De Silva v. Pima County Government et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nirosh H. De Silva,
Plaintiff,
vs.
Pima 	County 	Government, 	a 	political
subdivision/governmental entity; et al.,
Defendants.
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No. CV 24-00200-TUC-MAA
ORDER
Pending before the court is the defendants’ motion for summary judgment filed on
October 17, 2025. Doc. 105. The plaintiff filed a response on June 15, 2026. 	Doc. 148.
The defendants filed a reply on June 30, 2026. Doc. 150. The plaintiff filed a supplemental
response on July 15, 2026. 	Doc. 151. 	The court conducted a hearing on the motion on
August 27, 2026. Doc. 154.
The Magistrate Judge presides over this action having received the consent of all
parties pursuant to 28 U.S.C. § 636(c). Doc. 13.
The plaintiff, Nirosh H. De Silva, worked as a Buyer Senior in the Pima County
Procurement Department. 	Second Amended Complaint, Doc. 28, p. 5. 	He applied for a
promotion to the position of Buyer Principal, but his application was denied. Doc. 28, pp.
5-20. 	He subsequently applied for the positions of Procurement Officer, Business
Intelligence Analyst - Senior, and Business Systems Analyst - Technical Writer, but each
time, his application was denied. Doc. 28, pp. 5-20. In his Second Amended Complaint, De
Silva asserts a cause of action for defamation per se, employment discrimination, retaliation,
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and federal civil rights violations. 	Doc. 28, pp. 20-64. 	His claims for negligence and
negligence per se were previously dismissed. Doc. 65.
On October 17, 2025, the defendants filed the pending motion for summary judgment
on all remaining claims. Doc. 105.
The motion will be granted in part. The motion will be granted for all claims except
for the intentional discrimination claims arising from De Silva’s application for the position
of Business Intelligence Analyst - Senior at the Pima County Health Department.
Summary Judgment
Summary judgment is available only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “The moving party initially bears the burden of proving the absence
of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th
Cir. 2010). “Where [as here] 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.” Id. “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 issues
for trial.” Id. “[T]he 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.
“In judging evidence at the summary judgment stage, the court does not make
credibility determinations or weigh conflicting evidence.” 	Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007). “Rather, it draws all [reasonable] inferences in the
light most favorable to the non[-]moving party.” Id.; Villiarimo v. Aloha Island Air, Inc., 281
F.3d 1054, 1065, n. 10 (9th Cir. 2002) (“At summary judgment, this court need not draw all
possible inferences in [the non-movant’s] favor, but only all reasonable ones.”) (emphasis
in original).
“If the evidence [supporting the plaintiff’s claim] is merely colorable, or is not
significantly probative, summary judgment may be granted.” McIndoe v. Huntington Ingalls
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Inc., 817 F.3d 1170, 1173 (9th Cir. 2016). “Arguments based on conjecture or speculation
are insufficient.” Id.
Discussion: Defamation
De Silva unsuccessfully applied for four positions: Buyer Principal, Procurement
Officer, Business Intelligence Analyst-Senior, and Business Systems Analyst - Technical
Writer. Doc. 105, pp. 2-5. After he was denied the Technical Writer position, De Silva sent
an email to Pima County’s Human Resources Department seeking an administrative review
of the hiring process. Motion, Doc. 105, pp. 5-6; Statement of Facts, Doc. 146, ¶¶ 62-63.
As part of this administrative review, Defendant Kelly “noted that she remembered Plaintiff
hitting a table and acting intensely during his May 10, 2023, interview.” Doc. 105, pp. 6-7;
Doc. 146, ¶ 68.
Around July 20, 2023, De Silva filed a charge of discrimination with the Arizona
Attorney General and with the Equal Employment Opportunity Commission. Doc. 105, p.
7; Doc. 146, ¶ 69. “Defendant Kelly provided a sworn affidavit in which she repeated her
statement that Plaintiff hit a table to emphasize his statements during the May 4, 2023
interview for the Technical Writer position and again during the May 10 interview for the
Business Systems Analyst – Senior position.” Doc. 105, p. 7; Doc. 146, ¶ 70.
According to De Silva, “Defendant Kelly defamed plaintiff when she made blatantly
false and defamatory statements to both the County internal review and in the County’s
response to the [Arizona Civil Rights Division investigation].” 	Doc. 148, pp. 8-9. 	He
maintains that “[s]he falsely stated that Plaintiff was ‘slapping the table abruptly throughout
the interview process’ and that ‘he pounded the table with this fist or open palm as he was
answering the questions’ in the May 4, 2023, Technical Writer interview and that ‘he again
pounded the table as he answered the questions’ in the May 10, 2024 Business Systems
Analyst Senior interview.” Id. De Silva “denies hitting, slapping or pounding the table at
any point during both the Technical Writer interview and the BSA-Senior interviews.” Id.;
Controverting Statement of Facts, Doc. 149, ¶¶ 140-141.
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“One who publishes a false and defamatory communication concerning a private
person is subject to liability if, but only if, [s]he (a) knows that the statement is false and it
defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in
failing to ascertain them.” Stuart v. City of Scottsdale, 2022 WL 704121, at *8 (D. Ariz.
Mar. 9, 2022) (punctuation modified). “To be defamatory, a publication must be false and
must bring the defamed person into disrepute, contempt, or ridicule, or must impeach
plaintiff’s honesty, integrity, virtue, or reputation.” Id.
“The requirement of a ‘false statement’ means the statement must have been an
assertion of objective fact.” Lundin v. Discovery Commc’ns Inc., 352 F. Supp. 3d 949, 960
(D. Ariz. 2018) (punctuation modified), aff’d, 796 F. App’x 942 (9th Cir. 2020). “Further,
the statement must be susceptible of being proved true or false.” Id. “Statements involving
political invective, opinion, or hyperbole cannot be the basis for a defamation claim.” 	Id.
“And even assertions of objective facts that are false are not actionable provided they are
substantially true.” Id. “Whether a statement is capable of defamatory meaning is a question
of law for the court, but whether the meaning conveyed was defamatory is a question for the
jury.” Dube v. Likins, 216 Ariz. 406, 419, 167 P.3d 93, 106 (Ct. App. 2007).
The defendants argue, among other things, that Kelly’s statements are protected by
a conditional privilege. They assert that the privilege applies to “[a]ny communication made
pursuant to an administrative investigation by the Human Resources Department of the Pima
County Government” directed to “a public officer concerning the work of employees
supervised by that Human Resources Department.” Doc. 105, p. 13 (citing Lewis v. Oliver,
178 Ariz. 330, 335, 873 P.2d 668, 673 (Ct. App. 1993)). The court agrees that a conditional
privilege applies here.
A conditional privilege exists for statements made by persons assisting in the
administrative review of alleged employment discrimination. Miller v. Servicemaster by
Rees, 174 Ariz. 518, 520, 851 P.2d 143, 145 (Ct. App. 1992) (“[A] conditional privilege
exists because public policy dictates that employees must be protected from workplace
sexual harassment.”). 	In this case, Kelly made statements to the Pima County Human
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Resources (HR) department and to the Arizona Civil Rights Division in connection with their
review of De Silva’s allegations of workplace discrimination. 	These statements are
conditionally privileged.
De Silva argues that the privilege does not apply because he was not an employee of
the Human Resources (HR) department. 	Doc. 148, p. 13. 	In fact, he was no longer
employed by the County when the statements were made. Id. The court does not agree. It
does not matter if the HR department had authority over him. What matters is that the HR
department had influence over the hiring process going forward and could recommend that
the hiring process be changed or that the persons involved be disciplined or retrained. The
privilege exists because public policy dictates that the County’s employment practices should
be free from illegal discrimination, and people should feel free to help that process along.
It does not matter if De Silva was an employee of the HR department or even if he was still
employed by the County when the statements were made.
The conditional privilege may be defeated by proving the speaker abused the privilege
by a showing of “actual malice” or “by demonstrating excessive publication.” 	Miller v.
Servicemaster by Rees, 174 Ariz. 518, 520, 851 P.2d 143, 145 (Ct. App. 1992). And the
showing must be made by “clear and convincing evidence.” 	Desert Palm Surgical Grp.,
P.L.C. v. Petta, 236 Ariz. 568, 580–81, 343 P.3d 438, 450–51 (Ct. App. 2015). De Silva
argues first that he can prove “actual malice.” Doc. 148, pp. 13-14.
Actual malice “can be demonstrated by proving a defendant made a statement
knowing it was false or with reckless disregard of its truth.” Miller v. Servicemaster by Rees,
174 Ariz. 518, 520, 851 P.2d 143, 145 (Ct. App. 1992). 	De Silva maintains that Kelly’s
statements were a “figment of her imagination” and were made without first checking with
others who were also present during the interviews. Doc. 148, p. 13.
De Silva, however, must do more than provide evidence that Kelly’s statements were
false. He must show that she made the statements knowing they were false or with reckless
disregard of their truth. “Reckless disregard” is defined as “a high degree of awareness of
probabl[e] falsity.” 	Hansen v. Stoll, 130 Ariz. 454, 458, 636 P.2d 1236, 1240 (Ct. App.
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1981). “To the extent that mere negligence in ascertaining the truth is insufficient to satisfy
this standard, it is a subjective test.” Id.
De Silva provides no evidence that Kelly knew her statements were a figment of her
imagination or knew her memory was so unreliable that she should have checked with others
before making her statements. See, e.g., Hansen v. Stoll, 130 Ariz. 454, 457-458, 636 P.2d
1236, 1239-1240 (Ct. App. 1981) (Defendant’s statements that federal agents perjured
themselves at his trial and were “collaborating with his political foes” were made with
“reckless disregard” because they were made after he unsuccessfully appealed his conviction
and after “[h]is claims of conspiracy and smuggling were investigated and found to be
without merit.”). 	De Silva fails to provide clear and convincing evidence from which a
reasonable trier of fact could find in his favor on the issue of actual malice.
De Silva further asserts that “[i]t is highly likely that Defendant Kelly spread the false
statements to other County employees and abused any qualified privilege by excessive
publication.” 	Doc. 148, p. 14. 	He provides no admissible evidence, however, for his
allegations. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial
court can only consider admissible evidence in ruling on a motion for summary judgment.”),
superseded by rule on other grounds as recognized in Carolina v. JPMorgan Chase Bank
NA, 2021 WL 5396066, at *5 (D. Ariz. Nov. 17, 2021). De Silva fails to provide clear and
convincing evidence from which a reasonable trier of fact could find in his favor on the issue
of excessive publication.
There is no genuine dispute as to any material fact on the issue of conditional privilege
or actual malice or excessive publication. The defendants are entitled to summary judgment
on the defamation claim.
De Silva argues that the “abuse of the privilege” issue should be decided at trial
because 	“whether the occasion for the privilege was abused is a question of fact for the
jury.” Doc. 148, p. 14 (citing Green Acres Tr. v. London, 141 Ariz. 609, 616, 688 P.2d 617,
624 (1984)). The court agrees that this is a question of fact, but the plaintiff is entitled to put
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this question of fact before a jury only if he offers sufficient evidence to establish a genuine
issue of material fact. And he has not done so.
Title VII Discrimination: Buyer Principal
De Silva was originally hired by the Pima County Procurement Department (PCPD)
as a Buyer Senior with the Materials and Services (M&S) Division starting on February 28,
2022. 	Doc. 148, p. 6; Doc. 105, p. 2. 	His hiring was recommended by Defendant Ana
Wilber and approved by Defendant Terri Spencer. Doc. 105, p. 2.
On April 22, 2022, De Silva applied for the position of Buyer Principal along with
two other internal candidates, Judy Cooper and Lorraine Gonzales. Doc. 148, p. 6; Doc. 105,
p. 2. All three candidates were interviewed for the position and given a written test. Doc.
105, p. 2. The candidates were scored as follows: Cooper, 113; De Silva, 106; Gonzales,
101. Id.
The Pima County Procurement Department (PCPD) decided to hire Gonzales. She
had the lowest score, but she “had two years of experience as a Buyer-Senior in the M&S
Division, four years in the Design and Construction Division, and more than a decade as
office and administrative support with PCPD.” Doc. 105, p. 2. A note in the file reads in
part as follows: “The Hiring Manager and Procurement Director agree that the best fit for this
position has the lowest overall score. 	This candidate has been a Buyer Senior in the
Procurement Department since 2016 and has the most experience in the M&S [Materials and
Services] Division.” Doc. 149-3, p. 12; see Doc. 105, p. 17; Doc. 146-1, p. 9. De Silva had
considerable private sector experience, but he had been with the PCPD “for only fifty-three
days when he applied.” Doc. 105, p. 17; Doc. 148, p. 14.
“Title VII makes it an unlawful employment practice for an employer to refuse to hire
an individual because of “race, color, religion, sex, or national origin.” Dominguez-Curry v.
Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005); 42 U.S.C. § 2000e–2(a)(1).
Where, such as here, there is no direct evidence of discrimination, the plaintiff “may establish
a prima facie case under the burden-shifting framework set forth in McDonnell Douglas
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1 The defendants do not dispute this first factor. Doc. 105, p. 16. De Silva states in
his Complaint that he is “an Asian American minority individual, having a brown color
complexion, with a national origin from Sri Lanka.” Doc. 28, ¶ 24.
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Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Dominguez-Curry,
424 F.3d at 1037.
“To make out a prima facie case under McDonnell Douglas, a plaintiff must show that
(1) [he] belongs to a protected1 class; (2) [he] applied for and was qualified for the position
[he] was denied; (3) [he] was rejected despite [his] qualifications; and (4) the employer filled
the position with an employee not of plaintiff’s class . . . .” Dominguez-Curry, 424 F.3d at
1037. 	“At summary judgment, the 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.”
Id. 	The court uses a version of the McDonnell Douglas framework applied by the Ninth
Circuit to a “failure-to-promote” claim. Id.
“If established, the prima facie case creates a rebuttable presumption that the employer
unlawfully discriminated against the plaintiff.” Id. “The burden of production then shifts
to the employer to articulate a legitimate, nondiscriminatory reason for its action.” Id. “If
the employer meets this burden, the presumption of unlawful discrimination simply drops out
of the picture.” 	Id. 	(punctuation modified). 	“The plaintiff then must produce sufficient
evidence to raise a genuine issue of material fact as to whether the employer’s proffered
nondiscriminatory reason is merely a pretext for discrimination.” 	Id. “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.” 	Id. 	“Ultimately, the
plaintiff’s burden is to produce some evidence suggesting that the defendant’s failure to
promote [him] was due in part or whole to discriminatory intent.” Id. If, as in this case, the
plaintiff offers only circumstantial evidence of discriminatory intent, the plaintiff must
produce “specific and substantial” evidence of pretext. Id. at 1038; see also Franett-Fergus
v. Omak Sch. Dist. 19, 743 F. App’x 855, 858 (9th Cir. 2018) (The plaintiff “must point to
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evidence both that the proffered reasons were false, and that discrimination was the real
reason.”) (punctuation modified).
Assuming De Silva has made out a prima facie case, the employer has articulated a
legitimate, nondiscriminatory reason for its action: Gonzalez had the most experience in the
Procurement Department and in the M&S Division. 	Doc. 149-3, p. 12; 	see Dominguez-
Curry, 424 F.3d at 1037. To survive summary judgment, De Silva must “produce sufficient
evidence to raise a genuine issue of material fact as to whether the employer’s proffered
nondiscriminatory reason is merely a pretext for discrimination.” See Dominguez-Curry, 424
F.3d at 1037. He has not done so.
De Silva asserts that he had “over 20 years of private procurement/purchasing
experience,” and therefore he was a better candidate than Gonzales, who had “only a little
over 6 years of governmental procurement experience.” Doc. 148, p. 14. He implies that the
defendant’s failure to hire the “better” candidate shows that the defendants’ proffered reason
for hiring Gonzalez is unworthy of credence. The court does not agree. It does not strike the
court as unusual that a governmental procurement office would find governmental
procurement experience more valuable than private sector procurement experience, let alone
governmental procurement experience in the very office that is doing the hiring. At best, De
Silva has shown that the defendants’ preferences were foolish or misguided. That, however,
is not evidence of unlawful discrimination. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1063 (9th Cir. 2002) (“[C]ourts only require that an employer honestly believed its
reason for its actions, even if its reason is foolish or trivial or even baseless.”) (punctuation
modified).
De Silva argues that favoring governmental procurement experience is contrary to the
job posting that stated that the preferred qualification for the job was “two (2) years of
responsible procurement experience in a governmental or private purchasing system.” Doc.
148, p. 14. 	The court does not agree. 	The job posting does not promise that private
purchasing experience would be valued as highly as procurement experience in the
governmental sector. See also Sobol v. DeJoy, 2024 WL 3360990, at *11 (D. Haw. July 9,
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2024) (The fact that “the job posting did not perfectly encapsulate the duties of the position”
was not evidence of pretext.).
De Silva maintains that putting a premium on governmental procurement experience
is unwise because then good candidates outside government will not be hired. That might
be so, but it is not so unwise that the defendants’ alleged preference for an in-house candidate
is unworthy of credence. See Sobol v. DeJoy, 2024 WL 3360990, at *8 (D. Haw. July 9,
2024) (“[T]he mere fact that an employer misjudged the qualifications of the applicants does
not in itself mean that the decision was motivated by discrimination.”) 	(punctuation
modified).
De Silva further argues that the entire hiring process was an elaborate conspiracy to
mask the defendants’ true purpose. He asserts that the defendants were “following an initial
scheme, acted unlawfully or unethically by taking unusual steps towards that during the
hiring process, and devised a cover-up.” 	Doc. 148, p. 15. 	“The scheme was to promote
Gonzales, irrespective of the other candidates’ scores or performances.” Id. De Silva’s then
proceeds to highlight certain irregularities in the hiring record. Id.
He asserts first that the defendants “incorrectly scored Plaintiff’s assessment sheet,
reducing his score by 30 points.” 	Id. 	He does not, however, clearly explain how that
happened. Id.
In their reply, the defendants explain that they reviewed the written test and candidly
admit that there are places where one could argue that the test was inaccurately scored based
on the way the questions are interpreted and the idiosyncratic way that Microsoft Excel
operates. Doc. 150, pp. 14-15. Nevertheless, they maintain that these errors do not advance
De Silva’s argument because they have uncontradicted evidence that the tests employ “blind”
scoring, where the test sheets are identified only by a random identifying number so the
scorekeeper does not know which candidate submitted which test answers. Doc. 150, pp. 15-
16. Even if the test scoring was inaccurate, De Silva provides no evidence that these errors
were manufactured to disadvantage him.
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De Silva asserts that other irregularities show that the defendants were acting
unlawfully. He maintains that Defendant Wilber falsely told him “that he had not done well
in the interview and that the other two candidates were being further considered.” Doc. 148,
p. 16 (emphasis added). He asserts this statement is false because he was ranked second in
the scoring. Doc. 148, p. 16 (citing CSOF, ¶ 121).
De Silva’s characterization of Wilber’s statement, however, might not be entirely
accurate. 	In his statement of facts, De Silva states that “Plaintiff was informed by Ana
Wilber that two other candidates had done better than him and would be moving forward in
the hiring process.” Doc. 149, ¶ 121 (emphasis added). It is equally likely that the phrase
“had done better than him” refers not to his scoring (which seems not to have mattered much)
but to the fact that the other applicants otherwise appeared to be stronger candidates, possibly
because they had more governmental experience. See Doc. 105, p. 2.
Moreover, as the defendants point out, Wilber hired De Silva only three months prior.
Doc. 150, pp. 	8-10, 15. 	It seems unlikely that Wilber would engage in an elaborate
conspiracy to unlawfully discriminate against De Silva in May when she hired him the
previous February. See Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1096 (9th Cir.
2005) (“[W]here the same actor is responsible for both the hiring and the firing of a
discrimination plaintiff, and both actions occur within a short period of time, a strong
inference arises that there was no discriminatory action.”).
De Silva recognizes the existence of this so called “same actor” inference, but he
maintains that it does not always hold. Doc. 148, p. 18 (citing, among other things, Griggs
v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) for the proposition
that “[t]he employer was willing to hire minorities to shovel coal but unwilling to promote
or transfer them to more desirable positions.”). 	The court agrees that exceptions to the
general rule certainly exist; however, De Silva’s fails to present evidence supporting his
argument that this is one of those exceptional situations. Doc. 148, p. 18. Presumably the
position of Buyer Senior is more desirable that the position of Buyer Principal (or De Silva
would not have applied for it), but he presents no evidence that the positions are so different
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that an employer would tolerate a minority in the latter position but not the former. In any
case, the gist of Wilber’s statement seems to have been true because a subsequent interview
was held for Cooper and Gonzales, but not for De Silva, on May 26, 2022. Doc. 150, pp. 17-
18.
De Silva further directs the court to a note in the file dated 5/19/22 (the date of the
first interview) that states that Gonzales was chosen for the position despite being the lowest
scorer. Doc. 148, p. 16. He finds the date of this note suspicious because it appears to have
been made before this alleged second interview when the hiring decision was made. Id. He
argues that backdating this note, assuming that a second interview was even held, is further
proof that the defendants acted unlawfully. Id.
On this issue, the defendants provide a sworn affidavit from Terri Spencer “who not
only confirmed that the second interview was held on May 26, 2022, but explained that she
directed that the note be placed in PCPD’s files [by Burch] after deciding to promote
Gonzales.” Doc. 150, p. 18. The defendants suggest that the note was dated 5/19/22, the
date of the first interview, because the note describes the candidates’ scores, which were
calculated after the first interview.
But regardless of why this date appears or what Wilber actually said to De Silva, none
of this “evidence” helps De Silva establish that the defendants’ proffered reason for their
hiring decision is a pretext for unlawful discrimination. 	De Silva implies that every
irregularity is proof that the defendants were engaging in an elaborate “cover-up,” but, as the
defendants point out, there was no need for a “cover-up.” See Doc. 148, pp. 15-16; Doc. 150,
p. 17. 	Gonzalez had more in-house experience and it was perfectly reasonable to favor the
candidate with more in-house experience. See Doc. 105, p. 2. There was no need for an
elaborate “cover-up” because there was nothing to hide. 	See Sobol v. DeJoy, 2024 WL
3360990, at *8 (D. Haw. July 9, 2024) (“[S]imply pointing to irregularities in the selection
process will not overcome a motion for summary judgment unless those irregularities suggest
that the employer’s stated reasons for not hiring the plaintiff were pretextual,” that is, those
reasons were false and discrimination was the real reason.).
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2 The defendants argue that this statement may not be considered by the court because
of its late disclosure. Doc. 150, pp. 20-21. They further assert that it lacks foundation and
presumably is inadmissible. Id. The court need not decide the issue at this time because
assuming, without deciding, that it may be considered, it does not affect the court’s analysis
of the motion for summary judgment.
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De Silva also presents evidence indicating that he was, in fact, a better choice for the
position. He states that he was given a lot of work after Gonzales was promoted, work that
should have been assigned to her. Doc. 148, p. 17. He cites to a “statement2 provided by a
current Procurement Officer” who “witnessed and had knowledge of the facts” and has
“clearly stated that not only was Plaintiff entrusted with more work to include ‘special tasks
and reports,’ but he was also entrusted with ‘some if not most’ of Gonzales’s workload and
work she was ‘unable to or incapable of completing.’” Doc. 148, p. 17 (citing CSOF, Ex. 26).
According to De Silva, this evidence proves that he was objectively the best candidate for
the job. 	De Silva’s argument, however, misinterprets his burden at this stage of the
McDonnell Douglas analysis.
After the defendants proffer a non-discriminatory reason for their actions, the plaintiff
must show pretext, that is, the defendants’ stated reason for hiring someone else is false and
discrimination is the real reason. In other words, De Silva must provide evidence that the
defendants were not telling the truth when they said that they hired Gonzales because they
thought she had the most in-house experience. De Silva’s assertion that he was objectively
the best candidate for the job is not particularly relevant. It does not matter if the defendants
made a good choice. It only matters if they thought they were making a good choice and
they honestly reported why they made that choice. The fact that they might have made an
objectively poor choice does not show that their proffered reason was false. See Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (“[C]ourts only require that
an employer honestly believed its reason for its actions, even if its reason is foolish or trivial
or even baseless.”) (punctuation modified).
De Silva argues that this elaborate scheme was devised “to promote Gonzales,
irrespective of the other candidates’ scores or performances.” Doc. 148, p. 15. The court is
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not convinced, but even if his suspicions were correct and the defendants were in the tank
for Gonzalez, his allegations do not prove unlawful discrimination. 	“Favoritism, unfair
treatment and unwise business decisions do not violate Title VII unless based on a prohibited
classification.” Taken v. Oklahoma Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997).
And De Silva provides no evidence that he would have been the “favorite” but for his race,
color, or national origin. See Doc. 28, ¶ 24; see also City of Los Angeles, Dep’t of Water &
Power v. Manhart, 435 U.S. 702, 711, 98 S. Ct. 1370, 1377 (1978) (Discrimination under
Title VII occurs if “the evidence shows treatment of a person in a manner which but for that
person’s sex would be different.”).
To survive summary judgment, De Silva must provide “specific and substantial”
evidence that “the employer’s proffered nondiscriminatory reason is merely a pretext for
discrimination.” See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037-1038
(9th Cir. 2005). He has not done so.
Title VII Discrimination: Procurement Officer
On January 27, 2023, De Silva applied for the position of Procurement Officer. Doc.
148, p. 7. 	By this time, he had been working for the county for almost one year. 	Six
applicants, including De Silva, applied and met the minimum requirements for the job. Doc.
105, p. 3. 	The “PCPD [Pima County Procurement Division] conducted a Subject Matter
Expertise (SME) assessment to determine which applicants were most qualified” and would
be offered an interview. Doc. 105, p. 3. The SME assessment, which was conducted by the
defendant Scott Loomis, “placed heavy emphasis on public procurement experience as he
needed to replace his most experienced Procurement Officer and had little time for training.”
Doc. 105, p. 3. De Silva’s bachelor’s degree was worth only 20 points in the assessment
while public procurement experience was worth up to 60 points. Doc. 148, p. 7. De Silva
did not make the cutoff and was not offered an interview. Doc. 105, p. 3.
Assuming that De Silva has made out a prima facie case, the employer has articulated
a legitimate, nondiscriminatory reason for rejecting him: De Silva lacked sufficient public
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procurement experience. See Dominguez-Curry, 424 F.3d at 1037. To survive summary
judgment, De Silva must “produce sufficient evidence to raise a genuine issue of material
fact as to whether the employer’s proffered nondiscriminatory reason is merely a pretext for
discrimination.” See Dominguez-Curry, 424 F.3d at 1037. He has not done so.
De Silva argues first that the initial SME assessment was fraudulently designed to
keep him from getting the job. He asserts that in the past, procurement officers were hired
with less public procurement experience than he had. 	Doc. 148, p. 22. 	And if public
procurement experience is not necessary, the SME’s emphasis on this experience is evidence
that the SME parameters were not devised in good faith but to discriminate against him.
Doc. 148, pp. 22-24.
The defendants, however, provide uncontroverted evidence that the SME assessment
parameters were devised by Defendant Loomis, and when he devised them, he did not know
that De Silva had applied for the job. Doc. 105, p. 3; Doc. 150, p. 40. So he could not have
devised the parameters to discriminate against De Silva.
De Silva asserts that because he previously applied for the Buyer-Principal position
in April of 2022, “[i]t is inconceivable that a division manager was oblivious to the fact that
there was a good possibility that Plaintiff would apply.” Doc. 148, p. 19. The court is not
persuaded. Loomis was a division manager, but De Silva did not work in Loomis’s division.
Doc. 150, p. 23. De Silva provides no evidence that he was on Loomis’s “radar” and Loomis
was aware of his future employment aspirations. De Silva provides only speculation, and
that is not enough. See McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir.
2016) (“Arguments based on conjecture or speculation are insufficient” to oppose summary
judgment.).
De Silva submits considerable evidence about the circumstances surrounding the job
search. He notes that the defendants were informed on January 18, 2023 that the previous
procurement officer would be retiring. Doc. 148, p. 20. Pima County Procurement Division
staff, however, were not informed of the retirement until January 26, 2023, and in the
meantime, Nichole Caballero was laterally transferred to “D&C” [Design and Construction].
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3 The defendants offer a declaration from Loomis, the Division Manager of the D&C
(Design and Construction) division. He states that “Ms. Caballero was transferred from the
Admin. to the D&C Division in order to train her to support and possibly replace Monica
Dennis, a Business Enterprise Coordinator with PCPD who was planning to retire.” Doc.
150, p. 25. 	Moreover, “[s]he never worked as a Buyer, and thus was not transferred to
replace Ms. Cooper as a Buyer Senior.” Id.
4 De Silva maintains that his recently disclosed witness, Brandon R. Morgan, “can
corroborate Plaintiff’s claims and rebut certain claims of Defendants.” Doc. 148, p. 20. He
does not, however, explain specifically what relevant evidence Morgan can add. De Silva
attached Morgan’s declaration to his Controverting Statement of Facts, but Morgan’s
declaration only supports De Silva’s assertions as to when things happened. Doc. 149-4, p.
129. He provides no evidence to prove why they happened. The court finds that the Morgan
declaration does not affect the court’s analysis of this issue and therefore the court need not
address at this time whether this witness’s statements should considered.
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Doc. 148, p. 20. This transfer, he asserts, enabled her to be trained and in position to pick
up the slack when Cooper was eventually promoted3 . Doc. 148, p. 20. These shenanigans,
he argues, were part of an elaborate conspiracy to “facilitate the hand-picked and eventual
promotion of Cooper to Procurement Officer within the coming weeks.” Doc. 148, p. 20.
It appears that De Silva’s conspiracy argument is no more than simple conjecture 4 .
But even if he had evidence that Cooper was the favorite candidate, it would not show that
he has suffered unlawful discrimination. “Favoritism, unfair treatment and unwise business
decisions do not violate Title VII unless based on a prohibited classification.” 	Taken v.
Oklahoma Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997). 	Put another way, De
Silva’s alleged evidence of favoritism does not show that if he were the same race (or color
or nationality) as Cooper, he would have been hired instead. See City of Los Angeles, Dep’t
of Water & Power v. Manhart, 435 U.S. 702, 711, 98 S. Ct. 1370, 1377 (1978)
(Discrimination under Title VII occurs if “the evidence shows treatment of a person in a
manner which but for that person’s sex would be different.”).
Title VII Discrimination: Business Intelligence Analyst-Senior
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5 In the defendants’ version of the McDonnell Douglas analysis, the plaintiff must
establish at step 4 of the prima facie case that “the employer must have treated similarly
situated individuals outside of that protected class more favorably.” Doc. 105, p. 15; see,
e.g., Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155–56 (9th Cir. 2010). This court’s
version of the analysis considers evidence of the differences between the plaintiff and the
ultimately successful candidate when it evaluates the employer’s alleged nondiscrimatory
reason for the hiring decision. 	See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d
1027, 1037 (9th Cir. 2005). The same evidence is considered but at a slightly later stage of
the analysis. The court’s ultimate decision on summary judgment is not affected by which
version of the McDonnell Douglas analysis is used.
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De Silva subsequently applied for the position of Business Intelligence Analyst -
Senior at the Pima County Health Department. 	Doc. 148, p. 7. 	On April 6, 2023, he
interviewed for the position. 	Id. 	He scored 80 points, forty points each from the two
interviewers, RiCharde Johnson and Dr. Amanda Sapp. 	Doc. 105, p. 5. 	De Silva was
informed that he was not selected on April 13, 2023. Id. According to the defendants, “Dr.
Sapp who led the interview process, ultimately decided against hiring Plaintiff based on his
interest in [] telecommuting three to four days each week.” Doc. 105, p. 5 (citing SOF ¶ 52);
Doc. 146-1, p. 366, ¶ 11. The position was reopened for further applicants. Doc. 146, ¶ 53.
Sapp did not participate further in the hiring process.
On May 22, 2023, the defendants Johnson and Lam interviewed another candidate,
Ryscha Campbell, who only scored 67 points and hired her because “both agreed that Ms.
Campbell would be the best fit for the position.” Doc. 148, p. 7; Doc. 146, ¶ 60.
The defendants seem to concede that De Silva is in a protected class, he was qualified
for the position, and he was rejected for the position by Sapp. Doc. 105, p. 21. They also
seem to acknowledge that the position went to a person not of De Silva’s class. Doc. 105,
p. 22 (“Plaintiff’s claim that Defendant Johnson hired Ms. Campbell [unlawfully] is purely
based on an assumption that Defendant Johnson is biased in favor of black people . . . .”).
They argue, however, that he was not “similarly situated” with Campbell, using a slightly
different version5 of the McDonnell Douglas analysis, and therefore the fact that she was
hired instead of him is not evidence of discrimination. Doc. 105, pp. 21-23. They maintain
that Campbell was interviewed by Johnson and Lam, who gave her a total of 67 points, and
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because Lam scored the interview differently from Sapp, the fact that De Silva scored more
total points than Campbell is not evidence of discrimination. Id.
The court finds this discussion of interview points to be something of a red herring.
The defendants do not assert that De Silva was rejected because of these interview points.
They maintain that De Silva was rejected based on his interest in “telecommuting three to
four days each week.” Doc. 105, p. 5 (citing SOF ¶ 52); Doc. 146-1, p. 366, ¶ 11.
At first blush, it seems that De Silva has made out a prima facie case, but the employer
has articulated a “legitimate, nondiscriminatory reason for its action.” 	See Dominguez-
Curry, 424 F.3d at 1037. 	It appears, however, that the defendants have not offered any
admissible evidence for their proffered reason. 	They direct the court to a Declaration of
Recharde Johnson in which he states as follows: “I do not recall what Ms. Sapp’s exact
rationale for her decision was, but I do recall that it involved Mr. De Silva asking about
telecommuting three to four days per week.” SOF ¶ 52; Doc. 146-1, p. 366. ¶ 11. It appears
that Johnson is qualified to offer testimony that the decision to reject De Silva was made in
whole or in part by Sapp. His statement that Sapp rejected De Silva because De Silva asked
about telecommuting, however, appears to be inadmissible hearsay. See Fed.R.Evid 801(c),
802; see also Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court
can only consider admissible evidence in ruling on a motion for summary judgment.”);
Fed.R.Civ.P. 56(c)(2). If Johnson heard De Silva express an interest in telecommuting, he
would be competent to testify about that, but it is unclear from his statement whether he
heard De Silva make that request or Sapp told him that she heard it.
In any case, De Silva asserts that, “At no point in the interview did Plaintiff request
telecommuting privileges.” Doc. 148, p. 7 (citing CSOF ¶ 52; Id., Ex. 28); Doc. 149, ¶ 52;
De Silva Declaration, Doc. 149-4, p. 142, ¶ 45. And he should be qualified to testify about
what he said, or did not say, at the interview.
The court concludes that there remains a genuine issue of material fact as to whether
De Silva requested telecommuting privileges, who rejected De Silva, and why he was
rejected. Summary judgment will be denied on the Title VII intentional discrimination claim
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related to the position of Business Intelligence Analyst -- Senior at the Pima County Health
Department.
Title VII Discrimination: Business Systems Analyst – Technical Writer
On May 4, 2023, De Silva interviewed for a position as a Business Systems Analyst
– Technical Writer in the Pima County Information Technology Department. Doc. 105, p.
4. 	De Silva and another applicant, Sheri Prochaska, sat for a second, more informal
interview on May 10, 2023. Doc. 105, p. 4; but see Doc. 146-1, p. 241 (The followup was
conducted on May 8, 2023.). Prochaska was chosen for the job instead of De Silva. Doc.
105, p. 4. It appears that Defendant Miller and Defendant Lundin made the decision. Doc.
146-1, p. 234.
De Silva maintains that he scored 100 points in the Subject Matter Expertise (SME)
assessment and scored 212 in the first interview. 	Doc. 148, pp. 7-8. 	He asserts that
Prochaska scored only 60 points in the SME and 202 points in the first interview. Id.
Lundin explained that he chose Prochaska because she did “extremely well” on the
second interview. Doc. 146-1, p. 241. He explained that “she elaborated on her experience
as a communications professor and how she has had to write manuals and training guides for
technical purposes in other roles which she had held.” 	Doc. 146-1, p. 241. 	Lundin
recommended that Prochaska be hired because “while Mr. De Silva could tell us what he
would do in a scenario, Ms. Prochaska was able to tell us what she had done previously.”
Id. (emphasis added). In sum, “[s]he had many years of experience over Mr. De Silva in
exactly what we were looking for.” Doc. 146-1, p. 241.
Miller agreed with Lundin’s assessment. Doc. 146-1, pp. 237-238. He believed that
Prochaska had more relevant experience. 	Id. 	Also, she had considerable experience
communicating directly with end-users. Id. And “her personality was warm, almost bubbly
and [she] seemed really excited about filing this position.” Id. He explained that “[i]t was
very easy to imagine Sheri Prochaska standing in a room full of end-users and presenting
non-technical information about technology in a way employees would enjoy.” Id.
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Assuming that De Silva has made out a prima facie case, the employer has articulated
a legitimate, nondiscriminatory reason for its action: Prochaska was hired because she had
the most relevant experience and she displayed the most enthusiasm for the position. See
Dominguez-Curry, 424 F.3d at 1037. 	To survive summary judgment, De Silva must
“produce sufficient evidence to raise a genuine issue of material fact as to whether the
employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.” See
Dominguez-Curry, 424 F.3d at 1037. He has not done so.
De Silva asserts that he scored better than Prochaska in the SME and in the first
interview. He concludes that he was the most qualified and the defendants’ decision to hire
Prochaska must be false. As the court observed above, however, it does not matter if De
Silva was objectively the best candidate. It only matters whether the defendants were telling
the truth when they explained their subjective reasoning for their decision to hire Prochaska.
The fact that they might have chosen poorly is not evidence of unlawful discrimination. See
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (“[C]ourts only
require that an employer honestly believed its reason for its actions, even if its reason is
foolish or trivial or even baseless.”) (punctuation modified).
De Silva further argues that the defendants’ statement that they hired Prochaska
because of her training experience was pretext because “the job posting did not require any
trainer experience.” Doc. 148, p. 26. The court does not agree. The job posting listed as a
preferred qualification: “experience explaining new or updated technology to an end-user.”
Doc. 150, p. 32. This statement does not use the term “trainer” explicitly, but it does fairly
inform prospective applicants that training experience would be valued. See also Sobol v.
DeJoy, 2024 WL 3360990, at *11 (D. Haw. July 9, 2024) (The fact that “the job posting did
not perfectly encapsulate the duties of the position” was not evidence of pretext.).
To survive summary judgment, De Silva must provide “specific and substantial”
evidence that “the employer’s proffered nondiscriminatory reason is merely a pretext for
discrimination.” See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037-1038
(9th Cir. 2005). He has not done so.
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Title VII Discrimination: Administrative Review
On May 10, 2023, De Silva asked the Human Resources Department to conduct an
administrative review of the hiring process for the Technical Writer position. Doc. 105, pp.
5-6. De Silva objected to some of the questions asked in the second interview such as: “Can
you give an elevator pitch of yourself for the job?” or “What methods or medium will you
use to communicate with Pima County Employees of a system change?” Doc. 105, p. 6.
Cathy Bohland instructed the department to gather documents and investigate the hiring
process. Doc. 105, p. 6. Matt O’Connor was assigned to conduct the investigation. Id.
De Silva argues that the investigation was inadequate. Doc. 148, p. 28. He maintains
that it was not completed on time. Id. He believes that his qualifications for the position
were not fairly evaluated. Id. He asserts that because he received more points that Prochaska
in the SME assessment and in the interview, he must have been the better candidate. Doc.
148, pp. 28-29. 	He objects to Miller’s statements about Prochaska that “you can see her
standing in front of a group and presenting,” or that he could imagine her “standing in front
of end-users presenting in a way employees would enjoy.” 	Doc. 148, p. 29 (punctuation
modified). 	He argues that “[i]t is hard to fathom how standing in front of users and
presenting or teaching are related to technical writing, unless it was Defendant Miller’s
personal racial preference, contrary to clear job requirements.” Doc. 148, p. 29; but see Doc.
150, p. 32 (The job posting listed as a preferred qualification: “experience explaining new
or updated technology to an end-user.”).
This court previously held that the defendants alleged failure to properly investigate
De Silva’s allegations of discrimination is not an adverse employment action for the purposes
of a Title VII intentional discrimination claim. Doc. 65, pp. 14-16; see also Chesley v. City
of Mesquite, 2023 WL 5206925, at *5 (D. Nev. Aug. 14, 2023) (“Courts generally refuse to
consider a failure to investigate an adverse employment action” in part because employers
might not investigate allegations at all if they thought an inadequate investigation would
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result in liability.) (collecting cases). 	In the alternative, the court finds that De Silva has
failed to provide evidence tending to establish a genuine issue of material fact.
The only evidence De Silva offers to prove that the allegedly inadequate investigation
was the result of intentional discrimination are Miller’s statements that he could imagine her
“standing in front of end-users presenting in a way employees would enjoy.” Doc. 148, p.
29 (punctuation modified). De Silva argues that this statement is a veiled reference to race
and evidence of unlawful discrimination. 	Presumably, he believes that an adequate
investigation would have made that connection. 	De Silva’s suspicions, however, are not
enough. 	See McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016)
(“Arguments based on conjecture or speculation are insufficient” to oppose summary
judgment.).
Title VII: Disparate Impact
De Silva claims that certain Pima County employment practices violate Title VII
because they have a disparate impact on Asians. Doc. 148, p. 30.
He describes four practices specifically: “1) Pima County Merit System Rules, which
limit requests for administrative reviews and reporting of discrimination to only 10 days, 2)
unchecked and unsupervised interview and written exam process where there is no oversight
by the PCHRD [Pima County Human Resources Department] and this unaccountable
selection process allowed in all County departments, 3) PCHRD not overseeing SME
[Subject Matter Expertise] weight assignment, [and] 4) PCHRD not seeking justification
from hiring managers on hiring decisions.” Doc. 148, p. 30.
“To establish a prima facie case of disparate impact under Title VII, [the plaintiff]
must: (1) show a significant disparate impact on a protected class or group; (2) identify the
specific employment practices or selection criteria at issue; and (3) show a causal relationship
between the challenged practices or criteria and the disparate impact.” 	Hemmings v.
Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). “If a plaintiff establishes a prima facie
case, then the burden shifts to the employer to demonstrate that the challenged practice is job
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related for the position in question and consistent with business necessity.” Bolden-Hardge
v. Off. of California State Controller, 2025 WL 2495655, at *8 (E.D. Cal. Aug. 29, 2025)
(punctuation modified).
De Silva asserts that “Asian males and females employed at the county were at or near
zero.” Doc. 148, p. 30. He has identified four suspect employment practices. Id. He has
not, however, provided any evidence that these practices are the cause of the low number of
Asian employees. 	Id. 	He asserts that the 10-day deadline for requesting a hiring review
makes it difficult for an employee to challenge a suspect hiring practice, but he does not
provide evidence that this deadline affects Asians more than non-Asians. Id. He argues that
a lack of hiring oversight makes unlawful hiring practices more likely, but he does not
provide evidence that Asians are disproportionally affected. 	Id. 	He maintains that these
practices adversely affected him as an individual and he is Asian, but that is not enough.
Doc. 148, pp. 31-32; see, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 426, 430 91 S. Ct.
849, 851, 853 (1971) (Employer violated Title VII by “requiring a high school education or
passing of a standardized general intelligence test as a condition of employment” when “(a)
neither standard is shown to be significantly related to successful job performance, [and] (b)
both requirements operate to disqualify Negroes at a substantially higher rate than white
applicants” because Negroes “have long received inferior education in segregated schools.”).
Title VII: Retaliation for Raising Objection to the Procurement Officer Hiring
To make out a claim for Retaliation pursuant to Title VII, “a plaintiff must show (1)
involvement in a protected activity, (2) an adverse employment action and (3) a causal link
between the two.” 	Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
“Thereafter, the burden of production shifts to the employer to present legitimate reasons for
the adverse employment action.” Id. “Once the employer carries this burden, plaintiff must
demonstrate a genuine issue of material fact as to whether the reason advanced by the
employer was a pretext.” 	Id. 	“Only then does the case proceed beyond the summary
judgment stage.” Id.
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An “adverse employment action” is a “non-trivial employment action[] that would
deter reasonable employees from complaining about Title VII violations.” Brooks v. City of
San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). “Among those employment decisions that can
constitute an adverse employment action are termination, dissemination of a negative
employment reference, issuance of an undeserved negative performance review and refusal
to consider for promotion.” Id. “By contrast, [the Ninth Circuit has] held that declining to
hold a job open for an employee and badmouthing an employee outside the job reference
context do not constitute adverse employment actions.” Id., pp. 928–29.
After De Silva complained about the Procurement Officer hiring process, Defendant
Spencer organized a meeting and “brought Plaintiff into the meeting on only a few minutes
notice.” Doc. 105, p. 32; Doc. 148, p. 32. The meeting was held on March 1, 2023, the day
after the conclusion of De Silva’s 1-year probationary period, but he “was yet to receive a
letter confirming that his probation had ended.” Doc. 148, p. 32. De Silva maintains that
without that letter, he “was subject to termination without cause,” and because of his
precarious employment situation, the meeting constituted a veiled threat.
The defendants assert that the meeting was held because they “wanted to address his
concerns by explaining how the SME process worked and what Plaintiff could do to better
represent himself in the future.” Doc. 105, p. 32.
The court agrees that complaining about discrimination in the hiring process is a
protected activity, but it finds that calling an employee into a meeting to discuss the
employee’s hiring concerns does not rise to the level of an adverse employment action even
if the meeting was held after De Silva’s probationary period had ended but before he received
a letter confirming that fact. A reasonable employee would not be surprised if, after he raised
a complaint about a suspect hiring practice, the employer called him into a meeting to discuss
that complaint. In fact, a reasonable person could find that not addressing his concerns was
more likely a retaliatory action.
De Silva asserts that he was in a precarious employment situation because he was
subject to termination without cause until he received his letter confirming that his
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probationary period was over. He provides no evidence to support his allegation however.
Presumably his probation period ended after the 1-year period. De Silva explains that he
sincerely felt threatened, but the test for an “adverse employment action” is objective, not
subjective. 	See, e.g., Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1189 (9th Cir. 2005)
(“‘[S]nide remarks’ and threats, such as ‘your numbers up’ and ‘don’t forget who got you
where you are” did not rise to the level of an “adverse employment action” for the purposes
of a retaliation claim.), amended on denial of reh’g, 433 F.3d 672 (9th Cir. 2006), amended
on denial of reh’g, 436 F.3d 1050 (9th Cir. 2006).
In the alternative, the court finds that the defendants have expressed a legitimate
reason for holding the meeting. They wanted to address De Silva’s complaint and explain
how the SME process worked. 	De Silva presents no evidence that they knew when his
probationary period was to end when they conducted the meeting. Doc. 148, pp. 32-33.
De Silva maintains that the individual defendants had an obligation to forward De
Silva’s complaint to the Human Resources Department and should not have tried to resolve
his complaint by themselves. 	Doc. 148, p. 33. 	He asserts that their failure to follow the
proper procedure shows that the defendants’ alleged reason for holding the meeting is a
pretext, and moreover, it constitutes an additional adverse action. 	De Silva does not,
however, provide any evidence that this is the proper procedure and that the defendants
knowingly violated that proper procedure. 	He cannot “demonstrate a genuine issue of
material fact as to whether the reason advanced by the employer was a pretext.” Brooks v.
City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). 	He has not established that the
individual defendants’ attempt to address his employment concerns was itself an adverse
employment action.
Title VII Retaliation: Inadequate Investigation
In his Second Amended Complaint, De Silva alleges that he sent emails to Defendant
Cathy Bohland on June 12, 2023 and June 14, 2023 asking her to investigate the Procurement
Officer hiring process. Doc. 28, pp. 30-31. He alleges that she “was not willing to conduct
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any investigation as it had not been reported to HR within 10 days of occurrence.” Doc. 28,
p. 31; Doc. 148, pp. 30-31 (citing CSOF ¶¶ 67, 82-85; Ex. 25). 	He claims this was
retaliation. But see Patocs v. Automatic Data Processing Inc., 2022 WL 2702507, at *12 (D.
Ariz. July 12, 2022) (“[T]he coaching and scrutiny Plaintiff experienced, and Defendant’s
inadequate internal investigation are not adverse actions for the purposes of her retaliation
claim.”).
The defendants explain that when De Silva made complaints about the Procurement
Officer position “it was past the ten-day deadline to request an administrative review from
HR.” 	Doc. 105, p. 6 (emphasis added). 	“Instead, HR considered Plaintiff’s complaints
regarding the Procurement Officer position as a separate allegation of discrimination, which
is not subject to a ten-day deadline.” Id. (citing SOF ¶ 83-85) (emphasis added). Apparently
the defendants make a distinction between a request for an “administrative review,” which
they want to resolve before the new employee begins work, and a request for an investigation
of “discrimination.” Doc. 146, p. 11.
But setting aside the semantic arguments, HR did consider De Silva’s request in spite
of his timing. They determined, however, that his allegation of discrimination was without
a factual basis. 	According to the defendants, “HR determined that an investigation [of
discrimination] was not necessary, because Plaintiff’s complaints had to do with a part of the
SME process that occurred before Defendant Loomis was aware of the identities of the
applicants for the position.” Id. (citing SOF ¶ 85) (citing PC005991-005998); Doc. 146-1,
pp. 379-86; Doc. 146-1, ¶¶ 8, 15, 16, 23, 37, 39, 40, 41.
De Silva asserts that “it was Defendant Bohland . . . who, when Plaintiff directly made
the discrimination complaint about the Procurement Officer hiring process, and asked that
she 	investigate, 	categorically 	invoked 	the 	ten-day 	rule 	and 	refused 	to 	conduct 	an
investigation.” Doc. 148, p. 30. In fact, while the defendants may have refused to conduct
an “administrative review,” they did “investigate” his discrimination complaint. 	They
decided that it was meritless because Loomis did not know that De Silva was applying for
the job when he created the SMS criteria. As the court explained above, De Silva has not
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provided evidence establishing that Loomis knew that De Silva was applying for the job
when he created the SMS criteria. 	De Silva cannot prove that the hiring process was
discriminatory; therefore, he cannot establish that the defendants’ investigation was
inadequate. See also Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004) (“[A]
finding of discrimination is required before a failure to investigate a discrimination complaint
would become actionable.”). He has not established an “adverse employment action.”
Title VII Retaliation: Not Extending De Silva’s Resignation Date
On April 13, 2023, De Silva gave notice of his resignation effective May 10, 2023.
Doc. 105, pp. 3-4. (April 13, 2023 was apparently the day he was told that he was not being
selected for the position of Business Intelligence Analyst - Senior. 	Doc. 148, p. 7.) 	“In
response to this, and in preparation for an upcoming increase in workload, Defendant
Spencer worked with County Administration to reclassify Plaintiff’s position from a
Buyer-Senior to a Procurement Officer once Plaintiff vacated it.” Doc. 105, p. 4.
On May 9, 2023, De Silva asked to push his resignation date back to May 19, 2023,
and take vacation during this time. Doc. 105, p. 4. Spencer denied the request “because it
had no benefit for [her department] but would have delayed reclassifying the position.” Id.
De Silva implies that denying his request to change his resignation date was an
adverse employment action taken in retaliation for raising complaints about his employer’s
hiring practices. Doc. 148, p. 33. The court disagrees. A reasonable employee would not be
deterred from raising Title VII issues for fear that his or her resignation date would not be
rescheduled should he or she ask that it be modified. This is not an adverse employment
action for the purposes of a Title VII retaliation claim. See Brooks v. City of San Mateo, 229
F.3d 917, 928 (9th Cir. 2000).
In the alternative, the court finds that the employer has articulated a legitimate reason
for the employment action. Spencer denied the request “because it had no benefit for [her
department] but would have delayed reclassifying the position.” Doc. 105, p. 4.
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De Silva argues that the defendants’ alleged reason for denying his request is false
because “[t]he reclassification of a buyer position took months to take [] effect based on
[Plaintiff’s] belief and thus was not an immediate priority.” Doc. 148, pp. 33-34. De Silva,
however, provides no evidence to support his statement about the speed with which
reclassification proceeds. And even if it were true, he provides no evidence that Spencer
knew that and viewed the reclassification as “not an immediate priority.” Presumably, if
reclassification were a lengthy process, it was more important, not less, to get the process
started as soon as possible.
De Silva fails to “demonstrate a genuine issue of material fact as to whether the reason
advanced by the employer was a pretext.” Brooks v. City of San Mateo, 229 F.3d 917, 928
(9th Cir. 2000).
Title VII Retaliation: Hostile Work Environment
De Silva claims that Spencer retaliated against him by creating a hostile work
environment. “A hostile work environment may constitute an adverse employment action
for purposes of a retaliation claim.” Yonemoto v. McDonald, 114 F. Supp. 3d 1067, 1106–07
(D. Haw. 2015), aff’d sub nom. Yonemoto v. Shulkin, 725 F. App’x 482 (9th Cir. 2018); see
Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000). “Retaliation in the form of a hostile
work environment is actionable only if it is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” 	Id.
(Punctuation modified). “To determine whether a work environment is sufficiently hostile,
the court must look to the totality of the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id.
De Silva does not clearly explain what Spencer did to create this hostile work
environment other than deny his request to push back the date of his resignation. This single
action was not “threatening or humiliating” and did not “unreasonably interfere” with his
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6 Although the court has not found a case directly on point, it appears that the court’s
finding above that Kelly’s statements are conditionally privileged in the context of
defamation law resolves the Title VII retaliation “legitimate business reason” issue. 	See
Sovie v. Town of N. Andover, 742 F. Supp. 2d 167, 174 (D. Mass. 2010) (“The conditional
privilege is a natural corollary of the privilege to publish defamatory material if the
publication is reasonably necessary to the protection or furtherance of a legitimate business
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“work performance.” De Silva has not provided sufficient evidence that he experienced a
hostile work environment.
Title VII Retaliation: Kelly’s Allegedly Defamatory Statements
When he was passed over for the Technical Writer position, De Silva sent an email
to Pima County’s Human Resources Department seeking an administrative review of the
hiring process. Doc. 105, pp. 5-6 ; Doc. 146, ¶¶ 62-63. As part of this administrative review,
“Defendant Kelly stated that she reca[lled] Plaintiff being very intense, often slapping the
table abruptly throughout the interview process.” Doc. 146, ¶ 68 (punctuation modified).
Around July 20, 2023, De Silva filed a charge of discrimination with the Arizona
Attorney General and with the Equal Employment Opportunity Commission. Doc. 105, p.
7; Doc. 146, ¶ 69. “Defendant Kelly provid[ed] a sworn affidavit in which she repeated her
statement that Plaintiff hit a table to emphasize his statements during the May 4, 2023
interview for the Technical Writer position and again during the May 10 interview for the
Business Systems Analyst – Senior position.” Doc. 105, p. 7; Doc. 146, ¶ 70. According to
the defendants, Kelly made these statements because she believed they were true and they
“added useful context to explain why Plaintiff was not chosen for the Technical Writer
position.” Doc. 105, p. 34.
De Silva argues that Kelly’s statements were retaliation for bringing Title VII
complaints. Assuming without deciding that De Silva has established a prima facie case, the
defendants have offered legitimate business reasons 6 for Kelly’s statements. 	They were
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offered to assist the investigations into De Silva’s allegations of discrimination. De Silva
fails to “demonstrate a genuine issue of material fact as to whether the reason advanced by
the employer was a pretext.” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
Intentional Discrimination in Violation of 42 U.S.C. § 1983
De Silva asserts that the various individual defendants intentionally discriminated
against him in violation of 42 U.S.C. § 1981 and the equal protection clause of the Fourteenth
Amendment. Doc. 28, pp. 31-42. He claims those violations may be raised pursuant to 42
U.S.C. § 1983. Id. The defendants maintain, and De Silva agrees, that the court’s findings
regarding the intentional discrimination claims brought pursuant to Title VII are dispositive
of the intentional discrimination claims brought pursuant to 42 U.S.C. § 1983. Doc. 105, p.
35; Doc. 148, p. 34.
“A plaintiff who fails to establish intentional discrimination for purposes of Title VII
also fails to establish intentional discrimination for purposes of 42 U.S.C. § 1983.”
Sischo–Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir.1991),
superseded by statute on other grounds as recognized in Dominguez–Curry v. Nevada
Transp. Dep’t, 424 F.3d 1027, 1041 (9th Cir.2005); see also Patocs v. Automatic Data
Processing Inc., 2022 WL 2702507, at *3 (D. Ariz. July 12, 2022) (“The standards for
analyzing § 1981 claims are the same as those applicable in Title VII disparate treatment
cases.”).
The defendants are entitled to summary judgment on all Title VII intentional
discrimination claims except for the claim arising from De Silva’s application for the position
of Business Intelligence Analyst - Senior at the Pima County Health Department. 	The
defendants are therefore entitled to summary judgment on all intentional discrimination
claims brought pursuant to 42 U.S.C. § 1983 except for the claim arising out of that
application.
Monell Claims pursuant to 42 U.S.C. § 1983
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“Section 	1983 	also 	imposes 	liability 	upon 	municipalities 	for 	constitutional
deprivations resulting from actions taken pursuant to government policy or custom.”
Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988), abrogated in
part on other grounds as stated in Boarman v. County of Sacramento, 2013 WL 1326196,
at 7 (E.D.Cal. 2013), (citing Monell v. Dep’t of Social Services, 436 U.S. 658, 694, 98 S.Ct.
2018, 2037, 56 L.Ed.2d 611 (1978)). 	But “where there is no underlying constitutional
violation by an individual government employee, there can be no Monell liability by the local
government.” Bowen v. Cnty. of Los Angeles, 2018 WL 6038293, at *4 (C.D. Cal. Jan. 29,
2018).
“[A] municipality may be liable under § 1983, just as natural persons are, because
when Congress enacted § 1983 it intended municipalities and other local government units
to be included among those persons to whom § 1983 applies.” Gibson v. Cnty. of Washoe,
Nev., 290 F.3d 1175, 1185 (9th Cir. 2002), overruled on other grounds recognized in Castro
v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). 	“To show that the municipality
violated someone’s rights or instructed its employees to do so, a plaintiff can prove that the
municipality acted with ‘the state of mind required to prove the underlying violation,’ just
as a plaintiff does when he or she alleges that a natural person has violated his federal rights.”
Id.
But “a plaintiff need not allege that the municipality itself violated someone’s
constitutional rights or directed one of its employees to do so.” Id. Instead, a plaintiff can
allege that through its omissions the municipality is responsible for a constitutional violation
committed by one of its employees, even though the municipality’s policies were facially
constitutional, the municipality did not direct the employee to take the unconstitutional
action, and the municipality did not have the state of mind required to prove the underlying
violation.” Id.
In this case, De Silva alleges that the defendant Pima County Government “had
systems, customs, practices, policies and procedures in place that perpetuated and allowed
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for intentional unlawful discrimination and/or retaliation to take place due to Plaintiff’s race
(Asian), color, and national origin . . . .” Doc. 28, pp. 31-32.
De Silva claims specifically that the county has a custom and practice of allowing
managers to pre-select internal candidates for their open positions based on their own
“preferred racial association and likeness.” 	Doc. 28, p. 7. 	He argues that this policy is
supported by the Pima County Merit System Rules, “which limit requests for administrative
reviews and reporting of discrimination to only 10 days and does not provide any punitive
action for violators.” Id. Further, he asserts there is no oversight of the interview and hiring
process. Id.
De Silva does not claim that Pima County established policies that are intentionally
discriminatory. 	Instead, he argues that Pima County’s policies allow its employees
unfettered freedom to discriminate.
“In order to impose liability based on a policy of deliberate inaction, the plaintiff must
establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to deliberate indifference to the
plaintiff’s constitutional right; and (4) that the policy was the moving force behind the
constitutional violation.” 	Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004) (punctuation
modified).
According to the defendants, “Plaintiff has adduced no evidence or allegations which
would allow a finder of fact to determine that his alleged policy exists, much less that it was
a result of deliberate indifference or that it motivated any of the alleged constitutional
violations against him.” Doc. 105, p. 36.
De Silva does not address any of these specific issues in his response brief other than
to assert in conclusory form that “Plaintiff’s discrimination claims have shown to have no
deficiencies, and he has shown that the Defendants’ reasons are pretext and not worthy of
credence.” Doc. 148, p. 34.
The court finds that De Silva has provided evidence that the County conducts its
hiring in accordance with certain policies. He has not, however, presented evidence showing
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that these policies amount to “deliberate indifference” to his constitutional rights or that these
policies were “the moving force” behind the defendants’ alleged discriminatory failure to
hire him. He cannot establish a genuine issue of material fact.
IT IS ORDERED that the defendants’ motion for summary judgment filed on October
17, 2025, is Granted in Part. Doc. 105.
The 	motion 	is 	granted 	for 	all 	claims 	except 	for 	the 	plaintiff’s 	intentional
discrimination claims arising from his application for the position of Business Intelligence
Analyst - Senior at the Pima County Health Department.
DATED this 15 th day of September, 2026.
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