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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANTHONY ALONZO,

Plaintiff, No. CIV S 04-1622 GEB CMK 

vs.

ANTHONY PRINCIPI, Secretary

of Department of Veteran’s Affairs,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff, who is proceeding pro se and in forma pauperis, brings this action

seeking review of the Equal Employment Opportunity Commission’s (EEOC) decision granting

summary judgment on plaintiff’s allegations of discrimination and retaliation against the

Department of Veteran’s Affairs (VA). This matter was referred to the undersigned pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302(b)(21). 

///

///

///

///

///

///

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On December 12, 2005 at approximately 3:30 p.m, the day before the hearing on the 1

motion for summary judgment, plaintiff contacted the United States District Court in Redding to

state the he could not make it to the hearing and that he would be filing a motion for a

continuance by faxing it to the United States District Court in Redding. Plaintiff also filed the

motion in Sacramento on December 12, 2005. Plaintiff, however, did not properly serve his

motion to continue on opposing counsel. Plaintiff must include with every document filed in this

action a certificate stating the date an accurate copy of the document was mailed to defendant’s

attorney and the address to which it was mailed. See Local Rule 5-135(b) and (c). In a separate

order, the court has stricken plaintiff’s motion from the record for failure to serve the opposing

party. 

It is not clear from the filings for what CREC is an acronym. All filings and exhibits 2

simply refer to CREC, which is a facility within the VA’s Northern California Health Care

System.

2

Currently before the court is defendant’s motion for summary judgment. (Doc. 21.) 

Plaintiff has filed no reply or opposition to defendant’s motion. This matter came on for hearing

before the undersigned on December 13, 2005. Joseph E. Maloney, Assistant United States

Attorney, appeared telephonically for defendant. Plaintiff, Anthony Alonzo failed to appear. For 1

the reasons set forth below, the undersigned recommended granting defendant’s motion for

summary judgment at the December 13, 2005 hearing. 

I. Background

Plaintiff is a Hispanic male who was employed within the VA’s Northern

California Health Care System (NCHCS) as a social worker. Plaintiff filed four complaints of

discrimination with the EEOC, which allege retaliation and employment discrimination. Plaintiff

bases his complaints on dissatisfaction with his co-workers, supervisors and working conditions

at the Sacramento Mental Health Clinic, the David Grant Medical Center and CREC. Plaintiff 2

elected to have his claims heard before an administrative law judge (ALJ) of the EEOC. The VA

filed a Motion for Decision without a Hearing pursuant to 29 C.F.R. 1614.109(g). Plaintiff filed a

response , and the ALJ granted the VA’s motion. The Office of Employment Discrimination at

the VA accepted the ALJ’s findings and issued the VA’s final order. Plaintiff appealed to the

EEOC, which affirmed the VA’s final order. The EEOC denied plaintiff’s motion for

reconsideration, and plaintiff filed the instant action. 

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Plaintiff’s four complaints contain individual claims. Each claim is based on a

different set of material facts. For the sake of clarity, the undersigned discusses each claim with a

particularized set of undisputed facts relevant to that claim instead of setting forth a separate list

of undisputed facts. 

II. Discussion

A. Summary Judgment Standard

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 a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party

. . . always 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) (quoting Fed. R. Civ. P. 56(c)). “[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. Id. at 322. “[A] complete failure of proof concerning

an essential element of the nonmoving party’s case necessarily 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. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

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establish the existence of this factual dispute, the opposing party may not rely upon the

allegations or 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. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. 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);

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 verdict

for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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.” 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).

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. 

See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

477 U.S. at 255. 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. 

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

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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).

B. Plaintiff’s Complaint

Plaintiff seeks administrative review of an ALJ’s decision grant of summary

judgment in favor of the VA on plaintiff’s four complaints of employment discrimination and

retaliation. Defendant moves for summary judgment of plaintiff’s complaint on the grounds that

plaintiff cannot establish a prima facie case for any of his discrimination or retaliation claims. 

1. Complaint 96-2097

In his first EEOC complaint, plaintiff raised one claim–that he was discriminated

against when he was not hired for the collateral duty position of clinic manager at the VA’s

Sacramento Mental Health Clinic. The undisputed facts reveal that plaintiff was employed by the

VA as a social worker and assigned split duty stations at the David Grant Medical Center at

Travis Airforce Base and the Sacramento Mental Health Clinic. (Def.’s Mot. Summ. J., Ex. B.) 

Around January 1996, the NCHCS decided that each clinic should have a clinic manager. (See

id.) The NCHCS drafted a set of criteria for the clinic manager position. (See id.) The criteria

included, among other things, that the manager “should be a full time employee at one of the

facilities at which he or she was applying for,” and that “the manager must be a professional

provider in nursing or social work, psychology or psychiatry”. (See id. at 2097-5.) Plaintiff was

not a full-time employee at the Sacramento Mental Health Clinic, as required by the selection

criteria. (See id. at 2097-98.) Additionally, plaintiff was not certified by the State of California

as a Clinical Social Worker, which was also part of the selection criteria. (See id. at 2097-

100:16.) 

Between January and June of 1996, several e-mails were sent by a supervisor

concerning the manager position. (See id. 2097-5.) Plaintiff received the e-mail, and responded

to the e-mail, stating his interest in the position. (See id.) In late March or early April, a draft

announcement was sent to all employees listed on a distribution list. (See id. at 2097-0128.) (See

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id. at 2097-0023.) Plaintiff was not on the distribution list. (See id.) Plaintiff was on sick leave

from April 17, 1996, to May 7, 1996, for knee surgery. (See id. at 2097-0001.) After April 25,

1996, the applicants were reviewed and a selection was made. (See id. at 2097-0115.) Plaintiff

did not apply for the clinic manager position. (See id.)

Between May 10, 1996, and May 17, 1996, plaintiff returned from sick leave and

contacted his supervisor to inquire why he had not been sent the draft announcement of the

manager position. (See id. at 2097-0003.) The supervisor was unaware that plaintiff had not

been notified. (Def’s Mot. Summ. J., Ex. B., Ernstrom Affidavit at 2097-0102.) The supervisor

explained to plaintiff that he probably had not been notified because he was not a full time

employee at the Sacramento Clinic, which the selection criteria required, and had therefore been

overlooked. (See id.) On June 7, 1996, it was announced that Douglas Wood, Phd, who is not

hispanic, had been selected as the mental health clinic manager for the Sacramento Mental Health

Clinic. (Def’s Mot. Summ. J., Ex. B, Counselor’s Report at 2097-0021.) On August 13, 1996,

plaintiff filed a complaint of discrimination. (Def’s Mot. Summ. J., Ex. B. VA complaint at 2097-

0035.) After conducting several interviews, the EEO investigator concluded, in his investigative

summary and analysis, that plaintiff’s allegations were unsupported by the evidence. (Def’s Mot.

Summ. J., Ex. B at 2097-0008.) 

To establish a prima facie complaint in a case of non-selection for a position, a

plaintiff must either introduce direct evidence that an employer expressly discriminated against a

job applicant or present indirect evidence of discrimination. See Mondero v. Salt River Project,

400 F.3d 1207, 1211 (9th Cir. 2005.) To establish a case based on indirect evidence, a plaintiff

must show that (1) he was a member of a protected class; (2) he applied and was qualified for a

position which he sought; (3) despite being qualified for the position, he was rejected, and; (4)

after he was rejected, the employee continued to seek applications from people with comparable

qualifications. See id. 

Plaintiff presents no evidence of direct discrimination. He cannot establish a case

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based on indirect evidence as plaintiff cannot show that he was qualified for the collateral duty

position—plaintiff was neither a full time employee of the clinic, nor was he a licensed social

worker. See id. Accordingly, the undersigned finds that plaintiff has failed to present a prima

facie case of discrimination and recommends that defendant’s motion for summary judgment be

granted. 

2. Complaint 97-0231

In his second EEOC complaint, plaintiff raises eight claims: change of

performance rating, inquiries involving his duty hours, that he was discouraged from pursuing

claims, tardiness, a negative interoffice memorandum, position reassignment, physical office

space reassignment and emotional distress. 

Change of Performance Rating

Plaintiff alleges that he was discriminated against when his performance rating

was changed from the proposed rating of “outstanding” to “highly successful”. (Def’s Mot.

Summ. J., Ex. C. at 0231-0003.) The undisputed facts reveal that plaintiff received his

performance appraisal for the period of April 1, 1995, to March 31, 1996, on May 22, 1996. (See

id. at 0231-305.) Priscilla Tudor, who was a white female, evaluated plaintiff. (See id. at 0231-

0262.) Ms. Tudor proposed a performance rating of “outstanding” for plaintiff. (See id.) When

he received his performance rating, plaintiff noticed that he had received a rating of “highly

successful,” although Ms. Tudor had proposed a rating of “outstanding.” (See id. at 0321-0003.) 

Wayne Ernstrom, the Chief of Social Work Service, downgraded plaintiff’s rating. (See id. at

0231-0219.) Mr. Ernstrom downgraded plaintiff’s rating so that the rating would “reflect the

performance of other social workers who performed at the same level”. (See id. at 0231-0309.) 

Mr. Ernstrom had the authority, as the approval manager, to change employee

ratings. (See id. at 0231-0384.) Plaintiff was not the only employee who received a rating

different than the rating which was originally proposed. (See id. at 0231-0219.) For example, the

rating of Ruth Atkins was changed from “outstanding” to “highly successful” so that it “could

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become consistent with ratings of other social workers with the same performance”. (See id. at

0231-0316.) The ratings of Joan Zabih and Michaela Wilcznski were also changed to “highly

successful” from “outstanding” for the same reason. (See id. at 0231-0329.) Ms. Atkins and Ms.

Zabih were supervised by Ms. Tudor, and Ms. Wilcznski was supervised by Katrina Steer. (See

id. at 0231-0329.) All three of their ratings were changed by Mr. Ernstrom. (See id.)

After discovering that his rating had been changed, plaintiff contacted Ms. Tudor. 

(See id. at 0231-0010.) Ms. Tudor informed plaintiff that Mr. Ernstrom had the authority to

change ratings. (See id.) On December 2, 1996, an EEOC investigator concluded that the

evidence did not support plaintiff’s allegations that his rating was changed due to discrimination. 

(See id. at 0231-0015.) 

To establish a prima facie case of discrimination on his claim that his rating was

changed based on a discriminatory intent, plaintiff must show that (1) he is a member of a

protected class; (2) he was subject to an adverse personnel action; and (3) a similarly situated

person who was not a member of the protected class was treated differently. See Pejic v. Hughes

Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988.) Plaintiff bears the responsibility of showing

that similarly situated co-workers were treated differently. See Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 258 (1981). In order to be similarly situated, the comparative

employees must have been dealt with by the same supervisor, been subjected to the same

standards and have engaged in similar conduct. See Vasquez v. County of Los Angeles, 349 F.3d

634, 641 (9th Cir. 2003.) If plaintiff fails to identify similarly situated, non-minority employees

who were treated disparately, then his case must fail because the burden is on plaintiff to establish

a prima facie case. See McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973).

Here, the undisputed evidence reveals that plaintiff was treated in accord with

similarly situated, non-minority employees. Specifically, it is undisputed that other social

workers had their ratings adjusted from “outstanding” to “highly successful”. (Def.’s Mot.

Summ. J., Ex. B.) Additionally, plaintiff has failed to introduce any evidence which would show

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that the lowering of his rating resulted in any sort of adverse personnel action. See e.g., Brooks v.

City of San Mateo, 229 F.3d 917, 929-30 (9th Cir. 2000)(stating that in order to show adverse

personnel action, an employee must show a final or lasting action). The undersigned finds that

plaintiff has failed to establish any genuine issue of material fact showing that his rating was

changed due to his race. Accordingly, the undersigned recommends granting summary judgment

on this claim.

Duty Hours Inquiry

In his second claim in his second complaint, plaintiff alleges that Rene Marini,

who is a white female and the coordinator of the substance abuse and diagnosis program, caused

him emotional distress by requesting his schedule and duty hours during staff meetings on May

29th, June 5th, 19th and 23 of 1996. (Def.’s Mot. Summ. J., Ex. C at 0231-0005.) Plaintiff

appears to argue that Ms. Marini’s inquiry rose to the level of discrimination and harassment.

(See id.)

The undisputed facts reveal that Ms. Marini worked at the Sacramento Mental

Health Clinic, but she was not plaintiff’s direct supervisor. (See id. at 0231-0252.) Ms. Marini

was in charge of scheduling patients for plaintiff. (See id.) Ms. Marini inquired about

plaintiff’s duty hours because she was confused about his schedule. (See id. At 0231-0011,

0231-0255.) Ms. Marini was confused about plaintiff’s hours because, for several months,

plaintiff had arrived at work after her and left work before her. (See id. at 0321-0255:3.) 

Plaintiff admitted to the EEOC counselor investigating his claim that he usually arrived at work 

late and left early. (See id. at 0231-0024.) Plaintiff stated that he did this with the consent of the

social work service chief. (See id.)

In order to establish a claim of disparate treatment or retaliation, a plaintiff must

show, among other things, that he suffered an adverse personnel action. See McDonnell Douglas,

411 U.S. at 802, Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994.) The Ninth Circuit

has defined an adverse personnel action for purposes of a retaliation claim as “any adverse

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treatment that is based on retaliatory motive and reasonably likely to deter the charging party or

others from engaging in the protected activity”. Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th

Cir. 2000). The court determined that “lateral transfers, unfavorable job references, and changes

in work schedules” could reasonably deter employees from engaging in protected activities. Id. at

1243. An employee must suffer a final or lasting adverse action in order to establish a prima facie

case of employment discrimination under Title VII. See Brooks, 229 F.3d at 929-30. Another

district court has found that an inquiry about an employee’s schedule is not an adverse personnel

action. See Mendoza v. Sysco Food Servs., 337 F.Supp. 2d 1172, 1192 (D.C. Ariz. 2004)(finding

no adverse action and granting summary judgment where plaintiff’s supervisor questioned

plaintiff regarding a vacation return date). 

Here, plaintiff cannot show that he suffered any adverse employment action

stemming from Ms. Marini’s inquiry. Subjectively, plaintiff was not deterred from engaging in

protected activity because he continued to file claims after Ms. Marini’s inquiry. Objectively, no

reasonable employee would be deterred from engaging in protected activity because a co-worker

inquired about his duty hours. Additionally, plaintiff cannot show that Ms. Marini’s inquiry

resulted in a decrease to his pay, a transfer or a change to his work schedule. See Ray, 217 F.3d

at 1242-43. In short, plaintiff can show no adverse action because he can show no lasting or final

effect on his employment. See Brooks, 229 F.3d at 930. Accordingly, the undersigned finds that

plaintiff has not established a prima facie case of discrimination or retaliation and recommends

granting summary judgment on this claim. 

Discouraged from Pursuing Claims

Plaintiff’s third claim in his second complaint is that Greg Harms, EEOC

Counselor, and Rebecca Drummond, EEOC Program Manager, discouraged him from pursuing

discrimination claims. (Def.’s Mot. Summ. J., Ex. C at 0231-0008.) 

The undisputed facts reveal that plaintiff met with Mr. Harms on July 5, 1996,

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This claim is plaintiff’s first complaint and is referred to in this opinion as plaintiff’s 3

collateral duty claim. 

11

regarding plaintiff’s discrimination claim based on failure to promote. (See id. at 0231-0297.) 3

In addition to the failure to promote claim, plaintiff complained that he had been treated poorly

and that he did not get along with his co-workers at the Sacramento Mental Health Clinic. 

(See id. at 0231-0298.) Mr. Harms asked plaintiff for specific times and dates concerning these

complaints, but plaintiff responded only with vague and conclusory statements. (See id.) 

Because plaintiff could not cite specific facts or events to support his other claims, Mr. Harms

considered only his failure to promote claim. (See id.) Mr. Harms never told plaintiff that he

would refuse to accept plaintiff’s claims, only that he required more information to conduct an

investigation. (See id. at 0231-0301-02.) 

When Ms. Drummond received plaintiff’s formal complaint, she noticed that

plaintiff had included approximately eight additional issues in his formal complaint that were not

included in the fact finding conducted by Mr. Harms. (See id. at 0231-0278.) Ms. Drummond

sent plaintiff a letter requesting more information about plaintiff’s claims. (See id.) Plaintiff’s

response was cursory and non-responsive. (See id.) On September 10, 1996, Ms. Drummond

sent plaintiff a letter explaining her acceptance of plaintiff’s failure to promote claim. (See id. at

0231-0281.) On October 1, 1996, Ms. Drummond sent plaintiff an e-mail telling him that he

could include additional claims with the failure to promote claim. (See id. at 0231-0284.) 

Plaintiff responded that he did not want to combine his complaints and that he would be opening

a new claim. (See id. at 0231-0285.) 

An adverse employment action is a necessary element of a prima facie

discrimination or retaliation claim. See McDonnell Douglass, 411 U.S. at 802. Plaintiff cannot

show that the actions of Mr. Harms or Ms. Drummond had a lasting or final effect on his

employment–the action did not change plaintiff’s pay or working hours and it did not deter him

from filing future discrimination complaints. See id. Additionally, the Ninth Circuit has stated

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that the conduct of an EEOC Counselor or claims manager does not constitute an adverse

employment action. See Ward v. EEOC, 719 F2d 311, 312-13 (9th Cir. 1983). Title VII does

not provide plaintiff with either an express or an implied cause of action against the EEOC to

challenge its investigation or processing of a complaint. See id. at 313. Accordingly, the

undersigned recommends that summary judgment be granted on this claim. 

Denial of Sufficient Time to Notify Representative

In his fourth claim in his second complaint, plaintiff alleges that he was subjected

to harassment and reprisal as a result of being denied sufficient time to notify his representative of

a scheduled meeting with the clinic manager, Dr. Wood, and the substance abuse coordinator, Ms.

Marini. (Def.’s Mot. Summ. J., Ex. C at 0231-0005.) Dr. Wood requested a meeting to try to

resolve conflict between plaintiff and Ms. Marini. (See id. at 0231-0011.) During the week of

July 22, 1996, a meeting was scheduled for August 1, 1996. (See id. at 0231-0107.) Plaintiff

believed that the time of the meeting was unconfirmed until he received an e-mail regarding the

meeting from Dr. Wood on July 31, 1996. (See id. at 0231-0106, 0131, and 0132.) Plaintiff sent

an e-mail stating that he and his union representative would not attend the meeting because he

had been unable to schedule the representative for an unconfirmed meeting. (See id. at 0231-

0005.)

Dr. Wood did meet with plaintiff at 7:30 am on August 1, 1996. (See id. at 0231-

0106.) This is apparently the meeting that plaintiff refers to in his complaint. When Dr. Wood

spoke with plaintiff he expressed concern about a medical excuse from plaintiff’s therapist stating

that plaintiff could not work at the clinic. (See id.) Dr. Wood also asked plaintiff why he was at

the clinic if it was too stressful for him. (See id.)

Based on the undisputed facts, plaintiff has failed to establish a prima facie case of

disparate treatment or retaliation because plaintiff has failed to establish that he was subject to an

adverse employment action as a result of his conversation with Dr. Wood. See McDonnell

Douglas, 411 U.S. at 802. Adverse personnel actions are actions that materially affect

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compensation, terms, conditions or privileges of employment. See Little v. Windermere

Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002). Adverse personnel actions should not be

deemed so broad as to impose an intangible state of mind, i.e., “worry that employers will be

paralyzed into inaction once an employee has lodged a complaint under Title VII”. See Brooks,

229 F.3d at 928. Because plaintiff cannot show that his conversation with Dr. Wood materially

affected compensation, terms, conditions or privileges of employment, he cannot establish that he

was subject to an adverse employment action. Accordingly, the undersigned finds that plaintiff

has failed to establish a prima facie case of either discrimination or retaliation and recommends

that summary judgment be granted on this claim. 

Tardiness and Early Departure Memorandum

In his fifth claim in his second complaint, Plaintiff claims that Ms. Marini, the

substance abuse coordinator, inflicted racial discrimination, reprisal, intentional infliction of

emotional damage and harassment upon plaintiff by sending a memorandum to Dr. Wood about

plaintiff’s work performance, which expressed concern about plaintiff getting to work and leaving

work on time. (Def.’s Mot. Summ. J., Ex. C. at 0231-0008.) 

The undisputed evidence reveals that, on July 18. 1996, Ms. Marini sent a

memorandum to Dr. Wood about plaintiff’s working hours that summarized a discussion that she

had with plaintiff concerning, among other things, getting to work on time and leaving on time. 

(See id. at 0231- 0332.) Ms. Marini was not Plaintiff’s supervisor. (See id. at 0231-0236.) Dr.

Wood never mentioned the memorandum to plaintiff. (See id. at 0231-0242.) 

Plaintiff cannot show that the memorandum resulted in an adverse employment

action since no action ever occurred as a result of the memo. See Little, 301 F.3d at 970. Dr.

Wood never mentioned the memorandum to plaintiff. The memorandum itself cannot be

considered an adverse personnel action. See Keyser v. Sacramento City Unified School Dist.,

265 F.3d 741, 752, n. 4 (9th Cir. 2001)(stating that action that never came to fruition is not even a

potentially viable adverse action.). Accordingly, plaintiff cannot establish a prima facie case of

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discrimination or retaliation on this claim. The undersigned recommends granting summary

judgment. 

Reassignment

In his sixth claim in his second complaint, plaintiff alleges that he was harassed

when management assigned plaintiff to Sacramento Mental Health Clinic on a full time basis. 

Def.’s Mot. Summ. J., Ex. C at 0231-0026.) (Plaintiff had been working half time at Sacramento

Mental Health and half time at David Grant Hospital. (See id.) In June 1996, plaintiff inquired

about returning to the facility where he worked prior to working his split shift between David

Grant and Sacramento. (See id. at 2031-0120.) Plaintiff was told that the only substance abuse

social work positions available were in Sacramento and in Redding. (See id. at 2031- 0121.) 

Plaintiff sent a letter in July 1996 requesting that he not be assigned to work in Sacramento due to

mental and emotional stress. (See id. at 2031- 0125.) In August 1996, plaintiff sent a letter

expressing an interest in full time assignment at David Grant. (See id. at 2031- 0138.)

In late August, plaintiff was informed that he was going to be moved to the

Sacramento Clinic full time. (See id. at 2031- 0139.) Plaintiff’s pay remained unaffected by the

proposed move. (See id. at 2031- 0232.) Because the Sacramento pay was lower than the pay in

the Bay Area, plaintiff was moved up a step. (See id.) As a result of an accounting/clerical error

in Human Resources, plaintiff did not initially receive the correct pay, but that was later corrected

and plaintiff was paid retroactively. (See id.) Plaintiff never actually worked full time at

Sacramento Health Clinic. (See id. at 2031- 0158.) He instead took a position in San Francisco

(See id. at 2031- 0116). 

Plaintiff cannot establish a prima facie case of employment discrimination or

retaliation. A proposed action that does not come to fruition is not an adverse personnel action. 

See Keyser, 265 F.3d at 752 n. 4. An employee must suffer a lasting effect in order to create a

prima facie case of discrimination under Title VII. See Brooks, 229 F.3d at 929-30. Here,

plaintiff cannot show that the proposed move changed any material aspect of his employment–his

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pay and working hours remained the same. See Burlington Indus. v. Ellerth, 524 U.S. 742, 761

(1998)(stating that lateral transfer without addition of different job responsibilities was not and

adverse action). Additionally, plaintiff cannot show that the proposed move to the Sacramento

Clinic was an adverse action because it never came to fruition. See Keyser, 265 F.3d at 752 n. 4. 

Accordingly, the undersigned recommends that summary judgment be granted on this claim. 

Office Assignment

In his seventh claim in his second complaint, plaintiff claims that he was not given

permanent office space at Sacramento Mental Health because he was Hispanic. (Def.’s Mot.

Summ. J., Ex. C at 0231-0026.) He claims that this was employment discrimination and

retaliation. (See id.)

The undisputed facts reveal that plaintiff did not have his own office at

Sacramento Mental Health Clinic. (See id. at 2031- 0167.) Plaintiff was told that an office would

be available for him when he started working at the Clinic on a full time basis. (See id. at 2031-

0140.) Other employees, who, like plaintiff, were part-time employees at the Clinic, did not have

their own office space. (See id. at Ex D at 0420-0157.)

Plaintiff cannot establish a prima facie case of employment discrimination or

retaliation on this claim. To show disparate treatment, plaintiff must establish that similarly

situated employees were treated differently. See McDonnell Douglas, 411 U.S. at 802. Here,

plaintiff cannot show that similarly situated employees were treated differently. Instead, the

evidence shows that plaintiff was treated the same as other part-time employees. (Def.’s Mot.

Summ. J., Ex. D at 0420-0157.) To establish a retaliation claim, plaintiff must show that his lack

of office space was the result of an adverse employment action. See Brooks, 229 F.3d at 929-30.

Plaintiff’s office situation did not change when he filed his EEOC complaint. Instead, after filing

the complaint, plaintiff was given some limited storage space. (Def.’s Mot. Summ. J., Ex. C at

2031-0167.) Because plaintiff cannot establish a claim of either discrimination or retaliation, the

undersigned recommends granting summary judgement on this claim. 

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Emotional Distress

In his final claim in his second complaint, plaintiff asserts that the conduct of his

peers and supervisors caused him to suffer emotional distress. Plaintiff cannot assert the

common law tort of intentional infliction of emotional distress (IIED). The claims and remedies

available under Title VII are the sole and exclusive remedies available to federal employees. See

Brown v. GSA, 425 U.S. 820 (1976). Accordingly, summary judgment is appropriate on any

separate intentional infliction of emotional distress claims that plaintiff seeks to bring. 

3. Complaint 97-0420

In his third EEOC compliant, plaintiff raises six claims: change of duty hours, use

of Triage room, an October 30, 1996 meeting, a leave request for work related stress, failure to

include him in a tour; and not being informed about a co-worker’s leave of absence. 

Change of Duty Hours

In his first claim in his third complaint, plaintiff states that he was discriminated

against when his duty hours were changed from 7:00 a.m. to 5:30 p.m. to 7:30 a.m. to 6:00 p.m.

(Def.’s Mot. Summ. J., Ex. D at 0420-0003.) Plaintiff believes that his hours were changed

because he was Hispanic. (See id. at 0420-0011.) The undisputed facts show that plaintiff’s

schedule was changed because the supervisor could not justify him coming in at seven and not

seeing a patient for an hour. (See id. at 0420-0114, 0104.) Plaintiff’s hours were changed to

better facilitate patient care. (See id.) This change in hours was to take place when plaintiff began

working at Sacramento Mental Health Clinic full time. (See id. at 0420-0072.) Because plaintiff

never worked at the Sacramento facility full time, these changes were never implemented. 

(See id. at 0420-0158.)

Plaintiff cannot establish a prima facie case of employment discrimination or

retaliation. A proposed action that does not come to fruition is not an adverse personnel action. 

See Keyser, 265 F.3d at 752 n. 4. Here, plaintiff’s proposed change of duty hours never occurred. 

Accordingly, the undersigned recommends summary judgment on this claim. 

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Use of the Triage Room

Plaintiff’s second claim of his third complaint alleges that he was moved out of the

Triage room at Sacramento Mental Health Clinic because he was Hispanic. (Def.’s Mot. Summ.

J., Ex. D at 0420-0011.) The evidence shows that plaintiff was asked to leave the Triage room

because a co-worker had an appointment with a dangerous patient who he had never met. (See id.

at 0420-0147.) The patient had a history of violence and homicidal behavior. The Triage room

was equipped to handle such a patient. (See id.) The undisputed facts also show that other parttime workers were often required to change offices. (See id. at 0420- 0118, 0157.)

Plaintiff cannot establish a prima facie case of discrimination based on his being

moved from the Triage room. The undisputed evidence shows that plaintiff was treated no

differently from similarly situated non-minority workers. No part-time worker at the Sacramento

Mental Health Clinic had a fixed office space. See McDonnell Douglas, 411 U.S. at 802. 

Additionally, plaintiff cannot show any adverse employment action as he cannot show that any

material terms or conditions of his employment were altered by being asked to move from the

Triage room. See Little, 301 F.3d at 970. Accordingly, the undersigned recommends that

summary judgment be granted on this claim.

October 30, 1996 Meeting Regarding the Triage Room

In his third claim of his third complaint, plaintiff alleges that he was harassed

because of a meeting that occurred on October 30, 1996 between plaintiff and Dr. Wood, a

supervisor, about the Triage room. (Def.’s Mot. Summ. J., Ex. D at 0420-0003.) Dr. Wood

informed plaintiff that Dr. Wood was upset that plaintiff had sent an e-mail message to several

employees about the Triage room incident. (See id. at 0420-0012.) Dr. Wood told plaintiff that

plaintiff should have discussed sending the e-mail with him prior to sending it. (See id.) Dr.

Wood told plaintiff that plaintiff had the right to go above Dr. Wood, but that it was preferable to

go through him initially. (See id. at 0420-0115.)

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In order to establish a prima facie case of discrimination or retaliation, a plaintiff

must demonstrate that he suffered from an adverse employment action. See Little, 301 F.3d at

970. The Ninth Circuit has stated that only “non-trivial” employment actions that would deter

reasonable employees from complaining about Title VII violations will constitute actionable

retaliation. See Brooks, 229 F.3d at 928. Actions which do not materially affect the

compensation, terms or conditions of employment are trivial. See Little, 301 F.3d at 970. Here,

plaintiff has provided no evidence that Dr. Wood’s inquiry resulted in any type of adverse affect

as to material conditions or terms of his employment. Dr. Wood did not suggest that plaintiff stop

raising concerns, but instead suggested that it would be preferable that plaintiff discussed them

with him initially, rather than pursuing them through a superior. (Def.’s Mot. Summ. J., Ex. D at

0420-0115.) Because plaintiff’s conversation with Dr. Wood does not constitute an adverse

employment action, the undersigned recommends granting summary judgment on this claim. 

Leave Request for Work Related Stress

Plaintiff’s fourth claim in his third complaint is that Dr. Wood would not sign his

request for sick leave since plaintiff was requesting leave for work related stress. (Def.’s Mot.

Summ. J., Ex. D at 0420-0003.) The undisputed facts show that Human Resources had instructed

that leave requests for work related stress not be accepted if a “Report of Occupational

Illness/Disease form” had not been filed. (See id.) Plaintiff choose not to file this form. (See id.)

When plaintiff subsequently submitted a leave request that omitted the reference to work related

stress, his leave was granted. (See id. at 0420-0700.)

In order to prevail on his claim, plaintiff must establish that he was treated

differently than other similarly situated employees. See McDonnell Douglas, 411 U.S. at 802 As

plaintiff cannot demonstrate that similarly situated employees were treated differently, nor can he

demonstrate that the denial of leave for “work related stress” materially affected the terms and

conditions of his employment. Accordingly, he cannot establish a prima facie case of

discrimination. The undersigned finds that summary judgment is appropriate on this claim. 

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Exclusion from Tour of Substance Abuse Facilities

Plaintiff’s fifth claim in his third complaint is that he was not included in a

substance abuse facility tour. (Def.’s Mot. Summ. J., Ex. D at 0420-0012.) The tour was

conducted by Ms. Marini. (See id.) Plaintiff does not know the exact date of the tour; whether

he was working in Sacramento at the time; or whether he would have been available to attend had

he been notified. (See id.) Ms. Marini stated that she never considered asking plaintiff to go

because he had already been to all the facilities. (See id.)

In order to establish a prima facie case of discrimination or retaliation, plaintiff

must demonstrate an adverse employment action. See Little, 301 F.3d at 970. The Ninth Circuit

has stated that “mere ostracism by co-workers does not constitute an adverse action.” Ray, 217

F.3d at 1241. Plaintiff does not show that the failure to include him in the tour affected material

conditions of his job in any way. Instead, the undisputed evidence shows that plaintiff had

already visited all the substance abuse facilities. Accordingly, the undersigned recommends that

summary judgment be granted on this claim. 

Failure to Inform Plaintiff of Ms. Marini’s Leave of Absence

Plaintiff’s sixth claim in his third complaint is that he was discriminated against

because his co-worker took leave without informing him. (Def.’s Mot. Summ. J., Ex. D at 0420-

0011.) Plaintiff felt that his co-worker should have met with him to update him on her patients

since he would have to see them while she was out. (See id.) However, when plaintiff took sick

leave, he did not confer with anyone regarding his patients. (See id. at 0420-0158.) To dignify

plaintiff’s claim would also appear to place a burden on all those falling ill to stay well long

enough to educate their co-workers. 

As noted in the above claim, “mere ostracism by co-workers does not constitute an

adverse action.” Ray, 217 F.3d at 1241. Plaintiff must show that the co-worker’s failure to

include him materially affected the terms or conditions of his employment. See Little, 301 F.3d at

970.) Here, plaintiff cannot show any genuine issue of fact as to whether Ms. Marini’s actions

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It is not clear from the court filings for what this acronym stands. An internet search 4

revels that it stands for the Center for Rehabilitation and Extended Care. 

See www.visn21.med.va.gov/CARES/VISN21FactSheet.htm

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adversely affected him. Accordingly, the undersigned recommends granting summary judgment

on this claim.

 4. Complaint 98-0973

In his fourth complaint, plaintiff raises five claims: reassignment due to

confrontation, not being promoted, harassment from reprimand, hostile work environment and

emotional distress. 

Reassignment Due to Confrontation

In the first claim of his fourth complaint, plaintiff states that his reassignment from

“CREC” to David Grant hospital was the result of discrimination or retaliation. (Def.’s Mot. 4

Summ. J., Ex. E.) The undisputed facts show that, although plaintiff did make some disparaging

statements about a co-worker at a meeting, he had been requesting a transfer to David Grant for

almost a year. 

In order to establish a prima facie case of discrimination or retaliation, plaintiff

must demonstrate an adverse employment action. See Little, 301 F.3d at 970. A lateral transfer

that does not result in a reduction in pay or different job duties is not an adverse personnel action. 

See See e.g. Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998). As plaintiff cannot show

any adverse personnel action, he cannot establish prima facie evidence of discrimination. The

undersigned recommends granting summary judgment on this claim.

Failure to be Promoted

In his second claim of his fourth complaint, plaintiff alleges that the VA changed a

classification of a coordinator position to a regular social worker position, eliminating a

promotional opportunity for plaintiff. (Def.’s Mot. Summ. J., Ex. E at 0973-0005.) Plaintiff

believes that the decision was made to deprive him of promotional opportunities. (See id. at

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0973-0072.) There were no vacancies in the NCHCS. (See id. at 0973-0109.) 

In order to establish a prima facie case of discrimination or retaliation, plaintiff

must demonstrate an adverse employment action. See Little, 301 F.3d at 970. Obstructing an

employee from consideration for a vacancy is actionable under Title VII. See Bouman v. Block,

940 F.2d 1211, 1229 (9th Cir. 1991). The closing of a job to plaintiff and the loss of opportunity

to even compete for the position can establish an adverse employment action. See id. Here,

however, plaintiff makes no showing that he was prevented from applying for any position. He

makes no showing that he even applied for any positions. He provides no evidence that any

vacancies were available. Accordingly, plaintiff fails to establish a prima facie case of

discrimination. The undersigned recommends granting summary judgment on this claim. 

Harassment from Reprimand

In his third claim of his fourth complaint, plaintiff alleges that he received a letter

of reprimand which questioned his abilities. (Def.’s Mot. Summ. J., Ex. E at 0973-0065.) The

undisputed facts show that the alleged letter was a memorandum written at plaintiff’s request. 

(See id. at 0973-0108; 0154.) Plaintiff requested that a memorandum be written stating the

background for plaintiff’s transfer to David Grant. (See id.) The letter was not disciplinary.

(See id. at 0973-0154.) It recognized that plaintiff’s continued work at CERC did not facilitate a

team relationship and pointed out that plaintiff had requested a transfer closer to his home and

that the transfer met that request. (See id.) Plaintiff has no formal reprimand in his files. (See id.

at 0973-0064.) 

In order to establish a prima facie case of discrimination or retaliation, plaintiff

must demonstrate an adverse employment action. See Little, 301 F.3d at 970. Plaintiff has not

demonstrated any adverse personnel action as a result of the memorandum. Further, an employer

complying with a request at the behest of the employee could hardly be considered an adverse

personnel action. See e.g., Krause v. City of La Crosse, 246 F.3d 995, 1001 (7th Cir. 2001). 

Accordingly, the undersigned recommends granting summary judgment on this claim. 

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Hostile Work Environment

Plaintiff’s fourth claim in his fourth complaint is that the conduct complained of in

his four EEOC complaints constitutes a hostile work environment. To prevail on such a claim, the

working environment must be both subjectively and objectively abusive. See Brooks, 229 F.3d at

923-924. As discussed in detail in the previous sections, no reasonable person could find

plaintiff’s work environment abusive. See id. The conduct that plaintiff complains of was

generally infrequent, not severe, and did not unreasonably interfere with plaintiff’s job

performance. See id. The undersigned recommends that summary judgment be granted on this

claim. 

Emotional Distress

Plaintiff’s fifth claim in his fourth complaint is for emotional distress. As

discussed previously, to the extent that plaintiff seeks to bring this as a separate claim, it is barred

by Title VII. See Brown, 425 U.S. 820. The undersigned recommends granting summary

judgment on this claim. 

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III. Conclusion 

For the reasons discussed above, the undersigned recommends that defendant’s

 motion for summary judgment be granted. These findings and recommendations are submitted

to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C.

§ 636(b)(l). Within twenty days after being served with these findings and recommendations,

plaintiff may file written objections with the court. The document should be captioned

“Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that

failure to file objections within the specified time may waive the right to appeal the District

Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: January 9, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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