Tumbling v. Merced Irrigation District

Filing 119

ORDER ON MOTION FOR SUMMARY JUDGMENT signed by District Judge Lawrence J. O'Neill on September 27, 2010. (Lira, I)

Tumbling v. Merced Irrigation District

Doc. 119

1 2 3 4 5 6 7 8 9 10 Plaintiff, 11 12 MERCED IRRIGATION DISTRICT, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The parties have filed numerous objections to the evidence submitted by the opposing side. The court has not relied o n any of the disputed evidence to grant or to deny summary judgment. W h e r e the Court has denied summary judgment as to the claims, the Court found triable issues exist regarding the employment decisions. The Court has granted summary j u d g m e n t as to the statute of limitations because plaintiff failed to meet his burden under either claim, as explained in the body o f the order. To the extent that the court may have considered some of the disputed evidence in finding that triable issues
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

LaMONTE TUMBLING,

CASE NO. CV F 08-1801 LJO DLB ORDER ON MOTION FOR SUMMARY JUDGMENT

vs.

Defendant. _________________________________/ By notice filed on June 22, 2010, Defendant Merced Irrigation District ("MID") seeks summary judgment or in the alternative summary adjudication pursuant to Fed.R.Civ.P. 56 on plaintiff's complaint. Plaintiff LaMonte Tumbling filed an opposition to the motion on August 31, 2010. Defendant filed a reply on September 3, 2010. Thereafter, the Court requested supplemental briefing on a discovery/evidentiary issue presented in the reply papers. The parties submitted their supplemental briefs on September 21 and September 22, 2010. Pursuant to Local Rule 230(g), this matter was submitted on the pleadings without oral argument and the hearing was vacated. Having considered the moving, the opposition and the reply papers, as well as the Court's file, the Court issues the following order.1

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FACTUAL BACKGROUND Plaintiff LaMonte Tumbling has been employed by Defendant Merced Irrigation District ("MID") since 1994. For the entirety of the relevant period, plaintiff was the only African-American in the MID offices. On January 31, 2005, a new Customer Services Group was formed merging the customer service functions for the water irrigation and electrical aspects of MID. Plaintiff was promoted to the position of Supervisor of Customer Services Group. Defendant presents evidence that plaintiff had some difficulties in this supervisory position. Nonetheless, in December 20, 2005, plaintiff was awarded Supervisor of the Year. Shortly thereafter, in approximately May 2006, plaintiff was demoted to the position of Supervisor of Water Operations in the Customer Service Group. (Doc. 1 Complaint ¶32.) In this position, plaintiff was no longer supervisor of the entirety of Customer Services Group, and was responsible solely for Water Operations. Defendant presents evidence plaintiff was demoted because he was having difficulty learning the electrical aspects of the Customer Services Group. Plaintiff

presents evidence that he was adequately performing because prior to his demotion, he had never received a written reprimand, negative review or any documentation that plaintiff's performance needed improvement. Plaintiff presents evidence that, historically, MID has engaged in progressive discipline, yet plaintiff was not so disciplined or instructed on areas of improvement. When plaintiff was demoted, MID promoted a Caucasian woman, who had previously reported to plaintiff, to the position over plaintiff. She was promoted to Lead Customer Services Department Manager. (Doc. 110, Opposition p. 7.) Plaintiff alleges the woman was less qualified and paid more than he was paid. Plaintiff complained to managed about the history of favoritism toward female workers, and that plaintiff was experiencing gender and racial discrimination when he was demoted. After he complained, plaintiff contends he further was demoted. Plaintiff was demoted from his position of Supervisor of Water Operations to that of Chemical Spray Technician on June 27, 2007.

exist regarding the claims, the objections are OVERRULED. Further, the court is not obligated to consider matters not s p e c ific a lly brought to its attention. Thus, it is immaterial that helpful evidence may be located somewhere in the record. The m o tio n and opposition must designate and reference specific triable facts. Carmen v. San Francisco Unified School Dist., 2 3 7 F.3d 1026, 1029 (9th Cir. 2001).

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Plaintiff contends that the work of a Chemical Spray Technician is a field-hand work. Plaintiff alleges the following claims against defendant MID: 1) 2) 3) 4) 5) 6) 7) Race & Gender Discrimination (Title VII); Race & Gender Discrimination (FEHA); Retaliation for Protected Activity (Title VII); Retaliation for Engaging in Protected Activity (FEHA); Failure to Prevent Discrimination and Harassment (FEHA); Whistleblower (Labor Code §1102.5); and Civil Rights Act of 1866 (42 U.S. §1981, et seq.)

The Complaint alleges numerous adverse employment actions against plaintiff due to his sex, gender, race and color, which are each incorporated into each claim for relief. The major challenges to MID's conduct appear to be for the demotion to the Supervisor of Water Operations in May 2006 and the second demotion to Chemical Spray Technician on June 27, 2007 and conduct related to such demotions. The complaint alleges the following actions as discriminatory: (a) (b) (c) (d) (e) (f) (g) Deprived him of equal pay and benefits including pay already earned and due; Deprived him of pay increases; Subjected him to demotion without cause, due to gender and race considerations; Subjected him to different rules; Demoted him; Took away his supervisory responsibilities; Transferred him to a less desirable position with harsher and less prestigious work conditions; (h) (I) Disciplined him without just cause; Deprived him and other MID employees of equal treatment for all of the terms and conditions of employment for the employees of the MID; (j) Passed him over for promotion, pay and step increases and in fact subjected to reduction in position and pay without justification or basis; (k) Undercut and demeaned him as a manager and supervisor making it more difficult to 3

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secure results by holding his employees accountable. Assigned him duties and responsibilities and without paying him at the same level and rate as others similarly situated; Subjected him to instances of hostile work environment without any significant effort to prevent or remediate such hostility; and Subjected to a double standard for retention of employment, demotion, and discipline which lead to his demotion; Retaliated against him for engaging in activities protected by FEHA, Title VII, and other constitutional and statutory protections. (Doc. 1, Complaint ¶¶61, 68, 106.) ANALYSIS AND DISCUSSION Summary Judgment/Adjudication Standards F.R.Civ.P. 56(b) permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." Summary judgment/adjudication is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment/adjudication as a matter of law. F.R.Civ.P. 56( c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment/adjudication is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985). On summary judgment/adjudication, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56 ( c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970). To carry its burden of production on summary judgment/adjudication, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "[T]o carry its ultimate burden of persuasion on the motion, the moving 4

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party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103. "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, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) ("Rule 56( c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the 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.") B. DFEH/EEOC Charge is Time-barred Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on June 10, 2008. In the Charge, plaintiff alleged he was discriminated against based upon his gender, racecolor, national origin/ ancestry and was retaliated against for complaining about discrimination. (Doc. 100, Exh. 44-46 (EEOC Charge).) Defendant MID argues that Plaintiff's claims under Title VII and the Fair Employment and Housing Act ("FEHA") are time barred. MID argues that the claims under Title VII are only actionable for the 180-day period prior to his filing the EEOC complaint on June 10, 2008. Defendant argues that any challenged employment acts occurring before December 31, 2007 therefore is untimely. For plaintiff's FEHA claims, MID argues that the FEHA one year limitations period bars any challenged employment act which is alleged to have occurred before June 10, 2007. (Doc. 97, Moving papers p.13.) Plaintiff argues that a 300-day limitations period, not the 180-day period, applies for his Title VII claims. He argues the EEOC and California Department of Fair Employment and Housing 5

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("DFEH") have a work share agreement in which the EEOC charge is "constructively filed" with both agencies. (Doc 103, Opposition p. 15.) Plaintiff argues, in that situation, where a plaintiff files a claim with the EEOC, it is cross-filed and constructively received by the DFEH, and Title VII's 300-day extension applies to all claims. Plaintiff argues, therefore, he filed his complaint with the EEOC on June 10, 2008 and he is statutorily entitled to recover on acts within the 300 days preceding the June 10, 2008 file date, which is August 16, 2007, and not December 13, 2007. 1. 180-Day or 300-Day Limitation Period under Title VII

Title VII establishes two potential time limitations periods within which a plaintiff must file an administrative charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081-1082 (9th Cir. 2006). Generally, a Title VII plaintiff must file an administrative charge with the EEOC within 180 days of the last act of discrimination. Id. However, the limitations period is extended to 300 days if a plaintiff "has initially instituted proceedings with a State or local agency." 42 U.S.C. § 2000e-5(e)(1). Thus, if the plaintiff first institutes proceedings with a "State or local agency with authority to grant or seek relief from such practice," the limitations period is extended to 300 days. Id. Under Title VII, state agencies are authorized to investigate and enforce Title VII claims pursuant to "work sharing agreements" with the EEOC. 42 U.S.C. §2000e-8(b); 29 C.F.R. §1626.10( c). The California DFEH and the EEOC have such a work share agreement. See E.E.O.C. v. Dinuba Medical Clinic, 222 F.3d 580, 585 (9th Cir. 2000) (Constructive filing is made possible by "worksharing agreements," which designate the EEOC and the state agency each other's agents for the purpose of receiving charges). Charges filed with either the EEOC or the DFEH are deemed "constructively filed" with the other. 29 CFR §1626.10( c); Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1175-76 (9th Cir. 1999). These workshare agreements are intended to eliminate duplication of effort between the agencies and to provide an efficient procedure for claimants to seek redress for their grievances. See Laquaglia, 186 F.3d at 1177. Defendant argues that the extended 300-days does not apply because plaintiff failed to "initially file" with the DFEH. Defendant argues that since plaintiff "initially filed" with the EEOC, and not with the DFEH, the 180-day limitations period applies. 6

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Indeed, plaintiff, in this instant case, first filed with the EEOC on June 10, 2008. The EEOC Charge was then forwarded to the DFEH for processing and received on June 24, 2008. (See Doc. 100, Exh. 46 (DFEH complaint)). The statutory language would seem to mandate that the 180-day limitations apply because plaintiff "first filed" with the EEOC, and not with the DFEH. Pursuant to Title VII, the limitations period is extended to 300-days if plaintiff first files with the DFEH. 42 U.S.C. § 2000e-5(e)(1). Here, however, no party has cited controlling case authority which has resolved the limitations period where the plaintiff "initially files" with the EEOC, in light of the workshare agreement. MID relies merely upon the statutory language. Yet, the statute does not address where the State and the EEOC have a workshare agreement. The authorities cited by the parties involve whether a plaintiff first filed a DFEH complaint and whether the claims thus would be timely under Title VII. For instance, in Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172 (9th Cir.1999), the employee initially filed with the state agency, after the statute had run on the state claims. The Court held that the 300-day time limit for filing the federal claims applied even when the employee missed the state's filing deadline. Indeed, the court held that barring the federal claim, based on state procedural hurdles, would be "entirely at odds with the purpose of the worksharing agreement and with Title VII." Id. at 1177. See Surrell v. California Water Service Co., 518 F.3d 1097 (9th Cir. 2008) (plaintiff initially instituted proceedings within the DFEH); See Downs v. Dept. of Water and Power, 58 Cal.App.4th 1093, 1097, 68 Cal.Rptr.2d 590 (1998) ("The EEOC and the DFEH each designated the other as its agent for receiving charges and agreed to forward to the other agency copies of all charges potentially covered by the other agency's statute"). Interpreting Title VII with the longer, 300-days limitation period, in a State with a work-share agreement, fosters the remedial scheme of Title VII and the liberal construction of the statute. In enacting Title VII, Congress intended the statute's procedural requirements to be liberally construed in order to remedy discrimination in the workplace and to preserve a claimant's federal remedies in discrimination suits. See, e.g., E.E.O.C. v. Commercial Office Prods., 486 U.S. 107, 124, 108 S.Ct. 1666 (1988) ("Title VII ... is a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process."); accord Laquaglia, 186 F.3d at 1177 (Prohibiting any remedy to claimants who 7

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file discrimination complaints with an appropriate state or federal agency within the 300-day deadline is entirely at odds with the purpose of the worksharing agreement and with Title VII). For plaintiff's Title VII claims, the Court finds that the applicable limitations period is 300 days before the filing of the EEOC claims, not 180 days as argued by MID. Based on plaintiff's filing with the EEOC, and the state work share agreement, the 300 days limitations period applies. Therefore, acts preceding 300 days before the June 10, 2008 file date are barred under Title VII. 2. Statute of Limitations on the FEHA claims

California Government Code §12960(d) provides a general one year limitations period to file a complaint with the California DFEH. Cal. Gov. Code §12960(d) ("No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . ."); Romano v. Rockwell Internat., Inc., 14 Cal.4th 479, 493, 59 Cal.Rptr.2d 20, 28 (1996) (the limitations period applicable to administrative claims begins to run "after" the unlawful employment practice has "occurred.") Thus, an administrative complaint must be filed with the DFEH within one year of the date the alleged unlawful practice occurred. Here, plaintiff's June 10, 2008 EEOC charge forms the administrative charge for his FEHA claims. The DFEH was constructively filed on June 10, 2008 and the one year limitations bars any claims preceding June 10, 2007. Plaintiff's claim for title change in May 2006 to Supervisor of Water Service is time barred. Conduct occurring more than one year before the June 10, 2008 file date cannot serve as a basis for liability under the FEHA. 3. Equitable Estoppel Exception to the Statute of Limitations Does Not Apply

Plaintiff argues that MID should be equitably estopped from asserting the statute of limitations. Plaintiff argues that MID should be estopped because individual MID Board members made affirmative and misleading statements preventing plaintiff from timely filing his claims after his demotion. Plaintiff argues that following his demotion to Chemical Spray Technician on June 27, 2007, he was contacted by four Board members who told him "don't do anything" and they would reinstate him by April 2008. The MID Board members promised to get plaintiff's Supervisor's position back. Plaintiff argues he was lulled into inaction by reliance on the four MID Board of Directors' representations. Defendant argues that equitable estoppel should not apply to toll the statute of limitations. 8

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Defendants argue that the individual board members have no authority to bind MID and plaintiff unreasonably "relied" upon Board Members who had no authority to bind MID. (A) Demotion to Supervisor of Water Operations

Plaintiff's demotion to Supervisor of Water Operations is barred by the statute of limitations, regardless of his equitable estoppel argument. Plaintiff does not present evidence that any Board member contacted him regarding his demotion to Supervisor of Water Operations in April-May 2006. There is no evidence that the MID Board members urged him to refrain from action regarding his demotion from Supervisor of Customer Service to Supervisor of Water Operations (Doc. 110, Plaintiff's Statement of Facts #189-200.) Rather, plaintiff's evidence pertains to statements made by the MID Board members immediately following his demotion to Chemical Spray Technician in June 2007. Plaintiff argues that he was urged by Board Members to "not do anything" as to his demotion to Chemical Spray Technician. Therefore, since there is no evidence the MID Board made any representations to "don't do anything" for the demotion to Supervisor of Water Operations in May 2006, MID is not equitably estopped from claiming the statute of limitations has run on the claim for demotion to Supervisor of Water Operations. (B) Demotion to Chemical Spray Technician

Defendant challenges the reasonableness of plaintiff's reliance upon the statements of the MID Board Members. Defendant argues that these MID Board members did not have the authority to bind the MID with their assurance to plaintiff because the MID Board, not individual members, act on behalf of the MID through majority vote. (Doc. 97, Moving papers p. 11-12.) Plaintiff argues that the statute of limitations was "equitably tolled." Plaintiff's argument, however, is actually on based upon equitable "estoppel" because plaintiff focuses upon the wrongdoing of MID.2 (Doc. 103, Opposition p. 16.) Plaintiff argues the law does not shield MID from affirmative misrepresentations and MID should be estopped to argue the running of the statute of limitations.

Equitable estoppel focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit, w h e r e a s equitable tolling focuses on the plaintiff's excusable ignorance of the limitations period and on lack of prejudice to th e defendant. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). In his complaint, plaintiff alleges a "tolling" o f the statute of limitations because a supervisor "threatened" him in 2006. Plaintiff does not present argument or evidence o n this issue of "tolling." (See Doc. 110, Plaintiff's Opposition p. 17-18.)

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(1)

Equitable Estoppel

"Equitable estoppel focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit...." Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). "A finding of equitable estoppel rests on the consideration of a non-exhaustive list of factors, including: (1) the plaintiff's actual and reasonable reliance on the defendant's conduct or representations, (2) evidence of improper purpose on the part of the defendant, or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct, and (3) the extent to which the purposes of the limitations period have been satisfied." Id.3 "[C]onduct or representations by the defendant-employer which tend to lull the plaintiff into a false sense of security, can estop the defendant from raising the statute of limitations, on the general equitable principle that no man may take advantage of his own wrong." Atkins v. Union Pac. R.R., 685 F.2d 1146, 1149 (9th Cir.1982) (internal quotation marks and alterations omitted). The conduct plaintiff argues as the basis for equitable estoppel is as follows: Within two weeks of his demotion to Chemical Spray Operator, MID Board Members Billy Pimentel, Stan Morimoto, Gino Pedretti and Tim Pellisier contacted plaintiff. Board Members Billy Pimentel and Stan Morimoto called plaintiff at his home and told him "not to worry" and they would reinstate him to his previous Supervisor position by the end of April 2008. Both Billy Pimentel and Stan Morimoto assured plaintiff that MID would reinstate him and that he did not need "to take any action" or do anything to get his job back. Several nights later, MID Board Member Gino Pedretti called plaintiff at home and told plaintiff he would be reinstated to his prior position by the end of April 2008, and that plaintiff did not need to take any action to make this happen. Gino Pedretti told plaintiff that it looked like plaintiff had been "set up." A few nights after this call, MID Board Member Tim Pellissier called Plaintiff and told him plaintiff would be reinstated to his prior position, but not until April 2008. Mr. Pellissier told plaintiff not to take any action because the Board would fix the problem. He was told that he would get his job back "once Garith [MID general manager] was gone and he was no longer the general manager once he

Under California law, similar factors are considered to determine equitable estoppel. W h e th e r a discrimination p la in tiff who (1) diligently pursued his claim; (2) was misinformed or misled by the administrative agency responsible for p r o c e s s in g his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing him to fail to e x h a u s t his administrative remedies; and (4) was acting pro se at the time." Rodriguez v. Airborne Express, 265 F.3d 890, 9 0 1 (9th Cir. 2001) (applying Calif. law).

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retired in April of 2008." (Doc. 111, Tumbling Depo. V2, Exh. 42, 380-381.) Plaintiff was told to "hang in there." (Doc. 111, Tumbling Depo. V2, Exh. 42 p. 382-384, 386.) (2) Plaintiff's Reliance

In order to assert equitable estoppel, the plaintiff must demonstrate both actual and reasonable reliance on the defendant's conduct or representations. Santa Maria, 202 F.3d at 1176. Plaintiff's reliance upon the statements of the MID Board members was unreasonable. The individual MID Board members made the statement in June-July 2007 - with no further representations. Accepting that plaintiff relied upon these statements, means that it would be reasonable for plaintiff to rely, for nine months from July 2007 to April 2008 with no further contact, and do nothing. To sit on legal rights for nine months on representations of "hang in there," "keep your head up" is unreasonable. Regardless of whether plaintiff's alleged reliance was "reasonable," plaintiff did not actually rely upon the MID Board representations. After plaintiff was demoted to Chemical Spray Technician in June 2007, plaintiff appeared before the MID Board of Directors on November 6, 2007 to complain about discriminatory treatment. Plaintiff appeared before the Board and complained to the Board that plaintiff was being discriminated against based upon race and gender, including his demotion. (Doc. 97, Joint Statement of fact 70-71; Tumbling Depo p. 433-434.)4 Lodging a formal-type complaint patently is inconsistent with plaintiff's argument that he was "lulled" into believing the statements of defendant representatives, months earlier, not to file suit and to "hang in there." Certainly, plaintiff was not lead to sit on his rights due to the representations of the individual Board members in June 2007 because plaintiff made a complaint before the full MID Board in November 2007. Thus, plaintiff did not "actually" rely upon the representations of the MID individual board members in June 2007, such as to estop defendants from asserting the statute of limitations. The Ninth Circuit has held that "[i]f the factual context makes the non-moving party's claim implausible, then that party must come forward with

Plaintiff objects to the evidence that the formal complaint which was presented to the MID Board in closed session o n November 6, 2007. (See Doc 107, Plaintiff's objections p. 2.) The objection, however, does not go to whether plaintiff in fact complained to the Board or whether the Board heard the complaint. Plaintiff's objection goes to defendant's c h a r a c te r iz a tio n that this was plaintiff's first complaint of discrimination. Plaintiff's objection states in part, "Plaintiff lodged n u m e r o u s complaints about the racial and gender discrimination he experienced at MID with his mangers Jem Brown, Robert B lu m , and Garith Krause prior to the November 6, 2007." Accordingly, there is no disputed fact that plaintiff made a c o m p la in t to the MID Board regarding discrimination.

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more persuasive evidence than otherwise would be necessary to show that there is a genuine issue for trial." Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998) (summary judgment granted on implausible factual dispute). Here, plaintiff has not presented more persuasive evidence showing his reliance. Further, it was "unreasonable" for Plaintiff to continue to rely upon the individual Board members June 2007 statements, when five months later, plaintiff formally appeared before the MID Board to complain about discriminatory treatment on the basis of race and gender. Plaintiff knew no later than November 2007 not to "rely" upon the individual MID Board members 2007 statements. Given this factual context, there is no genuine issue of material fact that plaintiff actually and reasonably relied upon the MID Board representations. (3) No Evidence of MID's Improper Purpose

Further, there is no evidence of any improper purpose in the statements made by the MID Board members. In O'Donnell v. Vencor, Inc., 465 F.3d 1104 (9th Cir. 2006), the court denied equitable estoppel to the running of the statute of limitations on an employees's filing of a Title VII action based on the employee's reliance on the employer's filing for bankruptcy where there was no evidence "of improper purpose on employer's part, or of employer's actual or constructive knowledge of deceptive nature of its conduct." See also Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (noting that "improper purpose on the part of the defendant" is a significant factor in determining applicability of equitable estoppel). Plaintiff has not produced evidence from which a reasonable jury could conclude that the MID Board members had an improper purpose in telling plaintiff to "don't do anything." Plaintiff's evidence is that these Board members were trying to help him get his job back, and that he would probably get his job back when Garith Krause, the general manager, retired in April 2008. (Doc. 111, Tumbling Dep p. 383.) The evidence is not remotely suggestive that the MID Board members were attempting to trick plaintiff into not filing a complaint. For instance, plaintiff testified: Q. . . . The conversation you had with Stan Morimoto, he called your home, he told you to hang in there, and that he felt that this was Garith's doing, and once Garith leaves, the you'll get your job back? [Tumbling]: That is correct. (Doc. 111, Tumbling Depo. p. 383.) 12

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Plaintiff testified that he later received a call from Mr. Pedretti: Q. A. And what did Mr. Pedretti say? Basically the same thing, that the best they could do for me is possibly get me back in April when Garith was gone, and that it looks like they basically sabotaged me. . . . (Doc. 11, Tumbling Depo. 385.)

Plaintiff testified that he received similar type phone calls from 1-2 other Board members. The 6 Plaintiff's deposition testimony is not suggestive of any wrongful conduct on the Board members' part 7 in attempting to delay his filing of an EEOC claim or to trick him in any way. Accordingly, plaintiff has 8 failed to raise an issue of material fact that equitable estoppel should bar the running of the statute of 9 limitations. Therefore, the statute of limitation ran 300 days prior to the filing of the EEOC Charge for 10 the Title VII claims and one year before the Charge for the FEHA claims. 11 C. 12 Plaintiff has included a litany of alleged wrongful acts committed by MID during the course of 13 his employment. Defendants focus their challenge on the demotion to Supervisor of Water Customer 14 Service and the demotion to Chemical Spray Technician. (Doc. 97, Moving papers p.13.) To the extent 15 that any such acts occurred within the statute of limitations, the Court turns to these allegations. 16 1. 17 Title VII makes it an "unlawful employment practice for an employer . . . to fail or refuse to hire 18 or to discharge any individual, or otherwise to discriminate against any individual with respect to his 19 compensation, terms, conditions, or privileges or employment, because of such individual's race . . ." 20 42 U.S.C. §2000e et seq. A plaintiff may show violation of Title VII by proving disparate treatment or 21 disparate impact, or by proving the existence of a hostile work environment. Sischo-Nownejah v. 22 23 intentionally discriminated on the basis of disparate treatment. 24 A plaintiff may establish a prima facie case of discrimination by introducing evidence that 25 "give[s] rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 26 450 U.S. 248, 253, 101 S.Ct. 1089, 1094 (1981); Sischo-Nownejah, 934 F.2d at 1109. The evidence may 27 be either direct or circumstantial, and the amount that must be produced to create a prima facie case is 28 13 Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991). Here, plaintiff alleges he was Burden of Proof on Prima Facie Case Racial/Gender Discrimination in Promotion/Demotion under Title VII and FEHA

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"very little." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Sischo-Nownejah, 934 F.2d at 1110-1111. A plaintiffs' Title VII claim is analyzed through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this analysis, plaintiffs must first establish a prima facie case of employment discrimination. Hawn v. Executive Jet Management, Inc., - F.3d. -, 2010 WL 3218520, 3 (9th Cir. 2010). If plaintiff establishes a prima facie case, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Id. If defendant meets this burden, plaintiffs must then raise a triable issue of material fact as to whether the defendant's proffered reasons for their terminations are mere pretext for unlawful discrimination. Id. The employer's proof of legitimate, nondiscriminatory reasons for its action dispels the inference of discrimination raised by plaintiff's prima facie case. The McDonnell Douglas framework "disappears," leaving plaintiff with the ultimate burden of persuading the trier of fact that defendant intentionally discriminated against plaintiff. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000). A plaintiff can make out a prima facie case for failure to promote under Title VII by showing: (1) he is a member of a protected class, (2) he was qualified for the position and performing their jobs satisfactorily, (3) he suffered an adverse employment action, (4) the action occurred in circumstances suggesting discriminatory motive. McDonnell Douglas Corp., 411 U.S. 792, 802, 93 S.Ct. at 1824 (to establish a prima facie case of discrimination, a plaintiff must show, inter alia, that he applied and was qualified for a job). (A) Suffered an Adverse Employment Action

Defendant argues that plaintiff cannot meet his burden of proof on his prima facie case. Defendant argues plaintiff cannot show he suffered an adverse employment action. MID argues that the transfer to Chemical Spray Technician was not "an adverse employment action' because plaintiff continued to work for MID and never had reduced pay or benefits. Plaintiff argues he was demoted and while not losing pay, he is now performing manual labor in the field, and not in an office setting. Plaintiff argues his title changed from that of "supervisor" to "technician" where he is no longer manages and supervises other employees. An adverse employment action is defined broadly. Fonseca v. Sysco Food Services of Arizona, 14

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Inc., 374 F.3d 840 (9th Cir. 2004); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) ("Transfers of job duties and undeserved performance ratings, if proven, would constitute `adverse employment decisions....' "); St. John v. Employment Development Dept., 642 F.2d 273, 274 (9th Cir.1981) (a transfer to another job of the same pay and status may constitute an adverse employment action.) Here, plaintiff suffered a tangible change in working conditions that produced a material employment disadvantage. He is no longer a supervisor with oversight responsibilities and intellectual challenges of that position. While there is no direct evidence on this point, presumably his career advancement opportunities have also been adversely affected. Thus, plaintiff raises an issue of fact as to whether he has suffered an adverse employment decision. (B) Conditions Suggesting Discriminatory Motive

Defendants also argue that plaintiff cannot establish a "discriminatory motive" of the prima facie case. MID argues plaintiff was not "replaced" because no one replaced him. One person, Linda LaCava, was promoted to a newly created position above plaintiff's position and the other person, Davidson, received a promotion similar to plaintiff. Both received their promotions in May 2006. Here, plaintiff has raised issues of fact as to whether there was a discriminatory motive. Plaintiff was the first and only African-American Supervisor. Once plaintiff was in his supervisor positions, he was not supported by his then-supervisor. He presents evidence he was not provided training, undermined by subordinates at the direction of his then-supervisor, and given onerous assignments for which he was not given time to complete. Arguably, plaintiff, once promoted, was set up to fail. Further, plaintiff has presented evidence that there was some racially charged words used by supervisors at MID including some specifically referring to plaintiff. Plaintiff presents evidence that plaintiff has been referred to as a "typical black man," "boy" and possibly "nigger." (Doc. 110, Disputed fact #165186.) In addition, plaintiff presents evidence that females were treated more favorably than males. He raises an issue of fact as to whether Ms. LaCava was promoted without applying, and only females where considered for promotions. Plaintiff has presented evidence suggesting that an adverse employment action resulted from discriminatory motives. ///// 15

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2.

Articulated Legitimate Nondiscriminatory Reason

Since plaintiff can establish a prima facie case, defendant argues the next step in the McDonnell Douglas burden shifting analysis: Defendant argues that it articulates a legitimate non-discriminatory reasons for his demotion. Plaintiff was reassigned to Water Customer Supervisor because Plaintiff could not learn the electrical side of customer service. Also, his later transfer to Chemical Spray Technician was non-racial because he asked to be transferred to the field. (Doc. 97, Moving papers p. 16.) Defendant argues that plaintiff's negative attitude and requests to be transferred is a legitimate nondiscriminatory reason to transfer him. Defendant argues plaintiff has no evidence of pretext because he was hired, promoted, given raises, praised, over the years as an African-American man. (Doc.97, Moving papers p. 17.) MID has articulated a non-discriminatory reason for treating plaintiff's demotion. MID states he was demoted because plaintiff was not performing the position as management expected him to perform the job and because plaintiff requested to be transferred. Accordingly, MID has met its burden of articulating a nondiscriminatory reason. 3. Plaintiffs' Argument of Pretext

Because defendant rebutted the presumption of discrimination, the burden shifts back to plaintiff to establish that MID's stated reasons for the adverse employment action was pretext for unlawful discrimination. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996). Plaintiff may establish "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. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (citing Godwin v. Hung Wesson, Inc., 150 F.3d 1217,1220-21 (9th Cir. 1998)). Plaintiff must provide "specific, substantial evidence" that the reasons given were a pretext for discrimination. Bradley, 104 F.3d at 270. In addition, Plaintiff must establish that there was a causal connection between his protected status and the adverse employment action. Mixon v. Fair Employment and Housing Com., 192 Cal. App. 3d 1306, 1317 (1987). To oppose this motion, plaintiff must show that the "claimed factual dispute be shown to require 16

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a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona, 391 U.S. at 290. "A disparate treatment plaintiff can survive summary judgment without producing any evidence beyond that constituting his prima facie case, if that evidence raises a general issue of material fact regarding the truth of the employer's proffered reasons." Chuang, 225 F.3d at 1127 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)). If Plaintiff demonstrates through specific evidence that a genuine issue of material fact exists, defendants' summary judgment motion must be denied. In a Fed. R. Civ. P. 56 motion, however, this Court does not resolve factual issues. Chuang, 225 F.3d at 1124 (ultimate question of employment discrimination is conducted most appropriately by a factfinder, not on summary judgment). Here, the Court finds that plaintiff produced direct evidence as to his discrimination claims. There is direct evidence of possible racial animus. For instance, racially derogatory terms were used by supervisors and used to refer to plaintiff in particular. The term "nigger" has been used. Plaintiff has been referred to as a "a typical black man" by plaintiff's supervisor, Jem Brown, who had a hand in demoting plaintiff. (Doc. 111-2, Franco depo. p.31.) Plaintiff has also been referred to as "boy" and that he should have "stayed in his place." Chuang, 225 F.3d at 1128 (egregious and bigoted insult is direct evidence of discriminatory animus). Thus, plaintiff has offered direct evidence of a possible "culture" of racial animus. "With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Chuang, 225 F.3d 1115, 1128 (9th Cir. 2000). Further, plaintiff has presented indirect evidence that MID's proffered reasons for demoting plaintiff are not worthy of credence. Plaintiff presents evidence that he was performing his position as Supervisor of Customer Service and then Supervisor of Water Services adequately. Plaintiff was never given a disciplinary action, negative review or any written indication that his performance as a supervisor was lacking in any way. Plaintiff presents evidence that MID has a policy of progressive discipline and had his performance been substandard, he should have been so informed through the progressive discipline policy. Since there was no communication to plaintiff that his performance was substandard and defendant claims plaintiff was transferred based upon his substandard performance, there is evidence to enable a reasonable trier of fact to conclude that he was transferred for some other 17

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reason. Given the evidence of possible racial animus, and lack of documentary discipline, the jury could reasonably conclude that his transfer was based upon discriminatory reasons. MID argues that there is no racial animus or culture. MID argues that plaintiff has always been an African-American man, has been promoted as an African-American man, was demoted as an African-American and remains employed at MID as an African-American man. (Doc. 112, Reply p.5.) MID argues that consistent treatment of plaintiff, as an African-American, demonstrates no racial animus towards plaintiff. MID's argument, however, is a factual dispute based upon reasonable inferences a jury could make after considering the evidence. MID further argues that the "same actor" inference is applicable to this case. (Doc. 112, Reply p. 7.) MID argues that Garith Krause recommended plaintiff's promotion to Supervisor of Customer Service on February 1, 2005. (Doc. 97-2, Joint Facts, # 13, (Exh. 11)). Garith Krause approved plaintiff reassignment to Supervisor of Water Customer Service. (Doc. Joint Facts, 38.) And Garith Krause also approved the reassignment to Chemical Spray Technician. (Doc. 97-2, Joint Facts, #52.) MID argues "regardless of whether plaintiff believe Jem Brown or Robert Blum was involved in the decisions at issue, Garith Krause was involved in all three of the decisions and the same actor inference applies." (Doc. 12, Reply, p.7.) Under Title VII, where the same person both hired and fired plaintiff, and both actions occur within a short period of time, a "strong inference" arises that there was no discriminatory motive. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). The "same actor" inference also applies to cases in which plaintiff was not actually fired but merely demoted or offered less favorable job assignments. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096­1097 (9th Cir. 2005). The "same actor" inference, however, may be weakened by other evidence and is "insufficient to warrant summary judgment for the defendant if the employee has otherwise raised a genuine issue of material fact." Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573­574 (6th Cir. 2003) (en banc). Here, the evidence is unclear whether Garith Krause was the relevant decision maker for both the promotions and the demotions. MID presents evidence that Krause "approved" the employment decision, but plaintiff presents evidence, which is supported by the Personnel Action Forms, that Robert 18

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Blum and Jem Brown were involved. Garith Krause was the General Manager for MID, and presumably he would have been "involved." (Doc. 110, Tumbling decl. ¶16.) But the evidence also shows that Jem Brown was plaintiff's immediate supervisor and the possible decision maker. (Doc. 110, Tumbling decl. ¶15, 37.) As state above, there is an issue of fact as to whether Jem Brown was racially biased against plaintiff and from which a jury could conclude that he influenced the decision. The same actor inference does not warrant summary judgment where, as here, plaintiff has established a prima facie case and produced direct evidence of pretext. Compare Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir.1996)) (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "did not produce any evidence showing [her employer's] proffered reasons were pretexts for an improper discriminatory motive"); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1287 (9th Cir.2000) (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "ha[d] not cast doubt on the sincerity of [defendant's] explanation"), cert. denied, 533 U.S. 950 (2001). Accordingly, plaintiff has rebutted the same actor inference and therefore, summary judgment is denied for the race discrimination claims.5 D. Section 1981 Claim Against MID The seventh claim for relief alleges race discrimination in violation of 42 U.S.C. §1981. The Civil Rights Act of 1866 (42 U.S.C. § 1981) provides all persons of different races, ancestry or ethnic characteristics the same rights as white citizens to enforce contracts and to equal benefit of the law.6 Plaintiff alleges that he was treated less favorably in his terms and conditions of employment in various ways (15 actions are listed). (Doc. 1, Complaint ¶106.) Plaintiff challenges his demotions and treatment related to his demotion to Supervisor of Water Customer Service (Doc. 1, Complaint ¶38-40) and then his transfer and demotion and related treatment as a Chemical Spray Technician. (Doc. 1, Complaint ¶43-45.) Defendant argues that plaintiff must show that "the conduct complained of [resulted] from an

This finding of a factual dispute does not alter the Court's ruling that the 300-day statute of limitations bars claims w h i c h occurred prior to 300 days before the EEOC Charge was filed under Title VII and that the one year statute of lim ita tio n s bars claims under the FEHA.
6

5

A four year statute of limitations applies to claims for discrimination under 42 U.S.C. §1981.

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official policy or custom in order to render the municipality liable." Defendant argues there is no evidence of a "written policy of race discrimination" and no evidence of a custom or practice of race discrimination. (Doc. 97, Moving papers p.21.) Defendant argues that there is no evidence of a practice or policy of race discrimination in employment at MID. 1. Plaintiff must Show Violation was Caused by a Custom or Policy

As with claims under 42 U.S.C. § 1983, a municipality may be held liable for § 1981 claims only if the plaintiff alleges and proves that his injury resulted from a municipal policy, practice, or custom. Federation of African Am. Contrs. v. City of Oakland, 96 F.3d 1204, 1214-15 (1996) (1991 amendment to § 1981 preserves "policy or custom" requirement in suits against state actors). Like claims under §1983, no respondeat superior liability exists for § 1981 claims, and the rule articulated in Monell v. Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), applies to §1981 claims. Municipalities are answerable only for their own decisions, and cannot be held vicariously liable for the constitutional torts of their agents.7 See Federation of African Am. Contrs, 96 F.3d at 1215. A plaintiff may satisfy the principles of Monell liability by demonstrating that an "official municipal policy" of some sort caused the constitutional tort in question. A plaintiff may demonstrate a "policy" in one of three ways: (1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a "final policymaker." See, e.g., Christie v. Iopa, 176 F.3d 1231, 1235-40 (9th Cir.), cert. denied, 528 U.S. 928 (1999); see Delia v. City of Rialto, - F.3d -, 2010 WL 3504502 (9th Cir. 2010) (no established a practice, so permanent and well-settled so as to constitute a custom.) Plaintiff must prove that there is a policy, practice, or custom adopted by Defendants that led to his injuries. Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006); see also Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986) (holding that a local government entity cannot be held liable under § 1983 unless the plaintiff alleges "that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized

"To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 p la in tiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy 'amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the 'moving force behind the constitutional violation.' " Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006), (quoting M o n e ll, 436 U.S. at 690).

7

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[governmental] policy"), cert. denied, 479 U.S. 1054 (1987). (A) Express Official Policy

Plaintiff does not present evidence that the conduct at issue here was the result of an express or official policy. Plaintiff does not produce evidence of any policy, officially adopted and promulgated by the MID. In fact, the evidence reflects that Defendant has an official policy that prohibits employment discrimination, including discrimination based on sex or race. (B) Long Standing Policy or Widespread Custom or Practice

Plaintiff argues that MID has a "widespread practice" of disregarding it own employment/personnel policies. (Doc. 103, Opposition p.28.) Plaintiff argues it is the custom and practice of MID to not enforce, train or comply with its own policies that created the racial discrimination experienced by plaintiff.8 In the absence of a formal governmental policy, a plaintiff must show a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996), cert. denied, 520 U.S. 1177 (1997). The custom must be so "persistent and widespread" that it constitutes a "permanent and well settled city policy." Id. "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Id. MID argues that in a §1981 claim, plaintiff must show that the race-based discrimination he suffered as a result of an official policy or custom. MID argues that there is no evidence that the District had a practice or policy of race discrimination in employment. MID relies upon its formal non-discrimination policy, but it is well-established that the routine failure to follow a general policy can itself constitute an actionable custom. Redman v. County of San Diego, 942 F.2d 1435, 1445 (9th Cir.1991) (en banc), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117

Plaintiff argues that "[i]n violation of its Policies, MID admits it does not enforce requirements that it post job p o s itio n s , advertise job positions, actively recruit minorities and atone for past discrimination, test employees' knowledge a n d qualifications prior to hiring or promoting, conduct competitive interviews to identify qualified individuals for job spots, o b e y the Affirmative Action policy, hire relatives, or enforce the Policies regarding non-discrimination in hiring, promotion a n d employment." (Doc. 103, Opposition p. 28.)

8

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L.Ed.2d 137 (1992). A policy can be one of action or inaction. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). "The continued adherence by policymakers 'to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action--the 'deliberate indifference'--necessary to trigger municipal liability." Long, 442 F.3d at 1186. Here, plaintiff has pointed to instances of failure to follow policies which raise issues of fact that demotions and employment-related conduct were violative of his constitutional rights. Despite the MID formal policies, plaintiff has produced evidence of incidents of gender preference and possible race preference based upon routine failure to follow acceptable and formal policy. For instance, plaintiff has presented evidence that the MID management were unfamiliar with formal policies. Persons were promoted, included plaintiff, based upon criteria other than that required by promotion/demotion policies. Gillette v. Delmore, 979 F.2d 1342, 1346, 1349 (9th Cir. 1992) ("A section 1983 plaintiff may attempt to prove the existence of a custom or informal policy with evidence of repeated constitutional violations for which the errant municipal officials were not discharged or reprimanded."), cert. denied, 510 U.S. 932 (1992). Resolution of whether the MID had in existence a custom or practice of inaction to the detriment of plaintiff involves a fact-intensive analysis of evidence of the existence of the custom. At summary judgment, "[n]ormally, the question of whether a policy or custom exists would be a jury question." Trevino, 99 F.3d at 920. Thus, plaintiff's evidence concerning the apparent belief of the management that gender preference and racial comments, and disregard of contrary written policies, were acceptable provide a basis for an inference of a widespread custom. (C) Final Policymaking Authority

Plaintiff argues that liability is further premised upon a decision of a "final policymaker." Plaintiff argues Jem Brown was a "final policy maker." Jem Brown was the supervisor of the Customer Services Group and plaintiff's supervisor when he demoted plaintiff. (Doc. 103, Opposition p. 29; Doc. 110 Tumbling Decl. ¶20.) Absent a policy or custom, a municipality may still be liable for an isolated constitutional violation when the person causing the violation has "final policymaking authority." See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality) ("[O]nly those 22

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municipal officials who have `final policymaking authority' may by their actions subject the government to § 1983 liability."). MID argues that the employment decision were not made by a final policy maker. The fact that a city employee has independent decision-making power does not render him a final policymaker for purposes of municipal liability. MID argues that the final policy maker was Garith Krause. The identification of policymaking officials is a question of state law. Christie, 176 F.3d at 1235. In this case, the relevant areas of policy making are employment-related decisions, particularly demotions and promotions. Neither party has cited the relevant state law to determine who is a policy making official in personnel matters. "[T]he identification of those officials whose decisions represent the official policy of the local government unit is ... a legal question to be resolved by the [court]" before trial. Christie, 176 F.3d at 1235. "The fact that a particular official-even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable." Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 129 (1986). For purposes of Monell liability, when determining whether an individual has final policymaking authority, "we ask whether he or she has authority in a particular area, or on a particular issue." McMillian v. Monroe County, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (emphasis added). For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the District. For example, in Jett v. Dallas Indep. Sch. Dist., the plaintiff contended that he was transferred because of his race. In determining whether a school district superintendent was a final policymaker, the Court focused on the question of whether the superintendent "possessed final policymaking authority in the area of employee transfers." 491 U.S. 701, 738, 109 S.Ct. 2702; see Christie, 176 F.3d at 1236-37 (to determine whether an official is a final policymaker, "courts consider whether the official's discretionary decisions are `constrained by policies not of that official's making' and whether the official's decisions are `subject to review by the municipality's authorized policymakers.' ") Plaintiff argues that Jem Brown admits he is a policy maker for the Customer Services 23

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Department. Plaintiff argues that Manager Jem brown had primary oversight and supervisory control of the Customer Services Group. Plaintiff argues that General Manager Garith Krause testified that he delegated control over the Customer Service Group to Jem Brown and that he had policy making decisions over the Group. Plaintiff's argument, however, equates Jem Brown's final decisionmaking authority with that of final policymaking authority on behalf of MID. "If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability." City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 484 & n. 12, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Plaintiff has not offered evidence that Jem Brown was a policy maker, as opposed to a decision maker. See Gillette v. Delmore, 979 F.2d 1342, 1350 (9th Cir.1992)(holding that a fire chief that possessed discretionary authority to hire and fire employees was not responsible for establishing city employment policy). MID does not dispute that Jem Brown has authority to make certain employment decisions but argues that he is not a "policy maker." Indeed, plaintiff's evidence focuses upon Jem Brown's authority to make decisions, but does not point to evidence he makes employment policies for MID. This is corroborated by the evidence of the written employment actions involving plaintiff's demotions which were signed, and approved, by other individuals at MID. Plaintiff has not cited any state law which establishes that a person in Jem Brown's position is an employment policy maker for MID. Plaintiff has burden of proof of his elements. The party opposing the motion must submit evidence sufficient to establish the elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Here, plaintiff has the burden of proof that the employment decision was the result of a final policymaker. Plaintiff's evidence does not show that Jem Brown is a policy maker, as opposed to a decision maker. Plaintiff has failed to carry his burden by either citing state law under which Jem Brown may be considered a policy maker, or by producing evidence in which Jem Brown made policy decisions. 4. Issues of Fact for §1981 Claim

The Ninth Circuit applies the same analytical framework for §1981 claim as a Title VII claim. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir.1987) (applying Title VII standards to a 42 24

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U.S.C. § 1981 claim). The "crux" of disparate treatment claims is "the elusive factual question of intentional discrimination." Mustafa v. Clark County School Dist., 157 F.3d 1169, 1180 (9th Cir. 1998). "[B]ecause of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact." Because the Court has found a factual question as to the claims of discrimination under Title VII, the claim under §1981 likewise raises issues of fact. E. Retaliation Claim Plaintiff claims that defendant violated the anti-retaliation provisions of Title VII and the California FEHA in retaliating against him for complaining about racial discrimination and gender discrimination. (Doc. 1, Complaint ¶74.) These statutes prohibit employers from taking adverse actions against employees who complain about discrimination in the work place. Title VII provides that it is an: unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter, . . . 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, "[t]he plaintiff must show (1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision." E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir.1989); see Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 476, 4 Cal.Rptr.2d 522 (1992)). The legal standard for a retaliation claim is the same under Title VII and the FEHA. Surrel v. California Water Serv. Co., 518 F.3d 1097, 1107 (9th Cir. 2008). Under the burden-shifting scheme of Title VII and the FEHA, after the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory explanation for the adverse employment action. Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001). If the employer rebuts the inference of retaliation, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible retaliation. Winarto, 274 F.3d at 1284. Pretext may be shown either (1)