Malou v. Upward Projects Holdings LLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Juba Malou,
Plaintiff,
v.
Upward Projects Holdings LLC,
Defendant.
No. CV-25-00195-PHX-DLR
ORDER
Plaintiff Juba Malou accuses Defendant Upward Projects Holdings, LLC (“UP”) of
violating Title VII of the Civil Rights Act of 1964 by discriminating against him based on
his race, color, and national origin. Before the Court are the parties’ cross-motions for
summary judgment. (Docs. 44, 47.) The motions are fully briefed. (Doc. 50, 52.) For the
following reasons, Malou’s motion is denied, and UP’s motion is granted.
I. Background
Malou is a Black, African American male, from South Sudan. (Doc. 1 ¶ 43.) UP
hired Malou as Senior Payroll Manager on November 9, 2023. (Doc. 1 ¶ 9.) At a
performance review on March 24, 2024, Malou’s performance was rated 2.28 out of 5.
(Doc. 44-3 at 46–54.) UP subsequently issued Malou a Performance Improvement Plan
(“PIP”) on April 18, 2024. (Doc. 44-4 at 2–4.) UP then terminated Malou’s employment
on April 23, 2024. (Doc. 1 ¶ 40.) Malou brought suit in January 2025 alleging one count
of discrimination and one count of retaliation under Title VII. (Doc. 1.)
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II. Motions for Summary Judgment
A. Legal Standard
Summary judgment is appropriate when there is no genuine dispute as to any
material fact and, viewing those facts in a light most favorable to the non-moving party,
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is
material if it might affect the outcome of the case, and a dispute is genuine if a reasonable
jury could find for the non-moving party based on the competing evidence. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment may also be entered
“against a party who 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment “bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of [the record],
if any, which it believes demonstrate the absence of a genuine issue of material fact.” Id.
at 323 (quotation omitted). The burden then shifts to the non-movant to establish the
existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do
more than simply show that there is some metaphysical doubt as to the material facts” it
must “come forward with specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)
(internal quotation and citation omitted). “If the nonmoving party fails to produce enough
evidence to create a genuine issue of material fact, the moving party wins the motion for
summary judgment.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies. Inc., 210
F.3d. 1099, 1103 (9th Cir. 2000).
In considering a motion for summary judgment, the court must regard as true the
non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary
material. Anderson, 477 U.S. at 255. However, the non-moving 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
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(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 summary judgment motion cannot be defeated by relying solely on conclusory
allegations unsupported by factual data.” (citation omitted)).
B. Analysis
1. Discrimination Claim
One way a plaintiff can establish discrimination is to “produce direct or
circumstantial evidence demonstrating that a discriminatory reason ‘more likely than not
motivated’ the employer.” Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 691 (9th Cir.
2017) (quotation omitted).
In the alternative, a plaintiff may establish a prima facie case of race discrimination
by satisfying the elements from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). To do so, a plaintiff must show that “(1) [he] belongs to a protected class, (2) he
was performing according to his employer’s legitimate expectations, (3) he suffered an
adverse employment action, and (4) similarly situated employees were treated more
favorably, or other circumstances surrounding the adverse employment action give rise to
an inference of discrimination.” Reynaga, 847 F.3d at 691. “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.”
Davis v. Team Elec. Co., 520 F.3d 1080, 1090 (9th Cir. 2008) (quotation omitted).
Once a plaintiff makes out a prima facie case, the burden shifts to the defendant to
provide a legitimate, non-discriminatory reason for the adverse employment action.
Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). If the employer can do
so, the burden shifts back to the plaintiff to establish that the employer’s reasoning is
pretext for discrimination. Id. A plaintiff can prove pretext in two ways: (1) “indirectly, by
showing that the employer’s proffered explanation is ‘unworthy of credence’” because it
is internally inconsistent or otherwise not believable, or (2) directly, by showing that
unlawful discrimination more likely motivated the employer. Chuang v. Univ. of Cal.
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Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (quotation omitted).
Malou cannot establish a prima facie case of discrimination. The parties do not
dispute that Malou belongs to a protected class or that he suffered an adverse employment
action. Malou, however, has not shown that he was performing according to his employer’s
expectations and UP has shown that he was not. Additionally, Malou has identified no
similarly situated employees that were treated more favorably.
There is no genuine dispute that Malou was not performing according to UP’s
legitimate expectations of a Senior Payroll Manager. Malou’s coworkers repeatedly
complained about his performance. (Doc. 44-3 at 14, 18, 32.) There are numerous
documented instances of Malou’s significant errors. (Doc. 44-2 at 67–68; Doc. 44-3 at 2–
3, 5–11.) As a result, Malou received an overall low score on his performance evaluation,
2.28 out 5 (Doc. 44-3 at 46–54), and was put on a PIP (Doc. 44-4 at 2–4). Malou then
refused to comply with that PIP. (Doc. 44-4 at 6–8, 10.) Malou has proffered no supporting
evidence that creates a genuine issue of material fact as to whether he was performing
according to UP’s legitimate expectations. His briefing is interspersed with assertions that
his performance was acceptable, but this is insufficient to carry his burden to establish a
prima facia case of discrimination. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270
(9th Cir. 1996) (noting that “an employee’s subjective personal judgments of [his]
competence alone do not raise a genuine issue of material fact”). Thus Malou, has not
established a prima facie case of discrimination
Even if Malou had done so, UP has provided a legitimate, non-discriminatory reason
for Malou’s termination and Malou has not established that the UP’s reasoning is pretext.
UP asserts that Malou was terminated because of his poor performance and
insubordination. This is sufficient. Hogan v. Henderson, 102 F. Supp. 2d 1180, 1194 (D.
Ariz. 2000) (“Poor employee performance is the quintessential legitimate,
nondiscriminatory reason explaining an adverse employment action.”).
Moreover, UP benefits from the same actor inference. “[W]here the same actor is
responsible for both the hiring and the firing of a discrimination plaintiff, and both actions
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occur within a short period of time, a strong inference arises that there was no
discriminatory action.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir.
2005) (quoting Bradley, 104 F.3d at 270–71). “[A]n employer’s initial willingness to hire
the employee-plaintiff is strong evidence that the employer is not biased against the
protected class to which the employee belongs.” Id. Here, Anoop Mathew, UP’s Chief
Financial Officer, and Sam Foos, UP’s Chief People Officer, made the decision to hire
Malou and also made the decision to fire him. (Doc. 44-2 ¶¶ 2, 7, 12, 40 (Mathew
declaration)). This is additional evidence that UP’s actions were not discriminatory or
pretextual. See Schechner v. KPIX-TV, 686 F.3d 1018, 1027 (9th Cir. 2012) (“In light of
the same-actor inference, we conclude that [plaintiffs] failed to present sufficient evidence
of pretext to survive summary judgment.”).
Because Malou has produced no evidence of intentional discrimination, and UP’s
evidence demonstrates that Malou was dismissed because of his professional performance,
UP is entitled to judgment on this claim.
2. Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show “that he
undertook a protected activity under Title VII, his employer subjected him to an adverse
employment action, and there is a causal link between those two events.” Vasquez, 349
F.3d at 646. “[O]nly 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). Like in the
discrimination context, if a plaintiff establishes a prima facie case, the burden then shifts
to the defendant to proffer a legitimate, nonretaliatory reason for any adverse employment
action taken. Reynaga, 847 F.3d at 693. If a defendant meets this burden, then the plaintiff
has the ultimate burden of showing that the defendant’s proffered reasons are pretextual.
Id.
Even if Malou could establish a prima facie case of retaliation, his claim would still
fail. Like for the discrimination claim above, UP has provided a legitimate, non-retaliatory
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reason for Malou’s termination and Malou has not established that the UP’s reasoning is
pretext. The analysis for the discrimination claim concerning Malou’s work performance
applies with equal force to this claim. Accordingly, UP is entitled to summary judgment
on Malou’s retaliation claim.
IT IS ORDERED that Malou’s motion for partial summary judgment (Doc. 47) is
DENIED, and UP’s motion for summary judgment (Doc. 44) is GRANTED. The Clerk
of the Court is directed to enter judgment accordingly and terminate the case.
Dated this 2nd day of June, 2026.
Douglas L. Rayes
Senior United States District Judge
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