-SKO Lewis v. City Of Fresno, et al., No. 1:2008cv01062 - Document 105 (E.D. Cal. 2011)
Court Description: MEMORANDUM, OPINION and ORDER GRANTING defendants' Motion for Summary Judgment against Jonathan Pierro, document 74 , 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. 105 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 JONATHAN PIERRO (Doc. 74) Plaintiffs, 10 11 12 v. CITY OF FRESNO, et al., Defendants. 13 14 15 16 17 18 19 I. INTRODUCTION. Jonathan Pierro 22 23 24 25 26 27 proceeds with this action pursuant to 42 U.S.C. 1983 and California Government Code § 12900. Defendants filed a motion for summary judgment on May 9, 2011. (Doc. 74). Plaintiff filed opposition on June 6, 2011. (Doc. 86). Defendants filed a reply on June 13, 2011. 20 21 (“Plaintiff”) (Doc. 92) II. FACTUAL BACKGROUND. Plaintiff is an African American police officer who previously served as a recruit and cadet with the Fresno Police Department (“Department”). Plaintiff entered the Department’s Patrol Training Program (“Program”) on January 9, 2007. Plaintiff was supervised by Kirk Pool (“Pool”). Brett Vestal (“Vestal”) was assigned as Plaintiff’s training officer. 28 1 Dockets.Justia.com 1 In March 2007, Plaintiff reported to Pool’s office at the 2 directive of Vestal. 3 Plaintiff was going to successfully complete the training program 4 and suggested that Plaintiff resign and take a non-sworn position. 5 Plaintiff 6 assignment to be completed in the next 48 hours. 7 to complete the assignment. 8 not complete the homework assignment and told him to call Pool. 9 Plaintiff alleges that he called Pool in Vestal’s presence and left declined. Pool told Plaintiff he did not believe Pool gave Plaintiff a written homework Plaintiff failed Vestal was upset that Plaintiff did 10 a message when Pool did not answer. 11 not having called Pool. 12 Reprimand for failing to complete the homework assignment. After 13 this union 14 representative, sergeant James Lewis (“Lewis”), who intervened on 15 Plaintiff’s behalf and caused Plaintiff to be assigned to a new 16 training officer. 17 incident, Plaintiff Vestal accused Plaintiff of Plaintiff received a Documented Oral sought the assistance of a Plaintiff reported to the Department’s Southeast Division in 18 May 2007 to begin training with officer Jason Jones (“Jones”). 19 Plaintiff saw 20 Plaintiff alleges 21 displayed a hostile attitude similar to Pool and Vestal’s. Jones conversing that Jones with Vestal micro-managed at his some point. conduct and 22 In July 2007, Jones took Plaintiff downtown to participate in 23 an emergency board evaluation. After the evaluation, Jones relayed 24 to Plaintiff that he had scored “better than expected” on the 25 evaluation. 26 was subsequently assigned to his “sixth white training officer,” 27 Damon Kurtz (“Kurtz”). 28 was assigned to yet another training officer, Derrick Avila. Plaintiff failed the examination, however. (Opposition at 5). 2 Plaintiff After Kurtz, Plaintiff On 1 his second day under Avila, Plaintiff was demoted to Cadet II. 2 Plaintiff believed his time with Avila was the “most valuable.” 3 (Id.). 4 Plaintiff on a subsequent occasion fell asleep on duty at a 5 hospital while guarding a prisoner who was handcuffed to a hospital 6 bed. 7 after the hospital incident. Plaintiff was allowed to resign rather than being terminated III. LEGAL STANDARD. 8 9 Summary judgment/adjudication is appropriate when "the 10 pleadings, the discovery and disclosure materials on file, and any 11 affidavits show that there is no genuine issue as to any material 12 fact and that the movant is entitled to judgment as a matter of 13 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 14 responsibility of informing the district court of the basis for its 15 motion, 16 depositions, answers to interrogatories, and admissions on file, 17 together with the affidavits, if any, which it believes demonstrate 18 the absence of a genuine issue of material fact." Celotex Corp. v. 19 Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 20 (1986) (internal quotation marks omitted). and identifying those portions of the pleadings, 21 Where the movant will have the burden of proof on an issue at 22 trial, it must "affirmatively demonstrate that no reasonable trier 23 of fact could find other than for the moving party." 24 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 25 respect to an issue as to which the non-moving party will have the 26 burden of proof, the movant "can prevail merely by pointing out 27 that there is an absence of evidence to support the nonmoving 28 party's case." Soremekun, 509 F.3d at 984. 3 Soremekun v. With 1 2 When a motion for summary judgment is properly made and 3 supported, the non-movant cannot defeat the motion by resting upon 4 the 5 "non-moving party must set forth, by affidavit or as otherwise 6 provided in Rule 56, 'specific facts showing that there is a 7 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 9 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or 10 a mere scintilla of evidence in his favor are both insufficient to 11 withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 12 (9th Cir. 2009). "[A] non-movant must show a genuine issue of 13 material fact by presenting affirmative evidence from which a jury 14 could find in his favor." Id. (emphasis in original). "[S]ummary 15 judgment will not lie if [a] dispute about a material fact is 16 'genuine,' that is, if the evidence is such that a reasonable jury 17 could return a verdict for the nonmoving party." 18 U.S. at 248. In determining whether a genuine dispute exists, a 19 district court does not make credibility determinations; rather, 20 the 21 justifiable inferences are to be drawn in his favor." Id. at 255. 22 IV. DISCUSSION. 23 allegations "evidence of or denials the of its non-movant is own to pleading, be rather the Anderson, 477 believed, and all A. FEHA Claims 24 California’s Fair Employment and Housing Act (“FEHA”) makes it 25 an “unlawful employment practice” for any employer “because of the 26 race...to discriminate against the person in compensation or in 27 terms, conditions, or privileges of employment.” Cal. Gov. Code, § 28 12940(a). The elements of a 4 FEHA claim for employment 1 discrimination are (1) the employee's membership in a 2 classification protected by the statute; (2) discriminatory animus 3 on the part of the employer toward members of that classification; 4 (3) an action by the employer adverse to the employee's interests; 5 (4) a causal link between the discriminatory animus and the adverse 6 action; (5) damage to the employee, and (6) a causal link between 7 the adverse action and the damage. 8 Inc., 165 Cal. App. 4th 686, 713 (Cal. Ct. App. 2008). Mamou v. Trendwest Resorts, 1. Discrimination Claim 9 10 FEHA's discrimination provision addresses only explicit 11 changes in the “terms, conditions, or privileges of employment.” 12 Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (Cal. 2010) (citing 13 (§ 12940(a)). 14 employer, the institution or corporation itself must have taken 15 some official action with respect to the employee, such as hiring, 16 firing, failing to promote, adverse job assignment, significant 17 change 18 action. in In the case of an institutional or corporate compensation or benefits, or official disciplinary Id. 19 Plaintiff identifies three adverse employment actions taken 20 against him: (1) the Documented Oral Reprimand issued by Pool; (2) 21 his 22 Plaintiff provides no direct evidence that any of the adverse 23 actions he complains of were motivated by race, and does not allege 24 circumstances sufficient to support an inference of discrimination 25 under the McDonald Douglas framework, except that all but one of 26 his training officers were Caucasian. 27 28 demotion With to respect Cadet to II; and Plaintiff’s (3) his forced homework resignation. assignment and the related Documented Oral Reprimand, it is undisputed that the non5 1 African American trainees received such assignments. 2 Plaintiff’s Response to DUMF No. 12). 3 the basis for Plaintiff’s Documented Oral Reprimand was his failure 4 to timely complete the assignment and for lack of effort, and that 5 Pool has given Documented Oral Reprimands for similar conduct on 6 other occasions to non-African American officers in training. 7 (Doc. 86-1, Plaintiff’s Response to DUMF Nos. 13, 14).1 8 provides no evidence sufficient to support a reasonable inference 9 that Pool harbored racial animus towards African Americans, or that 10 his issuance of the reprimand to Plaintiff was motivated by racial 11 discrimination. There are valid reasons for the reprimand based on 12 Plaintiff’s failure to complete the assignment. 13 (Doc. 86-1, It is also undisputed that Plaintiff Pool was also responsible for Plaintiff’s demotion to Cadet 14 II. 15 does not dispute that the motivation for Pool’s decision was to 16 allow Plaintiff more time to improve and for Plaintiff to motivate 17 himself to be more successful in the training program. (Doc. 86-1, 18 Plaintiff’s Response to DUMF No. 20). There is no evidence that 19 Pool harbored racial animus toward Plaintiff. 20 evidence aside from the fact of race that support an inference of 21 racism on Pool’s part. 22 (Doc. 86-1, Plaintiff’s Response to DUMF No. 19). Plaintiff Nor is there any As to Plaintiff’s forced resignation, it is undisputed that 23 Sergeant Grove and Captain 24 recommended 25 Captain Belluomini offered resignation in lieu of termination as an 26 accommodation to Plaintiff. (Doc. 86-1, Plaintiff’s Response to Plaintiff’s Maroney, termination an African-American, from employment, and that 27 1 28 Plaintiff lodges an evidentiary objection to DUMF No. 14 on the grounds that it is conclusory. DUMF No. 14 is based on Pool’s testimony. 6 1 DUMF Nos. 24, 25). The record is devoid of any evidence that any 2 of the decision makers involved in the decision to terminate 3 Plaintiff were motivated by racial discrimination.2 4 has not provided a scintilla of admissible evidence that any of the 5 adverse employment actions he complains of were motivated even in 6 part by racial discrimination, summary judgment on Plaintiff’s FEHA 7 discrimination claim is GRANTED.3 As Plaintiff 8 2. Retaliation Claim 9 In order to establish a prima facie case of retaliation under 10 FEHA, a plaintiff must show (1) he or she engaged in a "protected 11 activity," (2) the employer subjected the employee to an adverse 12 employment action, and (3) a causal link existed between the 13 protected activity and the employer's action. 14 4th at 1142. Yanowitz, 36 Cal. 15 It is undisputed that there is no evidence that the adverse 16 employment actions Plaintiff alleges in the complaint were carried 17 out 18 complaint regarding racial discrimination. Plaintiff concedes that 19 (1) the individuals involved in the Documented Oral Reprimand were 20 not by individuals aware that with knowledge Plaintiff had of Plaintiff’s complained purported about racial 21 22 23 24 25 26 2 Plaintiff’s response to DUMF No. 29 avers “while [Pool, Vestal, and Jones] were not decision-makers, their input was part of the decision making” that culminated in the decision to terminate Plaintiff. The fact that decision makers may have considered Pool, Vestal, and Jones’ opinions of Plaintiff’s performance in reaching their decision to terminate Plaintiff is insufficient to render Pool, Vestal, and Jones “direct and important participant[s]” in the decision making process. See DeJung v. Superior Court, 169 Cal. App. 4th 533, 552 (Cal. Ct. App. 2008) (discussing “cats paw” doctrine). 3 27 28 Plaintiff contends that another officer referred to Jones and Vestal as “Nazis;” even assuming the truth of the implication Plaintiff seeks to derive from this hearsay statement, there is no evidence pertaining to the relevant decision makers. 7 1 discrimination;(2) the individuals involved in Plaintiff’s transfer 2 to Police Cadet were not aware that Plaintiff had complained about 3 racial discrimination; and (3) the individuals involved in offering 4 Plaintiff the option to resign in lieu of being terminated were not 5 aware that Plaintiff had complained about racial discrimination. 6 (Doc. 86-1, Plaintiff’s Response to DUMF Nos. 33-35). 7 basis for this claim. 8 claim is GRANTED. 9 B. Federal Claims There is no Summary judgment on Plaintiff’s retaliation 10 Plaintiff’s opposition does not oppose any of Defendants’ 11 arguments concerning entitlement to summary judgment on Plaintiff’s 12 federal claims. 13 1. Section 1981 Claim 14 Plaintiff’s section 1981 claim is predicated on Plaintiff’s 15 allegation that Defendants Pool and Dyer discriminated against 16 Plaintiff on the basis of race. (Complaint at 18).4 17 concedes Chief Dyer had no personal involvement in any alleged 18 adverse action against Plaintiff and thus has no claim against Dyer 19 under section 1981. (Doc. 86-1, Plaintiff’s Response to DUMF No. 20 1). Plaintiff 21 The same summary judgment test applies in both the section 22 1981 and FEHA contexts. E.g., Lawson v. Reynolds Indus., 264 Fed. 23 Appx. 546, 549 n.2 (9th Cir. 2008) (unpublished) (citing Manatt v. 24 Bank of Am., NA, 339 F.3d 792, 801 (9th Cir. 2003)(§ 1981) and 25 Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 26 (9th Cir. 2001) (FEHA)). Because the factual basis for Plaintiff’s 27 4 28 The Complaint also asserts a 1981 claim against Defendant Farmer, however, Plaintiff voluntarily dismissed this claim on April 21, 2011. (Doc. 71). 8 1 section 2 discrimination claim, Defendant’s motion for summary judgment on 3 Plaintiff’s section 1981 claim against Dyer and Pool is GRANTED for 4 the same reasons stated above. 5 of San Francisco, 2011 U.S. App. LEXIS 8383 *2 (9th Cir. 2011) 6 (unpublished) (noting that summary judgment was appopriate on both 7 FEHA claims and section 1981 claims where Plaintiff failed to 8 establish a prima facie case of discrimination). 9 1981 claim is the same as the basis for his FEHA See, e.g., Peralta v. City & County 2. Section 1985 Claim 10 To establish a § 1985(3) conspiracy claim, the plaintiff must 11 show: "(1) the existence of a conspiracy to deprive the plaintiff 12 of the equal protection of the laws; (2) an act in furtherance of 13 the conspiracy; and (3) a resulting injury." 14 F.3d 1275, 1284 (9th Cir. 1998); accord Hernandez v. City of 15 Vancouver, 277 Fed. Appx. 666, 671 (9th Cir. 2009) (unpublished) 16 (citing Scott). 17 Scott v. Ross, 140 The Complaint asserts a section 1985 claim against Dyer, 18 Farmer, Pool, Vestal, and Jones. 19 claim with respect to Dyer. 20 Pool, Vestal, and Jones never made any agreement to take action 21 against Plaintiff based on his race, nor is there any evidence of 22 racial discrimination by any of these Defendants. 23 Plaintiff’s Response to DUMF No. 27). 24 concerning 25 Plaintiff’s section 1985 claim is GRANTED. Defendants Dyer Plaintiff has dismissed his 1985 (Doc. 71). and Farmer. It is undisputed that (Doc. 86-1 There is no evidence Summary judgment on 26 3. Section 1983 Claim 27 The complaint alleges that “initiation and prosecution of 28 disciplinary action as to Plaintiff and ultimately his termination 9 1 were violations of Plaintiff’s due process Fourteenth Amendment 2 rights.” 3 action deprives a citizen of a protected liberty or property 4 interest. 5 (9th Cir. 1998). Under the federal constitution, at-will employees 6 possess no protected property rights and therefore are not entitled 7 to due process before being terminated. 8 County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 9 were valid non-discriminatory reasons for Plaintiff’s termination. 10 11 Due process protections are implicated when government See, e.g., Lawson v. Umatilla County, 139 F.3d 690, 692 Id. (citing Portman v. Plaintiff has no viable section 1983 claim. There Summary judgment is GRANTED. ORDER 12 13 For the reasons stated, IT IS ORDERED: 14 1) Summary judgment on Plaintiff’s FEHA claims is GRANTED; 15 2) Summary judgment on Plaintiff’s federal claims is GRANTED; 16 and 17 3) Defendants shall submit a form of order consistent with 18 this memorandum decision within five (5) days of electronic 19 service of this decision. 20 IT IS SO ORDERED. 21 Dated: hkh80h July 13, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 10
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