Ross v. Independent Living Resource of Contra Costa County

Filing 110

ORDER Re Hearing on 85 MOTION for Summary Judgment filed by Independent Living Resource of Contra Costa County. Signed by Judge Thelton E. Henderson on 7/15/10. (tehlc4, COURT STAFF) (Filed on 7/15/2010)

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Ross v. Independent Living Resource of Contra Costa County Doc. 110 1 2 3 4 5 6 7 8 9 10 v. INDEPENDENT LIVING RESOURCE OF CONTRA COSTA COUNTY, Defendant. DERRICK ROSS, Plaintiff, NO. C08-00854 TEH ORDER RE HEARING ON MOTION FOR SUMMARY JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 This matter is scheduled for hearing on Monday, July 19, 2010, at 10:00am, on 14 Defendant's motion for summary judgment. The parties shall be prepared to address the 15 following questions at the motion hearing: 16 17 For Both Parties 18 1. 19 20 21 22 23 24 25 26 27 28 Defendant characterizes this as a mixed-motives case, and argues that the Supreme Court's decision in Gross v. FBL Financial Services should apply. However, Plaintiff alleges in the Third Amended Complaint ("TAC") that the "reason given to Plaintiff for his termination was a pretext." TAC 12. In light of Plaintiff's pretext theory, should the Court analyze this case under the McDonnell Douglas standard? See Brown v. City of Tucson, 336 F.3d 1181, 1186 (9th Cir. 2003) (observing that courts "have almost uniformly adopted the burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas" in examining ADA retaliation claims). On what basis should this Court determine whether to analyze Plaintiff's retaliation claim under Gross or McDonnell Douglas? 1 2. 2 3 4 If the Court grants summary judgment to Defendant as to Plaintiff's claim under section 1101 of the California Labor Code, would that decision also dispose of the prayer for attorneys' fees pursuant to the Private Attorneys General Act? 5 For Defendant 6 3. 7 8 9 10 You appear to believe that Ross's prosecution of the Basketball Town lawsuit could only be political if he had been actively publicizing the case. However, the definition of "political" endorsed in Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 487 (1979), requires only the espousal of a cause plus "some degree of action to promote the acceptance thereof by other persons." Can't Ross's pursuit of the lawsuit by itself meet the low threshold of "some degree of action," especially in light of the publicity that was in fact generated by the action he undertook? United States District Court 11 For the Northern District of California 12 13 14 4. 15 16 If the ADA retaliation claim survives summary judgment, do you concede that the claim for the tort of wrongful termination survives, as well? 17 For Plaintiff 18 5. 19 20 21 22 23 24 25 IT IS SO ORDERED. 26 27 Dated: 7/15/10 28 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 2 You argue that the existence of a policy controlling employees' political activity should be inferred from Plaintiff's termination and statements by ILR managers disapproving litigation advocacy. However, Plaintiff's termination represents a single episode not a policy and the statements cited demonstrate only ILR's policy not to prosecute ADA claims as an agency. How, based on this evidence, could a fact-finder infer the existence of a policy controlling employees' political activities?

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