Stovall v. ASRC Energy Services-Houston Contracting Company, Inc.

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MILES STOVALL,
Plaintiff,
v.
ASRC ENERGY SERVICES – HOUSTON
CONTRACTING COMPANY, INC.,
Defendant.
Case No. 3:18-cv-00259-TMB
ORDER ON DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
(DKT. 84)
I. 	INTRODUCTION
The matter comes before the Court on Defendant ASRC Energy Services – Houston
Contracting Company, Inc.’s (“AES-HCC”) Motion for Summary Judgment (the “Motion”).1 Pro
se2 Plaintiff Miles Stovall (“Stovall”) opposes the Motion (the “Opposition”).3 The Motion has
been fully briefed and is ready for decision without oral argument.4 For the following reasons the
Motion at Docket 84 is GRANTED.
1 Dkt. 84 (Motion).
2 Pro se complaints and filings are held to less stringent standards than formal pleadings drafted
by 	lawyers. 	See 	Byrd 	v. 	Phoenix 	Police 	Dep’t, 	885 	F.3d 	639, 	642–43 	(9th 	Cir.
2018). Nevertheless, Stovall remains obligated to conform filings to Local and Federal Civil Rules
of Procedure. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow
the same rules of procedure that govern other litigants.”), overruled on other grounds by Lacey v.
Maricopa County, 693 F.3d 896, 925 (9th Cir. 2012); see also Fed. R. Civ. P. 8; Fed. R. Civ. P.
11; D. Alaska L. Civ. R. 1.1(a)(3).
3 Dkts. 87 (First Response); 90 (Stovall’s Motion to Amend & Revised Response); 96 (Text Order
Accepting Motion to Amend Response); 98 (Stovall’s Second Motion for Leave to Amend &
Operative Response); 100 (Motion for Leave to File Supplemental Brief Opposing Summary
Judgment); 106 (Text Order Accepting Second Motion to Amend Response); 107 (Order Denying
Dkt. 100).
4 See Dkts. 84; 98; 99 (Reply).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 1 of 33

2
II. 	BACKGROUND
Plaintiff Miles Stovall, an African American man,5 brings this case under 42 U.S.C. § 1981
and Title VII of the Civil Rights Act of 1964, alleging that AES-HCC unlawfully discriminated
against him on the basis of his race; specifically, that AES-HCC made it “difficult for him to
advance within the company and comply with the requirements of employment” and that AES-
HCC “sabotaged” his “ability to properly do his job[.]”6 In Count 1, he alleges he suffered racial
discrimination based on disparate treatment.7 	In Count 2, he alleges he suffered racial
discrimination based on retaliation; specifically, that AES-HCC retaliated against him when his
“supervisors denied him the proper training” and when he “was unfairly terminated for speaking
up to upper-management.”8
A. 	The Parties
AES-HCC provides “oilfield support services on Alaska’s remote North Slope and
elsewhere, including by building and maintaining pipelines, refineries, ice roads, drilling pads, and
other industrial facilities.”9 “Until December 2016, AES-HCC operated an equipment shop [(the
“Equipment Shop”)] in Deadhorse, Alaska that provided heavy equipment-related services.”10
5 Dkt. 18 at ¶ 11 (Amended Complaint).
6 Id. at ¶¶ 35–44.
7 Id. at ¶¶ 35–39.
8 Id. at ¶¶ 40–44.
9 Dkt. 85 at ¶ 2 (Hall Decl.).
10 Id. at ¶ 3.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 2 of 33

3
Stovall was first hired by AES-HCC on April 9, 2015, to work as a journeyman tireman in
the Equipment Shop, a full-time temporary position.11 	He was a union member affiliated with
Teamsters Local 959.12 AES-HCC terminated Stovall’s employment on June 9, 2015, due to his
inability to perform at the journeyman level, but he remained eligible to return in a different
position.13 	Stovall was rehired from June 15 to July 27, 2015 for another temporary position
driving heavy equipment to support a construction project. When the project was complete, the
workforce was reduced and Stovall was laid off.14 Stovall was hired for a third time on August
10, 2015, when he returned to the Equipment Shop after receiving the required training, and he
was terminated on November 26, 2015.15
B. 	Stovall’s Third Tour with AES-HCC
The parties agree that Stovall’s claims arise solely from his November 26, 2015
termination, and not any prior actions by AES-HCC.16 	According to AES-HCC, Stovall’s
termination was the culmination of “multiple safety incidents and thousands of dollars of
equipment damage, and [Stovall] refused to accept routine discipline (a one-day suspension with
11 Dkts. 84-2 at 1 (Employee Information Record); 84-3 (Teamsters Referral Slip).
12 Dkts. 84-2 at 1; 84-3.
13 Dkt. 84-5 at 1 (Employment Status Report).
14 Dkt. 84-6 at 1–2 (Employee Information Record and Email Record); 84-7 (Employment Status
Report).
15 Dkts. 84-9 (confirming that Stovall attended training); 86 at ¶ 5 (Howard Decl.); 84-20
(Employment Status Report) (noting that Stovall was “[t]erminated after causing damage to
company equipment” and “[f]ailure to abide by company pol[i]cy by not performing 360 walk
around.”).
16 Dkts. 84 at 14; 98 at 31 (“Furthermore Stovall asserts that he made it clear to the Defendant that
his claim was based specifically on November 26, 2015 regarding discrimination (race) and
retaliation under § 1981.”); 84-23 at 13:22-14:12 (Stovall Dep. Tr.).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 3 of 33

4
reinstatement) for his final safety incident.”17 The events that gave way to Stovall’s termination
took place during his third and final period of employment with AES-HCC.
The Teamsters requested that AES-HCC hire Stovall for a third time in August 2015, to be
part of the “AES/HCC Fleet Division” in Prudhoe Bay, which entailed picking up and delivering
equipment, “[w]recker calls and [t]ire [w]ork, both light and heavy tires, truck, loader[,] etc.”18
The request indicated that Stovall needed to receive additional training, including “tire repair
training [for] both heavy and light duty equipment[.]”19 	Stovall received the required training
from the Teamsters on August 13, 2015.20
On October 4, 2015, Stovall was transporting a bulldozer on a flatbed truck when he hit a
bridge railing, damaging the first two axle rims and tires of the truck (the “October incident”).21
In a written reprimand signed by Stovall, he acknowledged that the bulldozer was also improperly
chained to the trailer bed, which could “potentially cause the unit to come off the trailer while
traveling do[wn] the road.”22 According to the Equipment Shop’s policy, which was posted at the
shop,23 damage due to “negligence of [an] operator on any vehicle or equipment will result in
17 Dkt. 84 at 5.
18 Dkt. 84-8 (North Slope Craft Personnel Request).
19 Id.
20 Dkt. 84-9.
21 Dkt. 84-14 at 1 (Oct. 5, 2015 Written Reprimand re: Accident); Dkt. 84-11 at 1 (Employee
Statement re: October Accident).
22 Dkt. 84-12 at 1 (Oct. 5, 2015 Written Reprimand re: Chains).
23 Dkt. 85 at ¶ 9.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 4 of 33

5
automatic suspension of employee.”24 	Stovall provided a signed written statement where he
described the underlying facts of the October incident that resulted in damage to the truck.25
On November 23, 2015, two separate employees filed Employee Statements alleging that
Stovall was sleeping on the job in incidents that occurred on November 20 and 23, 2015 (the
“sleeping incidents”).26 	Stovall denied that he had been sleeping, however, the reports were
documented in a written reprimand.27
On November 25, 2015, Stovall was involved in another incident (the “November
incident”).28 Stovall reported that there were “two flat tires on the slider trailer” that he had been
driving and that the tires “appeared to be off the rim and flat spotted.”29 	Ryan Hall, Master
Mechanic and one of Stovall’s supervisors, stated that “it appeared that the tires had ruptured after
being dragged over a roadway as a result of locked-up brakes.”30 Replacing the damaged tires
cost about $2,000.31
On November 26, 2015, Stovall was called into the office with his Foreman Roy Turner,
Superintendent Bruce Hanson, and Ryan Hall (collectively, “management”).32 	Management
24 Id.; Dkt. 84-13 (Notice).
25 Dkt. 84-11 at 1.
26 Dkts. 84-15 at 1 (Flowers Employee Statement), 2 (Nissen Employee Statement).
27 Dkts. 85 at ¶ 10; 84-16 (Nov. 23, 2015 Written Reprimand re: Sleeping); see also Dkt. 98 at ¶ 9.
28 Dkt. 84-17 (Written Reprimand re: November Incident).
29 Id.; see Dkt. 18 at ¶ 26.
30 Dkt. 85 at ¶ 11.
31 Id.
32 See Dkts. 18 at ¶ 28; 84 at 9–10; 85 at ¶ 13.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 5 of 33

6
talked to Stovall about the incident and asked why he did not notice that the brakes were locked
up.33 The parties do not dispute that Stovall was required to do a 360-degree inspection of the
truck prior to driving.34 Stovall claims he performed the required 360-degree inspection, while
management disagrees and asserts that Stovall would have noticed “broken indicator sticks” had
he completed the inspection.35 Stovall refused to sign the acknowledgment of the incident and
denied fault for the tire damage.36 	Stovall stated in the meeting that management should have
conducted an investigation of the November incident.37 	Stovall was told that he was being
suspended for a day without pay because of the tire damage.38 Stovall told management that he
intended to “make[] a report to the Department of Labor,” after being informed of his suspension.39
Management called a safety employee, who escorted Stovall out of the meeting; the safety
employee stated that even after the meeting Stovall refused to leave the premises.40
Management then called Terry Howard, who was responsible for the Equipment Shop and
first hired Stovall in April 2015.41 Management told Howard that Stovall refused to acknowledge
33 Dkt. 85 at ¶ 13.
34 Id.; Dkt. 89 at ¶ 5 (Stovall Decl.).
35 Dkts. 89 at ¶ 5; 84 at 10; 85 at ¶ 13.
36 Dkts. 85 at ¶ 14; 89 at ¶ 3 (stating that management’s accusations were “conclusory” and that
he (Stovall) “unknowingly dragged” the tires).
37 Dkts. 85 at ¶ 14; 89 at ¶ 4.
38 Dkts. 85 at ¶ 14; 89 at ¶ 7.
39 See Dkts. 85 at ¶ 14; 89 at ¶ 7 (“I was not made aware of the suspension until after I returned to
the office challenging the fact that they had not conducted the required investigation[.]”).
40 Dkt. 85 at ¶ 14. Stovall states that “Hall gave me permission to leave the office[,]” suggesting
he voluntarily left the meeting. Dkt. 89 at ¶ 6.
41 Dkt. 86 at ¶ 3 (Howard Decl.).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 6 of 33

7
the written reprimand or suspension and refused to leave the Equipment Shop premises.42 Howard
terminated Stovall due to Stovall’s insubordination, the November incident, and prior performance
issues.43 Howard states that he “was not aware that [Stovall] had mentioned discrimination to a
safety employee earlier that day, or that he had said he might report his suspension to the
Department of Labor.”44 Hall was also unaware of any statements made by Stovall to the safety
employee until after Stovall filed the complaint in this case.45 	Subsequent to his termination,
Stovall filed complaints with the National Labor Relations Board and the Alaska Commission for
Human Rights, which, after investigation, did not result in any action against AES-HCC.46
C. AES-HCC’s Motion for Summary Judgment
AES-HCC moves for summary judgment on both of Stovall’s claims, arguing that he
“cannot meet his initial burden of presenting evidence to support a prima facie case of
discrimination or retaliation.”47 	And, even if he could, “it is undisputed that AES-HCC had
legitimate, non-discriminatory and non-retaliatory reasons for suspending and terminating”
Stovall.48 Additionally, AES-HCC argues that Stovall does not point to any evidence that suggests
AES-HCC’s reasons for terminating him were pretextual.49
42 Id. at ¶ 5.
43 Id.
44 Id. at ¶ 6.
45 Dkt. 85 at ¶ 14.
46 See Dkts. 84-21 (Ltr. to Stovall re: NLRB Investigation); 84-22 (Ltr. to Stovall re: Alaska
Commission for Human Rights Determination).
47 Dkt. 84 at 15.
48 Id.
49 Id.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 7 of 33

8
1. 	Race-Based Disparate Treatment Claim under § 1981
Stovall’s first claim is that he was unlawfully terminated by AES-HCC on account of his
race.50 	AES-HCC argues that Stovall cannot establish that he was qualified and performing
satisfactorily because even though he received additional training, the “multiple, well documented
safety incidents within months of his rehire demonstrate that his training was inadequate and that
he remained unqualified.”51 AES-HCC points to the October and November incidents as evidence
that Stovall was not performing well and notes that “it was unheard-of for a single employee to be
involved in multiple safety incidents in just two months.”52 Furthermore, AES-HCC argues that
Stovall cannot establish that “individuals not in his protected class committed similar misconduct
and received lesser discipline.”53 	It states that AES-HCC applied its policies “uniformly,
regardless of race” and, as Stovall testified, “there were multiple non-African American employees
of the Equipment Shop who, like him, received write-ups or were suspended for causing
damage.”54 AES-HCC argues that Stovall’s first claim must fail.
2. 	Retaliation Claim under § 1981
Stovall’s second claim is that AES-HCC retaliated against him after he threatened to assert
certain legal claims.55 	AES-HCC argues that Stovall’s claim must fail because Stovall cannot
establish that he “engaged in a protected activity” or that a “causal link exists between the protected
50 Dkt. 18 at ¶¶ 35-39.
51 Id. at 16.
52 Id.
53 Id. at 16–17.
54 Id. at 18 (citing Dkt. 84-23 at 126:23-129:11).
55 Dkt. 18 at ¶¶ 40-44.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 8 of 33

9
activity and the adverse action.”56 	At his deposition, Stovall described two alleged protected
activities: (1) when management told Stovall on November 26, 2015, that he would be suspended
without pay and Stovall threatened to complain to the Department of Labor; and (2) when he
refused to go to his room or leave the premises as instructed by a safety employee, and asserted to
the safety employee that he would file a complaint for prejudice and discrimination.57 Stovall later
asserted a third basis for his retaliation claim, that on October 16, 2015, he called Howard and
“reported that he was not receiving enough work assignments.”58
AES-HCC argues that none of these events qualify as protected activities because “he did
not communicate to AES-HCC any opposition to race-based employment practices.”59 Even if he
did engage in protected activities, AES-HCC argues that there “is no evidence that the activity
caused his suspension or termination.”60 Stovall’s statements on November 26, 2015, were made
after he was suspended, so there is no way for them to have caused his suspension.61 	As to
Stovall’s termination, AES-HCC asserts that Howard “did not know about either statement when
he made the decision to terminate” Stovall and that Howard was not at the Equipment Shop at the
time.62 	Since Howard was not aware of Stovall’s comments, there is no way for Stovall’s
56 Dkt. 84 at 19 (internal quotation marks omitted).
57 Id. at 20.
58 Id. at 21.
59 Id. at 20.
60 Id. at 21.
61 Id. at 22.
62 Id.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 9 of 33

10
comments to have caused Howard to terminate him.63 	AES-HCC similarly argues that the
October 16, 2015 call to Howard was before Stovall’s “multiple safety violations” and that these
intervening circumstances “cannot show that [Stovall’s] October 16 complaint caused AES-HCC
decision to suspend and terminate him.”64
3. 	AES-HCC’s States that It Had Legitimate Reasons to Suspend and Terminate
Stovall
AES-HCC asserts that it had legitimate reasons to suspend and terminate Stovall.65 Even
after Stovall obtained additional training, within “just three weeks of on-duty time, [] Stovall drove
a vehicle into a bridge, causing significant damage; was discovered to have unsafely chained a
bulldozer to a trailer; was reported sleeping on the job on two separate occasions by two different
employees; and dragged two trailer tires (worth approximately $2,000) flat on a routine equipment
delivery run.”66 Even if Stovall denies responsibility for any of the incidents, AES-HCC notes
that it is not disputed that they occurred.67 AES-HCC states that the Equipment Shop has a policy
“requiring suspension for equipment damage” and Stovall’s suspension was consistent with this
policy.68 AES-HCC concludes by arguing that Stovall has not presented any “specific, substantial
63 Id.
64 Id. at 23.
65 Id.
66 Id. at 23–24.
67 Id. at 24.
68 Id.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 10 of 33

11
evidence that creates a triable issue of fact” as to whether the reasons for his termination were
pretextual, thus, his claims must fail.69
B. 	Stovall’s Opposition
In his Opposition, Stovall contends that his claims can prevail past summary judgment and
that the Court should deny the Motion.70 He states that he “firmly believes that the discriminatory
and retaliatory actions that caused him to be the recipient of multiple materially adverse actions
on [November 26, 2015], were intentionally done with animus and malice.”71
1. 	Race-Based Disparate Treatment Claim under § 1981
Stovall argues that he can establish a prima facie case of discrimination.72 Responding to
AES-HCC, he argues that he was qualified for his position since he had “[two] years of cold
weather commercial driving experience” and “met [AES-HCC’s] requirements[.]”73 	He denies
causing the November incident and states that he complied with AES-HCC’s protocols for
reporting damaged equipment.74 	Stovall further argues that he was “subjected to unlawful
discriminatory treatment” when management did not conduct a mandatory incident review
regarding damaged vehicle equipment that would have precluded Stovall from any materially
69 Id. at 25.
70 Dkt. 98 at 19.
71 Id.
72 Id. at 31.
73 Id. at 33.
74 Id. at 33–34.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 11 of 33

12
adverse actions.”75 Stovall also states that AES-HCC’s failure to conduct an adequate “incident
review” could be evidence of a pretext.76
As to Stovall’s argument that he was subjected to disparate treatment, he argues that Hall’s
explanation for Stovall’s suspension are in conflict; namely, that Hall first said that he was
suspending Stovall due to an “outburst[,]” but in Hall’s declaration he states that Stovall’s
suspension was “for damaging tires based on negligence[.]”77 Stovall asserts that “Hall frequently
fraternized with other hourly employees at the shop, by hanging out with them and smoking” and
that Hall did not reprimand one of his “smoking buddies” after “he failed to repair an engine
properly causing further damage[.]”78
2. 	Retaliation Claim under § 1981
Stovall argues that he engaged in protected activity “by communicating his intent to file a
complaint with the Department of Labor[.]”79 He argues that “approximately thirty minutes after
he participated in a protected activity . . . Hall influenced Howard’s decision to terminate him by
making false and conclusory statements to Howard[.]”80 Stovall argues that Howard “should not
have taken the subordinates[’] disparaging claims at face-value” because Stovall “filed a complaint
against them a few weeks earlier[.]”81 Hall’s influence on Howard is referred to Stovall as the
75 Id. at 35.
76 Id. at 36.
77 Id. at 40.
78 Id.
79 Id. at 43.
80 Id. at 45.
81 Id. at 46.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 12 of 33

13
“cat’s paw” theory, which “refers to a situation in which a biased subordinate, who lacks decision-
making power, influences the unbiased decision-maker to make an adverse decision, thereby
hiding the subordinate’s [retaliatory] intent.”82 To the extent Stovall was suspended based on an
outburst or insubordination, Stovall argues that he was “provoked” due to “speculative and
conclusory accusations” given by Hall during the “unexpected vague reprimand[.]”83 The timing
of his termination and Hall’s inducement of Howard’s decision show retaliatory motive, Stovall
asserts.84 Stovall acknowledges that Howard was not told about Stovall’s statements to Hall and
others threatening to file an action with the Department of Labor.85 Stovall states that Hall had
been the “main source of Stovall’s issues” at the Equipment Shop, which contributed to Stovall’s
“negative responses[.]”86 Stovall further alleges that the sleeping incidents were false and that the
write-ups for the sleeping incidents were “done of Hall’s own personal spite” against Stovall.87
C. AES-HCC’s Reply
AES-HCC filed a reply reiterating many of its arguments in the Motion. 	It argues that
Stovall “cannot escape from the fact that he never mentioned race in his November 26, 2015
statement” and that “there is no genuine dispute that he did not engage in protected activity[.]”88
82 Id. at 44 (quoting Cobbins v. Tenn. Dep’t of Transp., 566 F.3d 582, 586 n.5 (6th Cir. 2009)
(internal quotations omitted)).
83 Id. at 48–49.
84 Id. at 52.
85 Id.
86 Id. at 49.
87 Id. at 51.
88 Dkt. 99 at 11.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 13 of 33

14
AES-HCC disputes Stovall’s “cat’s paw” theory, arguing that Hall “made no antagonistic
comments or other demonstration of retaliatory animus” between Stovall’s statement about the
Department of Labor and Howard’s decision to terminate Stovall.89 	As to Stovall’s repeated
assertions that AES-HCC did not conduct an appropriate investigation, AES-HCC argues that
“Stovall presents no evidence of a policy requiring any particular type of investigation.”90 Finally,
AES-HCC argues that the “inconsistent reasons” for Stovall’s suspension and termination are not
actually inconsistent—because there “is nothing inconsistent with disciplining an employee for
both performance issues and insubordination.”91 AES-HCC concludes by reiterating that Stovall
had legitimate performance issues and that his allegations are conclusory and unsupported by the
record.92
III. 	LEGAL STANDARD
A. 	Summary Judgment
Summary judgment is appropriate where, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the nonmoving party,93 “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
89 Id. at 12–13.
90 Id. at 15.
91 Id.
92 Id. at 16–17.
93 Scott v. Harris, 550 U.S. 372, 378 (2007).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 14 of 33

15
law.”94 Material facts are those which might affect the outcome of the case.95 A genuine issue of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
non-moving party.”96 	“There is no genuine issue of fact if, on the record taken as a whole, a
rational trier of fact could not find in favor of the party opposing the motion.”97 A movant’s burden
may be met by “‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.”98 Thus, “at the summary judgment stage the
judge’s function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”99
Once a movant has met its initial burden, Rule 56(e) requires the nonmoving party to go
beyond the pleadings and identify facts which show a genuine issue for trial.100 	Evidence
introduced in opposition to a summary judgment motion does not have to be the kind that would
be admissible at trial, but may be any type of evidence identified in Fed. R. Civ. P. 56(c).101
94 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Jensinger
v. Nev. F. Credit Union, 24 F.3d 1127, 1130–31 (9th Cir. 1994).
95 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”).
96 Id. at 248.
97 Mills v. Wood, No. 4:10-CV-00033-RRB, 2015 WL 2100849, at *1 (D. Alaska May 6, 2015),
aff’d in part, 726 F. App’x 631 (9th Cir. 2018) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)).
98 Celotex Corp., 477 U.S. at 325.
99 Anderson, 477 U.S. at 249.
100 Celotex Corp., 477 U.S. at 324.
101 See, e.g., id. at 323–24; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,
630 (9th Cir. 1987).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 15 of 33

16
However, “conclusory assertions are wholly insufficient to sustain either the defendants’ burden
or the district court’s grant of summary judgment.”102 “A party opposing a summary judgment
motion must produce ‘specific facts showing that there remains a genuine factual issue for trial’
and evidence ‘significantly probative’ as to any [material] fact claimed to be disputed.”103
B. 	Section 1981
Stovall brings both of his claims under § 1981. Section 1981 provides that
[a]ll persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens[.]104
The statute defines “make and enforce contracts” to “includ[e] the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.”105 To state a claim under § 1981, “a plaintiff must
initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally
102 Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990); see also Hilsinger v. Enerco Grp., Inc.,
No. 3:13-cv-00003-TMB, 2014 WL 12569381, at *2 (D. Alaska Sept. 3, 2014); Mills v. Wood,
2015 WL 2100849, at *1 (citing Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1036
(9th Cir. 2005); Walker, 917 F.2d at 387 (“In general, in ruling on a motion for summary judgment,
a court may not weigh the evidence or judge the credibility of witnesses . . . . However, this rule
does not apply to conclusory statements unsupported by underlying facts.”)).
103 Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) (quoting Ruffin v. County of Los
Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979)).
104 42 U.S.C. § 1981.
105 42 U.S.C. § 1981(b).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 16 of 33

17
protected right.”106 It is not enough for a plaintiff to allege that race was only a “motivating factor”
for their loss of a legally protected right.107
Although the Amended Complaint brings two counts under § 1981, Stovall in passing also
alleges a violation of Title VII.108 “Courts generally analyze Title VII and Section 1981 claims
the same, and ‘facts sufficient to give rise to a Title VII claim are also sufficient for a section 1981
claim.’”109
C. McDonnell Douglas Framework for Disparate Treatment Claim
The framework established in McDonnell Douglas Corp. v. Green applies at the summary
judgment stage and may be used by plaintiffs seeking relief under § 1981 or Title VII of the Civil
Rights Act of 1964.110 	Under McDonnell Douglas, first, a plaintiff may establish a prima
facie case of discrimination. To do so,
a plaintiff must offer proof: (1) that the plaintiff belongs to a class of persons
protected by Title VII; (2) that the plaintiff performed his or her job satisfactorily;
(3) that the plaintiff suffered an adverse employment action; and (4) that the
plaintiff’s employer treated the plaintiff differently than a similarly situated
employee who does not belong to the same protected class as the plaintiff.111
106 Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020).
107 Id. at 1019 (rejecting the “motivating factor test” for § 1981 claims).
108 Dkt. 18 at ¶ 37.
109 Oliver v. Iron Workers Union Local 229¸ No. 17-cv-1-LAB (MDD), 2019 WL 506600, at *3
(S.D. Cal. Feb 8, 2019) (quoting Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir.
1987)).
110 411 U.S. 792 (1973); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028, 1028 n.5
(9th Cir. 2006); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
111 Cornwell, 439 F.3d at 1028 (citing McDonnell Douglas, 411 U.S. at 802).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 17 of 33

18
Second, if a plaintiff establishes a prima facie case of discrimination, McDonnell Douglas “creates
a presumption that the plaintiff’s employer undertook the challenged employment action because
of the plaintiff’s race.”112 Third, to rebut this presumption, the defendant must produce admissible
evidence showing that the defendant undertook the challenged employment action for a
“‘legitimate, nondiscriminatory reason.’”113 If the defendant does so, then “‘the presumption of
discrimination “drops out of the picture”’ and the plaintiff may defeat summary judgment by
satisfying the usual standard of proof required in civil cases[.]”114 However, a plaintiff may “raise
a triable issue of material fact as to whether the defendant’s proffered reasons . . . [were] mere
pretext for unlawful discrimination.”115 	A plaintiff must present “substantial and specific
evidence” to demonstrate that the defendant’s reasons “were a pretext for racial discrimination.”116
The McDonnell Douglas framework is not the only means for showing unlawful
discrimination.117 	Instead, a plaintiff “may simply produce direct or circumstantial evidence
demonstrating that a discriminatory reason” motivated the employer.118
112 Id. (citing McDonnell Douglas, 411 U.S. at 802).
113 Id.
114 Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
115 Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010); see Reynaga v. Roseburg
Forest Prods., 847 F.3d 678, 691 (9th Cir. 2017).
116 Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 664 (9th Cir. 2002).
117 Reynaga, 847 F.3d at 691.
118 Id.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 18 of 33

19
D. Retaliation Claim
The Ninth Circuit uses the same standard to evaluate claims of retaliation under both
§ 1981 and Title VII claims.119 	“To establish a prima facie case of retaliation, a plaintiff must
prove (1) [he] engaged in a protected activity; (2) [he] suffered an adverse employment action; and
(3) there was a causal connection between the two.”120 If established, the “burden shifts to the
defendant to set forth a legitimate, non-retaliatory reason for its actions; at that point, the plaintiff
must produce evidence to show that the stated reasons were a pretext for retaliation.”121 A plaintiff
“can show pretext in two ways—either directly by persuading the court that a discriminatory
(retaliatory) reason more likely motivated [the employer], or indirectly by showing that [the
employer’s] proffered explanation is unworthy of credence.”122
IV. 	ANALYSIS
Stovall has not established a “genuine dispute as to any material fact” in this case and thus
the Motion is GRANTED as to Stovall’s two claims in the Amended Complaint. Stovall fails to
show a prima facie case of discrimination or retaliation under McDonnell Douglas or otherwise,
and even if he were able to, AES-HCC had legitimate, nondiscriminatory reasons for suspending
119 See Manatt v. Bank of Am., N.A., 339 F.3d 792, 800–01 (9th Cir. 2003) (using Title VII
framework to analyze retaliation claim under § 1981); Williams v. Tucson Unified Sch. Dist., 316
F. App’ 563, 564 (9th Cir. Dec. 4, 2008) (mem. op.) (“Retaliation claims under Title VII and
§ 1981 share identical legal standards.”).
120 Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).
121 Id.
122 Holmes v. Tenderloin Hous. Clinic, Inc., No. C 09–5781 PJH, 2011 WL 2843729, at *8 (N.D.
Cal. July 18, 2011) (citing Tex. Dep't of Comy. Affs. v. Burdine, 450 U.S. 248 (1981)).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 19 of 33

20
and terminating Stovall. Stovall also fails to establish that “but for race[,]” he would not have been
suspended or terminated.123
A. 	Race-Based Disparate Treatment Claim under § 1981
Stovall has not established a genuine dispute of any material fact regarding his alleged race
discrimination on the basis of disparate treatment. Stovall does not establish a prima facie case of
discrimination, and, even if he did, AES-HCC has produced evidence showing that it had
“‘legitimate, nondiscriminatory reason[s]’” for Stovall’s suspension and termination that were not
pretextual.124
1. 	Stovall Does Not Establish a Prima Facie Case of Discrimination under McDonnell
Douglas.
The parties agree that Stovall is a member of a protected class and that he suffered an
adverse employment action, the first and third prongs of the McDonnell Douglas framework.125
The parties differ as to the second and fourth prongs, which ask whether Stovall was qualified for
the job and performing satisfactorily and whether he was treated differently from similarly situated
employees not in his protected class.126 The Court finds that there is no genuine dispute of material
fact as to whether Stovall was performing satisfactorily or treated differently from similarly
situated employees.127
123 See Comcast Corp, 140 S. Ct. at 1019.
124 Id. (citing McDonnell Douglas, 411 U.S. at 802).
125 See Dkts. 84 at 15; 98 at 32.
126 See Cornwell, 439 F.3d at 1028 (citing McDonnell Douglas, 411 U.S. at 802).
127 To the extent AES-HCC argues that Stovall was unqualified when he was re-hired in August
2015 because his training was inadequate, its argument is not persuasive. Stovall’s performance
after being re-hired does not have any bearing on whether he was qualified for the position in
August 2015. 	Stovall also raises legitimate arguments that he was qualified in August 2015 by
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 20 of 33

21
AES-HCC 	argues 	that 	Stovall 	was 	unqualified 	for 	the 	job 	and 	did 	not 	perform
satisfactorily, primarily relying on the October, November and sleeping incidents.128 AES-HCC
argues that “fail[ing] to properly secure a bulldozer[,]” “[running] his vehicle into a bridge[,]” and
“failing to ensure that the tires on the trailer he was pulling were rotating properly” are all evidence
of his poor performance on the job.129 	Stovall disputes that he was at fault for any of the
aforementioned incidents, but does not dispute that they occurred.130
At the prima facie stage, the threshold to show that Stovall was qualified and performing
satisfactorily under McDonnell Douglas is “minimal”; nevertheless, Stovall cannot meet it here.131
There is no dispute that Stovall was involved in the October and November incidents that resulted
in substantial damage to the equipment Stovall was operating. The reports of Stovall sleeping on
the job also inform whether Stovall was performing satisfactorily. Stovall’s denial of fault for the
sleeping incidents, with no supporting evidence other than his own bare allegations,132 does not
create a genuine dispute of material fact as to whether he was qualified and performing
virtue of his experience and training. See Dkt. 98 at 33. However, Stovall has not put forward any
evidence beyond his own statements that he was performing satisfactorily.
128 See Dkt. 84 at 16.
129 Id.
130 See Dkts. 89 at ¶ 20 (Hall induced employees to file false statements accusing Stovall of
sleeping on the job); id. at 1–2 ¶ 3 (November incident not Stovall’s fault); 84-23 at 26 2:9 (October
incident not Stovall’s fault).
131 Aragon, 292 F.3d at 660.
132 The Court has considered Stovall’s statements in analyzing Stovall’s case under McDonnell
Douglas, but does not find that they establish a genuine dispute of material fact.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 21 of 33

22
satisfactorily.133 AES-HCC also submitted a declaration from Hall, in which he states “[s]afety
incidents were unusual at the Equipment Shop, and it was unheard of for a single employee to be
involved in multiple safety incidents within a span of two months.”134 	Stovall provides no
argument or evidence addressing Hall’s assertion that it was “unheard of” for an employee to be
involved in “multiple safety incidents” in such a short time frame. Based on the foregoing, there
is no dispute of material fact as to whether Stovall was performing satisfactorily prior to his
suspension and termination.
Moving to the fourth McDonnell Douglas prong, the Court considers whether AES-HCC
“treated the plaintiff differently than a similarly situated employee who does not belong to the
same protected class as the plaintiff.”135 AES-HCC argues that “there is no evidence that AES-
HCC 	treated 	[] 	Stovall 	differently 	from 	non-African 	American 	employees 	with 	similar
performance and behavior issues.”136 	AES-HCC also points to Stovall’s deposition testimony,
where Stovall states that he was aware of other employees having gotten suspended or fired.137
Stovall alleges that Hall treated his “smoking buddies” more leniently and that the individuals who
133 See Dkt. 98 at 33–34 (citing Stovall Decl. as the basis for establishing his satisfactory
performance). Stovall implies that there may have been exculpatory evidence available, but that
AES-HCC disposed of the relevant documents prior to discovery in this case. Dkt. 89 at ¶¶ 16–
17. To the extent Stovall believes AES-HCC committed a discovery violation, summary judgment
is not the appropriate avenue for such argument.
134 Dkt. 85 ¶ 12.
135 Cornwell, 439 F.3d at 1028 (citing McDonnell Douglas, 411 U.S. at 802).
136 Dkt. 84 at 18.
137 Id.; see also 84-23 at 128:9-25.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 22 of 33

23
alleged Stovall was sleeping on the job were friends with Hall.138 	Stovall also alleges that he
“witnessed Hall not reprimand one of the mechanics that Hall frequently visited and smoked with,
after the mechanic left metal debris in one of the piston chambers causing the engine to fail a
second time.”139 Another employee “failed to repair a customer’s light duty truck” and Hall did
not discipline him.140 In his Opposition, Stovall cites exclusively to his declaration to substantiate
his claim that Hall was more lenient on his “smoking buddies[.]”141
Stovall’s argument as to the fourth prong of the McDonnell Douglas analysis fails. Stovall
gives a cursory summary of two incidents where one mechanic “left metal debris in one of the
piston chambers causing the engine to fail” and another “failed to repair a customer’s light duty
truck[.]”142 Stovall provides no other details about those employees’ backgrounds, disciplinary
histories, the severity of their incidents, or whether they are analogous to the incidents for which
Stovall was reprimanded. Stovall’s deposition testimony also establishes that management did, in
fact, reprimand employees who damaged equipment or made incorrect repairs:
Q: Did anyone get upset about the scratching of the equipment?
A: I believe they got written up. I believe they got written up. I’m not sure about
that.
***
138 Dkt. 89 at ¶ 8 (alleging that Hall was friends with the individuals who accused him of sleeping
on the job and implying that he may have tolerated their “false statement[s]” to “paint[] a negative
picture of poor job performance to Howard”).
139 Id.
140 Id.
141 Dkt. 98 at 40.
142 Dkt. 89 at ¶ 8.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 23 of 33

24
Q: Are you aware of any other employees at the equipment shop that did get
suspended for any reason?
A: Yes. Yes, I am.
Q: Who and what was it for?
A: One guy . . . got either let go or suspended, because he didn’t repair the engine
correctly on a vehicle. 	Another one was ordering parts, and he wasn’t repairing
specific parts. He was ordering entire kits and just replacing the entire kit instead
of one part. And he was also failing to make proper repairs. So it – yeah, it always
seemed – every time I saw anybody disgruntled, it always had to do with, “Oh,
great, I just got written up for that vehicle that just got sent back. 	The customer
said it wasn’t fixed, you know.” So it was always something to do with the engine
or something like that.143
Stovall’s own statements acknowledge that disciplinary action was widespread, even for more
minor infractions.
Nothing in the record raises a triable issue of fact as to whether Stovall was treated different
because of his race. First, the two incidents described by Stovall in a cursory manner are dissimilar.
“[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.”144
That is not the case here. Leaving debris in an engine or failing to repair a truck properly are not
similar to Stovall’s multiple safety incidents including driving into a bridge,145 allegedly sleeping
on the job on multiple occasions,146 and failing to inspect equipment, which resulted in dragging
flat tires that appeared to be off the rim.147 It is also unclear whether the employees discussed by
143 Dkt. 84-23 at 128:9-129:8.
144 Vasquez v. City of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
145 Dkt. 84-14.
146 Dkt. 84-16.
147 Dkt. 84-17.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 24 of 33

25
Stovall have similar job responsibilities, as the alleged incidents escaping discipline were
mechanical repairs as opposed to Stovall’s operator error.
Second, there is no evidence in the record that Stovall was treated less favorably because
of his race. Stovall states that he was the only African American employed at the Equipment Shop
between April and November 2015, meaning his co-workers would have not been members of his
protected class during his period of employment.148 It follows, then, that all of the disciplinary
actions taken by management against other employees during this time would have been actions
against non-African American employees. Stovall acknowledges that other non-African American
employees were reprimanded, and even “let go” too.149 	Third, there is no dispute that the
Equipment Shop policy is to suspend employees who cause damage “due to negligence of [an]
operator” or that Stovall was on notice of this publicly-posted policy.150 	Stovall points to no
evidence of other operators like him (as opposed to mechanics) who caused damage to equipment
or vehicles and were not suspended. Stovall cannot establish the fourth prong of the McDonnell
Douglas analysis. 	Stovall also does otherwise not raise any additional direct or circumstantial
evidence that would establish a prima facie case of discrimination.
2. 	AES-HCC Had Legitimate Reasons to Suspend and Terminate Stovall
Even if Stovall were able to establish a prima facie case of discrimination under McDonnell
Douglas, Stovall’s claim for disparate treatment under § 1981 or Title VII would fail because AES-
HCC had legitimate reasons to suspend and terminate him. As discussed, Stovall was involved in
148 Dkt. 89 at ¶ 2.
149 See supra n.143.
150 Dkts. 84-13 (HCC Shop Policy Notice); 85 at ¶ 9 (policy was “clearly posted”).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 25 of 33

26
multiple safety incidents in a short period of time, including driving into a bridge,151 allegedly
sleeping on the job on multiple occasions,152 and dragging flat tires that appeared to be off the
rim.153 In addition, it is undisputed that Stovall refused to accept his suspension on November 26,
2015, or return to his room after management ordered him to leave the premises.154 Any one of
these incidents could arguably be an independent legitimate basis for disciplinary action, and
collectively AES-HCC had a legitimate non-discriminatory basis to suspend and terminate
Stovall.155
151 Dkt. 84-14.
152 Dkt. 84-16.
153 Dkt. 84-17.
154 See Dkts. 89 at ¶ 21 (citing video evidence of Stovall opposing suspension); 85 at ¶ 15 (Hall’s
statement that Stovall refused to leave the premises “despite multiple orders to do so”).
155 See, e.g., Nguyen v. Dep’t of Navy, 412 Fed. Appx. 926, 929 (9th Cir. Jan. 18, 2011) (mem. op.)
(Legitimate 	reasons 	for 	disciplining 	and 	removing 	an 	employee 	included 	“substandard
communications skills, low performance ratings and complaints from her customers, poor
attendance and habitual tardiness, misuse of the government telephones and computers, and her
admission that she took original copies of faxes addressed to her colleagues without their
knowledge.”); Willie v. Nevada ex rel. Nev. Dep’t of Public Safety, 234 F.. App’x 449, 451 (9th
Cir. May 17, 2007) (mem. op.) (Legitimate reasons for employer’s adverse action include
“insubordination, use of profanity, falsification of time sheets, improperly charging tires to the
state, attempting to cover up the tire charges, and breaching confidentiality with a witness in
[e]mployer’s investigation of his actions.”); Brown v. Dignity Health, No. CV-18-03418-PHX-
JJT, 2020 WL 3403088, at *8 (D. Ariz. June 19, 2020) (Sleeping on the job was a legitimate reason
for termination.); Holmes, No. C 09–5781 PJH, 2011 WL 2843729, at *7 (A reasonable basis for
termination included violating the employer’s Code of Professional Conduct.); Surrell, 518 F.3d
at 1108 (Appearing at work in an impaired state and testing positive for illicit drugs is a legitimate
reason for employer’s adverse action.); Farier v. City of Mesa, No. CV–07–1407–PHX–DGC,
2009 WL 1394979, at *5 (D. Ariz. May 19, 2009), aff’d, 384 F. App’x 683 (9th Cir. 2010) (Failing
an interview was legitimate reason for denying plaintiff a promotion.).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 26 of 33

27
3. 	AES-HCC’s Reasons for Suspension and Termination were Not Pretextual
Stovall can still prevail on a claim for disparate treatment based on race if he can show that
AES-HCC’s reasons for suspending and terminating him were pretextual. However, he has not
“raise[d] a triable issue of material fact as to whether the defendant’s proffered reasons . . . [were]
mere pretext for unlawful discrimination.”156 Stovall’s main argument that AES-HCC’s reasons
were pretextual is that management offered “inconsistent reasons” for their suspension and
termination.157 Specifically, Stovall argues that Hall’s written statement on November 26, 2015,
states that Stovall was suspended for an “outburst” and that Hall did not mention the damaged tires
as a basis for the suspension.158 	Later, Hall stated that the damaged tires were the reason for
Stovall’s suspension.159 Stovall also reiterates that AES-HCC should have conducted a “required
incident review[.]”160 	AES-HCC responds by arguing that “disciplining an employee for both
performance issues and insubordination” is not inconsistent.161
Stovall is correct in that Hall’s declaration states that Stovall was suspended “because of
the tire damage[.]”162 The reprimand for the November incident indicates that Stovall had two flat
tires and that they “appeared to be off the rim[.]”163 Hanson, who was present at the November 26,
156 Hawn, 615 F.3d at 1155.
157 Dkt. 98 at 36.
158 Id.
159 Id. (citing Dkt. 85).
160 Id.
161 Dkt. 99 at 15.
162 Dkt. 85 at ¶ 14.
163 Dkt. 84-17.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 27 of 33

28
2015 meeting, also indicated that Hall told Stovall that he was being sent to his room because of
the shop policy for equipment damage.164 	However, Hall’s statement following the events of
November 26, 2015, states that Stovall was sent “home for the day for his outburst.”165 Howard
“instructed onsite management to terminate” Stovall after learning that Stovall “refused to accept
the write-up or the suspension” and in light of “all of his other performance issues[.]”166
There were multiple grounds for management’s disciplinary action on November 26, 2015,
none of which Stovall can show were pretextual. 	Stovall does not dispute that his vehicle was
damaged in the November incident and he does not dispute that there was some level of
insubordination through his actions on November 26, 2015.167 Stovall was liable for a suspension
due to the vehicle damage, according to noticed shop policy, and also liable for potential
suspension based on his insubordinate behavior in refusing to accept the reprimand. 	Hall’s
statements all arise out of the same set of facts: Stovall was party to an incident involving damaged
equipment, Stovall was called to a meeting with Hall and others, Stovall refused to acknowledge
the reprimand for the incident, and Stovall was suspended due to some combination of the
equipment damage and insubordination. AES-HCC had a legitimate basis for its actions and there
is no indication its reasons for suspension or termination were pretextual. Stovall’s argument that
AES-HCC should have conducted a more thorough review is also unavailing.168 At this stage of
the McDonnell Douglas analysis, since AES-HCC articulated a legitimate non-discriminatory
164 Dkt. 84-18 at 5 (Hanson Statement).
165 Dkt. 84-18 at 1 (Hall’s Employee Statement).
166 Dkt. 86 at ¶ 5.
167 See Dkt. 89 at ¶¶ 21, 23.
168 See, e.g., Dkt. 84-18 at 6 (noting that an investigation was completed prior to the reprimand).
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 28 of 33

29
basis for Stovall’s suspension and termination, the burden is on Stovall to show pretext.169 The
Court concludes that Stovall has not met his burden. Accordingly, the Motion as to Count 1 of
Stovall’s Amended Complaint is GRANTED.
B. 	Retaliation Claim under § 1981
Stovall’s claim for retaliation under § 1981 similarly fails. Retaliation claims are evaluated
under a burden-shifting framework that is a derivative of McDonnell Douglas. 	Stovall may
establish a prima facie case of retaliation by showing that (1) “he engaged in a protected activity”;
(2) “suffered an adverse employment action”; and (3) there was a “causal connection between the
two.”170 	If a prima facie case is established, then AES-HCC may set forth a “legitimate, non-
retaliatory reason for its actions” and if it does so, then Stovall may “produce evidence to show
that the stated reasons were a pretext for retaliation.”171
Stovall cannot establish a prima facie case of retaliation because he cannot demonstrate
that there is a causal connection between his asserted protected activity and his suspension or
termination.172 	Stovall’s proffered “protected activities” include (1) his statement at the
November 26, 2015 meeting that he would file a complaint with the Department of Labor; (2) his
statement to the public safety employee that if he would file a complaint for prejudice and
169 Reynaga, 847 F.3d at 693 (citation omitted).
170 Surrell, 518 F.3d at 1108.
171 Id.
172 The Court assumes without deciding that Stovall engaged in a protected activity. It finds that
a prima facie case is not established, however, because Stovall cannot show causation, the third
prong of the analysis.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 29 of 33

30
discrimination if removed; and (3) his call to Howard on October 16, 2015, during which he
complained that he was not receiving enough work assignments to meet his hour requirements.173
AES-HCC argues that Stovall cannot establish any casual connection between the
November 26, 2015 statements and his suspension because his suspension happened before he
made either statement.174 As to Stovall’s termination, AES-HCC argues that there is no causal
link between Stovall’s statements and his termination because “Howard did not know about either
statement when he made the decision to terminate” Stovall.175 As to the October 16, 2015 call to
Howard, AES-HCC argues that the causal link is broken because since that date Stovall was
involved in “multiple safety violations and refused to accept a routine suspension.”176
In opposition, Stovall argues that Hall “influenced Howard’s decision to terminate” Stovall
by “making false and conclusory statements to Howard[.]”177 Stovall argues that Howard should
not have believed Hall’s “disparaging claims” because “Stovall had just filed a complaint against
[him] a few weeks earlier[.]”178 	Stovall’s “cat’s paw” theory is that Hall inappropriately and
unfairly influenced Howard’s decision to terminate Stovall.179 AES-HCC disputes Stovall’s “cat’s
173 See Dkts. 98 at 42–43; 89 at ¶ 7; 84-23 at 17:20-18:14 (noting that the protected activities
included Stovall’s statement to Hall, Hanson, and Turner that he would file a complaint with the
Department of Labor and his oral statement to the safety officer that he would file a complaint for
discrimination and prejudice); 84-23 at 45 (errata stating that he participated in a protected activity
on October 16, 2015, when he filed a complaint with Howard).
174 Dkt. 84 at 22.
175 Id.
176 Id. at 23.
177 Dkt. 98 at 45.
178 Id. at 46 (emphasis removed).
179 Id. at 43.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 30 of 33

31
paw” theory by arguing that Hall “made no antagonistic comments” in the time between Stovall’s
“statement regarding the Department of Labor and the decision to terminate his employment[.]”180
Further, AES-HCC argues that Stovall “does not even explain what he thinks [] Hall falsely told
[] Howard[.]”181
The Court finds that Stovall cannot establish a causal link between his proffered protected
activities and his suspension or termination. First, the Court agrees with AES-HCC that Stovall’s
statements on November 26, 2015, could not have influenced Hall’s decision to suspend Stovall,
since the suspension was issued prior to Stovall’s statements. The Court also agrees with AES-
HCC that Stovall’s statements to Howard on October 16, 2015, could not have influenced Hall’s
decision to suspend Stovall because Hall was not party to that conversation and the sleeping
incidents and November incident all occurred after that conversation, which were significant and
mitigate any causal connection. Further, Howard does not recall speaking with Stovall on October
16, 2015, though states that “it’s possible we spoke[.]”182 Stovall does not contest AES-HCC’s
argument in his Opposition, and instead relies on the “cat’s paw” theory that Hall inappropriately
influenced Howard’s decision to terminate him. Thus, Stovall has failed to establish a causal link
between the proffered protected activities and Stovall’s suspension.
Second, the Court finds that Stovall cannot establish a causal connection between any of
his statements and Howard’s decision to terminate Stovall. Howard states that “[w]hen I made the
decision to terminate [Stovall], I was not aware that he had mentioned discrimination to a safety
180 Dkt. 99 at 13.
181 Id.
182 Dkt. 86 at ¶ 7. Stovall also notes that his call to Howard on October 16, 2015 was not about
discrimination. Dkt. 98 at 49.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 31 of 33

32
employee earlier that day, or that he had said he might report his suspension to the Department of
Labor. Onsite management did not tell me about these statements.”183 Howard states that he based
his termination decision on Stovall’s refusal to accept the reprimand or suspension, and on
Stovall’s “other performance issues[.]”184 Stovall does not dispute Howard’s assertion that he was
unaware of Stovall’s proffered protected activities on November 26, 2015. 	Statements which
Howard was not aware of could not have caused Howard’s termination decision, and thus Stovall
cannot establish a causal connection between the November 26, 2015 statements and his
termination.
As to Stovall’s “cat’s paw theory,” Stovall does not state with specificity which “false and
conclusory statements” Hall made to Howard.185 	Stovall does not dispute that the October or
November incidents occurred and does not deny the fact that he refused to acknowledge the
reprimand or accept a suspension on November 26, 2015. 	Stovall only makes the conclusory
assertion that Hall had a “malicious intent” to retaliate against Stovall.186 	Based on the record
before it, Stovall has made no showing that Howard was susceptible or succumbed to Hall’s
unsubstantiated “malicious” agenda.187 Accordingly, Stovall also fails to make any showing of
causation as to his termination, and thus he cannot establish a prima facie case of retaliation.
183 Dkt. 86 at ¶ 6.
184 Id. at ¶ 5.
185 See Dkt. 98 at 45; Surrell, 518 F.3d at 1108.
186 Dkt. 98 at 46.
187 The Court also notes that Howard in fact re-hired Stovall after his first termination. Dkt. 86 at
¶ 3. Further, Stovall does not allege Howard had any animus towards him.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 32 of 33

33
Even if Stovall were able to establish a prima facie case of retaliation, his claim would still
fail because AES-HCC had a “legitimate, non-retaliatory reason for its actions,” namely, Stovall’s
multiple safety violations and his insubordinate behavior on November 26, 2015.188 Additionally,
for reasons the Court has already articulated, Stovall cannot establish that AES-HCC’s reasons for
termination were pretextual.189 	Accordingly, the Motion as to Count 2 of Stovall’s Amended
Complaint is GRANTED.
V. 	CONCLUSION
Accordingly, for the above reasons, AES-HCC’s Motion for Summary Judgment at Docket
84 is GRANTED. 	Stovall’s claims against AES-HCC in Counts 1 and 2 of the Amended
Complaint are DISMISSED with prejudice.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 2nd day of August, 2021.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
188 The Court incorporates its analysis from Section IV.A.2, discussing AES-HCC’s legitimate
reasons for suspending and terminating Stovall, in full.
189 The Court incorporates its analysis from Section IV.A.3, addressing Stovall’s arguments
alleging AES-HCC’s reasons were pretextual, in full.
Case 3:18-cv-00259-TMB Document 108 Filed 08/02/21 Page 33 of 33