Burch v. California Department of Motor Vehicles

Filing 76

ORDER signed by District Judge Troy L. Nunley on 8/17/17 ORDERING for the reasons set forth above, Defendant' Motion for Summary Judgment (ECF No. 69 ) is GRANTED. The Clerk of Court shall enter judgment in favor of Defendant and close this case. CASE CLOSED(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN BURCH,

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No. 2:13-cv-01283-TLN-DB
Plaintiff,

v.

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

CALIFORNIA DEPARTMENT of
MOTOR VEHICLES,
Defendant.

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This matter is before the Court on Defendant California Department of Motor Vehicles’

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(“Defendant”) Motion for Summary Judgement. (ECF No. 69.) Plaintiff Brian Burch

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(“Plaintiff”) opposes Defendant’s motion. (ECF No. 71.) Defendant filed a reply. (ECF No. 72.)

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Having reviewed the filings, and for the reasons set forth below, the Court hereby GRANTS

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Defendant’s Motion for Summary Judgment (ECF No. 69).

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I.

EVIDENTIARY ISSUES

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The Court notes both parties filed separate statements of undisputed material facts, to

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which each objected. (ECF Nos. 69-1, 71-1, 71-2, & 72-1.) Plaintiff filed a declaration to which

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Defendant objects. (ECF Nos. 71-3 & 72-3.) The Court relied on facts from Defendant’s

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Separate Statement of Undisputed Material Facts (ECF No. 69-1) which were undisputed and

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statements from Plaintiff’s declaration (ECF No. 71-3) about which he has personal knowledge.
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Plaintiff’s declaration consists of 103 numbered paragraphs which are not supported by

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citation to the record. (ECF No. 71-3.) The Court will only rely on information within Plaintiff’s

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personal knowledge or which he offers to show statements were made to him, not to prove the

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truth of matters asserted in the statements. Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008);

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Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1124 (9th Cir. 2004); Fed. R. Civ. P. 56(c)(4).

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Plaintiff provides undisputed material facts without citation to the record, except for Fact

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35, which contains cites to several numbered paragraphs in Plaintiff’s declaration, which

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themselves do not include citations to the record. (ECF No. 71-1 ¶ 35; ECF No. 71-3 ¶¶ 51–60.)

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The Court will not search several hundred pages of briefs and supporting materials to determine

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whether they contain support for the facts Plaintiff asserts and whether those facts would be

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admissible at trial. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774–75 (9th Cir. 2002).

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Defendant’s separate statement of undisputed material facts consists of 70 facts with

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citation to the record. (ECF No. 69-1 at 1–13.) Plaintiff agrees that 56 of those facts are

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undisputed, but objects to 14 others. (ECF No. 71-2 at 2–16.) Plaintiff labels some facts disputed

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then cites to the same portion of the record as Defendant without explanation, or asserts a new

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fact, or attempts to provide context. In those cases, the Court deems the facts undisputed for the

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purposes of this motion. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.

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1995); Fed. R. Civ. P. 56(c)(1)(A)–(B), 56(e)(2). Plaintiff raises genuine disputes regarding three

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of Defendants facts, 35, 44, and 53. (ECF No. 72-1 ¶¶ 35, 44, 53.) The Court deems Facts 35,

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44 and 53 disputed for purposes of this motion, though notes neither party relied on these facts.

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II.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff asserts claims beginning in 2003, however, the parties signed a Stipulation and

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Settlement Agreement (“Settlement”) in which Plaintiff “waived and released” Defendant from

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liability for any claim related to Plaintiff’s employment before April 30, 2008. (ECF No. 69 at

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22; ECF No. 71-4 at 2–4.) Stroman v. W. Coast Grocery Co., 884 F.2d 458, 460–61 (9th Cir.

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1989); Fair Hous. Council of Cent. California, Inc. v. Tylar Prop. Mgmt. Co., 975 F. Supp. 2d

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1115, 1122 (E.D. Cal. 2012). Accordingly, the Court will only evaluate claims based on conduct

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after the settlement date, and this section primarily contains facts following that date.
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A.

Plaintiff Begins Working for Defendant

Plaintiff, an African American male, began working for Defendant in 2001. (ECF No. 69-

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1 ¶¶ 1, 6.) Defendant hired Plaintiff for a position as a Project Management Office (“PMO”)

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Staff Information Systems Analyst (“SISA”). (ECF No. 69-1 ¶ 2.) As a PMO SISA, Plaintiff’s

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duties included assisting in the management of Department IT projects with an emphasis on

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working with outside vendors. (ECF No. 69-1 ¶ 3.)

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B.

Plaintiff’s Application for Promotion

In October 2009, Plaintiff completed the Systems Software Specialist Series exams for
promotional purposes. (ECF No. 71-3 ¶ 48.) In 2009 or 2010, Plaintiff applied for a promotion

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to System Software Specialist II (“SSS II”) with the DMV and was granted a first-round

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interview, but he was not selected for the position. (ECF No. 69-1 ¶ 43.) Plaintiff also sought

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positions with other state agencies, but he did not secure other employment. (ECF No. 71-3 ¶¶

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51, 53, & 54.) During this time, Plaintiff’s position numbers changed because the department in

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which he worked, the Systems Test Unit in the Information Systems Division (“ISD”), was

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undergoing a reorganization. (ECF No. 69-1 ¶¶ 39, 40.) His classification as a SISA remained

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constant. (ECF No. 69-1 ¶ 39.) No representative from any state agency reported any work

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history irregularities to Plaintiff when considering him for a job. (ECF No. 69-1 ¶ 45.)

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C.

Security Breach and Investigation

Around August 2010, Plaintiff discovered and accessed a security flaw which allowed him

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to view employees’ personal information such as social security numbers and leave requests.

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(ECF No. 69-1 ¶ 46.) Plaintiff reported this breach to his supervisor. (ECF No. 69-1 ¶ 47.) Two

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weeks later, Plaintiff’s supervisor informed him that Internal Affairs was investigating, and ISD

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Desktop Support and Information Protection Office confiscated his computers. (ECF No. 69-1 ¶

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47.) Plaintiff met with Internal Affairs shortly after, although the Investigations Division does

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not normally communicate with individuals who are under investigation. (ECF No. 69-1 ¶ 48.)

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Plaintiff does not think Internal Affairs launched the investigation because of his race, but

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he does thinks that he was moved to a new cubicle for that reason. (ECF No. 69-1 ¶ 55.)

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Defendant’s standard procedure after a security breach is to remove the computer used to access
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the confidential information and to move the employee to a new workspace. (ECF No. 69-1 ¶

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49.) A Desktop Support Team moved Plaintiff to a new cubicle along with an old computer from

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Plaintiff’s prior cubicle. (ECF No. 69-1 ¶ 50.) While Plaintiff had replacement equipment in his

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new cubicle, Defendant restricted his access to software and the compromised database. (ECF

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No. 69-1 ¶ 52.) The new cubicle had an existing PC in the center and his replacement PC was

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placed to the side, which Plaintiff thinks was non-ergonomic. (ECF No. 69-1 ¶ 51.)

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Plaintiff thinks he worked under a cloud due to the investigation, although he does not

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recall hearing anyone speak about it, and to his knowledge his supervisor Casey Evans (“Evans”)

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was the only person aware of it. (ECF No. 69-1 ¶ 58.) Evans gave Plaintiff an assignment to

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work with the Quality Center Administrator to write a user manual, but Plaintiff did not work on

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the project because he was “leery” of doing so during the investigation. (ECF No. 69-1 ¶ 54.)

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Internal Affairs exonerated Plaintiff in September 2010, but Plaintiff did not learn of his

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exoneration until June 2011. (ECF No. 69-1 ¶¶ 59–61; 71-3 ¶¶ 65 & 66.) Plaintiff believes he

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was not informed of the exoneration earlier and an exoneration letter was kept from him because

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of his race. (ECF No. 69-1 ¶ 60.) The letter exonerating Plaintiff was addressed to a Deputy

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Director. (ECF No. 69-1 ¶ 61.) Plaintiff never asked the Deputy Director when he had received

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the letter. (ECF No. 69-1 ¶ 61.) Plaintiff first saw the letter on June 24, 2011. Evans informed

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Plaintiff of his exoneration and showed Plaintiff the cover page of the letter on June 24, 2011, just

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after Evans received it. (ECF No. 69-1 ¶ 59; ECF No. 71-3 ¶ 66.)

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D.

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Medical Leave and Request for Accommodation

In June 2011, Plaintiff went on medical leave due to stress. (ECF No. 69-1 ¶ 62.) He

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returned on July 18, 2011 and went on leave again on July 27, 2011. (ECF No. 71-3 ¶¶ 69, 70.)

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Plaintiff’s psychologist provided a note stating Plaintiff was “restricted from working under [the]

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current chain of command in [the] Information Systems Division.” (ECF No. 69-1 ¶ 63.)

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Plaintiff includes the Deputy Director and each supervisor in that chain of command. (ECF No.

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69-1 ¶ 65.) Plaintiff states Defendant informed him it rejected his request for accommodation,

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but later re-processed his request with a corrected duty statement. (ECF No. 71-3 ¶¶ 72–76.)

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On December 6, 2011, Plaintiff filed a complaint with the Equal Employment Opportunity

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Commission (“EEOC”) and California Department of Fair Employment and Housing (“DFEH”).

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(ECF No. 71-3 ¶ 77.) Plaintiff states he returned to work on January 11, 2012, but went on leave

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again the next day when given a choice of being “written-up” for not having his resume available

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or working under an IDS supervisor. (ECF No. 69-1 ¶ 64; ECF No. 71-3 ¶¶ 78–79.) Defendant

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received a worker’s compensation Panel Qualified Medical Evaluator report and accepted

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Plaintiff’s reasonable accommodation request in March 2012. (ECF No. 69-1 ¶ 66.)

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Between 2012 and 2014, Defendant made at least 14 job offers to Plaintiff, and Plaintiff

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accepted the final offer. (ECF No. 69-1 ¶ 68; ECF No. 71-3 ¶¶ 84–101.) Plaintiff states he was

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released back to work by his doctor in May 2013. (See ECF No. 71-3 ¶¶ 85, 86.) On four

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occasions in 2014, the Reasonable Accommodations Program in the DMV’s Health Management

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Unit (“HMU”) requested Plaintiff provide an updated resume to help the search for a position he

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would find suitable. (ECF No. 69-1 ¶ 67.) In November 2014, Plaintiff accepted a SISA position

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in the Enterprise Risk Management Division, started in the role in January 2015, and remains in

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that job as of the time the parties filed their briefs in this motion. (ECF No. 69-1 ¶ 69; ECF No.

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71-3 ¶ 101.) Plaintiff believes Defendant had several suitable jobs available which Defendant did

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not offer Plaintiff. (ECF No. 71-3 ¶ 102.)

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Plaintiff asserts state law claims for disability discrimination and retaliation, race based

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discrimination, and retaliation, and federal claims for race based discrimination and retaliation.

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(ECF No. 28.) Defendant moves for summary judgment as to all claims. (ECF No. 69.)

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III.

STANDARD OF LAW

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Summary judgment is appropriate when the moving party demonstrates no genuine issue

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as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.

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R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary

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judgment practice, the moving party always bears the initial responsibility of informing the

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district court of the basis of its motion, and identifying those portions of “the pleadings,

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depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”

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which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof

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at trial on a dispositive issue, a summary judgment motion may properly be made in reliance

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solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at

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324 (internal quotations omitted). Indeed, summary judgment should be entered against a party

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who does not make a showing sufficient to establish the existence of an element essential to that

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party’s case, and on which that party will bear the burden of proof at trial.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities

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Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual

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dispute, the opposing party may not rely upon the denials of its pleadings, but is required to

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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in

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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must

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demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the

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suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that

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the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for

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the nonmoving party. Id. at 251–52.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to

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‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963

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amendments).

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In resolving the summary judgment motion, the court examines the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.

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R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence

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of the opposing party is to be believed, and all reasonable inferences that may be drawn from the
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facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.

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at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. Richards v.

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

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1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party

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“must do more than simply show that there is some metaphysical doubt as to the material facts.”

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Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of

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fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.

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IV.

ANALYSIS

Plaintiff asserts state law claims for (i) disability discrimination and retaliation in violation

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of California’s Fair Employment and Housing Act (“FEHA”), (ii) race based discrimination in

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violation of FEHA, and (iii) retaliation in violation of FEHA, and federal claims for (iv) race

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based discrimination in violation of Title VII of the Civil Rights Act (“Title VII”) and (v)

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retaliation in violation of Title VII. (ECF No. 28 at 8–12.) Defendant moves for summary

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judgment on all claims, arguing that there are no genuine issues of material fact. (ECF No. 69 at

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1–2.) The Court will address each claim in turn.

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The Court notes Defendant’s argument that Plaintiff “implicitly acquiesces to Defendant’s

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substantive legal arguments” by not addressing some arguments thoroughly or at all. (ECF No.

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72 at 2.) A district court may not grant summary judgment by default, even when the opposing

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party fails to oppose the motion. Fetter v. Placer Cty. Sheriff, 2017 WL 896275, at *3 (E.D. Cal.

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Mar. 6, 2017) (citing Cristobal v. Siegel, 26 F.3d 1488, 1494–95 n.4 (9th Cir. 1994)). A court

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must assess whether the movant’s papers are sufficient. Id. (citing United States v. Real Prop. at

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Incline Vill., 47 F.3d 1511, 1520 (9th Cir. 1995), rev’d on other grounds, 517 U.S. 820 (1996).

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A.

Disability Discrimination and Retaliation Claim Pursuant to FEHA.

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Plaintiff alleges he is disabled and Defendant discriminated against him by failing to

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reasonably accommodate him and by not engaging in an interactive process in violation of FEHA.

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(ECF No. 28 ¶¶ 75–77; ECF No. 71 at 18–20.) The undisputed facts show Plaintiff does not have

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a FEHA-recognized disability and Defendant is entitled to summary judgment on this claim.
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i.

Plaintiff’s disability discrimination claim fails.

FEHA prohibits an employer from discriminating against an employee because of the

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employee’s mental disability. Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728,

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745 (9th Cir. 2011) (citing CAL. GOV’T CODE § 12940(a)). A plaintiff asserting a claim for

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mental disability discrimination under FEHA must show (1) he suffers from a FEHA-recognized

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mental disability; (2) he is otherwise qualified to do the essential duties of his job with or without

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accommodation; and, (3) he was subjected to adverse employment action because of his

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disability. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015) (citing Faust v. Cal.

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Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007)).

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Plaintiff asserts that he has a mental disability because he cannot work under the

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supervision of anyone in the ISD chain of command due to the anxiety and stress that causes

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Plaintiff. (ECF No. at 28 ¶¶ 47, 49, 51; ECF No. 69-1 ¶ 65; ECF No. 71-3 ¶¶ 69, 71.) Plaintiff

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states this includes the Deputy Director of ISD and each supervisor. (ECF No. 69-1 ¶ 65.)

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“An employee’s inability to work under a particular supervisor because of anxiety and

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stress related to the supervisor’s standard oversight of the employee’s job performance does not

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constitute a disability under FEHA.” Higgins-Williams v. Sutter Med. Found., 237 Cal. App. 4th

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78, 84 (2015) (citing Hobson v. Raychem Corp. 73 Cal. App. 4th 614, 628 (1999) (holding “the

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inability to perform one particular job, or to work under a particular supervisor, does not

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constitute a qualified disability” under FEHA)).

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California courts have determined that this type of claim, colloquially referred to as a

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“boss-ectomy,” is not a FEHA-recognized mental disability. Higgins-Williams, 237 Cal. App. 4th

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at 85. Plaintiff cannot establish a required element of a disability discrimination case.

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ii.

Plaintiff’s disability retaliation claim fails.

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Plaintiff also asserts a claim for disability retaliation in violation of FEHA § 12940

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alleging Defendant failed to engage in a good faith, interactive process to make reasonable

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accommodation for Plaintiff’s mental disability. (ECF No. 28 ¶ 77; ECF No. 71 at 19–20.)

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To establish a claim for retaliation under § 12940, “a plaintiff must show (1) he engaged
in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment
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action, and (3) a causal link existed between the protected activity and the employer’s action.”

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Moore v. Regents of the Univ. of Cal., 248 Cal. App. 4th 216, 244 (2016).

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In August 2011, Plaintiff requested reasonable accommodation for the mental disability

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from which he said he suffered. (ECF No. 71-3 ¶ 71.) At the time, however, a request for

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accommodation did not constitute protected activity. Moore, 248 Cal. App. 4th at 245 (citing

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Rope v. Auto-Chlor Sys. of Wash., Inc., 220 Cal. App. 4th 635, 652 (2013) (determining there was

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“no support in the regulations or case law for the proposition that a mere request—or even

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repeated requests—for an accommodation, without more, constitutes a protected activity

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sufficient to support a claim for retaliation in violation of FEHA.”)).

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The California Legislature later amended §§ 12940(l)(4) and 12940(m)(2) “to provide

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protection against retaliation when an individual makes a request for reasonable accommodation

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under these sections, regardless of whether the request was granted.” Moore, 248 Cal. App. 4th at

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245 (citing Assem. Bill 987, § 1, subd. (d)). The Moore court found the amendments changed the

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law, adding protections for those requesting reasonable accommodation after the amendments’

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January 1, 2016, effective date. Id. at 247. Plaintiff cannot show he engaged in a protected

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activity, an element of retaliation, when he requested reasonable accommodation in 2011.

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Accordingly, Defendant’s motion for summary judgment on Plaintiff’s disability
discrimination and retaliation claim under FEHA is GRANTED.
B.

Title VII and FEHA Race Based Employment Discrimination Claims

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Plaintiff asserts claims for race based discrimination in violation of Title VII and FEHA.

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(ECF No. 28 ¶¶ 62–68, 82–87.) As discussed above, Plaintiff released Defendant from liability

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for events related to Plaintiff’s employment through April 30, 2008. Plaintiff’s factual allegations

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after that date relate to (i) his applications for promotion within DMV, (ii) his applications for

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positions with other agencies, (iii) the security breach he reported and subsequent investigation,

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(iv) the timeliness with which Defendant informed him of his exoneration, and (v) constructive

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discharge. (ECF No. 28 ¶¶ 31–61.)

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Plaintiff’s claims fail because he has not shown Defendant treated him differently than it
treated similarly situated employees of different races, a required element for a disparate
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treatment claim. Pinder v. Emp’t Dev. Dep’t., 227 F. Supp. 3d 1123, 1136 (E.D. Cal. 2017)

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(stating that “[a] plaintiff bringing a Title VII or FEHA racial discrimination action under a theory

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of disparate treatment must demonstrate at trial that his or her employer took one or more adverse

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employment actions against the plaintiff because of the plaintiff’s race”) (citing Desert Palace,

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Inc. v. Costa, 539 U.S. 90, 92–93, 99–100 (2003); Heard v. Lockheed Missiles & Space Co., 44

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Cal. App. 4th 1735, 1748 (1996)).

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i.

Title VII and FEHA Employment Discrimination Standard of Law

Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any

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individual, or otherwise to discriminate against any individual with respect to his compensation,

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terms, conditions, or privileges of employment, because of such individual’s race, color, religion,

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sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Because the objectives of and public policy

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purposes of Title VII and FEHA are identical, “courts frequently seek guidance from Title VII

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decisions when interpreting the FEHA.” Lyle v. Warner Bros. Television Prod., 38 Cal. 4th 264,

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278 (2006). “California courts apply the Title VII framework to claims brought under FEHA.”

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Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir. 2007) (citing Guz v. Bechtel Nat. Inc., 24 Cal.

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4th 317, 354 (2000)).

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A plaintiff can show disparate treatment under Title VII by offering proof: (1) that the

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plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff performed his or

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her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the

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plaintiff’s employer treated the plaintiff differently than a similarly situated employee who does

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not belong to the same protected class as the plaintiff. Cornwell v. Electra Cent. Credit Union,

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439 F.3d 1018, 1028 (9th Cir. 2006).

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ii.

The Court need not address the first three required elements.

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The parties have not disputed that Plaintiff, an African American, is a member of a

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protected class. They have also not disputed that during the relevant time period, from April 30,

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2008 on, he performed most job functions satisfactorily. Defendant does argue that Plaintiff did

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not suffer any adverse employment actions and that Defendant did accommodate him. Plaintiff,

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however, fails to meet the fourth element, showing Defendant treated him differently than
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similarly situated employees not in Plaintiff’s protected class, as required for a race based

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disparate treatment claim under Title VII or FEHA. The Court is able to decide this matter based

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on Plaintiff’s failure to meet that fourth element, so it need not discuss the first three elements.

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iii.

Plaintiff has not shown Defendant treated Plaintiff disparately.

Plaintiff asserts he suffered several adverse employment actions, (i) refusal to promote

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within DMV, (ii) Plaintiff’s applications for positions with other agencies, (iii) the security breach

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he reported and subsequent investigation, (iv) the timeliness with which Defendant informed him

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of his exoneration, and (v) constructive discharge. (ECF No. 28 ¶¶ 32–58.) He does not allege

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Defendant treated him differently than other employees in relation to these actions.

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Plaintiff does not allege that Defendant filled the promotion position or senior DMV

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positions with someone who was not a member of the same protected class, or continued to

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consider other applicants with comparable qualifications after rejecting Plaintiff. (ECF Nos. 28 &

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71.) Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). Plaintiff

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attributes his inability to find another position to changes in his position numbers in his electronic

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work history. (ECF No. 28 ¶¶ 30, 36, 37, 42.) Plaintiff states, however, that his position numbers

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changed because the Systems Test Unit was undergoing a reorganization, and he does not allege

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that Defendant treated any other employees differently. (ECF No. 69-1¶¶ 39, 40.) Similarly,

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Plaintiff raises a number of concerns regarding Defendant’s conduct during the investigation of

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the security breach and Plaintiff’s exoneration. (ECF No. 28 ¶¶ 45, 46; ECF No. 69-1 ¶¶ 51, 54,

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55, 58, 64; ECF No. 71 at 14.) Plaintiff again does not allege a single instance in which

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Defendant treated him differently than any other similarly situated employee.

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Plaintiff also asserts Defendant discriminated against him by constructively discharging

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him by refusing to provide reasonable accommodation for his disability. (ECF No. 28 ¶ 58.)

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Plaintiff has not alleged that he resigned, a required element for constructive discharge, and has

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not alleged that Defendant treated him differently than other employees in relation to his request

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for accommodation. King v. AC & R Advert., 65 F.3d 764, 767 (9th Cir. 1995) (citing Turner v.

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Anheuser–Busch, Inc., 7 Cal. 4th 1238, 1251 (1994)); Levy v. Cty. of Alpine, No. 2:13-CV-02643-

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KJM-CKD, 2016 WL 916251, at *8 (E.D. Cal. Mar. 10, 2016).
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Plaintiff has not shown Defendant treated him differently from similarly situated

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employees in relation to any challenged actions and cannot meet the fourth element required for a

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race based disparate treatment claim. There are, therefore, no genuine issues of material fact as to

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Plaintiff’s employment discrimination claims. Accordingly, Defendant’s motion for summary

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judgment on Plaintiff’s employment discrimination claims under Title VII and FEHA is

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GRANTED.

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C.

Title VII and FEHA Retaliation Claims

Plaintiff asserts Defendant retaliated against him in violation of Title VII and FEHA for

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filing a discrimination complaint against Defendant. (ECF No. 28 ¶¶ 69–74, 88–94.) Plaintiff

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filed a discrimination complaint with DFEH in 2003 and later filed discrimination complaints

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with EEOC and DFEH on December 6, 2011, amended on April 25, 2013. (ECF No. 28 ¶¶ 12,

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59.) Plaintiff does not specify whether he believes Defendant retaliated against him for filing the

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2003 or 2011 filings, but he refers to both at different points in his opposition. (ECF No. 71 at

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14, 18.) Plaintiff’s claims fail because he has not shown that he suffered an adverse employment

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action related to his 2003 or 2011 complaints under either the Title VII or FEHA standard.

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A plaintiff asserting a claim for retaliation must show (1) that he engaged in a protected

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activity; (2) he suffered an adverse employment action; and (3) a causal link exists between the

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protected activity and the adverse employment action. Cornwell, 439 F.3d at 1034–35 (citing

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Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)).

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Filing a discrimination complaint is a protected activity under FEHA and Title VII.

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Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1035 (2005); Cohen v. Fred Meyer, Inc., 686

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F.2d 793, 796 (9th Cir. 1982). Under Title VII, an adverse employment action might “dissuade[]

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a reasonable worker from making or supporting a charge of discrimination.” Burlington N. &

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Santa Fe Rwy. Co. v. White, 548 U.S. 53, 68 (2006). Under FEHA, the action “must materially

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affect the terms, conditions, or privileges of employment.” Yanowitz, 36 Cal. 4th at 1052.

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i.

Plaintiff’s 2003 complaint.

Plaintiff states that Defendant engaged in a “series of retaliatory actions” beginning
“immediately after” Plaintiff filed his 2003 DFEH complaint. (ECF No. 71 at 18.) It is difficult
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to know to which actions Plaintiff refers. As discussed above, Plaintiff waived all claims for

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events related to his employment with Defendant through April 30, 2008 in the Settlement.

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Plaintiff describes the incident or incidents to which he refers as beginning “immediately” after

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he filed his 2003 DFEH complaint. (ECF No. 71 at 18.) Any actions taking place after April 30,

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2008, could not reasonably be described as having taken place “immediately” after Plaintiff filed

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his complaint about five years earlier. See Black’s Law Dictionary 764 (8th ed. 2004) (defining

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“immediate” as “[o]ccurring without delay; instant”). Plaintiff has not shown he suffered an

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adverse employment action in retaliation for his 2003 complaint.

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ii.

Plaintiff’s 2011 complaints.

Plaintiff argues “a reasonable inference can be drawn from Defendant’s refusal to

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accommodate Plaintiff’s disability was in retaliation for filing discrimination complaint.” [sic]

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(ECF No. 71 at 14.) Plaintiff claims that the adverse employment action he suffered was

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Defendant’s failure to reasonably accommodate his mental disability, and that Defendant engaged

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in this action in retaliation for Plaintiff filing his 2011 complaints. (ECF No. 71 at 14.)

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Plaintiff’s claim fails because Defendant was not required to accommodate him as he does not

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have a recognized disability.

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“FEHA requires employers to make reasonable accommodation for the known disability

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of an employee unless doing so would produce undue hardship to the employer’s operation.”

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Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 373 (2015) (citing CAL. GOV. CODE, §

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12940, subd. (m)). “The elements of a reasonable accommodation cause of action are (1) the

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employee suffered a disability, (2) the employee could perform the essential functions of the job

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with reasonable accommodation, and (3) the employer failed to reasonably accommodate the

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employee’s disability.” Nealy, 234 Cal. App. 4th at 373 (citing Wilson v. County of Orange 169

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Cal. App. 4th 1185, 1192 (2009)). As discussed above, Plaintiff does not have a FEHA-

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recognized disability and so cannot meet the first element of showing that he suffered a disability.

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Plaintiff cannot show Defendant failed to reasonably accommodate his mental disability

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because he does not have a FEHA-recognized mental disability and he was accommodated with

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multiple job offers, including the one he ultimately accepted. There is no genuine issue of

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material fact as to Plaintiff’s retaliation claims under Title VII and FEHA.

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Accordingly, Defendant’s motion for summary judgment on Plaintiff’s retaliation claims
under Title VII and FEHA is GRANTED.

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V.

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For the reasons set forth above, Defendant’s Motion for Summary Judgment (ECF No. 69)

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is GRANTED. The Clerk of Court shall enter judgment in favor of Defendant and close this case.

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CONCLUSION

IT IS SO ORDERED.

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Dated: August 17, 2017

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Troy L. Nunley
United States District Judge

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