Sears v. County of Butte, et al.,

Filing 34

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr on 9/19/17 ORDERING that Defendants' MOTION for Summary Judgment 17 is DENIED. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SEARS, 12 Plaintiff, 13 14 No. 15-cv-00589-MCE-CMK v. MEMORANDUM AND ORDER COUNTY OF BUTTE, et al., 15 Defendants. 16 By way of this action, Plaintiff Michael Sears (“Plaintiff”) seeks to recover from 17 18 Defendants County of Butte (“County”), Butte County Sheriff’s Office (“Sheriff’s Office”), 19 Andy Duch, and John Kuhn, both supervisors within the Sheriff’s Office, (collectively 20 “Defendants”) for violations of state and federal law arising out of racially-based 21 discrimination and harassment he purportedly suffered during his employment as a 22 sheriff’s deputy. Presently before the Court is Defendants’ Motion for Summary 23 Judgment, or in the Alternative, Partial Summary Judgment (ECF No. 17), which Plaintiff 24 timely opposed (ECF No. 25). For the following reasons, that Motion is DENIED.1 25 /// 26 /// 27 28 1 Having determined that oral argument would not be of material assistance, the Court ordered this matter submitted on the briefs in accordance with Local Rule 230(g). 1 1 BACKGROUND 2 3 By way of his Complaint, Plaintiff seeks to recover for: (1) discrimination under 4 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., (hereafter “Title VII”) 5 and California’s Fair Employment and Housing Act, Cal. Gov. Code § 12940, (hereafter 6 “FEHA”); (2) discrimination under 42 U.S.C. § 1981; (3) harassment under Title VII and 7 FEHA; (4) retaliation under Title VII and FEHA; and (5) failure to prevent under Title VII 8 and FEHA.2 Plaintiff, who is African-American and Sicilian, began working for the 9 County as a deputy sheriff in June 2007. Compl. ¶ 3, 15; Defendants’ Statement of 10 Undisputed Material Facts (“UMF”) No. 1. Over the course of his employment, Plaintiff 11 contends he was subjected to derogatory and hateful speech, including use of the word 12 “Nigger” (the “N-word”) and terms such as “Canadian Blue Gum,” based on his race.3 13 Compl. ¶ 19(a); Pl.’s Opp., ECF No. 25, at 5 (citing Decl. of Grant. A. Winter, ECF 14 No. 25-1, Ex. 2). He offers evidence that use of such terms was pervasive within the 15 Sheriff’s Office, that certain individuals within the Sheriff’s Office were obviously 16 uncomfortable interacting with people of different races, and that racist jokes were 17 commonplace. See, generally, Pl.’s Statement of Disputed Material Facts (“DMF”), ECF 18 No. 26-1.4 19 To that end, in 2010, an unidentified person “hung a stuffed panda bear doll by 20 the neck from a rope attached to the ceiling in the Sheriff’s Office facility where Plaintiff 21 was assigned to work.” Compl. ¶ 19(d). It was “clearly visible and obvious to anyone in 22 the room.” Id. When Plaintiff questioned what the panda represented and why it was 23 24 25 26 27 2 Prior to initiating this action, on July 18, 2014, Plaintiff filed a complaint with California’s Department of Fair Employment and Housing (“DFEH”) against all Defendants alleging claims for harassment, discrimination, and retaliation based on race and because Plaintiff engaged in protected activity under FEHA. Plaintiff likewise filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on August 12, 2014, against all Defendants under Title VII. 3 The terms “Blue Gum” or “Canadian Blue Gum” are purportedly racially disparaging terms referring to African-American individuals. 4 28 To the extent Defendants object to Plaintiff’s underlying evidence, those objections are overruled. See ECF No. 27-5. 2 1 there, another deputy, Christopher Denz, responded, in effect, that it was Plaintiff. Id. 2 Deputy Denz explained that “the hanging doll symbolized Mr. Sears because Mr. Sears 3 is half-Black and half-White.” Id. Mr. Sears reported the foregoing to management, 4 including to Deputy Duch, but no action was taken to remove the doll for over three 5 years (until approximately spring 2014). Id. 6 That same year, someone (also unidentified) hung a poster of “mug shots” of 7 various celebrities (e.g., James Brown and Jessie Jackson). Id. ¶ 19(e). Plaintiff’s 8 badge number was written on the poster next to those photographs. Id. Finally, an 9 unnamed deputy sheriff was displaying a swastika as his screen saver on his office 10 11 computer. Id. ¶ 19(k). Plaintiff complained to Sergeant (at the time) Steve Boyd about the hanging 12 panda, the “mug shot” poster, and use of the N-word. UMF No. 38; Pl.’s Response to 13 UMF (“Pl.’s Resp.”), ECF No. 26, No. 38. Regardless, now Lieutenant Boyd considered 14 Plaintiff’s concerns to be “just talking,” rather than a “complaint,” and did not conduct an 15 investigation. DMF Nos. 49-51. 16 For their part, Defendants also note that Plaintiff himself called deputies with 17 which he was friends “nigga” as a term of endearment, and they did the same. UMF 18 No. 14. They further argue that many people have told Plaintiff that upon meeting him 19 they did not realize he was African-American in the first place. UMF No. 2. Plaintiff 20 testified, however, that everyone was aware of his race because when individuals would 21 inquire if he was Samoan, Tonganese, or Hispanic, he would explain that he is half black 22 and half white. Id. He also indicated that while he has often been mistaken for being 23 Hispanic or Pacific Islander, he may have volunteered information about his heritage 24 because it is a source of pride for him. UMF Nos. 1, 3. 25 That said, given that it is difficult to identify Plaintiff’s ancestry by his appearance 26 alone, Plaintiff contends he was subjected to further comments questioning the veracity 27 of his assertions as to his heritage. For example, in 2013, an African-American citizen 28 went to the Sheriff’s Office to report a traffic incident. Compl. ¶ 19(j). Rather than assist 3 1 the citizen, Deputy Kuhn purportedly stated, “Let Mike talk to him, Mike claims to be 2 Black,” the implication being either that Plaintiff was not African-American or that he 3 should be responsible for serving that particular citizen because they were of the same 4 race. Id. In addition, Plaintiff avers that Deputy Kuhn approached another deputy to ask 5 that deputy whether he believed Plaintiff was black and accused Plaintiff himself of lying 6 about the same thing. Id. ¶ 19(l). Plaintiff later showed Deputy Kuhn a photograph of 7 his son, to which Deputy Kuhn responded by asking “how Black does he claim to be?” 8 Id. ¶ 19(m). Kuhn claimed to have made the above comments in jest, but he was 9 nonetheless ordered to attend sensitivity training. UMF Nos. 67-70. Otherwise, 10 Defendants failed to take sufficient corrective action, and they aided and abetted the 11 wrongdoing. 12 Plaintiff further avers that, based on his race, he was assigned the “oldest, 13 smallest, and most damaged car in the Sheriff’s fleet.” Id. ¶ 19(f). According to Plaintiff, 14 “[that] car was too small for Plaintiff to use comfortably, and was in a state of disrepair.” 15 Id. On the other hand, “[e]very non-African-American Sheriff’s deputy was assigned a 16 newer, larger, better car.” Id. 17 Defendants counter that Plaintiff was assigned a patrol vehicle with 60,000 miles 18 on it, and he subsequently turned it in for service 3,800 miles overdue. UMF No. 78-80. 19 He was counseled, but the following month he backed his vehicle into a parked car, 20 causing minor damage. UMF No. 81. Eight months later, Plaintiff was purportedly 21 assigned a Crown Victoria with 30,000 miles and minor cosmetic damage. UMF No. 82. 22 The following December, Plaintiff complained of back pain and requested a Sport Utility 23 Vehicle (“SUV”). UMF No. 83. He was then assigned an SUV with 48,000 miles. Id. 24 Six months later, Plaintiff ran over a stump with the SUV, causing $8,751 in damage, 25 and rendering the vehicle inoperable. UMF No. 84. He was thereafter assigned another 26 SUV, this time one with approximately 100,000 miles. UMF No. 85. After yet another 27 accident, Plaintiff was assigned an SUV with 4,800 miles. UMF No. 86. 28 /// 4 1 Plaintiff does not dispute any of the foregoing, but offers evidence that more junior 2 officers nonetheless received newer cars and that his collisions occurred as a matter of 3 course in the performance of his duties such that they should not have resulted in 4 adverse action. DMF Nos. 85-87. More specifically, Plaintiff contends he was on a call 5 when he ran over a stump, and despite having carried out a customary tactic and having 6 done nothing wrong, he was sent a bill for the required repairs to the SUV, which was 7 uncommon by itself. DMF Nos. 88-90. According to Plaintiff, collisions are a common 8 occurrence for Sheriff’s Office vehicles, thus implying that they should not have 9 subjected him to being assigned a sub-par vehicle. DMF No. 91. 10 In addition to the above, Plaintiff contends that he was denied a variety of transfer 11 opportunities and refused a promotional opportunity to take a position in Alternative 12 Custody Supervision (“ACS”) program. Compl. ¶¶ 19(g), (h). Although he qualified for 13 the positions, they were given to similarly situated or less-qualified non-African-American 14 candidates. Id. 15 More specifically as to the ACS program, Deputy Duch was responsible for 16 interviewing candidates. Id. ¶ 19(h). Plaintiff was granted an interview, but during his 17 allotted time, Deputy Duch stood up, left the room without saying a word, and never 18 returned. Id. According to Defendants, although Plaintiff interviewed well, his reputation 19 for being quick to arrest led the ACS team to believe other officers would be a better fit. 20 UMF Nos. 42-43. Team members also purportedly viewed Plaintiff as “heavy-handed” 21 and “aggressive,” which were not traits that would be a good fit with the team. UMF 22 No. 44. Plaintiff was ultimately not selected for the available spot. 23 Nor was he chosen for a position he sought on the Gang Unit in March 2012. 24 UMF Nos. 48-49. That position required individuals to work with little to no supervision, 25 and, Defendants contend, although Plaintiff again made the list of top candidates for the 26 job, he was not chosen because another candidate had a proven history as a SWAT 27 /// 28 /// 5 1 team member, worked well with the Gang Unit, and had a similar schedule as other 2 Gang Unit members, making scheduling and training more efficient. UMF. No. 49.5 3 Plaintiff has submitted evidence, however, to show that he too required little 4 supervision, that there was, in fact, very little supervision of the patrol units to which he 5 was already assigned, and that other deputies actually required more supervision than 6 he did. DMF Nos. 80-84. Plaintiff also emphasizes that no African-American person has 7 ever served on the SWAT Team, on the Gang Unit, or as an administrator within the 8 Sheriff’s Department. DMF Nos. 61-62, 64. 9 Aside from the foregoing, Defendants also contend that Plaintiff’s performance 10 was in general less than stellar and thus affected his ability to promote or transfer. For 11 example, on one occasion when Plaintiff was scheduled to work in the courthouse at 12 7:30 a.m., he failed to show up until 1:00 p.m. because he was home waiting for a cable 13 installer. UMF No. 23. He was thus required to sign a contract indicating he would 14 appear for work on time and would notify his supervisor each day when he arrived. In 15 addition, Plaintiff was found leaving work early without authorization. UMF Nos. 26-28. 16 He likewise failed to timely return from a lunch break when he was assigned to a 17 courtroom during a jury trial. UMF No. 29. Plaintiff later received a performance 18 evaluation based on the foregoing, pursuant to which he agreed to arrive on time ready 19 to work and that he would not leave early without permission. UMF No. 30. He 20 nevertheless thereafter continued to be late to work and to leave his post without prior 21 approval, such that he was counseled several more times and transferred to patrol. 22 UMF Nos. 31-37. 23 In addition, Plaintiff was suspended for violating jail rules by carrying a knife into a 24 secure area of the jail. UMF No. 51, 60. He showed it to a nurse and said, “Do you want 25 some of my TAC knife?” Id. He was thereafter concerned the nurse would take his 26 comment as a sexual advance, and he tried to clarify that he was referring to his 27 5 28 Plaintiff also applied to the Gang Unit in December 2013, to no avail. UMF Nos. 48, 65. 6 1 weapon. UMF Nos. 52-53. Plaintiff reported the incident to his sergeant himself 2 because he was worried that the nurse would tell a woman Plaintiff had been seeing, 3 one of the nurse’s co-workers, that he had been behaving inappropriately. UMF 4 Nos. 55-56.6 5 Finally, according to Defendants, Plaintiff had had sexual relationships with 6 approximately ten County employees within the Sheriff’s Department, courts and 7 potentially other departments. UMF No. 57. Plaintiff was also known to have texted 8 pictures of his penis and of nude women to other deputies. UMF Nos. 58-59. 9 In response to the foregoing, Plaintiff counters that he was disciplined for conduct 10 that would have been overlooked had it involved other deputies. Plaintiff offers evidence 11 that it was not common practice for deputies to notify supervisors if they expected to be 12 late for a shift. DMF No. 44. He also contends that other deputies often arrived late for 13 their shifts (or left early) without being disciplined. DMF No. 45, 47. Despite the 14 purportedly lackadaisical approach to scheduling, Plaintiff contends he was further 15 singled out for discipline for leaving early for a family emergency although he had 16 previously notified supervisors. DMF No. 46. It was similarly common for other deputies 17 to carry weapons (accidentally or otherwise) into the secure area of the jail without being 18 subjected to discipline. DMF Nos. 66, 70. Finally, Plaintiff argues that other officers 19 were often known to take and/or send explicit pictures of, among other things, their 20 genitals. DMF Nos. 98-99 (describing Lieutenant Boyd posing for a picture of himself 21 with his own penis and scrotum tucked between his legs). In fact, Plaintiff contends, 22 among SWAT team members it was a long-standing tradition to take such photos with 23 unattended cameras, so team members knew better than to leave cameras 24 unsupervised. Id. Plaintiff thus takes the position that singling him out for discipline 25 /// 26 27 28 6 During arbitration, Plaintiff argued his discipline was racially motivated and a product of harassment. UMF No. 60. The arbitrator upheld Plaintiff’s three-day suspension finding, “Deputy Sears clearly displayed unsatisfactory performance of a deputy sheriff in violation of Section 2.54(b) of the Butte County Personnel Rules.” UMF No. 62. 7 1 based on the foregoing further supports his contention that he was being targeted on 2 account of his race. 3 Moreover, contrary to Defendants’ above assertions, Plaintiff was actually given a 4 written commendation recognizing his exceptional performance in 2013 by a sergeant 5 within the Sheriff’s Department. Compl. ¶ 19(i). According to Plaintiff, however, 6 Defendants deliberately failed to include that commendation in his personnel file, and, 7 despite Plaintiff’s resulting complaints, continued to fail to do so until Plaintiff’s labor 8 union insisted. Id. Defendants, on the other hand, take the position that the Sheriff 9 refused to recognize that commendation because Plaintiff’s disciplinary proceedings 10 were ongoing and it had been reported that Plaintiff was having trouble fitting in as a 11 team member. UMF No. 63. Eventually, Defendants contend, Plaintiff’s conduct 12 improved and the commendation was accepted. UMF No. 64. 13 At some point in time, well after Plaintiff complained, both the “mug shot” poster 14 and the panda were taken down. UMF Nos. 50, 60. He eventually received a number of 15 transfers he requested, UMF 77, was subsequently selected as a detective, DMF 63, 16 and testified that since the beginning of 2015, “[t]hings became very pro African- 17 American,” UMF 91. 18 19 STANDARD 20 21 The Federal Rules of Civil Procedure provide for summary judgment when “the 22 movant shows that there is no genuine dispute as to any material fact and the movant is 23 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 24 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 25 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 26 Rule 56 also allows a court to grant summary judgment on part of a claim or 27 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 28 move for summary judgment, identifying each claim or defense—or the part of each 8 1 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 2 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 3 motion for partial summary judgment is the same as that which applies to a motion for 4 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 5 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying the 6 summary judgment standard to a motion for summary adjudication). 7 In a summary judgment motion, the moving party always bears the initial 8 responsibility of informing the court of the basis for the motion and identifying the 9 portions in the record “which it believes demonstrate the absence of a genuine issue of 10 material fact.” Celotex, 477 U.S. at 323. “However, if the nonmoving party bears the 11 burden of proof on an issue at trial, the moving party need not produce affirmative 12 evidence of an absence of fact to satisfy its burden.” In re Brazier Forest Prods. Inc., 13 921 F.2d 221, 223 (9th Cir. 1990). If the moving party meets its initial responsibility, the 14 burden then shifts to the opposing party to establish that a genuine issue as to any 15 material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 16 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288–89 17 (1968). 18 In attempting to establish the existence or non-existence of a genuine factual 19 dispute, the party must support its assertion by “citing to particular parts of materials in 20 the record, including depositions, documents, electronically stored information, 21 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 22 not establish the absence or presence of a genuine dispute, or that an adverse party 23 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 24 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 25 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Ass’n of W. Pulp & 27 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also 28 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 9 1 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 2 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 3 before the evidence is left to the jury of “not whether there is literally no evidence, but 4 whether there is any upon which a jury could properly proceed to find a verdict for the 5 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 6 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). As the Supreme Court 7 explained, “[w]hen the moving party has carried its burden under Rule [56(a)], its 8 opponent must do more than simply show that there is some metaphysical doubt as to 9 the material facts.” Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as 10 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 11 ‘genuine issue for trial.’” Id. at 587. 12 In resolving a summary judgment motion, the evidence of the opposing party is to 13 be believed, and all reasonable inferences that may be drawn from the facts placed 14 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 15 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 16 obligation to produce a factual predicate from which the inference may be drawn. 17 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 18 810 F.2d 898 (9th Cir. 1987). 19 20 ANALYSIS 21 22 Against the foregoing backdrop, Defendants move for summary judgment on the 23 bases that: (1) a number of Plaintiff’s contentions are time-barred for failing to timely file 24 his administrative complaints; and (2) even if all claims were timely, Defendants are 25 entitled to judgment as a matter of law on the merits. Neither proposition is well taken in 26 the current posture because a plethora of factual disputes preclude adjudication of this 27 case short of trial. 28 /// 10 1 First, Defendants contend that a number of the allegations underlying Plaintiff’s 2 claims (e.g., denial of promotions in 2012, hanging the panda and “mug shot” poster, 3 displaying the swastika, some patrol car assignments, not receiving the commendation) 4 are barred because they were not timely raised before the EEOC and DFEH. See Defs.’ 5 Mot., ECF No. 17-1, at 9-10. This argument assumes, however, that the “continuing 6 violation” doctrine does not apply. See Dominguez v. Wash. Mut. Bank, 168 Cal. App. 7 4th 714, 720-21 (2008). “Under this doctrine, [an administrative] complaint is timely if 8 discriminatory practices occurring outside the limitations period continued into that 9 period.” Id. at 721. “A continuing violation exists if: (1) the conduct occurring within the 10 limitations period is similar in kind to the conduct that falls outside the period; (2) the 11 conduct was reasonably frequent; and (3) it had not yet acquired a degree of 12 permanence.” Id. “As for ‘permanency’ it is achieved when the harassing conduct stops, 13 when the employee resigns, or when the employee is on notice that further efforts to end 14 the harassment will be futile.” Id. at 724. 15 Taking all of the facts presented to the Court as true, the conduct about which 16 Plaintiff complains was so pervasive and so blatantly racially motivated that a trier of fact 17 could reasonably conclude that the conduct was all similar in kind, occurred reasonably 18 frequently (indeed, as Plaintiff alleges on a constant basis), and never acquired a degree 19 of permanence. As such, summary judgment would be improper. 20 Defendants’ Motion fares no better as to the merits. Plaintiff has offered sufficient 21 evidence in the current posture to show that he was subject to discriminatory and 22 harassing conduct, and there are numerous triable issues of fact as to whether 23 Defendants’ proffered reasons for their actions were legitimate or pretextual. In fact, to 24 recite the parties’ positions above is enough to make clear that each of Defendants’ 25 arguments (e.g., complaints are based on isolated or stray remarks; conduct was 26 sporadic or trivial; some words may not have been “unwelcome” in the culture of Plaintiff 27 and his fellow deputies; Plaintiff was not subject to adverse actions), depend on the 28 /// 11 1 resolution of material factual disputes. There is simply no claim before the Court 2 capable of adjudication as a matter of law.7 Accordingly, Defendants’ Motion is DENIED. 3 4 CONCLUSION 5 6 Defendants’ Motion for Summary Judgment (ECF No. 17) is DENIED. 7 IT IS SO ORDERED. 8 Dated: September 19, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 27 28 To this same end, the Court finds Defendants’ argument that Plaintiff is estopped from raising certain claims arising out of the knife incident because the arbitrator upheld the discipline imposed to be unpersuasive. The Court is not convinced that the issue was actually litigated and necessarily decided in the former proceeding. See Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). 12

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