Owens v. Maricopa County Community College District et al

Filing 58

ORDER: Defendants' Motion for Summary Judgment 50 is granted. The Clerk of Court shall enter judgment accordingly and terminate this action. Signed by Judge Steven P Logan on 9/29/2017. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) ) Maricopa County Community College ) ) District and Lisa Hemming, ) ) Defendants. ) Schaun Owens, No. CV-15-01769-PHX-SPL ORDER 15 Before the Court is Defendants’ Motion for Summary Judgment (Doc. 50). The 16 motion is fully briefed, and oral argument has not been requested. As follows, the motion 17 will be granted. 18 On August 5, 2013, Plaintiff Schaun Owens was hired as a full-time Cosmetology 19 Associate Instructor for the Maricopa Skill Center, a division of a community college 20 operated by the Maricopa County Community College District (“District”). Owens 21 alleges that shortly after school began that fall, her supervisor, Lisa Hemming, directed 22 her to tell students that they could not speak Spanish in the student lounge, to which 23 Owens responded in opposition. On February 12, 2014, Owens was terminated. 24 On September 4, 2015, Owens, appearing pro se, filed a complaint initiating the 25 instant action against Hemming and the District, claiming racial discrimination and 26 retaliation in violation of 42 U.S.C. § 1981 (Count One), racial discrimination and 27 retaliation in violation of the equal protection clause of the Fourteenth Amendment under 28 42 U.S.C. § 1983 (Count Two), and retaliation in violation of her First Amendment right 1 to free speech under 42 U.S.C. § 1983 (Count Three). (Doc. 1.) Defendants have moved 2 for summary judgment on all three claims, arguing that there is no genuine dispute of 3 material fact of discrimination or retaliation by Hemming, or municipal liability for her 4 alleged conduct. 5 Summary judgment is appropriate if “the movant shows that there is no genuine 6 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 7 Fed. R. Civ. P. 56(a). Summary judgment may also be entered “against a party who fails 8 to make a showing sufficient to establish the existence of an element essential to that 9 party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. 10 v. Catrett, 477 U.S. 317, 323 (1986). 11 A party seeking summary judgment “bears the initial responsibility of informing 12 the district court of the basis for its motion, and identifying those portions of [the record] 13 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 14 477 U.S. at 323. If the movant carries its initial burden of production, in response, the 15 non-movant “must do more than simply show that there is some metaphysical doubt as to 16 the material facts,” and instead must “come forward with ‘specific facts showing that 17 there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 18 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). The court views the evidence 19 and draws reasonable inferences “in the light most favorable to the party opposing the 20 motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, only 21 disputes over facts that could affect the outcome of the suit will preclude the entry of 22 summary judgment, and the disputed evidence must be “such that a reasonable jury could 23 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24 248 (1986). See also Scott v. Harris, 550 U.S. 372, 380 (2007). 25 Here, Defendants first argue that they are entitled to summary judgment on 26 Owens’s racial discrimination and equal protection claims. (Doc. 50.) In her response, 27 Owens does not address these claims or replies to Defendants’ arguments. Owens having 28 failed to establish, must less identify, any triable dispute of material fact as to these 2 1 claims, “Rule 56(c) mandates the entry of summary judgment” on Counts One and Two 2 of the complaint. Celotex, 477 U.S. at 322. See also Jenkins v. Cty. of Riverside, 398 F.3d 3 1093, 1095 n.4 (9th Cir. 2005) (claims not raised in opposition to summary judgment 4 motion are abandoned). 5 Second, Defendants argue that Owens has failed to show that there is a genuine 6 issue of material fact as to her claim of retaliation by Hemming and municipal liability 7 under Monell. In their memorandum, Defendants discuss each element of Owens’s claim 8 and address the lack of evidence in the record which demonstrates that there is no triable 9 issue of unconstitutional retaliation. They have filed a detailed statement of facts and 10 attached supporting evidence. (Doc. 51.) Owens responds by arguing that the following 11 creates a genuine issue for trial: she engaged in protected speech by “expressing her 12 opinions on the illegality of Hemming’s directive to ban the Spanish language in the 13 student lounge,” (Doc. 53 at 2); the decision to terminate her was motivated by her 14 speech because it was only “four or five months after Ms. Owens brought to light 15 Hemming[’]s unfair treatment of Spanish speaking students,” (Doc. 53 at 5); and the 16 District is liable because it “made a deliberate choice to approve of and ratify Hemming’s 17 numerous acts of retaliatory harassment by making the decision to remove Ms. Owens 18 [from] her position, and [] allow[ed] Hemming’s harassment of Ms. Owens to continue 19 for months while she was still an employee” (Doc. 53 at 6). 20 Owens’s response fails to carry her burden to identify, with sufficient particularity, 21 facts that create a genuine dispute necessitating trial. See Matsushita Elec. Indus. Co., 22 475 U.S. at 587. Owens’s cursory reference to vague facts in her brief, without any 23 specific citation to or discussion of them, is insufficient to demonstrate that there is a 24 triable dispute of fact. See Celotex, 477 U.S. at 324 (“Rule 56(e) [] requires the 25 nonmoving party to go beyond the pleadings and by her own affidavits, or by the 26 depositions, answers to interrogatories, and admissions on file, designate specific facts 27 showing that there is a genuine issue for trial.”) (internal quotation marks omitted); 28 F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) 3 1 (conclusory, self-serving statements in briefs lacking detailed facts and any supporting 2 evidence are insufficient to create a genuine issue of material fact). Owens does not 3 address or cite to any specific fact regarding the alleged “directive to ban the Spanish 4 language in the student lounge,” the “opinions” or statements she made in response to 5 Hemming’s conduct, when and where the protected speech occurred, the alleged 6 harassing conduct, or the circumstances leading up to or surrounding her termination. 7 Absent such facts, Owens fails to make a sufficient showing regarding the essential 8 elements of her case which she would have to prove at trial. See Eng v. Cooley, 552 F.3d 9 1062, 1070 (9th Cir. 2009). 10 Indeed, Owens has not pointed to or submitted any evidence to demonstrate that 11 there is a triable dispute. Owens has not filed a responsive separate statement of facts, as 12 was directed in the Court’s Order and is required by the local rules. (Doc. 52.) Owens has 13 not attached any documentary evidence or submitted a written declaration stating the 14 factual basis that supports her claims. The unsworn allegations in the complaint are 15 insufficient to create an issue of fact on summary judgment. See Lujan v. National 16 Wildlife Federation, 497 U.S. 871, 888-89 (1990) (“the purpose of Rule 56 is to enable a 17 party who believes there is no genuine dispute as to a specific fact essential to the other 18 side’s case to demand at least one sworn averment of that fact before the lengthy process 19 of litigation continues.”). And, even if Owens could defeat summary judgment by merely 20 citing to the allegations in her complaint, it would not yield a different outcome in this 21 case because here, she did not do so. 22 Owens was provided with an ample opportunity to develop the record through 23 discovery, and received sufficient notice of the requirements needed to defeat 24 Defendants’ motion. See Albino v. Baca, 747 F.3d 1162, 1177 (9th Cir. 2014). Absent 25 any evidence on summary judgment from Owens setting forth, with sufficient specificity, 26 her version of the events that support her claims, the Court is unable to conclude that 27 there is a triable dispute of fact. The Court is not required to construct arguments and 28 identify the material facts in search of a genuine dispute for trial when Owens has chosen 4 1 not to do so herself. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A 2 district court does not have a duty to search for evidence that would create a factual 3 dispute” and “lacks the power to act as a party’s lawyer, even for pro se litigants”); 4 Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district 5 court need not examine the entire file for evidence establishing a genuine issue of fact, 6 where the evidence is not set forth in the opposing papers with adequate references so 7 that it could conveniently be found”); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 8 1996) (the district court has no responsibility on summary judgment to “scour the record 9 in search of a genuine issue of triable fact”); Forsberg v. Pac. N.W. Bell Tel. Co., 840 10 F.2d 1409, 1417-18 (9th Cir. 1988). Defendants are therefore also entitled to summary 11 judgment on Plaintiff’s First Amendment retaliation claim in Count Three. Accordingly, 12 13 14 IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 50) is granted. The Clerk of Court shall enter judgment accordingly and terminate this action. Dated this 29th day of September, 2017. 15 16 Honorable Steven P. Logan United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 5

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