Ali v. ASU Enterprise Partners

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Atta Ali,
Plaintiff,
v.
ASU Enterprise Partners,
Defendant.
No. CV-24-00905-PHX-SMM
ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgement.
(Doc. 27). The Motion is fully briefed. (Docs. 27, 28, 31, 32, 35). The Court finds that the
Motion is appropriate for resolution without oral argument. For the following reasons, the
Court grants in-part and denies in-part Defendant’s Motion. (Doc. 27).
I. 	BACKGROUND
Plaintiff Atta Taha Ali (“Plaintiff” or “Mr. Ali”) is a black male from Sudan,
Africa. (Doc. 31 at 2). Mr. Ali worked for Defendant Arizona State University Enterprise
Partners (“Defendant” or “ASUEP”) from November 26, 2013, until May 26, 2022. (Id.)
Mr. Ali was a Senior Reporting Analyst from 2013 to 2018 and was promoted to Data
Warehouse Manager in 2018. (Id.); (Doc. 28 at 2). From 2013 until 2021, Mr. Ali
received positive performance evaluations and received no formal discipline. (Id.); (Doc.
31 at 2).
Mr. Ali contends that he was subjected to on-going harassment and discrimination
based on his race and national origin since 2018 that was allegedly manifested through
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sabotage and racially offensive comments (i.e. “black hole”) from his supervisor, Jay
Patel (“Mr. Patel”), and sabotage and nationally offensive comments (i.e. “you need to be
an American”) from his former supervisor, Eric Conkle (“Mr. Conkle”). (Docs. 1, 27, 28,
31, 32). Mr. Ali also contends that he was terminated in retaliation for his complaints
against Mr. Conkle and Mr. Patel and believes that the performance improvement plan
(“PIP”) was not warranted. (Ibid.)
A. Alleged Discrimination and Retaliation from Eric Conkle
Mr. Ali contends that beginning in 2018 he experienced discrimination from Mr.
Conkle. (Ibid.) During discussions about promotions, Mr. Conkle told Mr. Ali that he
“need[s] to be an American to move up.” (Doc. 31 at 5); (Doc. 27 at 5). ASUEP claims
“that as a result of Federal Department of Homeland Security requirements, certain IT
services performed for ASUEP affiliate, ASU Research Enterprise (“ASURE”), must be
performed 	by 	U.S. 	citizens.” 	(Id.) 	However, 	Mr. 	Ali 	interpreted 	the 	statement 	as
discriminatory. (Doc. 31 at 5).
Mr. Ali further alleges that in April 2020, Mr. Conkle falsely accused him of
“attacking” the server. (Doc. 27 at 3-4, 15). In Mr. Ali’s internal complaint to ASUEP
Human Resources, he explained that he believed that Mr. Conkle purposefully sabotaged
his computer so it would not work correctly, make it appear that his computer was
“attacking” ASUEP’s password server, and potentially set him up for criminal charges.
(Id.) On another occasion, Mr. Ali’s remote server stopped working before he was about
to give a presentation. (Id. at 3). Mr. Conkle then did the presentation from his own
computer. (Id.) Mr. Ali alleges that Mr. Conkle acted in the background to prevent Mr.
Ali’s programs from launching properly so Mr. Conkle could do the presentation himself
and take credit for his work. (Id.) Mr. Ali also alleges that Mr. Conkle caused the
Microsoft TEAMS system to make his status appear as “unknown” to other users. (Id.)
ASUEP hired an outside law firm and Valore Partners, a software engineering
company, to perform a forensic examination of their computers and systems to determine
whether there was any malfeasance or discrimination from Mr. Conkle. (Id.) The
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investigating law firm and Valore Partners did not find any evidence to support Mr. Ali’s
claims. (Id.) However, Valore Partners concluded that due to a lack of available data, the
root cause of each issue cannot be determined. (Doc. 28-2 at 1). Further, Mr. Ali contends
that the investigations were biased because key witnesses were not interviewed, and the
findings were presented without providing him an opportunity to review the underlying
notes or offer rebuttal evidence. (Doc. 32 at 2).
Mr. Ali also contends that Mr. Conkle discriminatorily excluded him from training
opportunities for certain projects and programs, specifically Workday and PowerBI.
(Doc. 27 at 6). Mr. Conkle explained that he only provides certain training opportunities
to employees who are directly involved in the projects at issue. (Id.) Mr. Conkle contends
that because Mr. Ali was not directly involved in the Workday or PowerBI projects, he
did not feel the need to include him in those trainings. (Id.) However, Mr. Ali had worked
on PowerBI and Workday projects previously. (See Doc. 32).
Mr. Ali further claims that he was passed over for promotions because Mr. Conkle
exerted his personal discriminatory influence over the decision-makers so they would not
select him. (Doc. 32 at 4).
B. Alleged Discrimination and Retaliation from Jay Patel
In 2021, Mr. Patel became Mr. Ali’s supervisor. (Doc. 28 at 6). Mr. Ali alleges
that Mr. Patel continued removing him from important job responsibilities and projects.
(Doc. 32 at 7). Mr. Patel contends that the reason he was removing Mr. Ali from some
projects was because they were part of the “reporting team’s responsibility.” (Id.) Mr. Ali
argues that this reason was pretextual as Mr. Patel kept at least some of the projects he
stated were the reporting team’s responsibility and began working on them himself,
simply taking away the responsibility from Mr. Ali, without returning it to the reporting
team and receiving the recognition that rightfully belonged to him. (Id.)
Additional examples of the discriminatory conduct Mr. Ali allegedly experienced
include unnecessary public ridicule of his work performance during meetings and use of
coded derogatory language, such as Mr. Patel calling Mr. Ali a “black hole.” (Id.)
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According to Mr. Ali, in a November 2021 meeting with the Data Engineering Team, Mr.
Patel stated that “he has heard some people outside the office refer to us as the ‘Black
Hole.’” (Id.) Mr. Ali interpreted this as a racial trope specifically directed at him. (Id.)
Further, in a subsequent daily data engineering team meeting on November 22, 2021, Mr.
Ali contends that Mr. Patel accused him of not meeting performance expectations for
missing a deadline when he was out sick and used the racial trope “Black Hole” again
while talking about his work, and that Mr. Patel was upset and yelled at him in a manner
that was insulting, derogatory and had a racial connotation to it. (Doc. 32-3 at 34-35).
Then, on December 2, 2021, in the data governance bi-monthly meeting, with over 20
people from different departments, Mr. Patel said that some people call the team that
works on the development metrics dashboard report ticket response time a “Black Hole.”
(Id.) Mr. Ali created the development metrics dashboard and maintained the report. (Id.)
Mr. Ali alleges that Mr. Patel repeated and spread the racial trope to ruin his work
reputation, insult him, and spread rumors about him and his work product. (Id. at 35).
Specifically, Mr. Ali alleges that the “Black Hole” comment “follows many inaccurate
racial tropes that Black men are lazy and don’t get things done.” (Id.) Mr. Patel states that
he said that people outside the office had been referring to the team as a “black hole”
because whenever the Data Engineering Team took over a project, the project would stall
and take a long time to complete, analogous to getting lost in a black hole. (Doc. 35 at 4).
On December 7, 2021, Mr. Ali again reported to human resources that he believed
he was being subjected to discrimination based on his race, color, and national origin, but
this time against Mr. Patel. (Doc. 32 at 3). In April 2022, Mr. Patel placed Mr. Ali on a
PIP. (Doc. 28 at 8).
Mr. Patel allegedly creates Excel spreadsheets or logs for each employee, logs
every negative incident, and tracks employees’ progress over time. (Doc. 27 at 7).
Around 	July 	2021, 	Mr. 	Patel 	states 	that 	he 	noticed 	Mr. 	Ali’s 	work 	performance
increasingly began to suffer, as he was incurring negative occurrences at a noticeably
higher rate than other employees based on his log. (Id.) Mr. Patel alleges that such
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occurrences included missed deadlines, poor quality of work, poor attendance, and poor
communication with other team members. (Id.) Thereafter, Mr. Patel allegedly sent Mr.
Ali email reminders about upcoming deadlines and company expectations and provided
Mr. Ali additional coaching. (Id.)
However, prior to being put on the PIP, Mr. Ali received positive performance
evaluations. Some of the remarks included that he was “instrumental in defining,
building, and eventually supporting the Data Factory pipelines;” that he provides a
“tremendous” amount of support to his team, that he is often asked to develop “the most
complicated reports” due to his expertise, that he has “consistently been a trailblazer on
the team in exploring the reporting capability of Power BI,” and that he is “a trusted
resource that cares deeply about the quality of his work.” (Doc. 32-2).
Mr. Ali argues that ASUEP relies on post-hoc rationales that are unsupported from
the record, the log was created after he raised complaints of discrimination, the log was
used selectively to manufacture a record justifying retaliation, and the log does not
accurately reflect his performance. (Doc. 31 at 5). Further, Mr. Ali argues that ASUEP’s
own tool for logging employee performance and progressive discipline contains no
evidence of prior warnings, coaching notes, or evaluation that signaled a performance
trajectory that would culminate in termination. (Id.)
Additionally, Mr. Ali contends that Mr. Patel did not provide him clear direction,
manipulated him, did not give him credit for his work, and hid the fact that he was still
doing work for both the Data Engineering Team and the Reporting Team. (Id.) For
example, the Sun Devil Athletic Department contacted Mr. Ali to run the athletics
renewal report, which he had done for five or six years. (Id.) Then, Mr. Patel told Mr. Ali
to not run the report because it is the reporting team’s responsibility. (Id.) Later, Mr. Patel
asked Mr. Ali to do the report. (Id.) But in Mr. Patel’s log, he documented that Mr. Ali
did not run the athletic renewal report adequately and in a timely fashion, even though
Mr. Ali was out sick and did not have as much time to work on the report since Mr. Patel
originally told him to not run the report. (Doc. 28-4); (Doc. 32-3).
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On May 26, 2022, Mr. Ali received a letter that his employment with ASUEP is
terminated immediately based on performance issues. (Doc. 28-1 at 8-9).
C. Procedural Background
On February 3, 2023, Mr. Ali filed a Charge of Discrimination with the EEOC
against ASUEP, claiming he had been subjected to discrimination based on national
origin and race from January 1, 2018, to May 26, 2022, and that he was terminated in
retaliation for reporting complaints in violation of Title VII. (Doc. 1). The EEOC gave
Mr. Ali a right to sue letter. (Id.) Mr. Ali commenced this action on April 21, 2024. (Id.).
On August 28, 2025, ASUEP filed the instant Motion for Summary Judgment. (Doc. 27).
Mr. Ali filed a Response (Doc. 31) and ASUEP filed a Reply (Doc. 35).
II. 	LEGAL STANDARD
The 	purpose 	of 	summary 	judgment 	is 	“to 	isolate 	and 	dispose 	of 	factually
unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is appropriate if the evidence, viewed in the light most favorable to the
nonmoving party, shows “that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only
disputes over facts that might affect the outcome of the suit will preclude the entry of
summary judgment, and the disputed evidence must be “such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323. “Where the non-moving party bears the burden of proof
at trial, the moving party need only prove that there is an absence of evidence to support
the non-moving party’s case.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387
(9th Cir. 2010). “Where the moving party meets that burden, the burden then shifts to the
non-moving party to designate specific facts demonstrating the existence of genuine
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issues for trial.” Id. As the Ninth Circuit has said, “[t]his burden is not a light one.” Id. To
meet this burden, the “non-moving party must come forth with evidence from which a
jury could reasonably render a verdict in the non-moving party’s favor.” Id. Additionally,
parties opposing summary judgment are required to “cit[e] to particular parts of materials
in the record” establishing a genuine dispute or “show[ ] that the materials cited do not
establish the absence ... of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). A district court
has no independent duty “to scour the record in search of a genuine issue of triable fact.”
Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).
III. 	ANALYSIS
ASUEP moves for summary judgment on all of Mr. Ali’s claims: (1) employment
discrimination 	based 	on race 	or 	national 	origin, 	42 	U.S.C. 	§ 	2000e-2(a), 	and 	(2)
retaliation for engaging in a protected activity, 42 U.S.C. § 2000e-3. (Docs. 1, 27).
A. Discrimination Under 42 U.S.C. § 2000e-2(a)
Mr. 	Ali 	alleges 	racial 	and 	national 	origin 	discrimination 	under 	a 	disparate
treatment theory and a hostile work environment harassment theory. (Doc. 1).
a. 	Disparate Treatment Theory
Under Title VII an employer may not “discriminate against an individual with
respect to his. . .terms, conditions, or privileges of employment” because of his race or
national origin. 42 U.S.C. § 2000e-2(a). Title VII makes it unlawful for an employer “to
fail to refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to [his] compensation, terms, conditions, or privileges of
employment” 	or 	“to 	limit, 	segregate, 	or 	classify 	his 	employees 	or 	applicants 	for
employment in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee”
because of such individual’s race or color. Id.
Disparate treatment claims require a plaintiff to prove that an employer acted with
conscious intent to discriminate against a plaintiff based on his protected characteristic.
Costa v. Desert Palace, 299 F.3d 838, 854 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003). At
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the summary judgment stage, a plaintiff need only make a prima facie case “established
by proof of facts supporting an inference of intentional discrimination.” Gay v. Waiters’
& Dairy Lunchmen’s Union, 694 F.2d 531, 538 (9th Cir. 1982). “The requisite degree of
proof necessary to establish a prima facie case for Title VII. . .claims on summary
judgment is minimal and does not even need to rise to the level of a preponderance of the
evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). This initial
burden of production “is met upon a showing of actions taken by the employer from
which one can infer, if such actions remain unexplained, that it is more likely than not
that such action was based upon race or another impermissible criterion.” Gay, 694 F.2d
at 538.
A party may evoke the burden-shifting McDonnell Douglas framework, which is
“the 	traditional 	framework 	for 	evaluating 	disparate-treatment 	claims 	that 	rest 	on
circumstantial evidence.” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 306
(2025). Under the McDonnell Douglas framework, a plaintiff must establish: (1) the
plaintiff belongs to a protected class; (2) the plaintiff was qualified for the position; (3)
the plaintiff was subject to an adverse employment action; and (4) similarly situated
individuals 	outside 	the 	plaintiff’s 	protected 	class 	were 	treated 	more 	favorably.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). While a useful “tool to
assist plaintiffs at the summary judgment stage so that they may reach trial, nothing
compels the parties to invoke the McDonnell Douglas presumption.” Costa, 299 F.3d at
855.
“Evidence can be in the form of the McDonnell Douglas prima facie case, or other
sufficient evidence—direct or circumstantial—of discriminatory intent.” Costa, 299 F.3d
at 855. “[T]he court must make a sensitive inquiry into the direct and circumstantial
evidence of discrimination offered by the plaintiff in order to determine if the facts so
proved allow a legally-permissible inference of discriminatory intent.” Gay, 694 F.2d at
538. Direct evidence establishing a prima facie case, “if believed, proves the fact [of
discriminatory animus] without inference or presumption.” Vasquez v. Cnty. of Los
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Angeles, 349 F.3d 634, 640 (9th Cir. 2006). Circumstantial evidence, on the other hand,
requires a fact finder to draw inferences or presumptions of discriminatory intent, such as
putting “forward specific and substantial evidence challenging the credibility of the
employer’s motives.” Id. at 642.
If the plaintiff establishes a prima facie case, the burden shifts to the defendant
who must articulate legitimate, non-discriminatory reasons for the challenged action.
McDonnell Douglas, 411 U.S. at 802. If the defendant meets this burden, the plaintiff
must finally show that the “reason is pretextual either directly by persuading the court
that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of credence.” Davis v. Team Elec.
Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal citation and quotations omitted)).
Finally, if the plaintiff can show pretext, then the McDonnell Douglas framework
“disappear[s],” and “the sole remaining issue [i]s ‘discrimination vel non.’” Reeves v.
Sanderson Plumbing Products, 530 U.S. 133, 142–43, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000). A plaintiff may simply produce direct or circumstantial evidence demonstrating
that a discriminatory reason “more likely than not motivated” the employer. Metoyer v.
Chassman, 504 F.3d 919, 931 (9th Cir. 2007) (citation omitted); see also Hawn v. Exec.
Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (explaining that a plaintiff may
show 	an 	inference 	of 	discrimination 	“through 	comparison 	to 	similarly 	situated
individuals, or any other circumstances surrounding the adverse employment action [that]
give rise to an inference of discrimination”) (internal quotation marks and citation
omitted). Moreover, “very little evidence” is required “to survive summary judgment in a
discrimination case, because the ultimate question is one that can only be resolved
through a searching inquiry—one that is most appropriately conducted by the factfinder,
upon a full record.” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.
1996) (internal quotation marks and citation omitted).
1. McDonnell Douglas Framework
In this case, both parties both invoke the McDonnell Douglas framework. (See
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Docs. 27, 31). Therefore, Mr. Ali must first establish a prima facie case of racial or
national origin discrimination. McDonnell Douglas, 411 U.S. at 802. Mr. Ali must
establish that (1) he belongs to a protected class, (2) he was performing according to his
employer’s legitimate expectations, (3) he suffered an adverse employment action, and
(4) similarly situated employees were treated more favorably, or other circumstances
surrounding the adverse employment action give rise to an inference of discrimination.
Id.; see also Hawn, 615 F.3d at 1156.
ASUEP concedes that Mr. Ali has established the first and third elements of his
prima facie case. (Doc. 27 at 10). However, ASUEP argues that Mr. Ali fails to satisfy
the second and fourth elements because it had a legitimate, nondiscriminatory reason for
terminating Mr. Ali, similarly situated employees were not treated more favorably, Mr.
Ali has not shown evidence of pretext, and Mr. Ali’s failure to promote claim is time
barred. (Id. at 10-14). In response, Mr. Ali argues that he was performing to ASUEP’s
legitimate expectations and that there is evidence of pretext. (Doc. 31 at 4-6).
i. 	Mr. Ali’s Performance at AFCU
Mr. Ali argues that he establishes the second element of his prima facie case
because for nearly a decade he consistently received positive evaluations reflecting his
ability to meet and exceed ASUEP’s expectations. (Id. at 4). Some of the feedback Mr.
Ali received in his performance evaluations include that he was “instrumental in defining,
building, and eventually supporting the Data Factory pipelines;” that he provides a
“tremendous” amount of support to his team, that he his often asked to develop “the most
complicated reports” due to his expertise, that he has “consistently been a trailblazer on
the team in exploring the reporting capability of Power BI,” and that he is “a trusted
resource that cares deeply about the quality of his work.” (Doc. 32-2).
Despite Mr. Ali’s overwhelmingly positive performance evaluations, ASUEP
contends that Mr. Ali’s performance fell below its expectations. (Doc. 27 at 11-12).
ASUEP argues that from July 2021 through May 2022, Mr. Patel noted seventy (70)
different instances in his manager tracking spreadsheet or log where Mr. Ali failed to
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meet company expectations. (Id. at 10). During this time, Mr. Ali received multiple poor
performance reviews from Mr. Patel. (Id.) In April 2022, Mr. Patel put Mr. Ali on a PIP
notifying Mr. Ali of ASUEP’s expectations and warning Mr. Ali that failure to improve
could lead to termination. (Id.) About a month after the PIP was issued, ASUEP
terminated Mr. Ali immediately for failing to improve his performance. (Id.)
Mr. Ali argues that ASUEP relies on post-hoc rationales that are unsupported from
the record, the log was created after he raised complaints of discrimination, the log was
used selectively to manufacture a record justifying retaliation, and the log does not
accurately reflect his performance. (Doc. 31 at 5). Further, Mr. Ali argues that ASUEP’s
own tool for logging employee performance and progressive discipline contains no
evidence of prior warnings, coaching notes, or evaluation that signaled a performance
trajectory that would culminate in termination. (Id.)
Upon the Court’s review of Mr. Patel’s log, the Court finds that the stated non-
discriminatory reasons are likely illegitimate. Thus, ASUEP’s stated no-discriminatory
reasons are not enough to demonstrate that Mr. Ali’s performance was so poor that it
warranted termination. Throughout the log, Mr. Patel complains that Mr. Ali is not timely
acknowledging or responding to emails, and that Mr. Ali is not completing his assigned
tasks quick enough. (Doc. 28-4). Then, Mr. Patel jumps to the conclusion that because
Mr. Ali missed some deadlines, he therefore lacks the skills to solve technical problems
independently and lacks the basic skills necessary for the role. (Id.) Also, some of the
other issues that Mr. Patel notes include that Mr. Ali did not enter his sick time or
vacation time in Workday, did not put an out-of-office message when he was sick, that he
“request[ed] the day off on the very day he wants to take off.” (Id.) The Court finds that
Mr. Patel’s entries in his log are either trivial or appear to be manufactured excuses for
terminating Mr. Ali.
Also, an employees’ “self-assessment of his performance is relevant” to determine
if a plaintiff “has met his minimal prima facie burden of establishing that he was
qualified” for his position. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654,
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660 (9th Cir. 2002), as amended (July 18, 2002). Mr. Ali contends that he was
performing satisfactorily in his position. (Doc. 31 at 4). For example, Mr. Ali developed
the metrics dashboard report and athletics renewal form report, including the first Power
BI dashboard. (Doc. 32-3). Mr. Ali states that “[b]oth projects are very complex technical
projects and solutions that [he] spent a significant amount of time and effort to develop,
automate and streamline complex processes and tasks, which have saved the end users a
significant amount of time and manual effort to accomplish these tasks and saved ASU
Foundation this money on overhead costs.” (Id.)
Additionally, Mr. Ali contends that Mr. Patel did not provide him clear direction,
manipulated him, did not give him credit for his work, and hid the fact that he was still
doing work for both the Data Engineering Team and the Reporting Team. (Id.) For
example, the Sun Devil Athletic Department contacted Mr. Ali to run the athletics
renewal report, which he had done for five or six years. (Id.) Then, Mr. Patel told Mr. Ali
to not run the report because it was the reporting team’s responsibility. (Id.) Later, Mr.
Patel asked Mr. Ali to do the report. (Id.) But in Mr. Patel’s log, he documented that Mr.
Ali did not run the athletic renewal report adequately and in a timely fashion, even
though Mr. Ali was out sick and did not have as much time to work on the report since
Mr. Patel originally told him to not run the report. (Doc. 28-4); (Doc. 32-3). Accordingly,
the Courts finds that there is sufficient evidence to demonstrate that Mr. Ali was likely
performing adequately in his position and that Mr. Ali satisfies the second element of his
prima facie case.
ii. 	Evidence of Pretext
ASUEP argues that Mr. Ali cannot establish the fourth element of his prima facie
case because (1) he produced no evidence of similarly situated employees to show a link
between his protected statuses and his termination and that (2) he has not offered
sufficient circumstantial evidence to create an issue of fact as to whether his protected
statuses motivated ASUEP’s decision to terminate his employment. (Doc. 27 at 11). The
Court agrees with ASUEP that there is no evidence in the record of similarly situated
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employees being treated more favorably in this precise manner. However, the court
disagrees with ASUEP that there is not enough circumstantial evidence sufficient to give
rise to an inference of discrimination.
In evaluating motions for summary judgment in the context of employment
discrimination, the Ninth Circuit emphasizes that district courts should zealously guard
an employee’s right to a trial, since “discrimination claims are frequently difficult to
prove without a full airing of the evidence and an opportunity to evaluate the credibility
of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004);
see, e.g., Schnidrig, 80 F.3d at 1410–11. As the Supreme Court has stated, “[t]he real
social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81–82 (1998). “As a result, when a court too readily
grants 	summary 	judgment, 	it 	runs 	the 	risk 	of 	providing 	a 	protective 	shield 	for
discriminatory behavior that our society has determined must be extirpated.” McGinest,
360 F.3d at 1112.
Mr. Ali alleges that Mr. Conkle sabotaged his computer, influenced others to not
select him for a promotion, and excluded him from training opportunities. (Doc. 32 at 2).
And, according to Mr. Ali, Mr. Conkle and Mr. Patel subjected him to derogatory
language, exclusionary conduct, and retaliatory scrutiny that took a psychological toll on
him. (Id.)
Specifically, Mr. Ali 	alleges that on November 22, 2021 in the daily data
engineering 	team 	meeting 	Mr. 	Patel 	accused 	him 	of 	not 	meeting 	performance
expectations for missing a deadline when he was out sick and used the racial trope “Black
Hole” while talking about his work, and that Mr. Patel was upset and yelled at him in a
manner that was insulting, derogatory and had a racial connotation to it. (Doc. 32-3 at 34-
35).
Mr. Ali also alleges that on December 2, 2021, in the data governance bi-monthly
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meeting, with over 20 people from different departments, Mr. Patel was talking about the
development metrics dashboard report ticket response time and stated that “some call it
the 	‘Black 	Hole.”’. 	(Id.) 	Mr. 	Ali 	created 	the 	development 	metrics 	dashboard 	and
maintained the report. (Id.) Mr. Ali believes that Mr. Patel repeated and spread the racial
trope to ruin his work reputation, insult him, and spread rumors about him and his work
product. (Id. at 35). Mr. Ali also believes that the “black hole” comment is insulting,
derogatory and has a racial connotation to it because it “follows many inaccurate racial
tropes that Black men are lazy and don’t get things done.” (Id.)
ASUEP argues that Mr. Ali’s interpretation of Mr. Patel’s use of the term “black
hole” does not give rise to a viable claim. (Doc. 27 at 15-16). ASUEP argues that the
term “black hole” could not have referred to the color of his skin because Cambridge
Dictionary defines “black hole” as “an imaginary place in which things are lost” so no
reasonable juror could conclude Mr. Patel’s reference to “black hole” was intended to be
hostile.1 (Id. at 15).
To support that argument, ASUEP relies on Sanchez v. City of Santa Ana, where
the Ninth Circuit upheld the district judge’s directed verdict that “no reasonable jury
could have found a hostile work environment despite allegations that the employer posted
a 	racially 	offensive 	cartoon, 	made 	racially 	offensive 	slurs, 	targeted 	Latinos 	when
enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate police
backup to Latino officers, and kept illegal personnel files on plaintiffs because they were
Latino.” Vasquez, 349 F.3d at 643 (citing Sanchez, 636 F.2d 1027, 1031, 1036 (9th Cir.
1990)); (Doc. 35 at 7). However, in Sanchez, the Ninth Circuit decided on procedural
grounds “whether the district court erred in deciding the issue without hearing from the
defense” and did not decide the merits of the claim itself. 632 F.2d at 1037; Fed. R. Civ.
P. 41(b).
The Ninth Circuit has also held that “[r]acially motivated comments or actions
may appear innocent or only mildly offensive to one who is not a member of the targeted
1 https://dictionary.cambridge.org/us/dictionary/english/black-hole
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group, but in reality be intolerably abusive or threatening when understood from the
perspective of a plaintiff who is a member of the targeted group.” McGinest, 360 F.3d at
1116. “The omnipresence of race-based attitudes and experiences in the lives of black
Americans 	[may 	cause] 	even 	nonviolent 	events 	to 	be 	interpreted 	as 	degrading,
threatening, 	and 	offensive.” 	Id. 	(citation 	omitted). 	“Title 	VII 	tolerates 	no 	racial
discrimination, subtle or otherwise.” McDonnell Douglas Corp., 411 U.S. at 801. The
Court must consider “both the existence and the severity of discrimination from the
perspective 	of 	a 	reasonable 	person 	of 	the 	plaintiff’s 	race”, 	including 	forms 	of
discrimination that “may be overlooked if considered solely from the perspective of an
adjudicator belonging to a different group than the plaintiff.” McGinest, 360 F.3d at
1116.
In McGinest, the Ninth Circuit held that the use of coded language to refer to race,
such as calling an African American employee a “drug dealer,” can violate Title VII. See
id. at 1116–17 (citation omitted). The McGinest court concluded that the reference to the
plaintiff as a “drug dealer” “might certainly be deemed to be a code word or phrase. In
fact, 	reported 	cases 	have 	recognized 	the 	racial 	motivations 	behind 	this 	and 	other
comments and slurs experienced by [the plaintiff].” Id. at 1117 (collecting cases). It
follows that Mr. Patel’s language regarding Mr. Ali being a “black hole” could constitute
similarly coded language and is appropriate for jury consideration.
Also, it is undisputed that Mr. Conkle told Mr. Ali that he needs “to be an
American” to be promoted. (Doc. 31 at 5); (Doc. 27 at 5). ASUEP claims “that as a result
of Federal Department of Homeland Security requirements, certain IT services performed
for ASUEP affiliate, ASU Research Enterprise (“ASURE”), must be performed by U.S.
citizens.” (Id.) However, ASUEP does not cite which regulation it is referencing, nor
does it provide the Court a copy of the regulation, so the Court cannot determine the
accuracy of ASUEP’s stated non-discriminatory reason. Mr. Ali perceived the comment
as nationally charged and discriminatory. Therefore, there is a genuine dispute of material
fact whether Mr. Conkle was nationally hostile in his statements to Mr. Ali.
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Further, contrary to ASUEP’s characterization, Mr. Ali’s evidence does not exist
solely of his own self-serving statements. (Doc. 27 at 15). Mr. Ali’s perception of the
events that transpired go to whether he is credible, a determination that is exclusively
within the province of the factfinder at trial, not the district court on summary judgment:
[A]t this stage of the litigation, the judge does not weigh disputed evidence with
respect 	to 	a 	disputed 	material 	fact. 	Nor 	does 	the 	judge 	make 	credibility
determinations 	with 	respect 	to 	statements 	made 	in 	affidavits, 	answers 	to
interrogatories, admissions, or depositions. These determinations are within the
province of the factfinder at trial.
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.
1987) (emphasis added) (citations omitted); see also McGinest, 360 F.3d at 1113 n. 5
(“[I]t is axiomatic that disputes about material facts and credibility determinations must
be resolved at trial, not on summary judgment.”).
The issue of an employer’s motivations is one more appropriately left for a jury.
Miller, 797 F.2d at 732–33. “[I]n discrimination cases, an employer’s true motivations
are 	particularly 	difficult 	to 	ascertain, 	thereby 	making 	such 	factual 	determinations
generally unsuitable for disposition at the summary judgment stage.” Id. Accordingly,
Mr. Ali has produced enough evidence that ASUEP’s reasons for the written warnings
and termination were merely pretext for a discriminatory motive. See Ray v. Henderson,
217 F.3d 1234, 1240 (9th Cir. 2000); see also Costa, 299 F.3d at 853–54; see also
Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1042 (9th Cir. 2005)2.
Therefore, the Court denies ASUEP’s Motion for Summary Judgment on Count I on Mr.
Ali’s discrimination claim under a disparate treatment theory. (Doc. 27).
2. 	Failure to Promote
The Court agrees with ASUEP that Mr. Ali’s failure to promote claim regarding
Mr. Patel’s position is time barred. (Doc. 27 at 12-13); (Doc. 35 at 5); 42 U.S.C. § 2000e-
2 Also, this Court previously held that a plaintiff survived summary judgment in a
Title VII case where the defendant alleged that the plaintiff missed numerous deadlines,
produced poor work quality, refused to follow orders, required more supervision than
other employees, and did not get along with co-workers. Spina v. Maricopa Cnty. Dep’t
of Transp., No. CV050712PHX SMM, 2010 WL 457507 (D. Ariz. Feb. 5, 2010).
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5(e) (establishing 180- and 300-day periods for filing EEOC charges); Sommatino v.
United States, 255 F.3d 704, 707-08 (9th Cir. 2001) (“In order to bring a Title VII claim
in district court, a plaintiff must first exhaust her administrative remedies.”). ASEUEP
hired Mr. Patel in May 2021, and Mr. Ali filed his EEOC Charge on February 3, 2023,
making him late by over a year. (Doc. 35 at 5); see Nat’l R.R. Passenger Corp v. Morgan,
536 U.S. 101, 115 (2002). Further, Mr. Ali failed to address this issue in his Response
(See Doc. 31) and therefore concedes that his claim is time barred. (Doc. 35 at 5); see
LRCiv 7.2(i). Thus, the Court grants ASUEP’s motion on Mr. Ali’s failure to promote
claim regarding Mr. Patel’s position.
B. Hostile Work Environment Theory
Mr. Ali describes numerous events and practices, which he alleges cumulatively
created a hostile work environment. (Doc. 31 at 7-8). These events fall into two
categories: some involved allegedly discriminatory treatment through concrete actions,
while others involved oral derogatory statements.
Title VII’s prohibition of discrimination against any individual with respect to her
employment 	“includes 	the 	prohibition 	against 	the 	creation 	of 	a 	hostile 	work
environment.” Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686 (9th Cir. 2017); see
also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 65, 67 (1986)) (“When the workplace is permeated with
‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment,’ Title VII is violated.” (citations omitted)).
To succeed on a hostile work environment claim based on race, the plaintiff must
demonstrate: “(1) that he was subjected to verbal or physical conduct of a racial. . .
nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently
severe or pervasive to alter the conditions of the plaintiff's employment and create an
abusive work environment.” Reynaga, 847 F.3d at 686 (quoting Vasquez, 349 F.3d at
642.
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In 	assessing 	whether 	a 	work 	environment 	is 	sufficiently 	hostile, 	the 	court
examines the “frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Faragher v. City of Boca
Raton, 524 U.S. 775, 787–88 (1998) (quoting Harris, 510 U.S. at 23). “The required level
of severity or seriousness varies inversely with the pervasiveness or frequency of the
conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001)
(internal quotation marks and citation omitted).
“[S]imple teasing, offhand comments, and isolated incidents (unless extremely
serious)” are not sufficient to create an actionable claim under Title VII, but the
harassment need not be so severe as to cause diagnosed psychological injury. Faragher,
524 U.S. at 788 (internal quotation marks and citation omitted); see also Harris, 510 U.S.
at 22. It is enough “if such hostile conduct pollutes the victim’s workplace, making it
more difficult for her to do her job, to take pride in her work, and to desire to stay in her
position.” Steiner, 25 F.3d at 1463. Such hostility need not be directly targeted at the
plaintiff to be relevant to his or her hostile work environment claim. McGinest, 360 F.3d
at 1117.
A plaintiff must show that the work environment was both subjectively and
objectively hostile. Nichols, 256 F.3d at 871–72. It is undisputed that Mr. Ali subjectively
perceived his workplace to be hostile, as evidenced by his repeated complaints about Mr.
Conkle and Mr. Patel. As to the objective inquiry, the Court assesses whether the
workplace was hostile from the perspective of a reasonable person belonging to the
plaintiff’s racial or ethnic group. McGinest, 360 F.3d at 1115.
As previously stated, the use of coded language to refer to race, such as a “black
hole,” may create a hostile work environment and violate Title VII. See id. at 1116–17.
Also, as explained above, the fact that Mr. Patel used the phrase “black hole” on
numerous occasions, including in meetings with multiple departments in reference to Mr.
Ali and his team, Mr. Patel’s increasing micromanagement, and the fact that Mr. Conkle
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and Mr. Patel’s behavior allegedly made it more difficult for Mr. Ali to complete his
work provides additional evidence as to the severity of the conduct that is better suited
for a jury’s determination. (Docs. 27, 28, 30, 35); see Reynaga, 847 F.3d at 686.
Accordingly, there is a dispute of material fact whether the alleged demeaning
language, discriminatory conduct, and scrutiny inflicted on Mr. Ali were sufficiently
severe or pervasive to create a hostile work environment under the objective inquiry.
Thus, 	the 	Court 	denies 	ASUEP’s 	Motion 	for 	Summary 	Judgment 	on 	Mr. 	Ali’s
discrimination claim under a hostile work environment harassment theory. (Doc. 27).
C. Retaliation
To prove a Title VII retaliation claim, Mr. Ali must show that “(1) he engaged in a
protected activity; (2) [ASUEP] subjected him 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. At the summary judgment stage, a plaintiff need not prove the elements of a
retaliation claim by a preponderance of the evidence. Yartzoff v. Thomas, 809 F.2d 1371,
1375 (9th Cir. 1987). Rather, “to make out a prima facie case, a plaintiff need only make
a minimal threshold showing of retaliation.” Emeldi v. Univ. of Oregon, 673 F.3d 1218
(9th Cir. 2012).
If a plaintiff makes out a prima facie case of retaliation, the court proceeds to
apply the burden-shifting framework set forth in McDonnell Douglas. See 411 U.S. at
802–04; see also Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003).
Under the McDonnell Douglas framework, the burden shifts to the defendant “to
articulate a legitimate, nondiscriminatory reason for the adverse employment action.”
Manatt v. Bank of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003). “If the defendant
articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the
reason was merely a pretext for a discriminatory motive.” Ray, 217 F.3d at 1240; see also
McDonnell Douglas, 411 U.S. at 802. “Proof of a causal link between [Plaintiff’s]
complaint 	and 	his 	termination—as 	evidenced 	by 	temporal 	proximity—is 	certainly
relevant to an evaluation of pretext. Reynaga at 694. Further, “[i]n some cases, temporal
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proximity can by itself constitute sufficient circumstantial evidence of retaliation for
purposes of both the prima facie case and the showing of pretext.” Dawson v. Entek Int’l,
630 F.3d 928, 937 (9th Cir. 2011).
ASUEP concedes that Mr. Ali has satisfied the first two elements of a Title VII
retaliation claim because (1) Mr. Ali engaged in protected activity, and (2) Mr. Ali was
subjected to an adverse employment action. (Doc. 27 at 13). However, ASUEP argues
that Mr. Ali cannot meet the third element because Mr. Ali cannot show a causal link
between the protected activity and the adverse employment action. (Id. at 13-14).
Specifically, ASUEP argues that Mr. Ali cannot demonstrate causation by relying
on a December 2021 internal complaint as the basis for his discharge five months later.
(Id.) In response, Mr. Ali argues that the adverse employment actions began just weeks
after he filed his December 2021 complaint, there is no evidence of documented
performance 	concerns 	before 	his 	December 	2021 	complaint, 	and 	there 	was 	no
documented performance improvement plan before his December 2021 complaint.
ASUEP cites Clark Cnty. Sch. Dist. v. Breeden to support its argument that Mr.
Ali cannot demonstrate an inference of causation based on temporal proximity. 532 U.S.
268, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001); (Doc. 27 at 13). However, in Clark Cnty.
Sch. Dist. v. Breeden there was “no indication that [the supervisor] even knew about the
right-to-sue letter” and the plaintiff relied on only temporal proximity to support the
retaliation claim. Id. at 273, 1511. In contrast, ASUEP knew of his complaint, and Mr.
Ali does not rely on only temporal proximity to support his claim. (Doc. 31 at 6-7).
Mr. Ali contends that the record establishes that in the months immediately
following his December 2021 internal complaint and March 2022 EEOC complaint, his
working conditions materially worsened. (Id. at 6). For example, Mr. Ali was placed
under increased scrutiny from Mr. Patel, denied meaningful assignments, stripped of
leadership functions, and was placed on a PIP that directly preceded his termination. (Id.)
Mr. Ali argues that this sequence of events creates a close temporal nexus between
protected activity and adverse action to support an inference of retaliatory intent. (Id. at
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7); see Yartzoff, 809 F.2d at 1376 (“Proximity in time is apparent on the record: the
transfers of job duties and the sub-average performance rating all occurred during the
pendency of the administrative complaints and investigations. This inference of a causal
link is strengthened by the closeness in time between particular events.”).
Here, like Yartzoff, ASUEP’s adverse actions against Mr. Ali began just weeks
after his first protected report, there was no evidence of documented performance
concerns prior to these reports, and there was no documented performance improvement
plan until after Mr. Ali filed the protected reports. (Doc. 31 at 7). For example, in Mr.
Ali’s 2021 performance evaluation from Mr. Patel, Mr. Ali received positive feedback
and there was no indication that Mr. Ali was performing below ASUEP’s expectations.
(Doc. 32-2 at 9-14).
Additionally, ASUEP argues that any temporal proximity argument is undercut by
the intervening event that Mr. Ali failed to meet the PIP goals. (Doc. 27 at 14). However,
at the pretext stage, a plaintiff’s burden is low, and “very little[ ] evidence is necessary to
raise a genuine issue of fact regarding an employer’s motive.” Opara v. Yellen, 57 F.4th
709, 723-24 (9th Cir. 2023) (quoting McGinest, 360 F.3d at 1124). “Nevertheless, a
plaintiff must present some evidence that goes to the defendant’s motivation—either by
directly showing that it was discriminatory or by contesting the defendant’s claimed
motivation.” Kama v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024) (citing Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)); see also Reeves, 530 U.S.
at 148 (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that
the employer’s asserted justification is false, may [be enough].”). If there is “abundant
and uncontroverted independent evidence” supporting the defendant’s stated motive, then
“plaintiff’s ‘creat[ion of] only a weak issue of fact as to whether the employer’s reason
was untrue’ will not suffice.” Opara, 57 F.4th at 724 (quoting Reeves, 530 U.S. at 148).
Mr. Ali contends that Mr. Patel’s manager log did not accurately reflect his
performance, that the log was created after he raised complaints of discrimination and
was used selectively to manufacture a record justifying retaliation. (Doc. 31 at 5, 7). Mr.
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Ali further alleges that Mr. Patel did not maintain similar logs of other employees and
began the documentation shortly after Mr. Ali engaged in protected activity. (Id.) As the
Court explained above, there is sufficient evidence to demonstrate that Mr. Ali was likely
performing adequately in his position and that the log was likely a manufactured excuse
to justify Mr. Ali’s termination.
Mr. Ali’s evidence as to how he was treated during his employment, the timing of
Mr. Patel’s increasing micromanagement after the December 2021 internal complaint, the
lack of evidence of performance issues for over eight years before Mr. Patel became Mr.
Ali’s supervisor, and Mr. Ali’s termination a few months after his written complaint is
sufficient to establish a genuine dispute of fact as to whether ASUEP’s proffered reason
for 	terminating 	Mr. 	Ali’s 	employment 	is 	pretextual. 	Therefore, 	the 	Court 	denies
ASUEP’s Motion for Summary Judgment on Mr. Ali’s retaliation claim. (Doc. 27).
IV. 	CONCLUSION
For the preceding reasons, the Court grants in-part and denies in-part ASUEP’s
Motion for Summary Judgment. (Doc. 27). The Court grants ASUEP’s Motion on Mr.
Ali’s failure to promote claim. However, the Court denies the rest of ASUEP’s Motion
because there remain genuine disputes of material facts whether ASUEP’s proffered
reasons for Mr. Ali’s termination are pretextual.
For the reasons set forth,
IT IS ORDERED granting in-part and denying in-part Defendant’s Motion for
Summary 	Judgment. 	(Doc. 	27). 	Summary 	judgment 	is 	awarded 	to 	Defendant 	on
Plaintiff’s failure to promote claim. The Court denies summary judgment on Plaintiff’s
remaining claims.
Dated this 9th day of January, 2026.
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