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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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Maricopa County Community College )
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District and Lisa Hemming,
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Defendants.
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Schaun Owens,

No. CV-15-01769-PHX-SPL
ORDER

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Before the Court is Defendants’ Motion for Summary Judgment (Doc. 50). The

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motion is fully briefed, and oral argument has not been requested. As follows, the motion

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will be granted.

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On August 5, 2013, Plaintiff Schaun Owens was hired as a full-time Cosmetology

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Associate Instructor for the Maricopa Skill Center, a division of a community college

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operated by the Maricopa County Community College District (“District”). Owens

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alleges that shortly after school began that fall, her supervisor, Lisa Hemming, directed

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her to tell students that they could not speak Spanish in the student lounge, to which

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Owens responded in opposition. On February 12, 2014, Owens was terminated.

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On September 4, 2015, Owens, appearing pro se, filed a complaint initiating the

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instant action against Hemming and the District, claiming racial discrimination and

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retaliation in violation of 42 U.S.C. § 1981 (Count One), racial discrimination and

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retaliation in violation of the equal protection clause of the Fourteenth Amendment under

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42 U.S.C. § 1983 (Count Two), and retaliation in violation of her First Amendment right

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to free speech under 42 U.S.C. § 1983 (Count Three). (Doc. 1.) Defendants have moved

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for summary judgment on all three claims, arguing that there is no genuine dispute of

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material fact of discrimination or retaliation by Hemming, or municipal liability for her

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alleged conduct.

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Summary judgment is appropriate if “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). Summary judgment may also be entered “against a party who fails

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to make a showing sufficient to establish the existence of an element essential to that

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party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986).

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,

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477 U.S. at 323. If the movant carries its initial burden of production, in response, the

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non-movant “must do more than simply show that there is some metaphysical doubt as to

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the material facts,” and instead must “come forward with ‘specific facts showing that

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there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

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U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). The court views the evidence

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and draws reasonable inferences “in the light most favorable to the party opposing the

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motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, only

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disputes over facts that could affect the outcome of the suit will preclude the entry of

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summary judgment, and the disputed evidence must be “such that a reasonable jury could

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return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). See also Scott v. Harris, 550 U.S. 372, 380 (2007).

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Here, Defendants first argue that they are entitled to summary judgment on

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Owens’s racial discrimination and equal protection claims. (Doc. 50.) In her response,

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Owens does not address these claims or replies to Defendants’ arguments. Owens having

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failed to establish, must less identify, any triable dispute of material fact as to these
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claims, “Rule 56(c) mandates the entry of summary judgment” on Counts One and Two

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of the complaint. Celotex, 477 U.S. at 322. See also Jenkins v. Cty. of Riverside, 398 F.3d

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1093, 1095 n.4 (9th Cir. 2005) (claims not raised in opposition to summary judgment

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motion are abandoned).

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Second, Defendants argue that Owens has failed to show that there is a genuine

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issue of material fact as to her claim of retaliation by Hemming and municipal liability

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under Monell. In their memorandum, Defendants discuss each element of Owens’s claim

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and address the lack of evidence in the record which demonstrates that there is no triable

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issue of unconstitutional retaliation. They have filed a detailed statement of facts and

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attached supporting evidence. (Doc. 51.) Owens responds by arguing that the following

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creates a genuine issue for trial: she engaged in protected speech by “expressing her

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opinions on the illegality of Hemming’s directive to ban the Spanish language in the

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student lounge,” (Doc. 53 at 2); the decision to terminate her was motivated by her

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speech because it was only “four or five months after Ms. Owens brought to light

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Hemming[’]s unfair treatment of Spanish speaking students,” (Doc. 53 at 5); and the

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District is liable because it “made a deliberate choice to approve of and ratify Hemming’s

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numerous acts of retaliatory harassment by making the decision to remove Ms. Owens

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[from] her position, and [] allow[ed] Hemming’s harassment of Ms. Owens to continue

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for months while she was still an employee” (Doc. 53 at 6).

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Owens’s response fails to carry her burden to identify, with sufficient particularity,

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facts that create a genuine dispute necessitating trial. See Matsushita Elec. Indus. Co.,

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475 U.S. at 587. Owens’s cursory reference to vague facts in her brief, without any

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specific citation to or discussion of them, is insufficient to demonstrate that there is a

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triable dispute of fact. See Celotex, 477 U.S. at 324 (“Rule 56(e) [] requires the

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nonmoving party to go beyond the pleadings and by her own affidavits, or by the

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depositions, answers to interrogatories, and admissions on file, designate specific facts

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showing that there is a genuine issue for trial.”) (internal quotation marks omitted);

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F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997)
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(conclusory, self-serving statements in briefs lacking detailed facts and any supporting

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evidence are insufficient to create a genuine issue of material fact). Owens does not

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address or cite to any specific fact regarding the alleged “directive to ban the Spanish

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language in the student lounge,” the “opinions” or statements she made in response to

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Hemming’s conduct, when and where the protected speech occurred, the alleged

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harassing conduct, or the circumstances leading up to or surrounding her termination.

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Absent such facts, Owens fails to make a sufficient showing regarding the essential

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elements of her case which she would have to prove at trial. See Eng v. Cooley, 552 F.3d

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1062, 1070 (9th Cir. 2009).

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Indeed, Owens has not pointed to or submitted any evidence to demonstrate that

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there is a triable dispute. Owens has not filed a responsive separate statement of facts, as

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was directed in the Court’s Order and is required by the local rules. (Doc. 52.) Owens has

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not attached any documentary evidence or submitted a written declaration stating the

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factual basis that supports her claims. The unsworn allegations in the complaint are

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insufficient to create an issue of fact on summary judgment. See Lujan v. National

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Wildlife Federation, 497 U.S. 871, 888-89 (1990) (“the purpose of Rule 56 is to enable a

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party who believes there is no genuine dispute as to a specific fact essential to the other

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side’s case to demand at least one sworn averment of that fact before the lengthy process

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of litigation continues.”). And, even if Owens could defeat summary judgment by merely

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citing to the allegations in her complaint, it would not yield a different outcome in this

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case because here, she did not do so.

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Owens was provided with an ample opportunity to develop the record through

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discovery, and received sufficient notice of the requirements needed to defeat

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Defendants’ motion. See Albino v. Baca, 747 F.3d 1162, 1177 (9th Cir. 2014). Absent

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any evidence on summary judgment from Owens setting forth, with sufficient specificity,

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her version of the events that support her claims, the Court is unable to conclude that

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there is a triable dispute of fact. The Court is not required to construct arguments and

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identify the material facts in search of a genuine dispute for trial when Owens has chosen
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not to do so herself. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A

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district court does not have a duty to search for evidence that would create a factual

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dispute” and “lacks the power to act as a party’s lawyer, even for pro se litigants”);

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Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district

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court need not examine the entire file for evidence establishing a genuine issue of fact,

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where the evidence is not set forth in the opposing papers with adequate references so

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that it could conveniently be found”); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

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1996) (the district court has no responsibility on summary judgment to “scour the record

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in search of a genuine issue of triable fact”); Forsberg v. Pac. N.W. Bell Tel. Co., 840

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F.2d 1409, 1417-18 (9th Cir. 1988). Defendants are therefore also entitled to summary

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judgment on Plaintiff’s First Amendment retaliation claim in Count Three. Accordingly,

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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.

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Honorable Steven P. Logan
United States District Judge

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