McIntosh v. Maricopa County Community College District et al, No. 2:2007cv00760 - Document 56 (D. Ariz. 2009)
Court Description: ORDER granting in part and denying in part 47 Motion for Summary Judgment. Signed by Judge David G Campbell on 2/12/2009.(NVO)
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McIntosh v. Maricopa County Community College District et al 1 Doc. 56 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 ) ) ) Plaintiff, ) ) vs. ) ) Maricopa Community College District; ) Judy Taussig and John Doe Taussig, wife) and husband; Jack Clevenger and Jane ) Doe Clevenger, husband and wife; Larry ) Christensen and Jane Doe Christensen, ) husband and wife; Spencer Peterson and ) Jane Doe Peterson, husband and wife; ) ) John and Jane Does I-X; Black Corporations I-X; White Partnerships I- ) ) X, ) ) Defendants. ) Dwayne E. McIntosh, a single man, No. CV-07-0760-PHX-DGC ORDER 19 20 On April 9, 2007, Plaintiff filed a complaint alleging numerous violations on the part 21 of his employer, of which only claims arising out of Title VII, 42 U.S.C. § 1981, and 22 42 U.S.C. § 1983 remain. Dkt. #1. Defendants Maricopa Community College District, Judy 23 and Thomas Taussig, Jack and Diane Clevenger, Spencer and Gina Petersen, Larry 24 Christiansen, and Pat Honzay have filed a motion for summary judgment. Dkt. #47. Plaintiff 25 filed a response and Defendants replied. Dkt. ## 49, 53. The Court held oral argument on 26 February 12, 2009. For the reasons that follow, the Court will grant in part and deny in part 27 the motion for summary judgment. 28 Dockets.Justia.com 1 I. Background. 2 Plaintiff is an African-American man who has been employed with the Maricopa 3 Community College District since 1996. Plaintiff originally worked as a program advisor 4 in the Disability Resources and Services (DRS) office at Mesa Community College (MCC). 5 In 2001, Plaintiff became a Student Services Enrollment Specialist at the Red Mountain 6 Campus of MCC, where he is currently employed. In February of 2006, MCC posted a job 7 opening for the Manager of the DRS office. Dkt. #47-4 at 3. The job posting listed three 8 minimum qualifications: (1) experience in supervision and management of an office serving 9 students with disabilities, (2) knowledge of federal laws on access and accommodation for 10 persons with disabilities, and (3) experience in academic advisement. Id. Plaintiff applied 11 for the position, but was not granted an interview. Defendants maintain that Plaintiff was 12 denied an interview because he was not qualified for the position. Plaintiff contends that he 13 was qualified for the position and was denied an interview on the basis of his race. 14 II. Legal Standard. 15 A party seeking summary judgment “always bears the initial responsibility of 16 informing the district court of the basis for its motion, and identifying those portions of 17 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 18 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is appropriate if the 19 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no 20 genuine issue as to any material fact and that the movant is entitled to judgment as a matter 21 of law.” Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the 22 suit will preclude the entry of summary judgment, and the disputed evidence must be “such 23 that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 24 Lobby, Inc., 477 U.S. 242, 248 (1986). 25 III. Plaintiff cannot maintain a Title VII claim against individual employees. 26 Defendants argue that Plaintiff cannot maintain a Title VII claim against individual 27 employee Defendants. Plaintiff has not responded to this argument. Ninth Circuit case law 28 holds that there is no personal liability for employees under Title VII. See Miller v. -2- 1 Maxwell’s Intern. Inc., 991 F.2d 583, 587-88 (9th Cir. 1993); Craig v. M & O Agencies, Inc., 2 496 F.3d 1047, 1058 (9th Cir. 2007). Plaintiff’s counsel conceded this point at oral 3 argument. The Court will grant summary judgment in favor of all individual Defendants on 4 Plaintiff’s Title VII claim. 5 IV. The section 1981 and 1983 claims against Clevenger and Peterson. 6 Defendants argue that Plaintiff cannot maintain a claim against Defendants Clevenger 7 and Peterson under sections 1981 or 1983 because Plaintiff does not allege that they had any 8 involvement in the DRS manager selection process. Plaintiff has not responded to this 9 argument. After reviewing the complaint, the Court is unable to locate any allegations 10 against Defendant Peterson with regard to the DRS manager selection process. Plaintiff does 11 allege, upon information and belief, that Defendant Clevenger influenced decisions on whom 12 to interview, but Plaintiff has provided no evidence to support that allegation. Dkt. #1 ¶¶ 42- 13 43. Plaintiff’s counsel conceded this point at oral argument. The Court will grant summary 14 judgment on Plaintiff’s section 1981 and 1983 claims against both Defendants. 15 V. Plaintiff has established a prima facie case of discrimination. 16 The criteria set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 17 govern Plaintiff’s Title VII claim and provide a guide to Plaintiff’s claims under sections 18 1981 and 1983. Tagupa v. Bd. of Directors, 633 F.2d 1309, 1312 (9th Cir. 1980); see also 19 Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754-55 (9th Cir. 2001) 20 (affirming summary judgment for defendants upon an application of the Title VII burden- 21 shifting framework to a section 1983 claim); Fonseca v. Sysco Food Services of Arizona, 22 Inc., 374 F.3d 840, 850 (9th Cir. 2004) (“Analysis of an employment discrimination claim 23 under [section] 1981 follows the same legal principles as those applicable in a Title VII 24 disparate treatment case.”) (citing Manatt v. Bank of Am., NA, 339 F.3d 792, 797-98 (9th Cir. 25 2003)). Under Title VII, an employer may not “discriminate against any individual with 26 respect to his compensation, terms, conditions, or privileges of employment, because of such 27 individual’s race[.]” 42 U.S.C. § 2000e-2(a). Plaintiff carries the initial burden to establish 28 a prima facie case of race discrimination by showing: “(i) that he belongs to a racial minority; -3- 1 (ii) that he applied and was qualified for a job for which the employer was seeking 2 applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his 3 rejection, the position remained open and the employer continued to seek applicants from 4 persons of complainant’s qualifications.” McDonnell Douglas, 411 U.S. at 802. 5 Defendants contend that Plaintiff has not established a prima facie case because 6 Plaintiff was not qualified for the DRS manager position. Specifically, Defendants contend 7 that Plaintiff lacked experience in the supervision and management of an office serving 8 students with disabilities. Plaintiff has testified that he met this qualification for two reasons. 9 First, Plaintiff stated on his job application that he was a program supervisor at Arizona 10 Youth Associates (AYA) where he directed the daily care of adolescent male sex offenders 11 and handled all managerial functions. Dkt. #47-3 at 14; Dkt. # 47-4 at 7. Plaintiff contends 12 that these adolescents were high school students and that sex offenders are classified as 13 persons with disabilities. Dkt. #47-3 at 14. Second, Plaintiff asserts that he met this 14 qualification while working as a program advisor at the MCC DRS office because he 15 managed the office when the manager was not there. Dkt. #47-4 at 51; Dkt. # 47-3 at 6-7. 16 “[U]nder the McDonnell Douglas framework, ‘the requisite degree of proof necessary 17 to establish a prima facie case for Title VII on summary judgment is minimal and does not 18 even need to rise to the level of a preponderance of the evidence.’” Villiarimo v. Aloha 19 Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 26 20 F.3d 885, 889 (9th Cir. 1994)); see Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th 21 Cir. 1998). Indeed, “[t]he amount of evidence that must be produced in order to create a 22 prima facie case is ‘very little.’” Wallis, 26 F.3d at 889 (citation and internal alterations 23 omitted). Plaintiff’s testimony concerning his management experience, and the fact that his 24 application identified his management work with adolescent sex offenders, is sufficient to 25 satisfy the low threshold required to establish a prima facie case. Defendants’ contention that 26 Plaintiff’s duties at AYA were very different than those of the DRS manager at MCC goes 27 to the weight of Plaintiff’s assertion, but does not defeat his prima facie case. It is not 28 disputed that Plaintiff managed the program at AYA and that his application reflected that -4- 1 fact. The Court finds this evidence sufficient to clear the Ninth Circuit’s low threshold for 2 a prima facie case. 3 VI. Plaintiff has established a triable issue of fact. 4 “If the plaintiff establishes a prima facie case, the burden of production – but not 5 persuasion – then shifts to the employer to articulate some legitimate, nondiscriminatory 6 reason for the challenged action.” Villiarimo, 281 F.3d at 1062. Once the employer fulfills 7 this burden of production, the “presumption of unlawful discrimination ‘simply drops out of 8 the picture.’” Wallis, 26 F.3d at 889 (quoting St. Mary’s Honor Ctr., 509 U.S. 502, 507 9 (1993)). “This is true even though there has been no assessment of the credibility of [the 10 employer] at this stage.” Id. at 892 (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 11 248, 254 (1981)). Defendants assert that Plaintiff was not selected because his application 12 materials did not demonstrate that he met the minimum qualifications for the position and 13 because the person hired was better qualified for the position. Defendants have sufficiently 14 articulated a legitimate, non-discriminatory reason for not selecting Plaintiff. 15 If the employer sufficiently articulates a nondiscriminatory reason, the plaintiff “must 16 produce evidence in addition to that which was sufficient for [his] prima facie case in order 17 to rebut the [employer’s] showing.” Godwin, 150 F.3d at 1220 (citing Wallis, 26 F.3d at 18 890). “[T]he plaintiff must show that the articulated reason is pretextual ‘either directly by 19 persuading the court that a discriminatory reason more likely motivated the employer or 20 indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” 21 Villiarimo, 281 F.3d at 1062 (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 22 (9th Cir. 2000)); Burdine, 450 U.S. at 256. To establish pretext, Plaintiff asserts that he was 23 the best candidate for the position, that Nina Robinson, a member of the hiring committee 24 who was later removed, states in her affidavit that Plaintiff was the best candidate for the 25 position, and that Robinson also states in her affidavit that there was a racially motivated 26 secret meeting to discuss how not to give Plaintiff an interview. Robinson directly asserts 27 that she has knowledge “that this process was racially motivated to discriminate against the 28 Plaintiff.” Dkt. #50, Ex. 6. -5- 1 Defendants dispute that Plaintiff was actually qualified for the position, contending 2 that managing high school sex offenders does not constitute experience in supervising and 3 managing an officer serving students with disabilities and that Plaintiff failed to state that he 4 occasionally managed the DRS office in his application materials. Defendants also contend 5 that Nina Robinson’s avowal in her affidavit that Plaintiff was the most qualified candidate 6 is insufficient to create a triable issue of fact because Rule 56(e) requires that affidavits be 7 “made on personal knowledge” and Robinson does not specifically state that the statements 8 in the affidavit are made on personal knowledge, nor does she provide any specific facts 9 about Plaintiff’s qualifications. 10 Although this is a close question, the Court concludes that the Robinson affidavit is 11 sufficient to create a triable issue of fact. “Personal knowledge can be inferred from an 12 affiant’s position.” 13 Realization, 206 F.3d 1322,1330 (9th Cir. 2000). Robinson is a manager at MCC, has been 14 employed there for 19 years, and was on the initial hiring committee for the DRS manager 15 position. Dkt. #53, Ex. 1; Dkt. #50, Ex. 6. Her personal knowledge can be inferred from her 16 position. The affidavit asserts that she has knowledge of a secret meeting held to exclude 17 Plaintiff from the hiring process on the basis of his race, and that she has knowledge that the 18 hiring process was racially motivated to discriminate against Plaintiff. Although the basis 19 for this knowledge is not specified and the affidavit generally lacks factual detail, the Court 20 concludes that an affidavit asserting knowledge of such racial discrimination, by a person 21 who is a long-time employee and manager at MCC and a member of the hiring committee, 22 creates a question of fact that must be resolved by the jury. Defendants contend that 23 Robinson was eventually removed from the hiring committee and therefore cannot have 24 personal knowledge of her statements. Dkt. #53 at 4. But Defendants have failed to establish 25 that she was removed from the hiring committee before she had a chance to evaluate 26 Plaintiff’s qualifications and acquire the information asserted in her affidavit. Self-Realization Fellowship Church v. Ananda Church of Self- 27 Defendants also contend that Robinson’s affidavit does not satisfy the requirement 28 that circumstantial evidence be “specific and substantial.” Villiarimo, 281 F.3d at 1062; -6- 1 Godwin, 150 F.3d at 1222. The Court concludes, however, that Robinson’s testimony is 2 direct evidence of a discriminatory motive, not circumstantial evidence. Direct evidence is 3 evidence which, if believed, proves discriminatory motive without inference or presumption. 4 See Godwin, 150 F.3d at 1221. “When the plaintiff offers direct evidence of discriminatory 5 motive, a triable issue as to the actual motivation of the employer is created even if the 6 evidence is not substantial.” Id. 7 Finally, Defendants argue that the affidavit of Ms. Robinson should be excluded from 8 evidence because it was obtained in violation of ER 4.2 of the Arizona Rules of Professional 9 Conduct. That rule provides that a lawyer may not communicate about the subject matter of 10 the representation with a party the lawyer knows to be represented by another lawyer, unless 11 the lawyer has the consent of the other lawyer or the communication is authorized by law. 12 Rule 42, Rules of the Supreme Court of Arizona, ER 4.2. The comment to ER 4.2 explains 13 that this prohibition applies to managerial employees of a party. Id. Defendants note that 14 Nina Robinson is a manager at MCC. 15 Plaintiff’s counsel responded at oral argument by asserting that the Robinson affidavit 16 was obtained by Plaintiff without counsel’s knowledge. Although he acknowledged his 17 responsibility fo the actions of his client, Plaintiff’s counsel argued that his client’s 18 unknowing violation of ER 4.2 should not result in the exclusion of significant evidence and 19 the granting of summary judgment. 20 Even if the Court assumes that the Robinson affidavit was obtained in violation of ER 21 4.2, the Court concludes that exclusion of the affidavit is not warranted. Federal courts agree 22 that a district court has discretion in deciding whether to exclude evidence obtained in 23 violation of ethical rules. These courts have recognized, however, that exclusion is a harsh 24 sanction that should be granted only rarely: 25 26 27 An exclusionary policy frustrates truth and does not punish the ethical violation, but works against the client who may have been wronged by the opposing party as far as the substantive claim is concerned. An ethical violation ought to be dealt with by sanctions against the errant attorney, except in special cases. 28 -7- 1 Weider Sports Equip. Co. v. Fitness First, Inc., 912 F. Supp. 502, 510 (D. Utah 1996); see 2 also Calloway v. DST Systems, Inc., 2000 WL230244, *3 (W.D. Mo. 2000) (“any sanctions 3 would needlessly punish plaintiff for his attorney’s misdeeds”); Plan Committee in the 4 Driggs Reorganization Case v. Driggs, 217 B.R. 67, 72 (D. Md. 1998) (“the appropriate 5 remedy for any ethical violation [of Rule 4.2] that occurred would be disciplinary action 6 against [the attorney], not dismissal of the adversary proceeding, suppression of evidence, 7 or disqualification of counsel”). 8 The Court concludes that this is not a case where key evidence should be stricken 9 from the record. Defendants do not contend that the Robinson affidavit was obtained under 10 fraudulent or misleading circumstances. Nor do Defendants contend that they are unable to 11 communicate with Ms. Robinson about the affidavit or obtain contrary evidence. Ms. 12 Robinson is, after all, one of their managers. The Court does not by this statement intend to 13 minimize the importance of ER 4.2 or to approve the conduct that occurred in this case. 14 Lawyers clearly should abide by ER 4.2 and prevent their clients from engaging in an end- 15 run around the rule. But the Court does conclude that any ethical violation that occurred in 16 this case should be addressed through the State Bar of Arizona disciplinary process, not 17 through the exclusion of the Robinson affidavit. The Court is influenced in this decision by 18 the purpose of the Arizona Rules of Professional Conduct: 19 20 21 22 The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of a Rule. 23 24 Arizona Supreme Court Rule 42, Preamble to Rules of Professional Conduct. 25 IT IS ORDERED: 26 1. Defendants’ motion to for summary judgment on the Title VII claim 27 (Dkt. #47) is granted with respect to all individual Defendants and denied 28 with respect to Defendant Maricopa Community College District. -8- 1 2. Defendants’ motion for summary judgment on the section 1981 and section 2 1983 claims (Dkt. #47) is granted with respect to Defendants Clevenger and 3 Peterson and denied with respect to all other Defendants. 4 3. The Court will set a final pretrial conference by separate order. 5 DATED this 12th day of February, 2009. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
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