cal. 2006) (plaintiff’s failure to provide

“evidence of the job duties, responsibilities, or the type of . . . work being done” by allegedly

similarly situated employees entitles defendant to summary judgment on race discrimination

claim). Regardless, even if plaintiff had established that these employees were similarly

situated with regard to qualifications, performance and supervision, he would have still failed to

make a prima facie case of race discrimination because he has not established that these

allegedly similarly situated employees engaged in similar conduct. Defendants maintain that

plaintiff was terminated for his failure to report an attempted bribe in a timely fashion, his

inability to perform his job in an adequate fashion due to his knee injury, and his unexcused

absence from work on December 17, 2003. These offenses, especially when combined together,

are more serious and materially different than a DUI offense. At a basic level, an unreported

bribery attempt has the potential to directly implicate the security of the border and the integrity

of the CBP. A DUI offense, while serious, does not have similarly far reaching potential

consequences. Because plaintiff has failed to identify a truly “similarly situated” CBP employee

outside of his protected class who was treated more favorably than himself, the Court “need not

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ORDER GRANTING DEFENDANTS’ MOTION 

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address any of the underlying allegations of disparate treatment” or his pretext argument. Peele

v. Country Mutual Ins. Co., 288 F.3d 319, 331-32 (7th Cir. 2002). Defendants’ motion for

summary judgment on plaintiff’s race discrimination claim under Title VII is granted.

C. Rehabilitation Act Claim

Plaintiff also alleges that he was both terminated in violation of the Rehabilitation Act

and that defendants failed to make reasonable accommodations as required under the

Rehabilitation Act. To make a prima facie case under the Rehabilitation Act, a plaintiff must

demonstrate that (1) he is a person with a disability, (2) who is otherwise qualified for

employment, and (3) that he suffered discrimination because of his disability. Walton v. United

States Marshals Serv., No. 05-17308, 2007 WL 1815504, at *4 (9th Cir. June 26, 2007). As a

threshold question, the Court must first determine whether plaintiff’s knee injury qualifies as a

“disability” under the Rehabilitation Act. See Sanders v. Arneson Prods., Inc., 91 F.3d 1351,

1353-54 (9th Cir. 1996). “The Americans with Disabilities Act, whose standards of substantive

liability are incorporated in the Rehabilitation Act, defines ‘disability’ as: (A) a physical or

mental impairment that substantially limits one or more of the major life activities of such

individual, (B) a record of such an impairment, or (C) being regarded as having such an

impairment.” Walton, 2007 WL 1815504, at *4. For the reasons described below, the Court

concludes that plaintiff has failed to put forward any evidence indicating that his knee injury

constitutes a “disability” under the Rehabilitation Act or that his employer regarded the injury as

a disability. As such, defendants’ motion for summary judgment on plaintiff’s Rehabilitation

Act claims is granted.

For good reason, plaintiff makes little effort to argue that his knee injury actually

constituted a “disability” under the Rehabilitation Act. It is generally the case that “a temporary

injury with minimal residual effects cannot be the basis for a sustainable claim under the ADA.” 

Sanders, 91 F.3d at 1354; see also Johnson v. City and County of San Francisco, Nos. C 99-43-

4375, 2001 WL 263298, *4 (N.D. Cal. Mar. 8, 2001) (hernia is not a “disability” under the ADA

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ORDER GRANTING DEFENDANTS’ MOTION 

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because it is a temporary condition that can be corrected with surgery); 29 C.F.R. § 1630, App.,

§ 1630.2(j) (“temporary, non-chronic impairments of short duration, with little or no long term

or permanent impact, are usually not disabilities. Such impairments may include, but are not

limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza”). Plaintiff

has offered no evidence that would indicate his knee injury was anything more than a temporary

condition that would cease to hinder his ability to perform the functions of his job once his

treatment was complete. In fact, plaintiff’s physician indicated in October of 2003 that he

believed that plaintiff would be able to return to work full time in December of 2003. Mittet

Decl., Ex. P. Though he appears to have re-injured the knee in the December 2003 automobile

accident, his physician’s note indicates that his new injuries could be treated with antiinflammatory drugs and approximately two weeks of physiotherapy. Mittet Decl., Ex. W. In

short, plaintiff has put forward no evidence indicating that his knee injury was anything more

than a temporary injury of approximately six months duration. As such, he has failed to

establish that his injury fell within the Rehabilitation Act’s definition of “disability.” See

Sanders, 91 F.3d at 1354.

Even if plaintiff’s injury was not temporary, plaintiff’s claim would nevertheless fail

because he has made no effort to establish that his knee injury substantially limited his ability to

engage in any major life activity. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.

184, 195 (2002) (“Merely having an impairment does not make one disabled for purposes of the

ADA. Claimants also need to demonstrate that the impairment limits a major life activity” in a

“substantial” way). Major life activities include “caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). 

Though plaintiff has not specifically identified any of these major life activities as being

substantially limited, the Court will infer from the record that he is attempting to argue that his

knee injury substantially limited his major life activity of working. But to establish such a

limitation, plaintiff must demonstrate that he is “significantly restricted in the ability to perform

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2

 Plaintiff appears to believe that his supervisors’ awareness of his knee injury constitutes evidence

that they believed he was disabled. In doing so, plaintiff confuses the ordinary meaning of the word

“disabled” with the term of art contained in the Rehabilitation Act. See Sanders, 91 F.3d at 1354 n.2 (“a

person may be ‘disabled’ in the ordinary usage sense, or even for the purposes of receiving disability

benefits from the government, yet still not be ‘disabled’ under the ADA.”). 

ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 10

either a class of jobs or a broad range of jobs in various classes as compared to the average

person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). Further,

“[t]he inability to perform a single, particular job does not constitute a substantial limitation in

the major life activity of working.” Id. In the context of law enforcement, the relevant inquiry

is whether plaintiff is “unable to work in the field of law enforcement generally.” Papadopoulos

v. Modesto Police Dep’t., 31 F. Supp.2d 1209, 1220 (E.D. Cal. 1998). Plaintiff has not alleged

that he is unable to work in law enforcement generally, nor is there evidence to believe that

would be the case. Plaintiff has therefore failed to support any allegation that he is substantially

limited in his ability to engage in any major life activity.

Having failed to establish that he was in fact disabled, plaintiff devotes the majority of his

argument to the proposition that his employers at CBP regarded him as disabled. “A person is

regarded as being disabled if ‘(1) a covered entity mistakenly believes that a person has a

physical impairment that substantially limits one or more major life activities, or (2) a covered

entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or

more major life activities.’” Coons v. Sec’y of the United States Dep’t of the Treasury, 383 F.3d

879, 886 (9th Cir. 2004). By adding the “regarded as” definition of disability, Congress sought

to “protect people from discriminatory actions, based on employer’s myths, fears and

stereotypes about disability, which may occur even where a person does not actually have an

actual disability.” Papadopoulos, 31 F. Supp.2d at 1218. In support of this argument plaintiff

can only point to the fact that his supervisors were aware that he needed rehabilitation to treat

his injury.2

 This, however, is not sufficient to survive summary judgment. Instead, plaintiff

must advance evidence indicating that his supervisors believed that he had a “physical

impairment that substantially limits one or more major life activities.” Plaintiff, however, has

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3

 Because plaintiff has not advanced evidence to support his claim that he was “disabled” under

the Rehabilitation Act, it is unnecessary to reach the issue of whether he was provided with “reasonable

accommodation.” Sanders, 91 F.3d at 1353; see also Coons, 383 F.3d at 886 n.3.

ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 11

put forward no evidence indicating that anyone at CBP believed his injury to be anything other

than temporary. Without such evidence, his “regarded as disabled” theory of liability under the

Rehabilitation Act cannot survive summary judgment.3

 Thompson v. Holy Family Hospital, 121

F.3d 537, 541 (9th Cir. 1997).

D. Retaliation Claim

1. Exhaustion of Administrative Remedies 

Plaintiff also alleges that his employment was improperly “terminated because of his

complaints to his supervisors about racially discriminatory practices and tensions at the Blaine

post and also about violations of the Rehabilitation Act by management in violation of Title

VII.” Complaint at 8-9. Defendants argue that this Court lacks subject matter jurisdiction over

such a claim because plaintiff failed to exhaust his administrative remedies by not alleging

retaliation during EEO counseling process. See Lyons v. England, 307 F.3d 1092, 1103 (9th

Cir. 2002). “The administrative charge requirement serves the important purposes of giving the

charged party notice of the claim and ‘narrow[ing] the issues for prompt adjudication and

decision.’” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Laffey v.

Northwest Airlines, Inc., 567 F.2d 429, 472 n. 325 (D.C. Cir. 1976)). As such, “[i]ncidents of

discrimination not included in an EEOC charge may not be considered by a federal court unless

the new claims are ‘like or reasonably related to the allegations contained in the EEOC charge.’” 

Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1475-76 (quoting

Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir.

1984). In evaluating whether claims not included are sufficiently related to those made in the

EEO charge, “it is appropriate to consider such factors as the alleged basis of the discrimination,

dates of discriminatory acts specified within the charge, perpetrators of discrimination named in

the charge, and any locations at which discrimination is alleged to have occurred.” B.K.B. v.

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Maui Police Dep’t., 276 F.3d 1091, 1100 (9th Cir. 2002).

The Court’s exhaustion analysis thus requires that two questions be answered. First,

were plaintiff’s retaliation claims contained in his initial EEO complaint? Second, if they were

not, are his retaliation claims “like or reasonably related to the allegations contained in the

EEOC charge[?]” Green, 883 F.2d at 1475-76. The Court analyzes each retaliation claim in

turn.

With regard to plaintiff’s allegations that he was fired in retaliation for his complaints to

supervisors regarding violations of the Rehabilitation Act, it is apparent that such allegations

were either raised by plaintiff in the EEO process or, at the very least, reasonably related to his

allegations that he was terminated due to his disability. Plaintiff’s unsworn declaration and

formal complaint contain a multitude of references to concerns that he was terminated in

response to his efforts to obtain accommodations for his disability. For instance, in his unsworn

declaration, plaintiff stated that he made the decision to have a union representative accompany

him to meetings with Branch Chief Phillip Stanford in December 2003 because plaintiff believed

that management had begun to regard him as a “problem employee” that they “wished to get rid

of” due to his complaints regarding management’s treatment of his disability. Rojas Decl., Ex.

K at p. 6. In his formal complaint, plaintiff made additional references to Stanford’s adverse

reaction to his accommodation requests and alleged that he was fired in part out of Stanford’s

desire to “cover for” CBP’s “mishandling” of his “injury issues.” Rojas Decl., Ex. E-1 at p. 8. 

He went on to allege that Stanford “purposely singled [plaintiff] out, retaliated, harassed and

went out of his way to fire” plaintiff both because of his racist attitudes toward AfricanAmericans, but also because of his “mishandling of my disability issues.” Id. at 9. Though a

retaliation claim may not have been stated with the clarity that one would expect from a lawyer,

plaintiff is not a lawyer, and the language used by in his EEO charge is to be construed liberally

and “should not be held to the higher standard of legal pleading by which we would review a

civil complaint.” B.K.B. v. Maui Police Dep’t., 276 F.3d 1091, 1103 (9th Cir. 2002). The

Court therefore concludes that it has subject matter jurisdiction over plaintiff’s retaliation claim

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related to his efforts to obtain accommodations for his disability because such a claim is

contained in his initial complaint and is “reasonably related to [his] original theory of the case”

as laid out in the factual allegations of his charge. Id. at 1102.

Plaintiff’s retaliation claim involving his complaints to management about racially

discriminatory practices is a closer issue. In his response to defendants’ motion, plaintiff fails to

identify any statement in the EEO investigation record that would indicate that he had alleged

that he had been fired in retaliation for making complaints to his supervisors about racial

discrimination. Nor does he articulate any reason why such an EEO investigation of such

retaliation could “reasonably be expected to grow out of” his articulated claim of racial

discrimination. Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (quoting Green, 883 F.2d

at 1476). Though both his retaliation claim and his race discrimination claim relate to the racial

climate at Blaine, both claims are distinct and involve separate factual inquiries. Unlike

plaintiff’s retaliation claim relating to his requests for accommodation, the alleged “protected

activity” relevant to this claim does not involve facts that would necessarily be part of the EEO’s

underlying discrimination investigation. Because plaintiff has failed to identify any evidence in

the underlying EEO record that would indicate that he notified investigators that he had made

earlier complaints to supervisors relating to his concerns of racial discrimination, there is no

reason to believe that retaliation claims would be uncovered by the general investigation of

plaintiff’s race discrimination claim. The Court, therefore, concludes that plaintiff failed to

properly exhaust his administrative remedies with regard to this retaliation claim. See

McKenzie v. Illinois Dep’t of Trans., 92 F.3d 473, 482-83 (7th Cir. 1996) (dismissing retaliation

claim on similar grounds where retaliation claim could have been alleged in the EEOC charge,

but was not). Defendants’ motion to dismiss this claim is granted.

2. Rehabilitation Act Retaliation Claim

Having determined that the Court has subject matter jurisdiction over plaintiff’s

retaliation claim under the Rehabilitation Act, the next question is whether plaintiff’s claim can

survive summary judgment. See Coons, 383 F.3d at 887 (even when a plaintiff is deemed to not

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be a “qualified individual with a disability,” they may still pursue a retaliation claim under the

Rehabilitation Act provided that the employee sought accommodation in good faith); see also

Heisler v. Metro. Council, 339 F.3d 622, 630-32 (8th Cir. 2003). To make a prima facie

showing of retaliation, a plaintiff must show: “(1) involvement in a protected activity, (2) an

adverse employment action and (3) a causal link between the two.” Brown v. City of Tucson,

336 F.3d 1181, 1187 (9th Cir. 2003). To establish a causal link, “[t]he plaintiff must present

‘evidence adequate to create an inference that an employment decision was based on an illegal

discriminatory criterion.” Coons, 383 F.3d at 887 (quoting O’Connor v. Consol. Coin Caterers

Corp., 517 U.S. 308, 312 (1996)) (emphasis in original). Put differently, to establish causation,

plaintiff must show “by a preponderance of the evidence that engaging in the protected activity

was one of the reasons for [his] firing and that but for such activity [he] would not have been

fired.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 -1065 (9th Cir. 2002) (quoting

Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir.1986)).

If plaintiff can establish a prima facie case, the burden shifts to defendants to present

legitimate reasons for plaintiff’s termination. Id. If defendant presents legitimate reasons for

plaintiff’s termination, plaintiff then must demonstrate genuine issues of material fact as to

whether defendants’ explanation was a pretext for a retaliatory purpose. Id. 

The Court concludes that plaintiff has failed to establish a prima facie case of retaliation. 

While the Court agrees that requesting an accommodation under the Rehabilitation Act is a

protected activity, McAlindin v. County of San Diego, 192 F.3d 1226, 1238 (9th Cir. 1999), and

that plaintiff suffered an adverse employment action when he was terminated, plaintiff has failed

to establish a causal link between his protected activity and his termination. In support of his

contention that such a causal link exists, plaintiff relies solely on the temporal proximity

between his termination and his complaints. Response at p. 24. Though plaintiff is indeed

correct that causation “may be inferred from circumstantial evidence, such as the employer’s

knowledge that the plaintiff engaged in protected activities and the proximity in time between

the protected action and the allegedly retaliatory employment decision,” Yartzoff v. Thomas,

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809 F.2d 1371, 1376 (9th Cir. 1987), such proximity does not necessarily lead to the conclusion

that there is a causal connection between events in all circumstances. See Villiarimo, 281 F.3d

at 1065 (“timing alone will not show causation in all cases”). While it is true that plaintiff made

requests for accommodation in the weeks prior to his termination in December 2003, he first

began making requests for accommodation in early August of 2003, more than four months prior

to his termination. Gaps of four months time between the initiation of the protected activity and

the adverse employment action has been held by other courts to be too distant to establish a

prima facie case without other evidence. See Filipovic v. K & R Express Sys., Inc., 176 F.3d

390, 399 (7th Cir. 1999); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir.

1997) (four month time gap not enough without additional evidence to create inference of

causation). 

The Court believes the distance in time between plaintiff’s initial requests for

accommodation and his eventual termination is too great to create a causal link on its own. If

anything, the evidence demonstrates that plaintiff’s requests for accommodations, with some

exceptions, were met with efforts to accommodate plaintiff’s physical restrictions. Indeed, as

late as December 16, 2003, plaintiff was assigned to administrative duties in response to his

need to attend physiotherapy. It was only after plaintiff reached the end of his probationary

period and Thomas Hardy received the report from Internal Affairs on December 12, 2003,

detailing plaintiff’s failure to report the bribery attempt and his refusal to participate in the

investigation that plaintiff was terminated. If causation is to be inferred from timing, the natural

conclusion would be to correlate plaintiff’s termination to these events. 

Further, plaintiff has failed to put forward any evidence that would indicate that Thomas

Hardy, the CBP official ultimately responsible for his termination, was even aware of plaintiff’s

dissatisfaction with CBP over his perceived lack of accommodation. Without such evidence,

causation cannot be established. See Cohen v. Fred Meyer, Inc., 686 F.2d 793, (9th Cir. 1982)

(failure to establish relevant supervisor’s knowledge of protected activity is fatal to

establishment of a prima facie case). Though temporal proximity may in some instances be

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4

 As discussed earlier in the order, defendants have satisfied their burden in presenting legitimate

reasons for plaintiff’s termination. These reasons include plaintiff’s failure to timely report a bribe, his

inability to perform his position due to his medical condition and his unexcused absence.

ORDER GRANTING DEFENDANTS’ MOTION 

TO DISMISS AND FOR SUMMARY JUDGMENT- 16

sufficient to establish a causal connection between a protected activity and an adverse

employment decision, the Court concludes that such proximity is not sufficient, on its own, to

create such a connection in this case.

Even if the temporal proximity between plaintiff’s request for accommodation and his

termination was sufficient, on its own, to create a prima facie case for retaliation,4

 defendants’

motion for summary judgement would still be granted because plaintiff has failed to demonstrate

pretext “‘either directly by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.’” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000)

(quoting Tex. Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). When a plaintiff

attempts to prove pretext with circumstantial evidence, as is the case here, he must do so with

“specific” and “substantial” evidence “that tends to show that the employer’s proffered motives

were not the actual motives because they are inconsistent or otherwise not believable.” Godwin

v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). Plaintiff has made no effort to make

such a showing and instead relies solely on the temporal proximity between his termination and

his complaints. This does not constitute “specific” or “substantial” evidence that would lead a

rational trier of fact to conclude that CBP’s concerns about plaintiff’s response to the bribery

attempt, his failure to cooperate with a further investigation of the bribery attempt, and his

numerous absences were simply a “pretext” for CBP’s desire to retaliate against plaintiff for his

complaints regarding his perceived lack of accommodations. In the absence of such evidence,

defendants’ motion for summary judgment must be granted.

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IV. CONCLUSION

For all the foregoing reasons, defendants’ motion to dismiss and for summary judgment

(Dkt. #19) is GRANTED. 

DATED this 3rd day of August, 2007.

A

Robert S. Lasnik

United States District Judge

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