Mureithi v. McDonough et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Catherine Mureithi,
Plaintiff,
v.
Denis R McDonough,
Defendant.
No. CV-23-02062-PHX-SHD
ORDER
SEALED
Pending before the Court is Defendant the Secretary of the Department of Veteran
Affairs’ (the “Agency”) motion for summary judgment of Plaintiff Catherine Mureithi’s
claims. (Docs. 55, 56.)1 For the following reasons, the Agency’s motion will be granted.
I. FACTUAL BACKGROUND
The following facts are derived from the parties’ statements of facts and evidence.2
Mureithi is a Black woman from Kenya, Africa, who has a disability. (See Doc. 56-1 at
45–46.) In 2015, she began working for the United States Department of Veteran’s Affairs
(the “VA” or “Agency”) as a nurse in Bedford, Massachusetts. (Id. at 13.) Three years
later, in 2018, she “joined the VA of Tucson.” (Id.)
In 2019, Mureithi applied for a Patient Aligned Care Team position with the
1 The Court refers to the publicly-filed version of the Secretary’s motion and its
associated exhibits, (Docs. 56, 56-1), not the motion filed under seal, (Doc. 55).
2 Mureithi did not file a separate statement of facts, and she submitted minimal
evidence in support of her opposition. Accordingly, where the record lacks supporting
citations, the Court cites to Mureithi’s briefing to provide context for her allegations and
to fully address her arguments.
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Phoenix VA at the Southeast Community Based Outpatient Clinic in Gilbert, Arizona
(“Southeast Clinic”). (Id. at 13–14.) The VA hired Mureithi, and she began work on
August 18, 2019—her entry on duty (“EOD”) date. (Id. at 17–18.)
A. Mureithi Is Reassigned to the Main VA
Mureithi claims she began experiencing discrimination in March 2020. (Id. at 15.)
That month, Arizona Governor Doug Ducey issued a declaration of Public Health
Emergency due to COVID-19. (See id. at 57.) In connection with the Agency’s COVID-
19 emergency response, Tatiana L.3, a VA nurse manager, issued Mureithi and two other
nurses—Felita D., who is Black, and Lisa C., who is White—a Notice of Change in
Working Conditions on March 26, 2020 (the “First Notice”). (Id. at 17–18, 67.)
The First Notice reassigned the three nurses—Mureithi, Felita D., and Lisa C.—
from the Southeast Clinic to its main location at the VA hospital in Phoenix on Indian
School Road (“the Main VA”). (See id. at 17, 65, 79.) The First Notice informed Mureithi
that she was “temporarily detailed to the role of Registered Nurse for Inpatient Care
Services,” and stated that the temporary reassignment was to begin on March 29, 2020, and
last up to 90 days. (Id. at 67.) It also informed Mureithi that her “rate of pay and hours
per pay period will remain the same.” (Id.) The parties’ evidence reflects that additional
nurses were detailed to the Main VA facility around this period. The parties’ briefing,
however, focuses on only two nurses: Siji P., who appears to be a member of a minority
class, and Amber L., a White nurse, both of whom were detailed shortly after Mureithi, on
April 3, 2020. (See id. at 17, 37, 55, 71.)
On March 27, 2020, Mureithi was informed via email that the Agency assigned
nurses to temporary assignments based on reverse seniority, as determined by their EOD
dates at the Phoenix VA, and, when necessary, based on nurses’ specific skill sets. (Id. at
73.) Tatiana L., the nurse manager, later testified before the Equal Employment
Opportunity Commission (“EEOC”) that reassignments were based on “reverse seniority
3 To protect the privacy of individuals referenced herein, the Court refers to non-party
individuals by their first name and last initial only.
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and EOD date.” (Id. at 75, 79 (citation modified).)
In March 2020, at the time of Mureithi’s reassignment, Mureithi, Felita D., and Lisa
C. were the most junior nurses based on their EOD dates with the Phoenix VA. Felita D.
was hired on August 4, 2019, Mureithi on August 18, 2019, and Lisa C. on September 16,
2019. (See id. at 18–19, 55.) Amber L., who received her temporary detail assignment on
April 3, 2020, had an EOD date of August 4, 2019. (Id. at 37, 55.) Siji P., however, had
an EOD date of July 2014—four years earlier than Mureithi, Felita D., Lisa C., or Amber
L. (Id. at 19, 55.)
Mureithi claims that “the way they picked the nurses to send to the [Main
VA] . . . was baseless” because the Agency “did not follow the seniority rules.” (Id. at 17.)
She stated her correct EOD date was April 15, 2015, when she started working for the
Agency in Massachusetts, so she was more senior than other nurses who were not
reassigned. (Id. at 18–19.) She also indicated that she believed the temporary detail was
discriminatory because, unlike Felita D. and Lisa C., she “did not have past med surge
experience.” (Id. at 20–21.)
B. Mureithi Is Denied Advanced Leave
On March 26, 2020, the same day Mureithi received the First Notice temporarily
reassigning her, she sent an email to the EEOC because she felt that her “detail to the
[M]ain VA was due to discrimination.” (See id. at 15–16, 20.) That same day, Mureithi
also contacted the Agency’s Human Resources (“HR”) department and Tatiana L. via email
and requested leave from March 30, 2020 “until COVID-19 child care arrangements
resolve[d].” (Id. at 21.) Mureithi explained that she needed to take leave in order to
“arrange care for [her] children.” (Id.) Tatiana L. instructed Mureithi to complete and
submit the appropriate leave paperwork. (Id.) On March 27, 2020, Mureithi submitted her
leave request paperwork. (Id. at 22, 93–94.) She requested 40 hours of advance sick leave
and 160 hours of advance annual leave, totaling 200 hours of advance leave. (Id. at 93; see
also id. at 33.) After reviewing Mureithi’s paperwork, Tatiana L. approved 40 hours of
leave to allow Mureithi to make childcare arrangements, subject to further review and
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approval by other Agency officials. (See id. at 21–22, 24; see also id. at 94 (“will approve
33 hrs of Accrued AL [annual leave] and approve 7 hours of Advanced AL for a week to
make alternate child care arrangements”).) When Tatiana L.’s approval of Mureithi’s leave
request was passed along for further review, other Agency officials denied the request
because Mureithi did not provide sufficient justification for advance leave. (See id. at 21–
24.) Specifically, Christina R., who worked in HR, “communicated with [Mureithi] that
[she] had not provided proper justification for advance leave.” (Id. at 22 (stating this
conversation occurred on March 30, 2020).) Mureithi told Christina R. that she needed the
leave to arrange for child care. (Id.) On April 3, 2020, Christina R. sent Mureithi an email
notifying her that her application for advance leave was not complete. (Id.) Mureithi
responded by submitting the same reasons she previously provided. (Id.) She believed
“[t]here was nothing else [needed] to justify” her advance leave request because her “kids’
schools were closing due to COVID-19.” (Id. at 22–23.) Because Mureithi did not provide
additional justification, Mureithi’s request for advance leave, including the 40 hours
Tatiana L. initially approved, was denied. (See id. at 23.)
Mureithi asserts that Tatiana L. was the VA official who denied her request and
contends that Tatiana L. denied her request for advance leave on the same day the request
was submitted because Tatiana L. knew Mureithi is Black and knew Mureithi’s “origin.”
(Id. at 25 (“It has to be because of my color or my race or my origin. There is no other
reason I can believe.”); id. at 26 (“Q. And simply because she didn’t concur, that showed
that she was discriminating against you? A. Yes.”); id. at 33 (“It was denied the same day
I applied for it. It didn’t go through the process.”).) She also claims that Tatiana L. denied
her request in retaliation for Mureithi contacting the EEOC on March 26, 2020. (Id. at 25.)
C. Mureithi Does Not Show Up to Her Temporary Assignment
On March 30, 2020, the day after Mureithi was supposed to report to the Main VA
for her reassignment, she called the nurse on duty and stated she would not be able to come
to work. (See id. at 34.) On March 31, 2020, the Agency designated Mureithi Absent
Without Leave (“AWOL”) because she did not call the nurse on duty and did not come to
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work. (Id. at 34.) Mureithi stated that she did not call the nurse on duty on March 31
because on March 30, the nurse “told [her] not to call him for long term leave” and that, to
take long-term leave, she would need to talk to Tatiana L. (Id.) Mureithi continued to be
marked AWOL on several occasions between March 31 and April 23, 2020, due to her
failure to report to work and to notify the nurse on duty. (See Doc. 59-1 at 26–34 (emails
reflecting Mureithi was marked AWOL on March 31 and April 1, 2, 3, 6, 8, 9, 10, 12, 15,
16, 19, and 22).) Mureithi asserts that she was marked AWOL due to discrimination. (Doc.
56-1 at 36.)
In April 2020, the Agency’s Executive in Charge for the Office of the
Undersecretary for Health issued a memorandum that “authorize[d] the establishment and
implementation of crisis standards of care in order to respond to [the COVID-19]
emergency” and noted that it was “necessary to shift care, resources, supplies, and
personnel in a way that saves the largest number of lives in contrast to the traditional focus
on individuals.” (Id. at 61–62.)
D. Mureithi Requests FMLA Leave
On April 6, 2020, a week after she was supposed to start at the Main VA on her
temporary assignment, Mureithi submitted paperwork to receive leave under the Family
and Medical Leave Act (“FMLA”). (Id. at 126; see also id. at 22–23.) She stated in her
paperwork that her leave would end on June 15, 2020. (Id. at 126.) She also submitted a
certification completed by her health care provider, who stated that Mureithi was “unable
to perform work of any kind.” (Id. at 127–28.) The health care provider also stated that
Mureithi “should continue to only work an 8 (eight) hour shift on scheduled work days”
once she returned to work from FMLA leave. (Id. at 129.)
On April 23, 2020, Mureithi’s FMLA request was approved for absences “from
April 19, 2020 to June 24, 2020 . . . for a total of 392 hours.” (Id. at 137 (emphases
omitted); see also id. at 23.)
E. Mureithi Requests Remote Work
Mureithi also requested that she be able to telework, but the Agency denied her
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request. (See id. at 36–37 (Mureithi testified that she requested telework on March 30,
2020, see id. at 36; Tatiana L. testified before the EEOC that Mureithi requested telework
on April 13, 2020, see id. at 82).) She asserts that this denial was discriminatory because
Amber L. and Lisa C., who are White, were allowed to telework. (Id. at 37.) Mureithi
acknowledges that it is “against VA policy to telework for the purpose of taking care of . . .
dependents.” (Id. at 37.)
F. Mureithi’s Second Reassignment and Request for Reasonable
Accommodation
On June 23, 2020, Mureithi “received a return to duty e-mail to return from [her]
FMLA time.” (Id. at 37.) Mureithi claims that the email was discriminatory and harassing
because White employees “don’t receive that when they have a date to return” and they
“just show up on that date.” (Id. at 37–38.)
Mureithi returned to work at the Southeast Clinic on June 25 or 26, 2020. (Id. at
38.) Upon returning to work, Mureithi completed a certification that had expired while she
was on leave. (See id.) She was not reprimanded for not completing that certification
before she returned to work. (Id.)
On June 25, 2020, Mureithi, along with Amber L. and Siji P., received another
notice informing them that they would be temporarily detailed to the Main VA location
beginning June 26, 2020 for a period of up to 90 days (the “Second Notice”). (Id.) Two
days earlier, Lisa C. was also reassigned to the Main VA. (Id.) After receiving the Second
Notice, Mureithi applied for two reasonable accommodations (“RA”): (1) a limitation to
no more than eight-hour shifts, and (2) permission to wear a cloth mask because she could
not tolerate prolonged use of other types of masks. (See id. at 38–39; Doc. 59-1 at 21.)
Mureithi did not have a disability when she started working at the Phoenix VA, so she did
not have an RA request on file when she received the Second Notice. (Doc. 56-1 at 39.)
Mureithi submitted medical documentation in support of her RA request on July 9,
2020. (See Doc. 59-1 at 21.) Five days later, on July 13, 2020, Vanessa L., HR personnel,
informed Mureithi that her request for eight-hour shifts was approved. (Id.) With respect
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to Mureithi’s mask-related request, Vanessa L. sought clarification regarding how long
Mureithi could wear any mask, how frequently she would need to remove it, and how much
time she would need before resuming use. (Id. at 21–22.) Mureithi did not provide the
requested clarification. (See id.) Instead, she suggested that Vanessa L. contact her
medical provider directly. Mureithi, however, declined to sign a limited release of medical
information authorizing such contact. (Doc. 56-1 at 41.) Mureithi stated that she “didn’t
trust” Vanessa L. and believed Vanessa L. “did not have the need to request more
documentation” because her “doctor indicated she had put enough information in the
paperwork.” (Id. at 41.) Mureithi then refused to communicate further with Vanessa L.
(Id. at 41–42.) Mureithi did not provide the requested information until August 11, 2020—
five days before her detail ended at the Main VA facility. (Doc. 59-1 at 23–24.) After
Mureithi’s detail at the Main VA facility concluded, on August 16, 2020, a mask-related
accommodation was no longer required because Mureithi’s job duties at the Southeast
Clinic allowed her to tolerate wearing a mask. (Doc. 56-1 at 42.)
Mureithi claims Vanessa L. discriminated against her based on her race by asking
for additional information to support her request for an RA because a presumably White4
and male nurse at a VA satellite clinic in Globe, Arizona had “the same issue” but “did not
even need to bring all that documentation.” (Doc. 56-1 at 40–41.) She also asserts that “a
lot of nurses . . . got reasonable accommodations without even paperwork.” (Id.)
G. Mureithi Is Asked to Leave Southeast Clinic
On July 6, 2020, while still on her temporary detail assignment, Mureithi came to
work at the Southeast Clinic on a day she was scheduled to work at the Main VA location.
(See id. at 42, 203.) While Mureithi was calling patients in the Southeast Clinic pod,
supervisors Lori R. and Steve B. approached her, told her she needed to leave, and stated
that if she did not leave within thirty minutes, VA police would be called. (Id. at 42.)
Mureithi left within the thirty-minute period, and no police were called. (Id.) She testified
4 Mureithi had not met this nurse and assumed he was White due to his name. (Doc.
56-1 at 40.)
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that she did not know why she was asked to leave and believed the incident constituted
harassment and discrimination. (Id.) Nurse Paige H., who witnessed the interaction,
testified before the EEOC that Lori R. and Steve B. entered the pod, told Mureithi she was
assigned to the Main VA, and instructed her to leave. (Doc. 56-1 at 203; Doc. 59-1 at 54.)
Paige H. heard Steve B. state that if Mureithi did not leave, police could be called to escort
her. (Id.) Mureithi, in an elevated tone, stated that she had been harassed, bullied, and
discriminated against since her return. (Id.)
H. The Agency’s Responses to Mureithi’s Conduct
On July 17, 2020, Mureithi was given a reprimand for her failure to follow leave
request procedures and completion of leave applications, being Absent Without Leave, and
her unreasonable delay in not reporting to her detail assignment at the Main VA in support
of the COVID-19 emergency. (Doc. 59-1 at 39.)
On August 16, 2020, Mureithi’s detail at the Main VA location ended and she began
reporting back to the Southeast Clinic. (Doc. 56-1 at 42.) A short time later, on August
25, 2020, the VA issued Mureithi a non-disciplinary “Written Counseling” for absences
without authorization based on her failure to report to duty as scheduled and her failure to
notify her supervisor or another supervisory official regarding her absences on April 6–13
and April 15–17. (Doc. 59-1 at 36.)
In the fall of 2020, Mureithi received a satisfactory annual proficiency report
covering the rating period from May 14, 2019, through May 13, 2020. (Doc. 56-1 at 151.)
On December 28, 2020, however, Mureithi was issued another Written Counseling for
violating the Agency’s masking requirements around patients. (Doc. 59 at 14.)
I. Mureithi’s Third Reassignment and Second RA Request
Mureithi alleges that on December 28, 2020, while she was at the Southeast Clinic,
her supervisor yelled at her and “tried to snatch and hide her PIV card” from her
workstation without her consent. (See Doc. 56-1 at 159.) The Agency asserts that Mureithi
received her third temporary reassignment and was detailed to the Main VA facility
beginning December 27, 2020, but on December 28, 2020 she arrived at the wrong
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location, the Southeast Clinic. (Id. at 113–14.) Steve B. testified before the EEOC that on
December 28, he informed Mureithi that she was not assigned to that location. (Id.) He
testified that later that morning, he accompanied Lori R. to speak with Mureithi, but
Mureithi declined to engage and left the room, leaving her PIV card unattended at her
computer. (Id.) Steve B. stated that he retrieved the PIV card and handed it to Lori R.,
who then returned it to Mureithi. (Id.)
Because Mureithi received another reassignment to the Main VA, she submitted
renewed RA requests, accompanied by updated medical documentation on January 5,
2021. (See Doc. 59-1 at 15–16.) Mureithi again requested (1) a limitation to no more than
eight-hour shifts and (2) permission to wear a cloth mask because she could not tolerate
prolonged use of other types of masks. (Id.) The Agency approved the requested
accommodations. (Id.; see Doc. 56-1 at 207.)
J. Alleged Disclosure of Mureithi’s Medical Information
Mureithi also alleges that management officials improperly disclosed her personal
medical information to individuals on June 29, 2020, and January 21, 2021; however, she
offers no further detail regarding the nature of the information disclosed or to whom it was
disclosed. (See Doc. 1 at 19; Doc. 59 at 25.)
II. PROCEDURAL HISTORY
Mureithi initiated administrative proceedings by filing a formal complaint with the
EEOC on May 7, 2020. (Doc. 56-1 at 2.) There, she alleged that the Agency discriminated
against her based on her race (Black), national origin (Kenyan), disability, and in retaliation
for protected activity (reporting to the EEOC). (Id. at 2, 46.) The EEOC issued a final
agency decision on January 14, 2022, finding no discrimination or unlawful retaliation.
(Id.) Mureithi appealed that decision on February 7, 2022. (Id.) On September 14, 2023,
the EEOC issued a decision affirming the finding of no discrimination and provided
Mureithi with a notice of her right to file a civil action. (Id. at 7–9.)
Mureithi filed this action on October 2, 2023. (Doc. 1.) Mureithi attached the
September 14, 2023 EEOC decision (“EEOC Decision”), which summarized the events
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accepted for investigation in her May 2020 EEOC action, to her Complaint.5 (See Doc. 1
at 18–25.) On October 27, 2023, Mureithi filed an Amended Complaint, which is the
operative pleading in this case.6 (Doc. 15). Mureithi did not reattach the 2023 EEOC
Decision to her Amended Complaint. (See id.) Nothing in the Amended Complaint,
however, suggests that Mureithi intended to abandon or disavow the factual allegations
reflected in the EEOC proceedings.7 Given Mureithi’s pro se status, the Court construes
the omission as a procedural oversight rather than a substantive narrowing of her claims.
See Gonzalez-Castillo v. Garland, 47 F.4th 971, 980 (9th Cir. 2022) (courts must construe
pro se filings liberally). Thus, for purposes of summary judgment, the Court will consider
the EEOC Decision as part of the operative complaint.
On October 30, 2024, the Agency filed its motion for summary judgment. (Docs.
55, 56.) Mureithi responded on November 25, 2024, (Doc. 59), and the Agency replied on
December 10, 2024, (Doc. 60). The parties did not request oral argument, and the Court
does not believe oral argument is necessary, so this motion is decided without holding a
hearing. See LRCiv 7.2(f).
III. LEGAL STANDARD
“The 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). Not all factual disputes are material or genuine, however:
5 In this District, the pro se form complaint for employment-discrimination cases
instructs litigants that they may attach “a copy of [their] charge filed with the Equal
Employment Opportunity Commission [(‘EEOC’)]” to provide support for the facts
alleged. (See Doc. 1 at 6.)
6 On January 8, 2024, Mureithi filed a document titled “Opposing Defendants Motion
to Dismiss.” (Doc. 20.) No motion to dismiss was pending at that time, and the filing
appears to be miscaptioned. Substantively, the document resembles an attempted
amendment. Mureithi already filed an amended complaint as of right under Federal Rule
of Civil Procedure 15(a)(1) and thereafter could amend only with leave of court or the
Agency’s written consent. See Fed. R. Civ. P. 15(a)(2). Mureithi did not request leave to
file a further amended complaint. Accordingly, the Court does not treat Doc. 20 as a further
amended complaint and will not consider it. Put another way, any new allegations
appearing only in that filing—and not in the Amended Complaint—will not be considered.
7 The Agency acknowledges that “Plaintiff initially attached the list of twenty-nine
discrete events to her Complaint.” (Doc. 60 at 6.)
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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.” Fresno
Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). Courts
“must view the evidence in the light most favorable to the nonmoving party and draw all
reasonable inference[s] in the nonmoving party’s favor.” Rookaird v. BNSF Ry. Co., 908
F.3d 451, 459 (9th Cir. 2018). “Summary judgment is improper where divergent ultimate
inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d
at 1125 (internal quotation marks omitted).
At summary judgment, there are shifting burdens of production. A party moving
for summary judgment “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) (internal quotation marks omitted). “In order to carry
its burden of production, the moving party must either produce evidence negating an
essential element of the nonmoving party’s claim or defense or show that the nonmoving
party does not have enough evidence of an essential element to carry its ultimate burden of
persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000).
If the “moving party carries its burden of production, the nonmoving party must
produce evidence to support its claim or defense.” Id. at 1103. “If the nonmoving party
fails to produce enough evidence to create a genuine issue of material fact, the moving
party wins the motion for summary judgment.” Id. There is no issue for trial unless enough
evidence favors the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “If the evidence is merely colorable or is not significantly probative, summary
judgment may be granted.” Id. at 249–50 (citations omitted). At bottom, the Court’s
“inquiry as to whether a genuine issue exists will be whether the evidence presented is such
that a jury applying that evidentiary standard could reasonably find for either the plaintiff
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or the defendant.” Id. at 255.
IV. DISCUSSION
Mureithi brings claims against the Agency for (1) race and national origin
discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) retaliation in
violation of Title VII; (3) a hostile work environment in violation of Title VII; (4) disability
discrimination in violation of the Rehabilitation Act of 1973; and (5) disability
discrimination in violation of the Americans with Disabilities Act of 1990. (Doc. 15.) The
Agency moves for summary judgment under Fed. R. Civ. P. 56 on all claims.
A. Claims Before the Court on Summary Judgment
Before the Court can assess whether summary judgment is warranted on each of the
claims, it must clarify the scope and nature of the claims at issue. Mureithi proceeds pro
se, and her Response (Doc. 59) contains a mixture of allegations, narrative statements,
exhibits, and references to events that are not framed clearly within the operative
complaint.
The Agency asserts that Mureithi cannot assert claims based on conduct not
alleged in the operative complaint, (see Doc. 60 at 5–10). The Court must therefore
determine which discrete acts—those that constitute the basis of Mureithi’s discrimination,
retaliation, and hostile work environment claims—are properly pled in the operative
complaint.
Courts must construe pro se filings liberally. Gonzalez-Castillo, 47 F.4th at 980. A
pro se complaint, “however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Simmons v. United States, 142 S. Ct. 23, 25 (2021)
(Sotomayor, J., statement respecting denial of certiorari) (cleaned up). That said, liberal
construction has limits. A plaintiff may not amend a complaint through summary-
judgment briefing. The Ninth Circuit has long held that a “plaintiff cannot raise a new
claim for relief in response to a motion for summary judgment.” Ruiz v. Magellan
Financial & Insurance Services, 2025 WL 1796275, at *9 (D. Ariz. 2025) (cleaned up).
Courts routinely reject efforts to enlarge or alter the claims at issue through opposition
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papers. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006)
(holding district court properly excluded new allegations raised only in summary-judgment
filings); Ward v. Clark County, 285 F. App’x 412, 412–13 (9th Cir. 2008) (holding plaintiff
could not base her retaliation claim on an incident not mentioned in the complaint). A
plaintiff also may not “expand the scope of [their] pleadings through [their] deposition
testimony.” See Valdez v. Corr. Officers Walker, 2012 WL 1657583, at *6 (E.D. Cal.
2012). These rules ensure that defendants have fair notice of the claims asserted and are
not forced to defend new theories raised for the first time at summary judgment.
Accordingly, the Court must determine the universe of discrete acts that are properly
pled—either directly in the Amended Complaint or as reasonably encompassed by the
EEOC proceedings—and exclude those raised for the first time at summary judgment.
1. Discrete Acts Mureithi Sufficiently Alleged
Both parties agree that Mureithi’s claims arise from a series of discrete acts. But
the parties do not agree on the full universe of actionable allegations, and neither party
provides a clear or consistent account of which discrete acts form the basis of Mureithi’s
claims. Their submissions reference overlapping, partially inconsistent lists of events,
leaving the scope of the operative allegations unclear.
The Agency identifies eight categories of conduct that, in its view, fully encompass
Mureithi’s allegations in the operative complaint: “(1) her initial COVID-19 detail
assignment to the [Main] VA hospital; (2) denial of her FMLA and/or advanced leave;
(3) denial of a telework option; (4) her employer threatened to call the VA police on her;
(5) she was given a written reprimand; (6) she was given a second COVID-19 detail against
her reasonable accommodation; (7) her reasonable accommodation was delayed for six
months; and (8) Assistant Nurse BS ‘snatched’ her PIV card.” (Doc. 56 at 2.)
Mureithi, by contrast, asserts that twenty-nine discrete events were accepted for
investigation by the EEOC and attaches a chart listing them, including: the Agency
assigned Mureithi to COVID-19 detail assignments, the Agency marked Mureithi AWOL,
the Agency denied Mureithi’s requests to telework, the Agency denied Mureithi’s leave
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requests, the Agency issued written reprimands to Mureithi, the Agency issued an
inadequate proficiency report, the Agency delayed the processing of Mureithi’s RA
requests, the Agency violated Mureithi’s medical privacy, and the Agency gave Mureithi
a “satisfactory” proficiency rating on her evaluation. (Doc. 59 at 1–2; Doc. 59-1 at 2–3.)
Many of these incidents fall naturally within the broader categories the Agency identified,
and Mureithi herself groups them into comparable categories in her summary-judgment
response: “Disparate Treatment Detail Assignments/Telework,” “Denial of Leave –
AWOLS,” “Reasonable Accommodation Claims,” “Written Counseling/Reprimand,” and
“Performance Appraisal.” (Doc. 59 at 7–18.)
The Agency disputes that one of the events—the “satisfactory” proficiency rating—
was properly alleged in the Amended Complaint and contends that it should not be
considered. (Doc. 60 at 6–7.) The Agency is correct that the Amended Complaint does
not expressly allege discrimination or retaliation based on a “satisfactory” annual
proficiency rating. (See Doc. 15.) However, the EEOC Decision references this discrete
act: “On August 24, 2020, Complainant was issued a proficiency report rating of
‘satisfactory.’” (Doc. 1 at 19.) Construing the pleadings liberally, this allegation is
properly pled. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) (courts must
“treat [pro se plaintiffs] with great leniency.”).
To ensure clarity and to structure the analysis that follows, the Court identifies
eleven categories of discrete acts that are alleged in the Amended Complaint, as
supplemented by the EEOC Decision, that form the basis of Mureithi’s claims.
Specifically, the alleged acts that are at issue are that the Agency:
1) Assigned Mureithi to COVID-19 details, including an initial assignment and
subsequent reassignments;
2) Denied Mureithi’s requests to telework;
3) Denied or delayed approval of Mureithi’s requests for advanced leave;
4) Denied Mureithi’s FMLA request;
5) Marked Mureithi AWOL on various dates;
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6) Issued written reprimands and counseling summaries to Mureithi;
7) Delayed the processing or granting of Mureithi’s RA request;
8) Improperly disclosed Mureithi’s medical information;
9) Subjected Mureithi to allegedly harassing or threatening conduct, including
the confiscation of her PIV card and a threat to call the VA police;
10) Assigned Mureithi a “satisfactory” proficiency rating on her annual
evaluation; and
11) Failed to promote Mureithi.8
2. Discrete Acts Mureithi Insufficiently Alleged
In her briefing, Mureithi references three incidents that fall outside the eleven
categories that the Court identified as being properly before it. The Agency contends that
the Court should not consider the following three incidents because they were not alleged
in the Amended Complaint, the Original Complaint, or in any document properly attached
to those pleadings: (1) the imposition of a 14-day suspension; (2) her exclusion from the
daily clinic employee schedule and important yearly work conferences; and (3) her receipt
of unequal pay. The Court addresses each of these incidents in turn.
a) Retaliatory Suspension
Mureithi asserts that the Agency retaliated against her by suspending her for
fourteen days. (See Doc. 59 at 18–19.) The Agency argues that the Court should not
consider this allegation because Mureithi did not allege this act in her Amended Complaint.
(See Doc. 60 at 8.) The Agency further contends that Mureithi is “attempting to present a
claim that was filed in a subsequent EEOC investigation and was also addressed in a union
grievance,” and notes that the suspension occurred in December 2023, well after Mureithi
filed her Amended Complaint. (Id.)
Mureithi did not allege a fourteen-day suspension in the Original Complaint, the
Amended Complaint, or in any document properly attached to those pleadings. Nor could
8 Although Mureithi’s failure-to-promote claim was pled in the Amended Complaint,
the Agency disputes that it is properly before the Court, contending that Mureithi failed to
exhaust her administrative remedies. The issue will be addressed below.
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she have done so, as the suspension occurred after the Amended Complaint was filed.
Mureithi may not raise a new factual allegation at the summary-judgment stage. Because
the suspension allegation was not pled in the operative complaint, the Court does not
consider it. See, e.g., Ruiz, 2025 WL 1796275, at *9; Pickern, 457 F.3d at 968; Ward, 285
F. App’x at 412–13.9
b) Exclusion from the Schedule and Work Conferences
Mureithi also states that the Agency retaliated against her by excluding her from the
“daily clinic employee schedule, and important yearly work conferences.” (Doc. 59 at 21.)
Mureithi did not raise this allegation in the Original Complaint, the Amended Complaint,
or in any document properly attached to those pleadings. She may not assert this new
factual allegation at the summary-judgment stage. See, e.g., Ruiz, 2025 WL 1796275, at
*9; Pickern, 457 F.3d at 968; Ward, 285 F. App’x at 412–13.
c) Unequal Pay
Finally, Mureithi asserts that the Agency retaliated against her because she receives
unequal pay. (Doc. 59 at 21.) Again, Mureithi did not raise this allegation in the Original
Complaint, the Amended Complaint, or in any document properly attached to those
pleadings and she may not assert this new factual allegation at the summary-judgment
stage. See, e.g., Ruiz, 2025 WL 1796275, at *9; Pickern, 457 F.3d at 968; Ward, 285 F.
App’x at 412–13.
B. Exhaustion of Administrative Remedies for Failure-to-Promote Claim
In addition to the pleading deficiencies discussed above, the Agency disputes
whether Mureithi’s failure-to-promote claim—though pled in the Amended Complaint—
is properly before the Court. (See Doc. 60 at 7.) Specifically, the Agency contends that
Mureithi failed to exhaust her administrative remedies under Title VII because she did not
raise a failure-to-promote claim during the administrative proceedings. (Doc. 60 at 7.)
To pursue a Title VII claim in federal court, a plaintiff must first exhaust their
administrative remedies. Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). A
9 The Agency’s request for leave to supplement its motion should the court choose to
consider Mureithi’s suspension allegation, (Doc. 60 at 9), is denied as moot.
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plaintiff “who complains of more than one discriminatory or retaliatory act must timely
exhaust administrative remedies as to each.” Walker v. U.S. Dep't of Com., 2013 WL
6592555, at *2 (E.D. Cal. 2013) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114–15 (2002). A plaintiff's failure to exhaust administrative remedies on any Title
VII claim leaves the district court without subject matter jurisdiction to consider the claim.
Freeman v. Oakland Unified School Dist., 291 F.3d 632, 637 (9th Cir. 2002).
Exhaustion of administrative remedies under Title VII requires that the complainant
file a timely charge with the EEOC, thereby allowing the agency time to investigate the
charge. See 42 U.S.C. § 2000e–5(b). “The jurisdictional scope of a Title VII claimant’s
court action depends upon the scope of both the EEOC charge and the EEOC
investigation.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (citing Green v. Los
Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989)). In determining
the scope of exhaustion, courts examine whether the unpled claim is “like or reasonably
related to” the allegations in the EEOC charge such that the EEOC’s investigation would
necessarily have encompassed it. Id.; Green, 883 F.2d at 1475–76. Although the EEOC
charge must be construed liberally, courts cannot deem a claim exhausted when doing so
would deprive the employer and the agency of fair notice. Freeman, 291 F.3d at 636.
Failure to promote is a quintessential “discrete act,” and a plaintiff must timely
present such a claim in an EEOC charge. See Morgan, 536 U.S. at 114 (“Discrete acts
such as termination, failure to promote, denial of transfer, or refusal to hire are easy to
identify. Each incident of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable unlawful employment practice.” (cleaned up));
see also Caldwell v. Enter. Prod. Co., 2016 WL 5372528, at *4 (S.D. Tex. 2016)
(dismissing failure-to-promote claim for failure to exhaust administrative remedies).
Here, the EEOC Decision addressed allegations that the Agency, among other
things, assigned Mureithi to COVID-19 detail assignments, marked Mureithi AWOL,
denied Mureithi’s requests to telework and for leave, and issued written reprimands. (Doc.
1 at 18–19.) Nothing in the EEOC decision references non-selection for promotions. (See
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id.) Failure-to-promote claims involve different evidence and different investigative steps
than claims concerning leave, telework, scheduling, or discipline. The EEOC would not
have been expected to investigate promotional practices based solely on Mureithi’s
allegations. See Stache v. Int’l Union of Bricklayers, 852 F.2d 1231, 1234 (9th Cir. 1988)
(EEOC must be given the opportunity to investigate claims not “so closely related” that a
second investigation would be redundant). Because the failure-to-promote claim was not
included in the EEOC charge and is not reasonably related to the allegations the EEOC did
investigate, Mureithi failed to exhaust her administrative remedies. Accordingly, summary
judgment will be granted in favor of the Agency on Mureithi’s failure-to-promote claim.
C. Title VII Disparate Treatment Claims
Mureithi asserts disparate-treatment claims based on race, color, and national
origin.10 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a).
Disparate-treatment claims under Title VII “require the plaintiff to prove that the
employer acted with conscious intent to discriminate.” Costa v. Desert Palace, Inc., 299
F.3d 838, 854 (9th Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
805–06 (1973)). In the absence of direct evidence of discrimination, the plaintiff may rely
on the burden-shifting framework of McDonnell Douglas Corp. v. Green to establish a
prima facie case of discriminatory treatment. 411 U.S. at 802–03.
The Agency contends that Mureithi produced no direct evidence of discrimination
and thus the McDonnell Douglas test applies. (Doc. 56 at 13 (citing McDonnell Douglas,
411 U.S. at 802). Mureithi does not argue that she has direct evidence and also relies on
the burden shifting test in McDonnell Douglas. (See Doc. 59 at 2.) The Court agrees with
the Agency and will apply McDonnell Douglas because there is no direct evidence of
discrimination.
10 To the extent Mureithi attempts to assert a Title VII disparate claim based on
disability, such a theory is not cognizable. See 42 U.S.C. § 2000e–2(a) (not addressing
disability).
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1. McDonnell Douglas Framework
Under the McDonnell Douglas burden-shifting analysis for disparate treatment
cases, the plaintiff must first establish a prima facie case of discrimination. Hawn v. Exec.
Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). To establish a prima facie case, a
plaintiff must show: “(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.” Id. (cleaned up).
“At the summary judgment stage, the requisite degree of proof necessary to establish a
prima facie case is minimal and does not even need to rise to the level of a preponderance
of the evidence.” Lyons, 307 F.3d at 1112 (cleaned up).
If a plaintiff establishes a prima facie case, “[t]he burden of production, but not
persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory
reason for the challenged action.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d
1115, 1123–24 (9th Cir. 2000). If the employer meets this burden, the burden shifts back
to the plaintiff to “then demonstrate that the proffered nondiscriminatory reason is merely
a pretext for discrimination.” Lyons, 307 F.3d at 1112.
At the summary judgment stage, the plaintiff does not have to prove that the
employer’s reason for firing them was pretext for discrimination, but the plaintiff must
introduce evidence sufficient to raise a genuine issue of material fact as to whether the
employer’s reason was pretextual. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th
Cir. 2000). To do this, the plaintiff must offer “specific, substantial evidence of pretext.”
Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (quoting Steckl v. Motorola,
703 F.2d 392, 393 (9th Cir. 1983)). “The plaintiff may show pretext either (1) by showing
that unlawful discrimination more likely motivated the employer, or (2) by showing that
the employer’s proffered explanation is unworthy of credence because it is inconsistent or
otherwise not believable.” Dominguez-Curry v. Nev. Transp. Dep’t., 424 F.3d 1027, 1037
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(9th Cir. 2005) (citation omitted).
2. Prima Facie Case
The Agency does not dispute that Mureithi can satisfy the first two elements of a
prima facie case under McDonnell Douglas: (1) that she is a member of a protected class,
and (2) that she was qualified for her employment position. (Doc. 56 at 14.) The Agency
contends, however, that Mureithi has not demonstrated that the alleged conduct constitutes
an adverse employment action, nor has she identified any similarly situated employees
outside her protected classes who were treated more favorably. (Id.) The Court agrees
with the Agency that Mureithi has not made a prima facie case of race, color, and national
original discrimination for any of the remaining ten categories of incidents upon which her
claims are based. Accordingly, the Court examines each category in turn, addressing both
the alleged adverse action and the treatment of comparators.
a) Temporary COVID-19 Detail
Mureithi alleges that the Agency discriminated against her by temporarily detailing
her to serve as a nurse at the Main VA hospital during the COVID-19 pandemic. (Doc. 59
at 7–9.) Mureithi cannot establish a prima facie case of disparate treatment because
although the temporary detail may constitute an adverse employment decision, she has not
shown that similarly situated employees outside her protected class were treated more
favorably.
An adverse employment action is one that “constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). “The Ninth Circuit
takes an expansive view on what constitutes an adverse employment action” and examples
include “demotions, disadvantageous transfers or assignments, refusals to promote,
unwarranted negative job evaluations, and toleration of harassment by other employees.”
Ramirez v. Olympic Health Mgmt. Sys., Inc., 610 F. Supp. 2d 1266, 1281 (E.D. Wash.
2009) (citing Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000)).
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Despite this expansive view, “not every employment decision amounts to an adverse
employment action” and courts are advised to avoid “trivial personnel actions brought by
irritable, chip-on-the-shoulder employees.” Id. (cleaned up). Although a lateral transfer
or temporary reassignment can qualify as an adverse employment action, courts examine
whether the transfer resulted in a tangible impact on an employee’s pay, benefits, job
duties, or career prospects. See Clark v. City of Tucson, 2020 WL 914524, at *11 (D. Ariz.
2020). Involuntary transfers or shift changes that do not involve a demotion, loss of
compensation, or significant change in job responsibilities generally do not rise to the level
of an adverse employment action. See id.; Nidds v. Schindler Elevator Corp., 113 F.3d
912, 919 (9th Cir. 1996) (declining to characterize an involuntary transfer to a different
department, with no change in compensation, as an adverse employment action).
Whether Mureithi’s temporary details constitute adverse employment actions is a
close question, and the Agency concedes that Mureithi’s temporary detail assignments
“could, by some, be viewed as an adverse action as [they] temporarily impacted Mureithi’s
terms and conditions of employment.” (Doc. 56 at 15 (emphasis omitted).) The Court
need not resolve this issue because even assuming Mureithi’s temporary COVID-19 details
constitute adverse employment actions, Mureithi fails to establish a prima facie case of
disparate treatment.
Mureithi has not identified any similarly situated employee outside her protected
class who was treated more favorably. She does not identify any comparator with the same
or less seniority—based on EOD date—who did not receive a COVID-19 detail. Instead,
Mureithi makes generalized assertions that the Agency “favored the Caucasian employees
over the minority employees,” without pointing to any specific individual who was treated
more favorably under comparable circumstances. (Doc. 59 at 7–9.)
Moreover, her generalized assertions are inconsistent with her testimony that at least
two White nurses with similar EOD dates were also detailed to the Main VA, undermining
her theory that she was singled out. (See Doc. 56-1 at 17–18, 37.) Mureithi attempts to
rely on a seniority list she created herself to support her allegation that non-minority nurses
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were treated more favorably. The Agency objects to the use of this list because Mureithi
prepared it, it lacks any foundation or verification, and it directly conflicts with the
Agency’s official business records and sworn testimony.11 Even taking the list at face
value, it reflects that the five most junior nurses were detailed to the Main VA, and of the
five, two were White employees, which undermines—rather than supports—Mureithi’s
contention that detailing decisions were made on the basis of race or other protected
characteristics. (See Doc. 59-1 at 5.)
Mureithi further argues that although White nurses were detailed, they were offered
telework while minority nurses were not. (Doc. 59 at 8–9.)12 Mureithi’s support for this
assertion is, again, the seniority list she created. (See id.) Even assuming Mureithi’s
representation of the telework assignments is accurate, her assertion still fails. Mureithi
was detailed to provide direct, in-person nursing care during the COVID-19 pandemic—
duties that could not be performed remotely. (See Doc. 56 at 7.) Mureithi admitted in her
deposition that she does not know what duties the White nurses, who she claims were
permitted to telework, were assigned. (See Doc. 56-1 at 37.) Absent evidence that those
nurses were assigned comparable in-person clinical duties, Mureithi cannot establish that
they were similarly situated in all material respects. Mureithi therefore fails to identify any
non-minority nurse assigned to comparable direct patient care duties who was nevertheless
permitted to telework.
Mureithi also contends that she was detailed more than once while White nurses
were not. (Doc. 59 at 9.) However, Mureithi never served her initial COVID-19 detail
because she immediately requested advanced leave and then requested FMLA leave. (See
11 The Court need not resolve the parties’ competing arguments regarding the
authenticity or admissibility of Mureithi’s seniority and telework list. Even assuming the
accuracy of the information reflected in that exhibit, Mureithi fails to establish a prima
facie case of disparate treatment. Accordingly, any evidentiary objections to the list are
immaterial. See, e.g., Rossi v. Badger Mut. Ins. Co., 2020 WL 9599646, at *4 (D. Ariz.
2020) (holding that an evidentiary objection is material only if the court considers the
evidence in ruling on summary judgment); Cook v. Bd. of Trs. of Cal. State Univ., 2025
WL 1151014, at *4 (E.D. Cal. 2025) (declining to rule on evidentiary objections where the
challenged evidence was not relied upon).
12 Mureithi separately challenges the Agency’s denial of her telework request; that
argument is addressed in the next section.
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Doc. 60 at 3.) When Mureithi was again detailed in June 2020, White nurses were also
detailed during that same period. (See id.) Mureithi therefore cannot show that she was
disproportionately selected for repeated detailing or treated less favorably than similarly
situated employees outside her protected class.
Mureithi’s reliance on litigation brought by a coworker further undermines her
allegation. In Dye v. Hunter, the court addressed materially identical allegations arising
from COVID-19 detail assignments at the Main VA. See 2025 WL 2654205, at *3–4 (D.
Ariz. 2025). There, even where the defendant conceded that a temporary COVID-19 detail
constituted an adverse employment action, the court granted summary judgment because
the plaintiff could not show that similarly situated employees outside her protected class
were treated more favorably. Id. The court emphasized that detail assignments were based
on seniority, that race was not a factor, and that the purported comparators were, in fact,
also detailed. Id. The same is true here.
Because Mureithi has failed to identify any similarly situated employees outside her
protected class who were treated more favorably, she has not established a prima facie case
of disparate treatment. Summary judgment will therefore be granted in favor of the Agency
on Mureithi’s discrimination claim arising from her COVID-19 detail to the Main VA.
b) Telework
Mureithi alleges that the Agency discriminated against her by denying her request
to telework. (Doc. 15 at 5.) As a threshold matter, Mureithi must establish that the denial
of telework constituted an adverse employment action. She cannot do so on this record.
Although the Ninth Circuit has not squarely addressed whether the denial of
telework constitutes an adverse employment action, courts in this District have held that it
does not. In Matthews v. City of Tempe, the court held that the denial of teleworking
privileges did not amount to an adverse employment action because it did not materially
change the plaintiff’s job duties, pay, or employment status. 2023 WL 6880652, at *3 (D.
Ariz. 2023). This conclusion is consistent with the decisions from other circuits, where
courts have repeatedly held that the denial of telework does not constitute an adverse
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employment decision. See, e.g., Terry v. Perdue, 2021 WL 3418124, at *2 (4th Cir. 2021)
(holding that the loss of one teleworking day, was not an adverse employment action as it
“did not change the terms and conditions of his employment”); Boss v. Castro, 816 F.3d
910, 918 (7th Cir. 2016) (stating that the loss of a teleworking day was not only not an
adverse employment action but that it “borders on the frivolous”); Maine v. Azar, 2021 WL
3617215, at *19 (D. Md. 2021) (holding that the denial of a request to telework did not
constitute an adverse employment action); Homburg v. UPS, 2006 WL 2092457, at *9 (D.
Kan. 2006) (“[D]istrict courts . . . have consistently held that the denial of a request to work
from home is not adverse employment action.”).
The reasoning of these cases applies with even greater force here. Mureithi was a
nurse whose position required direct, in-person inpatient care. (Doc. 56 at 7.) Her job
duties necessarily involved on-site patient interaction and clinical responsibilities that
could not be performed remotely. (See id.) Mureithi does not allege that telework was
ever a term or condition of her employment, that she previously worked remotely, or that
remote work was compatible with the essential functions of her role. Nor does Mureithi
allege that the denial of telework resulted in any material change to her employment status.
She was simply required to continue performing her duties in the same manner as before.
Such circumstances do not constitute an adverse employment action. See Jones v.
Brookhaven Sci. Assocs., LLC, 2024 WL 4145777, at *8 (E.D.N.Y. 2024) (holding denial
of remote work did not constitute an adverse employment action where job required on-
site duties and no change in pay, benefits, or responsibilities).
Because the denial of Mureithi’s request to telework did not materially alter the
terms, conditions, or privileges of her employment, it does not constitute an adverse
employment action as a matter of law. Thus, Mureithi has not alleged a prima facie case
of race discrimination, and the Agency is entitled to summary judgment on Mureithi’s
disparate treatment claim based on the Agency’s denial of her request to telework.
c) Denial or Failure to Process Mureithi’s FMLA Request
Mureithi alleges that the Agency discriminated against her by denying her request
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for leave under the Family and Medical Leave Act (“FMLA”). (Doc. 15 at 5.) However,
the Agency has established that Mureithi’s FMLA request was approved, (Doc. 56 at 24),
and Mureithi’s response expressly acknowledges that her FMLA leave was approved,
(Doc. 59 at 10). Because Mureithi was granted and did receive FMLA leave, she did not
suffer an adverse employment action. Accordingly, the Court will grant the Agency’s
motion for summary judgment on Mureithi’s discrimination claim based on her FMLA
leave.
d) Denial of Advance Leave
Mureithi also alleges that the Agency discriminated against her by denying her
request for 200 hours of advance leave in March and April 2020. (See Doc. 15 at 6.) The
denial of Mureithi’s request for advance leave, however, does not constitute an adverse
employment action because the action did not result in a “significant change in employment
status.” Burlington Indus., 524 U.S. at 761. Temporary administrative decisions regarding
leave, particularly where no pecuniary loss or lasting consequence is shown, do not meet
this threshold. Courts have consistently held that the denial of leave—especially isolated
or short-term leave—does not constitute an adverse employment action. See Powell v.
Freedom Fin. Network, 2018 WL 3110053, at *7 (D. Ariz. 2018) (finding plaintiff’s
allegation that he was denied leave did not establish “that he suffered an adverse
employment action”); Sapp v. Potter, 2012 WL 3890259, at *13 (E.D. Tex. 2012) (holding
denial of advance leave without evidence of pecuniary loss or punitive effect constituted
an administrative matter rather than an ultimate employment decision); Cabral v. Phila.
Coca Cola Bottling Co., 2003 WL 1421297, at *7 (E.D. Pa. 2003) (holding denial of leave
on specific dates not adverse); Paniagua v. Texas Dep’t. of Criminal Justice, 2001 WL
540908, *6 (N.D. Tex. 2001) (stating that employers routinely restrict the timing of
employees’ vacations based on the needs of the business and concluding that denial of
employee’s vacation request does not constitute an adverse employment action).
Mureithi has not produced evidence that the denial of advance leave resulted in any
loss of pay, benefits, or change in employment status, nor has she shown that the denial
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forced her to resign, subjected her to discipline, or otherwise imposed a punitive
consequence. Rather, the record reflects that the Agency requested additional justification
for advance leave and that Mureithi subsequently sought leave under a different statutory
framework. (Doc. 56-1 at 21–22 (HR notifying Mureithi that her application for advance
leave was incomplete because she had not provided sufficient justification).) Once
Mureithi applied for FMLA leave, the Agency approved a substantial period of leave
covering nearly ten weeks. (Id. at 126, 137.)
Mureithi has failed to establish that the denial of her request for advance leave
constituted an adverse employment action, and the Agency is entitled to summary
judgment on her discrimination claim based on that denial.
e) Satisfactory Rating
Mureithi alleges that the Agency discriminated against her by assigning her a
“satisfactory” proficiency rating. (See Doc. 59 at 15–17, 19.) Under Ninth Circuit
precedent, a mediocre or satisfactory performance evaluation that does not give rise to
further negative employment action does not constitute an adverse employment action. See
Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112–13 (9th Cir. 2000); Lyons, 307 F.3d at
1118.
Mureithi received a “satisfactory” rating on her 2020 annual proficiency review.
(Doc. 60 at 6; Doc. 59 at 17; see also Doc. 56-1 at 153.) The Agency asserts that a
satisfactory rating is not a negative performance evaluation; rather, it reflects that the
employee met performance expectations. (Doc. 60 at 6–7; Doc. 56-1 at 153 (“A
satisfactory rating is not a negative rating. It means that she is considered fully successful
in her performance.”).) Mureithi presented no evidence that this rating resulted in any
tangible employment consequence, such as a reduction in pay or benefits, disciplinary
action, or any other material change in the terms or conditions of her employment, nor does
the record reflect that the rating was published to potential employers or resulted in any
diminution of her responsibilities. Absent such consequences, the proficiency rating does
not rise to the level of a materially adverse employment action. Accordingly, Mureithi has
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failed to establish a prima facie case of disparate treatment. Summary judgment will
therefore be granted in favor of the Agency on Mureithi’s discrimination claim arising from
her “satisfactory” proficiency rating.
f) Marking Mureithi Absent Without Leave
Mureithi alleges that the Agency discriminated against her by marking her AWOL
on multiple occasions. (See Doc. 59 at 10, 13–15.) Courts have held that AWOL
designations or similar attendance-related notations do not constitute adverse employment
actions where they are temporary, later corrected, or do not result in discipline or a material
change in employment status. See Lacayo v. Donahoe, 2015 WL 993448, at *16 (N.D.
Cal. 2015) (holding that being marked AWOL was not an adverse employment action
where the designation did not result in discipline or tangible employment consequences);
Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1183 (C.D. Cal. 2013) (concluding that
AWOL charges did not amount to adverse employment actions absent evidence of a
material impact on the plaintiff’s job).
Mureithi has not alleged—let alone produced evidence—that the AWOL notations
resulted in any reduction in pay, loss of benefits, change in job duties, or other tangible
employment consequence. See, e.g., Burlington Indus., 524 U.S. at 761. To the contrary,
the record shows that several of the AWOL entries were later converted to approved leave
once Mureithi’s FMLA request was approved, further undermining any claim of material
harm. Absent evidence that the AWOL designations had a concrete effect on Mureithi’s
employment, they cannot support a claim of disparate treatment under Title VII.
Even assuming the AWOL designations could qualify as adverse employment
actions, Mureithi has not shown that similarly situated employees outside her protected
class were treated more favorably. Mureithi has not identified any comparator who failed
to report to work and failed to contact a supervisor yet was not marked AWOL. Without
evidence that other employees engaged in comparable conduct and were treated differently,
Mureithi cannot establish disparate treatment.
Because Mureithi has not shown that the AWOL designations constitute an adverse
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employment action or that similarly situated employees were treated more favorably, she
has failed to establish a prima facie case of disparate treatment. Summary judgment will
therefore be granted in favor of the Agency on Mureithi’s disparate treatment claim based
on the Agency assigning Mureithi AWOL designations.
g) Written Reprimand and Counseling Memoranda
Mureithi contends that the Agency discriminated and retaliated against her by
issuing a July 17, 2020 letter of reprimand, an August 25, 2020 written counseling
memorandum, and a December 28, 2020 written counseling memorandum. (Doc. 59 at
13–14; Doc. 15 at 5–7.)
Although a letter of reprimand may constitute an adverse employment action in
some circumstances, it does not do so automatically. Silva v. Chertoff, 2007 WL 1795786,
at *7 (D. Ariz. 2007). The Ninth Circuit has held that a negative evaluation or reprimand
that does not remain in the employee’s file is not an adverse employment action. Alexander
v. Principi, 16 F. App’x 755, 758 (9th Cir. 2001). And courts have held that a plaintiff
must show additional employment consequences for a letter of reprimand to constitute an
adverse employment action. See Silva, 2007 WL 1795786 at *7 (holding that a letter of
reprimand was not an adverse employment action where it remained in the employee’s file
for a limited period and resulted in no employment consequence); Overton v. Mayorkas,
754 F. Supp. 3d 862, 874 (D. Ariz. 2024) (holding that a letter of reprimand retained in an
employee’s file only temporarily, without any additional employment consequences, does
not constitute an adverse employment action); Ogden v. Brennan, 657 Fed. Appx. 232, 235
(5th Cir. 2016) (holding that a “letter of warning” does not constitute an “adverse
employment action” because it does not affect “job duties, compensation, or benefits”
(cleaned up)).
Here, the Agency asserts that the written letter and memoranda on which Mureithi
relies are temporary in nature. (Doc. 60 at 5.) The July 17, 2020 letter of reprimand and
the August 25, 2020 written counseling memorandum expressly state that they are
temporary measures. (Doc. 56-1 at 199 (“A copy of this reprimand will be placed in your
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official personnel folder (OPF). The reprimand will remain in your folder for 3 years, or
it may be withdrawn and destroyed after six (6) months, depending entirely on your future
behavior and attitude.”); Doc. 59-1 at 36–37 (“This written counseling may be kept . . . for
up to six months unless additional related misconduct occurs, and then it may be retained
up to one year.”)) And the Agency asserts that the written counseling memoranda were, in
fact, retained temporarily. (Doc. 60 at 5.) Courts have held that such temporary reprimands
or counseling memoranda, without more, do not constitute adverse employment actions.
See, e.g., Silva, 2007 WL 1795786 at *7.
Neither party addresses whether the December 28, 2020 written counseling
memorandum was a temporary measure and neither attached it as an exhibit. Regardless,
Mureithi has failed to show that either written counseling memoranda or the reprimand
resulted in an employment consequence. Mureithi alleges in her Amended Complaint that
the reprimand “would prevent [her] from getting a job in any department or any other VA.”
(Doc. 15 at 7.) However, at summary judgment, allegations alone are insufficient.
Mureithi has produced no evidence that any of the documents affected her pay, benefits,
job duties, eligibility for promotion, or ability to transfer, nor has she identified any
instance in which she was denied a position or opportunity because of these documents.
See Overton, 754 F. Supp. 3d at 874 (granting summary judgment where plaintiff failed to
allege or show any additional employment consequences).
Even assuming the documents could qualify as adverse employment actions,
Mureithi has not shown that similarly situated employees outside her protected class were
treated more favorably. Mureithi does not point to any specific non-minority employee
who engaged in comparable conduct or performance issues and yet received more
favorable treatment. Without identifying a proper comparator, Mureithi cannot
demonstrate that the Agency’s disciplinary actions were motivated by discrimination or
retaliation.
Accordingly, Mureithi has failed to establish a prima facie case of discrimination,
and the Agency is entitled to summary judgment on Mureithi’s disparate treatment claim
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based on the July 17, August 25, and December 28, 2020 documents.
h) Improper Disclosure of Medical Information
Mureithi also alleges that she was discriminated against when management officials
disclosed her personal medical information to other staff members. (See Doc. 59 at 25;
Doc. 1 at 19.) The Ninth Circuit has recognized that the “toleration of harassment by other
employees” may, in some circumstances, qualify as an adverse employment action.
Ramirez, 610 F. Supp. 2d at 1281 (citing Ray, 217 F.3d at 1241). But not every unpleasant
or offensive event rises to the level of an adverse action; courts must still determine whether
the employer’s conduct materially affects the terms, conditions, or privileges of
employment. See id.
Mureithi provides no factual detail beyond her bare allegation that “she was
discriminated against when management officials disclosed her personal medical
information to other staff members.” (Doc. 59-1 at 25.) She does not describe the
circumstances of the disclosure, identify the staff members involved, or explain any
resulting differential treatment. Even assuming the disclosure occurred, Mureithi has not
identified any adverse employment consequences arising from the disclosure. She does
not allege that it resulted in a change in her pay, grade, job duties, promotion opportunities,
or any other tangible employment action. Nor does she describe any material effect on the
conditions or privileges of her employment. See e.g. Burlington Indus., 524 U.S. at 761.
Put simply, Mureithi has not explained how the alleged disclosure constitutes a
materially adverse employment action or a significant change in her employment status.
Accordingly, this allegation cannot support her Title VII claims, and the Agency is entitled
to summary judgment.
i) Delayed RA
Next, Mureithi alleges that she was discriminated against when the Agency
requested additional medical information and delayed its determination of her RA requests.
(Doc. 59 at 10–13).
Courts have held that even the outright denial of an RA—without a corresponding
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material alteration of job duties or working conditions—does not constitute an adverse
employment action. See Randall v. Home Depot, 2025 WL 2761908, at *6 (E.D. Cal.
2025) (holding “rejecting an accommodation request is not a qualifying adverse
employment action.”). Mureithi cannot establish a prima facie case because she cannot
show she suffered an adverse employment action. Here, the Agency did not deny
Mureithi’s request; it sought clarification and continued to engage in the interactive
process. (See Doc. 59-1 at 21–22.) The Agency’s requests for clarification and the timing
of its determination did not result in any change to Mureithi’s job duties, compensation, or
other material terms or privileges of her employment. See e.g. Burlington Indus., 524 U.S.
at 761. Any delay resulted from Mureithi’s failure to respond to those requests rather than
VA action. (See id. at 18–24.) Under these circumstances, a temporary delay in the
accommodation process cannot constitute a materially adverse employment action.
And, even assuming that the request for additional information and the resulting
delay could qualify as an adverse employment action, Mureithi has not shown that similarly
situated employees outside her protected class were treated more favorably. Mureithi
alleges that her “Caucasian colleagues . . . [we]re being offered . . . RAs” (Doc. 59 at 23
(cleaned up)), but she provided no evidence to support this assertion. Mureithi testified
that another nurse allegedly received an RA without providing similar documentation;
however, she did not know this nurse, had never met him, and relied solely on what others
told her. (Doc. 56-1 at 40–41.) She further admitted that she assumed the nurse was White
based only on his name. (Id.) Such speculation is insufficient to establish that the nurse
was similarly situated or treated more favorably under comparable circumstances. Hardge
v. Golden Eagle Distributors, Inc., 2010 WL 5343285, at *4 (D. Ariz. 2010) (“Speculation
as to how similarly situated employees may or may not have been treated does not give
rise to an inference of unlawful discrimination.” (quotation marks omitted)).
Because Mureithi cannot show that she suffered an adverse employment action or
that a similarly situated employee was treated more favorably, she has failed to establish a
prima facie case of disparate treatment. Accordingly, summary judgment will be granted
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in favor of the Agency on Mureithi’s disparate treatment claim based on a delayed RA.
Based on the foregoing, the Agency’s motion for summary judgment will be granted
on all of Mureithi’s disparate treatment claims on all alleged bases.
D. Hostile Work Environment Claim
Mureithi alleges that she was subjected to a hostile work environment in violation
of Title VII. (Doc. 59 at 17, 22–24.) She points to a range of workplace actions that she
contends contributed to a hostile environment, including management directives; written
reprimands; disputes concerning leave, telework, and RA requests; a satisfactory
performance evaluation; the retrieval of her PIV card after it was left unattended; warnings
that VA police would be contacted if she refused to comply with direct orders; and a
statement by a supervisor referencing a “list” of employees who “had to go.” (See Doc. 59
at 22–24). The Agency moves for summary judgment, arguing that the alleged conduct
was neither severe, nor pervasive, nor based on Mureithi’s protected characteristics.13
(Doc. 56 at 20–21.) The Court agrees.
To prevail on her claim, Mureithi must show that “(1) the defendants subjected her
to verbal or physical conduct based on 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 working environment.” Surrell v. Cal. Water Serv. Co., 518 F.3d
1097, 1108 (9th Cir. 2008). “In order to be actionable under Title VII, the work
environment must be both objectively and subjectively offensive: one that a reasonable
person would find hostile or abusive, and one that the victim did in fact perceive to be
hostile and abusive.” Valdez v. Big O Tires, Inc., 2006 WL 1794756, at *3 (D. Ariz. 2006)
(citation omitted). Courts assess a work environment by examining the totality of the
circumstances, including the frequency and severity of the conduct, whether it is physically
threatening or humiliating or merely offensive, and whether it unreasonably interferes with
13 Although Mureithi’s Amended Complaint references multiple protected
characteristics, her hostile work environment theory under Title VII is argued only on the
basis of race. To the extent Mureithi intended to assert a hostile work environment claim
based on national origin, color, or disability, she has not developed any such theory in
opposition to summary judgment, and those theories are therefore waived.
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the employee’s work performance. E.E.O.C. v. Prospect Airport Servs., Inc., 621 F.3d
991, 999 (9th Cir. 2010). Title VII does not impose a “general civility code” on the
workplace, and “simple teasing, offhand comments, and isolated incidents (unless
extremely serious)” do not rise to the level of a hostile work environment. Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998) (cleaned up). The conduct at issue “must be
extreme to amount to a change in the terms and conditions of employment.” Kortan, 217
F.3d at 1110 (cleaned up).
Even when viewed collectively, the incidents Mureithi identifies do not support a
finding of race-based harassment. A hostile work environment claim requires evidence
that the plaintiff herself was subjected to harassing conduct because of her race—not
speculation, conclusory assertions, or generalized allegations of differential treatment of
other employees. See Henry v. Regents of the Univ. of Cal., 37 F. Supp. 3d 1067, 1084
(N.D. Cal. 2014), aff’d, 644 F. App’x 787 (9th Cir. 2016) (dismissing Title VII hostile
work environment claim at summary judgment in part because “there are no facts, other
than plaintiff’s speculation, that any of these incidents were motivated by racial animus”).
Mureithi has produced no evidence that any of the challenged conduct was motivated by
racial animus. She does not allege that she was subjected to racial epithets, derogatory
remarks, or other explicit race-based verbal or physical harassment.
Mureithi’s reliance on a purported statement that a supervisor maintained a “list” of
employees who “had to go” does not alter this conclusion. Even assuming the statement
was accurately reported and admissible,14 it was not made in Mureithi’s presence, did not
reference Mureithi or any protected characteristic, and was not objectively harassing.
14 The Court need not address the Agency’s objections to Mureithi’s Exhibits 17-19
because they are not material to its ruling. See e.g., Rossi, 2020 WL 9599646 at *4 (holding
an “objection is material if the court considers the evidence in ruling on the motion for
summary judgment”); Cook, 2025 WL 1151014 at *4 (holding the Court did not need to
rule on evidentiary objections where the “evidence has not been considered by the Court
in reaching the conclusions below”). Exhibit 17 is a purported statement allegedly
overheard by a former coworker about a “list” of employees and Exhibits 18-19 are
statements from other employees repeating similar claims. Because the Court does not rely
on this evidence in resolving Mureithi’s allegation—and because, even if assumed true, the
statements do not establish conduct that is severe or pervasive—the objections are not
material to the Court’s ruling.
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Standing alone or in combination with Mureithi’s other allegations, the statement does not
demonstrate that Mureithi was subjected to harassment because of her race.
Nor does the record support Mureithi’s characterization of the remaining conduct
as harassing. The actions she challenges—management directives, written reprimands,
disputes over leave, telework, and accommodation requests, a satisfactory performance
evaluation, retrieval of her unattended PIV card, and warnings regarding compliance with
direct orders—reflect ordinary workplace supervision and enforcement of the Agency’s
policies. The record shows these actions were taken in response to Mureithi’s repeated
failure to follow leave and accommodation procedures, her failure to report to duty as
instructed, and her refusal to comply with supervisory directives during a period of
heightened operational demands. Even if Mureithi perceived these actions as unfair or
overly strict, such perceptions do not transform legitimate management actions into
actionable harassment. See Faragher, 524 U.S. at 788 (Title VII does not impose a
“general civility code” for the workplace).
Finally, Mureithi has not shown that the challenged conduct, whether considered
individually or in the aggregate, was sufficiently severe or pervasive to alter the conditions
of her employment. The incidents were episodic rather than continuous, were not
physically threatening or humiliating, and did not involve the type of discriminatory
intimidation, ridicule, or insult required to sustain a hostile work environment claim. See
id. (explaining that “simple teasing, offhand comments, and isolated incidents (unless
extremely serious)” do not amount to a hostile work environment); Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001).
Because Mureithi has failed to produce evidence that she was subjected to race-
based harassment or that the alleged conduct was sufficiently severe or pervasive, she has
not established a prima facie hostile work environment claim under Title VII. Accordingly,
the Agency’s motion for summary judgment with respect to Mureithi’s hostile work
environment claim will be granted.
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E. Retaliation Claim
Mureithi also alleges that the Agency retaliated against her in violation of Title VII.
(Doc. 59 at 19–21.) The Agency moves for summary judgment, arguing that Mureithi
cannot establish a prima facie case of retaliation and, in any event, cannot show that the
Agency’s legitimate, non-retaliatory reasons for its actions were pretextual. (Doc. 56 at
24–27.) The Court agrees.
A retaliation claim under Title VII follows the McDonnell Douglas burden-shifting
framework. EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1028 (D. Ariz. 2013).
To make out a prima facie case of retaliation, Mureithi must show that (1) she engaged in
protected activity; (2) the Agency subjected her to an adverse employment action; and (3) a
causal link exists between the protected activity and the adverse action. Ray, 217 F.3d at
1240. The parties do not dispute that Mureithi engaged in protected activity when she filed
complaints with the EEOC. The dispute centers on whether Mureithi was subjected to a
materially adverse employment action and whether any such action was causally connected
to her protected activity.
The definition of an adverse employment action in the retaliation context is broader
than that which applies to discrimination claims. Under Title VII, “a plaintiff must show
that a reasonable employee would have found the challenged action materially adverse [in
that] it well might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(cleaned up). At the same time, Title VII does not protect employees from “petty slights
or minor annoyances that often take place at work.” Id.
Once a plaintiff establishes a prima facie retaliation claim, “the burden shifts to [the
employer] to articulate a legitimate nondiscriminatory reason for its decision.” Ray, 217
F.3d at 1240. If the employer articulates such reasons, the plaintiff “must demonstrate a
genuine issue of material fact as to whether the reason advanced by [the employer] was
pretext” for a discriminatory motive. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th
Cir. 2000). “A plaintiff can prove pretext either (1) indirectly, by showing that the
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employer’s proffered explanation is not credible because it is internally inconsistent or
otherwise not believable, or (2) directly, by showing that unlawful discrimination more
likely motivated the employer.” Tunucci v. City & Cnty. of San Francisco, 2025 WL
964260, at *13 (N.D. Cal. 2025) (citing Fonseca v. Sysco Food Servs. of Ariz., Inc., 374
F.3d 840, 849 (9th Cir. 2004)). “Circumstantial evidence of pretext must be specific and
substantial.” Id. (citing Bergene v. Salt River Project Agric. Improvement & Power Dist.,
272 F.3d 1136, 1142 (9th Cir. 2001)).
The parties do not clearly identify the specific acts forming the basis of Mureithi’s
retaliation claim. Because Mureithi is proceeding pro se, the Court construes her retaliation
claim liberally and assumes that it is based on the same conduct underlying her disparate
treatment allegations.15 Although the definition of an adverse employment action in the
retaliation context is broader than in the disparate treatment context, Mureithi must still
show that the challenged conduct was materially adverse and that a causal link exists
between the conduct and the protected activity. She has not done so. And even if she could
establish a prima facie case, she failed to establish that any of the actions taken by the VA
were pretextual.
1. Temporary COVID-19 Detail
Even assuming Mureithi’s COVID-19 detail assignments constitute an adverse
action, her claim fails because she has not shown a causal connection to any protected
activity. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) (plaintiff must
demonstrate a causal connection between protected activity and alleged retaliation).
Although temporal proximity can sometimes support a prima facie case of
retaliation and a showing of pretext, the Ninth Circuit has explained that proximity alone
is not dispositive and that the inquiry is highly fact specific. In Kama v. Mayorkas, the
Ninth Circuit explained:
15 Mureithi also references a suspension in December 2023, exclusion from work
schedules, unequal pay, and failure to promote. However, those alleged actions are not
properly before the Court. See Section IV(A)–(B). The Court therefore does not consider
those allegations as potential bases for Mureithi’s retaliation claim.
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Temporal proximity can support both a prima facie case of retaliation and a
showing of pretext. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th
Cir. 1986). However, the inquiry is fact-specific and depends on both the
degree of proximity and what, if any, other evidence supports an inference
of pretext. Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003).
Even cases involving very close temporal proximity have generally featured
independent evidence of discrimination or retaliation. E.g., Strother v.
Southern Cal. Permanente Med. Grp., 79 F.3d 859, 870-71 (9th Cir. 1996)
(proximity of one day along with threats by employer and corroborating
letters established pretext); Dawson v. Entek Int’l, 630 F.3d 928, 934 (9th
Cir. 2011) (proximity of two days combined with employer’s explicit
reference to protected activity during termination established pretext); Bell
v. Clackamas Cnty, 341 F.3d 858, 866 (9th Cir. 2003) (proximity of four days
combined with evidence of supervisors’ displeasure with protected activity
supported retaliation claim); Miller, 797 F.2d at 731 (proximity of less than
two months combined with fact that employer’s layoffs affected only
employees who engaged in protected activity established pretext).
107 F.4th 1054, 1059–60 (9th Cir. 2024)
Here, Mureithi’s first temporary detail occurred before she contacted the EEOC,
precluding any inference that the assignment was retaliatory. See Clark Cnty. School Dist.
v. Breeden, 532 U.S. 268, 272 (2001) (rejecting retaliation claim where adverse action
occurred before employer was made aware of protected activity).
Although Mureithi’s subsequent temporary details were assigned after she
contacted the EEOC, she presents no “independent evidence of discrimination or
retaliation” that would support an inference of retaliation. Kama, 107 F.4th at 1060. For
example, nothing in the record suggests that decisionmakers threatened Mureithi, made
references to her EEOC complaint, or that other nurses selected for the temporary details
also engaged in protected activity, which undermines any inference that the assignments
were retaliatory. Instead, the record reflects that the details were implemented to address
pandemic-related staffing needs and were assigned pursuant to reverse seniority. This is a
legitimate, non-retaliatory reason for the assignments and Mureithi presents no evidence,
independent of proximity, to the contrary. She thus fails to make both a prima facia case
of retaliation and to meet her burden of demonstrating pretext with respect to her temporary
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detail claim.
2. Telework
The denial of Mureithi’s telework request is not a materially adverse employment
action for purposes of her retaliation claim. The denial of telework would not deter a
reasonable employee from engaging in protected activity where, as discussed above,
telework was incompatible with Mureithi’s in-person inpatient care duties and its denial
did not alter her pay, responsibilities, or employment status. See Burlington N., 548 U.S.
at 68.
Even assuming Mureithi’s telework request is an adverse employment action, her
retaliation claim fails because she has not shown that the denial was pretextual. First, it is
unclear from the record when the request was denied. The Agency alleges that the request
was denied before Mureithi’s supervisor, Tatiana L., became aware of any protected
activity. (Doc. 59 at 25.) Thus, Mureithi has not shown causation. See Breeden, 532 U.S.
at 272. Second, even if the denial occurred after Tatiana L. became aware of Mureithi’s
protected activity, the record shows legitimate, non-retaliatory reasons for the denial:
Mureithi’s temporary detail involved in-person inpatient care that could not be performed
remotely, and Mureithi’s stated reason for the request violated Agency policy. Mureithi
offers no evidence that this explanation was pretextual.
3. Denial of Advance Leave
Similarly, the denial of Mureithi’s request for advance leave was a routine
administrative decision that would not dissuade a reasonable employee from engaging in
protected activity, particularly because Mureithi was subsequently granted extended leave
under the FMLA, and thus cannot constitute an adverse employment action.
Further, the record shows that the Agency requested additional justification for
advance leave and that Mureithi subsequently sought leave under a different statutory
framework. (Doc. 56-1 at 21–22 (HR notifying Mureithi that her application for advance
leave was incomplete because she had not provided sufficient justification).) The Agency
articulated a legitimate, non-retaliatory reason for the denial: Mureithi’s failure to submit
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a complete request that was in compliance with Agency procedures. (Id. at 24–25.)
Mureithi has not shown that this explanation is pretextual.
4. FMLA Leave Request
Mureithi cannot establish retaliation based on her request for FMLA leave because
the record shows that her request was approved and she received the requested leave. An
action that results in the employee receiving the benefit requested cannot reasonably be
viewed as materially adverse, because it would not “dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68.
5. Satisfactory Proficiency Rating
Mureithi’s “satisfactory” proficiency rating does not constitute a materially adverse
action. Courts have recognized that largely positive or non-negative performance
evaluations that do not result in reduction in pay, loss of benefits, disciplinary action, or
other material change in the terms or conditions of employment are not adverse actions in
the retaliation context. See Redwind v. Western Union, LLC, 2016 WL 3606595, at *15
(D. Or. 2016). Mureithi has not shown that her “satisfactory” performance rating was
accompanied by any tangible employment consequence or that it would have dissuaded a
reasonable employee from engaging in protected activity.
6. Marking Mureithi Absent Without Leave
Mureithi’s retaliation claim based on her AWOL designations also fails. The
supervisors responsible for the AWOL designations, Steven B. and Tatiana L., were
unaware of any protected activity until April 22 and September 29, 2020 respectively—
after the AWOL entries had been issued. (See Doc. 59-1 at 26–34 (emails reflecting
Mureithi was marked AWOL on March 31 and April 1, 2, 3, 6, 8, 9, 10, 12, 15, 16, 19, and
22); Doc. 56-1 at 76 (Tatiana L. unaware of protected activity until April 22, 2020); Doc.
56-1 at 107 (Steven B. unaware of protected activity until September 29, 2020)).
Accordingly, the record reflects that these actions reflect routine enforcement of
documented policies rather than retaliatory animus. See Breeden, 532 U.S. at 272.
Even assuming a prima facie case, the Agency has articulated legitimate, non-
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retaliatory reasons for the AWOL designations. Specifically, the record shows that these
actions were the result of Mureithi’s failure to follow leave procedures, failure to report to
work as scheduled, and failure to comply with management directives. (Doc. 56 at 26.)
These are routine enforcement actions grounded in documented policy violations rather
than Mureithi’s protected activity. Mureithi has not produced evidence that these reasons
were pretextual.
7. Written Reprimand and Counseling Memoranda
Although reprimands may, in some circumstances, support a retaliation claim, the
temporary reprimand and counseling memoranda at issue here would not dissuade a
reasonable employee from engaging in protected activity. The reprimands carried no
tangible employment consequence and were retained only for limited periods. Moreover,
the Agency stated that the reprimand and counseling memoranda resulted from Mureithi’s
failure to comply with management directives and leave requirements. Again, Mureithi
provides no evidence that these reasons are pretextual.
8. Improper Disclosure of Medical Information
Mureithi’s vague allegation that management improperly disclosed her medical
information lacks sufficient factual detail to establish that the disclosure was materially
adverse or causally connected to protected activity. Mureithi identifies no resulting
employment consequence, change in the terms or conditions of her employment, or
retaliatory motive. Nor is it clear when her medical information was disclosed in relation
to her EEOC complaint. She has thus failed to make a prima facie case for discrimination.
9. Delayed RA
A temporary delay in processing an RA request—particularly where the Agency
sought additional information and continued the interactive process—would not dissuade
a reasonable employee from engaging in protected activity. Even assuming a prima facie
case, the record shows that the delay was due to a legitimate, non-retaliatory reason. The
Agency explained that any delay in processing Mureithi’s RA request resulted from her
failure to engage in the interactive process. (Id. at 26–27.); see infra, Sections V, VI. The
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record reflects that Mureithi did not provide requested medical documentation or clarify
her accommodation needs, which directly contributed to any delay. Mureithi does not offer
any evidence contradicting these facts or demonstrating that the Agency’s explanation is
pretextual.
10. Hostile Work Environment
Mureithi contends that “subjecting an employee to a hostile work environment can
constitute an adverse employment action for purposes of a retaliation claim.” (Doc. 59 at
7.) As discussed above, however, the record does not support the finding that Mureithi
was subjected to a hostile work environment. The incidents Mureithi identifies—
management directives, written reprimands, disputes over leave, telework, delays in RA
requests, a “satisfactory” performance evaluation, retrieval of her unattended PIV card, and
warnings regarding compliance with direct orders—do not constitute severe or pervasive
harassment, see supra, Section IV(E), and Mureithi presents no evidence they were
motivated by her protected activity. Because the conduct cannot reasonably be
characterized as a hostile work environment, Mureithi has failed to make a prima facia case
for retaliation.
Across the alleged retaliatory actions, Mureithi has failed to present specific and
substantial evidence that the Agency’s stated reasons were pretextual. Her arguments rely
on speculation, generalized assertions, and disagreement with management decisions,
which are insufficient to raise a genuine dispute of material fact. See Tunucci, 2025 WL
964260 at * 13 (“Circumstantial evidence of pretext must be specific and substantial.”).
Mureithi has not identified evidence suggesting that the Agency’s proffered non-retaliatory
reasons are a cover for retaliatory animus, nor has she demonstrated that the majority of
the challenged actions are materially adverse such that they would dissuade a reasonable
employee from engaging in protected activity. Accordingly, the Court will grant the
Agency’s motion for summary judgment with respect to the retaliation claim.
F. Rehabilitation Act Claim
Mureithi next brings a claim under the Rehabilitation Act of 1973, alleging that the
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Agency delayed providing an RA. (See Doc. 15 at 6–7; Doc. 59 at 10–13.) The Agency
moves for summary judgment, arguing that it engaged in the interactive process in good
faith and that any breakdown in that process was caused by Mureithi’s refusal to provide
requested clarification and to continue communications. (Doc. 56 at 18–20.) The Court
agrees.
To establish a failure-to-accommodate claim under the Rehabilitation Act, a
plaintiff must show that: (1) they are an individual with a disability; (2) they are a qualified
individual, meaning they can perform the essential functions of their job; and (3) the
employer failed to provide a requested RA, failed to engage in an interactive process to
identify a possible RA, or terminated her because of the disability. Vinson v. Gen. Motors
LLC, 2022 WL 1540169, at *4 (D. Ariz. 2022).16
Once an employee requests an RA, both the employer and the employee have a duty
to engage in an interactive process in good faith. Snapp v. United Transp. Union, 889 F.3d
1088, 1095 (9th Cir. 2018). Through the interaction process “the employer and employee
can come to understand the employee’s abilities and limitations, the employer’s needs for
various positions, and a possible middle ground for accommodating the employee.” Id.
The process requires both sides to communicate and “neither side can delay or obstruct the
process.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115 (9th Cir. 2000) (en banc), vacated
on other grounds sub nom, US Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002).
“Liability for failure to provide reasonable accommodations ensues only where the
employer bears responsibility for the breakdown in the interactive process.” Zivkovic v. S.
California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (quotation marks omitted).
Where an employee fails to provide sufficient medical information or otherwise refuses to
participate in the interactive process, the employer has no further duty to continue the
16 There is no significant difference in the analysis of the rights and obligations created
by the ADA and the Rehabilitation Act. Zukle v. Regents of University of California, 166
F.3d 1041, 1045 n. 11 (9th Cir.1999); see also Weinreich v. Los Angeles County Metro.
Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997) (“Title II of the ADA was expressly
modeled after Section 504 of the Rehabilitation Act . . . .”). Courts therefore apply the
same analysis to claims brought under both statutes. See Zukle, 166 F.3d at 1045 n.11.
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process. Allen v. Pac. Bell, 348 F.3d 1113, 1115 (9th Cir. 2003).
The interactive process does not require an employer to speculate about an
employee’s limitations or to grant an accommodation without adequate information. See
Allen, 348 F.3d at 1115. “An employer’s knowledge of medical limitations is highly
relevant in determining whether the employer provided a reasonable accommodation.”
Gastelum v. Abbott Lab’ys, 2006 WL 2456199, at *8 (D. Ariz. 2006) (internal quotation
marks omitted). The employer’s obligation is therefore shaped by the information
reasonably available to it at the time it makes its decision. See id.
The record shows that the Agency promptly and in good faith engaged in the
interactive process. In June 2020, Mureithi requested two accommodations: (1) that she
not be scheduled to work more than eight-hour shifts, and (2) that she be allowed to wear
a cloth mask. (See Doc. 59-1 at 21.) Mureithi submitted medical documentation to support
her accommodation requests on July 9, 2020. (Id. at 21.) On July 13, 2020, the Agency
approved Mureithi’s request for eight-hour shifts. (Id.) With respect to the mask-related
request, the Agency sought clarification regarding the duration Mureithi could wear any
mask, how frequently she would need to remove it, and how long she would need before
resuming use. (Id. at 21–22.)
This clarification was necessary because Mureithi’s request directly implicated her
ability to perform the essential functions of her patient-care position safely during the
COVID-19 pandemic, when hospital-grade masking was a core infection-control
requirement. (See id.) Without information regarding the duration of tolerable use and
frequency of mask removal, the Agency could not determine whether Mureithi could safely
interact with patients or whether the requested accommodation would pose an undue
hardship or safety risk. The Agency’s request for clarification therefore constituted a
legitimate step in the interactive process rather than an unreasonable delay.
Mureithi did not provide the requested clarification. Although she suggested that
the Agency contact her medical provider directly, she declined to sign the limited medical
release required to permit such contact. (Doc. 56-1 at 41.) Mureithi thereafter ceased
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communicating with the RA coordinator altogether. (Doc. 59-1 at 18–23.) Despite follow-
up efforts by management, Mureithi failed to provide the requested information until
August 11, 2020—five days before her detail at the Main VA facility ended. (Doc. 59-1
at 23–24.)
Because Mureithi failed to provide the necessary medical information, the Agency
placed her mask-related request on hold pending receipt of clarification. (Id. at 20–21.)
On these facts, the Agency had no obligation to proceed further in the absence of Mureithi’s
participation. See Allen, 348 F.3d at 1115; Barnett, 228 F.3d at 1115. Mureithi’s failure
to provide the requested information, and her refusal to authorize communication with her
provider, constituted a breakdown in the interactive process attributable to Mureithi, not
the Agency. Zivkovic, 302 F.3d at 1089.
Moreover, once Mureithi’s detail at the Main VA facility ended, a mask-related
accommodation was no longer necessary. (Doc. 56-1 at 42.) When Mureithi later
submitted renewed accommodation requests with updated medical documentation in
January 2021, the Agency granted the requests. (Doc. 59-1 at 15; Doc. 59 at 12; Doc. 56
at 20.)
Finally, although the eight-hour shift accommodation is not itself at issue, the
Agency’s prompt approval of that request further demonstrates its good-faith engagement
in the interactive process and undermines any inference that the Agency sought to delay or
obstruct Mureithi’s accommodation requests.
Mureithi has failed to raise a genuine dispute of material fact that the Agency
violated the Rehabilitation Act by failing to provide an RA. The evidence establishes that
the Agency satisfied its obligations under the interactive process and that any delay or
breakdown resulted from Mureithi’s failure to provide necessary information.
Accordingly, the Court will grant the Agency’s motion for summary judgment with respect
to the Rehabilitation Act claim.
G. ADA Claim
Mureithi asserts a claim for disability discrimination under the Americans with
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Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 et seq. (Doc. 15 at 3). That claim
fails as a matter of law. The ADA does not provide a cause of action for employment
discrimination against federal agencies. See Calero–Cerezo v. U.S. Dep’t of Justice, 355
F.3d 6, 11 n.1 (1st Cir. 2004) (noting that “the ADA is not available to federal employees”);
Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (stating that “the entire federal
government is excluded from the coverage of the ADA”); Rivera v. Heyman, 157 F.3d 101,
103 (2d Cir. 1998) (holding that a federal employee “has no remedy for employment
discrimination under the ADA”). Thus, the Agency’s motion for summary judgment is
granted as to Mureithi’s ADA claim.
Accordingly,
IT IS ORDERED that the Secretary’s motion for summary judgment (Docs. 55
(sealed), 56 (public)) is GRANTED.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly and close this case.
IT IS FURTHER ORDERED that this Order shall be filed under seal temporarily.
Because the Court has cited to sealed documents in this Order, the Parties have 30 days to
submit a Motion with the proposed redactions for a public filing of this Order and must
demonstrate compelling reasons for the proposed redactions. See Kamakana v. City &
Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (presumption is to favor disclosure
unless a party provides sufficiently compelling reasons that override the public policies
favoring disclosure). If the Parties do not submit proposed redactions within 30 days of
the date of this Order, the Clerk of the Court must unseal this Order without further notice.
Dated this 13th day of February, 2026.
cc: Catherine Mureithi; Dina Anagnopoulos;
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