Ramirez v. County of Marin et al, No. 3:2010cv02889 - Document 105 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT by Judge Alsup denying 52 Motion for Partial Summary Judgment; granting 55 Motion for Summary Judgment (whalc1, COURT STAFF) (Filed on 10/25/2011)
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Ramirez v. County of Marin et al Doc. 105 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MARCO RAMIREZ, 11 For the Northern District of California United States District Court 10 12 13 No. C 10-02889 WHA Plaintiff, v. 14 COUNTY OF MARIN; WILLIAM BURKE; MICHAEL DALY; and DOES 1 through 50, inclusive, 15 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants. / 16 17 INTRODUCTION 18 In this action for alleged employment discrimination and retaliation, defendants move for 19 summary judgment on all claims and plaintiff moves for partial summary judgment on one aspect 20 of one claim. For the reasons stated below, defendants’ motion is GRANTED and plaintiff’s 21 motion is DENIED. 22 23 STATEMENT Plaintiff Marco Ramirez is Hispanic. He was hired by defendant Marin County in 1997, 24 and he was not subject to any workplace discipline during his first decade of work for the County. 25 The incidents giving rise to this action began in approximately 2008. At that time, plaintiff was a 26 deputy probation officer with the title DPO II. Defendant William Burke was the chief probation 27 officer, and defendant Michael Daly was the deputy chief probation officer (Ramirez Decl. ¶ 2). 28 Dockets.Justia.com 1 In late 2007 and early 2008, plaintiff “made several officer safety complaints” to 2 defendants Burke and Daly, including the supposed need for protective vests, weapons, and other 3 equipment. Plaintiff also testified before a civil grand jury investigating such safety concerns and 4 the impact of gang violence in Marin County (id. at ¶¶ 9–10). Defendant Burke selected plaintiff 5 as one of two employees to testify before the grand jury on behalf of the probation department, 6 without knowing the subject matter of the investigation (Burke Decl. ¶ 9). 7 On August 1, 2008, plaintiff filed a discrimination complaint with the County of Marin. It 8 alleged that he had been discriminated against based on race and gender, and that he had been 9 retaliated against for his officer-safety concerns (Poore Exh. B at Exh. 14). A year later, plaintiff received a letter stating that his complaint had been investigated, and that “[i]t has been 11 For the Northern District of California United States District Court 10 determined that your allegations are unsubstantiated by the facts” (Ramirez Exh. C). 12 On August 13, 2008, plaintiff was suspended for three work days for insubordination. 13 The developments leading up to this suspension were as follows. In January 2008, plaintiff was 14 transferred to the Juvenile Services Division. Nicki Kuhn, the director of that division, imposed a 15 dress code for her unit in April 2008. The dress code required male members of her staff to wear 16 collared shirts in the workplace. Mr. Ramirez had worn football and baseball jerseys to work “for 17 years,” and he continued to do so. In May 2008, Ms. Kuhn told plaintiff that he was dressing 18 inappropriately in the workplace and was required to wear a collared shirt. Plaintiff refused. The 19 confrontation escalated over the course of two days, and plaintiff ultimately was removed from 20 the workplace by Marin County Sheriff’s Deputies. Ms. Kuhn charged plaintiff with 21 insubordination and sent him a notice of intent to suspend him without pay. Defendant Burke 22 conducted a suspension hearing on July 9, 2008. Several weeks later, defendant Burke 23 determined that plaintiff had been insubordinate and suspended him for three days. The three-day 24 suspension was a reduction from a recommended five-day suspension (Ramirez 25 Decl. ¶¶ 13, 17–22; Poore Exh. B at 56; Burke Exh. B at 2, 6). 26 On January 29, 2009, plaintiff’s employment with Marin County was terminated based 27 upon a finding that he lacked honesty, integrity, and ethical and professional standards, and was 28 unwilling or unable to comply with policies, regulations, and rules of conduct (Burke Exh. A 2 1 at 22). The developments leading up to plaintiff’s termination were as follows. Plaintiff attended 2 a class certification hearing in a civil class action concerning officer compensation on the 3 morning of June 11, 2008 (Ramirez Decl. ¶ 26). This was not official duty but an individual 4 matter. Defendant Daly later learned that plaintiff had reported to his supervisor that “he was 5 working in Santa Rosa that morning, rather than attending to a personal matter in San Francisco.” 6 That same day, defendant Daly “also became aware that Plaintiff was using a County vehicle to 7 commute to his home.” In light of this information, Defendant Daly hired Dennis Finnegan as an 8 outside investigator to conduct an internal affairs investigation of plaintiff (Daly Decl. ¶¶ 3–5). 9 After several months of investigation, Investigator Finnegan concluded that plaintiff had made multiple false statements about his whereabouts and activities in official records, as well as 11 For the Northern District of California United States District Court 10 to his supervisors and in interviews with Investigator Finnegan. The investigation found that 12 plaintiff had falsified case notes about his supposed interactions with probationers he was 13 supervising and that he had submitted inaccurate time sheets and locator sheets. 14 Investigator Finnegan also found that plaintiff had lied to his supervisors about his activities, and 15 that he had used county vehicles for personal commutes (Daly Exh. A, B). Plaintiff disputes 16 these findings and maintains that he was always truthful in his statements and record-keeping 17 (Ramirez Decl. ¶¶ 27–32). 18 Defendant Daly sent plaintiff a notice of intent to terminate his employment on 19 December 5, 2008. The notice, which was fourteen pages long, explained the bases for 20 termination found by the investigation and appended voluminous items of documentary evidence 21 from the investigation. Defendant Daly placed plaintiff on paid administrative leave the same day 22 (Daly Exh. H, I). Defendant Burke conducted a pre-termination hearing on January 8, 2009, 23 which plaintiff attended with his attorney (Ramirez Decl. ¶ 35). Defendant Burke sent plaintiff a 24 final notice of discipline on January 29, 2009. The notice terminated plaintiff’s employment with 25 the county, effective at the end of February 2009 (Burke Exh. A). 26 A year and a half later, plaintiff filed this district court action, asserting six claims for 27 relief: (1) employment discrimination on the basis of race and national origin; (2) employment 28 retaliation for lodging a discrimination complaint; (3) failure to prevent and investigate 3 1 discrimination; (4) employment retaliation for lodging a working-conditions complaint; 2 (5) employment retaliation for lodging a compensation complaint; and (6) civil rights violations. 3 The first five claims were asserted only against the County. The last claim was asserted only 4 against defendants Burke and Daly. 5 All three defendants now move for summary judgment on all claims against them. 6 Plaintiff moves for partial summary judgment on one aspect of the civil rights claim. This order 7 follows full briefing and a hearing. 8 9 ANALYSIS Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this analysis, all 11 For the Northern District of California United States District Court 10 reasonable inferences must be drawn in the light most favorable to the non-moving party. 12 Johnson v. Racnho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1018 (9th Cir. 2010). Unsupported 13 conjecture or conclusory statements, however, cannot defeat summary judgment. Surrell v. Cal. 14 Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). 15 Where the party moving for summary judgment would bear the burden of proof at trial, 16 that party bears the initial burden of producing evidence that would entitle it to a directed verdict 17 if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 18 213 F.3d 474, 480 (9th Cir. 2000). Where the party moving for summary judgment would not 19 bear the burden of proof at trial, that party bears the initial burden of either producing evidence 20 that negates an essential element of the non-moving party’s claims, or showing that the 21 non-moving party does not have enough evidence of an essential element to carry its ultimate 22 burden of persuasion at trial. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 23 1102 (9th Cir. 2000). If the moving party does not satisfy its initial burden, then the non-moving 24 party has no obligation to produce anything and summary judgment must be denied. If, however, 25 the moving party satisfies its initial burden of production, then the non-moving party must 26 produce admissible evidence to show there exists a genuine issue of material fact. Id. at 1102–03. 27 28 4 1 1. CLAIM FOR EMPLOYMENT DISCRIMINATION (CLAIM ONE). 2 Plaintiff alleges that he suffered adverse employment actions “on the basis that plaintiff 3 was a Hispanic employee.” Plaintiff asserts that those actions by the County violated both 4 “California Government Code § 12940 and Title VII of the Civil Rights Act of 1964, as amended, 5 42 U.S.C. § 2000e et seq.” (Compl. ¶¶ 48–53). 6 7 A. Federal Law Basis for Claim. “To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her 8 administrative remedies before seeking adjudication of a Title VII claim. Exhaustion of 9 administrative remedies under Title VII requires that the complainant file a timely charge with the EEOC, thereby allowing the agency time to investigate the charge.” Lyons v. England, 11 For the Northern District of California United States District Court 10 307 F.3d 1092, 1103–04 (9th Cir. 2002) (internal citations omitted) (emphasis added). 12 The EEOC charge generally must be filed “within one hundred and eighty days after the 13 alleged unlawful employment practice occurred.” If, however, the aggrieved individual “initially 14 instituted proceedings with a State or local agency,” then the EEOC charge must be filed “within 15 three hundred days after the alleged unlawful employment practice occurred, or within thirty days 16 after receiving notice that the State or local agency has terminated the proceedings under the State 17 or local law, whichever is earlier.” 42 U.S.C. 2000e-5(e)(1). 18 Here, the latest adverse employment action was plaintiff’s termination in January 2009, 19 effective February 2009. Plaintiff did file a complaint with a local agency a year later, in 20 February 2010 (RJN Exh. A). Notice that the local proceedings had been terminated at plaintiff’s 21 request was issued that same month (RJN Exh. B). Thus, the deadline for plaintiff to file an 22 EEOC charge was the earlier of December 2009 (300 days after his termination) or March 2010 23 (30 days after termination of the local proceedings).* 24 The deadline was December 2009. Plaintiff requested a right-to-sue notice from the 25 EEOC in March 2010 (RJN Exh. C). This was not timely. Defendants assert that no timely 26 27 28 * If requested by a party and supplied with the necessary information, a court shall take judicial notice of facts that are not subject to reasonable dispute. FRE 201. Courts may properly take notice of the contents of documents filed with an administrative agency. See Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1048 n.3 (9th Cir. 2001). Defendants’ request for judicial notice is therefore GRANTED. 5 1 EEOC charge was filed, and there is no such charge in the record. Plaintiff does not offer any 2 evidence that he filed a timely EEOC charge, and indeed he does not even address defendants’ 3 argument that his Title VII claims are time-barred. Plaintiff had a full opportunity to show that he 4 exhausted his administrative remedies by filing a timely EEOC charge, but he utterly failed to do 5 so. On the present record, plaintiff may not assert any Title VII claim. 6 B. 7 “California has adopted the three-stage burden-shifting test established by the United State Law Basis for Claim. 8 States Supreme Court for trying claims of discrimination . . . .” Gun v. Bechtel Nat’l, Inc., 9 24 Cal. 4th 317, 354 (2000). First, plaintiff has “the initial burden to establish a prima facie case of discrimination.” Second, if “plaintiff establishes a prima facie case, a presumption of 11 For the Northern District of California United States District Court 10 discrimination arises” and “the burden shifts to the employer to rebut the presumption.” Third, if 12 the employer successfully rebuts the presumption, then “the presumption of discrimination 13 disappears” and “plaintiff must then have the opportunity to attack the employer’s proffered 14 reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” 15 Id. at 354–56. 16 To make a prima facie showing of discrimination based on race or national origin, 17 plaintiff must prove (1) that he was a member of a protected class, (2) that he was performing 18 competently as a probation officer, (3) that he suffered an adverse employment action, and 19 (4) that some other circumstance suggests discriminatory motive for the adverse action. 20 Id. at 355. As to the first element, plaintiff argues that he was a member of two different 21 protected classes — Hispanics and males. His compliant, however, alleged employment 22 discrimination only on the basis of race or national origin, not on the basis of gender. Plaintiff 23 may not now inject a new discrimination theory into the action at the summary judgment stage. 24 See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). His arguments regarding 25 supposed gender discrimination — for example, attacking the policy that men but not women 26 were required to wear collared shirts — need not be addressed with respect to this claim. 27 28 As to plaintiff’s claim for discrimination based on his Hispanic ethnicity, he cannot carry his burden of establishing a prima facie case of discrimination, because no evidence suggests a 6 1 discriminatory motive for his suspension or termination. The County cites evidence that plaintiff 2 was suspended for insubordination and terminated because of the job-performance concerns 3 identified by the Finnegan investigation (Burke Exh. A, B). The County argues that plaintiff’s 4 “claim that there was a discriminatory motive by the County of Marin are [sic] based on 5 unsupported speculation and hearsay” (Br. 18). This is enough to negate the discriminatory 6 motive element of the prima facie case for purposes of the summary judgment analysis and shift 7 the burden of production to plaintiff. 8 In response, plaintiff does not cite any evidence that would support an inference of 9 discriminatory motive. First, plaintiff states that Bryan Lambert, “a white Caucasian” who “was investigated at the same time as the Plaintiff by the same investigator,” was not terminated but 11 For the Northern District of California United States District Court 10 rather “was allowed to resign with a settlement agreement” (Opp. 18, 21). Plaintiff, however, 12 provides no evidence regarding the findings of the Lambert investigation or any other evidence 13 that would show plaintiff and Mr. Lambert to be similarly situated. The bare fact that a different 14 employee of a different race was not fired does not support a reasonable inference of 15 discriminatory motive for plaintiff’s termination. 16 Second, plaintiff states that “Caucasian males were not required to change into collared 17 shirts, and were not the subject of any adverse action as a result of wearing non-collared shirts” 18 (id. at 21). This statement is unsupported by any citation to the evidentiary record. Accordingly, 19 it does not support an inference of discriminatory intent. See Carmen v. San Francisco Unified 20 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district court need not examine the entire 21 file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the 22 opposing papers with adequate references so that it could conveniently be found.”). 23 Third, at the hearing on the instant motions, plaintiff’s counsel emphasized that plaintiff 24 disagrees with the findings of the Finnegan investigation and insists that he always has been 25 truthful. The fact that plaintiff disputes the findings of the investigation, however, does not 26 indicate that any supposed inaccuracies resulted from discrimination. 27 28 Plaintiff is unable to prove a prima facie case of race or national origin discrimination because he cites no evidence showing discriminatory motive for his suspension or termination. 7 1 This order need not consider the parties’ arguments concerning the competent performance 2 element of the prima facie case. This order also need not consider the parties’ arguments 3 concerning the second and third steps of the discrimination analysis regarding pretext and 4 legitimate non-discriminatory reasons. The County’s motion for summary judgment on the claim 5 for employment discrimination is GRANTED. 6 2. CLAIM FOR RETALIATION FOR LODGING A DISCRIMINATION COMPLAINT (CLAIM TWO). 7 Plaintiff alleges that the County of Marin “violated Government Code § 12940 and 8 Title VII of the Civil Rights Act of 1964 . . . when it retaliated against plaintiff in the terms and 9 conditions of employment, took adverse employment actions against plaintiff for reporting and 10 proceedings involving claims of discrimination, and requesting that defendants take immediate For the Northern District of California United States District Court lodging complaints of discriminatory treatment in the workplace, participating in investigations or 11 12 remedial measures and conduct fair and impartial investigations into discriminatory conduct on 13 the part of supervisors and managers” (Compl. ¶¶ 54–59). The Title VII basis for the claim is 14 time-barred for the reasons addressed above. The state-law basis fails as well, but for a 15 different reason. 16 The three-stage burden-shifting test used for claims of discrimination, which was 17 described above with reference to the claim for employment discrimination, is also used for 18 claims of retaliation under California law. To establish a prima facie case of retaliation, plaintiff 19 must show “that he engaged in a protected activity, his employer subjected him to adverse 20 employment action, and there is a causal link between the protected activity and the employer’s 21 action.” Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 476 (1992). The County argues that 22 plaintiff cannot show a causal link between his discrimination complaints and his suspension or 23 termination. As stated, the County has cited evidence non-retaliatory reasons for those adverse 24 actions. The County also cites evidence that some decision-makers did not even know of 25 plaintiff’s complaints or their subject matter until after their recommendations or decisions were 26 made (Br. 21–22). This showing is sufficient to negate the causal link element of the prima facie 27 case for purposes of the summary judgment analysis and shift the burden of production 28 to plaintiff. 8 1 In response, plaintiff does not identify any admissible evidence that would support a 2 reasonable inference of causality. First, plaintiff argues that “the practice at the County of Marin 3 was to notify the subjects of the investigations immediately upon filing” of a complaint (Opp. 21). 4 Plaintiff cites anecdotal evidence that in three other internal EEO investigations, “the subject was 5 notified almost immediately after the EEO complaint was filed” (Opp. 11; Morris Decl. ¶ 5). 6 This evidence does not show that the supposed practice was followed in this particular 7 instance — much less that the pendency of plaintiff’s complaint caused the decisions to suspend 8 and terminate his employment. Second, plaintiff states that defendants Burke and Daly “were 9 aware of the EEO complaint” at least as of the beginning of the January 2009 pre-termination hearing (Opp. 21–22). Again, the fact that these individuals knew of plaintiff’s complaint by that 11 For the Northern District of California United States District Court 10 time does not support a reasonable inference that defendant Daly ultimately decided to terminate 12 plaintiff’s employment because he had lodged the complaint. Even if we assume defendants 13 Burke and Daly learned of plaintiff’s complaint on the time frame most favorable to plaintiff, that 14 still would not satisfy plaintiff’s burden of producing evidence of causation. Temporal proximity, 15 standing alone, is insufficient to establish causation for a prima facie case of retaliation. Chen v. 16 County of Orange, 96 Cal. App. 4th 926, 931 (2002). 17 Plaintiff is unable to establish a prima facie case of retaliation for lodging his 18 discrimination complaint, because he is unable to show that his employment was suspended or 19 terminated because of the complaint. The County’s motion for summary judgment on plaintiff’s 20 claim for retaliation for lodging a discrimination complaint is GRANTED. 21 3. CLAIM FOR RETALIATION FOR LODGING A COMPENSATION COMPLAINT (CLAIM FIVE). 22 Plaintiff alleges that the County of Marin “violated the anti-retaliation provisions of the 23 Fair Labor Standards Act, 29 U.S.C. § 215 when it terminated plaintiff’s employment, placed him 24 under investigation for participating in court proceedings, discriminated, retaliated, and took 25 adverse employment actions . . . against plaintiff for filing and/or lodging complaints regarding 26 defendant’s failure to properly pay overtime compensation and interference with plaintiff’s 27 attempts to seek overtime compensation in the workplace, and participating in court proceedings 28 9 1 pertaining to the County of Marin’s improper failure to pay overtime compensation to plaintiff 2 and other Deputy Probation Officers” (Compl. ¶¶ 70–74). 3 Again, the three-stage burden-shifting test applies, and in order to establish a prima facie 4 case of retaliation, plaintiff must show “that he engaged in a protected activity, his employer 5 subjected him to adverse employment action, and there is a causal link between the protected 6 activity and the employer’s action.” Flait, 3 Cal. App. 4th at 476. The County argues that 7 plaintiff cannot establish a causal link between his compensation complaints and the suspension 8 and termination of his employment. The County has cited evidence that plaintiff “was suspended 9 and disciplined based upon his misconduct,” and the County argues that plaintiff “has no evidence to support a claim that he was treated any differently than similarly situated employees” 11 For the Northern District of California United States District Court 10 (Br. 23). This showing is sufficient to negate the causal link element of the prima facie case for 12 purposes of the summary judgment analysis and shift the burden of production to plaintiff. 13 In response, plaintiff does not identify any admissible evidence that would support an 14 inference of causality. Plaintiff claims that he was “placed under investigation for his 15 participation in the overtime hearing” and that he “was targeted because he attended the hearing” 16 (Opp. 22–23). These statements are mere lawyer argument; they are not supported by any 17 citation to the evidentiary record. Plaintiff’s statement of facts does cite relevant evidence, but 18 that testimony does not support these statements either. On the contrary, it either does not 19 address the reason why the investigation was started, or it describes the reason as suspicion that 20 plaintiff was misusing a County vehicle. The fact that plaintiff attended the hearing is not cited as 21 a reason why the investigation was initiated (Opp. 12; Poore Exh. C at 49; Poore Exh. B at 163). 22 Plaintiff is unable to establish a prima facie case of retaliation for lodging compensation 23 complaints, because he is unable to show that his employment was suspended or terminated 24 because of his complaints. The County’s motion for summary judgment on plaintiff’s claim for 25 retaliation for lodging a compensation complaint is GRANTED. 26 4. CLAIM FOR RETALIATION FOR LODGING A WORKING-CONDITIONS COMPLAINT (CLAIM FOUR). 27 Plaintiff alleges that the County “violated California Labor Code § 6310 . . . when it 28 retaliated against plaintiff, terminated his employment and took adverse employment actions . . . 10 1 as a direct result of plaintiff’s complaints of unsafe or hazardous working conditions” 2 (Compl. ¶¶ 66–69). Defendant argues that this claim is barred by plaintiff’s failure to exhaust 3 administrative remedies (Br. 22–23). Defendant is correct. 4 “That failure to exhaust administrative remedies is a bar to relief in California court has 21 Cal. 4th 489, 495 (1999). “Any employee who believes that he or she has been discharged or 7 otherwise discriminated against by any person in violation of Section 6310 or 6311 may file a 8 complaint with the Labor Commissioner pursuant to Section 98.7.” CAL. LAB. CODE § 6312. 9 Defendant states that “[t]here is no evidence to suggest that Plaintiff filed a complaint with the 10 California Labor Commissioner prior to filing this lawsuit” and that without such evidence the 11 For the Northern District of California long been the general rule.” Sierra Club v. San Joaquin Local Agency Formation Comm’n, 6 United States District Court 5 fourth claim is barred (Br. 23). 12 In response, plaintiff does not claim to have filed any such complaint. Instead, plaintiff 13 argues that no exhaustion requirement applied to his Section 6310 claim (Opp. 22). The line of 14 decisions plaintiff cites, however, does not support this proposition. Those decisions addressed 15 “the impact of these [Labor Code] sections upon an employee’s common law cause of action for 16 retaliatory dismissal.” Hentzel v. Singer Co., 138 Cal. App. 3d 290, 300 (1982). They held that 17 the state common-law cause of action for retaliatory dismissal, which predated Section 6310, 18 continued to exist after the enactment of Section 6310 and related sections of the California Labor 19 Code, and that the common-law cause of action was not subject to the statutory exhaustion 20 requirement. Id. at 304. Here, plaintiff brought a statutory claim under Section 6310, not a 21 common-law claim. The case law addressing common-law retaliatory dismissal is inapposite. 22 Plaintiff’s Section 6310 claim is barred by his failure to exhaust the administrative remedy 23 afforded by Section 6312. The County’s motion for summary judgment on plaintiff’s claim for 24 retaliation for lodging a working-conditions complaint is GRANTED. 25 5. CLAIM FOR FAILURE TO PREVENT AND INVESTIGATE DISCRIMINATION (CLAIM THREE). 26 Plaintiff Ramirez alleges that the County “violated Government Code § 12940(k) and 27 Title VII of the Civil Rights Act of 1964 . . . when defendants knowingly and recklessly 28 discriminated and retaliated against plaintiff, failed to conduct reasonable and impartial 11 1 investigation when plaintiff complained about discriminatory conduct on the part of supervisors 2 and management, and failed to take reasonable steps necessary to investigate the misconduct and 3 prevent it from occurring and continuing” (Compl. ¶¶ 60–65). The Title VII basis for the claim is 4 time-barred for the reasons addressed above. The state-law basis for the claim fails because 5 plaintiff is unable to prove that he actually suffered any underlying discrimination or retaliation. 6 See Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 280, 288–89 (1998). Plaintiff’s opposition 7 brief does not address this claim. The County’s motion for summary judgment on the claim for 8 failure to prevent and investigate discrimination is GRANTED. 9 CLAIM FOR CIVIL RIGHTS VIOLATIONS (CLAIM SIX). Plaintiff alleges that defendants Burke and Daly violated “the Civil Rights Laws of the 11 For the Northern District of California United States District Court 10 6. United States, 42 U.S.C. §§ 1983, 1985.” Specifically, plaintiff alleges that defendants Burke and 12 Daly violated his rights under the First Amendment, the equal protection clause, and the due 13 process clause (Compl. ¶¶ 75–81). Defendants Burke and Daly move for summary judgment on 14 the entire claim, and plaintiff moves for summary judgment on the due process theory. Each 15 theory is addressed in turn below. 16 A. First Amendment. 17 Plaintiff alleges that his First Amendment rights were violated “when defendants 18 retaliated against plaintiff for testifying before the Grand Jury pertaining to matters which are of 19 public concern.” He also alleges more generally that he was retaliated against “because he 20 opposed practices forbidden under the anti-discrimination laws and equal protection laws of the 21 United States” (Compl. ¶¶ 76, 78). 22 “To make a successful claim for wrongful retaliation under the first amendment and 23 section 1983, the plaintiff must prove that: (1) the statement that brought on the retaliation is one 24 of ‘public concern;’ (2) the constitutionally protected expression is a ‘substantial’ or 25 ‘motivational’ factor in the employer’s adverse decision or conduct; and (3) the interests of the 26 plaintiff/employee in commenting on the matter of public concern outweigh the state’s interest in 27 maintaining efficient public services.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1038 28 (9th Cir. 1990). Additionally, “[w]hen a public employee sues a government employer under the 12 1 First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a 2 matter of public concern. If an employee does not speak as a citizen, or does not address a matter 3 of public concern, a federal court is not the appropriate forum in which to review the wisdom of a 4 personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” 5 Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2493 (2011) (internal quotations and 6 citation omitted). 7 Defendants Burke and Daly address several statements by plaintiff and argue that none of 8 them is a proper basis for a First Amendment claim (Br. 24–26). In response, plaintiff is unable 9 to identify any statement that could support a viable First Amendment claim. First, the parties address the internal complaints that plaintiff made concerning his 11 For the Northern District of California United States District Court 10 supervisors, his compensation, and his safety. These complaints were made within the 12 workplace, in plaintiff’s capacity as an employee. They were not made in any public forum or in 13 plaintiff’s capacity as a citizen. Accordingly, they cannot form the basis for plaintiff’s First 14 Amendment claim. Plaintiff argues that officer safety and gender discrimination in the 15 workplace — the subjects of some of his internal complaints — are matters of public concern 16 (Opp. 23–24). This may be true. Plaintiff, however, does not cite any evidence or authority 17 showing that he was acting in his capacity as a citizen rather than in his capacity as an employee 18 when he made those internal complaints. 19 Second, the parties address plaintiff’s grand jury testimony. Defendants Burke and Daly 20 again argue that “those discussions could not form the basis of a First Amendment violation 21 against Defendants Burke and Daly” because speech by public employees pursuant to their 22 official duties is not protected (Br. 25). See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (“We 23 hold that when public employees make statements pursuant to their official duties, the employees 24 are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate 25 their communications from employer discipline.”). Defendants present evidence that defendant 26 Burke selected plaintiff to talk to the grand jury “to represent the Probation Department” 27 (Burke Decl. ¶ 9). In response, plaintiff does not present any evidence from which a reasonable 28 jury could infer that his grand jury testimony was given in his capacity as a citizen rather than as a 13 1 representative of his employer. The opposition brief does not even address this 2 argument (Opp. 23–24). 3 This order notes that plaintiff’s complaint identified only his grand jury testimony as a 4 basis for his First Amendment theory, and that his opposition brief identifies only his internal 5 complaints and grand jury testimony as bases for that theory (Compl. ¶ 78; Opp. 23–24). Because 6 plaintiff does not argue that his attendance at the class certification hearing was protected 7 expression for purposes of his First Amendment theory, this order need not consider it as a 8 possible factual basis for that theory. 9 Plaintiff’s First Amendment theory fails because he is unable to identify any protected speech he made in his capacity as a citizen rather than as a government employee. As to the First 11 For the Northern District of California United States District Court 10 Amendment basis for plaintiff’s claim for civil rights violations, the motion for summary 12 judgment by defendants Burke and Daly is GRANTED. This order need not reach the parties’ 13 arguments concerning when defendants Burke and Daly became aware of the content of 14 Mr. Ramirez’s internal complaints and grand jury testimony. 15 16 B. Equal Protection. Plaintiff alleges that defendants Burke and Daly violated “the equal protection laws of the 17 United States and California” when they “discriminated against plaintiff and other similarly 18 situated male employees on the basis of sex and gender when they mandated a ‘dress code’ which 19 required ‘collared shirts’ for male employees within the Probation Department, but not female 20 employees” (Compl. ¶ 77). 21 To prove a Section 1983 claim for an equal protection violation, plaintiff must show both 22 “that actions of the defendants had a discriminatory impact, and that defendants acted with an 23 intent or purpose to discriminate based upon [plaintiff’s] membership in a protected class.” 24 Darensburg v. Metropolitan Transp. Comm’n, 636 F.3d 511, 522 (9th Cir. 2011) (emphasis 25 added). Defendants Burke and Daly argue that plaintiff cannot prove the intent prong. As stated, 26 defendants have cited evidence that plaintiff was disciplined and discharged for his job 27 performance. They argue that plaintiff is unable to show that the dress code was enacted for a 28 14 1 discriminatory purpose, or that his suspension or termination was motivated by 2 discrimination (Br. 26). 3 Plaintiff’s opposition brief does not address the equal protection theory of his sixth claim. 4 The brief discusses the dress code with reference to his first claim for employment discrimination, 5 but it does not cite any evidence from which a reasonable jury could infer that the dress code was 6 enacted for a discriminatory purpose, or that plaintiff’s suspension or termination was motivated 7 by discrimination. The fact that the dress code required men but not women to wear collared 8 shirts shows a disparate impact, but it does not imply discriminatory intent. Impact and intent are 9 different elements, and both are required for an equal protection claim based on gender discrimination. 11 For the Northern District of California United States District Court 10 Plaintiff’s equal protection theory fails because he is unable to prove discriminatory intent 12 for the enactment of the dress code or for the decisions to suspend and terminate his employment. 13 As to the equal protection basis for plaintiff’s claim for civil rights violations, the motion for 14 summary judgment by defendants Burke and Daly is GRANTED. 15 16 C. Due Process. Plaintiff alleges that defendants Burke and Daly violated his substantive and procedural 17 due process rights “when they (1) refused to provide plaintiff with a fair and impartial due process 18 hearing prior to termination, (2) refused to provide plaintiff with a neutral and unbiased hearing 19 officer to determine if plaintiff should be terminated, (3) refused to comply with the procedural 20 protections afforded to plaintiff as a ‘peace officer’ under the Public Safety Officer’s Procedural 21 Bill of Rights . . . and (4) terminated plaintiff for untrue stigmatizing information that has resulted 22 in plaintiff being blacklisted as a peace officer” (Compl. ¶ 79). Defendants move for summary 23 judgment on all of these theories. Plaintiff moves for summary judgment that his “procedural due 24 process rights were violated when Defendants William Burke and Michael Daly provided 25 Plaintiff with a biased hearing officer that was not neutral, and was involved in the controversy 26 that led to Plaintiff’s suspension and termination” (Br. 1). 27 28 Defendants Burke and Daly argue that plaintiff’s due process claim fails because Mr. Ramirez was provided with adequate process. They note, for example, that he was given notice 15 1 of the proposed suspension and termination, that he was provided copies of the materials on 2 which the recommendations were based, and that he was given a right to respond (Br. 27). 3 Plaintiff’s opposition to the due process part of defendants’ motion is merely a copy of the 4 argument portion of the memorandum supporting plaintiff’s own motion for partial summary 5 judgment (Dkt. No. 52 at 9–13; Dkt. No. 62 at 24–28). Plaintiff makes two main points, neither 6 of which identifies a due process violation. Plaintiff has waived all other due process theories 7 alleged in his complaint. 8 9 First, plaintiff argues that “the hearing process itself [preceding plaintiff’s termination] was unfair when Burke convened the first session of the hearing in private so that he could question Finnegan” (Opp. 27). The meeting between defendant Burke and Investigator Finnegan 11 For the Northern District of California United States District Court 10 was not part of the hearing. As plaintiff himself acknowledges, the meeting took place “before 12 the actual Skelley hearing” (id. at 28). Plaintiff claims that the meeting was improper because it 13 was not disclosed to him, but he cites no authority for this view. The single decision plaintiff 14 cites held that “it would violate due process for an administrative agency to conduct a hearing 15 while failing to disclose evidence to the party before it, and then to make a decision in which it 16 reveals the undisclosed evidence for the first time.” Today’s Fresh Start, Inc. v. Los Angeles 17 Cnty. Office of Educ., 197 Cal. App. 4th 436, 463 (2011). Plaintiff does not assert that the 18 termination decision revealed evidence from the meeting with Investigator Finnegan for the 19 first time. 20 Plaintiff contends that the denial of his request to question Investigator Finnegan at the 21 pre-termination hearing violated his due process rights, but he cites no authority for his supposed 22 right to examine the investigator at the hearing (Opp. 28). Indeed, a “pretermination ‘hearing,’ 23 though necessary, need not be elaborate.” Cleveland Bd. of Educ. v. Loudermill, 24 470 U.S. 532, 545 (1985). At the hearing on the instant motion, plaintiff’s counsel emphasized 25 that defendant Daly and Investigator Finnegan had a pre-existing friendship. Again, however, 26 plaintiff cites no authority suggesting that their friendship constituted a due process violation. 27 28 Second, plaintiff argues that defendant Burke, who conducted the pre-suspension and pre-termination hearings, was a biased and involved hearing officer who was embroiled in the 16 1 underlying controversies (Opp. 24–27). “[T]he failure to provide an impartial decisionmaker at 2 the pretermination stage, of itself, does not create [due process] liability, so long as the 3 decisionmaker at the post-termination hearing is impartial.” Walker v. City of Berkeley, 4 951 F.2d 182, 184 (9th Cir. 1991). Here, plaintiff was entitled to appeal his termination to the 5 Marin County Personnel Commission (Burke Exh. A at 22). For each such appeal, the 6 independently-appointed Personnel Commission holds an evidentiary hearing at which the 7 decision-maker who made the termination decision bears the burden of proving that it was 8 justified. Plaintiff chose not to appeal his termination to the Personnel Commission 9 (Burke Decl. ¶ 6). Because an independent post-termination hearing was available, plaintiff’s 11 For the Northern District of California United States District Court 10 allegations of bias at the pre-termination stage do not state a due process claim. Plaintiff’s many arguments to the contrary are unavailing. Plaintiff argues that “the 12 general rule is that a fair pre-termination hearing is required,” but plaintiff cites no authority 13 requiring a neutral and uninvolved hearing officer at a pre-termination hearing (Reply Br. 7). On 14 the contrary, the decision plaintiff cites on this point characterizes essential fairness as “a flexible 15 notion” requiting at a minimum “notice and an opportunity to be heard.” Vanelli v. Reynolds Sch. 16 Dist. No. 7, 667 F.2d 773, 779 (9th Cir. 1982). Authority plaintiff cites elsewhere states that due 17 process does not disqualify a decision-maker merely because he has “familiarity with the facts of 18 a case” or “simply because he has taken a position, even in public, on a policy issue related to the 19 dispute.” Burrell v. City of Los Angeles, 209 Cal. App. 3d 568, 578 (1989). 20 Plaintiff next argues that his opponents’ “entire argument rests on the two faulty premises 21 that (1) there was no finality to the process until the Personnel Commission acted, and 22 (2) Defendants provided Plaintiff some kind of post-termination hearing before the Personnel 23 Commission prior to the actual . . . termination or suspension” (Reply Br. 7). The significance of 24 the appeal process, however, is not based on either of those assumptions. Rather, the key fact is 25 the availability of an independent post-termination hearing. See Walker, 951 F.2d at 184. 26 Plaintiff’s reference to a post-termination hearing prior to the actual termination is nonsensical 27 and at odds with the law and the facts. 28 17 1 Plaintiff next argues that defendant’s reliance on his right to appeal his termination to the 2 Personnel Commission is unfair because he could “elect his remedies by either filing an action 3 with the Personnel Commission, or filing an action in state for federal court, but not both” 4 (Reply Br. 8). Plaintiff, however, cites no authority for the proposition that appealing his 5 termination to the Personnel Commission and filing a court action were mutually exclusive 6 options. Plaintiff cites only one decision, which addressed exhaustion requirements in the context 7 of the Civil Service Act and the Fair Employment and Housing Act. See Schifando v. City of Los 8 Angeles, 31 Cal. 4th 1074. This decision contained no such holding. Indeed, the simultaneous 9 pursuit of a district court action alongside a termination appeal to a government personnel board 11 For the Northern District of California United States District Court 10 is not unprecedented. See Walker, 951 F.2d at 184. Plaintiff also argues that “California law requires that the pre-termination hearing officer 12 be unbiased, uninvolved, and have no personal animosity towards the employee” (Reply Br. 9). 13 State law cannot save plaintiff’s constitutional claim. In any event, none of the decisions plaintiff 14 cites articulates such a requirement. 15 At the hearing on the instant motions, plaintiff’s counsel emphasized that plaintiff 16 disagrees with the findings of the Finnegan investigation and insists that he always has been 17 truthful. Plaintiff, however, does not explain how any supposed inaccuracies in 18 Investigator Finnegan’s reports might constitute a due process violation in light of the procedures 19 afforded to plaintiff in conjunction with his termination. Plaintiff was given notice of 20 Investigator Finnegan’s findings and at least two opportunities to dispute them. 21 Plaintiff’s due process theory fails because he is unable to identify any aspect of his 22 suspension or termination proceedings that constituted a due process violation. As to the due 23 process basis for plaintiff’s claim for civil rights violations, the motion for summary judgment by 24 defendants Burke and Daly is GRANTED. Plaintiff’s motion for partial summary judgment 25 is DENIED. This order need not reach the parties’ arguments concerning qualified immunity, 26 conspiracy, and whether various circumstances triggered entitlement to any hearing at all. 27 28 18 1 7. DEFENDANTS’ DECLARATIONS. 2 Plaintiff resists summary judgment for the additional reason that defendants’ motion 3 supposedly “is procedurally defective as none of the declarations that they submitted in support of 4 the motion are under ‘penalty of perjury’” (Opp. 18). Defendants acknowledged this “inadvertent 5 omission” and submitted amended declarations which cured this defect but were identical to the 6 original declarations in all other respects (Reply Br. 15). Summary judgment will not be denied 7 on the basis of this formality. 8 9 * * * Defendants’ motion for summary judgment is GRANTED, and plaintiff’s motion for partial summary judgment is DENIED. This order need not reach the parties’ arguments concerning 11 For the Northern District of California United States District Court 10 possible discovery violations by plaintiff and the adequacy of notice to defendant Daly. 12 CONCLUSION 13 For the reasons set forth above, defendants’ motion for summary judgment is GRANTED, 14 and plaintiff’s motion for partial summary judgment is DENIED. Defendants’ request for judicial 15 notice is GRANTED. To the extent not specifically addressed herein, all evidentiary objections 16 are MOOT. Judgment shall be entered accordingly. 17 18 IT IS SO ORDERED. 19 20 Dated: October 25, 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 19
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