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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Vanessa Ramirez, 

Plaintiff, 

v. 

Mitel (Delaware) Incorporated, et al., 

Defendants. 

No. CV-16-00029-PHX-DGC

ORDER 

 Plaintiff Vanessa Ramirez asserts claims against Mitel (Delaware) Inc., Mitel 

Communications, Inc., Mitel Cloud Services, Inc., and Mitel Business Systems, Inc. 

(collectively, “Mitel” or “Defendants”), for discrimination and retaliation in violation of 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (“Title VII”), and 42 

U.S.C. § 1981. Doc. 1. Mitel moves for summary judgment on all claims. Doc. 34. The 

motion is fully briefed. Docs. 34, 35, 37, 38, 43, 44. For the reasons that follow, Mitel’s 

motion will be granted.1

I. Background. 

 Plaintiff began working for Mitel (then known as Inter-Tel Network Services) on 

May 24, 2004, as a Sales Analyst. Doc. 35, ¶ 1. In 2008, Plaintiff was selected for a job 

 

1

 Because oral argument will not aid in the Court’s decision, the parties’ request for oral argument is denied. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 

926 (9th Cir. 1998). 

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within Mitel as a Sales Administrator. Id., ¶ 2. In February 2009, Brenda Cordova 

became Plaintiff’s manager. Id., ¶ 3. In March 2013, Plaintiff’s sales administration 

department, located in Mesa, Arizona, merged with the order administration department, 

located in Reno, Nevada, and Plaintiff became a Sales/Order Administrator. Id., ¶ 4. The 

merged team consisted of eight members: Plaintiff, Cordova, Denise Ramos, and Tamara 

Benton in Mesa, and Barbara Scofield, Danielle Barraza, Melissa Hills, and Allison 

Dunmire in Reno. Id., ¶¶ 5, 7. Dunmire was the supervisor of the merged team, but 

Cordova continued as Plaintiff’s manager until June 2014. Id., ¶ 5. Ramos is Plaintiff’s 

aunt. Id., ¶ 6. 

 Immediately following the merger, Plaintiff and Dunmire “began having issues.” 

Id., ¶ 8. Plaintiff alleges several instances of disparate treatment by Dunmire against her 

and her Hispanic co-workers with regard to hours, vacation, pay, overtime, training, and 

one instance involving a racially charged comment. See Doc. 1, ¶¶ 16-22; Doc. 35-3 at 

36. In November 2014, Plaintiff applied for a transfer out of Dunmire’s department. 

Doc. 1, ¶ 26. Her application was denied because Plaintiff’s mother already worked in 

the department Plaintiff applied for, and, according to Defendants, allowing Plaintiff’s 

transfer “would violate company policy against relatives working together.” Id.; Doc. 35, 

¶¶ 39-42. 2 

 Plaintiff alleges that she reported Dunmire’s disparate treatment on numerous 

occasions to Human Resources, but nothing was done. Doc. 1, ¶ 27. On December 1, 

2014, Plaintiff resigned, claiming that she “had no other choice[.]” Doc. 37 at 6; 

Doc. 35-15 at 2-3. Soon thereafter, Plaintiff filed a charge of discrimination with the 

Equal Employment Opportunity Commission (Doc. 35-15), as well as applications for 

government health/nutrition benefits (Doc. 37 at 6) and unemployment benefits with the 

Arizona Department of Economic Security (Doc. 35-18 at 2). Upon review of Plaintiff’s 

 

2

 Mitel’s policy states: “Judgement should be used in the placement of employees who are closely related. It is recommended that closely related employees not be employed in a direct reporting relationship.” Doc. 35-17 at 2. The policy defines “closely related” to include a spouse, child, mother, father, grandparent, grandchild, or sibling, but not an aunt or uncle. Id. 

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application for unemployment benefits, an agency deputy determined that “[Plaintiff] 

voluntarily left work without good cause in connection with [her] employment[,]” and 

denied her application. Id. On appeal, an Administrative Law Judge affirmed the 

deputy’s decision and reasoning. Doc. 35-11. 

 On January 6, 2016, Plaintiff filed this lawsuit. Defendants now move for 

summary judgment on all counts. Doc. 34. 

II. Legal Standard.

 A party seeking summary judgment “bears the initial responsibility of informing 

the district court of the basis for its motion, and identifying those portions of [the record] 

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 

evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate 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.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 

of the suit will preclude the entry of summary judgment, and the disputed evidence must 

be “such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

III. Analysis. 

A. Discrimination. 

 Title VII provides that an employer may not “discriminate against any individual 

with respect to his compensation, terms, conditions, or privileges of employment, 

because of such individual’s race, color, . . . or national origin.” 42 U.S.C. § 2000e2(a)(1). “Similarly, § 1981 prohibits [race] discrimination in the ‘benefits, privileges, 

terms and conditions’ of employment.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 

1103 (9th Cir. 2008) (quoting 42 U.S.C. § 1981(b)). A plaintiff may establish a violation 

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of Title VII or § 1981 by proving that discrimination created a hostile work environment. 

See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (Title VII); Manatt v. 

Bank of America, NA, 339 F.3d 792, 797 (9th Cir. 2003) (§ 1981). To prevail on her 

hostile work environment claim, Plaintiff must show that (1) she was subjected to verbal 

or physical conduct because of her race or national origin, (2) the conduct was 

unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the 

conditions of her employment and create an abusive work environment. Kang v. U. Lim 

America, Inc., 296 F.3d 810, 817 (9th Cir. 2002) (internal quotations omitted); Gregory v. 

Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998). 

 Plaintiff was represented by counsel when this case was filed, but her counsel later 

withdrew. Doc. 20. Plaintiff’s pro se filings in response to Defendant’s motion for 

summary judgment contain a somewhat rambling and disorganized discussion (Docs. 37, 

38), but the Court has reviewed them with care to identify Plaintiff’s specific factual 

assertions and the evidence she provides in support. The Court has identified thirteen 

factual assertions Plaintiff makes in support of her hostile work environment claim. The 

Court will summarize each assertion and the evidence, if any, provided to support it. 

 (1) Dunmire “was constantly questioning Plaintiff’s whereabouts and work 

performance through email, phone calls and with other coworkers on the team, even 

when Plaintiff was present at work and available via email and desk phone.” Doc. 37 at 2 

(citing Ex. 8 (email exchange between Plaintiff and Dunmire in which Dunmire states she 

contacted Plaintiff’s coworkers looking for Plaintiff after failing to reach her by other 

means)). 

 (2) Dunmire would question Plaintiff’s hours worked during the day, as well as 

any and all overtime, and would require a detailed email from Plaintiff accounting for her 

hours and the orders on which she worked. Id. at 3. No evidence is cited in support. 

 (3) Dunmire initiated a policy requiring that overtime be preapproved. Id. (citing 

Ex. 6 (email from Dunmire to her team stating, “[o]vertime within the company is 

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approved on an as needed basis when necessary and must be pre-approved prior to being 

worked.”)). 

 (4) Dunmire would deny Plaintiff training or assistance with her workload. Id.

(citing Ex. 7 (email chain between Plaintiff and Cordova regarding Plaintiff’s overtime), 

Ex. 9 (email chain between Plaintiff and Dunmire regarding Plaintiff’s work order 

status), Ex. 11 (email chain between Plaintiff and Dunmire in which Plaintiff accuses 

Dunmire of refusing to “have the team help” with her workload)). 

 (5) Dunmire refused to provide instructions that she claimed to have already 

given, and then would single Plaintiff out for orders completed incorrectly and accuse her 

of not being able to follow instructions. Id. (citing Ex. 4 (email chain between Plaintiff 

and Dunmire where Plaintiff asserts the team has not received adequate training), Ex. 5 

(same)). 

 (6) Dunmire would run reports on the team’s work status, “and the reports for 

Plaintiff were always incorrect.” Plaintiff and Brenda Cordova would prove otherwise. 

Id. No evidence is cited in support. 

 (7) Dunmire “would not say ‘hi’ to Plaintiff” and “would look at Plaintiff in a 

very unprofessional and disrespectful manner.” Id. Dunmire would “sit in a cubicle 

diagonal from Plaintiff’s cubicle and scoot her chair over and stare at Plaintiff not saying 

anything.” Id. (citing Ex. 18 (letter from T. Benton in support of Plaintiff’s allegations)). 

 (8) On at least two occasions, Dunmire failed to turn in timesheets for Plaintiff 

and/or her Hispanic co-workers. Id. at 4. Plaintiff cites Exhibit 27, but no Exhibit 27 is 

attached to her statement of facts. Doc. 38 at 3. 

 (9) On one occasion, Dunmire made a racially-charged statement. According to 

Plaintiff, while she and a few co-workers were talking at a training meeting in Mesa, 

Plaintiff commented that she does not “get red” when tanning, but instead she “get[s] 

darker.” Id. at 4; see also Doc. 35-3 at 36. In response, Dunmire said “[y]eah, that’s 

because you are Mexican.” Id. Plaintiff states that Dunmire’s comments “made it clear 

[that] this is why she was treated differently.” Id.; Doc. 38 at 3. 

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 (10) Dunmire would deny requests from Plaintiff for training and would refuse to 

answer questions, saying that “the more practice Plaintiff got she would understand 

better.” Doc. 37 at 4. No evidence is cited in support. 

 (11) Following merger of the Reno and Mesa teams, Dunmire “wanted to change 

Plaintiff’s work hours and remove telecommute[,]” but her attempt “was denied by VP 

Jon Brinton.” Id. at 5. This change was important to Plaintiff because, under her prior 

supervisor, she would work from home in the morning on certain days until she dropped 

her daughter at school. Id. When Plaintiff asked to continue this practice, Dunmire 

asked Plaintiff “to limit it to one day every 1 to 2 weeks.” Id. In the alternative, Dunmire 

offered to change Plaintiff’s hours to accommodate Plaintiff. Id. Plaintiff declined to 

have her hours changed. Id. Soon after, Dunmire sent an email to the entire team with 

everyone’s new hours. Although Plaintiff’s were not changed, Dunmire had approved 

one team member from Reno, Danielle Barraza, to work from home every morning 

because of her son’s school schedule. Id. at 6 (citing Ex. 10 (email from Dunmire to all 

members of her team detailing scheduling changes)). 

 (12) “Plaintiff was asked to cancel and change scheduled vacation days off[.]” Id. 

On one occasion, “Dunmire asked Plaintiff to be present on a Tuesday for training[,]” but 

Dunmire “was not present to work until Wednesday.” Id. (citing Ex. 1 (email between 

Plaintiff and Cordova where Cordova acknowledges that Plaintiff told Dunmire she 

would be in the office on a Tuesday for training), Ex. 2 (email between Plaintiff and 

Cordova regarding the scheduling of Plaintiff’s vacation)). 

 (13) Plaintiff did not receive a pay raise in the spring of 2014. Id. at 6. When 

Plaintiff was hired, team members were given the opportunity to earn a $250 bonus 

periodically. Following the merger, management informed Plaintiff’s team that the 

bonus would be “taken away permanently or rolled into plaintiff’s pay.” Id. According 

to Plaintiff, “Todd West [said] this would have no effect on pay raise as the department 

was going to be re-evaluated and pay would be leveled across the board.” Id. But 

instead, “Plaintiff’s bonus was rolled into pay and no pay raise or re-evaluation was ever 

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done” and “the team in Reno was given a pay increase.” Id. No evidence is cited in 

support. 

 Defendants argue that these assertions do not create a genuine issue of material 

fact sufficient to survive summary judgment. Doc. 43 at 2, 6. The Court agrees. 

 To establish a hostile work environment, Plaintiff must show that she “was 

subjected to verbal or physical conduct because of her race or national origin[.]” Kang, 

296 F.3d at 817. In all but two of her assertions, Plaintiff provides no evidence that 

Dunmire’s hostility was based on Plaintiff’s race or national origin and no evidence that 

Dunmire showed similar hostility toward other Hispanics on the team. Specifically, 

assertions (1) through (7) and (10) through (13) include no evidence to suggest that 

Dunmire’s actions were based on race or national origin. See Doc. 37 at 3-6. Indeed, in 

some instances, Plaintiff provides evidence that Dunmire did not mistreat Plaintiff’s 

Hispanic co-workers in a similar manner. See Doc. 35-3 at 31, 34-35 (Plaintiff’s 

deposition: Dunmire did not scrutinize Ramos’ overtime and never “stared” or made 

“funny faces” at Ramos); Doc. 37 at 2-3 (Plaintiff was “the only one” required to submit 

daily detailed order status reports to Dunmire); Doc. 37 at 5 (flexible scheduling granted 

to co-worker Danielle Barraza). What is more, assertions (2), (6), and (10) are not 

supported by any evidence, and Plaintiff conceded in her deposition that the alleged 

change of hours in assertion (11) never occurred. Doc. 35-3 at 46. 

 In other assertions, Plaintiff makes clear that Dunmire’s hostile conduct was 

directed toward the entire team, Hispanics and non-Hispanics alike. For instance, 

Plaintiff asserts in item (10) that the Mesa team had not been provided training. And in 

her deposition, Plaintiff conceded that the changes to the overtime approval process, 

mentioned in assertion (3), applied to the entire group, not just Plaintiff. Doc. 35-3 at 31 

(“the entire team received [Dunmire’s] emails” regarding overtime and that “the entire 

team had to get the overtime preapproved”). When Dunmire’s conduct is directed at the 

entire team, a reasonable factfinder could not infer that it was motivated by Plaintiff’s 

race or national origin. 

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 This leaves assertions (8) and (9) as the only two in which discriminatory 

mistreatment is suggested. In assertion (8), Plaintiff states that Dunmire failed to submit 

her or her Hispanic co-worker’s timecard on two occasions. Doc. 37 at 4. The first time, 

Dunmire turned in the time sheets for all team members except Plaintiff and Ramos. Id. 

The second time, which occurred after Ramos left the company, Plaintiff’s time sheet 

was the only one not submitted. Id. Plaintiff admitted in her deposition that each 

instance was promptly remedied and that she received her full pay on time. Doc. 35-3 at 

48. Plaintiff also concedes that she does not know if Dunmire ever failed to submit the 

timecard of any other employee. Id. Even if a reasonable jury could infer that these two 

instances were based on Plaintiff’s race or national origin, Plaintiff has not shown that 

“the conduct was sufficiently severe or pervasive to alter the conditions of her 

employment and create an abusive work environment,” particularly when her pay was 

received on time. Kang, 296 F.3d at 817. 

 In assertion (9), Plaintiff claims that Dunmire made a discriminatory comment to 

her – “that’s because you are Mexican.” Doc. 35-3 at 6. Dunmire denies making the 

comment (Doc. 34 at 4, n.3), but the Court must take Plaintiff’s assertion as true for 

purposes of this summary judgment motion. Even if true, however, the Court cannot 

conclude that a reasonable factfinder would find this single comment – even when 

combined with assertion (8) – to be sufficiently severe or pervasive to violate Title VII or 

§ 1981. Courts look at all the circumstances, “including ‘the frequency of the 

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 

a mere offensive utterance; and whether it unreasonably interferes with an employee’s 

work performance.’” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) 

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); see also Oncale v. 

Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Vasquez v. Cty. of Los Angeles, 349 

F.3d 634, 642 (9th Cir. 2004). The same analysis applies to race-based claims under 42 

U.S.C. § 1981. Manatt, 339 F.3d at 797. “The required level of severity or seriousness 

‘varies inversely with the pervasiveness or frequency of the conduct.’” Nichols v. Azteca 

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Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001) (quoting Ellison v. Brady, 924 F.2d 872, 

878 (9th Cir. 1991)). “[S]imple teasing, offhand comments, and isolated incidents 

(unless extremely serious) will not amount to discriminatory changes in the terms and 

conditions of employment.” Id. (quotation marks and citation omitted). 

Failing to turn in time sheets on two occasions and making one offensive comment 

based on national origin does not constitute the kind of severe and pervasive conduct that 

violates the federal civil rights laws. See Vasquez, 349 F.3d at 642 (Ninth Circuit found 

the plaintiff’s claim of continued racial harassment unsupported because it was based 

only on two racially discriminatory statements made more than six months apart, 

combined with two second-hand reports of verbal abuse, and two allegedly false 

performance complaints). To be sure, such conduct is inappropriate, unwarranted, and 

unacceptable in the modern workplace, but the Court concludes that no reasonable 

factfinder could find these three incidents so “severe or pervasive [as] to alter the 

conditions of [Plaintiff’s] employment and create an abusive work environment.” Kang, 

296 F.3d at 817. And because Plaintiff has failed to provide evidence that Dunmire’s 

other allegedly hostile actions – also inappropriate in a civilized work setting – were 

based on Plaintiff’s race or national origin, they do not add to the actionable hostile work 

environment. 

 In short, Plaintiff has failed to make a showing sufficient to establish the existence 

of an element essential to her case and on which she will bear the burden of proof at trial. 

The Court therefore will grant Defendants’ motion for summary judgment on her hostile 

work environment claim. Celotex, 477 U.S. at 322. 

 B. Retaliation. 

 Title VII prohibits retaliation against an employee for opposing an unlawful 

employment practice or participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). 

A successful retaliation claim must establish that (1) the employee engaged in a protected 

activity, (2) the employer took an adverse employment action against the employee, and 

(3) the employer would not have taken the adverse employment action but for a design to 

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retaliate. Nilsson v. City of Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see Univ. of Tex. 

Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2535 (2013) (clarifying that employee must 

show “but for” causation). The same elements apply to a retaliation claim under 42 

U.S.C. § 1981. Ballard v. Portland Gen. Elec. Co., 293 F. App’x 448, 449 (9th Cir. 

2008). The filing of a charge of discrimination with the EEOC is a protected activity, as 

is the filing of an internal complaint alleging a Title VII violation. See Bouman v. Block, 

940 F.2d 1211, 1228 (9th Cir. 1991); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 

963 (9th Cir. 2009). 

 Defendants concede that Plaintiff engaged in a protected activity “when she 

reported what she perceived to be discriminatory treatment of her by Dunmire.” Doc. 34 

at 12. Defendants argue, however, that Plaintiff has not shown that she was subjected to 

any adverse employment action as a result of her protected activities, or that there is a 

causal link between protected activity and any adverse employment action. Id. at 12-13. 

 1. Adverse Employment Action. 

 Title VII’s anti-retaliation provision protects against “materially adverse” 

employment actions – actions that might dissuade a reasonable worker from making or 

supporting a charge of discrimination – but not against “petty slights or minor 

annoyances that often take place at work and that all employees experience.” Burlington 

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The Court’s role at the summary 

judgment stage is limited to determining whether there is evidence in the record that 

would support a reasonable jury in finding that the action complained of was materially 

adverse. Where the evidence would permit no such finding, the Court may grant 

summary judgment. See, e.g., Johnson v. Fed. Express Corp., No. CV-14-02428-PHXDGC, 2016 WL 1593811, at *4 (D. Ariz. Apr. 21, 2016) (citing Sillars v. Nevada, 385 

F. App’x 669, 671 (9th Cir. 2010) (affirming grant of summary judgment because 

employee “presented no evidence that the position to which she was moved differed in 

any material way from the position she occupied prior to her complaints”)). In 

determining whether a reasonable jury could find material adversity, the Court must 

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consider the context in which the action occurred. Because “[t]he real social impact of 

workplace behavior often depends on a constellation of surrounding circumstances, 

expectations, and relationships . . . an act that would be immaterial in some situations is 

material in others.” White, 548 U.S. at 69 (citations and quotation marks omitted). 

 Plaintiff asserts that Defendants took an adverse employment action by denying 

her November 2014 transfer request. Doc. 37 at 5; see also Doc. 1, ¶¶ 24-27, 31-37. 

Defendants argue that the denial did not constitute an adverse employment action. 

Doc. 34 at 13-14. 

 The Ninth Circuit has stated that lateral transfers may be considered adverse 

employment actions. See Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (“The 

EEOC test covers lateral transfers, unfavorable job references, and changes in work 

schedules. These actions are all reasonably likely to deter employees from engaging in 

protected activity.”). Defendants argue that no Ninth Circuit court has “specifically held 

that the refusal to grant a lateral transfer request constitutes an adverse employment 

action.” Doc. 34 at 13. Defendants further argue that for an employer’s denial of a 

requested transfer to be an adverse employment action, it must either be between a nonsupervisory and supervisory position or must involve a change in the employee’s 

compensation. Id. (citing Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1494-95 (9th 

Cir. 1995)). 

Defendants’ reliance on Odima is misplaced. In Odima, the Ninth Circuit 

considered whether an employer’s denial of an employee’s three transfer requests could 

be considered an adverse employment action. 53 F.3d at 1494. The court suggested that 

the employee needed to show he was denied a promotion or a change in the form of his 

compensation. Id. But since Odima was decided in 1995, the Ninth Circuit has adopted 

the EEOC test for adverse employer actions, which expressly covers lateral transfers, not 

just promotions. See Ray, 217 F.3d at 1243 (“Because the EEOC standard is consistent 

with our prior case law and effectuates the language and purpose of Title VII, we adopt it, 

and hold that an action is cognizable as an adverse employment action if it is reasonably 

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likely to deter employees from engaging in protected activity.”). In this instance, a 

reasonable jury could find that Plaintiff would be dissuaded from engaging in a protected 

act if she knew Defendants would deny her request for a lateral transfer. Plaintiff has 

alleged a materially adverse employment action. 

 2. Causation. 

 Plaintiff must also show a causal link between her protected activity and 

Defendants’ denial of her November 2014 transfer request. The Supreme Court has held 

that Title VII retaliation claims “must be proved according to traditional principles of 

but-for causation.” Nassar, 133 S.Ct. at 2533. To establish causation, an employee must 

provide evidence, either direct or circumstantial, that the individuals responsible for the 

adverse employment action knew about the protected activity and intended to retaliate 

because of it. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 

(9th Cir. 2003) (“Raad must present evidence from which a reasonable trier of fact could 

conclude that the school principals who refused to hire her were aware that she had 

engaged in protected activity.”); Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 

1112-15 (9th Cir. 2011) (employee must provide “direct or circumstantial evidence of 

discriminatory intent” on part of employer). 

 “[I]n some cases, causation can be inferred from timing alone where an adverse 

employment action follows on the heels of protected activity.” Villiarimo v. Aloha Island 

Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). The Ninth Circuit has “made clear that a 

specified time period cannot be a mechanically applied criterion, and ha[s] cautioned 

against analyzing temporal proximity without regard to its factual setting.” Fazeli v. 

Bank of Am., NA, 525 F. App’x 570, 571 (9th Cir. 2013) (citations and internal quotation 

marks omitted). Nonetheless, courts generally have “required temporal proximity of less 

than three months between the protected activity and the adverse employment action for 

the employee to establish causation based on timing alone.” Mahoe v. Operating Eng’rs 

Local Union No. 3, No. CIV. 13-00186 HG-BMK, 2014 WL 6685812, at *8 (D. Haw. 

Nov. 25, 2014) (collecting cases). This comports with Supreme Court precedent, which 

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holds that the temporal proximity between the protected action and the adverse 

employment action must be “very close” to support an inference of causation, and that 

“[a]ction taken . . . 20 months later suggests, by itself, no causality at all.” Clark Cty. 

Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citations omitted). 

 Courts apply the McDonnell Douglas burden-shifting framework to determine 

whether an employee can establish causation. Steiner v. Showboat Operating Co., 25 

F.3d 1459, 1464-65 (9th Cir. 1994). Under this framework, an employee must first make 

a prima facie showing of causation. Id. The burden then shifts to the employer to 

advance “legitimate, non-retaliatory reasons for any adverse actions taken” against the 

employee. Id. “This burden is one of production, not persuasion; it can involve no 

credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 

(2000) (citation and internal quotation marks omitted). If the employer produces 

evidence suggesting a non-retaliatory reason for its action, the employee must show that 

the proffered reasons are pretextual. Id. An employee may establish 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.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “To 

show pretext using circumstantial evidence, a plaintiff must put forward specific and 

substantial evidence challenging the credibility of the employer’s motive.” Vasquez, 349 

F.3d at 642. 

Plaintiff alleges in her complaint that, in June 2014, she reported to “Human 

Resources that she felt she was being discriminated against by Dunmire, and that nonHispanic, namely Caucasian employees were being treated more favorably.” Doc. 1, 

¶ 27. The record does not contain any other date for Plaintiff’s protected activity, and in 

her response brief, Plaintiff states only that “[a]fter several complaints to HR Plaintiff 

asked to be transferred to NetSupport as a Sales Analyist.” Doc. 37 at 6. Plaintiff’s 

complaint alleges that she was denied a transfer to another department in late November 

2014. Doc. 1, ¶¶ 25-26. 

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 Plaintiff provides no evidence to show a causal link between her protected acts 

and denial of her transfer request. Plaintiff does not allege that Dunmire denied the 

transfer request. Id. Nor does she argue that Dunmire instructed or persuaded others to 

do so, or that the persons who denied the request knew of Plaintiff’s protected activity. 

Doc. 37 at 5. And even if the Court were to take the unsupported November date as the 

date when the transfer request was denied, the Court cannot conclude that a five-month 

period between Plaintiff’s protected activity and denial of the transfer suffices to establish 

the needed link. The Court accordingly finds that Defendants are entitled to summary 

judgment on Plaintiff’s retaliation claim. 

 Plaintiff’s claim would also fail because Defendants provide a legitimate, nonretaliatory business reason for refusing to approve the transfer: company policy states that 

“closely related employees not be employed in a direct reporting relationship[,]” and 

evidence shows that the transfer would result in Plaintiff’s mother having 

“responsibilities for overseeing the hiring and productivity of Plaintiff, and for assigning 

tasks for Plaintiff.” Doc. 34 at 15 & n.11. Plaintiff argues that this explanation is 

pretextual. Doc. 37 at 5. She states that she worked with her mother before at the 

NetSupport department, as well as her aunt and brother, but provides no evidence to 

support this assertion. Id. She further asserts that “there are several employees who are 

currently employed with Mitel who are closely related and work in the same department,” 

but again provides no supporting evidence. Id. Plaintiff does not provide a single piece 

of evidence to support her pretext claim, much less the “specific and substantial evidence 

challenging the credibility of the employer’s motive” required to be successful. Vasquez, 

349 F.3d at 642. 

 Based on evidence in the record, no reasonable jury could find that Defendants 

engaged in retaliation against Plaintiff because of her protected act. Accordingly, the 

Court will grant Defendants’ motion for summary judgment. 

 C. Constructive Discharge. 

 Finally, Plaintiff appears to be asserting a claim for constructive discharge. 

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Docs. 1, 37. The Court concludes, however, that this claim cannot survive summary 

judgment. Plaintiff alleges that she was forced to quit working because she could no 

longer take “[t]he stress and constant harassment from [Dunmire].” Doc. 37 at 6. To the 

extent this constructive discharge is alleged to have resulted from a hostile work 

environment, it fails for the reasons set forth above – Plaintiff has not provided evidence 

sufficient to establish a hostile work environment claim. And to the extent Plaintiff 

asserts constructive discharge as part of her retaliation claim, it fails because Plaintiff 

does not allege or show that the constructive discharge occurred because of her protected 

activity. Rather, Plaintiff alleges that it occurred because of Dunmire’s mistreatment. 

IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 34) is 

granted. The Clerk shall enter judgment accordingly and terminate this action. 

 Dated this 28th day of February, 2017. 

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