Olivia Lockhart, Plaintiff, v. Martin O'Malley, et al., Defendants. (2026)

ORDER

Pending before the Court is Defendant's “Motion for Partial Summary Judgment.”¹ (Doc. 82.) Defendant moves for summary judgment on Plaintiff's race- and age-based claims. (Id. at 1.) The Motion is fully briefed and is suitable for adjudication without oral argument. For the following reasons, Defendant's Motion will be granted in part.

I. Summary of Conclusions.

Plaintiff, who spent over 20 years working with the Social Security Administration (“SSA”), commenced this action asserting age, disability, and race discrimination. For the instant Motion, Plaintiff's disability discrimination claims—other than a failure-to-exhaust claim on her disability-based constructive discharge claim—are not in dispute. Rather, Defendant only challenges Plaintiff's age and race claims.

Because Plaintiff—viewing the facts in the light most favorable to her and considering her minimal burden in establishing a prima facie case—has failed to meet her burden in establishing a prima facie case for any of her age and race claims, the Court shall grant Defendant's Motion as to those claims. Additionally, Plaintiff's requests for emotional distress and punitive damages are unsupported by the Rehabilitation Act. Hence, Defendant's Motion is granted as to those claims. But, the Court does not agree that Plaintiff has failed to exhaust her administrative remedies as to her disability-based constructive discharge claim. Hence, the Court shall grant Defendant's Motion in part. Consequently, only Plaintiff's disability-related claims shall proceed to trial.

II. Background.

A. Factual Background.

The following facts are undisputed or not subject to reasonable dispute by the parties.

Plaintiff is a Hispanic woman who is a naturalized United States citizen. (Doc. 91 at ¶ 20); (doc. 83 ¶ 5.) Plaintiff was born in 1965. (Doc. 91 at ¶ 19); (doc. 83 ¶ 4.) Plaintiff suffers from various medical conditions including “thoracic spine issues, severe chronic migraines, cervical radiculopathy, muscle spasms and severe anxiety.”² (Doc. 91-22 at 3.)

Plaintiff was an employee of the SSA from 1995 to her retirement on August 31, 2019. (Doc. 91 at ¶¶ 14, 20); (doc. 83 at ¶ 1.) Plaintiff began her career with the SSA in Lubbock, Texas, in 1995, before she moved to Virginia in 2000. (Doc. 83 at ¶¶ 1–2.) Plaintiff continued her SSA career in Roanoke, Virginia. (Id. at ¶ 2.) While at the Roanoke office, Plaintiff received ergonomic accommodations, “including a keyboard tray, special needs chair, and heating pad[.]” (Doc. 91 at ¶ 15.)

Following her 14-year stint at the Roanoke office, Plaintiff transferred to the Mesa, Arizona, office in 2014. (Doc. 83 at ¶ 3); (doc. 91 at ¶ 16.) At the time Plaintiff transferred to the Mesa office, she was 49 years old. (Doc. 83 at ¶ 4.) Contemporaneously with her arrival at the Mesa office, “Plaintiff requested the same ergonomic accommodations she had received in Roanoke.” (Doc. 91 at ¶ 17.) These requests were denied. (Id. at ¶ 18.)

During her time at the Mesa office, Plaintiff was supervised by District Manager Reimers, Operations Supervisor Robello, and Operations Supervisor Lopez. (Id. at ¶¶ 37, 41.) Of her 15 colleagues supervised by Robello, see (id. at ¶ 18), Plaintiff notes that there were only three individuals—including Plaintiff—who were Hispanic. (Doc. 91-2 at 10.) Plaintiff testified that Caucasian colleagues were given preferential treatment, including receiving desk time upon request that would be denied to Plaintiff. (Doc. 91 at ¶¶ 29–30.) Plaintiff testified that she received workload assignments that were not sent to the rest of her colleagues. (Id. at ¶ 33.) In her deposition, Plaintiff asserted that she “was always held to a higher standard” and that “there w[ere] rules ․ for the group, and then there w[ere] rules for me.” (Doc. 83-1 at 9.)

In her sworn affidavit within the Report of Investigation (“ROI”), Plaintiff stated that that “I have seen the difference in treatment based on race. Caucasian employees are not held accountable for the work assignments, common mistakes on cases, not doing or overlooking things. They are not held accountable, but I am.” (Doc. 91-2 at 10.) Plaintiff further stated in her affidavit that:

[t]here are those ‘preferred’ employees, Lori, Audra, and Laura (all Caucasian), management consistently allows to work at their desk to close cases. Management does not give them any additional duties or tasks to complete when they have ‘desk time’ and they are allowed full days of desk time․ However, there are three of us, myself, Nidya and Rocio (all Hispanic), who are rarely allowed ‘desk time’ and when it is given, management provides us with extra assignments to complete. We are also not given a full day of desk time.

(Id.)

Additionally, during her tenure at the Mesa office from 2016 to 2017, Plaintiff was asked by Lopez, on “two to three occasions,” “when she planned to retire[.]” (Id. at ¶ 40.) Lopez also told Plaintiff that he “would hate for you to get, you know, your accommodations and not be here.” (Id. at ¶ 41.) Plaintiff stated, in her sworn Equal Employment Opportunity (“EEO”) discovery responses, that management made “it very difficult for older or disabled employees to receive accommodations, that older employees are denied their reasonable accommodations, and that older employees who have disabilities have been forced to quit, retire, or were fired.” (Id. at ¶ 43) (cleaned up).

Plaintiff formally filed an EEO complaint on October 17, 2018. (Doc. 91-28 at 4.) Plaintiff's race-based claim was added on April 29, 2020. (Doc. 91 at ¶ 26.) Between those dates, Plaintiff retired on August 31, 2019. (Id. at ¶ 19.) Plaintiff asserted that this was a forced medical retirement, specifically asserting during a deposition that “I believe that they were retaliating against me for my EEO that I filed, and also because of my accommodations request ․ I felt more strongly than anything, you know, with the way that my experience has been in that office, that they were targeting me to terminate me.” (Id. at ¶¶ 19, 24) (citation omitted).

B. Procedural Background.

Plaintiff initially sought EEO counseling on July 13, 2018. (Doc. 90-28 at 4.) After she sought EEO counseling, Plaintiff was placed on a seven-day suspension in September of 2018. (Doc. 91 at ¶ 56.) The charges for the seven-day suspension were: (a) failure to follow instructions; (b) conduct unbecoming; (c) failure to follow leave instructions; and (d) lack of candor. (Doc. 91-15 at 7–8.)

She filed her initial EEO complaint on October 17, 2018. (Doc. 90-28 at 4.) She also filed EEO complaints in 2019 and 2020. (Doc. 91-7 at 8.) Plaintiff was deposed and testified multiple times for these investigations. (Doc. 83 at ¶¶ 6–8.)

In addition to her complaints before the Equal Employment Opportunity Commission (“EEOC”), Plaintiff filed an appeal with the Merit System Protection Board (“MSPB”) on June 6, 2020. (Doc. 91 at ¶ 13.) However, Plaintiff withdrew her MSPB appeal on July 27, 2020. (Id.); (doc. 83-5.)

Eventually, the EEOC denied Plaintiff's EEOC complaints. (Doc. 91-22 at 10.) Final agency decisions were issued on August 10, 2022, and August 25, 2022. EEOC Decision No. 540-2019-00213X (Aug. 10, 2022); EEOC Decision No. 540-2020-00260X (Aug. 25, 2022).³

On November 8, 2022, Plaintiff filed her Complaint. (Doc. 1.) Plaintiff's Complaint was filed 90 days after the EEOC's August 10, 2022, decision. (Id.) On January 23, 2026, Defendant filed the instant Motion for Summary Judgment.⁴ (Doc. 82.) Plaintiff filed a Response on March 24, 2026. (Doc. 90.) On May 1, 2026, Defendant filed their Reply.⁵ (Doc. 94.)

III. Legal Standard.

Under Rule 56, “[t]he court shall grant summary judgment if the movant 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). “The court views the evidence in the light most favorable to the non-moving party to determine if there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). “A fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue in the non-movant's favor.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[s]ummary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d at 1125 (citation omitted).

“[A] party seeking summary judgment 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) (citation omitted). 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.” Id. 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, 77 U.S. at 248. Evidence that “is merely colorable ․ or is not significantly probative” will not preclude summary judgment. Id. at 249.

IV. Discussion.

In the instant Motion, Defendant seeks partial summary judgment on seven of Plaintiff's race- and age-based claims and several of Plaintiff's “damage theories[.]” (Doc. 82 at 4–12.) Specifically, Defendant asserts that Plaintiff's race- and age-based claims fail as a matter of law, that her constructive discharge claims based on race and age are unexhausted, and that several of Plaintiff's theories of damages are unrecoverable pursuant to congressional statute. (Id. at 5–12.) Plaintiff, in her Response, opposes Defendant's contentions that her race- and age-based claims fail as a matter of law and that her constructive discharge claims are unexhausted. (Doc. 90 at 4–19.) Plaintiff does acknowledge that the damage theories challenged by Defendant are not recoverable. (Id. at 19–20.)

Based upon the parties’ arguments, the Court shall first address Plaintiff's race-based discrimination claims. Second, the Court shall address Plaintiff's age-based discrimination claims. Third, the Court shall address Defendant's exhaustion and merits arguments as to Plaintiff's age- and race-based constructive discharge claims. Finally, the Court shall address whether Plaintiff's damage theories are recoverable.

A. Race Claims.

Plaintiff's race-based claims are grounded upon Title VII of the Civil Rights Act of 1964. (Doc. 1 at 20–23.) Title VII “provides, in relevant part, that ‘it shall be an unlawful employment practice for an employer ․ to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race[.]’ ” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (quoting 42 U.S.C. § 2000e-2(a)(1)). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.” Oncale, 523 U.S. at 78 (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)).

Defendant asserts that summary judgment on Plaintiff's race-based discrimination, hostile work environment, and retaliation claims should be entered in his favor. The Court shall address each argument in turn.

a. Discrimination Based on Race.

Plaintiff's race-based discrimination claim fails as a matter of law because she has not established a prima facie case of race-based employment discrimination.

Here, Plaintiff bases her race discrimination claim on disparate treatment. “Under Title VII, an individual suffers disparate treatment when he or she is singled out and treated less favorably than others similarly situated on account of race.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) (citation omitted). Courts analyze “Title VII claims through the burden-shifting framework of McDonnell Douglas Corp. v. Green[.]”⁶ Hawn v. Exec. Jet Mgmt., 615 F.3d 1151, 1155 (9th Cir. 2010). “Under this analysis, plaintiffs must first establish a prima facie case of employment discrimination.” Id. (citing Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007) (“In the summary judgment context, the plaintiff bears the initial burden to establish a prima facie case of disparate treatment.”)).

“The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas, or by more direct evidence of discriminatory intent.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citation omitted). A Plaintiff may establish a prima facie case based on circumstantial evidence by establishing:

(1) that they are members of a protected class; (2) that they were qualified for their positions and performing their jobs satisfactorily; (3) that they experienced adverse employment actions; and (4) that ‘similarly situated individuals outside [their] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.’

Hawn, 615 F.3d at 1156 (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).

“The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Put differently, “the evidence may be either direct or circumstantial, and the amount that must be produced in order to create a prima facie case is very little.”⁷ Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110–11 (9th Cir. 1991) (cleaned up), superseded on other grounds as recognized by Dominguez-Curry, 424 F.3d at 1041. Although the degree of proof is minor, it is still a requirement that a plaintiff must meet.

The focus of Defendant's Motion for Summary Judgment is on the third and fourth factors. (Doc. 82 at 5.) As to the third Plaintiff proffers that denying desk time amounts to an adverse employment action. (Doc. 90 at 6.) Concerning the fourth factor, Plaintiff contends that White employees were treated more favorably because White colleagues “received full days of desk time without question and without additional assignments.” (Id.) The Court does not find either assertion availing.

Turning first to the third factor, the Court does not find that limiting desk time amounts to an action materially affecting the conditions of Plaintiff's employment. “[A]n adverse employment action is one that ‘materially affects the compensation, terms, conditions, or privileges of employment.’ ”⁸ Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (cleaned up) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1126 (9th Cir. 2000)). For example, adverse employment actions include the assignment of “more, or more burdensome, work responsibilities[.]” Davis, 520 F.3d at 1089.

Plaintiff's contention that management's rare permission to conduct desk time—and when permitted, with additional assignments—is insufficient to rise to the level of an adverse employment action. The limitation of desk time “standing alone, without impact on the compensation, terms, conditions, or privileges of employment does not amount to an adverse employment action.” See Spokoiny v. Univ. of Wash. Med. Ctr., No. 24-550, 2025 U.S. App. LEXIS 5698, at *3 (9th Cir. Mar. 10, 2025). Put simply, the Court does not find that the limitation of desk time amounts to an action that materially affects the terms, conditions, or privileges of her employment.

Even assuming, arguendo, that Plaintiff satisfies the third prima facie factor, she fails to satisfy the fourth factor. Here, Plaintiff relies upon her own testimony and affidavit to claim that White colleagues were treated more preferably than members in Plaintiff's protected class. However, these statements in her testimony and affidavits announce conclusory allegations without providing any specific facts substantiating her allegations. Such claims, without being substantiated by specific facts, are insufficient to establish the fourth element in the prima facie case, even when the requisite degree of proof is minor. See Fed. Trade Comm'n v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”); see also Allen v. Republic Silver State Disposal, Inc., No. 2:10-CV-827 JCM (VCF), 2012 U.S. Dist. LEXIS 16589, at *14 (D. Nev. Feb. 10, 2012) (“Here, plaintiffs’ affidavits state conclusory allegations without providing specific supporting facts. This is insufficient to establish a prima facie case of racial discrimination, even when the requisite showing is minimal.”); Jackson v. City of Yachats, No. 6:23-cv-00690-AP, 2025 U.S. Dist. LEXIS 254500, at *46 (D. Or. Dec. 9, 2025) (finding that a plaintiff's “own statements that she was forced to use unpaid leave when others were not” was “not sufficient” to establish an adverse employment action).

Given the foregoing, the Court does not find that Plaintiff has established a prima facie case of racial discrimination based on disparate treatment, even considering the minimal degree of proof required. In the absence of any genuine dispute as to any material facts, Defendant is accordingly entitled to judgment as a matter of law on Plaintiff's race-based discrimination claim.

b. Hostile Work Environment Based on Race.

Plaintiff's race-based hostile work environment ⁹ claim is predicated on her claims that she was held accountable for mistakes unlike her White colleagues, and because she and two other Latina coworkers were not permitted desk time whereas White colleagues were. (Doc. 90 at 6–7.) These assertions are insufficient to establish a prima facie hostile work environment claim under Title VII.

To prevail on a hostile work environment claim, Plaintiff must establish that: “(1) [s]he was subjected to a hostile work environment; and (2) [Defendant] was liable for the harassment that caused the hostile environment to exist.” Fried v. Wynn L.V., LLC, 18 F.4th 643, 647 (9th Cir. 2021). To establish the first step, Plaintiff “must raise a triable issue of fact as to whether (1) she was ‘subjected to verbal or physical conduct’ because of her race, (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.’ ” Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003) (quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002)). To determine whether the conduct at issue was “sufficiently severe or pervasive to violate Title VII,” the Court looks 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.” Vasquez v. Cnty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003). Additionally, “the working environment must both subjectively and objectively be perceived as abusive.” Id.

In viewing the evidence in the light most favorable to Plaintiff, she has failed to articulate an actionable race-based hostile work environment claim. Plaintiff fatally fails to establish any element in her prima facie case.

Plaintiff claims that she was held more accountable than her White peers, that she was not readily provided with desk time, and that she was monitored by management. These assertions fail to establish that she was on the receiving end of (a) physical or verbal conduct that was (b) sufficiently severe or pervasive to alter the conditions of her employment. Although it is understandable that Plaintiff would find limited desk time, monitoring, or heightened accountability unwelcome, a reasonable fact finder would be unable to find that those conditions satisfied any element of her prima facie case. Hence, Defendant is entitled to judgment as a matter of law on Plaintiff's race-based harassment claim.

c. Retaliation Based on Race.

Plaintiff's race-based retaliation claim fails as a matter of law because she has not established a prima facie case of retaliation. “To establish a prima facie case of retaliation, an aggrieved employee must show that (1) [s]he has engaged in statutorily protected expression; (2) [s]he has suffered an adverse employment action; and (3) there is a causal link ¹⁰ between the protected expression and the adverse action.” Equal Emp. Opportunity Comm'n v. Dinuba Med. Clinic, 222 F.3d 580, 586 (9th Cir. 2000) (citation omitted). “A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (citations omitted).

Plaintiff has failed to establish a prima facie case of race-based retaliation. As to the first factor, Plaintiff has failed to clarify when or how she engaged in a statutorily protected expression related to race. While Plaintiff's EEO activity is a statutorily protected expression, see Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000), it does not appear that her pre-retirement EEOC activity was premised on race. Rather, it appears that they were primarily based on her disability discrimination claims. See (doc. 91-22 at 3) (“Complainant states in 2018, she filed an EEO complaint (Case Number: SF-18-0831-SSA) for discrimination based on age, disability status and failure to accommodate when the Agency did not approve her request to telework.”). In fact, Plaintiff's race claims before the EEOC were not added until April 29, 2020, see (doc. 91-28 at 3), which came after her retirement on August 31, 2019. (Doc. 91 at ¶ 19.) Hence, she did not engage in a statutorily protected activity based on race while still employed by the SSA.

Given that Plaintiff has not established what statutorily protected expression related to race that she engaged in, she has not established the first retaliation element. See Hukman v. Sw. Airlines Co., No. 18-CV-1204-GPC-RBB, 2019 U.S. Dist. LEXIS 143209, at *46–47 (S.D. Cal. Aug. 22, 2019) (finding the plaintiff's “prima facie case for retaliation fail[ed] on the first prong” because she “never complained about any allegedly discriminatory conduct during the duration of her employment”) (cleaned up). Additionally, even assuming arguendo that she did meet the first prima facie element, she fails to establish a nexus between an adverse employment action and her statutorily protected expression. Without considering the merits of Plaintiff's constructive discharge claim at this moment, a constructive discharge claim can amount to an adverse employment action. See Mosakowski v. PSS World Med., Inc., 329 F. Supp. 2d 1112, 1126 (D. Ariz. 2003); see also Wowo v. Its Logistics, LLC, No. 3:24-CV-00061-ART-CSD, 2025 U.S. Dist. LEXIS 11768, at *5 (D. Nev. Jan. 23, 2025) (“[C]onstructive discharge may serve to meet the element of an ‘adverse employment action’ for a retaliation claim, but constructive discharge alone does not create a claim for retaliation under Title VII.”). But, considering that Plaintiff—based on the record before the Court—had not made any formal or informal complaints based on alleged race discrimination until after she retired, she fails to establish a nexus between the first and second prima facie factor.¹¹ This is because there was no evidence that her employer was ever aware that the she engaged in race-specific protected activity, which is essential to the third prima facie element. See Cohen, 686 F.2d at 796.

Consequently, Defendant is entitled to judgment as a matter of law on Plaintiff's race-based retaliation claim.

B. Age Claims.

Plaintiff's age-based discrimination claims are predicated on the Age Discrimination in Employment Act (“ADEA”). “The ADEA makes it unlawful for an employer to discriminate ‘because of an individual's age.’ ” France v. Johnson, 795 F.3d 1170, 1172 (9th Cir. 2015) (cleaned up) (quoting 29 U.S.C. § 623(a)(1)). “The ADEA protects federal employees and applicants for federal employment who are at least 40 years of age.” Id. When faced with a motion for summary judgment, a plaintiff asserting an ADEA claim “may proceed by either using the McDonnell Douglas framework ․ or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant's contested conduct.” Opara v. Yellen, 57 F.4th 709, 721 (9th Cir. 2023) (cleaned up).

Defendant challenges three of Plaintiff's ADEA claims: (a) discrimination based on age; (b) hostile work environment based on age; and (c) retaliation based on age. The Court shall address each in turn.¹²

a. Discrimination Based on Age.

Plaintiff's ADEA age discrimination claim fails as a matter of law because she has not established a prima facie case of age discrimination. There are two types of ADEA age discrimination claims. The first is an age-based discharge claim, where a prima facie case requires the following: “(1) membership in a protected class (forty years old or older); (2) satisfactory job performance; (3) discharge; and (4) replacement by substantially younger employees with equal or inferior qualifications.” Opara, 57 F.4th at 722 (citations omitted). The second type is a “failure-to-promote case,” where a prima facie case requires that the plaintiff be: “(1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person.” France, 795 F.3d at 1174. As was the case for Title VII claims, the degree of proof for an ADEA prima facie claim “on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Opara, 57 F.4th at 722 (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)).

Plaintiff does not clarify in her pleadings what age discrimination pathway she is pursuing. But, based on the record, it does appear that she is pursuing the discharge-focused age discrimination pathway. In any event, even considering the minimal burden at the summary judgment phase, Plaintiff has failed to meet her burden in establishing a prima facie case.

As an initial note, Defendant does not challenge the first two elements of Plaintiff's prima facie case. (Doc. 82 at 8–9.) Hence, the Court shall focus on the third and fourth factors. Here, neither party in their briefings addressed Plaintiff's discharge as it relates to her age-discrimination argument. Rather, Defendant focuses on investigative interviews and discipline Plaintiff received, (doc. 82 at 9), and Plaintiff focuses on her treatment and allegedly age-related statements she received. (Doc. 90 at 8–12.) However, it does appear that Plaintiff meets the minimal burden of showing that she retired in 2019 and beforehand had filed an EEO complaint that did assert age as a basis. Assuming arguendo—and without addressing the merits of her age-based constructive discharge argument—that she was constructively discharged, it appears that Plaintiff has meet the minute burden of establishing the third prima facie factor.

Although Plaintiff appears to meet the bear-minimum requisite burden of proof for the third prima facie factor, she fails to proffer any facts that she was replaced by a younger employee. By failing to provide any evidence as to the fourth prima facie factor—under any ADEA age discrimination pathway—Plaintiff has failed to establish a prima facie age discrimination claim. See Boone v. City of Phx., No. CV-21-01708-PHX-JJT, 2024 U.S. Dist. LEXIS 110454, at *11 (D. Ariz. June 21, 2024) (noting that “[e]ven if [the p]laintiff offered evidence that she properly applied for the job, she has produced no admissible evidence that [d]efendant filled the position with someone substantially younger than her,” and accordingly has “not established a prima facie age discrimination claim”).

Accordingly, Defendant is entitled to judgment as a matter of law on Plaintiff's ADEA age discrimination claim.

b. Hostile Work Environment Based on Age.

Plaintiff's ADEA hostile work environment claim fails as a matter of law because she has failed to establish a prima facie case.

“The Ninth Circuit has recognized age-based hostile work environment claims asserted under the ADEA.” Jefferson v. Time Warner Cable, No. CV 11-5637-GW(CWx), 2012 U.S. Dist. LEXIS 200252, at *32 (C.D. Cal. July 23, 2012) (citing Sischo-Nownejad, 934 F.2d at 1109). To establish a prima facie age-based hostile work environment claim under the ADEA, a plaintiff must show that: “(1) the defendant subjected her to verbal or physical conduct based on age; (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 working environment.” Abell v. U.S. Dep't of the Interior, No. 2:17-cv-00531-REB, 2019 U.S. Dist. LEXIS 173034, at *27 (D. Idaho Sep. 30, 2019) (citing Surrell v. Cal. Water Serv., 518 F.3d 1097, 1108 (9th Cir. 2008)). “Not every insult or harassing comment will constitute a hostile work environment.” Ray, 217 F.3d at 1245.

“In order to prevail on her hostile work environment claim, [Plaintiff] must show that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.” Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (cleaned up). “In evaluating the objective hostility of a work environment, the factors to be considered include the ‘frequency of 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.’ ” McGinest, 360 F.3d at 1113 (quoting Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001)). “Simple teasing, ․ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (cleaned up).

The main thrust of Plaintiff's age-based hostile environment claim is predicated on Supervisor Lopez's retirement comments.¹³ See (doc. 90 at 9.) Plaintiff, in her deposition, noted that from mid-2016 to mid-2017, Lopez was her supervisor, and during that time asked Plaintiff on “two, but it could have been possibly three” times when she planned to retire. (Doc. 83-1 at 10.) Specifically, Plaintiff stated that on one of those occasions, Lopez said that he “would hate for [Plaintiff] to get, you know, [her] accommodations and not be here.” (Doc. 90 at 9.)

Although the Court finds that these comments are sufficient—under the minimal burden of proof standard—to establish the first two prima facie factors, she has failed to establish the third prima facie factor. The Court does not find that two-to-three instances of retirement-related commenting or questioning over the course of a year is sufficient to equate severe or pervasive conduct altering the conditions of Plaintiff's employment. See Ortiz v. Fed. Bureau of Prisons, No. 1:22-cv-00122 JLT SKO, 2023 U.S. Dist. LEXIS 16949, at *11 (E.D. Cal. Jan. 31, 2023) (“[I]solated incidents do not amount to a hostile work environment unless ‘extremely serious.’ ”) (quoting Faragher, 524 U.S. at 788); see also Vasquez, 349 F.3d at 644 (“Two isolated offensive remarks, combined with [plaintiff's] other complaints about unfair treatment ․ was not severe or pervasive enough to create a hostile work environment.”).

For example, the District Court in D'Agostino v. Abbott Labs. Inc. similarly dealt with the scenario of two isolated incidents over the period of one year. D'Agostino v. Abbott Labs. Inc., No. CV-23-01367-PHX-SMB, 2026 U.S. Dist. LEXIS 123518, at *2, *12–16 (D. Ariz. June 4, 2026). The District Court found that the plaintiff's “hostile work environment claim ultimately fails because the two instances of age-based conduct were isolated, infrequent, and minor.” Id. at *17. The District Court's finding was based, in part, on the notion that “[m]ere discomfort or inconvenience resulting from harassment in the workplace is not sufficient to create a hostile work environment.” Id. at *19 (quoting Moore v. Potter, No. 09-CV-746-AC, 2010 U.S. Dist. LEXIS 107611, at *41 (D. Or. Oct. 6, 2010), aff'd sub nom., Moore v. Donahoe, 460 F. App'x 661 (9th Cir. 2011)).

This case is akin to D'Agostino. Plaintiff has noted that Lopez commented on her retirement on two—possibly three—occasions over the course of a year. These statements were isolated and infrequent. Additionally, while they may have made Plaintiff uncomfortable, mere discomfort from isolated incidents is insufficient to show that the workplace was permeated with discriminatory intimidation. Moreover, these offhand comments are insufficient to establish that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of Plaintiff's employment and create an abusive working environment. See Brooks, 229 F.3d at 923. In short, Plaintiff has not met her minimal burden of proof on the third element of her prima facie case. Therefore, Defendant is entitled to judgment as a matter of law on Plaintiff's ADEA hostile work environment claim.

c. Retaliation Based on Age.

Plaintiff's ADEA retaliation claim fails as a matter of law because she has not established a prima facie retaliation case. To establish a prima facie case of retaliation under the ADEA, a plaintiff “must establish three things: first, that [s]he engaged in statutorily protected activity; second, that [s]he was discharged or suffered some other adverse employment decision; and third, that there is a causal connection between the two.” O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). “A hostile work environment can constitute an adverse employment action for purposes of a retaliation claim.” Vroom v. Johnson, No. CV-14-02463-PHX-JAT, 2015 U.S. Dist. LEXIS 71865, at *14 (D. Ariz. June 3, 2015) (quoting Ray, 217 F.3d at 1245).

Although far from clear, Plaintiff—in her Response—appears to aver that her 2018 EEO complaint was the statutorily-protected age-related activity, that the adverse employment action was a hostile work environment and her seven-day suspension eight weeks after her EEO contact, and that there was a nexus between them both. While the Court notes that a suspension after an EEO contact very well could amount to retaliation, there is a crucial element missing here. Namely, the evidence that Plaintiff relies upon does not show that her EEO complaint was age based. See (doc. 90 at 12) (citing (doc. 91-2 at 2) (summarizing, on a single page, matters related to Plaintiff's disability and her accommodation request, but not about any age claims)). Instead, the admissible evidence proffered establishes that her 2018 EEO contact was based on Defendant's alleged refusal to accommodate her disabilities.

Regarding Plaintiff's assertion of a hostile work environment based on Supervisor Lopez's comments, (doc. 90 at 13), the Court has already found that she has insufficiently asserted a prima facie ADEA hostile workplace claim. See supra section IV.B.b. Moreover, such an assertion is temporally impossible—i.e., the adverse employment activity coming before she engaged in an age-related statutorily protected activity. In short, it appears legally and factually impossible that Defendant could have retaliated against Plaintiff before she engaged in an age-related statutorily protected activity.

Based upon the foregoing, the Court does not find that Plaintiff has established the first element of her prima facie case. Consequently, Defendant is entitled to judgment as a matter of law on her ADEA retaliation claim.

C. Constructive Discharge Based on Age and Race Discrimination.

Defendant seeks summary judgment on Plaintiff's age-, disability-, and race-based constructive discharge claims for failure to exhaust, and Plaintiff's age- and race-based constructive discharge claims based on the merits. For the following reasons, although Plaintiff has exhausted her administrative remedies, her constructive discharge claims based on race and age fail on the merits.

Turning first to Defendant's exhaustion argument, the Court notes that Plaintiff had asserted challenges before both the EEOC and the MSPB. (Doc. 90 at 15–16.) Plaintiff asserts she withdrew her claim before the MSPB “to allow the concurrent EEOC proceedings before Administrative Judge Nancy Griffiths to continue, not as a merits-based election to abandon the constructive discharge theory.” (Id. at 16.) Defendant asserts that by choosing to solely pursue her claims before the EEOC, not the MSPB, she has failed to exhaust her administrative remedies on her constructive discharge claims. (Doc. 82 at 11–12.) The Court disagrees.

“For certain ‘particularly serious’ adverse employment actions, the affected federal employee may appeal his agency's employment decision to the MSPB, ‘an independent adjudicator of federal employment disputes.’ ” Crowe v. Wormuth, 74 F.4th 1011, 1022 (9th Cir. 2023). Given this, “[i]f (but only if) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay—the affected employee has a right to appeal the agency's decision to the Merit Systems Protection Board, an independent adjudicator of federal employment disputes.” Kloeckner v. Solis, 568 U.S. 41, 41 (2012).

“When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a mixed case.”¹⁴ Id. at 44 (citation omitted). “A federal employee with a mixed case has a unique set of procedural options.” Crowe, 74 F.4th at 1024 (citation omitted). “One option is for the employee to file a discrimination complaint with his agency's EEO office, much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id. (citation omitted). “If the agency [EEOC] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 424 (2017) (citation omitted). “Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency's own system for evaluating discrimination charges.” Id. at 424–25 (citation omitted). While the aforementioned statutory scheme “does give federal employees with mixed cases some options in terms of the administrative process they wish to pursue, they must exhaust one of the available processes before filing a case in federal court.” Crowe, 74 F.4th at 1024.

Here, Plaintiff chose to withdraw her MSPB appeal to instead solely pursue her claims before the EEOC. Both parties note that Plaintiff's possesses a mixed claim. Hence, she could have chosen to pursue her claim before the MSPB or the EEOC. Because she chose to pursue the EEOC route, she needed to exhaust her administrative remedies before that body. Here, Plaintiff appears to have fulfilled that requirement, considering that she immediately appealed the EEOC's adverse decision to this Court. She was not required to appeal the EEOC's decision to the MSPB. See Perry, 582 U.S. at 424. Rather, doing so was up to her discretion under the statutory scheme. See Crowe, 74 F.4th at 1024. Accordingly, Plaintiff has exhausted her administrative remedies as to her constructive discharge claims based upon age, disability, and race.

While Plaintiff has carried her burden administrative exhaustion, she fails on the merits of her age- and race-based constructive discharge claims.¹⁵ “Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes․ The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). The Ninth Circuit Court of Appeals has noted that:

constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.

Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (quoting Brooks, 229 F.3d at 930).

The Ninth Circuit Court of Appeals has “set the bar high for a claim of constructive discharge because federal antidiscrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable.” Poland, 494 F.3d at 1184 (citing Tidwell v. Meyer's Bakeries, 93 F.3d 490, 494 (8th Cir. 1996) (“An employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.”)). “Summary judgment is therefore appropriate on a constructive discharge claim where the ‘decision to resign was unreasonable as a matter of law.’ ” Lawson v. Washington, 296 F.3d 799, 805 (9th Cir. 2002) (quoting King v. AC & R Adver., 65 F.3d 764, 767 (9th Cir. 1995)).

Plaintiff fails to show that her working conditions deteriorated as a result of race and age discrimination to the point that they become sufficiently extraordinary and egregious. As the Court previously noted, Plaintiff has failed to carry her burden of proof on any of her Title VII race and ADEA age discrimination claims. While such a failure does not immediately mean her constructive discharge claims based on race and age fail outright, it does not spell good news for her claims. As to her claim based on race, the Court finds that being held to a higher standard or being limited ‘desk time’ that White colleagues would readily receive is patently insufficient for any reasonable jury to find that her work environment was so intolerable that a reasonable person in Plaintiff's shoes would have felt compelled to resign. Regarding her age-based claim, the Court finds that having two-to-three comments about retirement over the course of a year is also patently insufficient for any reasonable jury to find that her work environment was so intolerable that a reasonable person in Plaintiff's position would have felt compelled to resign.

For the foregoing reasons, Defendant has established that there is no genuine dispute as to any material fact on Plaintiff's age- and race-based constructive discharge claims. Therefore, Defendant is entitled to judgment as a matter of law on those claims.

D. Theories of Liability.

The final issue the Court shall address is whether certain damages claims asserted by Plaintiff should proceed to trial. See (doc. 82 at 12.) Given the Court's discussion above, Plaintiff's Title VII and ADEA claims are no longer in play. Consequently, Defendant's assertions as to those claims are moot.

This leaves Defendant's arguments as to emotional distress and punitive damages under the Rehabilitation Act. See (id.) Plaintiff concedes that emotional distress damages are unrecoverable pursuant to Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 230 (2022)¹⁶ and that punitive damages are unrecoverable pursuant to Barnes v. Gorman, 536 U.S. 181, 189 (2002). (Doc. 90 at 19–20.) Consequently, Defendant's Motion is granted as to those claims.

V. Conclusion.

For the foregoing reasons, Plaintiff has failed to meet her burden of establishing prima facie cases of Title VII race-based discrimination, hostile work environment, and retaliation. Likewise, Plaintiff has not met her burden of establishing prima facie cases of ADEA discrimination, hostile work environment, and retaliation. Additionally, while Plaintiff has exhausted her administrative remedies, Defendant has shown that there is no genuine dispute as to any material fact on Plaintiff's age- and race-based constructive discharge claims. Furthermore, Defendant has successfully shown that Plaintiff's claims for emotional distress and punitive damages under the Rehabilitation Act are legally groundless. Therefore, Defendant's Motion for Partial Summary Judgment is granted as to those claims.

Accordingly,

IT IS ORDERED that Defendant's Motion for Partial Summary Judgment (doc. 82) is GRANTED IN PART as to Plaintiff's:

(a) race discrimination claim;

(b) claim for hostile work environment based on race;

(c) claim for retaliation based on race;

(d) age discrimination claim;

(e) age-based hostile work environment claim;

(f) claim for retaliation based on age;

(g) claim for constructive discharge based on race discrimination;

(h) claim for constructive discharge based on age discrimination; and

(i) claims for emotional distress and punitive damages predicated on the Rehabilitation Act.

IT IS FURTHER ORDERED that, in all other respects, Defendant's Motion is DENIED.

Dated this 18th day of June, 2026.

FOOTNOTES

1.   Both parties have consented to Magistrate Judge jurisdiction. (Doc. 20.)

2.   Because Defendant “concedes the existence of triable fact issues” on Plaintiff's disability-related claims, they are accordingly not in dispute in the instant Motion. (Doc. 82 at 1.)

3.   The Court notes that neither decision was provided by the parties in their statement of facts or contravening statement of facts. However, the Court finds it proper to take judicial notice of these decisions in adjudicating the instant Motion. Under the Federal Rules of Evidence, “[t]he court may,” sua sponte, “judicially notice a fact that is not subject to reasonable dispute[.]” Fed. R. Evid. 201(b), (c)(1). “Courts may take judicial notice of some public records, including the records and reports of administrative bodies.” United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (citation omitted). Hence, the Court shall take judicial notice of EEOC's decisions for the limited purposes of establishing the date of the decisions and the EEOC's determination in those matters.

4.   This action was originally assigned to Magistrate Judge Willet. Before Defendant filed the instant Motion, this action was reassigned to this Court on December 2, 2025. (Doc. 81.)

5.   The Court notes that Defendant's Reply was untimely filed. Compare (doc. 94) with (doc. 93). Nonetheless, the Court has read but does not summarize Defendant's Reply.

6.   The McDonnell Douglas burden-shifting framework requires that a plaintiff must first “make out a prima facie case.” Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1002 (9th Cir. 2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Then, the “the burden shifts to the defendant to articulate a ‘legitimate, nondiscriminatory reason’ for its action.’ ” Weil, 922 F.3d at 1003 (quoting McDonnell Douglas, 411 U.S. at 802). Then, “[i]f the defendant meets that burden, the plaintiff must produce evidence that the defendant's ‘proffered nondiscriminatory reason is merely a pretext for discrimination.’ ” Weil, 922 F.3d at 1003 (quoting Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005)).

7.   “[T]he elements and contours of a prima facie case will differ according to the facts at hand.” Hawn, 615 F.3d at 1156.

8.   “Adverse employment actions may include not only actions an employer affirmatively takes against an employee (e.g., firing or demoting the employee) but also situations in which the employer denies an employee a material employment benefit or opportunity that was otherwise available to her.” Campbell v. State Dep't of Educ., 892 F.3d 1005, 1013 (9th Cir. 2018).

9.   Defendant is correct that Plaintiff's hostile work environment and harassment claims overlap—especially considering that harassment can be a factor within a prima facie case of hostile work environment. Given this, the Court considers Plaintiff's age- and race-based harassment claims in conjunction with her related age- and race-based hostile work environment claims.

10.   “Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982).

11.   To the extent that Plaintiff avers that being ostracized and held more accountable than her colleagues—an argument in which she does not differentiate based on race or age—amounts to an adverse employment action, she is mistaken. Cf. Manatt, 339 F.3d at 803 (“Mere ostracism in the workplace is not grounds for a retaliation claim, however, and Manatt's claim on this theory must therefore fail.”); Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859, 869 (9th Cir. 1996) (same).

12.   The Court does note Plaintiff's request to amend her Complaint at ¶ 131 to fix her mistaken citation of “Title VII rather than 29 U.S.C. § 633a for the ADEA claim.” (Doc. 90 at 8–9.) Because the Court, for the reasons stated in infra section IV.B.a, Plaintiff's age discrimination claim fails as a matter of law under the ADEA, it is unnecessary to grant leave to amend. Hence, Plaintiff's request for leave to amend a citation in her Complaint is denied.

13.   The Court does not find either of Plaintiff's submissions of her own testimony and responses or a union representative's statements availing here. First, regarding Plaintiff's own statements, the Court finds that they are not substantiated by specific evidence, and are accordingly insufficient. See Jackson, 2025 U.S. Dist. LEXIS 254500, at *46. Second, regarding the union representative's statements, the Court likewise finds that Plaintiff has not proffered specific evidence that the union relied upon to form their opinion. Hence, it is also insufficient.

14.   Those serious claims include: “(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less.” Crowe, 74 F.4th at 1025 (citation omitted).

15.   The merits of Plaintiff's disability-based constructive discharge claim are not before the Court at this time.

16.   Plaintiff states that she “respectfully preserves for further review the contention that Cummings was wrongly decided and should not bar emotional distress damages under the Rehabilitation Act.” (Doc. 90 at 20.) Her assertion is duly noted here.

Honorable John Z. Boyle United States Magistrate Judge