Prue v. University of Washington et al, No. 2:2007cv01859 - Document 68 (W.D. Wash. 2009)
Court Description: ORDER granting in part and denying in part 32 Motion for Summary Judgment. Within ten days of the date of this order, the parties are ordered to file a joint status report stating when they will be ready to proceed to trial, by Judge Robert S. Lasnik.(VP)
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Prue v. University of Washington et al Doc. 68 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 GEORGE PRUE, 9 Plaintiff, Case No. C07-1859RSL 10 11 12 v. UNIVERSITY OF WASHINGTON, et al., ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT Defendants. 13 14 15 I. INTRODUCTION 16 17 18 19 20 21 22 This matter comes before the Court on a motion for summary judgment filed by defendants the University of Washington and University employee Rachael Hogan (collectively, “defendants”).1 Plaintiff contends that defendants discriminated against him based on his race, African-American, and his age, 55-years-old, by failing to hire him for an open temporary position. Plaintiff also contends that after he complained of discrimination, the University retaliated against him. 23 24 25 26 1 Plaintiff previously dismissed with prejudice his claims against a third defendant, Joanne Suffis. ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 For the reasons set forth below, the Court grants in part and denies in part defendants’ motion. 3 4 II. DISCUSSION A. Background Facts. 5 The University’s UTemp Staffing Program (“U-Temps”) provides on-site 6 temporary staff to University staff as needed. It serves the entire University community 7 and has an on-going pool of approximately 300 temporary staff. U-Temps staffing 8 coordinators screen potential applicants to join a pool of candidates for short-term, 9 temporary assignments as they become available. 10 In August 2005, plaintiff interviewed with Aaron Hinkhouse, a staffing 11 coordinator with U-Temps to become a temporary staffing candidate. Hinkhouse found 12 plaintiff to be “outgoing,” he could “talk with almost anyone,” and his communications 13 skills were “good” but not “strong.” Hinkhouse Dep. at p. 95. After the interview, 14 Hinkhouse entered the following notes into the “availability” screen on the U-Temps 15 database: 16 17 18 19 George has a lot of work experience. His most relevant is an 8 year stint as an Exec Assistant & Patient Advocate at a hospital in the Virgin Islands. In this role, he interacted with lots of patients and supported several higher level doctors; but he didn’t do a lot of clerical support, and as a result does not have strong computer skills. Lately he has been teaching and he wants to get away from that. He says he’s open to ANYthing, very interested in perm. Possibly his experience is not as strong as it appears or is not easily transferable to admin support, and maybe his first assignment should be lighter/shorter. 20 Declaration of Aaron Hinkhouse, (Dkt. #34) (“Hinkhouse Decl.”), Ex. A. The notes were 21 available for potential hiring professionals to review. 22 In August 2005, the Department of Medical Education and Biomedical Informatics 23 (“MEBI”) sought assistance from U-Temps to obtain candidates to interview for a 24 temporary position as an administrative coordinator. The position involved performing 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 2 1 “office mgmt and complex admin support for [the MEBI department]. Reception/office 2 duties, faculty support, program support, fiscal support, event planning and facilities 3 mgmt support. Additionally, interpret UW policies and coordinate special projects as 4 assigned.” Hinkhouse Decl., Ex. C. The MEBI department provides training, research, 5 and service in education and data evaluation related to health care. Although U-Temps 6 frequently assigns candidates to fill openings, in this case, MEBI wanted to interview and 7 select a person to fill the administrative coordinator position. Hogan, who formerly held 8 the position on a permanent basis, was transitioning into another role. She conducted all 9 of the interviews for the position. Hogan’s supervisor, Sheryl Vick, selected a candidate, 10 that person performed the job for one week, then accepted another position. MEBI 11 contacted U-Temps to find additional candidates. 12 Hinkhouse referred plaintiff to interview for the position even though it required 13 strong clerical skills, and Hinkhouse assessed plaintiff’s clerical skills at a beginner level. 14 During the second round of interviews, Hogan interviewed four candidates, including 15 plaintiff and Kevin Kovach. Hogan interview Kovach just before she interviewed 16 plaintiff. Kovach’s interview lasted less than ten minutes. 17 Although Hogan received plaintiff’s resume the day before the interview, she did 18 not have time to review it until just before she interviewed him. Hogan Dep. at p. 115. 19 Plaintiff did not read the job description before his interview. He mistakenly believed 20 that he was being placed in the position rather than needing to be interviewed and hired. 21 Plaintiff’s Dep. at pp. 26-27. 22 Hogan began plaintiff’s interview by asking him to tell her about himself. Hogan 23 and plaintiff disagree regarding what occurred after that point. According to Hogan, 24 plaintiff began talking about his outreach work related to Hurricane Katrina. When she 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 3 1 asked him what kind of work he was seeking, he said he wanted to “help people” or “help 2 patients.” Hogan Dep. at pp. 137-38. Hogan explained that MEBI does not involve 3 patient interaction, though it was a common misunderstanding about the department. 4 While she explained what the department did, plaintiff repeatedly said “okay” without 5 elaboration or any indication that he was interested in assisting with that work. Id. at pp. 6 138-39. Hogan explained that if plaintiff was interested in working with patients, he 7 should seek positions with the medical center, to which plaintiff replied, “okay.” Id. at 8 pp. 139-40. Although Hogan contends that she paused and gave plaintiff an opportunity 9 to correct her and express interest in the position, he did not do so. Id. at pp. 143-44. 10 Hogan wrote on plaintiff’s resume, “Wants UW job med ctrs?” Declaration of Rachel 11 Hogan, (Dkt. #38) (“Hogan Decl.”) at ¶ 15 and attachment. 12 Plaintiff’s version of the interview is very different. According to him, he began 13 telling Hogan about his experience as an executive secretary for two administrators at a 14 hospital in the Virgin Islands. Declaration of George Prue, (Dkt. #47) at ¶ 11. Hogan cut 15 him off and stated, “This job is not for you. Mr. Hinkhouse spoke too fast.” Id. Hogan 16 then suggested he might be more interested in jobs at the hospitals or jobs involving 17 patient care. She ended the interview and ushered plaintiff from the room. Plaintiff states 18 that he was shocked by Hogan’s comments and actions. He states that Hogan cut him off 19 after one sentence, so he never got an opportunity to discuss his education, work 20 experience, or qualifications. Id. at ¶ 12; Prue Dep. at pp. 24-25, 28. He denies telling 21 Hogan that he was not interested in the administrative coordinator position or that he was 22 only seeking jobs in medical administration. 23 24 After the interviews, Hogan recommended to Vick that she hire Kovach because he was eager to perform the job. Hogan Dep. at p. 117. Vick only reviewed Kovach’s 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 4 1 resume. Vick Dep. at p. 41. Vick hired Kovach based on Hogan’s recommendation. Id. 2 at pp. 41-43. She was looking for someone who had an interest in being part of the 3 department because the position involved greeting visitors. Id. at p. 31. Hogan told Vick 4 that plaintiff did not want the position but was instead interested in patient care. Id. at pp. 5 41, 46-47. 6 On September 6, 2005, plaintiff sent an e-mail to Joanne Suffis, Vice President for 7 Human Resources, complaining that he had been discriminated against in the interview 8 with Hogan. Plaintiff’s Dep., Ex. 11 (stating that “she saw me, i.e., African American 9 and spoke to me for a quick two minutes;” “I felt as if I was badly discriminated 10 against”). Suffis forwarded the e-mail to UTemp staffing manager Laura Andrews, who 11 followed up with plaintiff. Plaintiff does not recall sending the e-mail to Suffis or 12 speaking with Andrews. On September 13, for unknown reasons,2 Andrews posted 13 plaintiff’s September 6 e-mail to his employee profile on the U-Temps staffing database. 14 Hinkhouse Dep. at pp. 132-33, Exs. 11 & 12. Every U-Temps staffing coordinator has 15 access to the information in the database, including employee profiles. 16 After plaintiff sent the e-mail to Suffis, he was offered assignments repairing 17 office chairs, moving furniture, parking cars, and working as a mail room clerk. In early 18 October 2005, he stopped calling U-Temps to seek work because he believed that he was 19 in a “pattern” of receiving referrals only for blue collar work. Plaintiff’s Dep. at pp. 134- 20 35. During his initial interview with Hinkhouse, plaintiff was told that he should call U- 21 Temps once a week to confirm his on-going interest and availability for work. 22 23 Around September 28, 2005, plaintiff contacted the University Complaint Investigation and Resolution Office (“UCIRO”) to request an investigation into his 24 2 25 26 Andrews has since died and was not deposed in this matter. ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 5 1 allegations of race and age discrimination. UCIRO did not find support for plaintiff’s 2 claims. Around March 21, 2006, plaintiff filed a charge of race and age discrimination 3 with the Equal Employment Opportunity Commission (“EEOC”). After conducting an 4 investigation, the EEOC investigator issued a finding determining “that there is 5 reasonable cause to believe that the allegations are true.” Prue Decl., Ex. 2. After the 6 EEOC issued its finding, the University disciplined Hogan because she “[f]ailed to use 7 good judgment and follow university practices in using consistent interviewing 8 techniques for all applicants during the interview process.” Vick Dep. at p. 119; 9 Declaration of Jillian Cutler, (Dkt #48), Ex. C. 10 Against Hogan, plaintiff asserts claims for a violation of 42 U.S.C. § 1981 and for 11 a violation of 42 U.S.C. § 1983 based on an alleged violation of his right to equal 12 protection. Plaintiff asserts claims against the University for violations of Title VII of the 13 Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination 14 in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 29 U.S.C. § 621 et seq.; and the 15 Washington Law Against Discrimination (“WLAD”), RCW 49.60 et seq. 16 B. 17 Summary Judgment Standard and Evidentiary Issue. Summary judgment is appropriate when, viewing the facts in the light most 18 favorable to the nonmoving party, the records show that “there is no genuine issue as to 19 any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. 20 Civ. P. 56(c). Once the moving party has satisfied its burden, it is entitled to summary 21 judgment if the non-moving party fails to designate, by affidavits, depositions, answers to 22 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue 23 for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 24 All reasonable inferences supported by the evidence are to be drawn in favor of the 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 6 1 nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2 2002). “[I]f a rational trier of fact might resolve the issues in favor of the nonmoving 3 party, summary judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific Elec. 4 Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). “The mere existence of a scintilla 5 of evidence in support of the non-moving party’s position is not sufficient.” Triton 6 Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). “[S]ummary 7 judgment should be granted where the nonmoving party fails to offer evidence from 8 which a reasonable jury could return a verdict in its favor.” Id. at 1221. 9 Plaintiff filed a surreply requesting that the Court strike the Supplemental 10 Declaration of Jayne Freeman and attachments thereto submitted with defendants’ reply 11 to the motion. Plaintiff notes that it is “unfair” for a defendant to submit new evidence 12 with its reply. Surreply at p. 1 (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 13 1996)). In this case, the supplemental declaration does not provide evidence that supports 14 new arguments or otherwise creates an unfair advantage for defendants. Rather, the 15 evidence supports arguments which defendants made in their motion and plaintiff had an 16 ample opportunity to address. Moreover, the evidence is cumulative and would not 17 change the result. Accordingly, the Court will not strike the materials. 18 C. Analysis. 19 1. 20 To establish a prima facie case of discrimination under Title VII, the ADEA and/or Discrimination Claim. 21 the WLAD, plaintiff must show that (1) he is a member of a protected class, (2) he 22 applied for and was qualified for the position, (3) he was denied the position despite his 23 qualifications, and (4) the position was filled with someone outside the protected class. 24 See, e.g., Coghlan v. American Seafoods Co., LLC, 413 F.3d 1090, 1094 (9th Cir. 2005); 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 7 1 Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990) (evaluating an ADEA 2 claim). 3 As an initial matter, plaintiff’s filings reference numerous positions that he applied 4 for but did not receive at the University. His amended complaint, however, clarifies that 5 he is asserting a discrimination claim based only on defendants’ failure to hire him for the 6 administrator coordinator position. Amended Complaint at ¶¶ 7.3, 8.3, 9.3. 7 As for the MEBI position, defendants argue that plaintiff has not established a 8 prima facie case of discrimination because the University did not continue to seek 9 applicants after interviewing plaintiff. However, requiring plaintiff to demonstrate that 10 fact would make little sense in this case when the University actually selected a 11 candidate. In that circumstance, plaintiff is required to show that defendants selected 12 someone outside of his protected class. See, e.g., Coghlan, 413 F.3d at 1094. Kovach is 13 Caucasian, so plaintiff has done so. Similarly, defendants argue that Hogan found 14 Kovach to be qualified before she interviewed plaintiff. That fact, however, is irrelevant 15 because Hogan did not hire anyone prior to interviewing plaintiff. Therefore, at the time 16 Hogan considered plaintiff for the position, the position remained open. 17 Defendants also argue that plaintiff was not treated differently because Kovach’s 18 interview was brief too. However, Kovach’s interview, although also brief, lasted 19 approximately twice as long as plaintiff’s interview. More importantly, Kovach’s 20 interview lasted long enough for him to describe his prior work experience and to 21 establish a rapport with Hogan. Different treatment is also shown by the fact that Kovach 22 was hired for the job. Plaintiff has demonstrated a prima facie case of discrimination. 23 24 Because plaintiff established a prima facie case of discrimination, the burden shifts to defendants to articulate a legitimate, non-discriminatory reason for its failure to hire 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 8 1 him. See, e.g., Kuyper v. Department of Wildlife, 79 Wn. App. 732, 735 (1995). As 2 plaintiff concedes, defendants have done so. Hogan states that she did not recommend 3 plaintiff for the position because of his apparent lack of interest and enthusiasm for the 4 position. In contrast, she recommended Kovach because he was qualified and seemed 5 eager to perform the job. Hogan Dep. at p. 117; Hogan Decl. at ¶¶ 12-14; Declaration of 6 Sheryl Vick, (Dkt. #37) (“Vick Decl.”) at ¶ 11. 7 Because defendants have asserted a legitimate non-discriminatory reason, the 8 burden shifts back to plaintiff to establish that the reason given is a pretext for 9 discrimination. Kuyper, 79 Wn. App. at 735. To establish pretext, a plaintiff must 10 provide “some evidence that the articulated reason for the employment decision is 11 unworthy of belief.” Id. at 738. A plaintiff can do so by showing that “the reason has no 12 basis in fact, it was not really a motivating factor for the decision, it lacks a temporal 13 connection to the decision or was not a motivating factor in employment decisions for 14 other employees in the same circumstances.” Id. (citing Sellsted v. Washington Mut. Sav. 15 Bank, 69 Wn. App. 852, 859-60 n.14 (1993)); Chuang v. University of Cal. Davis, 225 16 F.3d 1115, 1127 (9th Cir. 2000) (explaining that under Title VII, a plaintiff can show 17 pretext “(1) indirectly, by showing that the employer’s proffered explanation is unworthy 18 of credence because it is internally inconsistent or otherwise not believable, or (2) 19 directly, by showing that unlawful discrimination more likely motivated the employer”) 20 (internal citation and quotation omitted). Under the WLAD, plaintiff must show that 21 discrimination was a “substantial factor” in the hiring decision. See, e.g., Domingo v. 22 Boeing Employees’ Credit Union, 124 Wn. App. 71, 77 (2004). 23 In this case, plaintiff has not alleged any direct evidence of discrimination, such as 24 discriminatory remarks. The Court therefore considers whether there is sufficient indirect 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 9 1 evidence of discrimination. Plaintiff is not required to produce a “smoking gun.” Rather, 2 he can discharge his burden with evidence that is “circumstantial, indirect, and 3 inferential.”3 Chen v. Washington, 86 Wn. App. 183, 190 (1997). Although defendants 4 claim that plaintiff’s lack of clerical experience was a motivating factor, defendants hired 5 Kovach despite what Hogan described as his “light skills.”4 Hinkhouse Dep. at p. 110; 6 id., Ex. 8. 7 Defendants also contend that they did not hire plaintiff because he appeared 8 uninterested in the position and did not sell himself. Hogan’s version of the interview 9 supports that assertion and is bolstered by other evidence of what she did and said shortly 10 afterward. However, at this stage of the proceedings, the Court must credit plaintiff’s 11 version as true for purposes of this motion. Moreover, plaintiff contends that he, unlike 12 other candidates, was not given a chance to sell himself or to express his interest in the 13 position.5 Rather, Hogan cut plaintiff off after one sentence. Prue Dep. at pp. 71-72. In 14 addition, the MEBI department did not include any African-American faculty, staff, or 15 students. Johnson Dep. at p. 158 & Ex. 29. Moreover, the University found that Hogan 16 had conducted the interviews in an inconsistent manner and disciplined her for doing so. 17 At this point, it is unclear whether the different interviewing treatment was motivated by 18 discriminatory animus or the result of a harried professional seeking to complete the 19 20 21 22 23 24 25 26 3 Plaintiff relies heavily on the EEOC’s reasonable cause finding. The Court, however, gives that finding very little weight because it is conclusory and unexplained. 4 Hogan denies describing Kovach’s skills as “light.” Hogan Dep. p. 161. 5 Kovach also knew very little about the MEBI position before his interview. Declaration of Kevin Kovach, (Dkt. #46) at ¶ 4 (explaining that prior to the interview, Kovach did not know that the position was in the MEBI department or anything about that department; he knew only that the position included some reception duties). ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 10 1 interviews quickly. Plaintiff has provided enough evidence to shed doubt on defendants’ 2 proffered reasons. Therefore, the case must be submitted to a jury. See, e.g., Chen, 86 3 Wn. App. at 190; see also Rose, 902 F.2d at 1423 (explaining that an inference of 4 discrimination can arise when others not in the protected class are treated more 5 favorably). 6 2. 7 Plaintiff contends that defendant violated the WLAD by refusing to consider him Retaliation Claim. 8 for additional jobs after he complained to Suffis about his alleged discriminatory 9 treatment. RCW 49.60.210(1) provides that it is an unfair practice for employers “to 10 discharge, expel, or otherwise discriminate against any person because he or she has 11 opposed any practices forbidden by this chapter . . . .” Plaintiff’s retaliation claim is 12 subject to the McDonnell Douglas burden shifting analysis. See, e.g., Renz v. Spokane 13 Eye Clinic, 114 Wn. App. 611, 618 (2002) (citing McDonnell Douglas Corp. v. Green, 14 411 U.S. 792 (1973)). To establish a prima facie case of retaliation, a plaintiff must show 15 that 1) he engaged in statutorily protected activity, 2) the employer took some adverse 16 action against him, and 3) retaliation was a substantial factor behind the action. See, e.g., 17 Washington v. Boeing, 105 Wn. App. 1, 14 (2000). To satisfy the third factor, plaintiff 18 must show some nexus between the protected activity and the adverse action. See, e.g., 19 Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 863 (2000). Once a plaintiff 20 establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, 21 non-retaliatory reason for the adverse employment action. If it does so, the burden shifts 22 back to plaintiff to show that the employer’s stated reason was a pretext for a retaliatory 23 motive. See, e.g., Renz, 114 Wn. App. at 618-19. 24 In this case, defendant concedes that plaintiff’s internal complaint was protected 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 11 1 by the WLAD. An employment action is sufficiently adverse to support a retaliation 2 claim if it “could well dissuade a reasonable worker from making or supporting a charge 3 of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); 4 see also Crawford v. Metropolitan Gov’t of Nashville & Davidson County, __ U.S. __, 5 2009 U.S. LEXIS 870 at *14 (Jan. 26, 2009) (noting a law review article which found that 6 “fear of retaliation is the leading reason why people stay silent instead of voicing their 7 concerns about bias and discrimination”) (internal citation and quotation omitted). 8 In this case, defendants argue that plaintiff was not treated differently after he 9 complained because he continued to receive offers to work until he ceased calling in to 10 report his availability. Although that argument may undermine plaintiff’s damages at 11 some point, it ignores the fact that a jury could find that the posting of the complaint was 12 in itself an adverse action. A reasonable employee could be dissuaded from complaining 13 of discrimination if the contents of that complaint were posted on the database used for 14 hiring. Indeed, Suffis acknowledged that the posting was inappropriate, it could “create 15 bias” against the person, and that she would be concerned about retaliation based on the 16 posting. Suffis Dep. at pp. 95-97. Moreover, the posting occurred just one week after 17 plaintiff complained. The close temporal nexus is sufficient at this stage to raise an 18 inference that retaliation motivated the posting. See, e.g., Francom, 98 Wn. App. at 862 19 (“One factor supporting retaliatory motivation is proximity in time between the protected 20 activity and the employment action”). Defendant has not offered any explanation for the 21 posting. Therefore, it is not entitled to summary judgment on plaintiff’s retaliation claim. 22 3. 23 To establish an equal protection violation, plaintiff must show that Hogan was 24 Individual Claims Against Hogan. motivated by a discriminatory purpose based on his age or race. See, e.g., Thomas v. City 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 12 1 of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004). Defendants argue that plaintiff’s claims 2 against Hogan must be dismissed because (1) plaintiff has failed to produce the necessary 3 evidence of intentional discrimination, and (2) Hogan is entitled to qualified immunity. 4 “The doctrine of qualified immunity protects government officials from liability 5 for civil damages insofar as their conduct does not violate clearly established statutory or 6 constitutional rights of which a reasonable person would have known.” Pearson v. 7 Callahan, __ U.S. __, 2009 U.S. LEXIS 591 at * 14 (Jan. 21, 2009) (internal citation and 8 quotation omitted). Immunity questions should be resolved “at the earlier possible stage 9 in litigation” to avoid subjecting government officials to the expense of defending against 10 “insubstantial claims.” Id. at *15 (internal citations and quotations omitted). The 11 Supreme Court has identified a two-step test for resolving qualified immunity claims: (1) 12 whether the facts that a plaintiff has shown make out a violation of a constitutional right, 13 and (2) whether the right at issue was “clearly established” at the time of the official’s 14 alleged misconduct. Id. at *15-16 (citing Saucier v. Katz, 533 U.S. 194 (2001)). In 15 Pearson, the Supreme Court explained that the Saucier sequence is not mandatory, 16 though it is often beneficial. Id. at *22. If an official reasonably believed that his or her 17 conduct was lawful, qualified immunity applies. See, e.g., Jeffers v. Gomez, 267 F.3d 18 895, 910 (9th Cir. 2001). The standard “gives ample room for mistaken judgments by 19 protecting all but the plainly incompetent or those who knowingly violate the law.” 20 Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (internal citation and quotation 21 omitted). The Court must view the facts in the light most favorable to plaintiff. Saucier, 22 533 U.S. at 201. 23 Plaintiff counters that Hogan is not entitled to qualified immunity because the right 24 to be free from discrimination and the prohibition on making employment decisions based 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 13 1 on racial stereotypes was well established at the time of the interview. Although that is 2 true, the Court must also consider whether Hogan reasonably believed that her conduct 3 was lawful. Hogan believed that plaintiff was more interested in positions that involved 4 working with patients and/or in the hospitals. Hogan Decl. at ¶¶ 12-14. The evidence of 5 what occurred both during and after the interview supports her assumption. 6 Undisputedly, during the interview, Hogan said something to the effect of, “It sounds like 7 you might be interested in jobs at hospitals or jobs that involve patient care?” Plaintiff’s 8 Dep. at p. 30. Despite that clear question, plaintiff did not deny that he was interested in 9 those jobs or explicitly express interest in the MEBI job instead. In fact, plaintiff was 10 interested in jobs at the hospitals and jobs that involved patient care. Id. For purposes of 11 his discrimination claim, plaintiff can argue that he was too shocked by the abrupt nature 12 of the interview to counter Hogan’s assertion. However, in light of his apparent interest 13 in helping patients and failure to express interest in the MEBI position, it was reasonable 14 for Hogan to believe that he was not interested. This is particularly true because 15 applicants to the MEBI department frequently misunderstood that the nature of the 16 department’s work and believed that it involved patient care. It is reasonable that when 17 choosing between qualified applicants, Hogan recommended the person who seemed to 18 her to be more interested in the position. Furthermore, Hogan’s explanation for her 19 recommendation have been consistent. Shortly after the interviews, she told both 20 Hinkhouse and Vick that Prue was not interested in the position. Hinkhouse Dep. at pp. 21 110-11; Vick Dep. at pp. 40-41. Finally, although plaintiff contends that Hogan said 22 something to the effect that the job was not for him, the comment does not reflect 23 stereotyping when viewed in context. Hogan did not make the statement then steer 24 plaintiff towards lower-status positions. Rather, she offered him advice on how to find 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 14 1 positions in patient care. Those positions are not inferior nor stereotypically associated 2 with any minority group. In sum, defendants have shown that Hogan reasonably believed 3 that her conduct did not violate the law. Under the circumstances, she is entitled to 4 qualified immunity. 5 6 III. CONCLUSION For all of the foregoing reasons, the Court GRANTS IN PART AND DENIES IN 7 PART defendants’ motion for summary judgment (Dkt. #32). Plaintiff’s claims against 8 Hogan are dismissed because she is entitled to qualified immunity. Plaintiff may proceed 9 with his claims of discrimination and retaliation against the University. Within ten days 10 of the date of this order, the parties are ordered to file a joint status report stating when 11 they will be ready to proceed to trial. 12 13 DATED this 5th day of February, 2009. 14 15 16 17 A Robert S. Lasnik United States District Judge 18 19 20 21 22 23 24 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT - 15
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