Davis v. Saint Mary's Catholic Cemetery And Mausoleum et al

Filing 40

ORDER signed by Judge Garland E. Burrell, Jr on 6/28/15 ORDERING for the stated reasons, the RCB's motion is GRANTED on Plaintiff's state claims, on Plaintiff's federal retaliation claims, and on Plaintiff's prayers for punitive damages for his federal harassment claims. The RCB's motion is DENIED on Plaintiff's federal harassment claims. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE A. DAVIS
Plaintiff,

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No. 2:13-cv-01083-GEB-DAD

v.
SAINT MARY’S CATHOLIC
CEMETERY AND MAUSOLEUM;
DIOCESE OF SACRAMENTO; AND
ROMAN CATHOLIC BISHOP OF
SACRAMENTO,

ORDER DENYING IN PART AND
GRANTING IN PART DEFENDANT ROMAN
CATHOLIC BISHOP’S MOTION FOR
SUMMARY JUDGMENT

Defendants.

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Defendant

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moves

for

Roman

summary

Catholic
judgment,

Bishop

of

or

the

(“the

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RCB”)

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partial summary judgment, on the claims alleged in Plaintiff’s

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Complaint. Plaintiff’s Complaint comprises federal harassment and

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retaliation claims alleged under Title VII of the Civil Rights

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Act of 1964 (“Title VII”) and 42 U.S.C. Section 1981 (“Section
1

in

Sacramento

alternative

for

1

1981”); California claims of intentional infliction of emotional

2

distress (“IIED”) and violation of Title I Section 8 of the

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California Constitution; and a prayer for punitive damages under

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each

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former RCB employee David Flores subjected him to a racially

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hostile work environment, and that the RCB retaliated against

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Plaintiff when he complained about the referenced hostile work

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environment by failing to rehire him. The RCB argues in its

9

motion:

claim.

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The

claims

concern

Plaintiff’s

allegations

that

The alleged acts by Flores [about which
Plaintiff complains] do not rise to the level
of creating a hostile work environment, and
even if they did, [the RCB] acted reasonably
to prevent harassment . . . ; and [t]here was
no
retaliation
because
[P]laintiff’s
separation [from employment] was planned
before his complaint about Flores . . . ;
Further, [t]here is no tort liability for
[the RCB] because there were no extreme or
outrageous acts against [P]laintiff that can
be imputed to [the RCB]. And similarly, there
is no evidence of malice or oppression toward
[P]laintiff that would support an award of
punitive damages.

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(RCB’s

19

Plaintiff

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(“Opp’n”), ECF No. 36.)

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Mot.

Supp.

opposes

Summ.
the

J.

(“Mot.”)

motion.

I.

22:8-14,

(Pl.’s

Opp’n

ECF

No.

to

RCB’s

33-1.)
Mot.

LEGAL STANDARD

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A party is entitled to summary judgment if
‘the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.’ . . . The moving party has the burden
of establishing the absence of a genuine
dispute of material fact.

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City of Pomona v. SQM North Am. Corp., 750 F.3d 1036, 1049 (9th

27

Cir. 2014) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986)). “A fact is ‘material’ when

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2

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. . . it could affect the outcome of the case.” Thrifty Oil Co.

2

v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th

3

Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

4

242, 248 (1986)). “A[] [dispute] of material fact is ‘genuine’

5

when ‘the evidence is such that a reasonable jury could return a

6

verdict for the nonmoving party.’” Anderson, 477 U.S. at 248.

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A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by . . . citing to particular parts of
materials in the record . . . or . . .
showing that the materials cited do not
establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to support
the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B).

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Local Rule 260(b) prescribes:

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Any party opposing a motion for summary
judgment . . . [must] reproduce the itemized
facts in the [moving party’s] Statement of
Undisputed Facts and admit those facts that
are undisputed and deny those that are
disputed, including with each denial a
citation to the particular portions of any
pleading,
affidavit,
deposition,
interrogatory answer, admission, or other
document relied upon in support of that
denial.

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If

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the

nonmovant

does

not

“specifically

.

.

.

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[controvert duly supported] facts identified in the [movant’s]

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statement of undisputed facts,” the nonmovant “is deemed to have

23

admitted the validity of the facts contained in the [movant’s]

24

statement.” Beard v. Banks, 548 U.S. 521, 527 (2006).

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Because a district court has no independent duty “to

26

scour the record in search of a genuine issue of triable fact,”

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and may “rely on the nonmoving party to identify with reasonable

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particularity

the

evidence

that
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precludes

summary

judgment,”

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. . . the district court . . . [is] under no obligation to

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undertake a cumbersome review of the record on the [nonmoving

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party’s] behalf. Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011,

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1017 (9th Cir. 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279

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(9th Cir. 1996)).

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II.

UNCONTROVERTED FACTS

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The following uncontroverted facts concern the motion.

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On August 11, 2011, “Plaintiff was . . . hired to work

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at St. Mary’s Cemetery,” which is owned by the RCB. (Pl.’s Opp’n

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to RCB’s Statement of Undisputed Material Facts (“SUF”) No. 1, 8-

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approximately four months, until “December 2011,” and his “second

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season”

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October 2012.” (Pl.’s Additional Statement of Undisputed Material

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Facts (“Pl.’s Addt’l SUF”) No. 1, ECF No. 38-1 at 22.) Plaintiff

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“was assigned to work on the grave relocation project along with

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three other temporary workers.” (SUF No. 2.) “Plaintiff and grave

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relocation

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American, and the other two workers were Caucasian and Mexican.”

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(SUF

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activity . . . .” (SUF No. 8.)

ECF

No.

lasted

No.

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36-1.)

approximately

project

3.)

Plaintiff’s

“The

five

coworker

grave

“first

Eric

season”

months,

Conerly

relocation

of

“from

were

project

work

May

2012

both

was

a

lasted

to

African-

temporary

“At the end of [Plaintiff’s first season of work in]

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December

2011,

[P]laintiff

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position on the grave relocation project because of the onset of

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the rainy season.” (SUF No. 10.) “In April 2012, [P]laintiff was

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interviewed

and

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Operations]

[Frank]

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season of work. (SUF No. 11.) “[W]ork on the grave relocation

rehired

was

by

Espinosa

laid

off

[Assistant

from

Director

[(“Espinosa”)]”

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his

for

temporary

of
his

Cemetery
second

1

project was completed in September 2012.” (SUF No. 13.) Plaintiff

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“was laid off in October 2012.” (SUF No. 15.)

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“[W]hile [Plaintiff] was employed at the cemetery, he

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became

the

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Flores, who was the foreman of the unionized grounds keeping

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workers

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Plaintiff] . . . ‘where’s the beer at?’” and “Flores would [also]

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ask [Plaintiff] ‘where’s the weed at?’ and . . . mimick[] as if

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he was smoking a marijuana joint.” (SUF Nos. 27-28.)

at

[target]

the

of

.

cemetery.”

.

.

comments

(SUF

No.

and

22.)

conduct

“Flores

by

would

David

[ask

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“[O]n two occasions [Plaintiff] heard Flores use the

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word ‘nigger’ in the workplace.” (SUF No. 32.) “The first time

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was

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“when Flores slowly drove past [P]laintiff in a work truck and

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[P]laintiff heard him say it – although [P]laintiff believes the

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specific word used by Flores was ‘nigga.’” (SUF No. 33; Pl.’s

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Addt’l

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[(“Mendoza”)],” who “held the title of assistant foreman,” about

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the incident. (SUF No. 34, 55.) “Mendoza told Plaintiff to just

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stay away from Flores, do his job, and don’t do anything to lose

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his

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occurred in the break room at lunch in mid-2012, when Flores

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entered the room and said ‘niggers work hard—get up and work,’ in

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a way that [P]laintiff felt was directed toward him.” (SUF No.

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35.) “Mendoza . . . [was] present when [Flores] said [this].”

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(Pl.’s Addt’l SUF No. 30.) “Plaintiff [also] spoke with . . .

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Mendoza [about Flores’ use of the word ‘nigger’ in the lunch

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room].” (SUF No. 36.)

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in

2011,”

SUF

job.”

“during

No.

(Pl.’s

28.)

[Plaintiff’s]

“Plaintiff

Addt’l

SUF

No.

first

told

33.)

.

season

.

“The

.

[of

Phil

second

work],”

Mendoza

incident

Plaintiff “heard Flores say the Spanish phrase ‘pinche
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[mayate on two occasions],’ which he understood to be the Spanish

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equivalent of ‘nigger’”. (SUF No. 38; Pl.’s Addt’l SUF No. 27.)

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“The first time,” which “occurred during Plaintiff’s first season

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of employment (August 2011—December 2011),” “[Plaintiff] heard

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Flores say the phrase as [P]laintiff was walking away from the

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work office at the cemetery . . . . Plaintiff [did not] complain

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to anyone at the cemetery about this first incident.” (SUF Nos.

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39-40;

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“occurred

Pl.’s
.

Addt’l
.

.

SUF

during

No.

27.)

“The

Plaintiff’s

second

second

time,”

season,”

which

Plaintiff

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“heard Flores say the phrase as he walked by.” (SUF No. 41; Pl.’s

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Addt’l SUF No. 29.) “Plaintiff talked with Mendoza about the

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second [time Flores used the phrase ‘pinche mayate’] . . . .”

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(SUF No. 42.)

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“In a staff meeting on September 25, 2012, [P]laintiff

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finally reported that Flores had said the word ‘nigger’ in the

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workplace.”

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Flores and ordering him off the premises, and then conducting an

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investigation.”

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investigation, three days later, on September 28, 2012, Espinosa

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fired Flores.” (SUF No. 53.) The Diocese of Sacramento’s Lay

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Personnel Handbook prescribes: “If an employee feels that he or

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she has experienced or witnessed harassment, he or she is to

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notify his or her immediate supervisor, the pastor, the principle

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. . . or, in the alternative, the Office of Lay Personnel or the

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Superintendent of Catholic Schools.”1 (Pl.’s Addt’l SUF No. 6.)

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1

27
28

(SUF

No.

(SUF

49.)

No.

“Espinosa

50.)

“Based

responded

on

the

by

suspending

results

of

the

The Diocese owns St. Mary’s Cemetery (See SUF Nos. 4, 6, 9, 42-43.) The
RCB asserts in the caption for its summary judgment motion that it was
“incorrectly also sued as ‘Saint Mary’s Catholic Cemetery and Mausoleum’ and
‘Diocese of Sacramento.’” Therefore, the Court treats references to the
“Diocese” as also referring to the RCB for purposes of this motion.

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Mendoza,

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Espinosa,” “did not feel a need to report [the fact that he

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witnessed Flores use the word ‘nigger’ in the lunch room] because

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he believed that although he held the title of assistant foreman,

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he

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premises, and that when Flores was present, he was just another

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worker like Davis.” (Pl.’s Addt’l SUF No. 4; SUF No. 55.)

only

who

had

“reported

to

supervisory

and

duties

[was]

when

supervised

Flores

8

not

.

on

.

.

the

III. DISCUSSION

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was

by

A. Plaintiff’s Harassment Claims

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i.

Hostile Work Environment

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The RCB seeks summary judgment on Plaintiff’s federal

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harassment claims in which he alleges the RCB permitted Flores to

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subject

14

argues

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environment” actually consisted of “isolated and stray remarks

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insufficiently extreme or pervasive enough to have changed the

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terms

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essential to establish federal hostile work environment claims.

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(Mot. 7:16-18.)

him
that

and

to

a

what

racially
Plaintiff

conditions

of

hostile

work

characterizes

Plaintiff’s

environment.
as

a

The

“hostile

employment,”

which

RCB
work

is

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Since “[h]ostile work environment claims alleged under

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Title VII contain the same elements of a § 1981 hostile work

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environment claim the ‘legal principles guiding a court in a

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Title VII dispute apply with equal force in a § 1981 action.’”

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Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 n.3

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(9th Cir. 2008) (citing Manatt v. Bank of America, 339 F.3d 792,

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797 (9th Cir. 2003)). The statutes prohibit

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the creation of a hostile work environment
. . . . In determining if an environment is
so hostile as to violate Title VII [or
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1

3

Section 1981], we consider whether, in light
of all the circumstances the harassment is
sufficiently severe or pervasive to alter the
conditions of the victim’s employment and
create an abusive working environment.

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. . . .

5

A
Plaintiff
must
show
that
the
work
environment
was
both
subjectively
and
objectively hostile . . . . In evaluating
objective hostility of a work environment,
the factors to be considered include the
‘frequency of discriminatory conduct; its
severity;
whether
it
is
physically
threatening
or
humiliating,
or
a
mere
offensive
utterance;
and
whether
it
unreasonably interferes with an employee’s
work performance. The required level of
severity or seriousness varies inversely with
the
pervasiveness
or
frequency
of
the
conduct.

2

6
7
8
9
10
11
12
13

McGinest v. GTE Serv Corp, 360 F. 3d 1103, 1112-13 (9th Cir.

14

2004)

15

“[A]llegations of a racially hostile workplace must be addressed

16

from the perspective of a reasonable person belonging to the

17

racial . . . group of the plaintiff.” (Id. at 1115)

(internal

The

18

quotation

marks

uncontroverted

facts

and

citations

establish

that

omitted).

Plaintiff

19

heard the words “nigger,” “nigga,” and the Spanish phrase “pinche

20

mayate”

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Circuit states in McGinest: “It is beyond question that the use

22

of the word ‘nigger’ is highly offensive and demeaning, evoking a

23

history of racial violence, brutality, and subordination[; and

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t]his word is perhaps the most offensive and inflammatory racial

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slur in English. 360 F.3d at 1116; see also Daso v. The Grafton

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School, Inc., 181 F. Supp. 2d. 485, 493 (D. Md. 2002) (stating:

27

“The word ‘nigger’ is more than [a] ‘mere offensive utterance,’”

28

and “[n]o word in the English language is as odious or loaded

in

the

workplace.

(SUF

8

Nos.

33,

35,

38.)

The

Ninth

1

with

2

evince that during Plaintiff’s first season, through the end of

3

his second season, Flores would ask Plaintiff “where’s the beer?”

4

and “where’s the weed?’ [while making a gesture as if he was

5

smoking marijuana].” (SUF Nos. 27-28.) These questions and the

6

gesture

7

environment was created, since they “could be construed as a not-

8

so-subtle attempt to [say that Plaintiff uses] [marijuana] and

9

[alcohol] simply because he is [an African American].” Daniels v.

10

as

terrible

are

a

history.”)

relevant

in

The

evaluating

uncontroverted

whether

a

facts

hostile

also

work

Essex Group, Inc., 937 F.2d 1264, 1273 (7th Cir. 1991).

11

This evidence creates a genuine dispute of material

12

fact on the issue of whether Flores subjected Plaintiff to a

13

hostile

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Therefore, this portion of the motion is denied.

work

15

environment

because

he

is

an

African

American.

ii. Whether the RCB Can be Liable for Flores’ Conduct

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a. Vicarious Liability

17

The RCB further argues its motion should be granted on

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Plaintiff’s federal harassment claims, contending only “acts of

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harassment by a supervisor can subject an employer to vicarious

20

liability[]

21

vicarious liability principle does not apply “[b]ecause Flores

22

[was]

23

10:8.)

24
25
26
27
28

not

under

a

[Plaintiff’s

supervisor”

under

federal

this

claims],”

principle.

(Mot.

[A]n employer is vicariously liable for a
supervisor's creation of a hostile work
environment. The Supreme Court . . . defined
‘supervisor’ . . . as an employee ‘empowered
by the employer to take tangible employment
actions
against
the
victim.’
Tangible
employment actions include hiring, firing,
demoting,
promoting,
transferring,
or
disciplining the victim.
9

and

the

9:23-24,

1

U.S.

2

6872780, at *6 (D. Nev. Dec. 4, 2014) (quoting Vance v. Ball

3

State University, 133 S. Ct. 2434, 2439, 2441, 2443 (2013)).

4

“Supervisor

5

title,

6

relationship [between the plaintiff and the alleged supervisor].”

7

Vance, 133 S. Ct. at 2465.

E.E.O.C.

v.

Wedco,

status

and

is

depends

Inc.,

based
on

No.

on

3:12-CV-00523-RCJ,

job

specific

function
facts

rather

about

2014

than

the

WL

job

working

8

The RCB argues “Flores had no authority to hire or fire

9

[P]laintiff, [or] to affect [P]laintiff’s pay or benefits, and no

10

ability to reassign [P]laintiff,” (Mot. 10:2-3), and supports

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this argument with the following uncontroverted facts:

12

Although Flores held the title of ‘foreman,’
he simply oversaw the daily tasks of grounds
crew workers, such as determining where in
the cemetery they would be working and making
sure those tasks were completed.

13
14
15

(SUF No. 23.)2

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17

The RCB has shown that Flores was not a supervisor
under the federal vicarious liability principle.

18

b. The RCB’s Exposure to Liability for Co-Worker

19

Harassment

20

The RCB also argues “because Flores is not a supervisor

21

. . . [the RCB] can only be liable if it knew of the harassment

22

and

23

“knowledge of the alleged conduct by Flores did not reach a

24

sufficient management-level employee until [P]laintiff reported

25

it

failed

to

to

Frank

stop

it,”

Espinosa

on

and

that

September

it

is

25,

not

liable

2012,”

after

because

which

26
2

27
28

Since Plaintiff has not presented evidence “specifically [controverting
these duly supported] facts identified in the [movant’s] statement of
undisputed facts,” Plaintiff “is deemed to have admitted the validity of
the[se] facts.” Beard v. Banks, 548 U.S. 521, 527 (2006).

10

1

“Espinosa

2

investigation, [following which] Flores was discharged.” (Mot.

3

10:8-26.)

4

.

.

.

Plaintiff

acted

rejoins:

immediately

“given

how

[by]

many

conduct[ing]

times

an

Plaintiff

5

complained to Mendoza,” there is “ample evidence to support the

6

[RCB’s] liability for co-worker harassment,” and quotes, inter

7

alia, the following principle cited in Swinton v. Potomac Corp.

8

in

9

“[i]naction

support

of
of

this
even

argument

(Opp’n

relatively

low-level

12:15-16,

13:10-14):

supervisors

may

be

10

imputed to the employer if the supervisors are made responsible,

11

pursuant

12

complaints of harassment.” 270 F.3d 794, 810 (9th Cir. 2001).

to

company

policy,

for

receiving

and

acting

13

The Ninth Circuit stated in Swinton:

14

on

If . . . the harasser is merely a co-worker
[rather than a supervisor], the plaintiff
must prove that the employer was negligent,
i.e. that the employer knew or should have
known of the harassment but did not take
adequate steps to address it

15
16
17
18
19
20
21
22
23
24
25

. . . .
[I]t [is the plaintiff’s] burden . . . to
prove that management knew of the harassment
or should [have] known of [it]
. . . .
[An
employee]
who
lacks
[management]
authority [to change the conditions of the
harassee’s
employment]
is
nonetheless
classified as ‘management’ if he has an
official or strong de facto duty to act as a
conduit to management for complaints about
work conditions.

26

Swinton, 270 F.3d at 803-05 (citing Lamb v. Household Credit

27

Servs., 956 F. Supp. 1511, 1516 (N.D. Cal. 1997) (finding “the

28

clock starts running on employer liability when notice is given
11

1

to certain employees, who may or may not have any management-

2

level authority, but who have responsibility for relaying . . .

3

harassment complaints pursuant to an express policy promulgated

4

by the employer.”)

5

The RCB’s motion does not address Plaintiff’s argument

6

under

Swinton

7

authority is nonetheless classified as ‘management’ if he has an

8

official

9

management for complaints about work conditions.” 270 F.3d at

10

805. Therefore, this portion of its motion is denied. See Wahlman

11

v. DataSphere Technologies, Inc., 2014 WL 794269, at *10, No.

12

C12-1997JLR (W.D. Wash. Feb. 27, 2014) (finding “factual disputes

13

prevent[ed] summary judgment” where “it [was] disputed whether

14

[the

15

constituted notice to [the defendant] of the harassing behavior,

16

and whether [the defendant was] negligent for taking no action

17

when [that employee] witnessed such conduct.”)

or

that

strong

harasser’s]

“a

de

supervisor

facto

conduct

in

duty

who

to

front

lacks

act

of

as

[management]

a

conduit

[another

to

employee]

18

B. Plaintiff’s Federal Punitive Damages Prayers

19

The RCB seeks summary judgment on Plaintiff’s federal

20

punitive

damages

21

arguable

basis

22

“fail[ure] to report [Flores’ alleged harassing] conduct,” and

23

cites

24

establish that Mendoza did not have “a malicious design” when he

25

failed to report Flores’ harassing conduct, which is required to

26

support a punitive damages claim (Mot. 21:20-24):

27
28

the

prayers,
for

following

essentially

federal

punitive

uncontroverted

arguing

that

damages

facts,

is

the

Mendoza’s

contending

Mendoza acknowledged it was an error not to
report [Flores’ use of the word ‘nigger’ in
the lunch room during Plaintiff’s second
12

only

they

1

season of work,] but . . . he did not feel a
need to report [it] because he believed . . .
he only had supervisory duties when Flores
was not on the premises, and that when Flores
was present, he was just another worker like
Davis.

2
3
4

(SUF No. 55.)3

5
6
7

“[T]he
Section

11
12
13
14

18
19
20
21
22
23
24
25

is]

for

Title

is

VII.”

the

same

E.E.O.C.

[under

v.

The Supreme Court states in Kolstad v. American Dental
Ass’n.: “The terms ‘malice’ or ‘reckless indifference’ pertain to
the employer's knowledge that it may be acting in violation of
federal

law,

not

its

awareness

that

it

is

engaging

28

in

discrimination . . . . Applying this standard in the context of
[the federal discrimination statute,] an employer must at least
discriminate in the face of a perceived risk that its actions
will violate federal law to be liable in punitive damages.” 527
U.S. 526, 535-36 (1999). “[N]egligent decisionmaking and poor
communication

among

managers

may

properly

give

compensatory liability under Title VII, but . . .

rise

to

such acts

[would not] be deterred by an award of exemplary damages.” Ngo v.

26
27

Swift

In an action brought by a complaining party
under . . . 42 U.S.C. 2000e-2 [(Title VII),]
. . . . [a] complaining party may recover
punitive damages . . . if the complaining
party
demonstrates
that
the
respondent
engaged in a discriminatory practice or
discriminatory practices with malice or with
reckless
indifference
to
the
federally
protected rights of an aggrieved individual.

10

17

[it

standard

42 U.S.C. § 1981a(a)-(b)(1) prescribes:

9

16

as

damage

Transp. Co., 45 F. Supp. 2d 1036, 1040 (D. Or. 1999).

8

15

1981]

punitive

3

Plaintiff’s does not “specifically [controvert this duly supported
fact].” Therefore, Plaintiff “is deemed to have admitted the validity of
th[is] fact[].” Beard, 548 U.S. at 527.

13

1

Reno Hilton Resort Corp., 140 F.3d 1299, 1305 (9th Cir. 1998).

2

“[T]he

3

threshold level of intent required for compensatory liability is

4

willful and egregious conduct, or conduct that displays reckless

5

indifference

6

federal rights such that the defendant almost certainly knew that

7

what

8

E.E.O.C.

9

Supp. 2d 1249, 1285 (E.D. Cal. 2009).

10

showing

he

was
v.

required

(and

doing

not

was

California

Mendoza’s

[for

mere

punitive

damages]

negligence)

wrongful

and

Psychiatric

uncontroverted

to

the

subject

beyond

[p]laintiff's

to

Transitions,

the

punishment.”
Inc.,

misunderstanding

644

about

F.

his

11

reporting responsibilities does not support drawing a reasonable

12

inference that he acted maliciously or with reckless disregard of

13

Plaintiff’s federally protected rights.

14

Therefore, this portion of the motion is granted.

15

C. Plaintiff’s Retaliation Claims

16

The

RCB

argues

its

motion

should

be

granted

on

17

Plaintiff’s federal retaliation claims in which Plaintiff alleges

18

the RCB’s failure to rehire him after he finished working on the

19

grave

20

complaint to Espinosa about Flores’ harassing behavior. (Compl.

21

¶¶ 34-43.) Specifically, the RCB asserts:

22
23
24
25
26
27
28

relocation

project

was

retaliation

for

Plaintiff’s

the undisputed evidence shows that not only
did [P]laintiff understand he was [an] atwill [employee] and would be separated [from
his employment at the cemetery] when the
grave relocation project ended, and that the
project had in fact ended in September 2012,
he was aware of those facts before the
[staff] meeting on September 25, 2012, and
thus before he made the complaint to Espinosa
about Flores. Moreover, [P]laintiff further
concedes that he was never told he would be
returned to work at the cemetery after
October 2012, and he never made an attempt to
14

1

contact Espinosa or someone at the cemetery
to ask about returning to work.

2
3

(Mot. 14:8-20.)

4

Plaintiff rejoins: “[I]n essence, Espinosa decided not

5

to rehire Plaintiff after his complaint [about Flores’ harassing

6

behavior; and this failure] is equal to terminating an employee

7

for complaining because both have the same ultimate effect of

8

discouraging

9

(Opp’n 14:20-22.)

employees

from

complaining

in

the

first

place.”

Title VII and Section 1981 retaliation claims “share

10
11

identical

12

Dist., 316 F. App’x 563, 564 (9th Cir. 2008). Plaintiff must show

13

in his federal retaliation claims “(1) involvement in a protected

14

activity, (2) an adverse employment action and (3) a causal link

15

between the two.” Brooks v. City of San Mateo, 229 F.3d 917, 928

16

(9th Cir. 2000).

17

legal

Here,

standards.”

the

essence

(Williams

of

the

v.

Tuscon

RCB’s

Unified

position

is

Sch.

that

18

Plaintiff has not suffered an adverse employment action because

19

he had no reason to conclude he would be rehired.

20

on the following uncontroverted facts in support of its position

21

that Plaintiff had no reasonable expectation that he would be

22

rehired: “Plaintiff knew that the grave relocation project was

23

temporary in nature, and no one ever specifically told him he

24

would be [asked to] return[] as a worker at the cemetery once the

25

project was completed or that he would never be let go.” (SUF No.

26

14.) Plaintiff disputes this assertion, responding:

27
28

The RCB relies

Prior to his harassment complaint against
Flores to Espinosa, Plaintiff and the other
relocation workers were told that at least
15

1

3

some of them might be hired on in the future.
However,
immediately
after
Plaintiff’s
complaint, Espinosa reversed himself and said
that nobody on the project would be invited
back

4

(Pl.’s Response to Def.’s SUF No. 14.) Plaintiff also cites the

5

following

6

declaration as support for his position that he was not rehired

7

because

8

conduct:

2

of

9

his

of

former

complaint

to

co-worker

Espinosa

Timothy

about

Donohue’s

Flores’

harassing

Two days before I and the other [grave
relocation project] crew were let go, I asked
[Espinosa] if I would be able to return to
work the following summer. [Espinosa] told me
no, that none of the [grave relocation
project] crew . . . would be allowed to come
back because of ‘the whole Jesse fiasco.’

10
11
12
13

portion

(Decl. of Timothy Donohue ¶ 14, Tillis Decl. Ex. E.)
However,

14

Plaintiff

has

not

presented

evidence

from

15

which a reasonable inference could be drawn that he reapplied to

16

work for the RCB after the grave relocation project ended. Nor

17

has Plaintiff presented evidence that he knew what Espinosa said

18

about the “the whole Jesse fiasco” before he

19

reapply; therefore, he has not shown that whatever was meant by

20

what Espinosa said had any bearing on Plaintiff’s decision not to

21

reapply

22

Yartzoff

23

(affirming an order granting the defendant’s summary judgment

24

motion on one of the plaintiff’s retaliation claims where the

25

plaintiff

26

indicating that non-applicants may only pursue a Title VII action

27

where they can show they were “discouraged from applying.”)

28

for

another

temporary

position

v.

Thomas,

809

1371,

“failed

to

.

F.2d

.

.

at

the

1374-75

appl[y]”

for

decided not to

cemetery.

(9th

a

Cir.

Cf.

1987)

promotion,

and

Since the evidentiary record does not contain facts
16

1

from which a reasonable inference could be drawn that Plaintiff

2

applied for another temporary position at the cemetery, or was

3

chilled from applying by anything the RCB did, the RCB’s motion

4

on Plaintiff’s federal retaliation claims is granted.

5

D. Plaintiff’s California Constitution Claim

6

The

RCB

seeks

summary

judgment

on

Plaintiff’s

7

California Constitution claim in which Plaintiff alleges the RCB

8

“depriv[ed] him of employment opportunities . . . in violation of

9

Article 1, Section 8 of the California Constitution,” (Compl. ¶

10

49),

quoting

the

Ninth

Circuit

in

Strother

v.

S.

California

11

Permanente Med. Grp. for the following finding to support its

12

argument that Article I Section 8 does not apply to Plaintiffs

13

claims (Mot. 17:12-16): “[Article I] § 8 governs actions which

14

result in the complete exclusion of an individual from employment

15

with a particular employer, and does not reach conduct affecting

16

particular aspects of an individual’s job.” 79 F.3d 859, 872 (9th

17

Cir. 1996).

18

Article I Section 8 of the California Constitution,

19

which prescribes that “[a] person may not be disqualified from

20

entering or pursuing . . . employment because of [his or her]

21

. . . race,” does not provide a “direct cause of action,” and

22

instead “must be ‘asserted through a state tort law mechanism,’

23

such

24

which Plaintiff has not alleged. Scott v. Solano Cnty. Health &

25

Soc. Servs. Dep’t, 459 F. Supp. 2d 959, 970 (E.D. Cal. 2006)

26

(quoting Himaka v. Buddhist Churches of Am., 919 F. Supp. 332,

27

334-35 (N.D. Cal. 1995) (finding

28

law mechanism in order to bring a private cause of action to

as

wrongful

termination

in

17

violation

of

public

policy,”

“there must exist a state tort

1

vindicate

2

Article I Section 8 [of the California Constitution].”) Plaintiff

3

has not properly asserted an Article I Section 8 claim.

4

even assuming arguendo that this claim is properly alleged, the

5

summary judgment factual record does not contain facts from which

6

a reasonable inference could be drawn that Plaintiff applied for

7

another temporary position with the RCB. Therefore, this portion

8

of the motion is granted.

9

the

public

policy

against

discrimination

underlying

Further,

E. Plaintiff’s IIED Claim

10

The

RCB

seeks

summary

judgment

on

Plaintiff’s

IIED

11

claim in which he alleges he “suffer[ed] humilitiation, mental

12

anguish and severe physical and emotional distress” resulting

13

from “intentional, outrageous, and malicious [acts].” (Compl. ¶

14

56.)

15

[Plaintiff’s] only option [to state a claim
for IIED] . . . is to point to the alleged
harassing conduct by Flores. This effort
fails . . . . Although an employer can be
vicariously liable for the torts of an
employee committed within the scope of his
employment . . . as a matter of law,
harassment is not within the scope of
employment . . . .

16
17
18
19
20

The RCB argues:

(Mot. 18:12-17.)

21

“An

employer's

liability

extends

to

torts

of

an

22

employee committed within the scope of his employment.” John R.

23

v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 453 (1989).

24

the

25

engendered

26

unconnected with the employment, or if the misconduct is not an

27

outgrowth of the employment, the employee is not acting within

28

the scope of employment.” Farmers Ins. Grp. v. Cnty. of Santa

employee
by

inflicts
the

an

injury

employment

or

18

out
acts

of

personal

out

of

“[I]f

malice,

personal

not

malice

1

Clara, 11 Cal. 4th 992, 1005 (1995) (internal quotation marks and

2

citations omitted).

3

Since an employer’s liability under California law only

4

extends to actions conducted by an employee within the scope of

5

their employment, which does not include harassment, Plaintiff

6

cannot impute Flores’ conduct to the RCB as Plaintiff’s basis for

7

seeking

8

claim. See John R., 48 Cal. 3d at 453. Therefore, the RCB’s

9

motion on Plaintiff’s IIED claim is granted.

to

expose

10

the

RCB

to

IV.

11

liability

for

Plaintiff’s

IIED

CONCLUSION

For the stated reasons, the RCB’s motion is GRANTED on

12

Plaintiff’s

13

claims, and on Plaintiff’s prayers for punitive damages for his

14

federal

15

Plaintiff’s federal harassment claims.

16

state

claims,

harassment

Dated:

claims.

on

Plaintiff’s

The

June 28, 2015

17
18
19
20
21
22
23
24
25
26
27
28
19

RCB’s

federal

motion

is

retaliation

DENIED

on