Goethe vs Department of Motor Vehicles

Filing 76

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 5/6/10 ORDERING the Dft's Motion for Summary Judgment, or alternatively, summary adjudication of issues, 69 is granted in part and denied in part. (Becknal, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 230(g). 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

GARY GOETHE, Plaintiff, v. STATE OF CALIFORNIA, DEPARTMENT OF MOTOR VEHICLES,

No. 2:07-cv-01945-MCE-GGH

MEMORANDUM AND ORDER

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Presently before the Court is a Motion for Summary Judgment, or alternatively, summary adjudication of issues, brought by Defendant California Department of Motor Vehicles ("Defendant"). For the reasons set forth below, the Motion will be granted in part and denied in part.1 /// ///

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BACKGROUND

On September 29, 2006, Plaintiff filed Charge of Discrimination number 555-2006-01115 ("Charge") with the Equal Employment Opportunity Commission ("EEOC"). Def.'s Undisputed Fact ("DUF") No. 1. Plaintiff checked boxes on the Charge

indicating that while he was employed by Defendant he was subject to discrimination based on "race" and "retaliation." the pertinent facts as follows in that Charge: I was hired on or about November 30, 1987. My current job title is Staff Services Manager I in the Business Consulting Group. In or about 1995, I filed a discrimination lawsuit against Respondent. Since winning my lawsuit, I have been denied numerous promotions and lateral transfers. These include: On or about March 6, 2006: Manager V, Customer Service/Technology and Manager V, Program Support Manager. On or about May 24, 2006: Manager V International Registration Plan Policy Section Manager. On or about June 15, 2006: Manager V, Revenue and Compliance Unit. All the selectees for the above positions were Caucasian. On or about August 21, 2006: Manager V, Motor Carrier Permit Policy Section Manager. The selectee for this position is Black, but she has never complained of discrimination, to my knowledge. In or about April 2006, I was denied a lateral transfer to Staff Services Manager I FOD Sacramento Headquarters Staff, Position number 438-4800-001, Bulletin number 2-06-0400. The selectee was Caucasian. I believe I have been discriminated against because my race, Black, and for engaging in protected activity. See DUF Nos. 2-5; Pl.'s Dep., 4/18/09, Ex. 15. At Plaintiff's He stated

request, the EEOC issued a Right-to-Sue Notice on August 9, 2007. /// 2

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In addition to those facts alleged in his EEOC Charge, Plaintiff avers in his Second Amended Complaint that after settling his 1995 lawsuit, he applied for 41 lateral transfers or promotional opportunities between 1998 and 2000, yielding only two interviews. (Pl.'s Second Am. Compl. ¶ 11.) Plaintiff

further contends that in November 2000, he approached his Department Director about his alleged disparate treatment. Subsequently, he was promoted to his current position. ¶ 12. Id. at

Plaintiff states that since his promotion, he has applied

for 40 additional transfers and/or promotions and has been denied. Id. at ¶ 13.

Based on these claims, Plaintiff alleges five causes of action in his Second Amended Complaint: 1) Disparate Impact Discrimination in violation of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a); 2) Disparate Treatment Discrimination in violation of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a); 3) Retaliation for Engaging in a Protected Activity in violation of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a); 4) Racial Discrimination and Retaliation in violation of 42 U.S.C. § 1981; 5) Conspiracy to Interfere with Civil Rights in violation of 42 U.S.C. § 1985. (Pl.'s Second Am. Compl. P. 5-10.) On February 25, 2010, Defendant filed its current Motion for Summary Judgment. In support of its Motion, Defendant submits

declarations of selected individuals who state that an applicant more qualified than Plaintiff received each position. /// /// 3

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STANDARD

The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. U.S. 317, 325 (1986). Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed. R. Civ. P. 56(a) ("A party Celotex Corp. v. Catrett, 477

seeking to recover upon a claim ... may ... move ... for a summary judgment in the party's favor upon all or any part thereof."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Twp. of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992). The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323 (quoting Rule 56(c)). 4

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If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way,

"before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at

251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). /// /// /// /// 5

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As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" 586-87. In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Matsushita, 475 U.S. at

Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS A. Summary Adjudication of Plaintiff's Sex Discrimination Claim is Granted.

To establish subject matter jurisdiction over a Title VII claim, a Plaintiff must have exhausted his administrative remedies by filing a timely charge with the EEOC. 42 U.S.C.

section 2000e-5(b); B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). "The administrative charge requirement

serves the important purposes of giving the charged party notice of the claim and `narrow[ing] the issues for prompt adjudication and decision.'" 6

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Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n. 325 (D.C. Cir. 1976)). The permissible scope of a Title VII civil action is limited to the scope of the administrative complaint and the EEOC investigation. B.K.B., 276 F.3d at 1100. The court "construe[s]

the language of EEOC charges `with the utmost liberality since they are made by those unschooled in the technicalities of formal pleading.'" Id. at 1100 (quoting Kaplan v. Int'l Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir. 1975)). However, "[a]llegations of discrimination not included

in plaintiff's administrative charge may not be considered by a federal court unless the new claims are `like or reasonably related' to the allegations contained in the EEOC charge." B.K.B., 276 F.3d at 1100 (quoting Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989)). With these principles in mind, we consider the claims of the Plaintiff. Here, Plaintiff failed to check the box for "sex" In the narrative portion of

discrimination in his EEOC charge.

the charge, Plaintiff explains that he was denied opportunities because he was "Black" and in retaliation for filing suit. Nothing in the charge gives Defendant any notice that a claim for sex discrimination is being made. Accordingly, Plaintiff has

failed to exhaust his administrative remedies as to any sex discrimination claim. Therefore, this Court lacks subject matter

jurisdiction to adjudicate that portion of his lawsuit. Defendant's motion for summary adjudication with respect to the alleged sex discrimination is granted. 7

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B.

Summary Adjudication for Plaintiff's Claims in Paragraphs 11 and 13 of his Second Amended Complaint is Granted.

The same analysis applied above extends to Plaintiff's claim that he applied for and did not receive 41 positions aside from the five positions, as identified in his EEOC charge, that he claims were wrongfully awarded to others between March and August of 2006. Specifically, in paragraph 11 of the Second Amended

Complaint, Plaintiff states for the first time that he "submitted no fewer than 41 job applications from 1998 to 2000 for lateral transfers or promotional opportunities. just two interviews." These efforts yielded Plaintiff

(Pl.'s Second Am. Compl. ¶ 11.)

further alleges that Plaintiff "repeatedly applied for lateral transfer and promotions within the [DMV]." Id. at ¶ 13.

Moreover, despite submitting approximately an additional 40 applications for lateral transfers or promotional opportunities after he was finally promoted in 2000, Plaintiff claims that Defendant has "consistently and systematically refused to transfer or promote" him. Id.

These two additional claims, which together identify some 81 additional instances of alleged discrimination, were not adequately raised in Plaintiff's EEOC charge. The EEOC charge

discretely refers to lost promotional opportunities in 2006 only, and nowhere alludes to dozens of other instances of claimed discrimination occurring up to six to eight years beforehand. his EEOC charge, Plaintiff specifically identified only five Manager V positions and one SSM I lateral transfer in 2006. /// 8 In

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Plaintiff has failed to exhaust his administrative remedies in attempting to substantially broaden the time and scope of the alleged discrimination against him. In the absence of that

exhaustion, this Court lacks subject matter jurisdiction over the vastly amplified charges that Plaintiff now attempts to levy in his Second Amended Complaint. Defendant's motion for summary

adjudication with respect to the additional instances of discrimination alleged in paragraphs 11 and 13 of the Second Amended Complaint is therefore granted.

C.

Summary Adjudication of Plaintiff's Claim that the DMV Denied him Five Manager Promotions because he is Black is Denied.

Under the McDonnell-Douglas test for assessing Title VII discrimination claims, the plaintiff can establish a prima facie case by showing: (1) he belonged to a protected class, (2) he was performing according to his employer's legitimate expectations (3) he suffered an adverse employment action, and (4) some indication of a discriminatory motive, such as similarly qualified individuals being treated more favorably. Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Once plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action. /// /// /// 9 McDonnell Douglas, 411 U.S. at 802-803. McDonnell

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If defendant meets its burden in that regard, the burden shifts back to plaintiff to establish that defendant's proffered reason was a pretext for discrimination. Hicks, 509 U.S. 502 (1993). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 507 (quoting See St. Mary's Honor Ctr. v.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Moreover, the "amount that must be produced in order to Sischo-Nownejad v.

create a prima facie case is very little."

Merced Comm. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991). Defendant does not take issue with Plaintiff's ability to state a prima facie case. Therefore, the burden shifts to the

Defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action. Defendant asserts it is entitled to summary judgment on Plaintiff's claim that the DMV denied him five Manager V positions based on his race because it offers legitimate nondiscriminatory reasons for not selecting Plaintiff for the positions. Defendant sets forth declarations of ten current and Each

former DMV employees involved in the selection process.

declaration details the process by those evaluators assigned a numerical value to each candidate. The declarations uniformly

articulate a nondiscriminatory reason for the fact that a candidate other than Plaintiff was selected. Some positions were

filled with applicants who had more experience, while others were selected because they were more familiar with the particular type of work encompassed within the positions at issue. 10

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Defendant DMV has also submitted the job opportunity bulletins to which Plaintiff responded, along with and the completed scoring sheets for the positions Plaintiff interviewed. This information

satisfies Defendant's obligation to present a legitimate, nondiscriminatory reason for not selecting Plaintiff under the McDonnell Douglas framework. The burden thus shifts back to the

Plaintiff to demonstrate that the reason articulated is pretextual. "A plaintiff can prove 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." Noyes v.

Kelly Services, 488 F.3d 1163, 1170 (9th Cir. 2007) (quoting Chuang v. Univ. of Cal. Davis, Bd. Of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000)). "All of the evidence [as to pretext] -

whether direct or indirect- is to be considered cumulatively." Id. (quoting Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)). Moreover, "[a] plaintiff may

discredit an employer's proffered reason by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could rationally find that reason unworthy of credence." Bowden v. Potter, 308 F. "In addition a plaintiff

Supp. 2d 1108, 1119 (N.D. Cal. 2004).

may demonstrate pretext by showing that the employer treated similarly situated employees outside the plaintiff's protected class more favorably." Id. at 1119-20. 11

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Plaintiff first rebuts the evidence offered by Defendant with statistical data. Plaintiff states that from "1987 to 2007,

there were a total of four African-American males in middle management positions out of approximately 500 middle managers" at DMV headquarters in Sacramento. (Pl.'s Opp'n to Mot. for Summ. J. 9:5-7 (citing Pl.'s Dec. ¶ 6.)). Additionally, he states that

"[o]f the five persons promoted to Manager V, four are white, and one is an African-American female." Dec. ¶ 15.). Id. at 9:14-15 (citing Pl.'s

This statistical information can and does support See, e.g., Noyes, 488 F.3d at 1173.2

an inference of pretext.

Additionally, Plaintiff alleges facts that warrant determination by a jury. Plaintiff states that he is better (Pl.'s Opp. to Mot. He contends

qualified than the five persons promoted.

for Summ. J. at 10:15 (citing Pl.'s Dec. ¶ 16-23.)).

that contrary to the declarations submitted by Defendant, he had knowledge either or superior to the individuals selected for certain Manager V positions. Id. A determination as to who is

the more qualified candidate is ultimately a factually intensive question best resolved by a jury. /// ///

The Court notes that Defendant has filed objections to certain portions of Plaintiff's declaration submitted in support of his Opposition to this Motion, including objections to the portions of that Declaration cited in both this paragraph and the next paragraph. Despite those objections, however, Plaintiff may unquestionably attest to his own perceptions and/or observations while employed at the DMV. Defendant's objections to those portions of Plaintiff's Declaration cited herein are accordingly denied. The Court need not rule on the other portions of Plaintiff's Declaration not relied upon in reaching its decision in this matter and declines to do so. 12

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See, e.g., Barefield v. Bd. of Trs. of Cal. State Univ., Bakersfield, 500 F. Supp. 2d 1244 (E.D. Cal. 2007) ("[I]t is not the role of this Court to determine who was the most qualified, but only to determine if there is a genuine issue of fact for trial."); Lyons v. England, 307 F.3d 1092, 1117 (9th Cir. 2002) ("[W]hether appellants were as qualified as any of the promotion recipients is a factually intensive question best resolved by the jury."). Plaintiff has raised an issue of fact that he may have been as qualified, or even more qualified, than the candidates selected for promotion. Plaintiff has thus provided sufficient

evidence to raise a triable issue of fact that Defendant's proffered reason may be pretextual. Therefore, Defendant's

motion for summary adjudication with respect to Plaintiff's race discrimination claim is denied.

D.

Summary Adjudication of Plaintiff's Claim that the DMV Denied him a Lateral Transfer Because he is Black is Granted.

Plaintiff's EEOC charge alleges that Plaintiff was "denied a lateral transfer to Staff Services Manager I FOD Sacramento Headquarters Staff, Position number 438-4800-001, Bulletin number 2-06-0400." DUF No. 57. Defendant argues that Plaintiff cannot

state a prima facie case for discrimination given the fact that the advertised SSM I position was cancelled and the position abolished. /// /// 13

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On March 15, 2006, the SSM I position, 438-4800-001, was advertised through bulletin number 2-06-0400. The position DUF Nos. 58-59.

advertised, however, was canceled that same day.

Defendant contends that the position was abolished to establish position number 024-4800-003. applied for this new position. Plaintiff argues that even though he applied for a position that was literally cancelled the same day it was posted, he was still "rejected" for that position for purposes of establishing a discriminatory adverse employment action. While Plaintiff Plaintiff does not allege that he

admittedly received no letter indicating that he was unqualified or that another candidate had been chosen, he persists in maintaining that the cancellation constitutes a discriminatory rejection. This is nonsensical. The Defendant cancelled the job Not only did the

bulletin the same say that it was posted.

Defendant not select a candidate over the Plaintiff, it also appears certain that Defendant failed to even consider the Defendant's application since the position was abolished the same day it was posted. Plaintiff nonetheless argues that "the position remained open until it was filled by someone of Plaintiff's qualifications." 19.) (Pl.'s Opp'n to Def.'s Mot. for Summ. J. 13:18-

Plaintiff alleges the position was filled by Jill D. As evidence of this fact,

Ledden, a non African-American female.

Plaintiff cites to a Deposition in which a DMV employee, Babette Williams, states that Ms. Ledden was in fact hired. /// /// 14

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However, in the same deposition, Ms. Williams admits, consistent with Defendant's version of events as enumerated above, that the DMV position applied for by Plaintiff had in fact been "dropped" for workload reasons. See Williams Dep., 6/09/09, 48:14-49:5.

Thus, the evidence Plaintiff cites actually supports Defendant's claim that the cancellation of the position had nothing to do with Plaintiff. Given that the Plaintiff has failed to rebut Defendant's evidence with any information demonstrating adverse employment action or some other circumstance indicating a discriminatory motive, Defendant's motion for summary adjudication of Plaintiff's claim that the DMV denied him a lateral transfer because of his color must be granted.

E.

Summary Adjudication of Plaintiff's Retaliation Claim Based on his EEOC Lawsuit is Granted.

In order to establish a viable retaliation claim, Plaintiff must demonstrate: (1) that he engaged in protected activity, (2) that his employer was aware of the activity, (3) that he suffered an adverse employment action, and (4) that there was a causal connection between the protected activity and the adverse employment action. Raad, 323 F.3d at 1197, see also Yanowitz v.

L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). Plaintiff's retaliation claim does not survive summary adjudication because Plaintiff cannot make out a prima facie case of retaliation. Specifically, Plaintiff cannot establish that

the relevant decision makers knew of Plaintiff's protected activity. 15

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Plaintiff alleges that he was denied the five Manager V positions and a SMM I transfer in retaliation for his filing a discrimination suit against the DMV during 1995. Following the

said charge, the EEOC and the DMV conducted an investigation. During the course of its investigation, the DMV found that it had no information or records regarding Plaintiff's protected activity which occurred eleven years before the EEOC charge was filed. See Ruiz Decl. ¶ 13; Ex. A, p. 3. This was probably Id.

because the DMV only retains documents for five years.

Additionally, the hiring managers for each of the five positions Plaintiff applied to have submitted declarations. Each hiring

partner declares that he or she was not aware of Plaintiff's 1995 discrimination suit against the DMV. Plaintiff does not offer

any evidence to rebut these statements. Plaintiff also alleges that "as a result of [the 1995 lawsuit] and subsequent complaints, Defendant has retaliated against Plaintiff." added). (Pl.'s Second Am. Compl. ¶ 10.) (emphasis

In support of this allegation, Plaintiff claims that in

February 2006 he complained to the DMV Deputy Director that he was being treated unfairly and that on June 18, 2006, Plaintiff submitted a grievance to the DMV for discrimination. ¶¶ 7 & 10.) (Pl.'s Decl.

Additionally, on September 29, 2006, Plaintiff filed Both filing a complaint

a charge of discrimination with the EEOC.

with the EEOC and making informal complaints to a supervisor are protected activities. n. 3 (9th Cir. 2000). Ray v. Henderson, 217 F.3d 1234, 1240, However, in his 2006 EEOC charge, the one

upon which this lawsuit is based, the only protected activity Plaintiff identified was his 1995 discrimination lawsuit. 16

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Plaintiff therefore failed to exhaust his administrative remedies with respect to any additional retaliation claims. Thus,

Defendant's motion for summary adjudication with respect to Plaintiff's claim for retaliation must also be granted.

CONCLUSION

For the reasons stated above, Defendant's Motion for Summary Judgment (Docket No. 69) as to Plaintiff's claims in their entirety is DENIED. Summary adjudication is GRANTED, however,

with respect to Plaintiff's sex discrimination and retaliation claims, his additional claimed instances of discrimination as alleged in paragraphs 11 and 13 of the Second Amended Complaint, and his claim that he was discriminated against by virtue of the 2006 cancelled lateral transfer. Summary adjudication is DENIED

as to Plaintiff's claims that he was discriminated against due to his race in being passed over for transfer and/or promotional opportunities in 2006. Because the resolution of those claims

involves the weighing of disputed issues of material fact, this lawsuit must proceed to trial on that basis. IT IS SO ORDERED. Dated: May 6, 2010

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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