-SKO Lewis v. City Of Fresno, et al., No. 1:2008cv01062 - Document 102 (E.D. Cal. 2011)
Court Description: MEMORANDUM, OPINION and ORDER GRANTING defendants City of Fresno, Jerry Dyer, Robert Nevarez, John Romo, Greg Garner, and Anthony Martinez' Motion for Summary Judgment against James Lewis, document 75 , on the FEHA and federal claims; defendants to lodge an order in conformity with this memorandum decision within five days of electronic service of this decision; order signed by Judge Oliver W. Wanger on 7/13/2011. (Rooney, M)
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-SKO Lewis v. City Of Fresno, et al. Doc. 102 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:08-cv-01062-OWW-GSA JAMES LEWIS, et al., 9 MEMORANDUM DECISION RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST JAMES LEWIS (Doc. 75) Plaintiffs, 10 v. 11 12 CITY OF FRESNO, et al., Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION. James Lewis (“Plaintiff”) proceeds with an action against the City of Fresno (“the City”), Jerry Dyer (“Dyer”), Robert Nevarez (“Nevarez”), John Romo (“Romo”), Greg Garner (“Garner”), Anthony Martinez (“Martinez”), and multiple Doe defendants. Plaintiff filed a first amended complaint (“FAC”) on September 23, 2009. (Doc. 45). The City, Dyer, Nevarez, and Romo filed a motion for summary judgment against Plaintiff on May 10, 2011. (Doc. 75). Plaintiff filed opposition to the motion for summary judgment on June 6, 2011. (Doc. 81). II. FACTUAL BACKGROUND. Plaintiff has been employed as a peace officer with the Fresno Police Department (“Department”) since 1986. In 2006, Plaintiff 28 1 Dockets.Justia.com 1 held the rank of sergeant with the Department. 2 In January 2006, John Romo (“Romo”) was a sergeant with the 3 Department and was the supervising officer for the Department’s 4 Duty 5 prohibiting personnel from outside the Duty Office from reviewing 6 records relevant to overtime assignments. 7 Office. Romo issued a memorandum on January 21, 2006 On February 21, 2006, Plaintiff complained to Captain Lydia 8 Carrasco that he believed Romo was assigning overtime 9 disparate manner and discriminating against Plaintiff. in a Plaintiff 10 further complained that Romo was restricting Plaintiff’s access to 11 information regarding overtime assignments. 12 On March 1, 2006, the Fresno Police Officer’s Association 13 (“FPOA”) issued a memorandum stating that it would pursue an 14 informal grievance against Romo on Plaintiff’s behalf for alleged 15 disparate treatment in violation of the Department’s Standing 16 Orders 2.4.8 and 2.5.1. 17 response to the FPOA memorandum in which the Department agreed to 18 form a committee to draft a recommendation for a new overtime 19 policy. On May 19, 2006, the Department issued a Plaintiff was assigned to serve on the committee. 20 On July 8, 2006, Plaintiff went to the Duty Office to view 21 records related to overtime assignments and to obtain a copy of the 22 January 21, 2006 Romo memorandum. 23 Officer Barajas that Romo’s memorandum was void and ordered Barajas 24 to permit him to view the overtime records. 25 Plaintiff was subsequently investigated by Internal Affairs for 26 allege 27 conflicting orders and disciplined. 28 /// violations of Department 2 Plaintiff instructed Duty policy Barajas complied. related to giving III. LEGAL STANDARD. 1 2 Summary judgment/adjudication is appropriate when "the 3 pleadings, the discovery and disclosure materials on file, and any 4 affidavits show that there is no genuine issue as to any material 5 fact and that the movant is entitled to judgment as a matter of 6 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 7 responsibility of informing the district court of the basis for its 8 motion, 9 depositions, answers to interrogatories, and admissions on file, 10 together with the affidavits, if any, which it believes demonstrate 11 the absence of a genuine issue of material fact." Celotex Corp. v. 12 Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 13 (1986) (internal quotation marks omitted). and identifying those portions of the pleadings, 14 Where the movant will have the burden of proof on an issue at 15 trial, it must "affirmatively demonstrate that no reasonable trier 16 of fact could find other than for the moving party." 17 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 18 respect to an issue as to which the non-moving party will have the 19 burden of proof, the movant "can prevail merely by pointing out 20 that there is an absence of evidence to support the nonmoving 21 party's case." Soremekun, 509 F.3d at 984. Soremekun v. With 22 When a motion for summary judgment is properly made and 23 supported, the non-movant cannot defeat the motion by resting upon 24 the 25 "non-moving party must set forth, by affidavit or as otherwise 26 provided in Rule 56, 'specific facts showing that there is a 27 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. allegations or denials of 3 its own pleading, rather the 1 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or 2 a mere scintilla of evidence in his favor are both insufficient to 3 withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 4 (9th Cir. 2009). "[A] non-movant must show a genuine issue of 5 material fact by presenting affirmative evidence from which a jury 6 could find in his favor." Id. (emphasis in original). "[S]ummary 7 judgment will not lie if [a] dispute about a material fact is 8 'genuine,' that is, if the evidence is such that a reasonable jury 9 could return a verdict for the nonmoving party." Anderson, 477 10 U.S. at 248. In determining whether a genuine dispute exists, a 11 district court does not make credibility determinations; rather, 12 the 13 justifiable inferences are to be drawn in his favor." Id. at 255. 14 IV. DISCUSSION. 15 16 "evidence of the non-movant is to be believed, and all A. FEHA Claim California’s Fair Employment and Housing Act (“FEHA”) affords 17 California employees broad protection against discrimination, 18 harassment, and retaliation on any of a wide range of impermissible 19 bases. 20 Cal. 4th 88, 105 (Cal. 2008). 21 a racial discrimination claim based on disparate assignment of 22 overtime 23 Department’s disciplinary action against Plaintiff for his July 8, 24 2006 conduct. McDonald v. Antelope Valley Community College Dist., 45 hours; and (2) The FAC asserts two FEHA claims: (1) a retaliation claim based on the 25 1. Statute of Limitations 26 Employees who believe they have been discriminated against 27 generally have one year in which 28 complaint with California’s Department of Fair Employment and 4 to file an administrative 1 Housing 2 California’s Fair Employment and Housing Act (“FEHA”). 3 45 Cal. 4th at 105 (citing Cal. Gov. Code 12960(d)). Exhaustion of 4 FEHA’s administrative remedy is mandatory; an employee may not 5 proceed in court with a FEHA claim without first obtaining a 6 right-to-sue letter from the DFEH. 7 8 9 10 11 12 13 14 15 16 17 18 (“DFEH”), the agency charged with administering McDonald, Id. The governing statute of limitations for FEHA’s administrative process provides in part: No [DFEH] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred … .” It then identifies four exceptions: (1) a 90-day extension in instances of delayed discovery of the unlawful practice; (2) a one-year extension in certain instances of delayed discovery of the identity of the actual employer; (3) a one-to-three-year extension for Ralph Hate Crimes Act (Civ. Code, § 51.7) violations in cases of delayed discovery of the perpetrator's identity; and (4) an extension to one year after an aggrieved party achieves the age of majority if the misconduct occurred while the party was a minor (§ 12960, subd. (d)(1)–(4)). We discern in this provision no basis for limiting the application of equitable tolling. Id. at 106-07. Defendants contend that Plaintiff failed to file his DFEH 19 complaint within the one year proscribed by section 12960(d). 20 Defendants note that paragraph 17 of the FAC alleges that Plaintiff 21 first raised concerns to Captain Lydia Carassco about Romo’s 22 disparate assignment of overtime and restrictions on overtime 23 information on February 21, 2006. 24 did not file his DFEH complaint until May 21, 2007, one year and 25 three months later. 26 It is undisputed that Plaintiff Plaintiff contends that his DFEH complaint was timely under 27 the continuing violation doctrine. 28 violation doctrine, an employer is liable for actions that take 5 Under California’s continuing 1 place 2 sufficiently linked to unlawful conduct that occurred within the 3 limitations period. 4 4th 1028, 1057 (Cal. Ct. App. 2005). 5 doctrine 6 temporally related and continuous course of conduct; “discrete 7 discriminatory acts are not actionable if time-barred, even when 8 they are related to acts alleged in timely filed charges.” 9 1058, 1057. 10 outside the applies Plaintiff limitations period if these actions are E.g., Yanowitz v. L'Oreal USA, Inc., 36 Cal. where contends alleged that The continuing violation discrimination the is discriminatory based on a Id. at conduct he 11 complains of continued until May 2007, although Plaintiff does not 12 specifically identify any discriminatory conduct related to the 13 assignment of overtime and access to overtime records occurring 14 after 15 discrimination claim alleged in Plaintiff’s DFEH complaint is 16 enforcement of the Romo memo against Plaintiff during his visit to 17 the duty office on July 8, 2006. 18 part of the continuous course of conduct underlying Plaintiff’s 19 DFEH complaint, because an important component of Plaintiff’s 20 discrimination claim is that access to overtime information was 21 restricted in order to facilitate the discriminatory assignment of 22 overtime hours. 23 continuing violation doctrine, as it was filed within one year of 24 the July 8, 2006 incident-- an occurrence that was part of a 25 continuous course of conduct allegedly designed to perpetuate the 2006. Nevertheless, a key event underlying the The July 8 incident is undeniably Plaintiff’s DFEH complaint was timely under the 26 27 28 6 1 discrimination Plaintiff complains of.1 2 Finally, as noted motion to in the dismiss, Memorandum FEHA’s Decision limitations denying 3 Defendant’s period is 4 equitably tolled “while the employee and employer pursue resolution 5 of any grievance through an internal administrative procedure.” 6 McDonald, 45 Cal. 4th at 108. 7 tolling for the time period during which he was pursuing his 8 petition for writ of mandamus concerning the disciplinary action 9 taken against him. Plaintiff is entitled to equitable Plaintiff is also entitled to tolling for the 10 time period during which he was pursuing an his grievance through 11 the FPOA. 12 in 13 Defendants’ motion to dismiss Plaintiffs’ FEHA claims as time 14 barred is DENIED. which McDonald, 45 Cal. 4th at 108 (tolling applied for period informal grievance was pursued with employer). 15 2. Discrimination Claim 16 FEHA makes it an “unlawful employment practice” for any 17 employer “because of the race…to discriminate against the person in 18 compensation or in terms, conditions, or privileges of employment.” 19 Cal. Gov. Code, § 12940(a). 20 employment discrimination are (1) the employee's membership in a The elements of a FEHA claim for 21 22 23 24 25 26 27 1 Plaintiff also contends he did not have reason to know of the alleged discrimination until commencement of the Internal Affairs investigation. Plaintiff maintains that the Internal Affairs investigation first put Plaintiff on notice that he had been treated differently from other sergeants who had attempted to view the duty logs and back orders; Plaintiff does not explain why he believed this disparate treatment was motivated by racial discrimination. None of the evidence cited by Plaintiff in his Separate Statement or Response to Defendant’s separate statement concerning facts revealed in the Internal Affairs investigation suggest that racial animus motivated the conduct complained of. (Exhibits 9, 11, and 27 to Church Decl.). Rather, Plaintiff’s argument is based on his representation that, when he learned he was treated differently from other sergeants who had requested access to overtime information, he believed it was because he was African American. 28 7 1 classification protected by the statute; (2) discriminatory animus 2 on the part of the employer toward members of that classification; 3 (3) an action by the employer adverse to the employee's interests; 4 (4) a causal link between the discriminatory animus and the adverse 5 action; (5) damage to the employee, and (6) a causal link between 6 the adverse action and the damage. 7 Inc., 165 Cal. App. 4th 686, 713 (Cal. Ct. App. 2008). 8 FEHA's discrimination Mamou v. Trendwest Resorts, provision addresses only explicit 9 changes in the “terms, conditions, or privileges of employment.” 10 Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (Cal. 2010) (citing 11 (§ 12940(a)). 12 employer, the institution or corporation itself must have taken 13 some official action with respect to the employee, such as hiring, 14 firing, failing to promote, adverse job assignment, significant 15 change 16 action. in In the case of an institutional or corporate compensation or benefits, or official disciplinary Id. 17 Plaintiff’s discrimination claim under FEHA is predicated on 18 three actions taken against him that he contends were racially 19 motivated: (1) denial of overtime opportunities to Plaintiff; (2) 20 denial 21 disciplinary action taken against Plaintiff for his conduct on July 22 8, 2006. 23 of alleged racism occurring prior to 2006, but none of these 24 incidents are related to Romo or other actors involved in the 25 conduct giving rise to the claims asserted in the FAC.2 of access to (FAC at 8-9). overtime records to Plaintiff; and (3) The FAC also recounts sporadic incidents 26 2 27 28 For example, Plaintiff alleges that: (1) in 2001, Chief Dyer was photographed holding a noose; (2) in the 1990's, an officer displayed a Hitler poster in his office and the Department responded with a memo cautioning against “inappropriate” items at work but did not treat the incident as a “race or hate 8 1 Defendants contend that Plaintiff’s FEHA claim is subject to 2 summary judgment because Plaintiff presents no evidence that the 3 conduct he complains of was motivated by racial animus. 4 contends that 5 similarly-situated officers provides circumstantial evidence of 6 racial discrimination. the fact that he was treated Plaintiff differently than a. Overtime Assignments and Access to Records 7 8 Defendants submit that Romo’s overtime assignments were 9 motivated by his personal friendships with the patrol sergeants who 10 received 11 Undisputed Material Fact (“DMUF”) No. 3). 12 Defendants’ contention. 13 differently from non-African American sergeants at the department, 14 and 15 Plaintiff contends that non-African American sergeants were allowed 16 to access overtime records notwithstanding Romo’s memorandum, while 17 Plaintiff was not, causing Plaintiff to “conclude that Romo was 18 racially biased against him.” 19 DMUF No. 3). 20 his contention that Romo’s actions were racially motivated: that preferential such treatment. treatment (Defendants Statement of Plaintiff disputes Plaintiff avers that he was treated is based on racism. Specifically, (Doc. 81, Plaintiff’s Response to Plaintiff cites the following evidence in support of 21 22 23 24 25 26 27 crime”; (3) an African American officer was tested for steroids while at the Police Academy, but other officers capable of bench-pressing 500 lbs. have not been tested; (4) one unit within the department was, at one time, almost entirely comprised of Hispanic officers; (5) an African American officer involved in a shooting was required to return to patrol, whereas white officers were not; (6) the Department started a program to recruit Southeast Asian officers, but not African Americans; (7) Chief Dyer has referred to African American’s as “those people”; (8) higher ranking African American officers are not treated with the same respect as their peers; and (9) there are positions which no African American has held at the Department such as homicide sergeant, SWAT sergeant, and motors sergeant. (Opposition at 6-7). These allegations relate to whether a racially hostile work environment existed and whether policy makers had notice of racial animus in the workplace that was permitted to operate. 28 9 1 2 3 4 5 6 Church Declaration, Exhibit 1, 02/21/06 Lewis email to FPOA; Exhibit 7, Snow RT 27:12-22, 29:15-24, 30:3-31:5 33:3-11, 45:15-19, 55:1-7; Exhibit 9, Lewis RT 89:17-94:1 Exhibit 11, Lewis IA RT 22:3-15; 24:5-19; 32:25-33:25 Exhibit 27, 03/01/06 Informal Grievance (Id.). Exhibit 1 to Ms. Church’s declaration is an email from 7 Plaintiff to Lydia Carrasco sent on February 21, 2006. 8 February 21 email to Carrasco, Plaintiff complained that Sergeant 9 Hodge was receiving special treatment in obtaining overtime hours 10 due to his relationship with Romo; it provides no evidence that 11 Romo’s conduct was racially motivated, only that he received 12 special treatment and was not African-American. 13 In his Exhibit 7 to Ms. Church’s declaration consists of excerpts 14 from the deposition of Sergeant Garry Snow. 15 deposition testimony supports an inference that Plaintiff was 16 treated differently on account of his race. 17 Snow’s deposition indicates that other sergeants were also denied 18 access to overtime records, and that Snow believed Plaintiff was 19 singled out for disciplinary action after the June 8, 2006 incident 20 because 21 overtime allocation practices. 22 Plaintiff caused the Department to Nothing in Snow’s To the contrary, scrutinize Romo’s Exhibit 9 to Ms Church’s declaration consists of excerpts from 23 Plaintiff’s deposition. In response to a question from Defense 24 counsel asking Plaintiff to explain why he felt there were “racial 25 concerns” raised by information disclosed during the Internal 26 Affairs investigation, Plaintiff responded that he inferred from 27 the “essence and the tones” of certain written communications 28 attached to the Internal Affairs report regarding the June 8, 2006 10 1 incident that there was “some animosity or something going on.” 2 (Doc. 81-6, Ex. 9 at 89-90). 3 deposition that Romo’s memorandum restricting access to overtime 4 records 5 sergeants.” 6 acts of racial discrimination by Romo. 7 was not enforced Plaintiff also stated in his against other “similarly-situated Plaintiff’s deposition does not specifically identify Exhibit 11 to Ms. Church’s declaration contains excerpts from 8 statements made during 9 portions of Exhibit 11 cited by Plaintiff to oppose DUMF No. 3 Snow’s the statements Internal that Affairs Plaintiff interview. was being The 10 recount treated 11 differently than other sergeants. 12 the Internal Affairs interview mentions or supports an inference of 13 racial animus. 14 his mind “the only reason” for Romo’s disparate treatment of 15 Plaintiff with respect 16 personnel issue that 17 challenged the way [sic] business was done on overtime.” (Doc. 81- 18 6, Ex. 11 at 22). 19 Exhibit However, nothing Snow said in To the contrary, Snow’s statements reveal that, in 27 to to accessing somebody Ms. is Church’s overtime upset records because declaration is was they’ve the “a been informal 20 grievance form Plaintiff filed on February 21, 2006 regarding 21 Romo’s assignment of overtime. 22 racial 23 supports an inference that Romo’s alleged misconduct was racially 24 motivated. 25 discrimination, Plaintiff has no and The grievance does not allege nothing direct alleged evidence in that the Romo’s grievance overtime 26 assignments were motivated by racial animus. 27 lacks direct evidence of discriminatory intent, he may rely on the 28 McDonnell Douglas framework to overcome summary judgment. 11 Although Plaintiff See, 1 e.g., Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (Cal. 2 2000). 3 4 5 6 7 California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination...This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained. 8 9 10 11 12 13 14 15 16 17 18 ...[T]he McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. While the plaintiff's prima facie burden is "not onerous,” he must at least show " 'actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a [prohibited] discriminatory criterion.” ...Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. 19 Id. (citations omitted, emphasis added). 20 Plaintiff satisfies the first element of the McDonald Douglas 21 framework, as he is African American and a member of a protected 22 class. Plaintiff also satisfies the adverse action element, as it 23 is undisputed he was denied access to overtime opportunities. 24 Plaintiff presents no evidence to establish Romo’s overtime 25 assignments were motivated by racial discrimination, however. 26 Plaintiff bases his claim of racial discrimination on alleged 27 disparate treatment. As an initial matter, the extent to which 28 12 1 Plaintiff was treated differently from similarly-situated sergeants 2 is 3 including non-African American officers, were injured by, and 4 complained about, Romo's disparate assignment of overtime. 5 is no evidence that Plaintiff was treated more harshly than these 6 other disadvantaged officers with respect to the amount of overtime 7 they were assigned. 8 “consistently enforced” against him, while other sergeants were 9 permitted access to overtime records notwithstanding the Romo memo. unclear. It is undisputed that other patrol sergeants, There Plaintiff contends that Romo’s memo was only 10 Plaintiff’s evidence does not establish how many times the Romo 11 memo was enforced against him as opposed to other officers. 12 According to the FAC, Plaintiff sent an email to Captain 13 Carrasco on February 21, 2006 complaining that Romo’s memo “was 14 expired 15 Plaintiff.” 16 concerning enforcement of the Romo memo against Plaintiff concerns 17 the July 8, 2006 incident in which Plaintiff was ultimately granted 18 access to the overtime records. 19 FAC and 20 opposition to summary judgment, it appears Plaintiff only attempted 21 to access records on two occasions after the issuance of Romo’s 22 memo and was only denied access once. The record demonstrates that 23 other officers were also denied access to overtime records pursuant 24 to Romo’s memo. 25 Barajas Dec. at 2). and the that its continued (FAC at 4). enforcement was limited to The only other allegation in the FAC arguments and Based on the allegations of the evidence advanced by Plaintiff in (Doc. 75-7, Mana Dep. RT at 51); (Doc. 75-13, 26 Assuming arguendo that Plaintiff was treated differently from 27 some of his peers, there is no evidence such disparate treatment 28 was racially motivated. Barajas, the officer working in the duty 13 1 office during Plaintiff’s July 8, 2006 visit, has submitted a 2 statement under penalty of perjury which indicates that his attempt 3 to enforce the Romo memorandum during the July 8 incident was not 4 based on racial discrimination, and that he has never observed any 5 duty office policies discriminating against officers on the basis 6 of race or ethnicity. 7 statement belies Plaintiff’s speculative contention that Romo’s 8 memorandum was selectively enforced against him, only, on the basis 9 of his race. (Doc. 75-13, Barajas Dec. at 2). Barajas’ Plaintiff’s supposition that enforcement of Romo’s 10 memorandum against him was based on racially discriminatory motives 11 is not supported by evidence that gives rise to an inference of 12 race-based discrimination. 13 Although intent is ordinarily a question of fact for the jury, 14 and although “very little” evidence is required to create a triable 15 issue of fact as to an employer’s motive, Plaintiff does not 16 present any evidence that either Romo’s overtime assignments or 17 enforcement of the Romo memorandum were racially motivated. 18 Rather, the most plausible interpretation of the evidence is that 19 Romo favored “other sergeants.” 20 others were not African-American. 21 Plaintiff was 22 officers does 23 discriminatory intent. 24 25 26 27 28 allegedly not treated create a It must be inferred that the Without more, the fact that differently triable issue from of some fact select regarding As one district court has reasoned: Although courts have found that "proof of discriminatory motive . . . can in some situations be inferred from the mere fact of differences in treatment," International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843. (1977); see also Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir. 1991) (quoting same), Plaintiff has neither demonstrated that he was treated differently from those similarly situated nor provided 14 1 corroborating evidence of discrimination that, in previous cases, has supported the inference that a defendant acted from discriminatory motives. See, e.g., Freeman, [125 F.3d 723, 738 n.6 (9th Cir. 1997)](noting that abusive epithets may be evidence of intentional discrimination); Sischo-Nownejad, 934 F.2d at 1112 ("The fact that stereotyped remarks were made by [Plaintiff's] superiors at the same time they were subjecting her to less favorable working conditions is sufficient to raise an inference of discriminatory intent."). In this case, there is no evidence of discriminatory treatment or discriminatory motive. 2 3 4 5 6 7 Sutton v. Stewart, 22 F. Supp. 2d 1097, 1108 (D. Arizona 1998) 8 (emphasis added). 9 In essence, the only evidence Plaintiff offers in support of 10 his contention that Romo’s actions were racially motivated is the 11 fact is that Plaintiff is an African American and was treated 12 differently from some non-African American officers; this evidence 13 is insufficient absent any corroborating evidence of racial animus 14 or otherwise suggesting discriminatory intent.3 See, e.g., id. To 15 hold otherwise would be to countenance a standard under which any 16 disparate action taken against a member of a protected class is 17 presumed discriminatory because of the complaining party’s race. 18 Plaintiff’s opposition to the motion for summary judgment presents 19 no direct evidence of discriminatory motive and does not satisfy 20 the McDonald Douglas framework for establishing a triable issue of 21 fact. Defendants motion for summary judgment on Plaintiff’s FEHA claim for 22 racial discrimination is GRANTED with respect to 23 assignment of overtime hours and access to overtime records. 24 /// 25 /// 26 27 3 28 There is no nexus between the sporadic incidents of racism Plaintiff alleges, such as an officer displaying a Hilter poster in the 1990's, and Romo's conduct. 15 b. Disciplinary Action 1 2 The FAC alleges that “the Department’s initiation and 3 prosecution of disciplinary action related to Plaintiff’s July 8, 4 2006 conduct was...racially motivated.” 5 undisputed that the Deputy Chief of Police for the Department, 6 Robert Nevarez, authorized the Internal Affairs investigation and 7 ensuing disciplinary action against Plaintiff after receiving a 8 complaint regarding 9 incident. (Doc. 75-12, Nevarez Decl. at 1). Lewis’ conduct (FAC at 8). during the July It is 8, 2006 Nevarez directed the 10 Commander of the Southwest District, Captain Greg Garner, to 11 conduct the Internal Affairs investigation. 12 evidence that either Nevarez or Garner’s actions was motivated by 13 racial animus. 14 Plaintiff presents no Plaintiff contends that Romo and Lt. Brogdon “instigated” the 15 Internal Affairs investigation against him. Plaintiff cites 16 Exhibits 4, 7, and 21 to Ms. Church’s declaration in support of 17 this contention. (Doc. 81-1, Plaintiff’s Response to DUMF No. 15). 18 Exhibit 4 is a Memorandum to Captain Garner from Anthony Martinez 19 which indicates that Brogdon forwarded an email to Martinez from 20 Barajas documenting the July 8, 2006 incident. 21 Memorandum, Martinez recommended that Plaintiff “be interviewed for 22 potential violation of Department policy.” 23 excerpts of the deposition testimony of Snow. 24 Snow’s deposition cited by Plaintiff, Snow recounts his belief that 25 Romo had caused a complaint to be filed regarding the July 8, 2006 26 incident because he was upset Plaintiff made his initial overtime 27 grievance against Romo. 28 foundation for Snow’s belief. At the end of the Exhibit 7 provides In the portions of Snow’s testimony does not provide the Finally, Exhibit 21 is an email 16 1 exchange between Romo and Barajas regarding the July 8 incident. 2 Exhibits 4, 7, and 21 do not suggest that Romo and Brogdon 3 instigated Nevarez’s decision to authorize the Internal Affairs 4 Investigation. 5 Romo and 6 Martinez of the July 8 incident. 7 to Garner. 8 ultimate decision to initiate the Internal Affairs investigation. To the contrary, these exhibits only reflect that Brogdon followed the chain of command by informing Martinez then relayed the facts Garner, in turn, notified Nevarez, who made the 9 There is no evidence that Romo was motivated by racial animus. 10 Nor does Plaintiff present any evidence that Brogdon was motivated 11 by racial discrimination. Even assuming arguendo Romo and Brodgdon 12 harbored racial animus when they reported the July 8 incident to 13 Martinez, there is no sufficient causal link between any animus 14 harbored by Romo and Brogdon and Nevarez’s ultimate decision to 15 order the Internal Affairs investigation. 16 recognizes 17 innocence of a decision maker does not bar discrimination claims if 18 the decision maker acted as a mere conduit of another’s prejudice, 19 see, e.g., Reid v. Google, Inc., 50 Cal. 4th 512, 542 (Cal. Ct. 20 App. 2010), the cat’s paw doctrine applies where the party accused 21 of discrimination was a “direct and important participant” in the 22 decision making process, see DeJung v. Superior Court, 169 Cal. 23 App. 4th 533, 552 (Cal. Ct. App. 2008); accord Reeves v. Safeway 24 Stores, Inc., 121 Cal. App. 4th 95, 116 n.14 (Cal. Ct. App. 25 2004)(“Imputation of retaliatory animus will be justified by any 26 set of facts that would permit a jury to find that an intermediary, 27 for whatever reasons, simply carried out the will of the actuator, 28 rather than breaking the chain of causation by taking a truly the “cat’s paw” doctrine, 17 Although California pursuant to which the 1 independent action”). 2 were involved at all in Nevarez’s decision; they merely reported 3 the incident, and the information worked its way up the chain of 4 command to Nevarez. 5 irritated about being called to account and made complaints about 6 his accuser, either defensively or to direct attnetion from his 7 conduct by playing “the blame game.” It was not racially motivated. 8 Plaintiff also There is no evidence that Romo or Brodgon The most likely explanation is that Romo was advances the conclusory assertion that 9 “similarly situated non-African American officers would not have 10 been subject to an IA investigation for the same conduct” for which 11 Plaintiff was disciplined. Plaintiff provides no evidence in 12 support of this contention. Plaintiff alleges that “Snow visited 13 the Duty office on a regular basis and was not denied access and 14 Romo...did not seek disciplinary action [against Snow].” (Doc. 81- 15 1, 16 Plaintiff, Snow did not issue any conflicting orders and was not 17 “similarly situated.” 18 overtime records but rather for issuing an order to Barajas that 19 conflicted with Romo’s order.4 20 situated officer who was not disciplined for engaging in the 21 conduct for which Plaintiff was disciplined. Plaintiff’s Response to DUMF No. 17). However, unlike Plaintiff was not disciplined for accessing Plaintiff points to no similarly- 22 There is no evidence that the Department’s initiation and 23 prosecution of disciplinary action related to Plaintiff’s July 8, 24 25 26 27 28 4 Whether Plaintiff’s order conflicted with a valid, extant order from Romo is disputed, but immaterial. Plaintiff contends Romo’s memo had expired and was no longer a valid order. Even assuming Plaintiff’s position is correct, Plaintiff was not similarly situated to officers granted access to the overtime records, such as Snow, because those officers had not issued an arguably conflicting order, which prompted the investigation and disciplinary action against Plaintiff. 18 1 2006 conduct was racially motivated. Summary judgment on 2 Plaintiff’s FEHA claim arising out of the disciplinary action is 3 GRANTED. 4 3. Retaliation Claim 5 In order to establish a prima facie case of retaliation under 6 FEHA, a plaintiff must show (1) he or she engaged in a “protected 7 activity,” (2) the employer subjected the employee to an adverse 8 employment action, and (3) a causal link existed between the 9 protected activity and the employer's action. Yanowitz, 36 Cal. 10 4th Internal 11 investigation and subsequent disciplinary action taken against him 12 were in retaliation for his February 21, 2006 email to Carrasco and 13 his filing of the March 1, 2006 informal grievance. (Opposition at 14 12). 15 “grievance was based upon a violation of policy; not race.” 16 (Opposition at 15). at 1142. However, Plaintiff Plaintiff contends that represents the that his March Affairs 1, 2006 17 According to Plaintiff’s opposition, he first began to believe 18 that the disparate treatment regarding overtime assignments and 19 access to overtime records was racially motivated during the 20 Internal Affairs investigation, which was not initiated until 21 August 2006, several months after his email to Carrasco and his 22 filing of the informal grievance. 23 that both his email to Carrasco and informal grievance were based 24 on violations of Department policy, not race, establish that 25 neither constituted protected activities under FEHA. In order to 26 constitute “must 27 alerted his employer to his belief that discrimination, not merely 28 unfair personnel treatment, had occurred.” protected activity, Plaintiff’s judicial admissions Plaintiffs’ conduct 19 have Mayfield v. Sara Lee 1 Corp., 2005 U.S. Dist. LEXIS 42458 *23 (N.D. Cal. 2005) (citing 2 Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) 3 (finding 4 protected activity) and Barber v. CSX Distrib. Servs., 68 F.3d 694, 5 701-702 (3rd Cir. 1995) (finding employee complaint regarding 6 promotion decision not protected activity)); accord Lanagan v. 7 Santa Cruz County Metro Transit Dist., 2010 U.S. Dist. LEXIS 43413 8 * 16 (N.D. Cal. 2010) (report of co-employee’s negligence “not 9 protected activity [under FEHA] because it has nothing to do with 10 the FEHA's prohibitions”); Timmons v. UPS, 2007 U.S. Dist. LEXIS 11 57761 * 18 n. 10 (E.D. Cal. 2007) reversed in part on other grounds 12 by 310 Fed. Appx. 973 (9th Cir. 2009)(“alleged retaliation for 13 safety concerns [plaintiff] raised...not protected activity under 14 FEHA or ADA, as those statutes do not protect such whistleblowing 15 activity”).5 employee complaint regarding scheduling change not 16 As neither Plaintiff’s email to Carrasco nor his informal 17 grievance were protected activities under FEHA, summary judgment on 18 Plaintiff’s claim for retaliation arising out of these activities 19 must be GRANTED.6 20 B. Federal Claims 21 The FAC asserts claims under 42 U.S.C. §§ 1981, 1983, and 22 1985. The factual basis for Plaintiff’s section 1981 claim is 23 identical to the factual basis for his FEHA claim. (FAC at 9-10). 24 25 5 26 The factual history section of Plaintiff’s opposition alleges additional retaliatory acts that occurred in 2009 and 2010. (Opposition at 4-5). The FAC does not allege any FEHA claims based on these allegations. 27 6 28 The court does not condone the conduct Plaintiff complains of or the treatment he was subjected to. However, no whistle-blower action is alleged. See Cal. Lab. Code § 1102.5. 20 1 The factual basis for Plaintiff’s section 1985 claim is identical 2 to the basis for his FEHA retaliation claim. 3 factual 4 identical to the basis for his FEHA retaliation claim, however, the 5 section 1983 claim asserts the additional allegation that Plaintiff 6 was subjected to a hostile work environment. basis for Plaintiff’s section (FAC at 12-13). 1983 claim is The almost (FAC at 11-12). 7 1. 1981 Claim 8 Plaintiff’s section 1981 claim is predicated on Plaintiff’s 9 allegation that: (1) Romo’s disparate assignment of overtime and 10 restricting of access to overtime records was racially motivated; 11 and (2) the initiation and prosecution of disciplinary action 12 related to Plaintiff’s July 8, 2006 conduct was retaliatory and 13 racially motivated. 14 The same summary judgment test applies in both the section 15 1981 and FEHA contexts. E.g., Lawson v. Reynolds Indus., 264 Fed. 16 Appx. 546, 549 n.2 (9th Cir. 2008) (unpublished) (citing Manatt v. 17 Bank of Am., NA, 339 F.3d 792, 801 (9th Cir. 2003)(§ 1981) and 18 Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 19 (9th Cir. 2001) (FEHA)). Because the factual basis for Plaintiff’s 20 section 21 discrimination claim, Defendant’s motion for summary judgment on 22 Plaintiff’s section 1981 claim is GRANTED for the same reasons 23 stated 24 Francisco, 25 (unpublished) (noting that summary judgment was appopriate on both 26 FEHA claims and section 1981 claims where Plaintiff failed to 27 establish a prima facie case of discrimination). 1981 claim above. 2011 is See, U.S. the e.g., App. same as the Peralta v. LEXIS 8383 28 21 basis City *2 & for his County (9th Cir. FEHA of San 2011) 1 2. Section 1985 Claim 2 To establish a § 1985(3) conspiracy claim, the plaintiff must 3 show: "(1) the existence of a conspiracy to deprive the plaintiff 4 of the equal protection of the laws; (2) an act in furtherance of 5 the conspiracy; and (3) a resulting injury." 6 F.3d 1275, 1284 (9th Cir. 1998); accord Hernandez v. City of 7 Vancouver, 277 Fed. Appx. 666, 671 (9th Cir. 2009) (unpublished) 8 (citing Scott). Scott v. Ross, 140 9 The FAC alleges that “Dyer, Garner, Martinez, Nevarez, and 10 Romo conspired to...deny Plaintiff the exercise of his civil rights 11 to be free from discrimination.” 12 alleges 13 disciplinary action related to Plaintiff’s July 8, 2006 conduct was 14 retaliatory and racially motivated and was done in furtherance of 15 the 16 discussed 17 disciplinary 18 Plaintiff’s own judicial admissions foreclose any retaliation claim 19 based on the 20 complains of 21 discrimination. 22 against for do not implicate any constitutional right. 23 judgment on Plaintiff’s section 1985 claim is GRANTED. that the conspiracy “Department’s of above, and by he theory was initiation Defendants.” Plaintiff action (FAC at 12). presents complains that the retaliation of and prosecution (Id.). For no evidence was racially disciplinary for The FAC further reasons that the motivated. action objecting of Plaintiff to racial The actions Plaintiff alleges he was retaliated Summary 24 3. Section 1983 Claim 25 Plaintiff’s section 1983 claim alleges that “the IA unit was 26 used to retaliate against officers who complained of discrimination 27 or other unlawful conduct within the Department.” 28 For reasons discussed above, Plaintiff’s 22 (FAC at 11). judicial admissions 1 establish that the alleged retaliation Plaintiff complains of was 2 not based on Plaintiff’s objection to any racial discrimination. 3 Plaintiff’s section 1983 claim also appears to allege that the 4 retaliatory acts complained of created a “racially hostile work 5 environment.” 6 a hostile work environment claim based on retaliation for objecting 7 to racial discrimination, for the reasons stated above, no such 8 retaliation is shown. 9 that suggests (FAC at 11). To the extent the FAC seeks to assert Nor is there is any evidence in the record Plaintiff was subjected to conduct sever and 10 pervasive enough to alter the conditions of employment. See, e.g., 11 Manatt v. Bank of Am., 339 F.3d 792, 799 (9th Cir. 2003). Summary 12 judgment on Plaintiff’s section 1983 claim is GRANTED. ORDER 13 14 For the reasons stated, IT IS ORDERED: 15 1) Summary judgment on Plaintiff’s FEHA claims is GRANTED; 16 2) Summary judgment on Plaintiff’s federal claims is GRANTED; 17 and 18 3) Defendants shall submit a form of order consistent with 19 this memorandum decision within five (5) days of electronic 20 service of this decision. 21 22 IT IS SO ORDERED. 23 Dated: hkh80h July 13, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 24 25 26 27 28 23
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