Morgan v. Foxx

Filing 122

ORDER denying 116 Motion for certification for interlocutory appeal. See document for complete details. Signed by Judge Douglas L Rayes on 11/19/2020. (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gerald Morgan,
Plaintiff,

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ORDER

v.

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No. CV-16-04036-PHX-DLR

Anthony Foxx, et al.,

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Defendants.

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Before the Court is Plaintiff’s motion for certification for interlocutory appeal,

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which is fully briefed. (Docs. 116, 118, 120.) For the following reasons, Plaintiff’s motion

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is denied.

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I. Background

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On April 20, 2020, Defendant filed motion in limine no. 3 to bar argument that

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Plaintiff engaged in protected activity prior to September 24, 2012.

(Doc. 104.)

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Specifically, Plaintiff intended to argue that he engaged in protected activity—for which

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he was retaliated against—on August 12, 2012 by reporting to his second-line supervisor

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that he was considering filing an EEO complaint in response to a conversation that occurred

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between a fellow employee, Will Younger, and himself on July 26, 2012. During the July

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conversation, Mr. Younger, a Black man, asked Plaintiff, a White man, why he was at Mr.

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Younger’s work location, to which Plaintiff replied that it was none of Mr. Younger’s

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business. Allegedly, Mr. Younger then commented, “is that how you want to play it?” and

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walked away. Plaintiff asserted that he believed the “is that how you want to play it?”

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comment was racially discriminatory and that his August 12, 2012 complaint to his second-

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line supervisor about the behavior constituted protected activity.

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On September 30, 2020, the Court granted Defendant’s motion, thereby precluding

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Plaintiff from arguing that he engaged in protected activity prior to September 24, 2012.

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(Doc. 115.) The Court explained that, in order for a plaintiff’s behavior of engaging in

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opposition to an employer’s allegedly discriminatory practices to constitute protected

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activity, the plaintiff must hold an “objectively reasonable belief, in good faith, that the

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activity that they oppose is unlawful under Title VII.” (Id. at 2 (emphasis added) (citing

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Clark Cty. v. Breeden, 532 U.S. 268, 271 (2001); Taylor v. ScottPolar Corp., 995 F. Supp.

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1072, 1077 (D. Ariz. 1998)). Applying the facts, the Court concluded that, as a matter of

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law, “[n]o reasonable person could have believed that the Title VII race discrimination

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provision was implicated by Mr. Young’s comment.” (Id.) On October 13, 2020, Plaintiff

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filed a motion for certification for interlocutory appeal, which seeks to certify two issues:

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(1) whether “threatening to file a discrimination complaint constitute[s] the protected

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activity of opposition under Title VII” and (2) whether “the facts creating the basis of

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[Plaintiff’s] disclosure constitute a good faith belief of discrimination under Title VII.”

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(Doc. 116 at 4.) The motion is now ripe.

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II. Legal Standard

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Federal appeal courts have jurisdiction over appeals from all final decisions of the

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district courts. 28 U.S.C. § 1291. However, an appellate court may also have jurisdiction

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to hear an appeal of an otherwise non-appealable district court order in rare circumstances

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in which “a district judge . . . shall be of the opinion that such order involves a controlling

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question of law as to which there is substantial ground for difference of opinion and that

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an immediate appeal from the order may materially advance the ultimate termination of the

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litigation[.]” 28 U.S.C. § 1292(b). Section 1292(b) “is a departure from the normal rule

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that only final judgments are appealable, and therefore must be construed narrowly.”

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James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1098 n.6 (9th Cir. 2002). “While

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interlocutory appeals are available for a limited number of orders which do not finally

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determine the merits of an action, no interlocutory appeal of a pretrial ruling on the

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admissibility of evidence is available.” Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329,

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1342 (9th Cir. 1985) (citations omitted).

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III. Discussion

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Certification for interlocutory appeal is inappropriate for several reasons. To begin,

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the Ninth Circuit does not have jurisdiction to entertain Plaintiff’s challenge to the Court’s

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ruling on a motion in limine. McSherry v. City of Long Beach, 423 F.3d 1015, 1022 (9th

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Cir. 2005) (“No exception to the final decision rule of 28 U.S.C. § 1291 exists under which

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we may review the district court’s in limine ruling.”) Even if it did, the first of two issues

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that Plaintiff wants to certify—whether “threatening to file a discrimination complaint

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constitute[s] the protected activity of opposition under Title VII”—is not an issue that the

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Court addressed in its September 30, 2020 order. See Hulmes v. Honda Motor Co., 936 F.

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Supp. 195, 209 (D.N.J. 1996), aff’d 141 F. 3d 1154, cert denied, 525 U.S. 814 (1998)

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(rejecting certification where “Plaintiff [] asked th[e] court to certify for interlocutory

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appeal a question that it did not decide”). Rather, the Court discretely addressed whether,

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under the circumstances, an objectively reasonable person could have believed that Mr.

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Younger’s treatment of Plaintiff violated Title VII such that his complaints to his

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supervisor could be deemed opposition to discriminatory practices. The Court did not

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address whether merely making a statement of possible intent to file an EEO complaint, as

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opposed to filing one, constitutes protected activity.

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The second issue—whether “the facts creating the basis of [Plaintiff’s] disclosure

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constitute a good faith belief of discrimination under Title VII”—is not a question of law,

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let alone a controlling question of law, and thereby fails to meet § 1292(b)’s requirements.

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See Surf City Steel, Inc. v. Int’l Longshore & Warehouse Union, CV 14-05604-BRO (SSx),

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2016 WL 10637079, at *7 (C.D. Cal. Dec. 28, 2016) (citation omitted) (“The issue certified

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for interlocutory appeal must be ‘of the meaning of a statutory or constitutional provision,

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regulation, or common law doctrine’ rather than a reexamination of the facts or application

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of the law to the case.”); Porter v. Mabus, No. 1:07-CV-0825 AWI SMS, 2014 WL 669778,

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at *2 (E.D. Cal. Feb. 20, 2014) (citation omitted) (“The antithesis of a proper § 1292(b)

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appeal is one that turns on whether there is a genuine issue of fact, or whether the district

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court properly applied settled law to the facts.”). Here, the legal standard for determining

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whether opposition clause protection applies is well-settled. See Moyo v. Gomez, 40 F.3d

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982, 984-95 (9th Cir. 1994) (emphasis added) (protection will be accorded “whenever the

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opposition is based on a ‘reasonable belief’ that the employer has engaged in an unlawful

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employment practice.”); Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988)

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(“the opposition clause, by its terms, protects only those employees who oppose what they

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reasonably perceive as discrimination under the Act.”). Regardless, Plaintiff does not seek

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to certify a legal question, such as whether he must have possessed a reasonable belief of

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discriminatory treatment in order to qualify for opposition clause protection. Rather, he

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wishes to certify whether the facts applied to the law could support a finding that he

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possessed a good faith belief1 that he was discriminated against. Because Plaintiff does

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not intend to certify a legal question addressed by the Court’s September 30, 2020 order,

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certification is improper.

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Furthermore, Plaintiff has not established that substantial grounds for difference of

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opinion exist, failing to cite any Ninth Circuit case that challenges the objective

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reasonableness standard that applies to the opposition clause. See Matsunoki Grp., Inc. v.

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Timberwork Or., Inc., No. C 08-04078 CW, 2011 WL 940218, at *3 (N.D. Cal. Feb. 18,

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2011) (denying certification and explaining that no substantial grounds for disagreement

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were established where the certifying party had “not identified any lack of precedent within

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the Ninth Circuit [] in support of its motion for certification.”). Finally, an interlocutory

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appeal is unlikely to materially advance the ultimate termination of this litigation. On the

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contrary, certification—which, regardless of its outcome, would not significantly reduce

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the matters at issue in this case—may delay resolution. Trial has already been postponed

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twice in this matter due to guidance and restrictions set forth in the district’s general orders

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Plaintiff’s acknowledgment of the objective reasonableness requirement is
conspicuously absent.
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addressing the COVID-19 pandemic, but the matter is set to move forward on May 4, 2021.

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(Doc. 121.) It is uncertain whether the Court of Appeals could rule in less than six months

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considering the current pandemic-induced strain on the courts. Therefore, it is possible or

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even likely that certification would force the Court to reschedule the trial a third time. See

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Shurance v. Planning Control Int’l, Inc., 839 F.2d 1347, 1348 (9th Cir. 1988) (refusing to

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hear certified appeal in part because the decision of the Ninth Circuit might issue after the

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scheduled trial date). For these reasons,

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IT IS ORDERED that Plaintiff’s motion for certification for interlocutory appeal
(Doc. 116) is DENIED.
Dated this 19th day of November, 2020.

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Douglas L. Rayes
United States District Judge

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