Lewis v. City Of Fresno, et al.

Filing 105

MEMORANDUM, OPINION and ORDER GRANTING defendants' Motion for Summary Judgment against Jonathan Pierro, document 74 , on the FEHA and federal claims; defendants to lodge an order in conformity with this memorandum decision within five days of electronic service of this decision; order signed by Judge Oliver W. Wanger on 7/13/2011. (Rooney, M)

1
2
3
4
UNITED STATES DISTRICT COURT
5
EASTERN DISTRICT OF CALIFORNIA
6
7
8

1:08-cv-01062-OWW-GSA
JAMES LEWIS, et al.,

9

MEMORANDUM DECISION RE:
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AGAINST JONATHAN
PIERRO (Doc. 74)

Plaintiffs,

10
11
12

v.
CITY OF FRESNO, et al.,
Defendants.

13
14
15
16
17
18
19

I. INTRODUCTION.
Jonathan

Pierro

22
23
24
25
26
27

proceeds

with

this

action

pursuant to 42 U.S.C. 1983 and California Government Code § 12900.
Defendants filed a motion for summary judgment on May 9, 2011.
(Doc. 74). Plaintiff filed opposition on June 6, 2011. (Doc. 86).
Defendants filed a reply on June 13, 2011.

20
21

(“Plaintiff”)

(Doc. 92)

II. FACTUAL BACKGROUND.
Plaintiff is an African American police officer who previously
served as a recruit and cadet with the Fresno Police Department
(“Department”).
Plaintiff entered the Department’s Patrol Training Program
(“Program”) on January 9, 2007.

Plaintiff was supervised by Kirk

Pool (“Pool”). Brett Vestal (“Vestal”) was assigned as Plaintiff’s
training officer.

28
1

1

In March 2007, Plaintiff reported to Pool’s office at the

2

directive of Vestal.

3

Plaintiff was going to successfully complete the training program

4

and suggested that Plaintiff resign and take a non-sworn position.

5

Plaintiff

6

assignment to be completed in the next 48 hours.

7

to complete the assignment.

8

not complete the homework assignment and told him to call Pool.

9

Plaintiff alleges that he called Pool in Vestal’s presence and left

declined.

Pool told Plaintiff he did not believe

Pool

gave

Plaintiff

a

written

homework

Plaintiff failed

Vestal was upset that Plaintiff did

10

a message when Pool did not answer.

11

not having called Pool.

12

Reprimand for failing to complete the homework assignment.

After

13

this

union

14

representative, sergeant James Lewis (“Lewis”), who intervened on

15

Plaintiff’s behalf and caused Plaintiff to be assigned to a new

16

training officer.

17

incident,

Plaintiff

Vestal accused Plaintiff of

Plaintiff received a Documented Oral

sought

the

assistance

of

a

Plaintiff reported to the Department’s Southeast Division in

18

May 2007 to begin training with officer Jason Jones (“Jones”).

19

Plaintiff

saw

20

Plaintiff

alleges

21

displayed a hostile attitude similar to Pool and Vestal’s.

Jones

conversing

that

Jones

with

Vestal

micro-managed

at
his

some

point.

conduct

and

22

In July 2007, Jones took Plaintiff downtown to participate in

23

an emergency board evaluation. After the evaluation, Jones relayed

24

to Plaintiff that he had scored “better than expected” on the

25

evaluation.

26

was subsequently assigned to his “sixth white training officer,”

27

Damon Kurtz (“Kurtz”).

28

was assigned to yet another training officer, Derrick Avila.

Plaintiff failed the examination, however.

(Opposition at 5).

2

Plaintiff

After Kurtz, Plaintiff
On

1

his second day under Avila, Plaintiff was demoted to Cadet II.

2

Plaintiff believed his time with Avila was the “most valuable.”

3

(Id.).

4

Plaintiff on a subsequent occasion fell asleep on duty at a

5

hospital while guarding a prisoner who was handcuffed to a hospital

6

bed.

7

after the hospital incident.

Plaintiff was allowed to resign rather than being terminated

III. LEGAL STANDARD.

8
9

Summary

judgment/adjudication

is

appropriate

when

"the

10

pleadings, the discovery and disclosure materials on file, and any

11

affidavits show that there is no genuine issue as to any material

12

fact and that the movant is entitled to judgment as a matter of

13

law." Fed. R. Civ. P. 56(c). The movant "always bears the initial

14

responsibility of informing the district court of the basis for its

15

motion,

16

depositions, answers to interrogatories, and admissions on file,

17

together with the affidavits, if any, which it believes demonstrate

18

the absence of a genuine issue of material fact." Celotex Corp. v.

19

Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265

20

(1986) (internal quotation marks omitted).

and

identifying

those

portions

of

the

pleadings,

21

Where the movant will have the burden of proof on an issue at

22

trial, it must "affirmatively demonstrate that no reasonable trier

23

of fact could find other than for the moving party."

24

Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

25

respect to an issue as to which the non-moving party will have the

26

burden of proof, the movant "can prevail merely by pointing out

27

that there is an absence of evidence to support the nonmoving

28

party's case." Soremekun, 509 F.3d at 984.
3

Soremekun v.
With

1
2

When a motion for summary judgment is properly made and

3

supported, the non-movant cannot defeat the motion by resting upon

4

the

5

"non-moving party must set forth, by affidavit or as otherwise

6

provided in Rule 56, 'specific facts showing that there is a

7

genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting

8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct.

9

2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or

10

a mere scintilla of evidence in his favor are both insufficient to

11

withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929

12

(9th Cir. 2009). "[A] non-movant must show a genuine issue of

13

material fact by presenting affirmative evidence from which a jury

14

could find in his favor." Id. (emphasis in original). "[S]ummary

15

judgment will not lie if [a] dispute about a material fact is

16

'genuine,' that is, if the evidence is such that a reasonable jury

17

could return a verdict for the nonmoving party."

18

U.S. at 248. In determining whether a genuine dispute exists, a

19

district court does not make credibility determinations; rather,

20

the

21

justifiable inferences are to be drawn in his favor." Id. at 255.

22

IV. DISCUSSION.

23

allegations

"evidence

of

or

denials

the

of

its

non-movant

is

own

to

pleading,

be

rather

the

Anderson, 477

believed,

and

all

A. FEHA Claims

24

California’s Fair Employment and Housing Act (“FEHA”) makes it

25

an “unlawful employment practice” for any employer “because of the

26

race...to discriminate against the person in compensation or in

27

terms, conditions, or privileges of employment.” Cal. Gov. Code, §

28

12940(a).

The

elements

of

a
4

FEHA

claim

for

employment

1

discrimination

are

(1)

the

employee's

membership

in

a

2

classification protected by the statute; (2) discriminatory animus

3

on the part of the employer toward members of that classification;

4

(3) an action by the employer adverse to the employee's interests;

5

(4) a causal link between the discriminatory animus and the adverse

6

action; (5) damage to the employee, and (6) a causal link between

7

the adverse action and the damage.

8

Inc., 165 Cal. App. 4th 686, 713 (Cal. Ct. App. 2008).

Mamou v. Trendwest Resorts,

1. Discrimination Claim

9
10

FEHA's

discrimination

provision

addresses

only

explicit

11

changes in the “terms, conditions, or privileges of employment.”

12

Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (Cal. 2010) (citing

13

(§ 12940(a)).

14

employer, the institution or corporation itself must have taken

15

some official action with respect to the employee, such as hiring,

16

firing, failing to promote, adverse job assignment, significant

17

change

18

action.

in

In the case of an institutional or corporate

compensation

or

benefits,

or

official

disciplinary

Id.

19

Plaintiff identifies three adverse employment actions taken

20

against him: (1) the Documented Oral Reprimand issued by Pool; (2)

21

his

22

Plaintiff provides no direct evidence that any of the adverse

23

actions he complains of were motivated by race, and does not allege

24

circumstances sufficient to support an inference of discrimination

25

under the McDonald Douglas framework, except that all but one of

26

his training officers were Caucasian.

27
28

demotion

With

to

respect

Cadet

to

II;

and

Plaintiff’s

(3)

his

forced

homework

resignation.

assignment

and

the

related Documented Oral Reprimand, it is undisputed that the non5

1

African American trainees received such assignments.

2

Plaintiff’s Response to DUMF No. 12).

3

the basis for Plaintiff’s Documented Oral Reprimand was his failure

4

to timely complete the assignment and for lack of effort, and that

5

Pool has given Documented Oral Reprimands for similar conduct on

6

other occasions to non-African American officers in training.

7

(Doc. 86-1, Plaintiff’s Response to DUMF Nos. 13, 14).1

8

provides no evidence sufficient to support a reasonable inference

9

that Pool harbored racial animus towards African Americans, or that

10

his issuance of the reprimand to Plaintiff was motivated by racial

11

discrimination. There are valid reasons for the reprimand based on

12

Plaintiff’s failure to complete the assignment.

13

(Doc. 86-1,

It is also undisputed that

Plaintiff

Pool was also responsible for Plaintiff’s demotion to Cadet

14

II.

15

does not dispute that the motivation for Pool’s decision was to

16

allow Plaintiff more time to improve and for Plaintiff to motivate

17

himself to be more successful in the training program. (Doc. 86-1,

18

Plaintiff’s Response to DUMF No. 20). There is no evidence that

19

Pool harbored racial animus toward Plaintiff.

20

evidence aside from the fact of race that support an inference of

21

racism on Pool’s part.

22

(Doc. 86-1, Plaintiff’s Response to DUMF No. 19).

Plaintiff

Nor is there any

As to Plaintiff’s forced resignation, it is undisputed that

23

Sergeant

Grove

and

Captain

24

recommended

25

Captain Belluomini offered resignation in lieu of termination as an

26

accommodation to Plaintiff. (Doc. 86-1, Plaintiff’s Response to

Plaintiff’s

Maroney,

termination

an

African-American,

from employment,

and that

27
1

28

Plaintiff lodges an evidentiary objection to DUMF No. 14 on the grounds that
it is conclusory. DUMF No. 14 is based on Pool’s testimony.

6

1

DUMF Nos. 24, 25).

The record is devoid of any evidence that any

2

of the decision makers involved in the decision to terminate

3

Plaintiff were motivated by racial discrimination.2

4

has not provided a scintilla of admissible evidence that any of the

5

adverse employment actions he complains of were motivated even in

6

part by racial discrimination, summary judgment on Plaintiff’s FEHA

7

discrimination claim is GRANTED.3

As Plaintiff

8

2. Retaliation Claim

9

In order to establish a prima facie case of retaliation under

10

FEHA, a plaintiff must show (1) he or she engaged in a "protected

11

activity," (2) the employer subjected the employee to an adverse

12

employment action, and (3) a causal link existed between the

13

protected activity and the employer's action.

14

4th at 1142.

Yanowitz, 36 Cal.

15

It is undisputed that there is no evidence that the adverse

16

employment actions Plaintiff alleges in the complaint were carried

17

out

18

complaint regarding racial discrimination. Plaintiff concedes that

19

(1) the individuals involved in the Documented Oral Reprimand were

20

not

by

individuals

aware

that

with

knowledge

Plaintiff

had

of

Plaintiff’s

complained

purported

about

racial

21
22
23
24
25
26

2

Plaintiff’s response to DUMF No. 29 avers “while [Pool, Vestal, and Jones] were
not decision-makers, their input was part of the decision making” that culminated
in the decision to terminate Plaintiff. The fact that decision makers may have
considered Pool, Vestal, and Jones’ opinions of Plaintiff’s performance in
reaching their decision to terminate Plaintiff is insufficient to render Pool,
Vestal, and Jones “direct and important participant[s]” in the decision making
process. See DeJung v. Superior Court, 169 Cal. App. 4th 533, 552 (Cal. Ct. App.
2008) (discussing “cats paw” doctrine).

3

27
28

Plaintiff contends that another officer referred to Jones and Vestal as
“Nazis;” even assuming the truth of the implication Plaintiff seeks to derive
from this hearsay statement, there is no evidence pertaining to the relevant
decision makers.

7

1

discrimination;(2) the individuals involved in Plaintiff’s transfer

2

to Police Cadet were not aware that Plaintiff had complained about

3

racial discrimination; and (3) the individuals involved in offering

4

Plaintiff the option to resign in lieu of being terminated were not

5

aware that Plaintiff had complained about racial discrimination.

6

(Doc. 86-1, Plaintiff’s Response to DUMF Nos. 33-35).

7

basis for this claim.

8

claim is GRANTED.

9

B. Federal Claims

There is no

Summary judgment on Plaintiff’s retaliation

10

Plaintiff’s opposition does not oppose any of Defendants’

11

arguments concerning entitlement to summary judgment on Plaintiff’s

12

federal claims.

13

1. Section 1981 Claim

14

Plaintiff’s section 1981 claim is predicated on Plaintiff’s

15

allegation that Defendants Pool and Dyer discriminated against

16

Plaintiff on the basis of race. (Complaint at 18).4

17

concedes Chief Dyer had no personal involvement in any alleged

18

adverse action against Plaintiff and thus has no claim against Dyer

19

under section 1981. (Doc. 86-1, Plaintiff’s Response to DUMF No.

20

1).

Plaintiff

21

The same summary judgment test applies in both the section

22

1981 and FEHA contexts. E.g., Lawson v. Reynolds Indus., 264 Fed.

23

Appx. 546, 549 n.2 (9th Cir. 2008) (unpublished) (citing Manatt v.

24

Bank of Am., NA, 339 F.3d 792, 801 (9th Cir. 2003)(§ 1981) and

25

Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284

26

(9th Cir. 2001) (FEHA)). Because the factual basis for Plaintiff’s

27
4

28

The Complaint also asserts a 1981 claim against Defendant Farmer, however,
Plaintiff voluntarily dismissed this claim on April 21, 2011. (Doc. 71).

8

1

section

2

discrimination claim, Defendant’s motion for summary judgment on

3

Plaintiff’s section 1981 claim against Dyer and Pool is GRANTED for

4

the same reasons stated above.

5

of San Francisco, 2011 U.S. App. LEXIS 8383 *2 (9th Cir. 2011)

6

(unpublished) (noting that summary judgment was appopriate on both

7

FEHA claims and section 1981 claims where Plaintiff failed to

8

establish a prima facie case of discrimination).

9

1981

claim

is

the

same

as

the

basis

for

his

FEHA

See, e.g., Peralta v. City & County

2. Section 1985 Claim

10

To establish a § 1985(3) conspiracy claim, the plaintiff must

11

show: "(1) the existence of a conspiracy to deprive the plaintiff

12

of the equal protection of the laws; (2) an act in furtherance of

13

the conspiracy; and (3) a resulting injury."

14

F.3d 1275, 1284 (9th Cir. 1998); accord Hernandez v. City of

15

Vancouver, 277 Fed. Appx. 666, 671 (9th Cir. 2009) (unpublished)

16

(citing Scott).

17

Scott v. Ross, 140

The Complaint asserts a section 1985 claim against Dyer,

18

Farmer, Pool, Vestal, and Jones.

19

claim with respect to Dyer.

20

Pool, Vestal, and Jones never made any agreement to take action

21

against Plaintiff based on his race, nor is there any evidence of

22

racial discrimination by any of these Defendants.

23

Plaintiff’s Response to DUMF No. 27).

24

concerning

25

Plaintiff’s section 1985 claim is GRANTED.

Defendants

Dyer

Plaintiff has dismissed his 1985

(Doc. 71).

and

Farmer.

It is undisputed that

(Doc. 86-1

There is no evidence
Summary

judgment

on

26

3. Section 1983 Claim

27

The complaint alleges that “initiation and prosecution of

28

disciplinary action as to Plaintiff and ultimately his termination
9

1

were violations of Plaintiff’s due process Fourteenth Amendment

2

rights.”

3

action deprives a citizen of a protected liberty or property

4

interest.

5

(9th Cir. 1998). Under the federal constitution, at-will employees

6

possess no protected property rights and therefore are not entitled

7

to due process before being terminated.

8

County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)).

9

were valid non-discriminatory reasons for Plaintiff’s termination.

10
11

Due process protections are implicated when government

See, e.g., Lawson v. Umatilla County, 139 F.3d 690, 692

Id. (citing Portman v.

Plaintiff has no viable section 1983 claim.

There

Summary judgment is

GRANTED.
ORDER

12
13

For the reasons stated, IT IS ORDERED:

14

1) Summary judgment on Plaintiff’s FEHA claims is GRANTED;

15

2) Summary judgment on Plaintiff’s federal claims is GRANTED;

16

and

17

3) Defendants shall submit a form of order consistent with

18

this memorandum decision within five (5) days of electronic

19

service of this decision.

20

IT IS SO ORDERED.

21

Dated:
hkh80h

July 13, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
10