The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
This action was filed by plaintiff Charles Light alleging that his application for employment with the Small Business Administration (SBA) was rejected in retaliation for his prior EEO activities, violating Title VII of the Civil Rights Act of 1964, as amended. On September 28, 2012, this Court entered an order  granting defendant's motion for summary judgment . This Memorandum Opinion explains the reasoning behind the September 28, 2012 Order.
Plaintiff was employed as an attorney and temporary employee at SBA beginning in February 7, 1994. Pl. Br. at 2; Def. Statement of Material Facts ¶ 2.*fn1 Soon after beginning work, one of his female co-workers, Elizabeth Parry, complained to their first-line supervisor, Chet Rewers, that plaintiff was engaging in "verbal conduct of a sexual nature which she found offensive." Pl. Br. at 2-3; Def. Statement ¶ 4. Rewers informed a higher level supervisor, Gary Appelt, who contacted Parry. Def. Statement ¶ 4. On Appelt's request, Parry wrote a memorandum detailing plaintiff's offensive comments, which included: (1) a derogatory comment about the meaning of "T&A"; (2) a reference to "taking advantage of the opportunity to open [a] woman's blouse to 'push her buttons,'"; and (3) a statement that plaintiff "thought it was sexual harassment whenever a woman left the house without a veil." Def. Statement ¶ 4; Def. Ex. G, Parry Memorandum. Appelt reprimanded plaintiff for his conduct. Pl. Br. at 3. On August 30, plaintiff made another comment that offended Parry: about the "type" of woman who could be sexually harassed, and she complained again to Appelt. Pl. Br. at 3; Def. Statement ¶ 6-8. On the 31st, Appelt lectured all employees in his section about sexual harassment. Def. Statement ¶ 9. The next day, "certain unnamed co-workers approached" Rewers, and accused plaintiff of disrupting the workplace. Pl. Br. at 4. Rewers shared that information with Appelt and Moser. Pl. Br. at 4.
On September 9, plaintiff was given a letter informing him that his temporary appointment at SBA would not be renewed, and his employment would conclude on September 24. Pl. Br. at 4; Def. Statement ¶ 13. On September 14, plaintiff submitted a notice of constructive discharge letter to Appelt and another supervisor, Richard Moser, copying others at SBA, in which he complained that his employers failed to investigate Parry's "false and malicious accusations of sexual harassment against me"; that "one comment . . . over coffee in our workplace has led to my termination"; that he too has been the victim of sexual harassment and a hostile workplace; that Mr. Appelt was "malicious"; that both Appelt and Moser brought "great discredit" on the SBA and the legal profession as a whole; and that they had both "forgotten what it means to be a lawyer." Pl. Ex. 1. Plaintiff did not return to work after submitting this letter.
Plaintiff pursued claims of gender discrimination, retaliation, and constructive discharge against the SBA through administrative and judicial channels. In a January 18, 2001 opinion, a district court in the Eastern District of California entered summary judgment in favor of defendant on all of plaintiff's claims. Def. Ex. A, Light v. Alvarez, Civil Action No. S-99-0778, Memorandum Opinion and Order (E.D. Cal. Jan 18, 2001) (FCD/PAN);.
On August 18, 2004, plaintiff submitted an application for a job advertised on the SBA website. Pl. Br. at 5; Def. Ex. K, Light's Application. On September 15, plaintiff called the SBA and was notified that his application had been rejected. Pl. Br. at 6. It is SBA policy that whenever a former employee in plaintiff's position applies for new position with the agency, the agency will review that employee's record in the "blue card" system to ensure there are no prior conduct or performance problems. Def. Statement ¶ 16; Def. Ex. L, Affidavit of Charles L. Light at 2. Plaintiff learned in his phone call with SBA that his name had been "red-flagged" when it had been run through the "blue card" database, and was referred to Allan Hoberman, director of personnel, for a decision. Pl. Br. at 6; Def. Statement ¶ 15; Def. Ex. L, Affidavit of Charles L. Light ("There is evidence that my blue card database record was checked."). Plaintiff contacted Hoberman, who informed plaintiff over the phone that his application had been denied for "conduct" reasons. Pl. Br. at 6. On October 6, 2004, after receiving plaintiff's written requests for written explanation of the adverse decision, Hoberman responded to plaintiff in a letter, Pl. Ex. 5, explaining the agency's decision not to rehire plaintiff. The letter explains that the decision "was based upon [the agency's] experience with [plaintiff] for the brief seven-month appointment [he] had in Sacramento" which was "recorded in our data base referred to as our 'blue card' system." Pl. Ex. 5. Hoberman's letter continued: "[t]he information about your previous employment that we felt was not conducive to your being rehired involved your ability to work with the other employees in the office." Pl. Ex. 5. The letter goes on to refer to plaintiff's September 14, 1994 letter of resignation, in which plaintiff "made allegations about the management in the Sacramento office which were neither correct or constructive" and which the agency now found "indicative of [plaintiff's] inability to work within the management frame work" of the agency. Pl. Ex. 5.
The parties disagree about the information Hoberman relied on when he decided not to rehire plaintiff. Defendant claims that: "In making the decision not to rehire [plaintiff], Hoberman considered negative comments in [his] prior employment records, his conversation with an Agency official familiar with [plaintiff's] 1994 employment, and [plaintiff's] resignation letter, all of which confirmed his honest belief that [plaintiff] had difficulty working with other employees and supervisors and should not be hired." Def. Br. at 7. Specifically, defendant claims that plaintiff's application was referred to Hoberman after a review of his blue card by screening personnel showed negative information, Def. Statement ¶ 16; that Hoberman reviewed this blue card, Def. Statement ¶ 18; that the blue card indicated that plaintiff had "demonstrated conduct issues concerning his inability to get along w/his co-workers & managers," Def. Br. at 8; Def. Statement ¶ 17; and that Hoberman would not have rehired plaintiff even without the blue card based on his own prior knowledge of plaintiff's conduct issues, based in part on his knowledge of the substance and outcome of plaintiff's earlier failed Title VII action. Def. Br. at 8; Def. Statement ¶ 19 (citing Def. Ex. M, Hoberman Affidavit). To compliment this evidence, defendant also offers deposition testimony from three of plaintiff's other supervisors at SBA -- Appelt, Rewers, and Moser -- all of whom confirm that they would not have rehired plaintiff because of his prior conduct problems. Def. Br. at 13; Def. Statement ¶ 18 (citing Def. Ex. E, Rewers Deposition at 83:1-5; Def. Ex. D, Appelt Deposition at 209:24 -- 210:11; Def. Ex. H, Moser Deposition at 100:5-7). In sum, defendant insists that its reasons for declining to rehire plaintiff in 2004 are the same reasons that led it to decline to extend plaintiff's employment in 1994 -- reasons which were affirmed by a court in the Eastern District of California in plaintiff's earlier failed Title VII challenge. Def. Br. at 10; Light v. Alvarez, Def. Ex. A.
Plaintiff alleges that the decision not to rehire him was made in retaliation for his prior EEO activity. He points to two sources: (1) temporal proximity (about three-and-a-half years) between the conclusion of his Title VII case in January 2001 and his application for employment in August 2004, Pl. Br. at 19; and (2) Hoberman's letter, Pl. Ex. 5, stating that in rejecting plaintiff's application he relied, in part, on plaintiff's notice of constructive discharge letter. Pl. Br. at 21-23 (suggesting Hoberman's conceded reliance on this 1994 letter "constitutes direct evidence of Mr. Hoberman's retaliatory animus"). Plaintiff attempts to rebut defendant's proffered non-retaliatory reason by insisting that defendant's evidence is irrelevant or fraudulent. Pl. Br. at 23-28. Plaintiff argues that the 2001 opinion rejecting his earlier Title VII claim is inadmissible because it was not "considered, or relied upon" by Hoberman when he made the decision to reject plaintiff. Pl. Br. at 8, 24. Plaintiff initially argued that the blue card was entirely inadmissible as a business record, Pl. Br. at 7-14, but subsequently conceded the point in his surreply. Pl. Surreply at 1-2. Plaintiff continues to maintain, however, that the "comments" section of the blue card, which contained references to plaintiff's prior conduct problems, were fraudulently altered on or after the date defendant claims the card triggered the review and rejection of plaintiff's application. Pl. Surreply at 2. Plaintiff also suggests throughout his brief that SBA officials have manipulated the evidence it has proffered in support of its independent and non-retaliatory reason, and lied about the timing that information was conveyed between officials. See, e.g., Pl. Br. at 29 (noting, as to the timing of communications between Hoberman and others upon receiving plaintiff's application and before making the decision, that "it strains credulity that any government agency could work that efficiently"); Pl. Br. at 35-38 (proposing an "alternate scenario" or "hypothesis" in which "Hoberman, knowing nothing about Plaintiff outside of his prior six years of EEO activity, [first] decided . . . that Plaintiff's application would be rejected," then SBA officials artificially constructed a "'scenario' for the proper handling of Plaintiff's application" by forging or altering plaintiff's blue card to justify the rejection post hoc).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's evidence as true. Anderson, 477 U.S. at ...