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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JANELLE PEREZ, an individual,

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Plaintiff,

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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.

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The

16

following

Defendants

seek

summary

judgment

on

17

claims in Plaintiff’s First Amended Complaint (“FAC”): City of

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Roseville

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Department”),

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Department

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Lieutenant Cal Walstad. Plaintiff Janelle Perez alleges gender

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discrimination claims against each Defendant under Title VII of

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the federal Civil Rights Act of 1964 (“Title VII”) and under

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California’s Fair Employment and Housing Act (“FEHA”), and that

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Chief Hahn, Captain Moore, and Lieutenant Walstad (collectively

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the

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constitutional rights to intimate association, privacy, and due

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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

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I. LEGAL STANDARD

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

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

7

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

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

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under the governing substantive law, it could affect the outcome

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of the case.” Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav.

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Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A “dispute about

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a material fact is ‘genuine,’ . . . if the evidence is such that

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a

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party.” Anderson, 477 U.S. at 248. Summary judgment “evidence

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must be viewed in the light most favorable

17

party, and all reasonable inferences must be drawn in favor of

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that party.” Sec. & Exch. Comm’n v. Todd, 642 F.3d 1207, 1215

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(9th Cir. 2011) (citing Johnson v. Paradise Valley Unified Sch.

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Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)).

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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]
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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.’”

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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.

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

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1996)).

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II. UNCONTROVERTED FACTS

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Each party submitted facts concerning the motion. The

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following facts are undisputed or “deemed” uncontroverted since

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they have not been controverted with specific facts as required

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by Local Rule 260(b).1 See Beard, 548 U.S. at 527 (stating when a

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party fails to “specifically . . . challenge the facts identified

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in [another party’s] statement of undisputed facts,” the validity

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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

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received an “offer letter” from Chief Hahn dated January 4, 2012,

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which states she would “serve a probationary period of twelve

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(12) months[, and d]uring [her] probationary period [she] may be

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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.

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of

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released from City service with or without cause at the sole

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discretion of the City.”2 (Hahn Decl. ¶ 4 Ex. A, ECF No. 32-1.)

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Plaintiff began her probationary period on January 9,

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2012. (Def. SUF ¶¶ 8, 10.)

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a few months into the assignment, she and another officer, Shag

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Begley (“Begley”) initiated a personal relationship; at the time,

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Plaintiff

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married

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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 ¶¶

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23-24.) She alleged in that complaint that Plaintiff and Begley

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were having an affair and “suggested that Begley and [Plaintiff]

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were engaging in romantic interactions while on-duty.” (Def. SUF

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¶¶ 26-27.) Internal Affairs (“IA”) opened an investigation of the

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complaint, which was headed by Lieutenant Troy Bergstrom. (Def.

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SUF

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evidence of sexual conduct between Plaintiff and Begley while on-

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duty, but that Plaintiff and Begley “made a number of calls and

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texts when one or both was on duty” and these communications were

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“potentially” violations of Police Department policy. (Def. SUF

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¶¶ 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

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Lieutenant Bergstrom provided his IA report to Captain

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Moore “for review and decision about whether disciplinary action

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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.)

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should

2

Lieutenant

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recommending findings; Lieutenant Walstad recommended in a memo

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dated July 10, 2012 that the Department find Plaintiff’s and

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Begley’s on-duty cellphone use violated Police Department policy.

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(Def.

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Walstad’s findings and “felt” Plaintiff should be released from

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probation, but Chief Hahn “disagreed and felt a reprimand was”

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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

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“issued a findings memo to each Perez and Begley stating that two

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alleged policy violations were ‘sustained;’” and he “also issued

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written reprimands dated August 23, 2012, to both Begley and

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Perez, stating: (1) they made personal telephone calls while on

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duty that interfered with their work performance in violation of

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[Policy

16

relationship

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Department in violation of [Policy Manual] section 340.3.5(aa).”

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(Def. SUF ¶¶ 51-52.)

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Manual]

section

impacted

Plaintiff

and

340.3.5(c);
and

and

reflected

Begley

appealed

(2)

their

unfavorably

their

personal
upon

reprimands

the

and

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Plaintiff’s appeal meeting with Chief Hahn was scheduled to be

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held

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conclusion of her appeal meeting, Chief Hahn advised Plaintiff

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she was being released from probation and provided her with a

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written notice of dismissal, effective September 4, 2012. (Def.

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SUF ¶¶ 55, 91, 94.) The written notice was prepared in advance of

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the meeting and Chief Hahn declares he “had already decided to

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terminate [Plaintiff’s probationary] employment based on . . .

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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.)

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III. DISCUSSION

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A.

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Title VII and FEHA Claims
Each Defendant seeks summary judgment on Plaintiff’s

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discrimination

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employment

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assert Plaintiff’s probation was terminated for legitimate, non-

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discriminatory

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Specifically, Chief Hahn, who terminated Plaintiff’s employment

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approximately eight months after she commenced her twelve month

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probation period, declares he terminated her employment for three

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reasons:

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was

claims,

in

terminated

reasons

which

she

because

that

are

of

alleges
her

unrelated

her

probationary

gender.

to

Defendants

her

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[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

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. . . .

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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]

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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.

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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.

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[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.

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. . . .

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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.

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(Hahn Decl. ¶¶ 3, 14-17, 19, ECF No. 32.)

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Defendants, through counsel, also argue a fourth reason

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for Plaintiff’s termination was “Chief Hahn’s knowledge from the

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IA report that Perez had engaged in personal communications while

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on duty and while involved in police duties.” (Mem. ISO Defs.’

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Mot. Summ. J. (“Mot.”) 8:7-8, ECF No. 29.) However, Chief Hahn

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avers he “did not release [Plaintiff] from probation based on the

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results of the IA investigation . . . [since making] personal

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calls

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during

work

time

.

.

.

was

a

concern,

but

not

one

warranting termination.” (Hahn Decl. ¶ 27.)

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Plaintiff responds that each asserted legitimate non-

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discriminatory reason for terminating her probationary employment

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was a pretext for gender discrimination, and that her gender was

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a motivating factor in the Chief’s termination decision.

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Plaintiff’s Title VII and FEHA gender discrimination

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claims “operate under the same guiding principles,” and therefore

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“we need only assess her claim[s] under federal law.” Brooks v.

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City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (citing

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Beyada v. City of L.A., 65 Cal. App. 4th 511, 517 (1998)).

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1.

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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

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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.”

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Dep’t of Fair Emp’t and Hous. v. Lucent Tech., Inc., 642 F.3d

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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

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baseless.” Westendorf v. West Coast Contractors of Nev., Inc.,

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712 F.3d 417, 425 (9th Cir. 2013) (citing Villiarimo v. Aloha

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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

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Plaintiff responds to Chief Hahn’s averment that her

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probationary employment was terminated because of her negative

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rapport

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pretext for gender discrimination since she testified during her

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deposition that she “did not think” she had ever worked with

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another female officer at the Police Department, and her July

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2012 performance evaluation listed her communication skills as

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satisfactory. (O’Dowd Decl. Ex. C (“Perez Dep. Tr.”) 61:24-62:7,

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ECF No. 38; O’Dowd Decl. ¶ 13 Ex. U, ECF Nos. 37, 43.)4

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4

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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

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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

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other female officers since an employee does have to engage in an

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assigned work task with other officers to communicate with them.

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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

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Plaintiff’s July 2012 performance evaluation support drawing a

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reasonable inference of gender discrimination since it reported

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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

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reasonable inference could be drawn that Chief Hahn’s reliance on

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this reason for terminating her probationary employment was a

17

pretext for gender discrimination.

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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

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25
26
27
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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

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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

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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.

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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.

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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