Span v. Pinal County Community College District

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Derrick L. Span,
Plaintiff,
v.
Pinal County Community College District,
Defendant.
No. CV-23-02233-PHX-JJT
ORDER
At issue is Defendant Pinal County Community College District’s Motion for
Summary Judgment (“Motion”) (Doc. 63, MSJ), to which Plaintiff Dr. Derrick Span filed
a Response (Doc. 80, Resp.) and Defendant filed a Reply (Doc. 81, Reply). Defendant
supports its Motion with a Statement of Facts (Doc. 64, SOF), and Plaintiff supports his
Response with a Controverting Statement of Facts (Doc. 74, CSOF). For the reasons set
forth below, the Court grants Defendant’s Motion.
I. BACKGROUND1
In 2011, Plaintiff was hired by Defendant as a full-time professor in the Social and
Behavioral Sciences Division (“Division”). (Span Dep. at 19:24–20:4; Span Decl. ¶ 6.)
Plaintiff became a “visible advocate for equity and inclusion” at the College by challenging
College policies that negatively affected people of color, creating the first diversity and
equity committee, advocating for a Chief of Diversity and Equity position within the
1 The following facts are uncontested or—to the extent they are contested—are drawn from
Plaintiff’s own deposition testimony (SOF at 15–45, Span Dep.), declaration (Doc. 75-1,
Span Decl.), and other documents that Plaintiff submitted in response to the Motion.
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President’s cabinet, organizing a virtual platform to discuss social issues. (Span Decl. ¶¶ 9–
10.)
Between 2020 and 2024, Plaintiff served a three-year term as the Division Chair.
(SOF ¶ 3; CSOF ¶ 3.) During his tenure, Plaintiff reported directly to Dean Atteberry, who
in turn would report to Vice President Gilliland, who then reported to President Elliot.
(SOF ¶ 5; CSOF ¶ 5; Span Dep. at 23:9–25:21.) Plaintiff’s responsibilities as the Division
Chair included “acting as an intermediary between College administration and Division
faculty,” staffing, programming, scheduling, responding to student concerns and
complaints, and supervising faculty. (SOF ¶ 4; CSOF ¶ 4.)
In his time as Division Chair, faculty member Dr. Liz Baroi shared her concerns
about Dr. Carol Johnson, another faculty member with whom Plaintiff shared a friendly
and previously romantic relationship. (SOF ¶¶ 27–28; CSOF ¶¶ 27–28.) Plaintiff responded
that, per College policy, he was unable to investigate Dr. Johnson for the reasons given by
Dr. Baroi because he received no student complaints against her. (SOF ¶ 29; CSOF ¶ 29;
Span Dep. at 94:16–96:2.) Plaintiff asked Dr. Baroi to provide him with the student
complaints she referenced, but she never did. (Span Dep. at 69:20–71:12.)
While Division Chair, Plaintiff generally experienced his staff “going around him”
to the Dean or Vice President to complain about Plaintiff’s management or enforcement of
College policies. (SOF ¶ 19; CSOF ¶ 19; Span Dep. at 37:10–17.) The evidence provided
by Plaintiff shows that this issue predated March 10, 2020.2 Plaintiff was also concerned
about the Division being assigned the color brown on the College’s website and being
called the “Brown division.” (SOF ¶¶ 64–67; CSOF ¶¶ 64–67.) That color was coded to
the Division as a part of the College’s “Guided Pathways” process, which streamlined the
students’ graduation process and color coded each area of study. (Span Dep. at 55:20–
56:1.) According to Plaintiff, this color coding occurred “somewhere again around 2020 or
2 Dr. Dawn Conley, one of Plaintiffs’ direct reports, submitted her own internal complaint
on November 6, 2019. In the written investigation report dated March 10, 2022, the
investigator documented that Dr. Conley complained of another staff member
circumventing Plaintiff—who was Dr. Conley’s direct supervisor—to raise concerns
directly to College leadership. (Doc. 75-6 at 6.)
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2021.” (Span Dep. at 56:2–7.) The choice of color was “stereotypical” because Plaintiff is
an African American man and the Division had the highest concentration of minorities.
(Span Dep. at 48:22–50:3, 60:10–25.) Plaintiff directly heard one person refer to the
Division as the “Brown Division” and believed an anonymous survey comment referencing
“Brown people” was directed towards the Division because of its assigned color. (SOF
¶¶ 66–68; CSOF ¶¶ 66–68; Span Dep. at 50:10–14, 54:10–20, 52:8–15.) He raised his
concerns to leadership about the color “for some two years, close to three years,” but
nothing changed during his tenure as the Division Chair. (Span Dep. at 49:18–20.) Around
this time, Plaintiff knew of other lawsuits brought by his African American colleagues
asserting racial discrimination, but he refused to join in those lawsuits because he did not
feel personally affected. (Span Dep. at 66:14–25.)
On October 21, 2021, the Dean and Vice President informed Plaintiff that the Dean
would become involved in the Division to improve visibility of the program. (Span Decl.
¶ 14; Doc. 75-1; Doc. 76-5.) Plaintiff was told that the Division would be the “guinea pig”
for the new initiative. (SOF ¶¶ 14–16; CSOF ¶¶ 14–16.) He expressed concern that this
would make it look like he was not able to do his job and would further weaken his
authority over faculty members. (SOF ¶ 19; CSOF ¶ 19; Span Decl. ¶ 17.)
On October 26, 2021, Dr. Baroi emailed the Vice President and two students
detailing those students’ complaints about Dr. Johnson’s teaching abilities. (Doc. 77-1 at
4.) The students responded to the email chain confirming Dr. Baroi’s account. (Id. at 2–3.)
Plaintiff was not included in these emails.
On October 27, 2021, the Dean and Vice President met with Plaintiff and four
faculty members that directly reported to Plaintiff. (Span Decl. ¶ 18.) At the meeting,
Plaintiff asked “why the Social & Behavioral Sciences Division was singled out for their
intervention” and purportedly received criticism in response for his “objections.” (Id. at
¶ 19.)
On October 28, 2021, Dr. Baroi sent an email to the Dean and Plaintiff that
“welcomed” the Dean to the Division and detailed concerns she had with instructors who
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taught introductory psychology courses at the college. (Doc. 76-6; Span Decl. ¶ 20.)
According to Plaintiff, Dr. Baroi’s concerns targeted Dr. Johnson. (Span Decl. ¶¶ 20–21.)
Around this time, Plaintiff met with the President and voiced his concerns about his
staff “going around” him, the assignment of the color brown to the Division, and the
pending lawsuits of other College employees. (SOF ¶¶ 8–10; CSOF ¶¶ 8–10; Span Decl.
¶¶ 22–23.) Shortly afterwards, the Dean called Plaintiff to ask why he met with the
President and whether he raised any concerns he had with the Dean or Vice President, to
which Plaintiff said he did not. (SOF ¶¶ 11–12; CSOF ¶¶ 11–12; Span Decl. ¶¶ 24–25.)
During the same conversation, the Dean asked Plaintiff to investigate the “Blackboard
account”—an institutional platform used by faculty—of Dr. Johnson because there were
some student complaints against her. (SOF ¶ 13; CSOF ¶ 13.) Plaintiff responded that he
knew of no complaints against Dr. Johnson, so he had no reason to investigate her. (Span
Dep. at 72:13–73:10.) After his meeting with the President, the Dean conducted less
frequent meetings with Plaintiff as opposed to his colleagues who were having frequent or
monthly meetings with their respective dean. (SOF ¶ 58; CSOF ¶ 58; Span Dep. at 62:9–
24.)
On November 29, 2021, Dr. Baroi sent an email only to the Dean and Vice President
with the subject line “Updated information regarding current investigation.” (Doc. 77-2 at
4.) Dr. Baroi listed numerous complaints against Plaintiff, including that he instructed her
against raising concerns about Dr. Johnson to the Dean or Vice President and against
issuing course evaluations. (Id.) The same day, the Vice President responded to Dr. Baroi
and copied Plaintiff, stating, “I’m concerned that [Plaintiff] told you specifically not to go
to the Dean or the VP . . . If you have concerns, and he doesn’t agree, I think it is valid to
bring them forward.” (Id. at 3.) Plaintiff then responded that he was “shocked” to learn that
there was “apparently some investigation of me in my division.” (Id. at 2.)
Soon after this email exchange, Plaintiff filed a harassment and discrimination
complaint form and an incident reporting form (“Internal Complaint”) against the Dean,
Vice President, and Dr. Baroi, claiming they were “involved in this unwarranted and
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provocative investigation [that] involves racism and gender discrimination.” (SOF ¶¶ 39–
40; CSOF ¶¶ 39–40.) In his Internal Complaint, Plaintiff requested “[n]o supervisory
interaction between me and the Dean.” (SOF ¶ 41; CSOF ¶ 41.) After filing the Internal
Complaint, the Dean stopped conducting monthly meetings with Plaintiff altogether. (Span
Dep. at 63:1–5.)
Plaintiff submitted his Internal Complaint during a time in which the College’s
Chief of Police, Gregory Roberts, oversaw the functions of the Human Resources
department due to a staffing vacancy. (SOF ¶ 42; CSOF ¶ 42.) Chief Roberts assigned the
Internal Complaint to Laura Arnold, a police technician within the College. (SOF ¶ 43;
CSOF ¶ 43.) On March 24, 2022, Ms. Arnold emailed Plaintiff notifying him that she
received the investigation packet and “hope[s] to schedule an interview with [Plaintiff] in
the next couple of weeks.” (Doc. 78-7.)
On April 7, 2022, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging violations of Title VII of the
Civil Rights Act of 1964, specifically alleging discrimination based on race. (Doc. 78-6.)
Plaintiff describes the November 29, 2021 email exchange regarding the “secret
investigation,” the assignment of the color brown to the Division, the lack of supervisory
meetings since filing his Internal Complaint, and the inadequate investigation of his
Internal Complaint as the grounds for his EEOC Charge. (Id. at 3.)
On April 20, 2022, Plaintiff emailed Ms. Arnold regarding ongoing issues with
Dr. Baroi routing student complaints directly to Vice President Gilliland rather than to him.
(Doc. 77-4 at 2.) Ms. Arnold responded that she added his email to his file and noted that
she “would still need to get some times when it would be convenient for [Plaintiff] and
[her] to speak . . .” (Id.) Plaintiff subsequently responded with his ongoing availability for
an interview. (Doc. 78-4 at 2.) Ms. Arnold responded several days later but did not schedule
an interview with Plaintiff. (Id.) Aside from these emails, no other evidence by either party
is offered to show additional contact between Ms. Arnold and Plaintiff.
. . .
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Later, Ms. Arnold authored a three-page preliminary investigation report based on
her review of certain emails, Plaintiff’s Internal Complaint, and written responses from the
Vice President and Dr. Baroi. (Doc. 78-5 at 2.) Ms. Arnold sent the preliminary report on
July 27, 2022 to Chief Roberts and noted that it was “not submitted yet, as [she] needed to
talk with Dr. Span.” (Id.) A copy of the preliminary report was not provided to Plaintiff
until it was attached in Defendant’s position statement in response to Plaintiff’s EEOC
Charge. (SOF ¶ 49; CSOF ¶ 49.) Neither party suggests that the investigation into
Plaintiff’s Internal Complaint was formally closed.
In or around December 2022, the Dean passed away. (Span Dep. at 63:6–22.) The
College opened the dean position and Plaintiff applied. (Span Decl. ¶ 34.) Plaintiff inquired
whether it was possible to report to someone else other than the Vice President if he was
offered the position, given that his Internal Complaint was still pending against her. (Id.
¶ 37.) The College answered in the negative, and Plaintiff withdrew his application. (Id.
¶¶ 37–38.) Plaintiff went on to apply to another dean position that reported to a different
vice president and was denied that position. (Id. ¶ 38.) Plaintiff completed his third term as
the Division Chair and decided to not run for that position again. (Span Dep. at 25:22–
27:12.) He remains a full-time professor in the Division. (Span Dep. at 19:24–20:4.)
On July 28, 2023, the EEOC issued Plaintiff a Notice of Right to Sue. (Doc. 1,
Compl., ¶ 11.) On October 27, 2023, Plaintiff filed suit in this Court alleging two violations
of Title VII for disparate treatment based on his race and retaliation.3 (Id. ¶¶ 38–48.)
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate
when the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the
outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could
resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA,
3 Plaintiff also brought a Title VII claim for hostile work environment as Count One but
now stipulates to dismiss that claim (Resp. at 16 n.2).
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LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). The court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party’s favor.
Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). “The Court need not ‘comb
the record’ looking for other evidence; it is only required to consider evidence set forth in
the moving and opposing papers and the portions of the record cited therein.” New Leaf
Publ'g, Inc. v. Top Innovations LLC, No. 2:24-cv-04676-MEMF-SSC, 2025 U.S. Dist.
LEXIS 208363, at *5 (C.D. Cal. Oct. 21, 2025) (citing Fed. R. Civ. P. 56(c)(3), (e)(2);
Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)).
The moving party “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 232.
When the moving party does not bear the ultimate burden of proof, it “must either produce
evidence negating an essential element of the nonmoving party’s claim or defense or show
that the nonmoving party does not have enough evidence of an essential element to carry
its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party does so, the nonmoving party
must produce evidence to support its claim or defense. Id. at 1103. Summary judgment is
appropriate against a party that “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex, 477 U.S. at 322.
In considering a motion for summary judgment, the court must regard as true the
nonmoving party’s evidence if it is supported by affidavits or other evidentiary material.
Anderson, 477 U.S. at 255. The nonmoving party may not merely rest on its pleadings; it
must produce some significant probative evidence tending to contradict the moving party’s
allegations, thereby creating a material question of fact. Id. at 256–57 (holding that the
plaintiff must present affirmative evidence to defeat a properly supported motion for
summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A
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summary judgment motion cannot be defeated by relying solely on conclusory allegations
unsupported by factual data.”) (internal citation omitted).
III. DISCUSSION
A. Disparate Treatment
Plaintiff brings a claim for disparate treatment under Title VII, alleging Defendant
discriminated against him because of this race and color under 42 U.S.C. § 2000e-2(a).
(Compl. ¶¶ 38–43.) 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.
42 U.S.C. § 2000e-2(a).
Disparate treatment claims require the plaintiff to prove that the employer acted with
conscious intent to discriminate against the 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
this 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. “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
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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
Angeles, 349 F.3d 634, 640 (9th Cir. 2006) (modification in original). Circumstantial
evidence, on the other hand, requires a fact finder to draw inferences or presumptions of
discriminatory intent.
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.
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 Corp., 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)).
1. McDonnell Douglas Framework
Both parties evoke the McDonnell Douglas framework. Defendant does not dispute
that Plaintiff can establish the first two elements. (MSJ at 13.) Rather, the parties argue
whether Plaintiff can establish a genuine issue of material fact that he was subjected to an
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adverse employment action or that similarly situated individuals outside his protected class
were treated more favorably. (MSJ at 13–14; Resp. at 16–18; Reply at 7–9.)
An adverse employment action is one that materially affects the compensation,
terms, conditions, or privileges of employment. Davis, 520 F.3d at 1089. “Adverse
employment actions may include not only actions an employer affirmatively takes against
an employee (e.g., firing or demoting the employee) but also situations in which the
employer denies an employee a material employment benefit or opportunity that was
otherwise available to her,” such as the denial of a promotion or a transfer. Campbell v.
State Dep’t of Educ., 892 F.3d 1005, 1013 (9th Cir. 2018). Depriving a person of support
services that were previously available to them may also constitute an adverse employment
action. Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (citing Knox v. Indiana, 93
F.3d 1327, 1334 (7th Cir. 1996)). The harm from an employment action need not be
significant to be adverse. See Muldrow v. City of St. Louis, 601 U.S. 346, 357, 357 (2024).
Still, actions that are trivial or have no tangible job consequence, such as a reprimand or
low performance review without more, may not rise to the level of adverse. Gildersleeve
v. City of Sacramento, No. 2:22-cv-02145-JAM-AC, 2025 U.S. Dist. LEXIS 144069, *6
(E.D. Cal. Jul. 28, 2025).
Defendant argues that Plaintiff can establish no genuine issue of material fact that
he was subjected to an adverse employment action from the College. (MSJ at 13–14.)
Plaintiff retorts that he has shown evidence of three adverse employment actions. (Resp. at
17.) First, Plaintiff expresses that the Vice President and Dean “grossly interfered with his
basic job duties by coming into his division and compromising his ability to succeed in his
position as Division Chair.” (Id.) Neither party disputes that the Dean and Vice President
met with Plaintiff and told him that they would be working with his division to “get them
out to the school community,” or that Plaintiff expressed the involvement would “weaken
his authority as the Chair.” (SOF ¶ 14–15, 19; CSOF ¶ 14–15, 19.) According to Plaintiff,
these events inspired “fear” in him about destabilization of the Division that would “blur
college policies regarding chain-of-command, and ultimately undercut his authority.”
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(Resp. at 9–10.) But Plaintiff sets forth no evidence that his compensation, terms,
conditions, or privileges of his position were materially affected by these events. For
example, Plaintiff remained in his position as the Division Chair for the remainder of his
term (Span Dep. at 25:22–27:12) and maintained the same pay (see Doc. 77-4 (email from
pay system manager to Plaintiff on December 6, 2021, noting no changes to pay
assignment).) Plaintiff even concedes that faculty members were already “going around”
him to the Dean and Vice President prior to the Dean’s involvement in his Division, which
undercuts a finding that any material change occurred. (SOF ¶ 19; CSOF ¶ 19; Doc. 75-6
at 6.)
Second, Plaintiff states that the Vice President and Dean colluded with Dr. Baroi
“to solicit student complaints out of the chain of command and undermine his ability to
carry out his duties.” (Resp. at 17.) It is undisputed that Dr. Baroi emailed the Dean and
Vice President directly to “update” them about her conversations with Plaintiff, titling the
email “Updated information regarding current investigation.” (SOF ¶ 30; CSOF ¶ 30; Doc.
77-2.) While Plaintiff claims that the Vice President unintentionally copied Plaintiff on the
email that alerted him to the “secret investigation,” Plaintiff admits that claim is “pure
speculation.” (Span Dep. at 43:15–45:11.) Speculation without more is insufficient to
defeat a motion for summary judgment. Taylor, 880 F.2d at 1045. Plaintiff also fails to
produce evidence that this secret investigation materially affected aspects of his job. As
discussed above, the record indicates that Plaintiff maintained his position, pay, and
responsibilities relative to what he had prior to the “secret investigation.” (SOF ¶ 19; CSOF
¶ 19; Span Dep. at 25:22–27:12; Doc. 77-4.)
Third, Plaintiff asserts that the College assigning his Internal Complaint to campus
police and leaving “that investigation open indefinitely” constitutes an adverse
employment action because it “constructively render[ed] him permanently ineligible for
promotion.” (Resp. at 17.) Plaintiff offers evidence that his colleagues Dr. Dawn Conley
and Ms. Veronika Mosley, both of whom are African American women who filed an
internal complaint for racial discrimination, were subjected to an investigation process
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conducted by a third-party company that included a direct interview and a complete report.
(Docs. 75-6, 76-1). Plaintiff’s complaint, on the other hand, was investigated internally
(see Doc. 78-2), the investigator failed to interview him despite Plaintiff’s attempts to share
his availability (see Doc. 78-4), and did not result in a formal, complete report. The Court
need not determine whether this internal investigation constituted an adverse employment
action, though, because Dr. Conley and Ms. Mosley are both African American and belong
to the same protected class as Plaintiff.4 Therefore, this action, even if adverse, does not
survive the fourth element of the McDonnell Douglas framework.
The only other change in his employment conditions identified by Plaintiff was the
cessation of meetings with the Dean after he filed his Internal Complaint. (Span Dep. at
64:23–65:3; Doc. 78-6.) According to Plaintiff, these meetings are “crucial” to advance
into a deanship. (Span Dep. at 62:9–63:5.) However, it is undisputed that Plaintiff requested
“no supervisory interaction” with the Dean (SOF ¶ 41; CSOF ¶ 41), and Plaintiff provides
no evidence or testimony that he sought out other supervisory support as the Division Chair
and was denied. Plaintiff also does not attribute his promotion ineligibility to the reduction
of supervisory meetings; rather, he attributes it to the incomplete investigation of his
Internal Compliant. (Resp. at 17.) Therefore, the reduction of supervisory meetings is
immaterial to whether Plaintiff was “constructively render[ed] permanently ineligible for
promotion” and does not constitute an adverse employment action.
2. Other Circumstantial Evidence
While Plaintiff does not establish a prima facie case under the McDonnell Douglas
framework, he may set forth other circumstantial evidence of discriminatory intent. Costa,
4 To the extent Plaintiff’s disparate treatment claim raises gender-based discrimination, the
Court lacks subject matter jurisdiction to consider it. Vasquez, 349 F.3d at 644 (“To
establish subject matter jurisdiction over his Title VII retaliation claim, [the plaintiff] must
have exhausted his administrative remedies by filing a timely charge with the EEOC.”).
Nowhere in his EEOC Charge (Doc. 78-6) or Complaint does Plaintiff allege gender-based
discrimination. While subject matter jurisdiction may extend “over all allegations of
discrimination that either fell within the scope of the EEOC’s actual investigation or an
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination,” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002),
there is no evidence or argument from Plaintiff suggesting that gender-based discrimination
fell within the scope of the EEOC’s actual investigation or was reasonably expected to
grow out of the EEOC Charge that exclusively alleged race-based discrimination.
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299 F.3d at 854. Plaintiff asserts that he “has produced substantial circumstantial evidence
of discriminatory intent,” which includes evidence of: (1) a “lengthy history of
discriminating against African American faculty and staff” by the College; (2) Plaintiff’s
“long history of raising concerns of discrimination at [the College]”; (3) the College’s
targeted interference and disruption of the Division; and (4) the College’s inadequate
investigation of Plaintiff’s Internal Complaint. (Resp. at 18.) The result was “Dr. Span’s
career [being] in perpetual limbo—unable to advance to any Academic Dean position
without forcing direct oversight by the target of his unresolved grievance.” (Id.)
Plaintiff offers his testimony that he had a long history of challenging discriminatory
policies of the college (Span Decl. ¶ 9), which included contesting the College’s
assignment of the color brown to the Division. These advocacy efforts, however, were
“never met with direct action against” him. (Id. ¶ 13.) In fact, despite his distinct advocate
role at the College, he did not personally experience disparate treatment before Fall of 2021
and even refused to join his colleagues’ racial discrimination lawsuits “because at that time
I had nothing that I felt happen to me specifically.” (Span Dep. at 66:22–25.) Those
lawsuits that Plaintiff refused to join, each of which settled short of trial (Docs. 76-2, 76-
4), arose from internal complaints filed by African American women that were closed by
a third-party investigator who found no credible evidence of discriminatory motives (Doc.
75-6 at 17, 42, 45, 47; Doc. 76-1 at 3). Plaintiff does not attempt to construe these events
as evidence of discrete discriminatory acts against him—nor could he. The lawsuits do not
involve him at all, and Plaintiff could recall no obstruction of or consequence for his earlier
advocacy efforts. At most, this evidence serves only as relevant background evidence5 to
put Plaintiff’s disparate treatment claims in context. AMTRAK v. Morgan, 536 U.S. 101,
113 (2002) (a plaintiff may use “the prior acts as background evidence in support of a
timely claim” under Title VII). When viewed in a light most favorable to Plaintiff, this
5 Defendant argues that this evidence is “plainly inadmissible” and should not be
considered. (Reply at 5.) Evidence of discrimination that is untimely for a Title VII action
may be used as background evidence so long as it is admissible. Lyons v. England, 307
F.3d 1092, 1110 (9th Cir. 2002). The Court need not reach the issue of admissibility,
however, because Plaintiff ultimately fails to establish a prima facie case of disparate
treatment even with consideration of this background evidence.
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background evidence shows that the College had a history of being accused of racial
discrimination and that the College’s policies and programming could be improved—and
were improved by Plaintiff—to be more equitable to people of color. But it does not show
that the College did, in fact, discriminate against its staff based on race.
While not present in his EEOC Charge, Plaintiff now argues that the College’s
disparate treatment of him began with the Dean and Vice President “targeting” the Division
to be a “guinea pig” for a new program designed to promote the Division to the
community.6 (Resp. at 18; Span Decl. ¶¶ 13–17.) According to Plaintiff, this action was
taken because Plaintiff is African American. (Span Dep. at 48:22–49:8.) However, the
Court cannot make that inference from the simple fact that the Division happened to be
selected as the first to try the College’s new program, especially when Plaintiff admits that
he experienced no direct action or disparate treatment personally prior to this event. (Span
Decl. ¶ 13; Span Dep. at 66:22–25.)
As described in his EEOC Charge, Plaintiff’s disparate treatment claim more
directly arises from the November 29, 2021 email chain started by Dr. Baroi, which
purportedly shows that the College led a “secret investigation” against him. (Doc. 78-6 at
3.) However, according to Plaintiff himself, Dr. Baroi was the “architect” of the secret
investigation—not the Dean or Vice President—and was targeting Plaintiff because of the
way he responded to Dr. Baroi’s concerns about Dr. Johnson. (Span Dep. at 69:7–72:8.)
As discussed earlier, Plaintiff offers no evidence that the Dean or Vice President were
involved in Dr. Baroi’s “secret investigation,” and admits that claim is “pure speculation.”
(Span Dep. at 43:15–45:11.) Even assuming the College led this secret investigation,
Plaintiff’s only evidence that this action was based on race was that he was one of a few
African American faculty at the school. (Span Dep. at 74:3–23; SOF ¶ 25; CSOF ¶ 25.)
6 Plaintiff does not address whether this action “fell within the scope of the EEOC’s actual
investigation or an EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636
(9th Cir. 2002). Therefore, it is unclear whether this action is properly within the ambit of
this Court’s review. Still, the Court will view this evidence in the light most favorable to
Plaintiff and draw all reasonable inferences in his favor. Torres, 648 F.3d at 1123.
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This conclusory allegation, without more, is insufficient to defeat a motion for summary
judgment. Taylor, 880 F.2d at 1045.
Plaintiff also asserts that the way his Internal Complaint was handled amounts to
circumstantial evidence of discriminatory intent based on his race. From Plaintiff’s
perspective, his internal complaint should have included an interview of Plaintiff, been
investigated by a third-party, and formally closed. (Resp. at 14–15.) Even assuming that
the investigation was insufficient, Plaintiff’s own evidence refutes the presence of
discriminatory intent. That evidence includes copies of the finalized, third-party
investigation reports of his African American colleagues’ complaints, which are the kind
of investigation that Plaintiff believes should have been afforded to him. (Docs. 75-6, 76-
1.) It cannot be inferred from these facts that the College’s insufficient investigation of
Plaintiff’s Internal Complaint was more likely than not based on his race. Gay, 694 F.2d at
538.
In sum, evidence of the College’s actions, which include its selection of the Division
for a new program, “secret investigation” of Plaintiff, and inadequate investigation of
Plaintiff’s Internal Complaint, do not give rise to a reasonable inference of unlawful
discrimination even when combined with the background evidence of Plaintiff’s
colleague’s lawsuits against the College. After viewing this evidence in a light most
favorable to Plaintiff and drawing all reasonable inferences in his favor, Torres, 648 F.3d
at 1123, Plaintiff cannot establish a prima facie case of disparate treatment and Defendant
is entitled to summary judgment on this claim.
B. Retaliation
Plaintiff brings a claim of retaliation under Title VII, 42 U.S.C. § 2000e-3, alleging
that Defendant retaliated against him after notifying College leadership about alleged racial
discrimination. (Compl. ¶¶ 44–48.) Under the retaliation provision of Title VII, “an
employer may not take action against an employee for bringing or aiding a Title VII
charge.” Muldrow, 601 U.S. at 357 (citing 42 U.S.C. § 2000e-3). This provision “applies
only when the retaliatory action is materially adverse, meaning that it causes significant
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harm.” Id. (citation and quotation marks omitted). This standard is intended “to capture
those (and only those) employer actions serious enough to dissuade[ ] a reasonable worker
from making or supporting a charge of discrimination . . . If an action causes less serious
harm . . . it will not deter Title VII enforcement; and if it will not deter Title VII
enforcement, it falls outside the purposes of the ban on retaliation.” Id. (internal citation
and quotation marks omitted.)
Parties may evoke the McDonnell Douglas burden-shifting framework to establish
a prima facia case of retaliation. See Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782,
784 (9th Cir. 1986). The McDonnell Douglas framework requires a plaintiff to show (1)
that he engaged in protected activity; (2) that his employer subjected him to an adverse
employment action; and (3) a causal link between the protected activity and the adverse
action. Ray, 217 F.3d at 1240. If the plaintiff makes such a showing, the burden shifts to
the defendant to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. And if the defendant does so, the burden shifts back to the plaintiff
to show that the defendant’s proffered reason was pretext for a discriminatory motive. Id.
Here, both parties evoke the McDonnell Douglas framework. (MSJ at 14–15; Resp.
at 18–19.) Defendant does not dispute that Plaintiff engaged in a protected activity when
he filed his Internal Complaint, or when he discussed his concerns about the “Brown
Division” issue with the President during their meeting. (MSJ at 15.) Rather, Defendant
argues that Plaintiff cannot establish that he suffered an adverse employment action. (MSJ
at 15.) For his part, Plaintiff asserts that he suffered three adverse employment actions: (1)
“College Administrators interfered in his department and worked with his direct reports to
go around him and undercut his authority”; (2) the College “ensured assignment of his
complaint to an untrained investigator”; and (3) the College failed to completely investigate
his internal complaint, “making it a practical impossibility for him to be promoted to a dean
position without a special exception allowing him to report to someone other than Vice
President Gilliland.” (Resp. at 19.)
. . .
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“Not every employment decision amounts to an adverse employment action,” and
“only non-trivial employment actions that would deter reasonable employees from
complaining about Title VII violations will constitute actionable retaliation.” Brooks v.
City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000); see also Ray, 217 F.3d at 1243 (“[A]n
action is cognizable as an adverse employment action if it is reasonably likely to deter
employees from engaging in protected activity.”). The Ninth Circuit “take[s] an expansive
view of the type of actions that can be considered adverse employment actions.” Id. at
1241. “Termination, negative employment references, undeserved negative performance
reviews, and denial of promotions qualify as adverse employment actions.” Foraker v.
Apollo Grp., Inc., 427 F. Supp. 2d 936, 941 (D. Ariz. 2006).
Plaintiff cites to Chuang v. University of Cal. Davis, 225 F.3d 1115 (9th Cir. 2000),
for the proposition that “actions that impair an employee’s ability to satisfactorily perform
their jobs, as well as actions that impede an employee’s ability to advance in their career”
are adverse employment actions. (Resp. at 19.) In Chuang, the plaintiff made several
requests to be promoted into a position, and was even promised that he would receive that
position once it became available. Id. at 1124. That position became available numerous
times over many years, but each time it was given to someone else. Id. at 1125. During this
time, the employer forcibly relocated the plaintiff’s laboratory, which disrupted his
research and resulted in research grants being withheld and experimental subjects being
lost. Id. at 1125–26.
The employment actions discussed in Chuang are markedly different from those
identified by Plaintiff here. Unlike the plaintiff in Chuang whose work was directly
disrupted by the employer’s interference in relocating his laboratory, Plaintiff’s purported
work disruption (e.g., staff “going around him” and undermining his authority) occurred
before the College’s interference with his Division. (SOF ¶ 19; CSOF ¶ 19; Doc. 75-6 at
6.) Plaintiff was also not promised and subsequently denied a promotion like the plaintiff
in Chuang. Rather, Plaintiff voluntarily withdrew his application after the College would
not make “a special exception” for him to report to someone other than the Vice President.
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(Resp. at 19; Span Decl. ¶¶ 34–38.) Plaintiff offers no evidence or testimony that the
College represented to him that he would receive a deanship, or that the College had made
the exception requested by Plaintiff for others but not for him. Plaintiff also produces
nothing more than his opinion that the College was required to obtain a third-party
company to investigate his Internal Complaint rather than handle it internally.
Aside from citing Chuang, Plaintiff does not elucidate how these three purported
employment actions deterred him—or would have deterred other reasonable employees—
from engaging in a protected activity. See Muldrow, 601 U.S. at 357–58 (discussing
deterrence as a critical element of a retaliation claim). The record indicates that Plaintiff
was not deterred at all. He voiced his concerns about the College’s involvement in his
Division multiple times (Span Decl. ¶¶ 17, 19, 22), immediately expressed his discontent
to the Vice President about Dr. Baroi’s November 29, 2021 email (Doc. 77-2 at 2),
promptly filed his Internal Complaint (SOF ¶¶ 37–40; CSOF ¶¶ 37–40), made public
statements about his grievances with the College (Doc. 77-7), filed his EEOC Charge
without noting any remark or action by the College to obstruct or dissuade him, and applied
to two deanships7 in the time that his Internal Complaint was pending.
For the sake of argument, even if these three employment actions are adverse,
Plaintiff fails to set forth evidence supporting the third McDonnell Douglas element. First,
he broadly refers to his history of advocacy at the College and the fact that he “supervised—
and ultimately supported—multiple African American employees” as protected activities.
(Resp. at 19.) Plaintiff’s advocacy-related activities varied in type and occurred over
several years even before he became the Division Chair (Span Decl. ¶¶ 9–10), which makes
it impractical for the Court to infer with any level of clarity a causal relationship between
those general activities and the employment actions that began in Fall 2021.
Assuming that the protected activity was the filing of Plaintiff’s Internal
Complaint—which is the only activity Plaintiff mentioned in his EEOC Charge (Doc. 78-
7 Plaintiff separately applied to a deanship that reported to a different vice president within
the College and was denied that position. (Span Decl. ¶ 38.) But Plaintiff does not assert
that this denial was due to disparate treatment or retaliation, so the Court will not analyze
it as such.
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6)—Plaintiff does not identify a causal relationship between that activity and any one of
the employment actions he listed. Instead, Plaintiff advises the Court that it “need not labor
over the third factor: Dr. Span has cited to ample evidence to permit a jury to find a causal
relationship between his protected activity and CAC’s retaliatory conduct,” but does not
point out which evidence does so. And while temporal proximity is the customary
circumstantial evidence a party uses to establish a prima facie case of causation for
retaliation claims, Bell v. Clackamas Cnty., 341 F.3d 858, 865–66 (9th Cir. 2003), Plaintiff
does not allude to time as a relevant index at all. “The Court need not ‘comb the record’
looking for other evidence,” New Leaf Publ'g, Inc., 2025 U.S. Dist. LEXIS 208363, at *5,
so it ends the inquiry here given Plaintiff’s failure to meaningfully set forth his evidence
supporting the third McDonnell Douglas element.
IV. CONCLUSION
Even viewing the evidence in a light most favorable to Plaintiff and drawing all
reasonable inferences in his favor, Torres, 648 F.3d at 1123, Plaintiff fails to establish a
prima facie case of disparate treatment or retaliation under Title VII. Accordingly, the
Court will enter summary judgment on Plaintiff’s claims in favor of Defendant.
IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary
Judgment (Doc. 63).
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in
Defendant’s favor and close this case.
Dated this 19th day of November, 2025.
Honorable John J. Tuchi
United States District Judge
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