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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

GLORIA SALTER,

NO. CIV. S-04-29 LKK/DAD

Plaintiffs,

v. O R D E R

ANTHONY J. PRINCIPI; and

U.S. DEPARTMENT OF VETERAN’S 

AFFAIRS,

Defendants.

 /

Plaintiff, Gloria Salter, brings this suit against her

employer, the U.S. Department of Veterans Affairs, alleging a

failure to promote, hostile work environment, and retaliation.

This matter comes before the court on defendant’s motion for

summary judgment, or in the alternative, summary adjudication of

the issues. I decide the matter based on the papers and pleadings

filed herein and after oral argument. 

////

////

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I.

FACTS

Plaintiff is an African-American woman employed by the U.S.

Department of Veteran Affairs (“VA”) in Sacramento as a GS-11

social worker. Def.’s SUF at ¶ 1. In the Summer of 2000, the VA

announced a vacancy for a GS-12 social work coordinator. Id. at

¶ 4. Plaintiff, as well as two other people, applied for this

position. Id. Because plaintiff was eligible for a promotion, she

was to be given “first consideration,” pl.’s Compl, Ex. A, and was

accordingly interviewed for the position. Def.’s SUF at ¶ 6. 

At the same time, a vacancy existed for the Chief of Social

Work, a GS-13 position. Id. at ¶ 7. The two candidates considered

for the GS-13 position were Barbara Martin, a Caucasian woman, and

Janet Hargrove, an African-American woman. Id. at ¶ 8. Dr. Brian

O’Neill, chief of staff, was the selecting official and conducted

the interviews. Dr. O’Neill spoke with Martin only by telephone

and therefore did not know her race. Id. at ¶ 9. Dr. O’Neill

ultimately selected Hargrove for the GS-13 position. Id. at ¶ 10.

However, because he felt that Martin was so “outstanding,” he

inquired into other available positions. Id. The Chief of Human

Resources informed him that he could offer Martin the GS-12 social

worker position as a lateral transfer, since Martin held a GS-12

position at the Department of Defense in Germany. Id. Thereafter,

Martin was hired for the GS-12 position in Sacramento. 

On March 17, 2001, plaintiff was informed that she had been

denied and instead Martin was given the GS-12 position. Id. at 

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¶¶ 11, 13. Plaintiff filed an EEO discrimination claim on May 25,

2001, id. at ¶ 13, but because she missed the procedural 45-day

deadline for filing an EEO claim, the Office of Resolution

Management dismissed it. Pl.’s SUF at ¶ 12. In October of 2002,

however, the EEOC’s Administrative Law Judge reinstated the claim

and plaintiff obtained a waiver of the 45 day procedural

requirement. Id. 

Plaintiff alleges that as soon as Martin assumed her duties

in the GS-12 position, Martin began to create a hostile work

environment. Compl. ¶ 15. Her allegations are based on a number

of communications that Martin had with plaintiff regarding her work

performance. Def.’s SUF 29. According to the parties, although

there were no “set” performance standards, Hargrove Dep. at 38:1-5,

records showed that Martin was doing much more work than plaintiff.

Def.’s SUF at ¶ 29. Martin met with plaintiff on June 21, 2001,

and outlined tasks for plaintiff. Id. at ¶ 31. Plaintiff

responded by telling Martin to “stop harassing” her. Id. at ¶ 30.

According to plaintiff, every task given to her by Martin was

motivated by discrimination or retaliation. Id. at ¶ 34. For

example, she claims that every email sent by Martin, even if there

was nothing offensive or even substantive in the communication,

constituted discrimination and retaliation. Id. at ¶ 36. 

Plaintiff acknowledges, however, that Martin also communicated with

other social workers by email. Id. at ¶ 40. Moreover, when

plaintiff was given a memorandum about performance issues (without

any corresponding discipline), she was unable to address any

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inaccuracies when asked what was false or inaccurate about the

memorandum. Id. at ¶ 43. Plaintiff concedes that Martin also had

concerns about another employee’s performance, who is Caucasian,

and that Martin also gave her a performance memorandum. Id. at 

¶ 44. Plaintiff also received a mid-year evaluation which

contained both positive comments and areas for improvement. Id.

at ¶ 46. Plaintiff acknowledges that Martin met with all employees

under her supervision and also gave them a mid-year counseling.

Id. On October 23, 2003, the VA held a mandatory retreat in

Vacaville. Because plaintiff did not attend, she was charged AWOL

(absent without leave). Id. at ¶ 47. 

Plaintiff concedes that, although she was unhappy in her

assignment to an ambulatory care social work position under

Martin’s supervision, the placement decision was not motivated by

retaliation. Id. at ¶¶ 20-21. She also concedes that Hargrove and

Martin never discriminated against her before she contacted an EEO

counselor on May 25, 2001. Id. at ¶ 19. Martin never made any

comment to plaintiff that plaintiff considered racist. Id. at 

¶ 26. Hargrove, Martin and O’Neill never made any comments

regarding treating plaintiff differently because she had filed an

EEO claim. Def.’s SUF at ¶ 25. Plaintiff further concedes that

Dr. O’Neill never engaged in discrimination or retaliation against

her before selecting Martin for the GS-12 position or after

selecting Martin for the position. Id. at ¶ 16. Plaintiff has no

information that Dr. O’Neill ever had any discussions with Hargrove

or Martin about plaintiff, and did not give them any directions

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about what to do with plaintiff. Id. at ¶ 22.

II.

SUMMARY JUDGMENT STANDARDS UNDER FED. R. CIV. P. 56

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

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renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)); See also Headwaters Forest Defense v.

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County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

III.

ANALYSIS

A. FAILURE TO SELECT

Before reaching the merits of plaintiff’s failure to select

claim, I must first address the threshold issue of whether this

claim is time-barred. Under EEOC regulations, “[a]n aggrieved

person must initiate contact with a Counselor within 45 days of the

date of the matter alleged to be discriminatory or, in the case of

personnel action, within 45 days of the effective date of the

action.” 29 C.F.R. § 1614.105. The 45-day time limit is treated

as a “statute of limitations for filing suit and is subject to

waiver, equitable tolling, and estoppel.” Johnson v. United States

Treasury Dept., 27 F.3d 415, 416 (9th Cir. 1994) (quoting Miles v.

Dept. of the Army, 881 F.2d 777, 780 (9th Cir. 1989)); see also

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Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) (holding

that “filing a timely charge of discrimination with the EEOC is not

a jurisdictional prerequisite to suit in federal court, but a

requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling”). 

Although plaintiff filed her EEO claim after the 45-day

deadline, plaintiff’s claim was reinstated by the administrative

judge in December 2002. Pl.’s Opp’n Ex. A. The Hearing Order

states that “in addition to the issues identified in the Report of

Investigation, the hearing . . . will include complainant’s nonselection relating to the supervisory social worker position in

2000 . . . .” Id. The reinstatement of plaintiff’s claim plainly

constituted a waiver of the filing deadline. 

Further, contrary to defendant’s assertions that plaintiff

failed to exhaust her administrative remedies, Def.’s Repl. at 4,

the EEO issued a final agency decision denying her relief on the

failure to select claim. Pl.’s Opp’n Ex. A. Accordingly, this

Court may properly review plaintiff’s failure to select claim. 

1. Failure to Select in 2000 

In order to establish a prima facie case for discrimination

based on a failure to select, plaintiff must show that (1) she

belongs to a racial minority, (2) she applied and was qualified for

a job the employer was trying to fill, (3) she was subjected to

adverse employment action; and (4) that similarly situated

individuals who did not belong to her protected class were treated

more favorably. Aragon v. Republic Silver State, 292 F.3d 654, 658

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(9th Cir. 2002); McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). 

It is undisputed that plaintiff satisfies the first two

elements. The evidence also establishes that plaintiff suffered

an adverse employment action when she was not promoted to the GS-12

position. Further, it is undisputed that the GS-12 position was

given to Miller, a person outside of plaintiff’s protected class.

Because plaintiff has established a prima facie case,

defendant bears the burden of producing evidence of a legitimate,

non-discriminatory reason for its employment decision. Texas Dept

of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Here,

defendant asserts that its selection of Martin over plaintiff was

based on Martin’s qualifications and had nothing to do with the

race of the applicants. It asserts that Dr. O’Neill was very

impressed with Martin’s qualifications and that, after hiring

Hargrove for the GS-13 position and learning of the GS-12 vacancy,

he decided to hire Martin for this position. It is undisputed that

Dr. O’Neill’s interaction with Martin took place only by telephone

and that he did not know her race. The evidence also shows that

Martin already held a GS-12 position, so that her hiring was

lateral and not a promotion. Based on the foregoing, defendant

sufficiently establishes a non-discriminatory, legitimate basis for

the hiring of Martin and non-promotion of plaintiff. 

The question now becomes whether plaintiff can put forward any

evidence to dispute defendant’s proffered legitimate reasons for

its decision, thus creating a triable issue either as to pretext

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1 Plaintiff complains that the process by which Martin was

selected violated the merit system principles for promotions within

the Department. Pl.’s Opp’n. at 7. Assuming that is so, the fact

that Dr. O’Neill may have failed to follow internal policies does

not show that the non-discriminatory reason is pretextual. At

most, it shows that the hiring was procedurally defective. 

Plaintiff fails to show how this defect is proof of a

discriminatory motive. 

11

or as to defendant’s “true” motive. See Burdine, 450 U.S. at 256.

Plaintiff fails to even attempt to show that the defendant’s

alleged non-discriminatory reason is pretextual. Instead,

plaintiff states that the defendant has not presented a nondiscriminatory reason, and goes no further.1 Because, as explained

above, defendant has in fact met its burden, and plaintiff has not,

the court cannot find that there is a triable issue regarding this

cause of action. Accordingly, summary judgment must be granted in

defendant’s favor.

2. Failure to Select in 2003

Plaintiff alleges in her complaint that after Martin was

promoted and left her position in Sacramento, plaintiff again

applied for the GS-12 position and was again passed over.

Plaintiff contends that a less qualified Caucasian candidate was

selected for the position, and when the position became available

a second time, another less qualified Caucasian was selected

instead. While these allegations may support a discrimination

claim, plaintiff stated in her deposition that she never filed an

EEO claim as a result of those decisions, and that she does not

bring a cause of action for discrimination or retaliation based on

those facts. Pl.’s Dep. II at 42: 9-22. Instead, in her

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opposition brief, plaintiff argues that these allegations show that

there exists a triable issue of fact as to whether the VA violated

the merit system rules for the Department set forth under 5 U.S.C.

§ 2301(b). Such a claim is not found in her complaint, however,

and of course, she cannot now raise this cause of action at this

procedural posture. 

B. RACIAL HARASSMENT

Plaintiff also alleges that she was subjected to “pervasive

racial harassment” at the VA. Compl. at ¶ 23. A plaintiff may

prove racial harassment by demonstrating that an employer has

created a hostile or abusive work environment. Meritor Savings

Bank v. Vinson, 477 U.S. 57, 65-67 (1986). To prevail on a hostile

workplace claim premised on race, plaintiff must show: (1) that she

was subjected to verbal or physical conduct of a racial nature; (2)

that the conduct was unwelcome; and (3) that the conduct was

sufficiently severe or pervasive to alter the conditions of the

plaintiff’s employment. Vasquez v. County of L.A., 349 F.3d 634,

642 (9th Cir. 2003)(citing Gregory v. Windnall, 153 F.3d 1071, 1074

(9th Cir. 1998)). To demonstrate a hostile work environment, a

plaintiff must show that the environment is abusive from both a

subjective and an objective viewpoint. See Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21-22 (1993). In assessing the

objective hostility of a work environment, the court considers a

variety of factors, including “the frequency of discriminatory

conduct, its severity, whether it is physically threatening or

humiliating, or a mere offensive utterance, and whether it

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unreasonably interferes with an employee’s work performance.”

Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001).

As I explain below, nothing in the record indicates that

plaintiff was subjected to a hostile work environment. Plaintiff

concedes that neither Martin nor Dr. O’Neill ever made any comment

to plaintiff that she considered racist. Def.’s SUF at ¶ 26. She

did, however, consider Martin’s emails to be harassment, even if

there was nothing offensive or even substantive in the

communication. Id. at ¶ 36. She also considered Martin’s requests

and directives as harassment. Id. at ¶ 34. In contrast to a claim

for retaliation or failure to select, a claim for hostile work

environment requires verbal or physical conduct of a racial nature.

These communications, however, as conceded by plaintiff, did not

include even one “offensive utterance.” Accordingly, plaintiff’s

claim for a hostile work environment fails and must be ruled upon

in defendant’s favor. 

C. RETALIATION

Plaintiff also alleges that Martin and Hargrove retaliated

against her after they learned about her complaints to the EEOC.

Compl. at ¶ 27. In order to establish a prima facie case for

retaliation, plaintiff must show (1) involvement in a protected

activity, (2) an adverse employment action and (3) a causal link

between the two. Brooks v. City of San Mateo, 229 F.3d 917, 928

(9th Cir. 2000). “Thereafter, the burden of production shifts to

the employer to present legitimate reasons for the adverse

employment action. Once the employer carries this burden,

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plaintiff must demonstrate a genuine issue of material fact as to

whether the reason advanced by the employer was a pretext. Only

then does the case proceed beyond the summary judgement stage.”

Id. 

Plaintiff satisfies the first element because the filing of

an EEO complaint is a protected activity. Further, in the Ninth

Circuit, an undeserved negative performance review can constitute

an adverse employment decision. Brooks, 229 F.3d at 928. 

Plaintiff’s mid-year counseling report contained a negative

evaluation of plaintiff’s performance in key areas and plaintiff

was charged with AWOL when she failed to attend a mandatory retreat

in Vacaville. Def.’s SUF. at ¶¶ 46-47. Therefore, plaintiff has

arguably suffered an adverse employment decision. Plaintiff can

also establish a causal link between the filing of the EEO claim

and the negative reviews based on the proximity of the two actions.

See Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (Causal

link may be demonstrated by showing that “each action was

implemented close on the heels of the protected activity . . .”).

While a prima facie case can be made for retaliation,

defendant offers legitimate reasons for the negative reviews by

showing that they were not undeserved. Within the mid-year

counseling report, under a section entitled “Professional

Responsibilities/Relationships,” the report states that plaintiff

“demonstrated disregard for department needs when taking leave

precipitously.” Pl.’s Dep. II, Ex. 29. The report also indicates

that plaintiff’s resistance to meeting with her supervisor made it

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“impossible to maximize the energy and resources in the department

to provide optimal patient service.” Id. Plaintiff does not

dispute that she did not attend the mandatory retreat, Def.’s SUF

at ¶ 47, nor does she dispute defendant’s assertion that “despite

Martin’s repeated requests, [she] refused to meet with Martin to

discuss [her] work . . . performance.” Id. at ¶ 31. Because these

facts are undisputed, defendant has met its burden by providing a

legitimate basis for adverse employment actions. 

In response to defendant’s proffered legitimate reason for the

negative performance reviews, plaintiff asserts only that there

were no “set performance standards” with respect to patient

contacts. That claim is unresponsive to defendant’s stated reason,

however, since the performance review was largely based on

plaintiff’s failure to meet with her supervisor. Furthermore, the

lack of established performance standards does not preclude the

existence of non-written performance expectations of employees,

such as attendance and meeting with supervisors. Moreover,

plaintiff concedes that all employees under Martin’s supervision

were required to attend a mid-year counseling, and that Martin had

concerns and gave another non-protected group employee a memorandum

regarding her work performance. Id. at ¶ 46. Still, plaintiff

insists that others similarly situated to her were not subject to

the same negative performance reviews, but then does not present

any direct or circumstantial evidence to support her allegation.

////

////

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Accordingly, plaintiff fails to meet her burden to show that

defendant’s reasons for the acts complained of are pretextual and

summary judgment must be granted to defendant. 

IV.

CONCLUSION

For all the foregoing reasons, defendant’s motion for summary

judgment is hereby GRANTED and the Clerk is directed to CLOSE the

case.

IT IS SO ORDERED. 

DATED: August 8, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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