Perez v. City of Roseville, et al

Filing 52

ORDER signed by Judge Garland E. Burrell, Jr on 6/18/15 ORDERING that each Defendant's Motion for Summary Judgment 28 is GRANTED;J udgment shall be entered in favor of each Defendant. CASE CLOSED. (Mena-Sanchez, L)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JANELLE PEREZ, an individual, 9 Plaintiff, 10 11 12 13 14 No. 2:13-CV-2150-GEB-DAD v. ORDER GRANTING EACH DEFENDANT’S SUMMARY JUDGMENT MOTION CITY OF ROSEVILLE, ROSEVILLE POLICE DEPARTMENT, CHIEF DANIEL HAHN, an individual; CAPTAIN STEPHAN MOORE, an individual; and LIEUTENANT CAL WALSTAD, an individual, Defendants. 15 The 16 following Defendants seek summary judgment on 17 claims in Plaintiff’s First Amended Complaint (“FAC”): City of 18 Roseville 19 Department”), 20 Department 21 Lieutenant Cal Walstad. Plaintiff Janelle Perez alleges gender 22 discrimination claims against each Defendant under Title VII of 23 the federal Civil Rights Act of 1964 (“Title VII”) and under 24 California’s Fair Employment and Housing Act (“FEHA”), and that 25 Chief Hahn, Captain Moore, and Lieutenant Walstad (collectively 26 the 27 constitutional rights to intimate association, privacy, and due 28 process. (“the City”), Police Captain “Individual Roseville Department Stephan Officer Police Chief Moore, Defendants”) 1 Department Daniel and Hahn, Police violated (“Police Police Department her federal 1 I. LEGAL STANDARD 2 5 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 summary judgment as a matter of law.” . . . The moving party has the burden of establishing the absence of a genuine dispute of material fact. 6 City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 7 2014) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp. v. 8 Catrett, 477 U.S. 317, 323 (1986)). “A fact is ‘material’ when, 9 under the governing substantive law, it could affect the outcome 10 of the case.” Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav. 11 Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A “dispute about 13 a material fact is ‘genuine,’ . . . if the evidence is such that 14 a 15 party.” Anderson, 477 U.S. at 248. Summary judgment “evidence 16 must be viewed in the light most favorable 17 party, and all reasonable inferences must be drawn in favor of 18 that party.” Sec. & Exch. Comm’n v. Todd, 642 F.3d 1207, 1215 19 (9th Cir. 2011) (citing Johnson v. Paradise Valley Unified Sch. 20 Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)). 3 4 21 22 23 24 25 26 27 28 reasonable jury could return a verdict for the nonmoving to the nonmoving 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 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). However, if the nonmovant does not “specifically . . . [controvert duly supported] facts identified in the [movant’s] 2 1 4 statement of undisputed facts,” the nonmovant “is deemed to have admitted the validity of the facts contained in the [movant’s] statement.” Beard v. Banks, 548 U.S. 521, 527 (2006). A district court has “no independent duty ‘to scour the record in search of a genuine issue of triable fact.’” 5 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 6 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 7 1996)). 2 3 II. UNCONTROVERTED FACTS 8 9 Each party submitted facts concerning the motion. The 10 following facts are undisputed or “deemed” uncontroverted since 11 they have not been controverted with specific facts as required 12 by Local Rule 260(b).1 See Beard, 548 U.S. at 527 (stating when a 13 party fails to “specifically . . . challenge the facts identified 14 in [another party’s] statement of undisputed facts,” the validity 15 of the unchallenged facts is “deemed” to have been admitted). In 16 with 2011, the Plaintiff City. applied (Pl.’s Opp’n for to a Police Defs.’ Officer 17 position Statement 18 Undisputed Facts (“Def. SUF”) ¶ 3, ECF No. 35.) She was hired and 19 received an “offer letter” from Chief Hahn dated January 4, 2012, 20 which states she would “serve a probationary period of twelve 21 (12) months[, and d]uring [her] probationary period [she] may be 22 23 24 25 26 27 28 1 Local Rule 260(b) prescribes: Any party opposing a motion for summary judgment or summary adjudication [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. 3 of 1 released from City service with or without cause at the sole 2 discretion of the City.”2 (Hahn Decl. ¶ 4 Ex. A, ECF No. 32-1.) 3 Plaintiff began her probationary period on January 9, 4 2012. (Def. SUF ¶¶ 8, 10.) 5 a few months into the assignment, she and another officer, Shag 6 Begley (“Begley”) initiated a personal relationship; at the time, 7 Plaintiff 8 married 9 Material Facts ISO Pl. Opp’n (“Pl. SUF”) ¶¶ 8-10, ECF No. 36.) On and to about Begley other both individuals. 2012, separated (Separate Begley’s but Statement of Begley, Add’l citizen complaint concerning Plaintiff and Begley. (Def. SUF ¶¶ 12 23-24.) She alleged in that complaint that Plaintiff and Begley 13 were having an affair and “suggested that Begley and [Plaintiff] 14 were engaging in romantic interactions while on-duty.” (Def. SUF 15 ¶¶ 26-27.) Internal Affairs (“IA”) opened an investigation of the 16 complaint, which was headed by Lieutenant Troy Bergstrom. (Def. 17 SUF 18 evidence of sexual conduct between Plaintiff and Begley while on- 19 duty, but that Plaintiff and Begley “made a number of calls and 20 texts when one or both was on duty” and these communications were 21 “potentially” violations of Police Department policy. (Def. SUF 22 ¶¶ 36-38.) Bergstrom Leah legally 11 Lieutenant wife, from, or 28-29.) 6, were 10 ¶¶ June She was given a patrol assignment and concluded there filed was a no 23 Lieutenant Bergstrom provided his IA report to Captain 24 Moore “for review and decision about whether disciplinary action 25 26 27 28 2 The “City” referenced in the letter is the department head, Chief Hahn, since Section 3.06.160 of the City of Roseville Personnel Rules & Regulation prescribes that probationary employees receive permanent employment “[i]f at the conclusion of the employee’s probationary period, the employee’s performance has been satisfactory in the opinion of the department head.” (Hahn Decl. Ex. B, ECF No. 31-1) (emphasis added.) 4 1 should 2 Lieutenant 3 recommending findings; Lieutenant Walstad recommended in a memo 4 dated July 10, 2012 that the Department find Plaintiff’s and 5 Begley’s on-duty cellphone use violated Police Department policy. 6 (Def. 7 Walstad’s findings and “felt” Plaintiff should be released from 8 probation, but Chief Hahn “disagreed and felt a reprimand was” 9 the be imposed.” Walstad SUF ¶¶ (Def. to ¶ review 42-43.) appropriate SUF the Captain sanction. 39.) (Def. Captain report Moore SUF for agreed ¶¶ Moore the purpose with 49-50.) assigned of Lieutenant Captain Moore 10 “issued a findings memo to each Perez and Begley stating that two 11 alleged policy violations were ‘sustained;’” and he “also issued 12 written reprimands dated August 23, 2012, to both Begley and 13 Perez, stating: (1) they made personal telephone calls while on 14 duty that interfered with their work performance in violation of 15 [Policy 16 relationship 17 Department in violation of [Policy Manual] section 340.3.5(aa).” 18 (Def. SUF ¶¶ 51-52.) 19 Manual] section impacted Plaintiff and 340.3.5(c); and and reflected Begley appealed (2) their unfavorably their personal upon reprimands the and 20 Plaintiff’s appeal meeting with Chief Hahn was scheduled to be 21 held 22 conclusion of her appeal meeting, Chief Hahn advised Plaintiff 23 she was being released from probation and provided her with a 24 written notice of dismissal, effective September 4, 2012. (Def. 25 SUF ¶¶ 55, 91, 94.) The written notice was prepared in advance of 26 the meeting and Chief Hahn declares he “had already decided to 27 terminate [Plaintiff’s probationary] employment based on . . . 28 additional on September 4, information 2012. he (Def. had 5 SUF learned ¶¶ 53, [before 55.) he At met the with 1 Plaintiff on her appeal]”. (Def. SUF ¶ 97.) 2 III. DISCUSSION 3 A. 4 Title VII and FEHA Claims Each Defendant seeks summary judgment on Plaintiff’s 5 discrimination 6 employment 7 assert Plaintiff’s probation was terminated for legitimate, non- 8 discriminatory 9 Specifically, Chief Hahn, who terminated Plaintiff’s employment 10 approximately eight months after she commenced her twelve month 11 probation period, declares he terminated her employment for three 12 reasons: 13 was claims, in terminated reasons which she because that are of alleges her unrelated her probationary gender. to Defendants her 19 [First,] [s]ometime between the conclusion of the IA investigation and September 4, 2012, [Chief Hahn] learned from Lieutenant Maria Richardson that some of the Department’s female officers had raised concerns about [Plaintiff’s] attitude and poor communication skills with them. When [he] learned this, [Chief Hahn] recalled there being similar issues of concern from [Plaintiff’s] background investigation report regarding her relationships with female officers at her old department[, the South San Francisco Police Department.]3 20 . . . . 21 gender. [When the Police Department] performed the customary pre-employment background investigation regarding Plaintiff, [it revealed] some issues of concern regarding her attitude and conflict with other female officers at her former department . . . [but] 14 15 16 17 18 22 23 24 25 26 27 28 3 Plaintiff objects to this South San Francisco Police Department evidence arguing it is vague, ambiguous, hearsay, and improper character evidence. Defendants counter the evidence is not hearsay since it “is not offered to prove the truth of the matter asserted, but rather for its effect on” Chief Hahn, and that it is not improper character evidence since it is offered for the limited purpose of explaining Chief Hahn’s decision. (Def.s’ Reply to Mem. P&A Opp’n Def. Mot. Summ. J. ¶ 6, ECF No. 48-1.) In light of Defendants’ stated purpose of this evidence, the objections are overruled. 6 1 2 3 4 5 6 7 8 9 10 it was unclear whether those conflicts were entirely her fault. . . . . [Second,] [s]ometime in mid-to late-August 2012, [Chief Hahn] learned from Lieutenant Troy Bergstrom of a citizen complaint about [Plaintiff] that had come in through the Department’s online “complaint or concern” system. The complaint arose out of a domestic violence related call and what the complainant viewed as rude or inappropriate statements by [Plaintiff]. . . . Apparently [the complainant] did not wish to pursue it further, and [the Police Department] did not open a formal internal investigation. 23 [Third,] [o]n or about August 30, 2012, [Chief Hahn] had a conversation with Sargent Kelby Newton and Lieutenant Marc Glynn about a shift trade issue that had arisen involving [Plaintiff]. Sargent Newton, who at the time was . . . tasked with many scheduling and administrative matters, had contacted [Plaintiff] to determine when she would work the ‘back end’ of a shift trade she had . . . arranged with Begley . . . . Sargent Newton told [Chief Hahn that Plaintiff] had demonstrated a bad attitude with him on the phone, taking the position that it was none of the department’s business when she worked the trade shift, and that it was between her and Begley (which is how she said it was done at her old department). . . . Newton told [Chief Hahn that Plaintiff’s] attitude with him on the phone was so bad he actually asked her what he had done to upset her, and she told him words to the effect that it wasn’t him but the Department was treating her poorly. [Chief Hahn] was very concerned about the attitude [Plaintiff] had displayed with Sargent Newton. Newton later documented his conversation with [Plaintiff] in a written memo and [Chief Hahn] received a copy. 24 . . . . 25 Shortly after [Chief Hahn’s] August 30 conversation with Sargent Newton, [he] decided, based on all the new issues of concern [he] had recently learned from [Sargent Newton], Lieutenant Richardson, and Lieutenant Bergstrom, to release [Plaintiff] from probation. 11 12 13 14 15 16 17 18 19 20 21 22 26 27 28 7 1 (Hahn Decl. ¶¶ 3, 14-17, 19, ECF No. 32.) 2 Defendants, through counsel, also argue a fourth reason 3 for Plaintiff’s termination was “Chief Hahn’s knowledge from the 4 IA report that Perez had engaged in personal communications while 5 on duty and while involved in police duties.” (Mem. ISO Defs.’ 6 Mot. Summ. J. (“Mot.”) 8:7-8, ECF No. 29.) However, Chief Hahn 7 avers he “did not release [Plaintiff] from probation based on the 8 results of the IA investigation . . . [since making] personal 9 calls 10 during work time . . . was a concern, but not one warranting termination.” (Hahn Decl. ¶ 27.) 11 Plaintiff responds that each asserted legitimate non- 12 discriminatory reason for terminating her probationary employment 13 was a pretext for gender discrimination, and that her gender was 14 a motivating factor in the Chief’s termination decision. 15 Plaintiff’s Title VII and FEHA gender discrimination 16 claims “operate under the same guiding principles,” and therefore 17 “we need only assess her claim[s] under federal law.” Brooks v. 18 City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (citing 19 Beyada v. City of L.A., 65 Cal. App. 4th 511, 517 (1998)). 20 1. 21 A “plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” If a plaintiff uses circumstantial evidence to satisfy this burden, such evidence “must be specific” and “substantial.” “An employee in this situation can not simply show the employer’s decision was wrong, mistaken, or unwise.” “Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for 8 22 23 24 25 26 27 28 Pretext 1 3 its action that a reasonable factfinder could rationally find them unworthy of . . . credence . . . and hence infer that the employer did not act for the . . . nondiscriminatory reasons.” 4 Dep’t of Fair Emp’t and Hous. v. Lucent Tech., Inc., 642 F.3d 5 728, 6 omitted.) “In assessing whether the employer’s reason for the 7 action is pretextual, ‘it is not important whether [the proffered 8 justification] is objectively false,’ . . . . ‘[r]ather, courts 9 only require that an employer honestly believed its reason for 10 its actions, even if its reason is foolish, or trivial or even 11 baseless.” Westendorf v. West Coast Contractors of Nev., Inc., 12 712 F.3d 417, 425 (9th Cir. 2013) (citing Villiarimo v. Aloha 13 Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)). “All of 14 the 15 cumulatively. 16 2012). 2 746 (9th Cir. evidence—whether Shelley a. 17 2011) (emphasis direct v. or Geren, added, internal indirect—is 666 F.3d to be 599, 609 citations considered (9th Cir. Rapport with Female Co-Workers 18 Plaintiff responds to Chief Hahn’s averment that her 19 probationary employment was terminated because of her negative 20 rapport 21 pretext for gender discrimination since she testified during her 22 deposition that she “did not think” she had ever worked with 23 another female officer at the Police Department, and her July 24 2012 performance evaluation listed her communication skills as 25 satisfactory. (O’Dowd Decl. Ex. C (“Perez Dep. Tr.”) 61:24-62:7, 26 ECF No. 38; O’Dowd Decl. ¶ 13 Ex. U, ECF Nos. 37, 43.)4 27 4 28 with female co-workers, contending this reason is a Defendants object to Plaintiff’s performance evaluation arguing it has not been properly authenticated, Plaintiff lacks foundation, and the content of the evaluation is hearsay. (Pl. SUF ¶ 85.) Plaintiff’s counsel 9 1 Plaintiff’s testimony that she “did not think” she had 2 worked with any female officers does not controvert Chief Hahn’s 3 declaration that he learned she had “poor communication” with 4 other female officers since an employee does have to engage in an 5 assigned work task with other officers to communicate with them. 6 Further, Plaintiff’s testimony that she “did not think” she had 7 worked with any female officer does not evince that she remembers 8 whether 9 Plaintiff’s July 2012 performance evaluation support drawing a 10 reasonable inference of gender discrimination since it reported 11 how Plaintiff’s performance was perceived before Chief Hahn spoke 12 with Lieutenant Richardson “[s]ometime between the conclusion of 13 the IA investigation and September 4, 2012.” (Hahn Decl. ¶ 14.)5 14 Therefore 15 reasonable inference could be drawn that Chief Hahn’s reliance on 16 this reason for terminating her probationary employment was a 17 pretext for gender discrimination. 18 she in fact Plaintiff b. worked has not with a female presented officer. evidence from Nor does which a “Agitated” Communication with a Superior 19 Plaintiff responds to Chief Hahn’s averment that her 20 probationary employment was terminated because he learned from 21 22 23 24 25 26 27 28 declares that the document was created by the Police Department and produced by Defendants in discovery. Therefore, Defendants’ authentication and foundation objections are overruled. See Orr v. Bank of Am., NT&SA, 285 F.3d 764, 777 n.20 (9th Cir. 2002) (citing Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir. 1996) for the proposition that “documents produced by a party in discovery were deemed authentic when offered by the party-opponent.”). Further, Defendants have not shown that the content of the documents are hearsay in the situation here where they are used “against an opposing party.” Fed. R. Evid. 801(d)(2). 5 Chief Hahn does not specify when “the conclusion of the IA investigation” occurred. (Hahn Decl. ¶ 14.) However, it is uncontroverted that Lieutenant Bergstrom provided his IA report to Captain Moore for review by at least July 10, 2012, (Def. SUF ¶¶ 39, 42-43), and that Captain Moore “issued a findings memo to . . . [Plaintiff] stating that two alleged policy violations [against her] were ‘sustained’” on August 23, 2013. (Def. SUF ¶¶ 51-52.) 10 1 Sargent Newton that Plaintiff had an “agitated” discussion with 2 Newton, contending it is a pretext for gender discrimination, and 3 that this is evidenced by Chief Hahn’s violation of standard 4 operating procedure by forcing Sargent Newton to write a memo 5 about the matter. Plaintiff supports her position citing Sargent 6 Newton’s deposition testimony in which he testified that after 7 speaking on the phone with Plaintiff, he was called to Lieutenant 8 Glynn’s office and upon arrival he saw Lieutenant Glynn, Captain 9 Moore, and Chief Hahn; Sargent Newton only expected to see 10 Lieutenant Glynn; Newton’s superiors then asked him to write a 11 memo about his conversations with Plaintiff. (Newton Dep. Tr. 12 38:14-39:13.) Sargent Newton also testified it was “weird” that 13 he was asked to write a memo since he “ha[d] never written a memo 14 about a phone conversation before” in seventeen years working for 15 the Police Department, and when he saw Captain Moore and Chief 16 Hahn 17 38:15-39:6.) he 18 “kn[ew] something However, going on.” evidence this [was] does not (Newton Dep. “demonstrate Tr. such 19 weaknesses . . . in . . . [Chief Hahn’s] proffered legitimate 20 reason[] for 21 that reasonable 22 termination reason] unworthy of . . . credence.” Lucent Tech., 23 Inc., 642 F.3d at 746 (internal citations omitted). Chief Hahn 24 did not need a memo memorializing the communications to justify 25 relying 26 probationary employment. Chief Hahn declares he spoke to Sargent 27 Newton directly about the issue before Sargent Newton wrote the 28 memo, averring: a on [terminating them Plaintiff’s factfinder as a basis 11 could for probationary rationally terminating employment] find [this Plaintiff’s 1 On or about August 30, 2012, I had a conversation with Sgt. Kelby Newton and Lt. Marc Glynn about a shift trade issue that had arisen involving Perez. Sgt. Newton, who at the time was the day shift sergeant tasked with many scheduling and administrative matters, had contacted Perez to determine when she would work the “back end” of a shift trade she had apparently informally arranged with Begley without using the Department’s approval form. During our conversation, Sgt. Newton told me Perez had demonstrated a bad attitude with him on the phone, taking the position that it was none of the department’s business when she worked the trade shift, and that it was between her and Begley (which is how she said it was done at her old department). Perez also apparently inquired as to whether it was Lt. Richardson who gave Newton direction to follow up on the matter (it had not been − Newton was performing his typical duties and reporting the issue to his own lieutenant, Lt. Glynn). Newton told me Perez’ attitude with him on the phone was so bad that he actually asked her what he had done to upset her, and she told him words to the effect that it wasn’t him but the Department was treating her poorly. I was very concerned about the attitude Perez had displayed with Sgt. Newton. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 (Hahn Decl. ¶¶ 16-17.) Plaintiff has not presented a genuine 18 issue of material fact concerning whether Chief Hahn honestly 19 believed 20 Newton, and displayed a bad attitude that concerned him. Plaintiff c. 21 had an conversation with Sargent Citizen Complaint Concerning Domestic Violence 22 agitated Call 23 Plaintiff also contends that Chief Hahn’s averment that 24 her probationary employment was terminated because of a citizen 25 complaint, in which it was alleged that Plaintiff was rude during 26 a 27 discrimination. Plaintiff cites Chief Hahn’s deposition testimony 28 where he “testified that he felt no need to get [Plaintiff’s] domestic violence investigation, 12 is a pretext for gender 1 side of the story” as support for this contention; Plaintiff 2 contends this failure “mitigates the importance of the [citizen] 3 complaint” and “bears on the complaint’s veracity.” (Mem. P&A 4 Opp’n 5 Plaintiff also states Chief Hahn testified that the complaint 6 never rose to the level of a formal investigation and that he did 7 not know if anyone had ever talked with Plaintiff about the 8 incident; 9 “interested Defs.’ Mot. and in Summ. that J. when hearing (“Opp’n”) Chief 14:17-21, Hahn [Plaintiff’s] was side ECF asked of No. if the 34.) he story,” was he 10 answered, “Well, we would have [if] it was an internal affairs 11 complaint, but it never became one.” (O’Dowd Decl. Ex. A (“Hahn 12 Dep. Tr.”) 55:24-56:7, ECF No. 38.) 13 Even if Chief Hahn’s reliance on the complaint is 14 considered trivial, when viewing this evidence in the light most 15 favorable to Plaintiff as required under the summary judgment 16 standard, Plaintiff has 17 reliance on complaint 18 discrimination. 19 20 the d. Plaintiff not shown that was a Chief Hahn’s pretext for declared gender Cumulative Evidence argues that the cumulative weight of the 21 evidence evinces that Chief Hahn’s stated reasons for terminating 22 her employment were pretext for gender discrimination. Defendants 23 respond that Plaintiff has not countered their 24 25 26 27 28 evidentiary showing with specific facts from which a reasonable inference can be drawn that Defendants’ proffered explanation for her release from probation is a pretext for discrimination[;] and [d]istilled to its essence, [Plaintiff’s] . . . attempt to establish pretext relies on her own speculative belief that Chief Hahn was motivated by her gender when he released her 13 1 from probation. 2 (Def. Reply (“Reply”) 8:8-12, 3 respond that Plaintiff has not overcome the same actor inference 4 principle, which creates a strong presumption that there was no 5 discriminatory 6 employment, 7 hired and fired by the same individual within a 12-month period. reason under the for ECF No. 48.) terminating circumstances here Defendants her where also probationary Plaintiff was 8 “[W]here the same actor is responsible for both the 9 hiring and firing of a discrimination plaintiff, and both actions 10 occur within a short period of time, a strong inference arises 11 that there was no discriminatory motive.” Bradley v. Harcourt, 12 Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996) (finding that 13 terminating an employee after 12-months occurred within a short 14 period of time). It is uncontroverted that Chief Hahn was the 15 decision-maker responsible for both hiring Plaintiff in January 16 2012 and terminating her probationary employment in September 17 2012. (Def. SUF ¶¶ 7-8, 94-95.) 18 ‘strong inference’ that a court must take into account on a 19 summary judgment motion.” Schechner v. KPIX-TV, 686 F.3d 1018, 20 1026 (9th Cir. 2012). “The same-actor inference is a 21 Chief Hahn is entitled to the strong inference arising 22 from the same-actor principle, and this inference weighs heavily 23 against the inferences Plaintiff seeks to have drawn from the 24 evidence 25 discrimination claims. 26 2. 27 Plaintiff argues that even if there is insufficient 28 evidence from which a reasonable inference could be drawn that on which she relies in support of her gender Mixed-Motive Theory 14 1 the stated reasons for terminating her probationary employment 2 were 3 Defendants’ 4 “evidence show[s] [that her termination] was motivated, at least 5 in 6 Plaintiff 7 treated more favorably by the Police Department than she was, and 8 that their more favorable treatment evinces that her gender was a 9 motivating 10 pretext part, for gender motion by under [her] argues a in and Chief she mixed-motive gender.” Begley factor discrimination, (Opp’n male Hahn’s still theory 15:27-28.) probationary decision to defeats since her Specifically, officers were terminate her probationary employment.6 11 Even where “the evidence . . . permit[s] a finding that 12 [an employer] has a legitimate 13 plaintiff’s 14 employer is error if “a reasonable factfinder could conclude that 15 the [termination] decision was motivated at least in part by 16 [plaintiff’s] gender.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 17 F.3d 1027, 1041 (9th Cir. 2005). Under the mixed-motive theory, 18 “unlawful [termination] is established when the complaining party 19 demonstrates that . . . [gender] was a motivating factor for [her 20 termination], even 21 motivated [termination].” 22 added). 23 /// employment],” the though summary other 42 reason for judgment in [legitimate] U.S.C. § [terminating favor of factors 2000e-2 a the also (emphasis 24 25 26 27 28 6 Plaintiff also cites the experiences of another female officer, Officer Greene, who claims she experienced gender discrimination when applying for a promotion at the Police Department, in support of her argument that gender was a motivating factor in Chief Hahn’s decision to terminate Plaintiff’s employment. However, Plaintiff fails to present evidence that Chief Hahn was involved in Officer Greene’s allegedly discriminatory experience at the Police Department and therefore, Plaintiff fails to show this evidence is relevant to her claims. 15 1 a. Begley’s Treatment 2 Plaintiff argues her mixed-motive gender discrimination 3 position is evinced by the following differences between how the 4 Police Department treated her and how it treated Begley: (1) she 5 “was 6 Department 7 notification meeting” yet “[t]his female sergeant was not present 8 when 9 although terminated, while included Begley was one a Begley female notified” of Chief was of sergeant the Hahn’s IA (2) in “the [Police] [Plaintiff’s] investigation; stated reasons 10 Plaintiff’s 11 conversation she 12 conversation with 13 had with his Defendants employment IA and, (3) for an a superior, superior reply was terminating “agitated” terminated for this behavior.” (Opp’n 11:20-25.) 14 probationary not;” but that Begley “was Begley’s not had a similar reprimanded employment was or not 15 terminated since “there is no evidence of him engaging in the 16 behavior that collectively led” Chief Hahn to release Plaintiff 17 from probation, and even if Plaintiff could show her probation 18 was 19 “successfully 20 performance history,” showing he had a “dissimilar employment 21 status” to Plaintiff. (Reply 3:5-16.) Defendants support their 22 position citing the uncontroverted facts that Begley “was hired 23 by 24 period, and had a positive performance history.” (Def. SUF ¶ 25.) 25 Defendants 26 Lieutenant Bergstrom is not evidence that Plaintiff’s gender was 27 a motivating factor in her termination since “[t]he circumstances 28 of terminated the the City as a passed in also result of probation 2007, argue the years successfully that Begley/Bergstrom IA 16 and completed Begley’s exchange ago investigation, “heated were had his a Begley positive probationary exchange” different from with the 1 [Plaintiff]/Newton 2 Defendant 3 relationship . . . and Bergstrom invited Begley to say what was 4 on his mind . . . . [while Plaintiff] and Newton had no such 5 history . . . [;] nor did she ask for or receive the proverbial 6 ‘permission to speak freely.” (Reply 3:26-4:1.) Defendants cite 7 the following uncontroverted fact in support for their position: 8 when Begley and Bergstrom had what Plaintiff refers to as a 9 “heated argument,” “Bergstrom invited Begley (who he ‘knew pretty 10 well’) to say what was on his mind and not beat around the bush.” 11 (Def. SUF ¶ 41.) 12 argues exchange.” “Begley Plaintiff (Reply and supports 3:23-26.) Bergstrom her had position Specifically, an established concerning IA 13 notification meeting by citing Lieutenant Bergstrom’s deposition 14 testimony where he testified he brought a female sergeant with 15 him to inform Plaintiff of the IA investigation, but he was not 16 accompanied by a female officer when he informed Begley of the IA 17 investigation. 18 this treatment in his deposition as follows: because of “[t]he 19 type 20 [Plaintiff] feel more comfortable if [a female] was there[;]” 21 however, Bergstrom was not accompanied by a female sergeant when 22 he informed Begley of the IA investigation since Begley is “male” 23 and Bergstrom “kn[ew] Officer Begley, so it’s different.” (O’Dowd 24 Decl. Ex. F Bergstrom Dep. Tr. 40:20-42:12, ECF No. 38.) of Lieutenant Bergstrom explained the difference in allegation that it was, [he thought] it might make 25 Plaintiff also relies on Begley’s deposition testimony 26 to show that he also had an agitated conversation with a superior 27 and yet was not disciplined. 28 argument” with Lieutenant Bergstrom after he was notified about Begley testified he had a “heated 17 1 the IA investigation; both men yelled, but “nothing came of” it. 2 (Begley Dep. Tr. 90:16-92:12.) 3 Although was Begley 6 conduct that Chief Hahn declares justified releasing Plaintiff 7 from 8 explained 9 informed about the IA investigation demonstrates that her gender 10 was a motivating factor in the termination decision. Moreover, 11 Chief Hahn has not been shown to lack credence regarding his 12 concern 13 communicating with a superior officer about a shift scheduling 14 matter. how having about the a bad female position. officer attitude evidence Nor present Plaintiff does been support drawing a reasonable inference that Begley engaged in the employment the have 5 probationary terminated, should terminated 15 she argues 4 her since Plaintiff has not Plaintiff when she displayed was when b. Treatment of Male Probationary Officers 16 Plaintiff also argues that the Police Department 17 treated male probationary officers more favorably than she was 18 treated, and that this evinces her gender was a motivating factor 19 in Chief Hahn’s decision to terminate her employment. Plaintiff 20 argues “male lateral officers with similar or less experience 21 [than she had]. . . were released early from the field training 22 program, while [Plaintiff] was required to do the full ten (10) 23 work weeks.” (Opp’n 12:9-11.) Plaintiff supports of her position 24 citing the field evaluations of a male officer, but does not 25 identify 26 officer’s field training, (O’Dowd Decl. Ex. L);7 and cites her 27 7 28 where the evaluations indicate the length of the Plaintiff also cites to her own deposition testimony where she testified that three male officers completed their field training program in less than ten weeks, however she “d[id not] remember” the source of this 18 1 declaration in which she avers that she spent ten “work weeks” in 2 field training while a male coworker spent only nine.8 (Perez 3 Decl. ¶ 2.) Plaintiff also argues that Captain Moore testified 4 “he wanted to terminate [Plaintiff’s employment] as soon as she 5 was the subject of the initial IA, based on his . . . ‘personal 6 experience . . . that a problem in someone’s . . . 7 period is often a red flag for future problems,’” yet “[a]t least 8 two . . . male [probationary] officers . . . were the subject of 9 IA investigations and were not terminated.”9 probationary (Opp’n 12:8-17.) 10 Plaintiff supports her position citing the uncontroverted facts 11 that Captain Moore “felt” that after the IA report was completed, 12 releasing Plaintiff from probation would have been appropriate 13 “based on his training with regard to probationary employees.” 14 (Def. SUF ¶ 50). 15 which 16 investigation” of a male probationary officer who was said to 17 have been “rude and unprofessional to a citizen during a traffic 18 stop,” but who “was allowed to pass probation.” (Perez Decl. ¶ 19 information about the first two officers and testified that she heard about the third officer from “his own mouth.” Defendants object to this statement as hearsay. The objection is sustained. 8 Defendant objects to the field training evaluation as “untimely, unauthenticated hearsay within hearsay.” (Pl. SUF ¶ 7.) However, O’Dowd declares the document is “[a] true and correct copy of Doe #3’s field training evaluations, received in Defendants’ Responses to Plaintiff’s Request for Production of Documents Set Two.” (O’Dowd Decl. ¶ 4.) Therefore, Defendants authentication objection is overruled. See Orr, 285 F.3d at 777 n.20 (citing Maljack Prods., Inc., 81 F.3d at 889 n. 12 (9th Cir. 1996) for the proposition that “documents produced by a party in discovery were [considered properly authenticated] . . . when offered by the party-opponent.”). Defendant also objects to consideration of Plaintiff’s averments from her declaration since the averments are hearsay. However, Defendants have not shown that the cited portion of the declaration is hearsay and therefore the objection is overruled. 9 Plaintiff also argues that “at least one male officer was also given the option to resign in lieu of release from Probation,” and Plaintiff “was never afforded this opportunity,” but what Plaintiff cites does not support her assertion. 20 21 22 23 24 25 26 27 28 Plaintiff Plaintiff also cites her own declaration, in declares she “served 19 as a witness in an IA 1 27, ECF No. 41.) Plaintiff further cites the deposition testimony 2 of Chief Hahn and Captain Moore in which they testify about an IA 3 investigation into whether a male probationary officer flirted 4 with a woman while on-duty, in which no “significant findings... 5 were 6 probationary period. (Hahn Dep. Tr. 94:20-95:18; Moore Dep. Tr. 7 77:6-78:18.) sustained,” and the officer successfully completed his 8 Defendants reply that the length of Plaintiff’s field 9 training program is not evidence that gender was a motivating 10 factor in her termination, 11 which 12 police officer’s field training program can be either longer or 13 shorter 14 applied to each officer in exactly the same way, nor is it always 15 a 16 Defendants also argue that although Plaintiff “contends that two 17 probationary male officers were . . . treated differently because 18 they were subject to IA investigations and still passed probation 19 . . . . [t]here is no evidence that these officers were similarly 20 situated to [Plaintiff], nor is there any inference to be drawn 21 that there were somehow treated more favorably.” (Reply 5:15- 22 6:1.) establish: than 10-week 23 that “[t]he [10-weeks]” program.” and actual since (Reply cite “the 4:14-26; the uncontroverted length of program Def. is SUF an facts individual not ¶¶ rigidly 13, 17.) Since the uncontroverted facts show that the length of 24 the Police 25 Plaintiff’s 26 finished the program more quickly than Plaintiff does not support 27 drawing 28 motivating a Department’s evidence field that certain reasonable inference factor Chief in training that Hahn’s 20 male program is probationary Plaintiff’s decision to variable, officers gender was terminate a her 1 employment. Nor has Plaintiff shown that any IA investigation 2 concerning a male probationary officer resulted in a finding that 3 a claim was sustained. Therefore, Plaintiff has not identified 4 specific 5 inference can be drawn that her gender was a motivating factor in 6 Chief Hahn’s decision to terminate her probationary employment. and substantial evidence from which the reasonable 7 Since Plaintiff has not identified evidence from which 8 a reasonable inference could be drawn either that Chief Hahn’s 9 stated reasons for terminating her probationary employment were 10 pretext for gender discrimination or that Plaintiff’s gender was 11 a motivating factor in Chief Hahn’s decision to terminate her 12 probationary employment, Defendants’ summary judgment motion on 13 Plaintiff’s discrimination claims is granted. 14 B. Right to Intimate Association and Privacy 15 Each Individual Officer Defendant seeks summary 16 judgment on Plaintiff’s federal constitutional claim in which she 17 alleges her First Amendment right to intimate association and 18 privacy 19 defense shields him from this claim. Plaintiff alleges that her 20 “private 21 Constitution from unwarranted governmental intrusion,” and “[t]he 22 internal 23 Begley] and the manner in which [the investigation] was conducted 24 by 25 constitutional right[s].” (FAC ¶¶ 89, 95, 97, ECF No. 15.) Each 26 Individual Officer Defendant argues “no authority has ever held 27 that the right to privacy [or intimate association] protects a 28 police officer from inquiry into aspects of her personal life was [the infringed, sexual affairs arguing activities were investigation Individual that Officer] 21 . [into his . . her Defendants qualified protected immunity by relationship violated the with [her] 1 that impact her work . . . and therefore [Plaintiff] cannot 2 sustain her burden of showing that her right to privacy [and 3 intimate association] was clearly established at the time of the 4 investigation.” (Mot. 21:24-28.) 5 Plaintiff responds the Ninth Circuit showed her right 6 to privacy and intimate association was clearly established at 7 the time of the IA investigation in Thorne v. City of El Segundo, 8 726 9 Constitution F.2d 495 (9th Cir. prohibits 1983), where unregulated, it “held that unrestrained the employer 10 inquiries into personal, sexual matters that have no bearing on 11 job performance.” 12 The (Opp’n 19:4-5.) plaintiff part 15 the police force, which resulted in a miscarriage. 726 F.2d at 16 462. The polygraph examiner “inquired into any 17 relations 18 whether on duty or off,” and ultimately declined to hire her. Id. 19 at 469. The Ninth Circuit held that it was inappropriate for the 20 police department to refuse to hire Thorne based on the past 21 information disclosed during the polygraph examination since it 22 had no bearing on her job performance and “[i]n the absence of 23 any showing that [a] private, off-duty [personal relationship]... 24 h[as] an impact upon an applicant’s on-the-job performance . . . 25 reliance on these private non-job-related considerations by the 26 state 27 applicant’s 28 (emphasis added). rejecting an protected had within applicant for constitutional 22 to the the polygraph during which she admitted to a past relationship with a member of have application a 14 may her completed examination Thorne of Thorne 13 in as in police . . . sexual police employment interests.” force; department, violates Id. at the 471 1 Each movant can prevail on his “qualified immunity 2 [defense] . . . [if] his . . . 3 established 4 reasonable person would have known.” Harlow v. Fitzgerald, 457 5 U.S. 800, 818 (1982). “[Q]ualified immunity is an affirmative 6 defense, and the burden of proving the defense lies with the 7 official asserting it.” Houghton v. South, 965 F.2d 1532, 1536 8 (9th 9 established ‘must be undertaken in light of the specific context 10 of the case, not as a broad general proposition.’” Estate of Ford 11 v. Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). Cir. statutory 1992). or conduct d[id] not violate clearly constitutional “[D]etermining whether rights the law of which was a clearly 12 It is uncontroverted that in June 2012, Leah Begley 13 filed a citizen complaint in which she alleged Plaintiff and 14 Begley were having an affair and “suggest[ed] that Begley and 15 [Plaintiff] 16 duty.” (Def. SUF ¶¶ 23, 26-27.) It is also uncontroverted that 17 after receiving this complaint, the Police Department initiated 18 an IA investigation into Plaintiff’s and Begley’s conduct. (Def. 19 SUF ¶ 28.) The Ninth Circuit’s holding in Thorne does not show 20 that 21 Begley violated a clearly established constitutional right to 22 privacy and intimate association under the circumstances in which 23 the investigation was conducted. The Ninth Circuit limited its 24 holding in Thorne to circumstances where there was an “absence of 25 any showing that [the applicant’s] private, off-duty personal 26 activities. . . [had] an impact upon [her] . . . on-the-job 27 performance.” 726 F.2d at 471. Here, the IA investigation into 28 Plaintiff’s the IA were engaging investigation conduct in romantic into resulted Plaintiff’s from 23 interactions a while relationship citizen complaint on- with that 1 suggested Plaintiff was engaged in a personal relationship with 2 Begley while on-duty. Therefore, Plaintiff’s alleged right to 3 privacy or intimate association was not clearly established “in 4 light of the specific context of the case” and therefore each 5 Individual 6 granted. 7 C. 8 Officer Defendant’s summary judgment motion is Estate of Ford, 301 F.3d at 1050. Due Process Name-Clearing Hearing Each Individual Officer Defendant seeks summary 9 judgment on Plaintiff’s claim in which she alleges she was denied 10 her federal due process right to a name-clearing hearing prior to 11 her termination, arguing Plaintiff did not have this right since 12 no stigmatizing information about her was published in connection 13 with her termination. 14 19 As early as 1972, in Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972), the United States Supreme Court established that a terminated employee has a constitutionally based liberty interest in clearing h[er] name when stigmatizing information regarding the reasons for [her] termination is publicly disclosed. Failure to provide a “nameclearing” hearing in such a circumstance is a violation of the Fourteenth Amendment’s due process clause. 20 Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004). This right 21 also applies to probationary employees. Vanelli v. Reynolds Sch. 22 Dist. No. 7, 667 F.2d 773, 777 (9th Cir. 1982) (applying the 23 right to a name clearing hearing in the context of a probationary 24 employee). However, 25 where stigmatizing 26 termination of employment.” Matthews v. Harney Cnty., Or., Sch. 27 Dist. No. 4, 819 F.2d 889, 892 (9th Cir. 1987). 15 16 17 18 28 the Plaintiff a name-clearing charge contends was that 24 hearing “made the in is only required connection stigmatizing with information 1 about which she complains was published in connection with her 2 termination when Captain Moore wrote to Leah Begley in response 3 to Leah Begley’s complaint since a reasonable inference can be 4 drawn 5 concluded 6 Begley 7 Captain Moore sent to Leah Belgey in response to her citizen 8 12 complaint is dated August 16, 2012 and states: The Roseville Police Department has completed its inquiry into the personnel complaint you filed alleging your husband and a co-worker were engaged in a personal relationship while on duty. The following findings have been made as a result of the investigation [1] Unsatisfactory work performance-SUSTAINED [and] [2] Conduct unbecoming-SUSTAINED. 13 (O’Dowd Decl. Ex. S, ECF No. 43.) 9 10 11 from Captain Plaintiff while Moore’s letter engaged on-duty. It is in that a the personal uncontroverted Police Department relationship that the with letter 14 Captain Moore’s August 16 letter to Leah Begley does 15 not indicate Plaintiff’s employment was being terminated as a 16 result of Leah Begley’s complaint. 17 whether the findings were sustained against Plaintiff, Begley, or 18 both. Further, it is uncontroverted that Plaintiff’s probationary 19 employment was not terminated until September 4, 2012, nine days 20 after the date on Captain Moore’s letter, and Chief Hahn avers 21 that 22 complaint 23 Plaintiff’s probationary employment. (Def. SUF ¶ 94; Hahn Decl ¶ 24 27.) Therefore, Plaintiff has not presented evidence from which a 25 reasonable inference could be drawn that stigmatizing information 26 about 27 Accordingly, each Individual Officer Defendant’s summary judgment 28 motion on Plaintiff’s Due Process claim is granted. the her findings were was not sustained a basis published in as for The letter does not specify a result his connection 25 of Leah decision with her to Begley’s terminate termination. 1 IV. Conclusion 2 For the stated reasons, each Defendant’s summary 3 judgment motion is GRANTED. Judgment shall be entered in favor of 4 each Defendant. 5 Dated: June 18, 2015 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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