Roberson v. County of Kern et al
Filing
38
MEMORANDUM, DECISION RE: Defendant's Motion for Summary Judgment against Jonathan Pierro 74 , Signed by Judge Oliver W. Wanger United States District Court Judge. (Kusamura, W)
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2
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:08-cv-01062-OWW-GSA
JAMES LEWIS, et al.,
9
MEMORANDUM DECISION RE:
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AGAINST JAMES LEWIS
(Doc. 75)
Plaintiffs,
10
v.
11
12
CITY OF FRESNO, et al.,
Defendants.
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I. INTRODUCTION.
James Lewis (“Plaintiff”) proceeds with an action against the
City of Fresno (“the City”), Jerry Dyer (“Dyer”), Robert Nevarez
(“Nevarez”), John Romo (“Romo”), Greg Garner (“Garner”), Anthony
Martinez (“Martinez”), and multiple Doe defendants.
Plaintiff
filed a first amended complaint (“FAC”) on September 23, 2009.
(Doc. 45).
The City, Dyer, Nevarez, and Romo filed a motion for summary
judgment against Plaintiff on May 10, 2011.
(Doc. 75).
Plaintiff
filed opposition to the motion for summary judgment on June 6,
2011.
(Doc. 81).
II. FACTUAL BACKGROUND.
Plaintiff has been employed as a peace officer with the Fresno
Police Department (“Department”) since 1986.
28
1
In 2006, Plaintiff
1
held the rank of sergeant with the Department.
2
In January 2006, John Romo (“Romo”) was a sergeant with the
3
Department and was the supervising officer for the Department’s
4
Duty
5
prohibiting personnel from outside the Duty Office from reviewing
6
records relevant to overtime assignments.
7
Office.
Romo
issued
a
memorandum
on
January
21,
2006
On February 21, 2006, Plaintiff complained to Captain Lydia
8
Carrasco
that
he
believed
Romo
was
assigning
overtime
9
disparate manner and discriminating against Plaintiff.
in
a
Plaintiff
10
further complained that Romo was restricting Plaintiff’s access to
11
information regarding overtime assignments.
12
On March 1, 2006, the Fresno Police Officer’s Association
13
(“FPOA”) issued a memorandum stating that it would pursue an
14
informal grievance against Romo on Plaintiff’s behalf for alleged
15
disparate treatment in violation of the Department’s Standing
16
Orders 2.4.8 and 2.5.1.
17
response to the FPOA memorandum in which the Department agreed to
18
form a committee to draft a recommendation for a new overtime
19
policy.
On May 19, 2006, the Department issued a
Plaintiff was assigned to serve on the committee.
20
On July 8, 2006, Plaintiff went to the Duty Office to view
21
records related to overtime assignments and to obtain a copy of the
22
January 21, 2006 Romo memorandum.
23
Officer Barajas that Romo’s memorandum was void and ordered Barajas
24
to permit him to view the overtime records.
25
Plaintiff was subsequently investigated by Internal Affairs for
26
allege
27
conflicting orders and disciplined.
28
///
violations
of
Department
2
Plaintiff instructed Duty
policy
Barajas complied.
related
to
giving
III. LEGAL STANDARD.
1
2
Summary
judgment/adjudication
is
appropriate
when
"the
3
pleadings, the discovery and disclosure materials on file, and any
4
affidavits show that there is no genuine issue as to any material
5
fact and that the movant is entitled to judgment as a matter of
6
law." Fed. R. Civ. P. 56(c). The movant "always bears the initial
7
responsibility of informing the district court of the basis for its
8
motion,
9
depositions, answers to interrogatories, and admissions on file,
10
together with the affidavits, if any, which it believes demonstrate
11
the absence of a genuine issue of material fact." Celotex Corp. v.
12
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
13
(1986) (internal quotation marks omitted).
and
identifying
those
portions
of
the
pleadings,
14
Where the movant will have the burden of proof on an issue at
15
trial, it must "affirmatively demonstrate that no reasonable trier
16
of fact could find other than for the moving party."
17
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
18
respect to an issue as to which the non-moving party will have the
19
burden of proof, the movant "can prevail merely by pointing out
20
that there is an absence of evidence to support the nonmoving
21
party's case." Soremekun, 509 F.3d at 984.
Soremekun v.
With
22
When a motion for summary judgment is properly made and
23
supported, the non-movant cannot defeat the motion by resting upon
24
the
25
"non-moving party must set forth, by affidavit or as otherwise
26
provided in Rule 56, 'specific facts showing that there is a
27
genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting
28
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct.
allegations
or
denials
of
3
its
own
pleading,
rather
the
1
2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or
2
a mere scintilla of evidence in his favor are both insufficient to
3
withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929
4
(9th Cir. 2009). "[A] non-movant must show a genuine issue of
5
material fact by presenting affirmative evidence from which a jury
6
could find in his favor." Id. (emphasis in original). "[S]ummary
7
judgment will not lie if [a] dispute about a material fact is
8
'genuine,' that is, if the evidence is such that a reasonable jury
9
could return a verdict for the nonmoving party."
Anderson, 477
10
U.S. at 248. In determining whether a genuine dispute exists, a
11
district court does not make credibility determinations; rather,
12
the
13
justifiable inferences are to be drawn in his favor." Id. at 255.
14
IV. DISCUSSION.
15
16
"evidence
of
the
non-movant
is
to
be
believed,
and
all
A. FEHA Claim
California’s Fair Employment and Housing Act (“FEHA”) affords
17
California
employees
broad
protection
against
discrimination,
18
harassment, and retaliation on any of a wide range of impermissible
19
bases.
20
Cal. 4th 88, 105 (Cal. 2008).
21
a racial discrimination claim based on disparate assignment of
22
overtime
23
Department’s disciplinary action against Plaintiff for his July 8,
24
2006 conduct.
McDonald v. Antelope Valley Community College Dist., 45
hours;
and
(2)
The FAC asserts two FEHA claims: (1)
a
retaliation
claim
based
on
the
25
1. Statute of Limitations
26
Employees who believe they have been discriminated against
27
generally
have
one
year
in
which
28
complaint with California’s Department of Fair Employment and
4
to
file
an
administrative
1
Housing
2
California’s Fair Employment and Housing Act (“FEHA”).
3
45 Cal. 4th at 105 (citing Cal. Gov. Code 12960(d)). Exhaustion of
4
FEHA’s administrative remedy is mandatory; an employee may not
5
proceed in court with a FEHA claim without first obtaining a
6
right-to-sue letter from the DFEH.
7
8
9
10
11
12
13
14
15
16
17
18
(“DFEH”),
the
agency
charged
with
administering
McDonald,
Id.
The governing statute of limitations for FEHA’s administrative
process provides in part:
No [DFEH] complaint may be filed after the expiration of
one year from the date upon which the alleged unlawful
practice or refusal to cooperate occurred … .” It then
identifies four exceptions: (1) a 90-day extension in
instances of delayed discovery of the unlawful practice;
(2) a one-year extension in certain instances of delayed
discovery of the identity of the actual employer; (3) a
one-to-three-year extension for Ralph Hate Crimes Act
(Civ. Code, § 51.7) violations in cases of delayed
discovery of the perpetrator's identity; and (4) an
extension to one year after an aggrieved party achieves
the age of majority if the misconduct occurred while the
party was a minor (§ 12960, subd. (d)(1)–(4)). We discern
in this provision no basis for limiting the application
of equitable tolling.
Id. at 106-07.
Defendants contend that Plaintiff failed to file his DFEH
19
complaint within the one year proscribed by section 12960(d).
20
Defendants note that paragraph 17 of the FAC alleges that Plaintiff
21
first raised concerns to Captain Lydia Carassco about Romo’s
22
disparate assignment of overtime and restrictions on overtime
23
information on February 21, 2006.
24
did not file his DFEH complaint until May 21, 2007, one year and
25
three months later.
26
It is undisputed that Plaintiff
Plaintiff contends that his DFEH complaint was timely under
27
the continuing violation doctrine.
28
violation doctrine, an employer is liable for actions that take
5
Under California’s continuing
1
place
2
sufficiently linked to unlawful conduct that occurred within the
3
limitations period.
4
4th 1028, 1057 (Cal. Ct. App. 2005).
5
doctrine
6
temporally related and continuous course of conduct; “discrete
7
discriminatory acts are not actionable if time-barred, even when
8
they are related to acts alleged in timely filed charges.”
9
1058, 1057.
10
outside
the
applies
Plaintiff
limitations
period
if
these
actions
are
E.g., Yanowitz v. L'Oreal USA, Inc., 36 Cal.
where
contends
alleged
that
The continuing violation
discrimination
the
is
discriminatory
based
on
a
Id. at
conduct
he
11
complains of continued until May 2007, although Plaintiff does not
12
specifically identify any discriminatory conduct related to the
13
assignment of overtime and access to overtime records occurring
14
after
15
discrimination claim alleged in Plaintiff’s DFEH complaint is
16
enforcement of the Romo memo against Plaintiff during his visit to
17
the duty office on July 8, 2006.
18
part of the continuous course of conduct underlying Plaintiff’s
19
DFEH complaint, because an important component of Plaintiff’s
20
discrimination claim is that access to overtime information was
21
restricted in order to facilitate the discriminatory assignment of
22
overtime hours.
23
continuing violation doctrine, as it was filed within one year of
24
the July 8, 2006 incident-- an occurrence that was part of a
25
continuous course of conduct allegedly designed to perpetuate the
2006.
Nevertheless,
a
key
event
underlying
the
The July 8 incident is undeniably
Plaintiff’s DFEH complaint was timely under the
26
27
28
6
1
discrimination Plaintiff complains of.1
2
Finally,
as
noted
motion
to
in
the
dismiss,
Memorandum
FEHA’s
Decision
limitations
denying
3
Defendant’s
period
is
4
equitably tolled “while the employee and employer pursue resolution
5
of any grievance through an internal administrative procedure.”
6
McDonald, 45 Cal. 4th at 108.
7
tolling for the time period during which he was pursuing his
8
petition for writ of mandamus concerning the disciplinary action
9
taken against him.
Plaintiff is entitled to equitable
Plaintiff is also entitled to tolling for the
10
time period during which he was pursuing an his grievance through
11
the FPOA.
12
in
13
Defendants’ motion to dismiss Plaintiffs’ FEHA claims as time
14
barred is DENIED.
which
McDonald, 45 Cal. 4th at 108 (tolling applied for period
informal
grievance
was
pursued
with
employer).
15
2. Discrimination Claim
16
FEHA makes it an “unlawful employment practice” for any
17
employer “because of the race…to discriminate against the person in
18
compensation or in terms, conditions, or privileges of employment.”
19
Cal. Gov. Code, § 12940(a).
20
employment discrimination are (1) the employee's membership in a
The elements of a FEHA claim for
21
22
23
24
25
26
27
1
Plaintiff also contends he did not have reason to know of the alleged
discrimination until commencement of the Internal Affairs investigation.
Plaintiff maintains that the Internal Affairs investigation first put Plaintiff
on notice that he had been treated differently from other sergeants who had
attempted to view the duty logs and back orders; Plaintiff does not explain why
he believed this disparate treatment was motivated by racial discrimination.
None of the evidence cited by Plaintiff in his Separate Statement or Response to
Defendant’s separate statement concerning facts revealed in the Internal Affairs
investigation suggest that racial animus motivated the conduct complained of.
(Exhibits 9, 11, and 27 to Church Decl.). Rather, Plaintiff’s argument is based
on his representation that, when he learned he was treated differently from other
sergeants who had requested access to overtime information, he believed it was
because he was African American.
28
7
1
classification protected by the statute; (2) discriminatory animus
2
on the part of the employer toward members of that classification;
3
(3) an action by the employer adverse to the employee's interests;
4
(4) a causal link between the discriminatory animus and the adverse
5
action; (5) damage to the employee, and (6) a causal link between
6
the adverse action and the damage.
7
Inc., 165 Cal. App. 4th 686, 713 (Cal. Ct. App. 2008).
8
FEHA's
discrimination
Mamou v. Trendwest Resorts,
provision
addresses
only
explicit
9
changes in the “terms, conditions, or privileges of employment.”
10
Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (Cal. 2010) (citing
11
(§ 12940(a)).
12
employer, the institution or corporation itself must have taken
13
some official action with respect to the employee, such as hiring,
14
firing, failing to promote, adverse job assignment, significant
15
change
16
action.
in
In the case of an institutional or corporate
compensation
or
benefits,
or
official
disciplinary
Id.
17
Plaintiff’s discrimination claim under FEHA is predicated on
18
three actions taken against him that he contends were racially
19
motivated: (1) denial of overtime opportunities to Plaintiff; (2)
20
denial
21
disciplinary action taken against Plaintiff for his conduct on July
22
8, 2006.
23
of alleged racism occurring prior to 2006, but none of these
24
incidents are related to Romo or other actors involved in the
25
conduct giving rise to the claims asserted in the FAC.2
of
access
to
(FAC at 8-9).
overtime
records
to
Plaintiff;
and
(3)
The FAC also recounts sporadic incidents
26
2
27
28
For example, Plaintiff alleges that: (1) in 2001, Chief Dyer was photographed
holding a noose; (2) in the 1990's, an officer displayed a Hitler poster in his
office
and
the
Department
responded
with
a
memo
cautioning
against
“inappropriate” items at work but did not treat the incident as a “race or hate
8
1
Defendants contend that Plaintiff’s FEHA claim is subject to
2
summary judgment because Plaintiff presents no evidence that the
3
conduct he complains of was motivated by racial animus.
4
contends that
5
similarly-situated officers provides circumstantial evidence of
6
racial discrimination.
the
fact
that
he was
treated
Plaintiff
differently
than
a. Overtime Assignments and Access to Records
7
8
Defendants submit that Romo’s overtime assignments were
9
motivated by his personal friendships with the patrol sergeants who
10
received
11
Undisputed Material Fact (“DMUF”) No. 3).
12
Defendants’ contention.
13
differently from non-African American sergeants at the department,
14
and
15
Plaintiff contends that non-African American sergeants were allowed
16
to access overtime records notwithstanding Romo’s memorandum, while
17
Plaintiff was not, causing Plaintiff to “conclude that Romo was
18
racially biased against him.”
19
DMUF No. 3).
20
his contention that Romo’s actions were racially motivated:
that
preferential
such
treatment.
treatment
(Defendants
Statement
of
Plaintiff disputes
Plaintiff avers that he was treated
is
based
on
racism.
Specifically,
(Doc. 81, Plaintiff’s Response to
Plaintiff cites the following evidence in support of
21
22
23
24
25
26
27
crime”; (3) an African American officer was tested for steroids while at the
Police Academy, but other officers capable of bench-pressing 500 lbs. have not
been tested; (4) one unit within the department was, at one time, almost entirely
comprised of Hispanic officers; (5) an African American officer involved in a
shooting was required to return to patrol, whereas white officers were not; (6)
the Department started a program to recruit Southeast Asian officers, but not
African Americans; (7) Chief Dyer has referred to African American’s as “those
people”; (8) higher ranking African American officers are not treated with the
same respect as their peers; and (9) there are positions which no African
American has held at the Department such as homicide sergeant, SWAT sergeant, and
motors sergeant.
(Opposition at 6-7).
These allegations relate to whether a
racially hostile work environment existed and whether policy makers had notice
of racial animus in the workplace that was permitted to operate.
28
9
1
2
3
4
5
6
Church Declaration,
Exhibit 1, 02/21/06 Lewis email to FPOA;
Exhibit 7, Snow RT 27:12-22, 29:15-24, 30:3-31:5 33:3-11,
45:15-19, 55:1-7;
Exhibit 9, Lewis RT 89:17-94:1
Exhibit 11, Lewis IA RT 22:3-15; 24:5-19; 32:25-33:25
Exhibit 27, 03/01/06 Informal Grievance
(Id.).
Exhibit
1
to
Ms.
Church’s
declaration
is
an
email
from
7
Plaintiff to Lydia Carrasco sent on February 21, 2006.
8
February 21 email to Carrasco, Plaintiff complained that Sergeant
9
Hodge was receiving special treatment in obtaining overtime hours
10
due to his relationship with Romo; it provides no evidence that
11
Romo’s conduct was racially motivated, only that he received
12
special treatment and was not African-American.
13
In his
Exhibit 7 to Ms. Church’s declaration consists of excerpts
14
from the deposition of Sergeant Garry Snow.
15
deposition testimony supports an inference that Plaintiff was
16
treated differently on account of his race.
17
Snow’s deposition indicates that other sergeants were also denied
18
access to overtime records, and that Snow believed Plaintiff was
19
singled out for disciplinary action after the June 8, 2006 incident
20
because
21
overtime allocation practices.
22
Plaintiff
caused
the
Department
to
Nothing in Snow’s
To the contrary,
scrutinize
Romo’s
Exhibit 9 to Ms Church’s declaration consists of excerpts from
23
Plaintiff’s deposition.
In response to a question from Defense
24
counsel asking Plaintiff to explain why he felt there were “racial
25
concerns” raised by information disclosed during the Internal
26
Affairs investigation, Plaintiff responded that he inferred from
27
the “essence and the tones” of certain written communications
28
attached to the Internal Affairs report regarding the June 8, 2006
10
1
incident that there was “some animosity or something going on.”
2
(Doc. 81-6, Ex. 9 at 89-90).
3
deposition that Romo’s memorandum restricting access to overtime
4
records
5
sergeants.”
6
acts of racial discrimination by Romo.
7
was
not
enforced
Plaintiff also stated in his
against
other
“similarly-situated
Plaintiff’s deposition does not specifically identify
Exhibit 11 to Ms. Church’s declaration contains excerpts from
8
statements
made
during
9
portions of Exhibit 11 cited by Plaintiff to oppose DUMF No. 3
Snow’s
the
statements
Internal
that
Affairs
Plaintiff
interview.
was
being
The
10
recount
treated
11
differently than other sergeants.
12
the Internal Affairs interview mentions or supports an inference of
13
racial animus.
14
his mind “the only reason” for Romo’s disparate treatment of
15
Plaintiff
with
respect
16
personnel
issue
that
17
challenged the way [sic] business was done on overtime.” (Doc. 81-
18
6, Ex. 11 at 22).
19
Exhibit
However, nothing Snow said in
To the contrary, Snow’s statements reveal that, in
27
to
to
accessing
somebody
Ms.
is
Church’s
overtime
upset
records
because
declaration
is
was
they’ve
the
“a
been
informal
20
grievance form Plaintiff filed on February 21, 2006 regarding
21
Romo’s assignment of overtime.
22
racial
23
supports an inference that Romo’s alleged misconduct was racially
24
motivated.
25
discrimination,
Plaintiff
has
no
and
The grievance does not allege
nothing
direct
alleged
evidence
in
that
the
Romo’s
grievance
overtime
26
assignments were motivated by racial animus.
27
lacks direct evidence of discriminatory intent, he may rely on the
28
McDonnell Douglas framework to overcome summary judgment.
11
Although Plaintiff
See,
1
e.g., Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (Cal.
2
2000).
3
4
5
6
7
California has adopted the three-stage burden-shifting
test established by the United States Supreme Court for
trying
claims
of
discrimination...This
so-called
McDonnell Douglas test reflects the principle that direct
evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially.
Thus, by successive steps of increasingly narrow focus,
the test allows discrimination to be inferred from facts
that create a reasonable likelihood of bias and are not
satisfactorily explained.
8
9
10
11
12
13
14
15
16
17
18
...[T]he McDonnell Douglas test places on the plaintiff
the initial burden to establish a prima facie case of
discrimination. This step is designed to eliminate at
the outset the most patently meritless claims, as where
the plaintiff is not a member of the protected class or
was clearly unqualified, or where the job he sought was
withdrawn and never filled. While the plaintiff's prima
facie burden is "not onerous,” he must at least show "
'actions taken by the employer from which one can infer,
if such actions remain unexplained, that it is more
likely than not that such actions were "based on a
[prohibited] discriminatory criterion.”
...Generally, the plaintiff must provide evidence that
(1) he was a member of a protected class, (2) he was
qualified for the position he sought or was performing
competently in the position he held, (3) he suffered an
adverse employment action, such as termination, demotion,
or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.
19
Id. (citations omitted, emphasis added).
20
Plaintiff satisfies the first element of the McDonald Douglas
21
framework, as he is African American and a member of a protected
22
class.
Plaintiff also satisfies the adverse action element, as it
23
is undisputed he was denied access to overtime opportunities.
24
Plaintiff
presents
no
evidence
to
establish
Romo’s
overtime
25
assignments were motivated by racial discrimination, however.
26
Plaintiff bases his claim of racial discrimination on alleged
27
disparate treatment.
As an initial matter, the extent to which
28
12
1
Plaintiff was treated differently from similarly-situated sergeants
2
is
3
including non-African American officers, were injured by, and
4
complained about, Romo's disparate assignment of overtime.
5
is no evidence that Plaintiff was treated more harshly than these
6
other disadvantaged officers with respect to the amount of overtime
7
they were assigned.
8
“consistently enforced” against him, while other sergeants were
9
permitted access to overtime records notwithstanding the Romo memo.
10
Plaintiff’s evidence does not establish how many times the Romo
11
memo was enforced against him as opposed to other officers.
unclear.
It
is
undisputed
that
other
patrol
sergeants,
There
Plaintiff contends that Romo’s memo was only
12
According to the FAC, Plaintiff sent an email to Captain
13
Carrasco on February 21, 2006 complaining that Romo’s memo “was
14
expired
15
Plaintiff.”
16
concerning enforcement of the Romo memo against Plaintiff concerns
17
the July 8, 2006 incident in which Plaintiff was ultimately granted
18
access to the overtime records.
19
FAC and
20
opposition to summary judgment, it appears Plaintiff only attempted
21
to access records on two occasions after the issuance of Romo’s
22
memo and was only denied access once. The record demonstrates that
23
other officers were also denied access to overtime records pursuant
24
to Romo’s memo.
25
Barajas Dec. at 2).
and
the
that
its
continued
(FAC at 4).
enforcement
was
limited
to
The only other allegation in the FAC
arguments and
Based on the allegations of the
evidence
advanced
by
Plaintiff
in
(Doc. 75-7, Mana Dep. RT at 51); (Doc. 75-13,
26
Assuming arguendo that Plaintiff was treated differently from
27
some of his peers, there is no evidence such disparate treatment
28
was racially motivated.
Barajas, the officer working in the duty
13
1
office during Plaintiff’s July 8, 2006 visit, has submitted a
2
statement under penalty of perjury which indicates that his attempt
3
to enforce the Romo memorandum during the July 8 incident was not
4
based on racial discrimination, and that he has never observed any
5
duty office policies discriminating against officers on the basis
6
of race or ethnicity.
7
statement belies Plaintiff’s speculative contention that Romo’s
8
memorandum was selectively enforced against him, only, on the basis
9
of his race.
(Doc. 75-13, Barajas Dec. at 2).
Barajas’
Plaintiff’s supposition that enforcement of Romo’s
10
memorandum against him was based on racially discriminatory motives
11
is not supported by evidence that gives rise to an inference of
12
race-based discrimination.
13
Although intent is ordinarily a question of fact for the jury,
14
and although “very little” evidence is required to create a triable
15
issue of fact as to an employer’s motive, Plaintiff does not
16
present any evidence that either Romo’s overtime assignments or
17
enforcement of the Romo memorandum were racially motivated.
18
Rather, the most plausible interpretation of the evidence is that
19
Romo favored “other sergeants.”
20
others were not African-American.
21
Plaintiff
was
22
officers
does
23
discriminatory intent.
24
25
26
27
28
allegedly
not
treated
create
a
It must be inferred that the
Without more, the fact that
differently
triable
issue
from
of
some
fact
select
regarding
As one district court has reasoned:
Although courts have found that "proof of discriminatory
motive . . . can in some situations be inferred from the
mere fact of differences in treatment," International
Brotherhood of Teamsters v. United States, 431 U.S. 324,
335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843. (1977); see
also Sischo-Nownejad v. Merced Community College Dist.,
934 F.2d 1104, 1112 (9th Cir. 1991) (quoting same),
Plaintiff has neither demonstrated that he was treated
differently from those similarly situated nor provided
14
1
corroborating evidence of discrimination that, in
previous cases, has supported the inference that a
defendant acted from discriminatory motives. See, e.g.,
Freeman, [125 F.3d 723, 738 n.6 (9th Cir. 1997)](noting
that abusive epithets may be evidence of intentional
discrimination); Sischo-Nownejad, 934 F.2d at 1112 ("The
fact that stereotyped remarks were made by [Plaintiff's]
superiors at the same time they were subjecting her to
less favorable working conditions is sufficient to raise
an inference of discriminatory intent."). In this case,
there is no evidence of discriminatory treatment or
discriminatory motive.
2
3
4
5
6
7
Sutton v. Stewart, 22 F. Supp. 2d 1097, 1108 (D. Arizona 1998)
8
(emphasis added).
9
In essence, the only evidence Plaintiff offers in support of
10
his contention that Romo’s actions were racially motivated is the
11
fact is that Plaintiff is an African American and was treated
12
differently from some non-African American officers; this evidence
13
is insufficient absent any corroborating evidence of racial animus
14
or otherwise suggesting discriminatory intent.3 See, e.g., id. To
15
hold otherwise would be to countenance a standard under which any
16
disparate action taken against a member of a protected class is
17
presumed discriminatory because of the complaining party’s race.
18
Plaintiff’s opposition to the motion for summary judgment presents
19
no direct evidence of discriminatory motive and does not satisfy
20
the McDonald Douglas framework for establishing a triable issue of
21
fact.
Defendants motion for summary judgment on Plaintiff’s FEHA
claim
for
22
racial
discrimination
is
GRANTED
with
respect
to
23
assignment of overtime hours and access to overtime records.
24
///
25
///
26
27
3
28
There is no nexus between the sporadic incidents of racism Plaintiff alleges,
such as an officer displaying a Hilter poster in the 1990's, and Romo's conduct.
15
b. Disciplinary Action
1
2
The
FAC
alleges
that
“the
Department’s
initiation
and
3
prosecution of disciplinary action related to Plaintiff’s July 8,
4
2006 conduct was...racially motivated.”
5
undisputed that the Deputy Chief of Police for the Department,
6
Robert Nevarez, authorized the Internal Affairs investigation and
7
ensuing disciplinary action against Plaintiff after receiving a
8
complaint
regarding
9
incident.
(Doc. 75-12, Nevarez Decl. at 1).
Lewis’
conduct
(FAC at 8).
during
the
July
It is
8,
2006
Nevarez directed the
10
Commander of the Southwest District, Captain Greg Garner, to
11
conduct the Internal Affairs investigation.
12
evidence that either Nevarez or Garner’s actions was motivated by
13
racial animus.
14
Plaintiff presents no
Plaintiff contends that Romo and Lt. Brogdon “instigated” the
15
Internal
Affairs
investigation
against
him.
Plaintiff
cites
16
Exhibits 4, 7, and 21 to Ms. Church’s declaration in support of
17
this contention. (Doc. 81-1, Plaintiff’s Response to DUMF No. 15).
18
Exhibit 4 is a Memorandum to Captain Garner from Anthony Martinez
19
which indicates that Brogdon forwarded an email to Martinez from
20
Barajas documenting the July 8, 2006 incident.
21
Memorandum, Martinez recommended that Plaintiff “be interviewed for
22
potential violation of Department policy.”
23
excerpts of the deposition testimony of Snow.
24
Snow’s deposition cited by Plaintiff, Snow recounts his belief that
25
Romo had caused a complaint to be filed regarding the July 8, 2006
26
incident because he was upset Plaintiff made his initial overtime
27
grievance against Romo.
28
foundation for Snow’s belief.
At the end of the
Exhibit 7 provides
In the portions of
Snow’s testimony does not provide the
Finally, Exhibit 21 is an email
16
1
exchange between Romo and Barajas regarding the July 8 incident.
2
Exhibits 4, 7, and 21 do not suggest that Romo and Brogdon
3
instigated Nevarez’s decision to authorize the Internal Affairs
4
Investigation.
5
Romo and
6
Martinez of the July 8 incident.
7
to Garner.
8
ultimate decision to initiate the Internal Affairs investigation.
To the contrary, these exhibits only reflect that
Brogdon
followed the
chain
of
command
by
informing
Martinez then relayed the facts
Garner, in turn, notified Nevarez, who made the
9
There is no evidence that Romo was motivated by racial animus.
10
Nor does Plaintiff present any evidence that Brogdon was motivated
11
by racial discrimination. Even assuming arguendo Romo and Brodgdon
12
harbored racial animus when they reported the July 8 incident to
13
Martinez, there is no sufficient causal link between any animus
14
harbored by Romo and Brogdon and Nevarez’s ultimate decision to
15
order the Internal Affairs investigation.
16
recognizes
17
innocence of a decision maker does not bar discrimination claims if
18
the decision maker acted as a mere conduit of another’s prejudice,
19
see, e.g., Reid v. Google, Inc., 50 Cal. 4th 512, 542 (Cal. Ct.
20
App. 2010), the cat’s paw doctrine applies where the party accused
21
of discrimination was a “direct and important participant” in the
22
decision making process, see DeJung v. Superior Court, 169 Cal.
23
App. 4th 533, 552 (Cal. Ct. App. 2008); accord Reeves v. Safeway
24
Stores, Inc., 121 Cal. App. 4th 95, 116 n.14 (Cal. Ct. App.
25
2004)(“Imputation of retaliatory animus will be justified by any
26
set of facts that would permit a jury to find that an intermediary,
27
for whatever reasons, simply carried out the will of the actuator,
28
rather than breaking the chain of causation by taking a truly
the
“cat’s
paw”
doctrine,
17
Although California
pursuant
to
which
the
1
independent action”).
2
were involved at all in Nevarez’s decision; they merely reported
3
the incident, and the information worked its way up the chain of
4
command to Nevarez.
5
irritated about being called to account and made complaints about
6
his accuser, either defensively or to direct attnetion from his
7
conduct by playing “the blame game.” It was not racially motivated.
8
Plaintiff
also
There is no evidence that Romo or Brodgon
The most likely explanation is that Romo was
advances
the
conclusory
assertion
that
9
“similarly situated non-African American officers would not have
10
been subject to an IA investigation for the same conduct” for which
11
Plaintiff was disciplined.
Plaintiff provides no evidence in
12
support of this contention.
Plaintiff alleges that “Snow visited
13
the Duty office on a regular basis and was not denied access and
14
Romo...did not seek disciplinary action [against Snow].” (Doc. 81-
15
1,
16
Plaintiff, Snow did not issue any conflicting orders and was not
17
“similarly situated.”
18
overtime records but rather for issuing an order to Barajas that
19
conflicted with Romo’s order.4
20
situated officer who was not disciplined for engaging in the
21
conduct for which Plaintiff was disciplined.
Plaintiff’s
Response
to
DUMF
No.
17).
However,
unlike
Plaintiff was not disciplined for accessing
Plaintiff points to no similarly-
22
There is no evidence that the Department’s initiation and
23
prosecution of disciplinary action related to Plaintiff’s July 8,
24
25
26
27
28
4
Whether Plaintiff’s order conflicted with a valid, extant order from Romo is
disputed, but immaterial. Plaintiff contends Romo’s memo had expired and was no
longer a valid order. Even assuming Plaintiff’s position is correct, Plaintiff
was not similarly situated to officers granted access to the overtime records,
such as Snow, because those officers had not issued an arguably conflicting
order, which prompted the investigation and disciplinary action against
Plaintiff.
18
1
2006
conduct
was
racially
motivated.
Summary
judgment
on
2
Plaintiff’s FEHA claim arising out of the disciplinary action is
3
GRANTED.
4
3. Retaliation Claim
5
In order to establish a prima facie case of retaliation under
6
FEHA, a plaintiff must show (1) he or she engaged in a “protected
7
activity,” (2) the employer subjected the employee to an adverse
8
employment action, and (3) a causal link existed between the
9
protected activity and the employer's action.
Yanowitz, 36 Cal.
10
4th
Internal
11
investigation and subsequent disciplinary action taken against him
12
were in retaliation for his February 21, 2006 email to Carrasco and
13
his filing of the March 1, 2006 informal grievance. (Opposition at
14
12).
15
“grievance was based upon a violation of policy; not race.”
16
(Opposition at 15).
at
1142.
However,
Plaintiff
Plaintiff
contends
that
represents
the
that
his
March
Affairs
1,
2006
17
According to Plaintiff’s opposition, he first began to believe
18
that the disparate treatment regarding overtime assignments and
19
access to overtime records was racially motivated during the
20
Internal Affairs investigation, which was not initiated until
21
August 2006, several months after his email to Carrasco and his
22
filing of the informal grievance.
23
that both his email to Carrasco and informal grievance were based
24
on violations of Department policy, not race, establish that
25
neither constituted protected activities under FEHA.
In order to
26
constitute
“must
27
alerted his employer to his belief that discrimination, not merely
28
unfair personnel treatment, had occurred.”
protected
activity,
Plaintiff’s judicial admissions
Plaintiffs’ conduct
19
have
Mayfield v. Sara Lee
1
Corp., 2005 U.S. Dist. LEXIS 42458 *23 (N.D. Cal. 2005) (citing
2
Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987)
3
(finding
4
protected activity) and Barber v. CSX Distrib. Servs., 68 F.3d 694,
5
701-702 (3rd Cir. 1995) (finding employee complaint regarding
6
promotion decision not protected activity)); accord Lanagan v.
7
Santa Cruz County Metro Transit Dist., 2010 U.S. Dist. LEXIS 43413
8
* 16 (N.D. Cal. 2010) (report of co-employee’s negligence “not
9
protected activity [under FEHA] because it has nothing to do with
10
the FEHA's prohibitions”); Timmons v. UPS, 2007 U.S. Dist. LEXIS
11
57761 * 18 n. 10 (E.D. Cal. 2007) reversed in part on other grounds
12
by 310 Fed. Appx. 973 (9th Cir. 2009)(“alleged retaliation for
13
safety concerns [plaintiff] raised...not protected activity under
14
FEHA or ADA, as those statutes do not protect such whistleblowing
15
activity”).5
employee
complaint
regarding
scheduling
change
not
16
As neither Plaintiff’s email to Carrasco nor his informal
17
grievance were protected activities under FEHA, summary judgment on
18
Plaintiff’s claim for retaliation arising out of these activities
19
must be GRANTED.6
20
B. Federal Claims
21
The FAC asserts claims under 42 U.S.C. §§ 1981, 1983, and
22
1985.
The factual basis for Plaintiff’s section 1981 claim is
23
identical to the factual basis for his FEHA claim.
(FAC at 9-10).
24
25
5
26
The factual history section of Plaintiff’s opposition alleges additional
retaliatory acts that occurred in 2009 and 2010. (Opposition at 4-5). The FAC
does not allege any FEHA claims based on these allegations.
27
6
28
The court does not condone the conduct Plaintiff complains of or the treatment
he was subjected to. However, no whistle-blower action is alleged. See Cal.
Lab. Code § 1102.5.
20
1
The factual basis for Plaintiff’s section 1985 claim is identical
2
to the basis for his FEHA retaliation claim.
3
factual
4
identical to the basis for his FEHA retaliation claim, however, the
5
section 1983 claim asserts the additional allegation that Plaintiff
6
was subjected to a hostile work environment.
basis
for
Plaintiff’s
section
(FAC at 12-13).
1983
claim
is
The
almost
(FAC at 11-12).
7
1.
1981 Claim
8
Plaintiff’s section 1981 claim is predicated on Plaintiff’s
9
allegation that: (1) Romo’s disparate assignment of overtime and
10
restricting of access to overtime records was racially motivated;
11
and (2) the initiation and prosecution of disciplinary action
12
related to Plaintiff’s July 8, 2006 conduct was retaliatory and
13
racially motivated.
14
The same summary judgment test applies in both the section
15
1981 and FEHA contexts. E.g., Lawson v. Reynolds Indus., 264 Fed.
16
Appx. 546, 549 n.2 (9th Cir. 2008) (unpublished) (citing Manatt v.
17
Bank of Am., NA, 339 F.3d 792, 801 (9th Cir. 2003)(§ 1981) and
18
Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284
19
(9th Cir. 2001) (FEHA)). Because the factual basis for Plaintiff’s
20
section
21
discrimination claim, Defendant’s motion for summary judgment on
22
Plaintiff’s section 1981 claim is GRANTED for the same reasons
23
stated
24
Francisco,
25
(unpublished) (noting that summary judgment was appopriate on both
26
FEHA claims and section 1981 claims where Plaintiff failed to
27
establish a prima facie case of discrimination).
1981
claim
above.
2011
is
See,
U.S.
the
e.g.,
App.
same
as
the
Peralta
v.
LEXIS
8383
28
21
basis
City
*2
&
for
his
County
(9th
Cir.
FEHA
of
San
2011)
1
2. Section 1985 Claim
2
To establish a § 1985(3) conspiracy claim, the plaintiff must
3
show: "(1) the existence of a conspiracy to deprive the plaintiff
4
of the equal protection of the laws; (2) an act in furtherance of
5
the conspiracy; and (3) a resulting injury."
6
F.3d 1275, 1284 (9th Cir. 1998); accord Hernandez v. City of
7
Vancouver, 277 Fed. Appx. 666, 671 (9th Cir. 2009) (unpublished)
8
(citing Scott).
Scott v. Ross, 140
9
The FAC alleges that “Dyer, Garner, Martinez, Nevarez, and
10
Romo conspired to...deny Plaintiff the exercise of his civil rights
11
to be free from discrimination.”
12
alleges
13
disciplinary action related to Plaintiff’s July 8, 2006 conduct was
14
retaliatory and racially motivated and was done in furtherance of
15
the
16
discussed
17
disciplinary
18
Plaintiff’s own judicial admissions foreclose any retaliation claim
19
based
on
the
20
complains
of
21
discrimination.
22
against for do not implicate any constitutional right.
23
judgment on Plaintiff’s section 1985 claim is GRANTED.
that
the
conspiracy
“Department’s
of
above,
and
by
he
theory
was
initiation
Defendants.”
Plaintiff
action
(FAC at 12).
presents
complains
that
the
retaliation
of
and
prosecution
(Id.).
For
no
evidence
was
racially
disciplinary
for
The FAC further
reasons
that
the
motivated.
action
objecting
of
Plaintiff
to
racial
The actions Plaintiff alleges he was retaliated
Summary
24
3. Section 1983 Claim
25
Plaintiff’s section 1983 claim alleges that “the IA unit was
26
used to retaliate against officers who complained of discrimination
27
or other unlawful conduct within the Department.”
28
For
reasons
discussed
above,
Plaintiff’s
22
(FAC at 11).
judicial
admissions
1
establish that the alleged retaliation Plaintiff complains of was
2
not based on Plaintiff’s objection to any racial discrimination.
3
Plaintiff’s section 1983 claim also appears to allege that the
4
retaliatory acts complained of created a “racially hostile work
5
environment.”
6
a hostile work environment claim based on retaliation for objecting
7
to racial discrimination, for the reasons stated above, no such
8
retaliation is shown.
9
that
suggests
(FAC at 11).
To the extent the FAC seeks to assert
Nor is there is any evidence in the record
Plaintiff
was
subjected
to
conduct
sever
and
10
pervasive enough to alter the conditions of employment. See, e.g.,
11
Manatt v. Bank of Am., 339 F.3d 792, 799 (9th Cir. 2003). Summary
12
judgment on Plaintiff’s section 1983 claim is GRANTED.
ORDER
13
14
For the reasons stated, IT IS ORDERED:
15
1) Summary judgment on Plaintiff’s FEHA claims is GRANTED;
16
2) Summary judgment on Plaintiff’s federal claims is GRANTED;
17
and
18
3) Defendants shall submit a form of order consistent with
19
this memorandum decision within five (5) days of electronic
20
service of this decision.
21
22
IT IS SO ORDERED.
23
Dated:
hkh80h
July 13, 2011
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
24
25
26
27
28
23
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