Muldrew, et al. v. County of Fresno, et al., No. 1:2009cv00023 - Document 48 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION Regarding Defendants' 23 Motion for Summary Judgment Against Plaintiff Hise signed by Judge Oliver W. Wanger on 8/10/2010. (Esteves, C)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 IVANA MULDREW and DARREN HISE, 9 1:09-cv-00023-OWW-DLB MEMORANDUM DECISION REGARDING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF HISE (Doc. 23) Plaintiffs, 10 v. 11 12 COUNTY OF FRESNO, et al., 13 Defendants. 14 I. 15 INTRODUCTION. 16 Plaintiff Darren Hise ( Plaintiff ) is proceeding with this 17 civil rights action against Defendants the Country of Fresno and 18 Kenneth Taniguichi ( Defendants ) pursuant to 42 U.S.C. §§ 1981, 19 1983, and 28 U.S.C. § 1331. 20 claims. Plaintiff also asserts state law Defendants filed a motion for summary judgment on Plaintiff s 21 22 claims on May 20, 2010. (Doc. 23). Plaintiff filed opposition to 23 Defendant s motion for summary judgment on June 14, 2010. 24 28). (Doc. II. FACTUAL BACKGROUND. 25 26 Plaintiff commenced employment as a defense investigator with 27 the Fresno County Public Defender s Office ( PDO ) in 2000. (PUMF 28 1). In 2003, Plaintiff was 1 promoted to Senior Defense 1 Investigator, a supervisory position that was essentially the top 2 investigative position within the PDO. (PUMF 2). 3 Plaintiff s Leave Request 4 On April 2008, Plaintiff submitted a request for time off for 5 the week of April 14-18. Taniguichi reviewed the request and 6 believed that Plaintiff failed to complete the request by not 7 identifying the type of leave requested. 8 first day of leave requested and provided a note to Plaintiff 9 directing him to see his supervisor regarding the remaining leave Taniguichi denied the 10 requested. Plaintiff sought an explanation regarding the initial 11 denial of leave and spoke to Taniguichi. (Opposition, Ex. 1 at 12 273). 13 requested 14 responded that Taniguichi did not have a right to know, and that 15 Plaintiff would contact his union representative as recourse for 16 denial 17 Taniguichi s office, prompting Taniguichi to go out into the hall 18 and yell for Plaintiff to return. 19 approached Plaintiff in the common area and repeated his query 20 about Plaintiff s leave request, and Plaintiff continued to assert 21 that 22 Ultimately, 23 quarreled over their respective rights for a few more minutes, and 24 ultimately reached a resolution whereby Plaintiff did not reveal 25 the reasons for his leave request but was granted the full leave 26 requested. 27 /// 28 /// During the discussion, Taniguichi asked Plaintiff what his medical of the Taniguichi leave leave. was Plaintiff was (Id. not and for. at entitled (Id. 274). 2 274). Plaintiff Plaintiff (Id. at 275). to Taniguichi (Id. at 279-281). at know. returned left Taniguichi (Id. to then at his 276). office, 1 Muldrew s Complaint 2 In June 2008, one of Plaintiff s co-workers, Ivana Muldrew, 3 returned to work at the PDO s office after having been on leave for 4 several weeks. (PUMF 12). 5 that 6 Mudlrew excess work in order to set her up for failure. 7 Plaintiff did not have a good relationship with Alderete and had 8 witnessed 9 Plaintiff told Muldrew that he agreed that Alderete s conduct was 10 her supervisor, Alderete Muldrew told Plaintiff that she felt Celica use Alderete, profanity and was unfairly slam doors. hostile and designed to set Muldrew up for failure. assigning (PUMF 17). (PUMF 18). (PUMF 17). 11 On July 18, 2008, Plaintiff signed a letter authored by 12 Muldrew which detailed Alderete s treatment of Mudlrew and also 13 alleged other unprofessional conduct on Alderete s part. 14 19). 15 that he signed the Muldrew s letter in order to prompt the County 16 to investigate and respond to Alderete s conduct toward Muldrew as 17 well as racial issues Plaintiff perceived were being caused by 18 Alderete.1 (PUMF 19). 19 discrimination complaint form to the County s Labor Relations 20 Division with the Junly 18 letter attached. 21 boxes race and color on the discrimination complaint form. The letter was addressed to the the PDO. (PUMF Plaintiff alleges On July 24, 2008, Muldrew submitted a Muldrew checked the 22 Charlotte Tilkes and Deborah Harper interviewed Plaintiff in 23 connection with Muldrew s complaint in August 2008. Hise confirmed 24 Muldrew s complaints to Tilkes and Harper. Plainitff also 25 1 26 27 28 Plaintiff contends that Alderete was and is a very vocal proponent of Hispanics, and openly and frequently lobbied for promotions of Hispanic employees and for additional pay for Spanish speaking investigators. Plaintiff further contends that Aldrete s advocacy reached a point of racial preference and that Aldrete s advocacy frequently occurred during meetings with...supervising attorneys. (PUMF 5). 3 1 confirmed that Muldrew had been subjected to criticism by an 2 attorney in the PDO, Marguerita Martinez, that Plaintiff believed 3 was not based upon Muldrew s work performance. 4 indicated that Alderete s close relationship with Assistant Public 5 Defender Elizabeth Diaz ( Diaz ) affected employees willingness to 6 cross Alderete. 7 his interview, and that it would remain confidential. (PUMF 20). Finally, Plaintiff Plaintiff was told that he was not to discuss 8 Approximately a week after Plaintiff s interview with Tilkes 9 and Harper, Diaz, Plaintiff s supervisor, Diaz, asked to meet with 10 Plaintiff and 11 Muldrew. Plaintiff felt uncomfortable because he felt Diaz was 12 trying to learn what Plaintiff had told Tilkes and Harper. 13 21). 14 Tilkes and Harper to discuss his concerns regarding his meeting 15 with Diaz. During Plaintiff s meeting with Tikles and Harper, they 16 became defensive and asked Plaintiff if he was accusing them of 17 divulging the substance of their prior interview of Plaintiff. 18 Plaintiff wanted to leave the meeting, but Harper insisted that he 19 stay. 20 a 21 eventually left the meeting, and shortly after 3 p.m., he saw 22 Harper and Tilkes walking to Starbucks. 23 not say or do anything to Harper or Wilkes. 24 questioned him about Alderete s problems with (PUMF The following day, on August 21, 2008, Plaintiff contacted Harper and Tilkes tried to give Plaintiff paperwork to file complaint, but Plaintiff declined. (PUMF 22). Plaintiff Plaintiff contends he did (PUMF 23). Plaintiff left work at 4:15 p.m. on the day of his second 25 meeting with Tilkes and Harper. Shortly after leaving, Plaintiff 26 recieved a call from Ron Perring, the Chief Attorney for Major 27 Crimes at the PDO, asking him to return to work to speek with 28 Kenneth Taniguchi. (PUMF 24). Plaintiff returned to work and was 4 1 met by Taniguchi, Jim Dockery, and Gary Shinaver. 2 told he was being put on administrative leave and was directed to 3 hand over his keys and ID. 4 go 5 Building, Plaza Building, or Juvenile Hall. 6 letter stating the reasons for Taniguchi s decision, but Taniguchi 7 declined. 8 9 into or near the Plaintiff was Taniguchi instructed Plaintiff not to Dependency Office, the Courts, Crocker Plaintiff asked for a (PUMF 25). Taniguchi sent an email to all PDO employees advising them to have no contact with Plaintiff. (PUMF 26). On August 24, 2008, 10 Taniguchi sent a letter to Plaintiff advising him that he was 11 placed on paid administrative leave and reiterating that Plaintff 12 was not to have contact with employees of the PDO or to be present 13 at PDO facilities. III. LEGAL STANDARD. 14 15 (PUMF 27). Summary judgment/adjudication is appropriate when "the 16 pleadings, the discovery and disclosure materials on file, and any 17 affidavits show that there is no genuine issue as to any material 18 fact and that the movant is entitled to judgment as a matter of 19 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 20 responsibility of informing the district court of the basis for its 21 motion, 22 depositions, answers to interrogatories, and admissions on file, 23 together with the affidavits, if any, which it believes demonstrate 24 the absence of a genuine issue of material fact." Celotex Corp. v. 25 Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 26 (1986) (internal quotation marks omitted). and identifying those portions of the pleadings, 27 Where the movant will have the burden of proof on an issue at 28 trial, it must "affirmatively demonstrate that no reasonable trier 5 1 of fact could find other than for the moving party." Soremekun v. 2 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 3 respect to an issue as to which the non-moving party will have the 4 burden of proof, the movant "can prevail merely by pointing out 5 that there is an absence of evidence to support the nonmoving 6 party's case." Soremekun, 509 F.3d at 984. With 7 When a motion for summary judgment is properly made and 8 supported, the non-movant cannot defeat the motion by resting upon 9 the allegations or denials of its own pleading, rather the 10 "non-moving party must set forth, by affidavit or as otherwise 11 provided in Rule 56, 'specific facts showing that there is a 12 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 14 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or 15 a mere scintilla of evidence in his favor are both insufficient to 16 withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 17 (9th Cir. 2009). "[A] non-movant must show a genuine issue of 18 material fact by presenting affirmative evidence from which a jury 19 could find in his favor." Id. (emphasis in original). "[S]ummary 20 judgment will not lie if [a] dispute about a material fact is 21 'genuine,' that is, if the evidence is such that a reasonable jury 22 could return a verdict for the nonmoving party." 23 U.S. at 248. In determining whether a genuine dispute exists, a 24 district court does not make credibility determinations; rather, 25 the 26 justifiable inferences are to be drawn in his favor." Id. at 255. 27 /// 28 /// "evidence of the non-movant 6 is to be Anderson, 477 believed, and all 1 IV. DISCUSSION. 2 A. Plaintiff s Fourth Cause of Action Under 42 U.S.C. § 1981 and California Government Code 12900 et seq. 3 4 Plaintiff alleges that Defendant County of Fresno ( the 5 County ) took adverse employment action against him in retaliation 6 for 7 Alderete. 8 action taken against him was motivated in substantial part by 9 attitudes hostile to African-Americans. Plaintiff s corroboration (Complaint at 10). of Muldrew s complaint against Plaintiff alleges that the adverse (Id.). 10 1. Section 1981 11 Section 1981 prohibits retaliatory action motivated by racial 12 discrimination. 13 1107 (9th Cir. 2008); London v. Coopers & Lybrand, 644 F.2d 811, 14 818 (1981) (distinguishing retaliation based on racial animus from 15 other types of retaliatory action). 16 case of retaliation, a plaintiff must prove (1) she engaged in a 17 protected activity; (2) she suffered an adverse employment action; 18 and (3) there was a causal connection between the two. 19 518 20 established a prima facie case, the burden shifts to the defendant 21 to set forth a legitimate, non-retaliatory reason for its actions; 22 at that point, the plaintiff must produce evidence to show that the 23 stated reasons were a pretext for retaliation. 24 entity may be held liable for the discriminatory actions of its top 25 decision-maker. 26 (9th Cir. 2005). F.2d at E.g. Surrell v. Cal. Water Serv., 518 F.3d 1097, 1108 (citation To establish a prima facie omitted). Once a Surrell, plaintiff Id. has A municipal Menotti v. City of Seattle, 409 F.3d 1113, 1147 27 The complaint alleges that the County retaliated against 28 Plaintiff for corroborating Muldrew s claim that Alderete was 7 1 discriminating against her on the basis of race. (Complaint at 9- 2 10). 3 4 Specifically, the complaint alleges: 54. Defendant County was aware of the racial motivation of Celia Alderete and its disparate effect upon Plaintiff Muldrew, yet failed and refused to correct Alderete s aforesaid conduct, thereby ratifying the same. 5 6 7 8 9 10 11 12 55. Defendant County s removal of Plaintiff Hise from his office, and the manner in which it occurred and his being ostracized from co-workers were in retaliation for Hise s corroboration of Plaintiff Muldrew s complaints and were intended to and did have a chilling effect on other employees so as to prevent others from coming forward or confirming Plaintiff Muldrew s reports of discrimination, harassment and retaliation. 56. Defendant County s placing of Plaintiff Hise on administrative leave pending investigation was motivated in substantial part by attitudes hostile to African-Americans; that Defendant Taniguchi was responsible for such acts and decisions and ratified all of the acts necessary to achieve the same. 13 14 15 16 17 18 57. Defendants used and/or allowed official policies, procedures and/or practices to retaliate against Plaintiff Hise on the basis of his association with and support of Plaintiff Muldrew in violation of the Fourteenth Amendment to the United States Constitution, 42 USC § 1981, and California Government Code section 12900, et.seq, prohibitions against racial discrimination and retaliation. (Complaint at 9-10). 19 The record contains evidence sufficient to permit a rational 20 jury to conclude that Plaintiff engaged in a protected activity by 21 supporting Mudlrew s claim of racial discrimination during his 22 interview with Tilkes and Harper. 23 The report prepared by Tilkes and Harper concerning Mudlrew s 24 discrimination claim includes a section entitled Background, 25 which provides, in pertinent part: 26 27 28 (Hise Dec. at 4; MSJ, Ex. O). On July 24, 2008, Ivana Mudlrew...filed a formal discrimination complaint alleging that her supervisor...Celia Aldrete...has discriminated against her and created a hostile work environment...¶ In her written complaint, Ivana Muldrew alleges discrimination 8 1 on the basis of race, color, retaliation, and hostile work environment. During the course of this administrative review, it was discovered that Ivana Muldrew had filed a discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC)...The EEOC complaint includes allegation including [sic] racial discrimination... 2 3 4 5 (MSJ, Ex. O). Another section of the Tilkes and Harper report 6 entitled Interview Darren Hise -August 7, 2008, 2:00pm, Summary 7 (Muldrew Witness) recounts Plaintiff s interview, in pertinent 8 part, as follows: 9 Darren s discussion in this interview included... allegations currently under EEOC investigation and not subject to this review...¶ Darren spent a great deal of the interview explaining the same history and issues that Ivana had stated during her interview, none of which were subject [sic] of this administrative review...Because of the focus of his story and how closely it paralleled Ivana s, Darren was asked if he had discussed with Ivana her interview on August 5th, he stated he had not discussed her interview. 10 11 12 13 14 15 (MSJ, Ex. O at 7). 16 Plaintiff has met the first requirement of stating a prima 17 facie claim under section 1981 by presenting evidence that he 18 engaged in a protected activity when he corroborated Mudlrew s 19 claims of discrimination during the interview with Tilkes and 20 Harper. (Id.). 21 stating a prima facie section 1981 claim by presenting evidence 22 that he suffered adverse employment action; it is undisputed that 23 Plaintiff was placed on administrative leave on August 21, 2008.2 Plaintiff has also met the second requirement of 24 2 25 26 27 28 In opposition to Defendant s motion for summary judgement, Plaintiff suggests that Taniguichi s decision to demote Plaintiff in March 2009 also constituted retaliatory action. (Opposition at 5). However, the complaint unequivocally alleges that the adverse employment action taken against Plaintiff was the decision to place Plaintiff on administrative leave. It is axiomatic that Plaintiff s complaint, filed in January 2009, could not have been based on retaliatory action that had not yet occurred; i.e. the March 13, 2009 demotion notice. 9 1 (MSJ, Ex. B, Taniguichi Dec. at 2; Hise Dec. at 5; Hise Dec. Exs. 2 2A, 2B). 3 protected activity and his placement on administrative leave is 4 subject to a factual dispute. 5 There Whether a causal connection existed between Plaintiff s is evidence on the record sufficient to permit a 6 rational jury to conclude that at the time Taniguichi decided to 7 place Plaintiff on leave, Taniguichi was aware that Plaintiff 8 supported Muldrew s claim of racial discrimination. 9 reviewed Muldrew s July 24, 2008 discrimination complaint, which Plaintiff s 10 included 11 Taniguichi also reviewed an EEOC complaint filed by Muldrew in 12 February 13 administrative leave, Taniguichi reviewed memos prepared by Tilkes 14 and Harper regarding what had happened during Plaintiff s August 15 21, 2008 interview Tilkes and Harper. 16 knowledge regarding Muldrew s various discrimination complaints, 17 his knowledge that Plaintiff had signed Mudlrew s July 18 letter, 18 and his knowledge that Plaintiff had been interviewed in connection 19 with Mudlrew s July 24 complaint support a rational inference that 20 Taniguichi knew Plaintiff was supporting Muldrew s claims of racial 21 discrimination 22 administrative leave. of signature. 2008. at (Id). the (Taniguichi Taniguichi Before PDO when placing (Id. at 3). he placed Dec. at Plaintiff 4). on Taniguichi s Plaintiff on 23 Defendants purported non-discriminatory reason for placing 24 Plaintiff on administrative leave is also subject to a factual 25 dispute. According to Taniguchi, Plaintiff was placed on leave due 26 to his conduct during his August 21, 2008 meeting with Tilkes and 27 Harper, as well as other blemishes on Plaintiff s employment 28 record. (Taniguichi Dec. at 3). 10 In a report prepared by Harper 1 following the August 21 meeting, Harper stated that Plaintiff 2 became aggressive and caused Harper to fear for her personal 3 safety. 4 version of the August 21 meeting, and a reasonable jury could 5 accept 6 Taniguichi s reliance on Tilkes and Harper s account of the August 7 21 meeting was a pretext for retaliation. 8 182-85). Accordingly, questions of fact preclude summary judgement 9 on Plaintiff s retaliation claim. (MSJ, Ex. S). Plaintiff s However, Plaintiff contests Harper s version of the facts and conclude that (Opposition, Ex. 1 at 10 2. California Government Code section 12900 et seq. 11 The complaint fails to specify the nature of Plaintiff s claim 12 under California s Fair Housing and Employment Act. 13 allegations contained in the section of the complaint entitled 14 Fourth 15 pertain to section 12940(h), which provides that it shall be an 16 unlawful employment practice 17 Cause of Action: Discrimination, However, the Retaliation clearly for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. 18 19 20 Cal. Gov. Code § 12940(h). As discussed above, factual disputes 21 preclude summary judgment on Plaintiff s federal retaliation claim. 22 For the same reasons, Defendants are not entitled to summary 23 judgment on Plaintiff s state-law retaliation claim. 24 25 B. Plaintiff s Claim Under 29 U.S.C. § 2615(A)(1) and California Government Code 12945.2 26 27 28 The complaint alleges that Taniguchi violated 29 U.S.C. § 2615(a)(1) and California Government 11 Code 12945.2 by asking 1 Plaintiff 2 reprimanding Plaintiff for failing to comply with his requests. 3 (Complaint at 11-12). 4 5 to divulge medical information and subsequently Section 2615(a)(1) provides: It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title [29 USCS §§ 2611 et seq.]. 6 7 An employer may not discourage an employee from taking FMLA leave. 8 Xin Liu v. Amway, 347 F.3d 1125, 1134-35 (9th Cir. 2003). 9 FMLA, California Government Code section 12945.2 confers rights to 10 family and personal medical leave. 11 Like the 12945.2(l) provides: 12 13 California Government Code It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following: 14 15 16 17 18 (1) An individual's exercise of the right to family care and medical leave provided by subdivision (a). (2) An individual's giving information or testimony as to his or her own family care and medical leave, or another person's family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section. 19 The elements of a cause of action under California Government Code 20 section 12945.2(l)as follows: (1) the defendant was an employer 21 covered by CFRA; (2) the plaintiff was an employee eligible to take 22 CFRA leave; (3) the plaintiff exercised her right to take leave for 23 a qualifying CFRA purpose; and (4) the plaintiff suffered an 24 adverse employment action, such as termination, fine, or 25 suspension, because of her exercise of her right to CFRA leave. 26 Dudley v. Dep't of Transp., 90 Cal. App. 4th 255, 262 (Cal. Ct. 27 App. 2001). 28 12 1 At oral argument, Plaintiff s counsel conceded that Plaintiff 2 ultimately received all the medical leave he requested, and that 3 summary judgment should be granted as to Plaintiff s claims under 4 the 5 Accordingly, Defendants motion for summary judgment on the fifth 6 cause of action asserted in the complaint is GRANTED. FMLA and California Government Code section 12945.2. ORDER 7 8 For the reasons stated, IT IS ORDERED: 9 1) Defendants motion for summary judgment on Plaintiff 10 Hise s fourth cause of action for retaliation under 42 11 U.S.C. § 1981 and Cal. Gov. Code § 12900 is DENIED; 12 2) Defendants motion for summary judgment on Plaintiff 13 Hise s fifth cause of action under 29 U.S.C. § 2615(a)(1) 14 and Cal. Gov. Code § 12945.2 is GRANTED; and, 15 3) Defendants shall submit a form of order consistent with 16 this Memorandum Decision within five (5) days following 17 electronic service of this decision. 18 IT IS SO ORDERED. 19 Dated: hkh80h August 10, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 13
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