Kama v. Mayorkas

107 F.4th 1054

Meyer KAMA, an individual, Plaintiff-Appellant, v. Alejandro N. MAYORKAS, Secretary, United States Department of Homeland Security,a government entity, Defendant-Appellee.

No. 23-55106

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 8, 2024 Pasadena, California

Filed July 18, 2024

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, Chief District Judge, Presiding, D.C. No. 2:20-cv-10265-VAP-AS

Edward J. Blum (argued), Law Office of Edward J. Blum, Los Angeles, California; for Plaintiff-Appellant.

Jill S. Casselman (argued), Assistant United States Attorney; David M. Harris, Assistant United States Attorney, Civil Division Chief; E. Martin Estrada, United States Attorney; United States Department of Justice, Los Angeles, California; for Defendant-Appellee.

Before: Eugene E. Siler,^* Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Plaintiff Meyer Kama, who was formerly a transportation security officer ("TSO") with the Transportation Security Administration ("TSA"), brought this Title VII retaliation action against defendant Secretary of Homeland Security Alejandro Mayorkas after the TSA terminated Plaintiff's employment. Plaintiff contends that he engaged in protected activity under Title VII by lodging complaints with the TSA's Equal Employment Office ("EEO") regarding an alleged hostile work environment and the TSA's denial of Plaintiff's request for leave under the Family Medical Leave Act ("FMLA"). The district court granted summary judgment for Defendant, finding that Plaintiff had not established that the TSA's stated reasons for terminating his employment were pretextual. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

BACKGROUND

I. Facts

Plaintiff's EEO complaints span a period running from January 15, 2014 to February 19, 2015. Before and during the same period, the TSA—through a group of its supervisors ("Supervisors")¹—conducted an internal investigation into whether Plaintiff and other TSOs had improperly received compensation for serving as personal representatives to other employees during internal agency investigations.² The TSA terminated Plaintiff's employment based on Plaintiff's purported failure to cooperate with the investigation. Plaintiff claims that the TSA's true motive for terminating his employment was retaliation for his having made EEO complaints.

In 2011, the TSA began an investigation into TSO Wilbert Sonnier, who the agency believed had received illegal compensation for serving as a personal representative assisting other employees during internal TSA investigations.

On November 2, 2011, Daisy Lopez, a TSO who had been interviewed as part of the investigation of Sonnier, indicated Plaintiff's possible involvement in the illegal compensation scheme. The TSA did not open an investigation into Plaintiff at that time.

Several years later, on January 15, 2014, Plaintiff requested informal EEO counseling based on an alleged hostile work environment centering on TSO Timothy Cochran. Supervisors Michael Duretto and Brian Bondoc were named among the allegedly responsible agency officials but were not accused of actively perpetuating the hostile work environment. Plaintiff alleges that Duretto, Bondoc, and TSA special agent Ronald Young became aware of Plaintiff's informal counseling on the same day.

In April 2014, Sonnier resigned, and the TSA closed its investigation of him.

On May 28, 2014, Plaintiff formalized the EEO complaint for which he had received counseling on January 15, 2014. Plaintiff alleges that Duretto, Bondoc, and Ford became aware of Plaintiff's formal complaint "at some point thereafter."

On June 23, 2014, TSA management—either Derrick Ford or Martin Elam—informed the TSA's Office of Inspection (the "OOI") of potential criminal conduct by Plaintiff in connection with the earlier-alleged scheme involving Sonnier.

On June 25, 2014, the OOI opened an investigation into Plaintiff that was supervised by special agent Young.

On October 1, 2014, the TSA denied Plaintiff's request for intermittent FMLA leave, which Plaintiff had submitted on an unspecified prior date.

On November 9, 2014, Plaintiff made "initial contact" with the EEO regarding a second complaint "setting forth complaints based on race, sex, color, age, and reprisal based on an October 1, 2014 denial for [sic] intermittent [FMLA] leave."

On November 19, 2014, Young interviewed TSO Deron Jones while investigating Plaintiff. Young said to Jones: "Long story short, I've got a case against [Plaintiff] . . . I want you to give him up to me . . . . 'I got one [i.e., Sonnier], I'll get the other [i.e., Plaintiff].' "

On February 12, 2015, Young and the OOI presented their evidence against Plaintiff to the U.S. Attorneys' Office.

On February 17, 2015, the U.S. Attorney declined to prosecute Plaintiff and told Young and the OOI that they could administer a Kalkines warning to Plaintiff.³

On February 19, 2015, Plaintiff filed a formal EEO complaint based on the FMLA-related allegations first made to the EEO on November 9, 2014.

At various times between February 27 and March 13, 2015, Young and special agent Raymond Hurst interviewed and sent email requests to Plaintiff asking for information about the alleged scheme to receive compensation for serving as a personal representative to TSA employees. Plaintiff declined to answer some questions and document requests on relevance and unavailability grounds. For example, Plaintiff refused to turn over copies of his bank statements on the grounds that these statements were not relevant to whether he had received illegal compensation for serving as another employee's personal representative. Plaintiff requested that Sonnier be appointed as his personal representative during the investigation. Special agent Young denied Plaintiff's request because Sonnier was an earlier target of the investigation, creating a conflict of interest.

On March 26, 2015, Duretto sent Plaintiff a "Notice of Proposed Removal" indicating that Plaintiff's employment could potentially be terminated for "[f]ailure to cooperate in an Agency investigation."

On April 16, 2015, Supervisor Bondoc sent Plaintiff a "Notice of Removal" officially terminating his employment.

II. Protected Activities and Alleged Retaliation

Plaintiff claims that he engaged in activities protected under Title VII when he made formal and informal EEO complaints on January 15, 2014, May 28, 2014, November 9, 2014, and February 19, 2015, and that the TSA retaliated against him for these complaints by taking an adverse employment action. The only predicate adverse employment action alleged by Plaintiff is the final "Notice of Removal" Plaintiff received on April 16, 2015. Plaintiff's case is based primarily on the temporal proximity between his final EEO complaint (on February 19, 2015) and the termination of his employment (on April 16, 2015), which dates were separated by 56 days. Plaintiff also alleges that a jury could infer a retaliatory motive from the circumstances of the TSA's investigation of him. Finally, Plaintiff contends that a jury could infer retaliatory animus from the statements and conduct of Young.

III. Procedural Posture

The district court found that Plaintiff had made out a prima facie case of retaliation because a causal link between his EEO complaint and the termination of his employment plausibly could be inferred from the temporal proximity between the two events. Kama, 2:20-cv-10265-VAP-AS, Dkt. 57 at 18-19. The district court next found that the TSA had presented a legitimate non-retaliatory reason for terminating Plaintiff's employment based on his failure to cooperate in an investigation unrelated to his EEO complaints. Id. at 20-21. The district court concluded that Plaintiff could not establish that the TSA's proffered reason was pretextual because the temporal proximity between the key events was insufficient to create a genuine dispute of fact, and because most of Plaintiff's other evidence was irrelevant. Id. at 22-24. The district court granted Defendant's motion for summary judgment and dismissed Plaintiff's retaliation claim. Plaintiff timely appealed.

LEGAL STANDARD

I. Standard of Review

"This court reviews a district court's grant of summary judgment de novo." Dawson v. Entek Int'l, 630 F.3d 928, 934 (9th Cir. 2011). In reviewing a district court's grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party. Id. "Summary judgment is warranted when 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Maner v. Dignity Health, 9 F.4th 1114, 1119 (9th Cir. 2021) (quoting Fed. R. Civ. P. 56(a)).

II. Title VII Retaliation

The parties agree that this case is governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, a plaintiff must first establish a prima facie case of Title VII retaliation. A prima facie case requires a plaintiff to adequately allege that: "(1) she engaged in an activity protected under Title VII; (2) her employer subjected her to adverse employment action; [and] (3) there was a causal link between the protected activity and the employer's action." Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986). The plaintiff's evidentiary burden is low. "Under the McDonnell Douglas framework, the requisite degree of proof necessary to establish a prima facie case . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Opara v. Yellen, 57 F.4th 709, 722 (9th Cir. 2023) (cleaned up) (quoting Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)). This minimal burden is doubtless justified by the fact that those discriminating against a person because of that person's protected...