David Paul Davenport v. Board of Trustees of the State Center Community College District, No. 1:2007cv00494 - Document 102 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION ON Defendant's 75 Motion for Summary Judgment; Summary Judgment is GRANTED In Favor of Defendant as tp Plaintiff's remaining claim of retaliation;Defendant shall submit a form of final judgment consistentwith this decision and the earlier decision terminating Plaintiffswrongful termination claims, terminating this case in its entirety,within five (5) days of electronic service, signed by Judge Oliver W. Wanger on 08/24/2009. (Martin, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 1:07-cv-00494 OWW SMS DAVID PAUL DAVENPORT, 10 MEMORANDUM DECISION ON DEFENDANT S MOTION FOR SUMMARY JUDGMENT (Doc. 75) Plaintiff, 11 v. 12 BOARD OF TRUSTEES OF THE STATE CENTER COMMUNITY COLLEGE DISTRICT, 13 14 Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION. Plaintiff David Paul Davenport ( Davenport ) brings this pro se action under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e-3(a), based on a claim of unlawful retaliation by Plaintiff s former employer, Defendant State Center Community College District ( District ). Davenport alleges the District suspended him in May 2002 and fired him in January 2003 in retaliation for a sexual harassment and discrimination complaint he submitted to the District against his supervisor, Dr. Margaret E. Mericle. Before the court for decision is Defendant s Motion for Summary Judgment. Defendant moves for summary judgment on the 28 1 1 grounds that Plaintiff s retaliation claim under Title VII is 2 barred by the applicable statutes of limitations. 3 Defendant argues that any claim for retaliation based on alleged 4 acts prior to and including the date of the Board of Trustees 5 decision to terminate Plaintiff, which was January 7, 2003, is 6 barred because Plaintiff did not submit his claim to the Equal 7 Employment Opportunity Commission ( EEOC ) within the Title VII 8 filing limitations period as required by 42 U.S.C. § 2000e-5(e)(1). 9 In the alternative, Defendant seeks summary judgment on the 10 following grounds: 1) Plaintiff cannot prove a prima facie of 11 retaliation 12 protected 13 discriminatory 14 namely that Plaintiff was dishonest, unfit for service, and refused 15 to obey laws and regulations, and Plaintiff has not presented 16 evidence giving rise to a triable issue as to any pretext; and 3) 17 because 18 retaliation 19 unsuccessful state court appeal, Plaintiff s Title VII action is 20 barred by the doctrine of laches. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// because there activity; 2) reason Plaintiff action no evidence Defendant for failed for is had terminating to three 2 a he pursue opting engaged legitimate, Plaintiff s diligently years, that Specifically, to his in non- employment, Title focus on VII his II. FACTUAL BACKGROUND.1 1 2 3 A. Termination and State Court Appeals (2002-2005) In August 1990, the District hired Plaintiff as a history 4 professor on its Fresno City College campus. (DSUF 1.) 5 2002, Mr. Randy Rowe, Associate Vice Chancellor of Human Resources 6 for the District, received a memo from the Interim-President of 7 Fresno City College indicating concerns over Plaintiff s potential 8 sexual harassment of students. 9 the District, via Mr. Rowe, placed Plaintiff on administrative 10 leave with pay, pending an investigation into allegations of 11 misconduct against Plaintiff by Fresno City College students and 12 District staff members. 13 the letter on May 6, 2002, which set forth the reasons for placing 14 Plaintiff on administrative leave. (Rowe Decl. ¶ 5.) (DSUF 2.) On May 1, On May 6, 2002, Mr. Rowe personally delivered 15 On November 8,2002, following the investigation, Mr. Rowe sent 16 Plaintiff a letter notifying him of the District s intent to 17 initiate termination proceedings against him. 18 December 3, 2002, the District provided Plaintiff with a pre- 19 termination 20 representative, Zwi Reznik, had the opportunity to rebut the 21 charges against Plaintiff. Skelly hearing, during (DSUF 4.) which (DSUF 3.) Plaintiff and On his On January 7, 2003, the 22 23 1 24 25 26 27 28 Unless otherwise noted, the facts are undisputed. (See Stmt. of Undisp. Facts in Support of Def. s Mot. for Summ. J. ( DSUF ), filed by Defendant on June 30, 2009). Plaintiff objects to much of the evidence submitted by Defendant on various grounds. Virtually all of Plaintiff s objections are without merit. To the extent that Plaintiff s sole dispute with facts is based upon the inadmissability of Defendant s evidence, and is not disputed by any admissible evidence submitted by Plaintiff, these facts are viewed as undisputed. 3 1 Board of Trustees voted to terminate Plaintiff s employment based 2 on 3 violation of, or refusal to obey, the school laws of the state or 4 District regulations.2 dishonesty, evident unfitness for service, and persistent (DSUF 5-6.) 5 Following the Board s January 7, 2003 decision to terminate 6 his employment, Plaintiff filed an appeal with the Office of 7 Administrative Hearings. 8 Stephen 9 Plaintiff was represented by legal counsel.3 J. 21, Smith 2004, (DSUF 29.) provided ALJ a Smith full Administrative Law Judge evidentiary 10 January issued a 11 hearing, where (DSUF 29, 30.) 43-page written On order upholding the District s decision. (DSUF 31.) 12 Plaintiff appealed ALJ Smith s decision to the Fresno County 13 Superior Court, which denied Plaintiff s request on June 22, 2004. 14 (DSUF 32.) 15 to the Fifth District Court of Appeal. 16 Fifth District Court of Appeal issued a 37-page opinion affirming 17 the judgement in the District s favor. 18 Fifth 19 Supreme Court to review the Fifth District s decision regarding his 20 termination. 21 Plaintiff s petition in December 2005. Plaintiff then appealed the Superior Court s decision District s ruling, (DSUF 36.) Plaintiff On October 21, 2005, the (DSUF 34.) petitioned Following the the California The California Supreme Court denied (DSUF 36.) 22 23 24 25 26 2 The District s stated grounds for dismissal are three of eight enumerated grounds listed in Education Code section 87732 as authority for terminating a tenured faculty member. 27 3 28 Plaintiff s administrative hearing took place on September 15, 16, 17, 18, 22, 23, and 24, 2003. 4 1 B. Plaintiff s Interactions with the DFEH and EEOC (2002-2006) 2 1. Background on Obtaining a Right to Sue letter4 3 Initially, a complainant meets with a DFEH consultant for an 4 intake interview 5 (DSUF 10.) 6 DFEH consultant determines whether the DFEH will accept or reject 7 the charge. 8 complaint is typed, the complainant signs the complaint, and DFEH 9 serves it on the alleged offending entity. completes a pre-complaint questionnaire. Based on the information the individual provides, the (DSUF 11.) charge, it If the DFEH accepts the charge, a sends the (DSUF 11.) complainant rejects 11 notifying the complainant that he or she must complete and return 12 an enclosed verified complaint. 13 the verified complaint as a B Complaint. 14 verified or B Complaint is partially completed by the DFEH before 15 it is mailed to the complainant, but in order to receive a Right to 16 Sue notice, the complainant must sign and date the B Complaint, and 17 submit it to the DFEH. 18 complaint "filed" until it receives a signed and dated B Complaint. 19 (DSUF 15.) (DSUF 12.) a If the DFEH 10 20 the and cover letter The DFEH refers to (DSUF 12.) The (DSUF 13-14.) The DFEH does not consider a When the DFEH receives a signed and dated B Complaint, it 21 stamps the complaint as filed that day. (DSUF 16.) The DFEH then 22 issues a Right to Sue notice to the complainant and a notice to the 23 employer that the complaint has been filed and closed. (UMF 17.) 24 Even if a complainant files an untimely B Complaint beyond the 25 statute of limitations period, the DFEH will stamp it received and 26 27 28 4 Background provided by Ms. Geraldine Reyes, District Administrator of the DFEH (nine counties, including Fresno) since 1996, and Mr. Rafael Gonzalez, DFEH Consultant from 1998 to 2003. 5 1 issue a Right to Sue notice. (DSUF 18.) If a complainant does not 2 immediately return a B Complaint, the DFEH does not actively 3 require the complainant to follow-up.5 (DSUF 19.) 4 5 2. DFEH 6 On November 19, 2002, during his suspension but prior to his 7 dismissal, Plaintiff met with California Department 8 Employment and Housing ( DFEH ) consultant Rafael Gonzalez and 9 completed a pre-complaint questionnaire. (DSUF 7, 21.) of Fair Plaintiff 10 discussed the circumstances of his dismissal with Mr. Gonzalez, who 11 told Plaintiff he would review the material and get back to him. 12 (DSUF 21.) 13 On November 25, 2002, Mr. Gonzalez issued a letter to 14 Plaintiff explaining that the DFEH would not pursue a complaint on 15 his behalf. 16 contained two enclosures, a Notice of Discrimination Complaint 17 Accepted for Filing Purposes and a partially completed Complaint 18 of Discrimination or B Complaint. 19 November 25 DFEH letter explained that Plaintiff needed to submit 20 a completed B Complaint in order to obtain a "Right to Sue" notice 21 and file a lawsuit: (DSUF 22.) The letter was signed by Mr. Gonzalez and (Doc. 79, Exh C.) The I apologize for taking longer than expected in getting back to you regarding your wish to file a complaint with this agency ... Therefore, based on this Consultant s review of your situation and a review of the documentation provided, a complaint for investigation will not be taken on your behalf. As I 22 23 24 25 26 27 28 5 "Once [the DFEH has] sent [the B Complaint] out, [they are] done, and it's the responsibility of the charging party to get it back to [DFEH] in a timely manner so that [the DFEH] can file it." (Reyes Dep. 43:7-43:23.) 6 indicated to you, I will be including in this letter a B Complaint for filing purposes, which will be served on the Respondent once you provide the form back. You will also be issued a Right To Sue shortly thereafter, which will authorize you to file a private law suit on your own behalf if you so desire. 1 2 3 4 5 6 7 (Doc. 79, Exh. C.) The enclosed Notice of Discrimination Complaint Accepted for Filing Purposes reads in part:6 Your allegation of discrimination against Fresno City College has been considered. The Department of Fair Employment and Housing will file your complaint. Analysis of the facts and circumstances which you allege indicates that further investigation is not warranted. As the Department has determined that it will not be issuing an accusation of discrimination, you will be advised by mail of your right to file a private lawsuit. 8 9 10 11 12 13 14 (Doc. 79, Exh. C.) The parties dispute what happened next. According to 15 Defendant, after Mr. Gonzalez sent Plaintiff the November 25, 2002 16 letter 17 communications from Plaintiff until June 2, 2006. 18 Defendant states that had the DFEH received written communication 19 from Plaintiff, it would have been included in the DFEH s file. 20 (DSUF 27.) The DFEH s file concerning Plaintiff s allegations does 21 not contain any communication from Plaintiff, including the signed 22 B Complaint, until June 2, 2006. (DSUF 28.) and B Complaint, the DFEH did not receive any other (DSUF 26.) 23 Plaintiff maintains he completed the B Complaint form included 24 with the letter and notice and returned it by mail on November 30, 25 2002. According to Plaintiff, he corrected, completed, signed, 26 27 28 6 At the top of the page the attachment reads, Discrimination Complaint Accepted for Filing Purposes, and this text is underlined, bolded, and capitalized. 7 1 dated, and mailed it to Mr. Gonzalez on November 30, 2002. 2 (Opp page 6) It is undisputed that the only signed complaint in the DFEH 3 4 file was a file-stamped complaint received on June 2, 2006.7 5 form shows Plaintiff s handwritten signature and a corresponding 6 handwritten date of November 30, 2002. 7 information printed across the top of the document indicating that 8 it was faxed to the DFEH on June 2, 2006 from the fax number 559- 9 227-9355. The The form also contains fax On June 6, 2006, Plaintiff contacted the DFEH regarding his 10 11 complaint. He eventually spoke to Ms. Geraldine Reyes, District 12 Administrator. 13 first time he had spoken with anyone at DFEH since 2002. 14 43.) 15 Right to Sue notice backdated to 2002. 16 Plaintiff that DFEH had no record of him filing his B Complaint in 17 2002 and refused to backdate the notice. (DSUF 45.) (DSUF 43.) It is undisputed that this was the (DSUF According to Defendant, Plaintiff asked Ms. Reyes to issue a (DSUF 44.) Ms. Reyes told 18 On August 17, 2006, the DFEH issued Plaintiff a Right to Sue 19 notice, informing him that he needed to file a complaint with the 20 EEOC in order to obtain a Right to Sue in federal court. 21 46.) Plaintiff filed a complaint with the EEOC on November 27,2006. 22 (DSUF 47.) 23 December 29, 2006. 24 charge was not timely filed with the EEOC, in other words you 25 waited too long after the date(s) of the alleged discrimination to (DSUF The EEOC issued Plaintiff a Right to Sue notice on (DSUF 48.) The EEOC notice stated, "[y]our 26 27 28 7 The complaint shows a DFEH date stamp of June 2, 2006 in a box which reads Received Dept. Of Fair Employment & Housing Fresno District Office in the lower right-hand corner of the page. 8 1 file your charge." 2 In April or May 2008, Plaintiff again contacted Ms. Reyes in 3 an attempt to have his Right to Sue notice backdated to 2002. (DSUF 4 49.) Ms. Reyes denied Plaintiffs request because the DFEH had no 5 record of him filing a complaint until June 2,2006. 6 Ms. Reyes then sent Plaintiff a confirming letter, repeating her 7 denial: This letter is to memorialize our conversation regarding your request to receive a right to sue letter back-dated sometime in or about November 22, 2002. As I have informed you, we have no record of receiving a signed Complaint for the Purpose of Filing Only ( B Complaint) in or about November 22, 2002. We do have a record of you contacting the Department in June of 2006. The documentation included a B Complaint dated November 30, 2002. Unfortunately, we were unable to backdate the complaint and therefore the Department filed it effective June 2, 2006. 8 9 10 11 12 13 14 (DSUF 50.) (Doc. 79, Exh. E.) 15 16 3. 17 According to Plaintiff, the District retaliated against him 18 for filing an internal sexual harassment complaint against his 19 supervisor, Dean of Instruction Peg Mericle, on March 19, 2002. In 20 his EEOC pre-complaint questionnaire he claimed that he submitted 21 the harassment complaint to the District's Vice President of 22 Instruction, 23 Plaintiff claimed he delivered the harassment complaint only to Mr. 24 Cantu. 25 Cantu's secretary and Robert Fox, Dean of Students , secretary. In 26 his April 2 7,2009 deposition, Plaintiff claimed he provided the 27 complaint to Dean Mericle, Mr. Cantu's secretary, and Dean Fox's Plaintiff s Alleged Sexual Harassment Complaint Tony Cantu, and Ms. Mericle. In his Complaint, In his FAC, Plaintiff claims he submitted copies to Mr. 28 9 1 secretary. 2 The District has no record of the harassment complaint being 3 filed nor has Mr. Cantu or Dean Mericle ever received a harassment 4 complaint from Plaintiff. (DSUF 53.) In his declaration, Mr. Rowe 5 states that he did not learn of Plaintiff s allegations against 6 Dean Mericle until April 27, 2009, during Plaintiff s deposition. 7 (Rowe Decl. ¶ 11.) 8 alleges he submitted is typed on a complaint form that the District 9 did not use in 2002. (DSUF 54.) According to Mr. Rowe, the complaint Plaintiff Mr. Rowe stated that Plaintiff s 10 form contains the names of two district campuses that were renamed 11 prior to 2002 and does not contain the names of several District 12 campuses that were added in the 1990's. (DSUF 54.) 13 III. PROCEDURAL BACKGROUND. 14 15 On March 29, 2007, Plaintiff filed a complaint for retaliation 16 against Defendant, alleging that the District violated Title VII of 17 the Civil Rights Act of 1964 when it terminated his employment on 18 January 7, 2003. 19 claim for wrongful termination. (Doc. 1.) Plaintiff also asserted a state law 20 Defendant filed a Motion to Dismiss Plaintiff s Complaint 21 Pursuant to Fed. R. Civ. P. 12(b)(6), or in the Alternative, Motion 22 for a More Definite Statement Pursuant to Fed. R. Civ. P. 12(e) on 23 June 24 Plaintiff s Response to Defendant s Motion to Dismiss and to 25 Defendant s Memo. of P & A on July 25, 2007, opposing Defendant s 26 motion. 27 response, including correspondence between him and Mr. Rowe, a page 28 of the administrative hearing transcript, and a page of the Fifth 22, 2007. (Doc. (Doc. 17.) 14.) Plaintiff responded by filing Plaintiff attached various letters to his 10 1 District Court of Appeal s opinion.8 (Id.) 2 Defendant s motion was granted on January 17, 2008, although 3 Plaintiff was permitted leave to amend his cause of action under 4 Title VII. 5 law wrongful termination claim was granted without leave to amend. On 6 (Doc. 36.) March 12, Defendant s challenge to Plaintiff s state 2008, Plaintiff filed his First Amended 7 Complaint, attaching letters and other documents from and to the 8 DFEH, 9 bargaining agreement between the District and the teachers union, 10 pre-complaint questionnaires from DFEH and and correspondence from Mr. Rowe, among other items. Defendant 11 filed its Motion to Dismiss EEOC, the (Doc. 40.) Plaintiff s First 12 Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), or in the 13 Alternative, Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) on 14 April 23, 2008. 15 Sanctions Pursuant to Fed. R. Civ. P. 11 on May 14, 2008. 16 48.) 17 (Doc. 44.) (Doc. Plaintiff filed his opposition to both motions in Plaintiff s 18 Response 19 Complaint 20 Sanctions on May 23, 2008. 21 Defendant filed its Motion for to the and Defendant s Defendant s Response Motions to to Plaintiff s Dismiss and to Amended Impose (Doc. 52.) Defendant s motion to dismiss was granted, in part, on March 22 23 24 8 25 26 27 28 Defendant filed a reply on August 20, 2007, along with a request for judicial notice of four documents: the discrimination complaint Plaintiff filed with DFEH and the corresponding letters from DFEH to Plaintiff and the District closing the case; the administrative law judge s decision; the Fresno County Superior Court s decision; and the California Fifth District Court of Appeal s opinion. (Docs. 19 and 20.) 11 1 31, 2009.9 (Doc. 66.) Defendant s motion to dismiss Plaintiff s 2 Title retaliation 3 retaliatory acts occurring prior to and including the date of 4 termination. 5 employment retaliation claims was granted without leave to amend. 6 Defendant District filed its answer to Plaintiff s First 7 claims was denied as to the alleged Defendant s motion to dismiss Plaintiff s post- Amended Complaint on April 10, 2009. Plaintiff filed a Motion to Sanction Defendant on June 15, 8 9 VII 2009. (Doc. 74.) Defendant moved for summary judgment on June 30, 2009. 10 (Doc. 11 75.) With its motion, Defendant filed a Statement of Undisputed 12 Facts, supported by the deposition testimony of Plaintiff, Rafeal 13 Gonzalez, and Geraldine Reyes, as well as the declarations of 14 Anthony Cantu, Randy Rowe, and Margaret Mericle. 15 Defendant seeks summary judgment on the following grounds: 1) 16 Defendant s claim for retaliation is barred because Plaintiff did 17 not submit his claim to the EEOC within the Title VII filing 18 limitations period as required by 42 U.S.C. § 2000e-5(e)(1); 2) 19 Plaintiff cannot prove a prima facie of retaliation because there 20 is no evidence that he engaged in protected activity; 3) Defendant 21 had 22 Plaintiff s employment, namely that Plaintiff was dishonest, unfit 23 for service, and refused to obey laws and Regulations; and 4) 24 because 25 retaliation 26 unsuccessful state court appeal, Plaintiff s action is barred by a legitimate, Plaintiff action non-discriminatory failed for to three reason diligently years, (Docs. 77-82.) for pursue opting terminating his to Title focus on VII his 27 28 9 Plaintiff s motion for sanctions was denied. 12 (Doc. 66.) 1 the doctrine of laches. Plaintiff filed his opposition to Defendant s summary judgment 2 3 motion on August 3, 2009. 4 opposition, Plaintiff submitted over 500 pages of documentation: 5 (1) a 20-page Memorandum of Points and Authorities opposing the 6 motion 7 Undisputed 8 Judgment Motion, consisting of excerpts from DFEH communications, 9 recommendations from members of Plaintiff s Civil War Re-enactment 10 group, and the District s disciplinary findings; (3) a 45-page 11 Opposition to Defendants Statement of Undisputed Material Facts; 12 (4) the 95-page unsigned declaration of Zwi Resnik, consisting of 13 the 14 excerpts of deposition testimony; (5) Plaintiff s own 151-page 15 affidavit, 16 evaluations 17 entities (primarily the EEOC, DFEH and Defendant); and (6) the 18 affidavit of Donald G. Larson. ( Memorandum ); Material District s to Facts January which and (2) 7, (Doc. 90.) In support a 169-page Separate in Response to 2003 Plaintiff correspondence dismissal attached between Statement Defendant s order a and number Plaintiff of his of Summary assorted of student and various (Docs. 88-93.) 19 Plaintiff opposes summary judgment on grounds that he mailed 20 his B Complaint to the DFEH on November 30, 2002, making it 21 timely under the applicable statutes. 22 genuine dispute of fact exists because he did not fax the B 23 Complaint to the DFEH on June 2, 2006, as alleged by Defendant. 24 Plaintiff also argues that there is a triable issue of material 25 fact as to whether equitable tolling should apply. Plaintiff argues that a 26 As to the merits of his Title VII action, Plaintiff argues he 27 engaged in protected activity when he filed a sexual harassment 28 complaint on March 19, 2002. Plaintiff also contends that there is 13 1 no evidence of a legitimate reason for his termination because he 2 never received a negative performance review. On August 10, 2008, Defendant filed a reply and evidentiary 3 4 objections. (Docs. 94 & 95.) 5 (1) the letters of reference attached to Plaintiff s opposition to 6 Defendant s 7 declarations of Mr. Greg Shaum, Mr. Jagmeet Chann, and Mr. Jerome 8 Torstensen 9 Motion; (3) the declaration of Mr. Stephen Richardson, which was 10 not signed under penalty of perjury; (4)the unsigned declaration of 11 Mr. Zwi Resnik; (5) the unsworn affidavit of Mr. Donald Larson; and 12 (6) portions of the declarations of Plaintiff and Mr. Steve Armes. Statement attached to of Defendant objects to the following: Undisputed Plaintiff s Facts; (2) Opposition the to unsigned Defendants 13 14 15 16 A. Evidentiary Objections 1. Declarations of Greg Shaum, Jagmeet Chann and Jerome Torstensen 17 Defendant objects to the declarations of Greg Shaum, Jagmeet 18 Chann and Jerome Torstensen on grounds that they do not comply with 19 28 U.S.C. § 1746. 20 respective declarant under the statement, Respectfully Submitted. 21 The only foundation for each witnesses declaration is in the first 22 paragraph: I have personal knowledge of the facts set forth below 23 and will testify to these facts at trial. The supporting declarations are signed by the 24 The declarations of Greg Shaum, Jagmeet Chann and Jerome 25 Torstensen, submitted by Respondent on August 3, 2009, do not 26 comply with 28 U.S.C. § 1746, which requires that a declaration be 27 subscribed as true under penalty of perjury, and be executed 28 substantially in the statutory form, which requires a declaration 14 1 to swear under penalty of perjury that the foregoing is true and 2 correct. 3 fatal defect, the declaration must be made under penalty of perjury 4 and must be attested to be true. 5 77, 84 (D.D.C. 2004) (statement of truth based on knowledge, 6 information, and belief insufficient); Kersting v. United States, 7 865 F.Supp. 669, 776-77 (D. Haw. 1994) (necessary elements are that 8 the unsworn declaration contains the phrase under penalty of 9 perjury and states that the document is true). 28 U.S.C. § 1746. Although a lack of swearing is not a Cobell v. Norton, 310 F.Supp.2d 10 Here, the declarations state only that the declarant has 11 personal knowledge of the facts and will testify to these at 12 trial. 13 each declaration lacks any corresponding indicia of truthfulness. 14 The declarations of Greg Shaum, Jagmeet Chann and Jerome Torstensen 15 do not conform with 28 U.S.C. § 1746. The contents are not a sworn 16 affidavit in opposition to summary judgment under Rule 56 of the 17 Fed. R. Civ. Proc. 56. 18 (9th Cir. 1995). The nature and extent of that qualification is uncertain, Schroeder v. McDonald, 55 F.3d 454, 460 19 20 2. Affidavit of Donald G. Larson 21 Defendant objects to the affidavit of Donald G. Larson on 22 grounds that it does not comply with 28 U.S.C. § 1746. 23 declarations of Greg Shaum, Jagmeet Chann and Jerome Torstensen, 24 Mr. Larson signs his affidavit under the statement, Respectfully 25 Submitted there is no attestation to the truth, rather only the 26 conclusion: I have personal knowledge of the facts set forth below 27 and will testify to these facts at trial. Mr. Larson s affidavit 28 is not made under penalty of perjury and he does not otherwise 15 Like the 1 attest that the contents are true. 2 Attached to Mr. Larson s affidavit is a jurat in which a 3 notary acknowledges that Mr. Larson was in fact the person who 4 signed Plaintiff s affidavit. However, the jurat does not indicate 5 that Mr. Larson was sworn nor that he attested to the truth of the 6 affidavit. 7 Government Code § 8202, subsection (b), which provides that the 8 there be a jurat attached to the affidavit stating: Subscribed and 9 sworn to (or affirmed) before me on this [date], and Fed. R. Civ. 10 This lack of sworn attestation violates California Proc. 56 requiring affidavits under oath. Because 11 Mr. Larson s declaration neither satisfies the 12 requirements of 28 U.S.C. § 1746, does not comport with Cal. Gov. 13 Code 14 insufficient to constitute any evidence to support Plaintiff s 15 opposition. § 8202, and violates Rule 56(e), the statements are 16 17 3. Declaration of Zwi Reznik 18 Defendant objects to the unsigned, undated, and unsworn 19 declaration of Zwi Reznik on grounds that it is does not comply 20 with 28 U.S.C. § 1746, Federal Rule of Civil Procedure 56(e), or 21 Eastern District Local Rule 56-260(d). 22 Plaintiff filed, with his opposition, an unsigned document 23 entitled Declaration of Zwi Reznik. The unsigned document states 24 that On the evening of March 18, 2002, while Dr. Davenport and I 25 were waiting for Dr. Mericle in the courtyard of the Social Science 26 Building, Dr. Davenport allowed me to read a memorandum he had 27 written to and about Dr. Mericle in which he described harassment 28 to which he (and others) had been subjected. 16 Reznik s unsigned 1 document also described Plaintiff s actions at his January 7, 2003 2 termination hearing: I was also present on January 7, 2003, when 3 Plaintiff referred to this complaint during his presentation to the 4 Board of Trustees. Federal Rule of Civil Procedure 56(e)(1) provides that a 5 6 supporting or opposing affidavit must be made on personal 7 knowledge, set out facts that would be admissible in evidence, and 8 show that the affiant is competent to testify on the matters 9 stated. Verification requirements for an affidavit are satisfied 10 so long as the unsworn declaration contains the phrase under 11 penalty of perjury and states that the document is true. Kersting 12 v. U.S., 865 F.Supp. 669 (D. Haw. 1994); see also 28 U.S.C. § 1746. 13 Declarations made under penalty of perjury which are submitted in 14 lieu 15 affidavits 16 Capital Cities/ABC, Inc. v. Ratcliff, 953 F.Supp. 1228 (D. Kan. 17 1997), aff d 141 F.3d 1405 (10th Cir. 1998), cert. denied 525 U.S. 18 873 (1998). 19 I have personal knowledge of the facts set forth below and will 20 testify to these facts at trial. 21 Reznik s 22 requirements for a declaration opposing summary judgment, the 23 declaration is not valid evidence for the purposes of deciding the 24 Defendant s motion for summary judgment on the merits.10 of affidavits submitted are subject to to support and the same oppose requirements summary as judgment. Here, Reznik s declaration is unsigned, stating only, declaration and the As there is no signature on declaration does not meet the 25 10 26 27 28 On declaration declaration and he does allegations August 14, 2009, Plaintiff submitted the amended of Zwi Reznik. (Doc. 100.) Mr. Reznik s amended was signed, but was not made under penalty of perjury not otherwise attest that the contents are true. The contained therein cannot be considered as a sworn 17 1 4. Declaration of Stephen R. Richardson 2 Defendant objects to the unsigned, undated, and unsworn 3 declaration of Mr. Richardson on grounds that it is does not comply 4 with 5 Richardson s unsworn declaration is inconsistent with his April 27, 6 2009 deposition testimony. 28 U.S.C. § 1746. Defendant also objects because Mr. 7 In opposition to the Defendant s motion for summary judgment, 8 Plaintiff filed a document entitled Declaration of Stephen R. 9 Richardson. The unsworn document, signed on July 27, 2009, 10 declared that On the evening of March 18, 2002, I read the memo 11 Dr. Davenport wrote regarding harassment by his supervisor, Dr. 12 Mericle, which he planned to submit to her supervisor and to the 13 college 14 Richardson also provides several statements concerning Plaintiff s 15 dealings with the DFEH: Dr. Davenport received a letter dated 16 November 25, 2002, from the case worker, Mr. Rafeal Gonzalez, 17 together 18 partially completed form DFEH-300-04 which I saw Dr. Davenport 19 correct, complete, sign, date, and mail back to Mr. Gonzalez on 20 November 30, 2002. 21 Davenport wrote many letters to Mr. Gonzales at the DFEH from 2002 22 to 2006 because I saw him writing this letter and he usually asked 23 me to proof read them before he mailed them. sexual with harassment two sheets office of on paper... March the 19, second 2002. item Mr. was a Mr. Richardson also declares that I know Dr. 24 As with the declarations of Greg Shaum, Jagmeet Chann and 25 Jerome Torstensen, and the affidavit of Mr. Larson, Mr. Richardson 26 signs his declaration with the statement, Respectfully Submitted 27 28 affidavit in opposition to summary judgment under Rule 56 of the Federal Rules of Civil Procedure. 18 1 and the only 2 paragraph: I have personal knowledge of the facts set forth below 3 and 4 affidavit is not made under penalty of perjury and he does not 5 otherwise attest that the contents are true. will qualification testify to these of truth facts at is found trial. in Mr. the first Richardson s 6 The words that the declarant has personal knowledge of the 7 facts and will testify to these at trial, do not comply with 28 8 U.S.C. § 1746. 9 uncertain and lacks any corresponding indicia of truthfulness. The 10 allegations contained in Mr. Richardson s declaration are not valid 11 evidence and cannot be considered in opposition to Defendant s 12 motion for summary judgment. The nature and extent of that qualification is 13 Mr. Richardson s declaration is flawed for another reason, 14 namely that it expressly contradicts his April 27, 2009 deposition 15 testimony. 16 stated that he did not remember the form number on the documents he 17 allegedly saw, but if the document were in front of him, he could 18 confirm the document. 19 a December 6, 2006 letter from Plaintiff to Mr. Gonzalez and asked 20 him if that was the document he observed Plaintiff mail in November 21 2002. 22 responded, this is the one I remember reading. 23 is the one he mailed, yes. 24 According to Defendant, the December 6, 2006 letter is patently 25 distinguishable from Form DFEH-300-04 (the B Complaint) Plaintiff 26 claims he mailed to DFEH on November 30, 2002. 27 presumption is legally insufficient guessing that lacks the 28 foundation of personal knowledge that Plaintiff mailed a letter in In his sworn deposition testimony, Mr. Richardson (Dep. of S. Defendant s counsel then presented him with Richardson, 32:5-32:9.) Mr. Richardson I m presuming it (Dep. of S. Richardson, 40:12-40:22.) 19 Mr. Richardson s 1 November 2002. 2 3 5. Plaintiff s Affidavit 4 Plaintiff s opposition includes his 151-page affidavit with 46 5 exhibits. Unlike the other declarations and affidavits filed in 6 support of Plaintiff s opposition, Plaintiff s declaration contains 7 a penalty of perjury undertaking, a signature, and a date. 8 Defendant objects to large portions of Plaintiff s declaration 9 on various grounds, including relevance, hearsay, and lack of 10 foundation/personal knowledge. 11 Rule 56(e) of the Federal Rules of Civil Procedure requires 12 that affidavits supporting and opposing a motion for summary 13 judgment shall be made on personal knowledge, shall set forth such 14 facts 15 affirmatively that the affiant is competent to testify to the 16 matters therein. as would be admissible in evidence, and shall show 17 Relevant evidence is defined as "evidence having any tendency 18 to make the existence of any fact that is of consequence to the 19 determination of the action more probable or less probable than it 20 would be without the evidence." 21 provides that "[all] relevant evidence is admissible [...] Evidence 22 which is not relevant is not admissible." 23 "relevant evidence" is broad, it has limits; evidence must be 24 probative of a fact of consequence in the matter and must have 25 tendency to make existence of that fact more or less probable than 26 it would have been without evidence. 27 F.3d 935, 943-44 (9th Cir. 2007). 28 Fed R. Evid. 401. Rule 402 Although definition of United States v. Curlin, 489 Hearsay is a statement, other than one made by the declarant, 20 1 offered in evidence to prove the truth of the matter asserted. 2 R. Evid. 801(c). 3 the Federal Rules of Evidence, or other rules prescribed by the 4 Supreme Court. Hearsay is not admissible except as provided by Fed R. Evid. 802. Defendant s objections are, for the most part, sustained. 5 Fed In 6 order to enforce the standards set forth in Federal Rules of Civil 7 Procedure and the Federal Rules of Evidence, any statements in the 8 declaration containing inadmissible hearsay, speculation, or not 9 made on the basis of his personal knowledge are disregarded. Any 10 assertions made by Plaintiff that are contrary to the judicially 11 noticed record are insufficient to establish a genuine issue of 12 material fact. 13 IV. LEGAL STANDARD 14 15 A. Summary Judgment 16 Summary judgment is appropriate when "the pleadings, the 17 discovery and disclosure materials on file, and any affidavits show 18 that there is no genuine issue as to any material fact and that the 19 movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 20 56(c). 21 informing the district court of the basis for its motion, and 22 identifying those portions of the pleadings, depositions, answers 23 to interrogatories, and admissions on file, together with the 24 affidavits, if any, which it believes demonstrate the absence of a 25 genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 26 317, 323 (1986) (internal quotation marks omitted). The movant "always bears the initial responsibility of 27 Where the movant will have the burden of proof on an issue at 28 trial, it must "affirmatively demonstrate that no reasonable trier 21 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." With Soremekun, 509 F.3d at 984. 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. 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). A 14 non-movant's bald assertions or a mere scintilla of evidence in his 15 favor are both insufficient to withstand summary judgment. FTC v. 16 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). 17 must 18 affirmative evidence from which a jury could find in his favor. 19 Id. (emphasis in original). "[S]ummary judgment will not lie if [a] 20 dispute about a material fact is genuine, that is, if the 21 evidence is such that a reasonable jury could return a verdict for 22 the nonmoving party." 23 whether a genuine dispute exists, a district court does not make 24 credibility determinations; rather, the "evidence of the non-movant 25 is to be believed, and all justifiable inferences are to be drawn 26 in his favor." show a genuine Soremekun, 509 F.3d at 984. (quoting issue of material fact Anderson, 477 U.S. at 248. Id. at 255. 27 28 22 [A] non-movant by presenting In determining V. DISCUSSION 1 2 A. Timeliness - Compliance with 42 U.S.C. § 2000e 3 Title VII provides that it shall be an unlawful employment 4 practice for an employer to fail or refuse to hire or to discharge 5 any individual with respect to his compensation, terms, conditions, 6 or privileges of employment, because of such individual s race, 7 color, religion, sex, or national origin. 42 U.S.C. § 2000e- 8 2(a)(1). 9 an employee for opposing an unlawful employment practice or making The employer is also prohibited from retaliating against 10 a 11 proceeding. Lam v. Univ. of Hawaii, 40 F.3d 1551, 1558-59 (9th Cir. 12 1994). 13 14 15 16 17 18 19 charge in an employment discrimination investigation or The antiretaliation provision of Title VII states: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 20 21 22 42 U.S.C. § 2000e-3(a). Sexual harassment is a type of sex discrimination prohibited 23 by Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 24 63-67 (1986). Accordingly, an employer s retaliatory conduct in 25 response 26 protected activity, is actionable under Title VII s antiretaliation 27 provision. 28 965 (9th Cir. 2004); to an employee s complaint of sexual harassment, a See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, Garcia v. Los Banos Unified Sch. Dist., 418 23 1 F.Supp.2d 1194, 1224 (E.D. Cal. 2006). 2 under exhaust the 3 administrative remedies available under 42 U.S.C. § 2000e-5. See 4 Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 626 (9th Cir. 5 1988). Title VII is that a plaintiff A precondition to suit must first 6 Under the statute, a plaintiff must initially file a timely 7 charge with the EEOC and, if dismissed, receive a right-to-sue 8 letter from the agency and then file any related court action 9 within 90 days of receipt of the letter. Id.; 42 U.S.C. § 2000e- 10 5(f)(1). 11 within 300 days of the alleged discriminatory act(s) if the state 12 in which the discriminatory act occurred has a state agency that 13 deals 14 proceedings with that agency, or within 30 days of receiving notice 15 that the state agency has terminated its proceedings, whichever is 16 earlier. 17 the time limit is 180 days. 18 has explained: 19 20 21 22 23 Title VII mandates that claims be filed with the EEOC with such matters and the 42 U.S.C. § 2000e-5(e)(1). Id. complainant has instituted If no state agency exists, The United States Supreme Court An individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made. In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days. 24 Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). 25 not filed within these time limits, a claim is time barred. If Id. 26 In California, a plaintiff who first files charges with the 27 California Department of Fair Employment and Housing ( DFEH ) must 28 24 1 file the charge with the EEOC within 300 days of the alleged 2 unlawful practice. 3 (9th Cir. 2000). However, filing a timely charge of discrimination 4 with the EEOC is not a jurisdictional prerequisite to suit in 5 federal 6 limitations, is subject to waiver, estoppel, and equitable tolling. 7 Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). 8 Such doctrines are to be applied sparingly. 9 at 113-14. court, Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 but a requirement that, like a statute of Nat l R.R., 536 U.S. 10 Title VII authorizes the EEOC to enter into worksharing 11 agreements with state and local fair employment practice ( FEP ) 12 agencies 13 procedures. 14 DFEH is a designated FEP agency under Title VII and has entered 15 into a worksharing agreement with the EEOC. 16 Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 17 1476 (9th Cir. 1989). 18 worksharing agreement, a charge filed with the DFEH is deemed 19 constructively filed with the EEOC because the EEOC and DFEH 20 cross-designate the other as its agent for the purpose of receiving 21 charges. EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 22 2000) 23 agreements, which designate the EEOC and the state agency each 24 other's agents for the purpose of receiving charges. ); 25 v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1175 (9th Cir. 1999) 26 ( [A] charge filed with the state agency before the 300-day filing 27 deadline expires is deemed automatically filed with the EEOC on 28 that same day. ); Green, 883 F.2d at 1475-76 (holding that, under to establish effective and integrated resolution 42 U.S.C. § 2000e-8(b); 29 C.F.R. § 1601.13(c). The ( Constructive 29 C.F.R. § 1601.74; The Ninth Circuit has held that, under this filing is 25 made possible by worksharing Laquaglia 1 EEOC-DFEH worksharing agreement, charge filed with DFEH is deemed 2 to have been filed with the EEOC on the same day); 3 of Cal., 102 F.3d 1035, 1041 (9th Cir. 1996) ( [T]he filing of a 4 charge with one agency is deemed to be a filing with both. ) In 5 addition, for purposes of determining whether a charge filed with 6 an FEP agency has been constructively filed with the EEOC, the 7 Ninth Circuit has determined that whether the state agency actually 8 forwarded the charge to the EEOC or whether the EEOC actually 9 received it is irrelevant. 10 Paige v. State Laquaglia, 186 F.3d at 1175; Dinuba Med. Clinic, 222 F.3d at 585. 11 Whether the dual filing doctrine applies to save Plaintiff's 12 claim depends on when Plaintiff filed his DFEH verified complaint 13 or B Complaint. 14 Complaint form to DFEH on November 30, 2002, which is approximately 15 208 days after he was suspended from duty by Defendant.11 If this 16 allegation is true, Plaintiff's complaint would have been filed 17 with DFEH within the 300-day timely filing period prescribed by 18 Title VII. Under the constructive filing doctrine, the DFEH charge 19 is deemed filed with the EEOC on the 20 approximately 208 days of the alleged retaliatory act, which would 21 make 22 administrative exhaustion requirements. the charge Plaintiff contends he mailed a completed B timely filed for same day, e.g. within purposes of Title VII's 23 Defendant disputes Plaintiff s assertion that he filed his 24 complaint with DFEH in November 2002, arguing that the agency s 25 records show Plaintiff filed his complaint with DFEH on June 2, 26 27 28 11 Plaintiff also argues that he made an in-person complaint to Mr. Gonzalez at the DFEH s Fresno office on November 19, 2002. This argument is addressed in Part V(A)(d), infra. 26 1 200612 and requests judicial notice of a copy of Plaintiff's DFEH 2 complaint that shows Plaintiff's signature dated November 30, 2002 3 but also reveals a date-stamp of June 2, 2006 in a box marked 4 Received Dept. of Fair Employment & Housing Fresno District 5 Office. (Doc. 79, Exh. F.) Judicial notice was previously taken of 6 this document in the January 17, 2008 and March 31, 2009 orders 7 pursuant to Fed.R.Evid. 201(b) on the ground that it is an official 8 record of a state administrative agency. 9 Gas Co. v. Southern Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 10 1953). On the same ground, Defendant's request for judicial notice 11 of this document is granted.13 See Interstate Natural Fed. R. Evid. 201. 12 To bring a civil action under FEHA, the aggrieved person must 13 exhaust the administrative remedies provided by California law. 14 Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121 (1989); accord 15 Romano 16 Exhaustion in this context requires filing a verified complaint v. Rockwell Int'l, Inc., 14 Cal.4th 479, 492 (1996). 17 18 19 20 21 22 23 24 25 26 27 28 12 Defendant s version of events is straightforward and, for the most part, undisputed: Plaintiff met with DFEH consultant Gonzalez on May 19, 2002 to discuss possible claims against the District. On May 25, 2002, Mr. Gonzalez sent Plaintiff a letter, explaining that the DFEH would not take a complaint for investigation on Plaintiff s behalf. Mr. Gonzalez enclosed a B Complaint and explained in the letter that Plaintiff needed to complete the B Complaint in order to obtain a right to sue notice and file a lawsuit. According to Defendant, Plaintiff did not return the B Complaint until June 2, 2006, instead opting to focus on his state law appeals. 13 Defendant also requests judicial notice of the January 17, 2008 and March 31, 2009 orders and the docket in this case. Because these are matters of public record, the request for judicial notice is granted. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) ( We may take judicial notice of court filings and other matters of public record. ) 27 1 with DFEH within one year of the alleged unlawful employment 2 discrimination, and obtaining notice from DFEH of the right to sue. 3 Cal. Gov't Code § 12960(d). Neither unverified written information 4 nor oral information relayed to DFEH may substitute for a formal 5 administrative charge: The statute does not authorize any alternative to the requirement of the filing of a verified complaint in writing. Moreover, it would not be practical to allow an employee to substitute unverified information relayed to the DFEH in correspondence, or orally, for a formal administrative charge. The requirement of a verified complaint in writing ensures that all interested parties are on notice as to the substance of the allegations. 6 7 8 9 10 11 Cole v. Antelope Valley Union High Sch. Dist., 47 Cal.App.4th 1505, 12 1515 (1996). 13 FEHA s verified complaint requirement is well-established in 14 the Ninth Circuit. 15 890, 897 (9th Cir. 2001) (recognizing the holding in Cole v. 16 Antelope Valley 17 (1996)); Watson v. Chubb & Sons, Inc., 32 F. App x 827 (9th Cir. 18 2002) (stating that [f]illing out a pre-complaint questionnaire, 19 alone, was insufficient to exhaust her administrative remedies 20 [under FEHA]. ); Peoples v. County of Contra Costa, No. C 07-00051 21 MHP, 2008 WL 2225671 (N.D. Cal. May 28, 2008). 22 See Rodriguez v. Airborne Express, 265 F.3d Union High Sch. Dist., 47 Cal.App.4th 1505, This summary judgment motion is Defendant s third challenge to 23 the timeliness of Plaintiff s verified or B Complaint. 24 22, 25 Plaintiff s retaliation claim is barred because the DFEH s date 26 stamp established that Plaintiff filed his complaint with DFEH on 27 June 2, 2006. 2007, Defendant filed a motion to dismiss, On June arguing that In the January 18, 2007 order, granting Defendant s 28 28 1 motion to dismiss, it was determined that because Plaintiff s 2 allegation as to the date he filed his DFEH complaint contradicted 3 the DFEH public record, it was disregarded. However, Plaintiff was 4 granted leave to amend. On March 12, 2008, Plaintiff filed a First Amended Complaint, 5 6 which included new documents and expanded upon his original 7 allegations concerning the timing of his B Complaint. 8 moved to dismiss Plaintiff s Title VII claim on April 23, 2008. 9 The motion was granted in part and denied in part on March 31, Defendant 10 2009. 11 description of his attempts to contact DFEH many additional times 12 raised 13 Plaintiff s complaint: 15 16 17 18 19 20 21 22 23 24 possibility of agency neglect or mishandling of (Doc. 66, pg. 29:23-30:8.) 26 27 the One explanation for the contradiction between the allegations and evidence Plaintiff presents and the DFEH complaint form date-stamped June 2, 2006 which has been judicially noticed is that Plaintiff returned the form as he alleges in November 2002 and DFEH failed to process it until June 2006, perhaps misfiling or misplacing the form. It is also possible that, as Defendant maintains, Plaintiff signed and dated the form on November 30, 2002 but failed to actually submit it to DFEH until June 2006. Defendant himself acknowledges the contradiction, arguing the November 25 notice is inconsistent with the June 2, 2006 complaint form marked filed and received. A question of fact exists as to when Plaintiff filed his complaint with DFEH, an issue central to resolving the question of whether Plaintiff s DFEH complaint is properly considered a constructive filing with the EEOC. It is well-established that questions of fact cannot be resolved or determined on a motion to dismiss for failure to state a claim upon which relief can be granted. (Citations omitted) 14 25 In the March 31 order, it was determined that Plaintiff s Defendant moves for summary judgment, arguing that discovery has eliminated any doubt regarding 28 29 when Plaintiff actually 1 submitted his verified complaint to the DFEH. (Doc. 75, 10:8- 2 10:10.) 3 that the DFEH received Plaintiff s B Complaint by fax on June 2, 4 2006, namely (a) the DFEH file between November 19, 2002, (b) the 5 fax information found at the top of Plaintiff s B Complaint, (c) 6 Plaintiff s 7 Plaintiff s own inconsistencies throughout this case. Defendant contends that there is no triable issue of fact efforts to backdate his B Complaint, and (d) 8 a. DFEH File 9 10 In support of its elimination of doubt argument, Defendant 11 points first to Plaintiff s DFEH file, produced by the DFEH during 12 discovery. 13 received from Plaintiff after Mr. Gonzalez s November 25, 2002 14 letter is the signed B complaint, which is file-stamped received on 15 June 2, 2006. 16 Plaintiff or on his behalf prior to June 2, 2006. 17 The file shows that the first document the DFEH There is no record of any complaint filed by Plaintiff contends that he mailed a B Complaint to the DFEH 18 on November 30, 2002. To support this contention, Plaintiff 19 submits the declaration of Mr. Stephen Richardson, who Plaintiff 20 maintains witnessed [him] correct, complete, sign, date, and mail 21 the [B Complaint] on November 22, 2009. 22 III(a), supra, Mr. Richardson s statement does not comply with 28 23 U.S.C. § 1746, which requires that a declaration must be made under 24 penalty of perjury and must be attested to be true. 25 penalty of perjury clause undermines the credibility of these 26 assertions. As explained in Part The lack of a It also violates Rule 56(e). 27 Plaintiff also states that he vigorously followed up with Mr. 28 Gonzalez, to whom he had written twelve times since returning the 30 1 B Complaint on November, 2002. 2 Plaintiff has not produced one copy of these letters. 3 counters 4 discovery, does not contain a single letter from Plaintiff to Mr. 5 Gonzalez between November 19, 2002 and June 2, 2006. 6 Plaintiff addressed the absence of his letters to Mr. Gonzalez 7 during oral argument,14 stating that the DFEH does not keep case 8 files beyond three years and referencing a letter from Ms. Reyes 9 to Plaintiff on August 17, 2006: 11 13 14 the DFEH s file on Plaintiff, Yet Defendant produced during However, DFEH does not retain case files beyond three years after a complaint is filed, unless the case is open and at the end of the three-year period. 10 12 that (Doc. 90, 6:9-6:12.) (Doc. 79, Exh. E.) Plaintiff did not address why he has no copies of these letters. 15 b. Fax Information 16 17 Defendant asserts that the fax information contained on the 18 top of the B Complaint erases all uncertainty that the DFEH 19 received the Complaint on June 2, 2006. 20 copy of the B Complaint, is information indicating that it was 21 faxed to the DFEH on June 2, 2006 from the fax number 559-227-9355. 22 The fax number 559-227-9355 corresponds to a church entity named 23 The Well, to which Plaintiff admits having an affiliation. 24 problematic is that the DFEH file contains an April 28, 2008 letter 25 from Plaintiff to Ms. Geraldine Reyes, DFEH bearing the identical 26 fax information. (Doc. 79, Exh. E.) At the top of the DFEH s More Plaintiff admits faxing the 27 14 28 Oral argument on Defendant s motion for summary judgment was held on August 17, 2009. (Doc. 101.) 31 1 April 28, 2008 letter to Ms. Reyes at the DFEH, but cannot explain 2 how the identical fax number and information is present on the B 3 Complaint. 4 draw for the presence of the fax legend is that Plaintiff faxed or 5 caused to be faxed his B complaint on June 2, 2006. 6 no explanation or evidence to the contrary.15 The only inference a reasonable trier of fact could Plaintiff has 7 c. 8 9 According Backdating to Defendant, Plaintiff twice attempted to 10 manipulate the June 2, 2006" date on his B Complaint by calling 11 Ms. Reyes and requesting that she backdate his B Complaint to 2002. 12 Ms. Reyes testified in her deposition that on June 6, 2006, 13 Plaintiff contacted the DFEH, asking Ms. Reyes to issue a Right to 14 Sue notice backdated to 2002. 15 had no record of him filing his B Complaint in 2002 and refused to 16 backdate the notice. 17 Ms. Reyes told Plaintiff that DFEH In April or May 2008, Plaintiff again contacted Ms. Reyes in 18 an attempt to backdate his Right to Sue notice. Ms. Reyes denied 19 Plaintiff s request and sent Plaintiff a confirming letter on May 20 16, 2008: This letter is to memorialize our conversation regarding your request to receive a right to sue letter back-dated sometime in or about November 22, 2002. As I have informed you, we have no record of receiving a signed Complaint for the Purpose of Filing Only ( B Complaint) in or about November 22, 2002. We do have a record of you contacting the Department in June of 2006. The documentation included a B Complaint dated November 30, 2002. Unfortunately, we were unable to backdate the complaint and therefore 21 22 23 24 25 26 27 28 15 At oral argument on August 17, 2009, in response to Defendant s fax legend argument, Plaintiff stated: I don t know how to explain that. 32 the Department filed it effective June 2, 2006. 1 2 Defendant asserts that Plaintiff concealed his backdating 3 efforts by omitting the April 28, 2008 letter from Plaintiff to 4 DFEH making the backdating request, and Ms. Reyes May 16, 2008 5 letter, from his discovery responses.16 6 deposition, Plaintiff stated that he forgot about the April 28, 7 2008 letter, leaving it in a drawer at his church. 8 Reyes May 16, 2008 letter, Plaintiff states that he never received 9 it. At his April 27, 2009 Concerning Ms. 10 d. 11 Plaintiff s Alleged Inconsistencies 12 Defendant contends that Plaintiff s changed positions provide 13 direct evidence that he did not mail the B Complaint on November 14 30, 15 complaint, filed on March 29, 2007, does not mention Plaintiff 16 mailing the B Complaint on November 30, 2002: 2002. Defendant points out that Plaintiff s original 23 I also notified the California Department of Fair Employment and Housing in November, 2002, that I was concerned that the SCCCD had ignored my complaint of discrimination and sexual harassment against Dr. Mericle and that it, the District, was proceeding to take steps that seemed to point toward my dismissal for reasons that had nothing to do with performance or wrong-doing. In fact, none of the accusations identified any duty or responsibility of faculty that I hadn't performed and none identified any policy, rule, or regulation that I had violated. The DFEH investigator told me that he would keep the case open until my administrative remedies were exhausted. 24 [...] 17 18 19 20 21 22 25 16 26 27 28 Defendant confronted Plaintiff with this information at his April 27, 2009 deposition. Plaintiff denied any knowledge of the letter, suggesting that it would defy all logic to backdate his Right to Sue notice because it would present statute of limitations problems. 33 Based on the foregoing, with some elaboration, the DFEH issued me a "right -to - sue" letter on August 17, 2006. I then asked the U.S. EEOC to investigate and it issued me a "right - to - sue" letter on December 29, 2006. A copy of the EEOC letter is attached to this complaint. 1 2 3 4 5 According to Defendant, Plaintiff did not mention mailing the 6 B Complaint to the DFEH, whether on November 30, 2002 or otherwise, 7 until he filed his First Amended Complaint. 8 22, 2007, Defendant moved to dismiss Plaintiff s retaliation claim 9 because the date stamp established that Specifically, on June Plaintiff filed his 10 complaint with DFEH on June 2, 2006. In his opposition, Plaintiff 11 insisted that he did not mail the B Complaint to the DFEH on 12 November 30, 2002, instead stating, [i]t is an irrefutable fact 13 that Plaintiff alleged retaliation in a complaint to the California 14 Department of Fair Housing and Employment made on November 19, 15 2002. (Doc. 90, 3:3-3:6.) 16 In his first amended complaint, ( FAC ), Plaintiff alleged for 17 the first time that he mailed the B Complaint to the DFEH on 18 November 30, 2002. 19 April 27, 2009 deposition, as well as in his opposition to this 20 motion. 21 Special Interrogatory No. 16, and in total contradiction to his 22 FAC, Plaintiff stated, it is NOT my contention now, nor has it 23 ever been that I mailed a complaint to the DFEH. 24 complaint in person on November 19, 2002. 25 (emphasis added). 26 also on May 6, 2009, Plaintiff admitted that he did not mail the 27 DFEH Complaint in 2002: Plaintiff maintained this story during his However, on May 6, 2009, in response to Defendant s I made my (Doc. 79, Exh. J.) In responding to Request For Admission No. 3, 28 34 1 REQUEST FOR ADMISSION NO. 3: 2 Admit that you did not mail the DFEH COMPLAINT to the DFEH at any time in 2002. 3 RESPONSE TO REQUEST FOR ADMISSION NO. 3 4 Plaintiff admits Defendant s No. 3. The Complaint in question was made in person at Plaintiff s interview on November 19, 2002. 5 6 7 (Doc. 79, Exh. I.) 8 Defendant contends that Plaintiff s shifting and contradictory 9 positions demonstrate that he did not mail the B Complaint to the 10 DFEH on November 30, 2002. Plaintiff submits that his position 11 never changed; he maintains that he filed an in-person complaint on 12 November 19, 2002 and mailed his B Complaint on November 30, 2002. 13 Plaintiff s conduct, at best, shows a willful attempt to manipulate 14 the truth to avoid the consequences of his own actions. 15 16 1. Conclusion re: Constructive Filing 17 The March 31 order determined that [o]ne explanation for the 18 contradiction between the allegations and evidence Plaintiff 19 presents and the DFEH complaint form date-stamped June 2, 2006 is 20 that Plaintiff returned the form as he alleges in November 2002 and 21 DFEH failed to process it until June 2006, perhaps misfiling or 22 misplacing the form. (Doc. 66, 29:24-30:4.) 23 Here, Defendant claims that it has erased all uncertainty 24 concerning when the DFEH received Plaintiff s B Complaint - that, 25 based on the record, it was faxed to the DFEH from The Well on 26 June 27 deposition testimony from two DFEH employees stating that they did 28 not receive Plaintiff s verified complaint between November 30, 2, 2006. In support, Defendant 35 District has provided 1 2002 and June 2, 2006. 2 furnishes the DFEH file containing the date-stamped B Complaint 3 with the fax authentication on the top of the page. 4 information on top of the B Complaint is identical to documents 5 sent by Plaintiff to the DFEH on April 29, 2008, which Plaintiff 6 cannot explain. 7 twelve letters Plaintiff says he sent to the Mr. Gonzalez between 8 November 30, 2002 and June 2, 2006 and of which he has not copies. 9 More telling is (Doc. 79, Exhibits B & C.) Defendant also The fax Conspicuously absent from the DFEH file are the Ms. Reyes deposition testimony concerning 10 Plaintiff s attempts to have DFEH backdate his B Complaint to 2002. 11 Plaintiff, however, provides a sworn affidavit stating that he 12 filed a complaint with the Mr. Gonzalez at the DFEH s Fresno office 13 on November 19, 2002, and, on November 30, 2002, mailed a completed 14 B Complaint to the DFEH. 15 correspondence in his DFEH file, Defendant points to the August 17, 16 2006 letter from Ms. Reyes stating that the DFEH does not retain 17 case files beyond three years after a complaint is filed. 18 the reason for this deplorable state of the evidence is Plaintiff s 19 dilatory conduct in waiting to bring these claims until 2007. As to the absence of documents and Part of 20 Because Defendant s summary judgment motion is resolved on 21 other grounds, it is unnecessary to resolve whether a rational 22 trier of fact could infer that Plaintiff mailed his B Complaint to 23 the DFEH on November 30, 2002. 24 advanced the issue of time-bar. 25 judgment is DENIED WITHOUT PREJUDICE on the issue of time-bar. It is discussed because Defendant Defendant s motion for summary 26 Plaintiff also argues that the doctrine of equitable tolling 27 should apply to prevent his claim from being barred and that the 28 November 25, 2002 letter from the DFEH was ambiguous, leading him 36 1 to believe that his complaint was filed for purposes of maintaining 2 a private law suit. 3 Defendant s 4 arguments need not be resolved. summary Since there is sufficient reason to grant judgment motion on other grounds, these 5 6 B. Merits of Plaintiff s Title VII Retaliation Claim 7 Assuming, arguendo, that Plaintiff s verified complaint was 8 timely filed, summary judgment will be granted for Defendant 9 because it has presented substantial evidence of legitimate and 10 non-discriminatory reasons for suspending Plaintiff on May 6, 2002 11 and terminating his employment on January 7, 2009, namely that he 12 was unfit for service, dishonest, and persistently violated 13 laws 14 appropriate because Plaintiff has not demonstrated a pretextual 15 reason for his dismissal. and District regulations. Summary judgment is state also 16 To make out a prima facie case of retaliation, an employee 17 must show that (1) he engaged in a protected activity; (2) his 18 employer subjected him to an adverse employment action; and (3) a 19 causal link exists between the protected activity and the adverse 20 action. 21 (9th Cir. 1994). 22 evidence, such as the employer's knowledge that the plaintiff 23 engaged in protected activities and the proximity in time between 24 the protected action and the allegedly retaliatory employment 25 decision." 26 1987); see also Flait v. No. American Watch Corp., 3 Cal. App.4th 27 467, 478, 4 Cal. Rptr. 2d 522 (1992) (reversing judgment for 28 employer on motion for summary adjudication where circumstantial See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 Causation "may be inferred from circumstantial Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 37 1 evidence of causal link raised issue of fact). 2 Once plaintiff produces evidence supporting a prima facie 3 case, the burden shifts to the defendant employer to articulate a 4 legitimate, 5 action. 6 bears the burden of demonstrating that the reason was merely a 7 pretext for the unlawful retaliatory motive. 8 Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003). 9 prove pretext with either direct or indirect evidence. non-retaliatory reason for the adverse employment Once the employer articulates such a reason, a plaintiff offers 11 triable issue as to the actual motivation of the employer is 12 created even if the evidence is not substantial. When direct 13 evidence is unavailable, however, and the plaintiff proffers only 14 circumstantial evidence that the employer's motives were different 15 from its stated motives, specific and substantial evidence of 16 pretext is required to survive summary judgment. See id. (citing 17 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)). if 19 discrimination, Plaintiff which he of established has not,17 discriminatory If a plaintiff Even evidence A plaintiff can 10 18 direct Stegall v. Citadel a prima Defendant motive, facie has case a of articulated 20 17 21 22 23 24 25 26 27 28 It is not clear that Plaintiff has produced sufficient evidence regarding the first prong, i.e., that Plaintiff engaged in protected activity. In his opposition, Plaintiff alleges that he engaged in protected activity when he filed a sexual harassment complaint with the District on March 19, 2002. However, Plaintiff s assertions regarding when (and to whom) he filed the complaint to have varied during the course of this litigation. To counter Plaintiff s accounts, Defendant filed the declarations of Mr. Rowe, Mr. Cantu, and Dean Mericle, who each declare that Plaintiff did not file a sexual harassment complaint with them and they had no knowledge of his alleged harassment until 2008, at the earliest. Defendant also points out that the form Plaintiff produces as evidence of his sexual harassment complaint is not the form the District used between 1980 and the present, listing 38 1 legitimate, non-discriminatory reasons for his termination. 2 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123- 24 (9th Cir. 3 2000) (once a prima facie case has been shown, "[t]he burden of 4 production, but not persuasion, then shifts to the employer to 5 articulate 6 challenged action."). 7 suspending Plaintiff on May 6, 2002, and terminating his employment 8 on January 7, 2003. 9 and unreceptive to instruction and correction. some legitimate, nondiscriminatory reason for See the Defendant had ample, lawful grounds for Among other things, Plaintiff was combative That alone is 10 sufficient for purposes of satisfying the McDonnell Douglas test. 11 See Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1075 (9th 12 Cir.2003) (employee's poor attitude and failure to maintain strong 13 working 14 non-discriminatory reasons for termination). relationships with co-workers satisfied legitimate, 15 Defendant has set submitted considerable evidence to support 16 its proffered legitimate reason for Plaintiff s termination: that 17 Plaintiff s 18 College faculty members, students, and employees violated school 19 policy and called into question his fitness as a faculty member. 20 Failure to perform in accordance with standards set by the employer 21 is sufficient to constitute a legitimate business reason for 22 termination. 23 Cir. 1985) (holding that Title VII does not protect employee who 24 violates employer's rules, disobeys orders and disrupts the work 25 environment); Mansur v. Peralta Community College Dist., 216 F.3d harsh and inappropriate treatment of Fresno City See Unt v. Aerospace Corp., 765 F.2d 1440, 1446 (9th 26 27 28 campuses that did not exist in 2002 and not reflecting three additional campuses added by the District in the 1990's, casting further doubt on the propriety of Plaintiff s litigation conduct. 39 1 1083 (9th Cir. 2000). The record includes direct evidence that 2 Plaintiff s conduct adversely affected students and teachers on a 3 number of occasions, in a variety of settings, and throughout the 4 three year period covered by the allegations. 5 demonstrates that Plaintiff knew of the school s policies prior to 6 his suspension and termination.18 The record also 7 Defendant also seeks judicial notice of the opinions by ALJ 8 Smith and the Fifth District Court of Appeal to support its 9 argument that Plaintiff s termination was made for legitimate, 10 non-discriminatory reasons. As the opinions are matters of public 11 record, the request for judicial notice is granted. 12 43-page opinion outlines the more than forty factual findings, 13 including that Plaintiff made derogatory and disparaging remarks to 14 students, gave female students grades they did not earn, and 15 pursued his personal interests to the detriment of the rights and 16 interests of his students, coworkers, teachers and administrators, 17 frequently to their detriment. The ALJ made the following findings 18 of fact and law concerning Plaintiff s evident unfitness: ALJ Smith s 26. The District proved that Dr. Davenport is evidently unfit for service, within the meaning of section 87732(d). The evidence reveals repeated and varied instances of very poor and imprudent judgment, a lack of discretion, a deep disdain for a certain cross section of his students and coworkers and several instances where Dr. Davenport has not been 19 20 21 22 23 18 24 25 26 27 28 Defendant presents substantial evidence that it terminated Plaintiff's employment because it was concerned about Plaintiff s treatment of female students at Fresno City College and whether he could maintain the professional standards of a faculty member. The District believed that Plaintiff s comments and dealings with female students were inappropriate, insensitive, and in violation of school policy. The District also believed that Plaintiff s outward disdain for students he perceived to be lazy or underachieving supported his unfitness for service. 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 able or willing to prevent his temperament, personal life and attitudes from encroaching upon his work and negatively impacting his students, fellow staff and administrators. These several instances reflect a deficit in temperament, within the meaning of section 87732(d) and as that term is explained in the Woodland decision. 27. Dr. Davenport allowed his failing relationship with Ms. Fipps to nearly destroy him. He brought those personal troubles to class with him, and to staff persons who were willing to listen. He traumatized students and peers with his talk of suicide, and demonstrated especially poor judgment by telling students that he was "on the edge" and that they needed perform well on his exam. The implication that he might follow through on his suicide threats if they performed poorly on his exam was clear. He also showed poor judgment and made it clear to all his students that preferential treatment was available for a student with whom he sought a personal relationship when he offered extra credit for students who attended the Book Faire at Ms. Fipps child's school and purchased a book. 28. Dr. Davenport's behavior toward Jana Howard and Sabrina Sortwell demonstrated a different manifestation of poor judgment and temperamental deficit. Counsel correctly contends that there is no statute, regulation or Board policy that forbids teachers from seeking social relationships with or even dating adult students. Dr. Davenport unapologetically made it clear that he sees nothing inappropriate about seeking social relationships and dates from the female students who attend FCC, and he made it clear that he feels his rights of free association are being encroached by any rule or directive that would prevent him from socializing with any female student receptive to his advances. The clear import of his testimony was that he has no intention of restricting his actions in seeking personal social relationships with female students attractive to him, regardless of what the District thinks of the matter, unless there is a specific policy, law or rule prohibiting such association. 30. The effort to capitalize upon the disparity in status between professor and student was particularly evident in Dr. Davenport's approaches to Ms. Sortwell. Less obvious but still apparent was the same disparity in status when he approached Ms. Howard with his surprisingly crude marriage proposal. Ms. Howard was not a student of Dr. Davenport's at the time, but he was still a FCC professor and Ms. Howard had no idea Dr. Davenport was on leave. Analysis of the effects of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the conduct must be made from what Ms. Howard and Ms. Sortwell knew and perceived, not what Dr. Davenport knew or intended. Ms. Sortwell was both a student and a student employee working in his class. His approach was "very forward", and was most unwelcome. Ms. Sortwell had enough self-assurance to successfully handle the matter herself, but that does not diminish the fact that Dr. Davenport used his position and status as an entree to seek a persona1 relationship with her. The common denominator between the two instances is that Dr. Davenport's status as a professor and the females understanding of his status was the connection to the women from which he made his approaches. In mitigation, Dr. Davenport respected Ms. Sortwell's demand that he cease his approaches to her. In aggravation, Dr. Davenport made it clear that he would have pursued the relationship, had she not objected, and would do so with other female students similarly situated if he were attracted to them and they were receptive to his overtures. Thus, although not evidence of violation of any specific statute, regulation or Board policy, Dr. Davenport's attitude toward pursuit of social and personal relationships with students at the institution where he teaches, as carried out with Ms. Howard and Ms. Sortwell, is nevertheless evidence of a deficit in temperament that Dr. Davenport has no intention of changing. 31. Dr. Davenport also demonstrated a recurring demeaning attitude toward and disrespectful treatment of fellow staff and peers. In Factual Findings 23 and 24, Dr. Davenport was petulant, very disrespectful and demeaning toward campus police who were expecting Dr. Davenport to obey the order that he not be present on campus when he was on administrative leave in October 2000. He berated the campus police in March 2002 for their failure to meet his expectations for prompt response and protection from students who were in an uproar resulting from his own imprudence. His disrespectful and abusive demeanor and verbally inappropriate behavior toward Kelli O'Rourke on two separate instances is additional evidence of this trait. Regardless of the validity of his complaints about the computer's failure to alphabetize his roster and the merit of his objection to the request that he mentor an adjunct, he had no business taking out his frustrations on Ms. O'Rourke when the object of his ire happened to be away from her office when he came in to vent. Dr. Davenport's frustrations with Mr. Farrington's parliamentary coup'd etat on the agenda item Mr. Fanington knew was of intense personal interest to Dr. Davenport is understandable. But Dr. Davenport's temper tantrum and verbal abuse of Mr. Farrington reflected the same trait as was evident in 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the other incidents above, where those frustrations are vented, at times abusively, upon whoever happens to be available. Dr. Davenport's presence on campus on October 6,2000, in defiance of a direct order, and his attempting to conceal grade packages from his Dean, reflect an intentional defiance of the District's authority. 32. Particularly troubling and supportive of a finding of evident unfitness for service is Dr. Davenport's repeatedly manifested deep and abiding disdain for those students he determines are lazy, underperformers or underachievers. As set forth in Factual Findings 32-34, the exceedingly derogatory comments he wrote in Mr. Deol's test booklet, and particularly his surprisingly frank but exceptionally demeaning explanation of his conduct to Ms. Ikeda; Findings 4347, posting the names of failing students on the overhead projector; his comments to the day class the next day; and in Findings 48-49, his behavior toward Ms. Stickler, are significant evidence of this disdain. 33. Dr. Davenport's posting the names of students he was dropping for failure to benefit from instruction was evidence of exceptionally poor judgment, and his comments the next day to his day class reflected his low regard for students who failed his examinations, regardless of the reasons or circumstances. There was no doubt that everyone in the classroom knew the students whose names were posted on the overhead projection had failed the examination and were being dropped for that reason. His claim that he was prevented from explaining the rest of his offer; to permit an option to those failing to remain in the class and bring up their grade, does not cure the basic defect, even had it been delivered as planned. Whether the students who, after the projection of their full names before the entire 150 plus student class, had the option to remain to try to pull their grade up, does not cure the effects of the public disgrace and humiliation already suffered by a public posting of their failure and attachment of a label to them, "failing to benefit from instruction." 39. Dr. Davenport s denial to Dean Mericle that he made derogatory and disparaging remarks to a student seeking help on a term paper who turned out to be Ms. Stickler was dishonest. His elaborate rationalization about why he thought he was justified in posting the names of failing students he was dropping from his class was dishonest... His denial that he gave a grade to Ms. Fipps that she did not earn was dishonest. His denial that he berated Ms. Upton for betraying his confidence was dishonest. 43 55. There is substantial evidence Dr. Davenport s conduct adversely affected students and teachers on a number of occasions, in a variety of settings, and throughout the three year period covered by the allegations. The near riot he caused when he posted failing students' names on the overhead in Mach 2002 not only disrupted his class, but Mr. Farrington's as well and required the police to be summoned. Students in his day class the next day already knew about the incident and asked him about it. Dr. Davenport's suicidal talk in class in the Summer of 2000 had similar large scale disruptive effects on students, and resulted in complaints from some students and even some parents of students. Dr. Davenport's humiliating remarks to Mr. Deol affected only him, but the posting of failing students' names on the overhead caused large scale disruption in both student and teacher lives, and Dean Mericle testified about all the work that was required to undo the involuntary drops and counsel students on their options after his inappropriate action. Dr. Davenport's abusive remarks disrupted all department faculty at the meeting in the Spring of 2002. His abusive diatribe disrupted the front office when he decided to take out his frustrations on Ms. O'Rourke. His abusive remarks to Ms. Upton resulted in more than one complaint to the administration. An enormous amount of administrative time in the District has been spent since 2000 dealing with the effects on students, faculty and staff as a result of Dr. Davenport' s conduct. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 58. Dr. Davenport s pursuit of his personal interests and attitudes appear in the various forms set forth above appear to consistently trump the rights and interests of his students, coworkers, teachers and administrators, frequently to their detriment. 17 18 19 (Doc. 79, Exh. K.) 20 21 Similarly, the Fifth District Court of Appeal stated in its 22 opinion 23 abundant evidence of Davenport s unfitness to teach. The Court of 24 Appeal discussed the substantial evidence in the administrative 25 record to support the ruling in favor of the District: upholding the ALJ s ruling, [w]e conclude there 26 27 28 Davenport's relationship with Fipps continued into the spring of 2000, when she finally told him she wanted to end it. Davenport, however, was persistent in his 44 is 1 2 3 4 5 6 7 8 9 attempts to continue seeing Fipps, to the point she applied for a restraining order to keep him away from her. Davenport was very depressed about the breakup. On June 9,2000, he told the students in his summer school class that "Tricia," the woman he loved, had dumped him. As a result, he had gotten drunk the night before and passed out on his kitchen floor. He had driven by the woman's house that morning, noticed her car was gone, and concluded she must have spent the night with another man. Then he told the students he was contemplating suicide. The only reason he had not killed himself, Davenport said, was because of them (his students). One student's mother reported the incident to campus police the following day, and the police notified the College administration. When asked about the incident, Davenport acknowledged his behavior had been inappropriate. 10 [...] 11 Sherry Upton, an office assistant and acquaintance of Davenport's who helped his larger classes, was present during the suicide threat and also reported it to the College officials. When Upton encountered Davenport again a week later, he was complaining angrily about the curriculum officer, Russ Mitchell. Davenport told Upton had found a solution to his problem. "[H]e was going to get a gun and shoot Mr. Mitchell. And then the cops would have to come and shoot him. And then they would both be out of their respective miseries." Upton filed a written report about the incident and later testified at the administrative hearing. Davenport denied having threatened to shoot Mitchell. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A week later, in the evening of June 20,2000, Davenport showed up at the house where Upton was staying and talked with her at length about his failed relationship with Fipps. Davenport told Upton he had purchased a gun. He said he was going to break into Fipps's house while she was at the coast with her new boyfriend, wait in her bedroom for them to return, and then shoot himself in front of her. Upton reported the statements the same night to Margaret Mericle, the associate dean of instruction for the social sciences division at the College (which includes the history department). The next day Mericle telephoned Davenport's therapist, who reported the incident to Fresno police. The police went to Davenport's house but were unable to locate him. He had left the house to avoid them. That night, June 21, Davenport telephoned Upton and accused her of telling his therapist about the gun. We told Upton she had "a big fucking mouth." Davenport denied saying that. Mericle called campus police when she arrived at work the next morning. They intercepted Davenport on his way to 45 8 class and took him to Mericle's office, where they placed him in custody for a mental health evaluation. He was taken by ambulance to University Medical Center. The College put Davenport first on voluntary and then mandatory medical leave through the fall semester of 2000 and instructed him not to come onto the campus during that time. Nonetheless, he went without permission to the social sciences building on October 6 and had to be escorted off camps by police. Davenport became belligerent, called the officers 'Nazi storm troopers," and demanded they "get their fucking hands off me." He later testified that there were six officers (the police report said there were three), they had manhandled him, and one officer had drawn a gun. 9 [...] 1 2 3 4 5 6 7 22 Kim Reid was a teaching assistant who helped read and score Davenport's history exams, She also was a friend in whom he often confided about his breakup with Fipps. On the afternoon of June 19, 10 days after telling his students he might kill himself, Davenport went to Reid's house to talk to her. Reid's 15-yearold daughter was home at the time and present in the room during their conversation. Davenport told Reid he had stopped taking his medication, felt even more like committing suicide, and had made a list of ways to do it. He talked in detail about his sexual relationship with Fipps, over Reid's objection. And then he began flirting with Reid's daughter, telling her she had sexy lips, patting her on the leg, and encouraging her to put more weight on her butt because he liked women with large butts. Around this time, the postman arrived and delivered a Victoria's Secret catalog. Davenport looked through it with Reid's daughter. After a while, he used Reid's phone to order her daughter two pairs of pajamas and a bathing suit. Davenport left the house soon afterward but called later that evening to apologize for his behavior. Reid filed a written report about the incident with the College administration, She also testified at the administrative hearing. 23 [...] 24 Davenport taught a large night class in history during the spring semester in 2002. Ninety-two of the students, roughly half, failed a test he gave in late February. At the start of the next class session on March 5, Davenport posted the following message on an overhead projector: "Attention History 11, Tuesday 630 class, The following people have been dropped from this class for 'failure to benefit from instruction'. If your name is listed here, pick-up your test on the 10 11 12 13 14 15 16 17 18 19 20 21 25 26 27 28 46 25 front table, and go home. [Alphabetical list of 92 students.] The message caused a near riot that had to be defused by campus police. One student, Christopher Brown, stood up and began to rally the others in protest, moving to the front of the classroom. Other students began to join in. Davenport tried to get Brown to "shut up and sit down." Brown refused, the atmosphere grew heated, and Davenport left the room to summon police. The first officer to arrive at the scene was Martin Rey. He was met by Davenport, whom Rey described as "visibly upset . . . walking around yelling," demanding that Brown be removed from the classroom. A second officer, Christopher Caldwell, talked to Brown. The two officers managed to restore order after about 45 minutes ... By the time Mericle arrived at her office the next day, several students from Davenport's Tuesday night class already had called for appointments to see her. Mericle arranged to meet with the students, somewhere between 12 and 20 of them, the following Tuesday evening just before Davenport's next night class. She asked the students each to write a statement describing what had happened at the March 5 class [...] Mericle also interceded to prevent Davenport from dropping any of the 92 students from his class and called them to say they could remain if they wished. Some preferred to withdraw. Mericle met with Davenport sometime before meeting with the students and again afterward. The later meeting also included Anthony Cantu, the dean of instruction [...] Mericle and Cantu advised Davenport that school policy did not allow for this particular approach, and they instructed him to stop using it. They explained the policy permitted a faculty member to drop a student involuntarily only if the student's attendance had fallen below a certain level. Cantu would later testify that the phrase "failure to benefit from instruction" referred to the requirement a student take a minimum number of classes and maintain a minimum grade point average -- that he or she be making some progress toward graduation -- in order to be allowed to remain in school. Progress was to be measured over several semesters by the College, not by one instructor in a single class. In other words, the "failure to benefit" was not Davenport's call to make; a student had "a right to fail" a particular class. Davenport strenuously disagreed and argued he had the right as an instructor to manage his classes however he saw fit, without any interference from the administration. 26 [...] 27 Rajdeep Deol was one of the students whose name was posted as having been dropped from Davenport's evening class. Deol scored 57 points, out of a possible 150, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 28 47 on the test that precipitated the March 5 incident. Davenport wrote in Deol's test booklet: "Terrible -What have you been doing for the past six weeks? You have learned nothing, nada, zip. If this is the result of best efforts at studying you better get used to the idea of working for minimum wage for the rest of you life." Deol complained to Mericle. Mericle told Davenport the comments were not appropriate. Davenport, who acknowledged making these comments, and other similar ones to many other students, disagreed with Mericle s assessment and said he would take the matter to the academic senate. He argued it was his prerogative, and indeed his ethical obligation, to evaluate honestly the work of his students. At the administrative hearing, Davenport described the comments as a "motivational device." 1 2 3 4 5 6 7 8 9 [...] 10 Melinda Stickler, who worked at the College, was a student in one of Davenport's daytime classes in the spring of 2002. Early in the semester, she made an appointment with Davenport to meet him in his office to discuss a writing assignment. Stickler asked Davenport to look over her paper to determine whether she needed to make any changes. With that, Stickler testified, "He snatched the paper out of my hand, and he said, 'Are you fucking stupid? Do you want me to write the fucking paper myself?"' He was talking very loudly. "[Hlis face was flushed and his eyes went beet red." Davenport tore up Stickler's paper and she left his office. The entire encounter lasted about two minutes. Stickler mentioned the incident to one of her colleagues, Janice Wong. Wong urged Stickler to report it to Mericle. Mericle referred Stickler to Ikeda, who asked Stickler to write an account of her meeting with Davenport. Both Mericle and Ikeda asked Davenport about the incident, without giving him Stickler's name... Davenport told Mericle and Ikeda that he could not recall recently having made a comment of this sort to any of his students. The ALJ concluded that, while it was understandable Davenport would not remember the student by name, his denial he made the comment was "not credible." 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (Doc. 79, Exh. M.) 25 These findings to support the decision affirming the District s 26 decision to terminate Plaintiff were affirmed by the Superior 27 Court, 28 California Supreme Court. State Court of Appeal, and cert. was denied in the This final judgment is entitled to full 48 1 2 faith and credit. 28 U.S.C. § 1738. Defendant has met its burden of demonstrating legitimate 3 business reasons for terminating Plaintiff s employment. The 4 burden shifts back to Plaintiff to prove that the reasons were 5 merely pretextual. 6 articulated 7 discriminatory motive more likely motivated Defendant. 8 v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). 9 plaintiff may rely on circumstantial evidence to show pretext, but Plaintiff can do so by either showing that the reason is "unworthy of credence" or that a Villiarimo A 10 the evidence must be both specific and substantial. 11 v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 (9th Cir.2006) 12 Plaintiff has not evidence to presented raise a Id.; Cornwell any specific, triable issue of much fact less 13 substantial, that 14 Defendant s proffered reasons for termination were merely a pretext 15 for retaliation. 16 stage is not great, he cannot simply rely on generalizations and 17 conjecture. 18 F.3d 654, 661 (9th Cir. 2002); Warren v. City of Carlsbad, 58 F.3d 19 439, 443 (9th Cir. 1995); see Martin v. Lockheed Missiles & Space 20 Co., 29 Cal.App.4th 1718, 1735 (1994) (holding that speculation as 21 to an employer's motive was insufficient to raise a triable issue 22 regarding pretext). While plaintiff's burden at the summary judgment Aragon v. Republic Silver State Disposal Inc., 292 23 The only circumstantial evidence that Plaintiff points to is 24 the alleged procedural errors in investigating his termination, the 25 lack of a negative performance review, and the alleged timing of 26 his suspension and termination. 27 evidence of or numerous corroborating witnesses against him. 28 He does not deny the substantial Arguing that Defendant did not have a legitimate reason to 49 1 terminate him, Plaintiff refers, briefly, to the alleged procedural 2 errors committed by the ALJ and the State Courts.19 3 argument works entirely against Plaintiff, as demonstrated by ALJ s 4 and Fifth Circuit s opinions in favor of the District. 5 judicial opinions demonstrate, there is no evidence Plaintiff was 6 prevented from introducing any evidence in those tribunals. Having 7 previously taken his wrongful termination appeal to the California 8 Supreme Court, Plaintiff cannot advance alleged procedural errors.20 9 To show pretext, Plaintiff next challenges the District s This line of As these 10 proferred reasons for his termination. 11 never received a negative performance review, signaling that he was 12 terminated by the District for pretextual reasons. 13 however, forecloses this contention. 14 Plaintiff was terminated for (I) evident unfitness for service, 15 (ii) dishonesty, and (iii) persistent violation of, or refusal to 16 obey, 17 Plaintiff appealed the ALJ decision, which was upheld by the Fresno the school laws of the state Plaintiff argues that he The evidence, As the ALJ points out, or District Regulations. 18 19 20 21 22 23 19 Following Plaintiff s termination on January 7, 2003, Plaintiff filed an appeal with the Office of Administrative Hearings, which was denied. Plaintiff then appealed his adverse wrongful termination ruling to a series of state courts, including the Fresno County Superior Court and Fifth District Court of Appeal. Both appeals were denied on the merits by written decisions. Plaintiff s appeal ended when the California Supreme Court declined to review the Fifth District s decision regarding his termination. 24 20 25 26 27 28 Plaintiff also argues that Defendant has never identified any rule, regulation, or policy, alleged to have been violated by Dr. Davenport, nor any duty or responsibility Dr. Davenport did not perform satisfactorily. (Doc. 90, 9:23-10:2.) This is not accurate. ALJ Smith and the Fifth District s opinions explain, in detail, the rules, regulations, and internal policies leading to Plaintiff s termination. 50 1 County Superior Court and the Fifth District Court of Appeal. 2 Plaintiff s petition to the California Supreme Court was denied. 3 Plaintiff had ample opportunity to demonstrate that his termination 4 was unlawful, pretextual, or based on animus, but failed to do so. 5 Nor is it inconsistent that Plaintiff never received a negative 6 performance review prior to his termination. 7 shows that, prior to his suspension and termination, the District 8 did 9 student. 10 11 not receive a formal negative If true, it merely performance review from a This does not show pretext. See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002.). The only valid circumstantial evidence that Plaintiff points 12 to is the timing of his suspension and termination. 13 correctly 14 protected activity and the adverse employment action can serve as 15 evidence of pretext.21 16 Co., 350 F.3d 1061, 1069-70 (9th Cir. 2003). 17 alone, accompanied by evidence of Plaintiff s behavior problems, 18 coupled with a complete lack of evidence of retaliatory intent, is 19 neither specific nor substantial circumstantial evidence.22 argues that very close temporal Plaintiff proximity of the See, e.g., Stegall v. Citadel Broadcasting However, timing See 20 21 21 22 23 24 25 Plaintiff relies on Fisher v. San Pedro Peninsula Hospital, 214 Cal. App. 3d. 590 (1989), to assert that the pretext may be established by an inference derived from circumstantial evidence such as the proximity in time between the protected action and the allegedly retaliatory employment decision. (Doc. 90, 10:22-11:2.) Fisher is distinguishable. Unlike this case, Fisher dealt with the burden of proof on a demurrer - not a Rule 56 motion for summary judgment. 22 26 27 28 Although Plaintiff presents evidence of temporal proximity, his retaliation claim is unlike those that have withstood summary judgment in the Ninth Circuit. See Bell v. Clackamas County, 341 F.3d 858, 866 (9th Cir. 2003) (evidence of close temporal proximity may be sufficient to withstand summary judgment if complemented by 51 1 Mitchell v. Superior Court of Cal. County of San Mateo, 312 2 Fed.Appx. 893, 894 (9th Cir. 2009) (upholding summary judgment in 3 favor of Defendant, stating that Plaintiff has not offered any 4 evidence other than the timing to rebut what otherwise appears to 5 be an effort by an employer to confront ballooning discoveries 6 regarding an employee's inappropriate behavior ); see also Yount v. 7 Regent University, Inc., No. CV-08-8011-PCT-DGC, 2009 WL 995596 at 8 *9 (D. Ariz. Apr. 9, 2009) (granting summary judgment in favor of 9 Defendant, finding that the evidence of temporal proximity is not 10 a specific and substantial indicator of pretext when viewed in 11 isolation ... Plaintiff has failed to create a genuine issue of 12 fact as to whether Defendant's proffered reasons were designed to 13 conceal unlawful retaliation against his complaining email... ). 14 As such, Plaintiff "has not shown that either ... a discriminatory 15 reason 16 employer's 17 Villiarimo, 281 F.3d at 1063. more likely proffered motivated the explanation employer is or unworthy ... of that the credence." 18 Moreover, there is no evidence that the decision-makers were 19 aware of Plaintiff s alleged sexual harassment complaint when the 20 District suspended Plaintiff on May 6, 2002 and terminated his 21 22 23 24 25 26 27 28 evidence that a plaintiff had no blemishes on his or her record prior to an adverse action); Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002); Chaung, 225 F.3d at 1127; see also Kotewa v. Living Indep. Network Corp., No. CV05-426-S-EJL, 2007 WL 433544 at *10 (D. Idaho Feb. 2, 2007) ("[T]he fact plaintiff was terminated within a few days of sending her [complaining] email alone may not establish circumstantial evidence of pretext, but when the timing is combined with the fact Kotewa had a good performance review the month before her termination, this is specific and sufficient circumstantial evidence of pretext to allow plaintiff to survive summary judgment."). 52 1 employment on January 7, 2003. 2 was 3 Resources, whom Plaintiff concedes did not sexually harass him. 4 According to Rowe s declaration, when he provided Dr. Davenport the 5 May 6, 2002 letter, Rowe had no knowledge that he had allegedly 6 submitted a harassment complaint against Dr. Margaret Mericle, or 7 any other District employee ... when I met with Dr. Davenport on 8 May 6, 2006, he did not tell me he had submitted such a complaint. 9 (Rowe Decl. ¶ 7.) made by Randy Rowe, The decision to separate Plaintiff Associate Vice Chancellor of Human Rowe goes on to declare that Plaintiff did not 10 mention his alleged sexual harassment complaint during Plaintiff s 11 December 12 termination hearing, and Rowe attests he did not learn of Dr. 13 Davenport s ... sexual harassment claim until his April 27, 2009 14 deposition. 15 record, and Plaintiff points to none, that Plaintiff s sexual 16 harassment complaint was known of or played any role in the 17 decision to suspend or terminate him. 18 3, 2002 Skelly conference Here, (Rowe Decl. ¶ 8-11.) Plaintiff's the unsupported District s his January 7, 2003 There is no indication in the and conclusory for his challenges 19 regarding 20 insufficient as a matter of law. 21 F.2d 392, 393 (9th Cir.1983) (affirming summary judgment for 22 employer where the plaintiff "produced no facts which, if believed, 23 would have shown pretext and thus tendered an issue for trial."); 24 see also Surrell, 518 F.3d at 1103 ("Conclusory statements without 25 factual support are insufficient to defeat a motion for summary 26 judgment."). 27 terminated Plaintiff because of his complaint; all of the evidence 28 shows that he was terminated because he was dishonest, unfit to There is no reasons or termination are See Steckl v. Motorola, Inc., 703 direct 53 evidence that the District 1 teach, and refused to obey laws and regulations. Defendant has met 2 its Rule 56 burden and demonstrated, as a matter of law, that 3 Plaintiff s termination was not merely pretextual, but rather 4 categorically justified as definitively established in the state 5 case. 6 Recent Ninth Circuit precedent is consistent with granting 7 summary judgment in this case. In Mitchell v. Superior Court of 8 Cal. County of San Mateo, 312 F. App x 893, Plaintiff sued her 9 former employer, a state court, claiming employment discrimination 10 and retaliation under Title VII. 11 Northern District of California granted summary judgment for the 12 employer. 13 Plaintiff s argument that the timeline of the Superior Court s 14 actions speaks for itself in establishing pretext: 15 16 17 18 19 20 The District Court for the Affirming summary judgment, the Ninth Circuit rejected [Plaintiff] has not offered any evidence other than the timing to rebut what otherwise appears to be an effort by an employer to confront ballooning discoveries regarding an employee's inappropriate behavior. Under these circumstances, we refuse to make a complaint tantamount to a get out of jail free card based solely on the timing of Mitchell's original DFEH complaint. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000). Mitchell, 312 F. App x at 894. 21 22 After viewing the entirety of the evidence in Plaintiff s 23 favor, drawing all inferences in his favor, and assuming arguendo 24 that he could establish a prima facie case, he has not presented 25 evidence giving rise to a triable issue of disputed material fact 26 as to any pretext. 27 Defendant regarding the Plaintiff s ability to bring a retaliation Summary judgment is GRANTED in favor of 28 54 1 claim under Title VII. 2 VI. CONCLUSION 3 4 For the reasons discussed above: 1. 5 6 Summary judgment is GRANTED in favor of Defendant as to Plaintiff s remaining claim of retaliation under Title VII. 7 Defendant shall submit a form of final judgment consistent 8 with this decision and the earlier decision terminating Plaintiff s 9 wrongful termination claims, terminating this case in its entirety, 10 within five (5) days of electronic service. 11 12 IT IS SO ORDERED. 13 Dated: aa70i8 August 24, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 55

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