Muldrew, et al. v. County of Fresno, et al., No. 1:2009cv00023 - Document 47 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION Regarding Defendants' 22 Motion for Summary Judgment Against Plaintiff Muldrew signed by Judge Oliver W. Wanger on 8/10/2010. (Esteves, C)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 IVANA MULDREW and DARREN HISE, 8 9 1:09-cv-00023-OWW-DLB MEMORANDUM DECISION REGARDING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF MULDREW (Doc. 22) Plaintiffs, 10 v. 11 12 COUNTY OF FRESNO, et al., 13 Defendants. 14 I. 15 INTRODUCTION. 16 Plaintiff Ivana Muldrew ( Plaintiff ) is proceeding with this 17 civil rights action against Defendants the County of Fresno and 18 Kenneth Taniguichi ( Defendants ) pursuant to 42 U.S.C. §§ 1981, 19 1983, and 28 U.S.C. § 1331.1 20 claims. Plaintiff also asserts state law Defendants filed a motion for summary judgment on Plaintiff s 21 22 claims on May 20, 2010. (Doc. 22). Plaintiff filed opposition to 23 Defendants motion for summary judgment on June 14, 2010. 24 29). 25 21, 2010. (Doc. 43). Defendants also filed evidentiary objections 26 to Plaintiff s deposition on July 8, 2010. Defendants filed a reply to Plaintiff s opposition on June (Doc. 43). 27 28 1 (Doc. Plaintiff Muldrew asserts claims solely against the County. 1 II. FACTUAL BACKGROUND. 1 2 Plaintiff commenced employment as a defense investigator with 3 the Fresno County Public Defender s Office ( PDO )in 2001. (PUMF 4 1). 5 Defender 6 preferred to hire a black male , but that he hired the next best 7 thing in Plaintiff.2 8 assigned to the PDO s Dependency Unit, which was stationed in a 9 building separate from main PDO office. (Opposition, Ex. 1 at 163- According to Plaintiff, subsequent to hiring her, then-Public Charles Dreiling told (PUMF 1). 10 64). 11 building 12 underground parking structure. 13 Plaintiff that he would have Sometime in 2001, Plaintiff was The PDO gave Plaintiff parking privileges at the dependancy Mail Run Assignment and a remote control device to access the secured (PUMF 32). 14 In 2004, responsibility for the inter-office mail run between 15 the dependancy unit and the PDO s headquarters was transferred to 16 Plaintiff. (PUMF 33). 17 her mail run.3 18 office with parking privileges in 2004 was an attorney. (MSJ, Ex. 19 D at 379).4 Plaintiff s parking privileges facilitated The only other PDO employee in the dependancy Plaintiff objected to the newly-imposed mail run task 20 21 22 23 24 2 Defendants hearsay objection to Plaintiff s statement regarding what Dreiling told her is sustained in part. Dreiling s hearsay statement is inadmissible to prove the truth of the matter asserted, i.e., that Dreiling preferred to hire a male. It is admissible for Plaintiff s response and state of mind. Fed. R. Evid. 802. Unless noted otherwise, Defendants evidentiary objections to Plaintiff s declaration are overruled. 3 26 In here deposition, Plaintiff initially stated that Celia Alderete ( Alderete ), a PDO investigator with seniority over Plaintiff, tied the mail run to the investigator position with parking privileges. (Opposition, Ex. 1 at 163). Later in her deposition, Plaintiff stated that George Cajiga first asked Plaintiff to do the mail run. (MSJ, Ex. D at 376.) 27 4 25 28 PUMF 36 avers: when Alderete came to Dependency, there was an attempt to transfer the assigned parking and remote to Alderete or Carmen Romero, an attorney, but not the mail run. In support of PUMF 36, Plaintiff cites Exhibit 2 1 because Plaintiff believed it constituted working out of class. 2 (PUMF 33). 3 run, then-Public Defender George Cajiga told Plaintiff he could 4 assign her to any job he determined appropriate. (Id.). Plaintiff 5 believed 6 racially motivated. (PUMF 34). Plaintiff also alleges that on one 7 occasion, an African American office assistant named Mike Jones was 8 called from another area of the office to move boxes. 9 Plaintiff avers that mail run assignment and box-moving incident 10 both evince a pattern at the PDO of assigning African American 11 employees to menial tasks. 12 The Martinez-Baly Complaint 13 In In response to Plaintiff s complaints about the mail transfer the first of the half of mail run 2007, responsibility Plaintiff heard to her was (PUMF 15). rumors that 14 Margarita Martinez, an attorney with the PDO, was requesting that 15 Plaintiff not be assigned to her cases.5 16 of 17 overheard 18 attorney that Plaintiff was incompetent. 19 reported Baly s statement to Diaz, Delmare, and Pete Jones, all of 20 whom were supervising attorneys at the PDO. 2007, an PDO unidentified attorney co-worker Scott Baly (PUMF 17). told tell In November Plaintiff another that she unidentified (PUMF 19). (PUMF 20).6 Plaintiff Plaintiff 21 22 24 1, Plaintiff s deposition transcript at pages 163-164, and Exhibit 2, Plaintiff s declaration, at paragraph 15. Defendant s foundation objection to paragraph 15 of Plaintiff s declaration is sustained. Plaintiff s deposition testimony at pages 163-164 does not reference any attempt to transfer the assigned parking. Accordingly, there is no admissible evidence in support of PUMF 36. 25 5 23 26 27 Defendants hearsay and foundation objections to lines 21-23 of paragraph 6 of Plaintiff s declaration are sustained. Defendants hearsay, relevance, and speculation objections to lines 23-25 of paragraph 6 of Plaintiff s declarations are sustained. 6 28 Defendants foundation and speculation objections to paragraph 9 of Plaintiff s declaration are sustained. 3 1 states that to her knowledge, no investigation was made into Baly s 2 alleged comment. 3 During her (PUMF 24). annual evaluation in January 2008, Plaintiff 4 learned from Robert Delmare ( Delmare ), a PDO attorney, that 5 Martinez had lodged a complaint against Plaintiff for failing to 6 contact a witness. 7 being informally reprimanded and that he was only doing it to 8 pacify 9 Plaintiff received a satisfactory annual evaluation. Martinez. (PUMF 23). Delmare told Plaintiff she was (Id.).7 Despite Martinez s complaint, (Id.). In February 2008, Plaintiff filed complaints with the Equal 10 11 Employment Opportunity 12 Department of 13 discrimination on the basis of race, color, and retaliation. 14 Plaintiff s EEOC/DFEH complaints stated that she had been forced to 15 work out of class with respect to the mail run; that she had been 16 looked over for training, high profile assignments, and supervisory 17 positions; that the PDO had not addressed the alleged statement by 18 Baly about Plaintiff s competence; and that Martinez had lodged the 19 complaint against Plaintiff for failing to contact a witness in 20 order to harass her on the basis of race. 21 Plaintiff further alleged that the hiring, retention, and promotion 22 practices of the PDO were discriminatory. 23 Alderete Complaint In 24 25 or Fair about Commission Employment April ( EEOC ) and 2007, Housing and California s ( DFEH ), alleging (PUMF at 25, 26). (PUMF 26). Alderete became Plaintiff s supervisor. (PUMF 35). In June 2008, Plaintiff took medical leave 26 27 28 7 Defendant s hearsay objection to lines 8-9 of paragraph 8 of Plaintiff s declaration is sustained in part. Plaintiff s hearsay statement is inadmissible to prove the truth of the matter asserted. 4 1 for a few weeks. (PUMF 37). When Plaintiff returned to work, 2 she discovered that Alderete had assigned Plaintiff 6 to 16 more 3 assignments than other investigators were averaging at the time. 4 (PUMF 39). 5 short schedule in which to complete it. 6 states that her ability to perform her assignments was hampered at 7 the time because her car was in the shop. Plaintiff was alarmed at the amount of work and the (PUMF at 41). Plaintiff (PUMF 40). 8 Plaintiff communicated her concerns about her workload to 9 Alderete, and Alderete accused Plaintiff of being unable to manage 10 her time. Alderete told Plaintiff she would meet with her every 11 day and go over her work. 12 angry and slammed her hand down on the desk while yelling at 13 Plaintiff. (PUMF 42). 14 with Elizabeth Diaz ( Diaz ), an attorney at the PDO, and Kenneth 15 Taniguchi ( Taniguchi ), 16 concerns. (PUMF 42). According to Plaintiff, Alderete became After meeting with Alderete, Plaintiff met the Public Defender, to express her 17 Plaintiff told Diaz and Taniguchi that she believed Alderete 18 had given her excess assignments in order to set her up to fail, 19 and that she felt Alderete was being discriminatory. 20 At some point during the meeting with Diaz and Taniguchi, Plaintiff 21 referenced Alderete s involvement in the termination of Stanley 22 Peterson, 23 expressed her belief that Alderete s negative attitude was due in 24 part to the fact that Alderete wanted Plaintiff s parking space. 25 (Muldrew an Dec. African at 5). investigator.8 American Diaz and Taniguchi (PUMF 43). Plaintiff offered to also remove 26 8 27 28 Defendants hearsay and foundation objections to paragraph 20 of Plaintiff s declaration are sustained in part. Plaintiff s statement regarding Peterson s termination is inadmissible to prove the truth of the matter asserted. Fed. R. Evid. 802. 5 1 Plaintiff from Alderete s supervision, but Plaintiff did not want 2 to be moved out of the Dependancy unit, which was associated with 3 her degree in social work.9 (PUMF 46). On July 18, Plaintiff reduced her complaints about Alderete to 4 5 a written memorandum. 6 meeting, Plaintiff told co-workers they could sign her written 7 complaint against Alderete. 8 Lee, 9 complaint. Darren Hise, (Mudlrew Dec. at 6). and (DUMF ). (Id.). Leticia During a union Plaintiff s co-workers Vinnie Castellanos singed Plaintiff s Plaintiff subsequently submitted the July 18 10 complaint to Deborah Harper ( Harper ), a Senior Personnel Analyst 11 at the PDO. 12 by Plaintiff contained no mention of race, color, or ethnicity. 13 (Id. at 2). (Harper Dec. at 1-2). The July 18 complaint submitted 14 On or about July 24, 2008, Plaintiff submitted a formal 15 complaint pursuant to Fresno County s Discrimination Complaint 16 Procedure. 17 color on the county complaint cover sheet and attached the July 18 18 letter to the cover sheet. 19 Plaintiff s complaint, the PDO requested that Personnel conduct an 20 investigation. 21 Analyst, Charlotte Tilkes ( Tilkes ), were assigned to conduct the 22 investigation. 23 investigation of Plaintiff s discrimination complaint in compliance 24 with Fresno County s policies and procedures. 25 26 Harper (Id. at 2). Plaintiff checked the boxes for race and (Id.; MSJ Ex. C). and (Harper Dec. at 2). (Id.). Tilkes Harper In response to Harper and another Personnel and interviewed Tilkes performed their (Id.). co-Plaintiff Darren Hise ( Hise ) in connection with their investigation of Plaintiff s 27 28 9 Defendant s foundation declaration is sustained. objection to 6 page 5, lines 25-27 of Plaintiff s 1 discrimination complaint. (Id.). 2 some of Plaintiff s claims. 3 after 4 supervisor, asked to meet with Hise and questioned him about 5 Alderete s problems with Plaintiff. (Hise Dec. at 4). 6 uncomfortable 7 Plaintiff had told Tilkes and Harper, and on the following day, 8 August 21, Hise contacted Tilkes and Harper to discuss his meeting 9 with Diaz. Hise s interview because (Id.). (MSJ, Ex. O). with he Hise attempted to corroborate felt Tilkes Diaz Approximately a week and was Harper, trying Diaz, to Hise s Hise felt learn what During Hise s meeting with Tikles and Harper, 10 they became defensive and asked Plaintiff if he was accusing them 11 of divulging the substance of their prior interview of Plaintiff. 12 (Id.). 13 (Id. at 5). Later that day, Hise was placed on administrative leave. After 14 conducting their investigation, Hise and Tilkes 15 concluded that Plaintiff has not been subjected to discrimination. 16 (Harper Dec. at 3). 17 written report on August 25, 2008. 18 on medical leave from September 8, 2008 to October 13, 2009. (DUMF 19 32). 20 Plaintiff had been removed from Alderete s supervision. (Id.). (MSJ, Ex. O). Plaintiff went By the time Plaintiff returned to work on October 13, III. LEGAL STANDARD. 21 22 Hise and Tilke s finding was published in a Summary judgment/adjudication is appropriate when "the 23 pleadings, the discovery and disclosure materials on file, and any 24 affidavits show that there is no genuine issue as to any material 25 fact and that the movant is entitled to judgment as a matter of 26 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 27 responsibility of informing the district court of the basis for its 28 motion, and identifying those 7 portions of the pleadings, 1 depositions, answers to interrogatories, and admissions on file, 2 together with the affidavits, if any, which it believes demonstrate 3 the absence of a genuine issue of material fact." Celotex Corp. v. 4 Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 5 (1986) (internal quotation marks omitted). 6 Where the movant will have the burden of proof on an issue at 7 trial, it must "affirmatively demonstrate that no reasonable trier 8 of fact could find other than for the moving party." 9 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Soremekun v. With 10 respect to an issue as to which the non-moving party will have the 11 burden of proof, the movant "can prevail merely by pointing out 12 that there is an absence of evidence to support the nonmoving 13 party's case." Soremekun, 509 F.3d at 984. 14 When a motion for summary judgment is properly made and 15 supported, the non-movant cannot defeat the motion by resting upon 16 the 17 "non-moving party must set forth, by affidavit or as otherwise 18 provided in Rule 56, 'specific facts showing that there is a 19 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 21 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or 22 a mere scintilla of evidence in his favor are both insufficient to 23 withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 24 (9th Cir. 2009). "[A] non-movant must show a genuine issue of 25 material fact by presenting affirmative evidence from which a jury 26 could find in his favor." Id. (emphasis in original). "[S]ummary 27 judgment will not lie if [a] dispute about a material fact is 28 'genuine,' that is, if the evidence is such that a reasonable jury allegations or denials of 8 its own pleading, rather the 1 could return a verdict for the nonmoving party." 2 U.S. at 248. In determining whether a genuine dispute exists, a 3 district court does not make credibility determinations; rather, 4 the 5 justifiable inferences are to be drawn in his favor." Id. at 255. 6 IV. DISCUSSION. 7 A. "evidence of the non-movant is to be Anderson, 477 believed, and all Plaintiff s FEHA Claims 8 Plaintiff s first cause of action is for discrimination and 9 retaliation in violation of California Government Code section 10 12900 et seq., California s Fair Housing and Employment Act (FEHA). 11 Plaintiff asserts FEHA claims solely against the County of Fresno. 12 Employers are subject to respondeat superior liability for the 13 discriminatory conduct of supervisory employees. E.g. Janken v. GM 14 Hughes Electronics, 46 Cal. App. 4th 55, 70 (Cal. Ct. App. 1996). 15 1. Retaliation Claim 16 California Government Code section 12940(h)provides that it 17 18 19 20 shall be an unlawful employment practice for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. 21 22 Cal. Gov. Code § 12940(h). To establish a prima facie case of 23 retaliation under section 12940(h), an employee must show that (1) 24 she engaged in a protected activity; (2) she was subjected to an 25 adverse employment action; and (3) a causal link existed between 26 the protected activity and the averse employment action. 27 Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (Cal. 2005) 28 (citations omitted). E.g. Once an employee establishes a prima facie 9 1 case, the employer is required to offer a legitimate, 2 retaliatory reason for the adverse employment action. non- Id. 3 It is undisputed that Plaintiff has established the first 4 element of a prima facie retaliation claim by providing evidence 5 that 6 complaints alleging discrimination by the PDO. 7 Plaintiff, 8 discrimination in 2008. 9 she engaged she Defendants in first protected presented a by complaint filling several According to alleging racial (MSJ, Ex. D at 212). contend employment activity that suffered Plaintiff concedes she was never subjected to disciplinary action, 12 demoted, or suffered a reduction in compensation. 13 Plaintiff also concedes she was given step raises on every occasion 14 she 15 evaluations. 16 proposition that a series of subtle, yet damaging, injuries can 17 cumulatively amount to adverse employment action. 18 1055-56. Plaintiff contends that the Yanowitz standard for adverse 19 action is satisfied by the combination of (1) the PDO s failure to 20 investigate Plaintiff s claim of defamation ; (2) the lack of 21 opportunities afforded to Plaintiff; and (3) the PDO s failure to 22 respond 23 (Opposition at 13). 24 /// to received (DUMF 28, 29). Plaintiff s meaning only of FEHA, an 11 and the not adverse eligible within has 10 became action Plaintiff as (DUMF 27).10 positive performance Plaintiff cites Yanowitz for the hostile work 36 Cal.4th at environment complaint. 25 10 26 27 28 Plaintiff s sole basis for disputing DUMF 27 is that she received an informal reprimand from Robert Delmare. The fact that Plaintiff received an informal reprimand does not controvert DUMF 27, nor does it rise to the level of adverse employment action. Akers, 95 Cal. App. 4th at 1457 ( mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA ). 10 1 Of the three subtle injuries identified by Plaintiff, only 2 one occurred after 3 complaint filed 2008: 4 Plaintiff s claim of hostile work environment.11 5 could find that Plaintiff s allegation is true, as the record 6 establishes 7 regarding Alderete. Diaz and Taniguchi offered to remove Plaintiff 8 from 9 Plaintiff regarding her complaints about Alderete. in Plaintiff the alleged that Alderete s the PDO s PDO responded supervision her to during first discrimination failure to respond No rational jury Plaintiff s their to first complaints meeting with (PUMF 46). 10 Additionally, it is undisputed that Plaintiff s complaint was 11 investigated pursuant to the County s discrimination complaint 12 procedure. 13 investigation, the County s investigators concluded that Plaintiff 14 had not been discriminated or retaliated against, 15 findings were communicated to the top 16 Taniguchi. 17 Despite 18 discriminated against, the PDO removed Plaintiff from Alderete s 19 supervision. (Doc. 29, Plaintiff s Response to DUMF 32). 20 Plaintiff complains that she was left under Alderete s supervision 21 for two months after filing her complaint, Plaintiff concedes that 22 the PDO offered to remove Plaintiff from Alderete s supervision 23 when Plaintiff lodged her complaint, but that Plaintiff refused the 24 offer because she did not want to be removed from the dependancy 25 unit. (Doc. 29, Plaintiff s Response to DUMF 19). the (Doc. 29, County s Plaintiff s finding PDO s Response that to Plaintiff After an and these decision-maker, DUMF 22, 23). had not been Although (Muldrew Dec. at 5). 26 11 27 28 Plaintiff s complaint about Baly s alleged statement that Plaintiff was incompetent occurred in 2007, and Plaintiff fails to allege that any promotional opportunities became available after she filed her first discrimination complaint in 2008. 11 1 Because Plaintiff has not established that any adverse action 2 was taken against by any 3 discrimination complaints, Defendants motion for summary judgment 4 on Plaintiff s FEHA retaliation claim is GRANTED. 5 v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987) (citation omitted) 6 (failure to establish the existence of a prima facie case renders 7 a grant of summary judgment appropriate).12 8 For with knowledge of her E.g. Yartzoff 2. FEHA Discrimination 9 person a prima facie case of discrimination under FEHA, a 10 plaintiff must establish: (1) she was a member of a protected 11 class, (2) she was qualified for the position she sought or was 12 performing competently in the position she held, (3) she suffered 13 an adverse employment action, such as termination, demotion, or 14 denial 15 suggests discriminatory motive. 16 Inc., 165 Cal. App. 4th 686, 714 (Cal. Ct. App. 2008). 17 of an available job, and (4) some other circumstance E.g. Mamou v. Trendwest Resorts, It is undisputed that Plaintiff is a member of a protected 18 class, (DUMF 1), and that 19 competently, (DUMF 29). 20 subjected Plaintiff to a hostile work environment on account of 21 Plaintiff s race, and there is some evidence to support Plaintiff s 22 allegation, as Plaintiff s declaration indicates that she perceived 23 Alderete being discriminatory against African American employees at 24 the PDO. 25 to raise a genuine issue of fact regarding an employer's motive; The Plaintiff was performing her job complaint alleges that Alderete (Mudlrew Dec. at 4-6). Very little evidence is necessary 26 12 27 28 As discussed below, Plaintiff alleges that Alderete created a hostile work environment subsequent to Plaintiff s 2008 EEOC filing, however, it is undisputed that Alderete did not know about Plaintiff s EEOC complaint during the relevant time period. 12 1 any indication of discriminatory motive may suffice to raise a 2 question that can only be resolved by a fact-finder. 3 GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004). 4 there is a factual dispute regarding whether Alderete created a 5 hostile work environment for Plaintiff on account of Plaintiff s 6 race, summary judgment on Plaintiff s FEHA discrimination claim is 7 inappropriate and is DENIED. 8 B. Plaintiff s Section 1981 Claim 9 McGinest v. Because Plaintiff asserts her section 1981 claim solely against the 10 County of Fresno. 11 for constitutional torts. 12 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 13 U.S. 658, 691 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) as 14 applied to section 1983 claims)." 15 be held liable for its official policies or customs, it will not be 16 held liable for an employee's actions outside of the scope of these 17 policies or customs. 18 19 20 21 22 23 Local governments are "persons" subject to suit See Haugen v. Brosseau, 339 F.3d 857, Although a local government can [T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional [*10] tort. In particular, ¦ a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. Monell, 436 U.S. at 691. 24 As alternatives to proving the existence of a policy or custom 25 of a municipality, a plaintiff may show: (1) "a longstanding 26 practice 27 procedure' 28 decision-making official was, as a matter of state law, a final or custom of the which constitutes local the government 13 'standard entity;" operating (2) "the 1 policymaking authority whose edicts or acts may fairly be said to 2 represent official policy in the area of decision;" or (3) "the 3 official with final policymaking authority either delegated that 4 authority to, or ratified the decision of, a subordinate." Menotti 5 v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). The Ninth 6 Circuit has held that a municipal policy "may be inferred from 7 widespread practices or 8 violations for the 9 discharged or reprimanded." Id. which evidence errant of repeated municipal constitutional officers were not 10 1. Retaliation 11 In order to establish a retaliation claim, Plaintiff must 12 demonstrate that (1) she engaged in a protected activity (2) 13 Defendant subjected her to an adverse employment action, and (3) 'a 14 causal link exists between the protected activity and the adverse 15 action.'" See, e.g., Hernandez v. City of Vancouver, 277 Fed. Appx. 16 666, 669 (9th Cir. 2009) (unpublished) (citing Manatt v. Bank of 17 America, NA, 339 F.3d 792, 800 (9th Cir. 2003)). Plaintiff is a 18 member of a protected class, and Plaintiff engaged in protected 19 activity by filing her first racial discrimination complaint in 20 2008. 21 link between the adverse action of which she complains and her 22 protected activity. (MSJ, Ex. D at 212). Plaintiff has not established a causal 23 The only adverse action allegedly taken against Plaintiff 24 after 2008 was Alderete s creation of a hostile work environment.13 25 Plaintiff cannot state a prima facie case of retaliation based on 26 27 28 13 As discussed above, Plaintiff fails to establish a prima facie case of retaliation based on the PDO s response to Plaintiff s complaints regarding Alderete. 14 1 Alderete s actions because Plaintiff does not dispute that Alderete 2 had no knowledge of Plaintiff s discrimination complaint at the 3 time 4 Plaintiff. (Plaintiff s Response to DUMF 9). Moreover, Alderete s 5 action cannot be attributed to the County. 6 Alderete is not a final decision-making official at the PDO, and 7 Plaintiff 8 grounds for municipal liability. 9 (Monell she allegedly presents liability created no may a evidence be hostile regarding work environment for It is undisputed that possible alternative See Menotti, 409 F.3d at 1147 established where action was taken 10 pursuant to municipal policy, where top decision maker delegated 11 authority to offending personnel, or where top decision maker 12 ratified the discriminatory conduct of subordinates). Accordingly, 13 Defendants motion for summary judgment on Plaintiff s retaliation 14 claim under section 1981 is GRANTED. 15 2. Discrimination 16 In order to establish a discrimination claim under section 17 1981, Plaintiff must demonstrate: (1) that she is a member of a 18 racial minority; (2) an intent to discriminate on the basis of race 19 by Defendant; and (3) that the discrimination concerned one or more 20 of the activities enumerated in the statute. 21 Kamehameha Schools/Bernice Pauahi Bishop Estate, 470 F.3d 827, 838 22 (9th Cir. 2006); see also Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 23 1145 (9th Cir 2006). The rights enumerated in section 1981 include 24 the right to the enjoyment of all benefits, privileges, terms, and 25 conditions of the Contractual relationship, which encompasses the 26 relationship between employer and employee. 27 Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir. 2008). 28 /// 15 See, e.g, Doe v. Johnson v. Riverside 1 Plaintiff s section 1981 discrimination claim is based on her 2 contention that she was subjected to a hostile work environment. 3 (Opposition at 13-14). 4 environment claim is established by:(1) the PDO s failure to 5 investigate 6 incompetent; (2) the placating reprimand Plaintiff received due 7 to Martinez s complaint about her; (3) the excessive, unreasonable 8 assignments by Alderete; and (4) the poor representation of African 9 Americans within the PDO. 10 Baly s Plaintiff contends that her hostile work alleged statement that Plaintiff was (Opposition at 13-14). Hostile work environment claims must be based on severe, 11 pervasive 12 unreasonably interfere with an employee s work performance. 13 e.g., Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 14 2003). 15 discriminatory conduct that is so offensive as to See, As the Ninth Circuit explained in Vasquez: To prevail on a hostile workplace claim premised on either race or sex, a plaintiff must show: (1) that he was subjected to verbal or physical conduct of a racial or sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment... 16 17 18 19 To determine whether conduct was sufficiently severe or pervasive to violate Title VII, we look at "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." In addition, "the working environment must both subjectively and objectively be perceived as abusive. 20 21 22 23 24 Id. 25 Plaintiff provides no evidence that any action attributable to 26 the County created a workplace atmosphere so discriminatory and 27 abusive that it unreasonably interfere[d] 28 16 with Plaintiff s 1 conditions of employment. 2 Plaintiff complains of was severe enough to create a hostile work 3 environment, the record does not permit a rational jury to find 4 that the County may be held liable for such conduct. 5 discrete acts Plaintiff complains of were carried out by Taniguchi, 6 the final decision maker at the PDO, and there is no evidence 7 regarding possible alternative grounds for municipal liability. 8 See Menotti, 409 F.3d at 1147 (Monell liability may be established 9 where action was taken pursuant to municipal policy, where top 10 decision maker delegated authority to offending personnel, or where 11 top 12 subordinates). 13 representation of African Americans at the PDO is not supported by 14 the record, as Plaintiff s argument is based on the unremarkable 15 fact that the PDO s demographics do not reflect Fresno County s 16 demographics. 17 consistently 18 statistics as a proxy for the pool of potential applicants where 19 the employer sought applicants for positions requiring special 20 skills. 21 (citing Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482-83 22 (9th Cir. 1983)); Foss v. Thompson, 242 F.3d 1131, 1135 (9th Cir. 23 2001) 24 Plaintiff s section 1981 claim is GRANTED. decision maker Id. ratified Plaintiff s Even assuming that the conduct the discriminatory allegation (Opposition at 1-2; 13). rejected the usefulness None of the conduct regarding of poor The Ninth Circuit has of general population Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1987) (same). Defendants motion for summary judgment on 25 D. Section 1983 Claim 26 Section 1983 imposes liability upon any person who, acting 27 under color of state law, deprives another of a federally protected 28 right. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 17 1 (9th Cir. 1988); 42 U.S.C. § 1983. 2 facie case of employment discrimination under section 1983, a 3 plaintiff must offer evidence that gives rise to an inference of 4 unlawful discrimination, either through the framework set forth in 5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or with 6 direct 7 Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 8 2003). 9 framework, a plaintiff must show that: (1) she belonged to a 10 protected class;(2) she was subjected to an adverse employment 11 action; and (3) similarly situated employees not in her protected 12 class received more favorable treatment. Kang v. U. Lim Am., Inc., 13 296 F.3d 810, 818 (9th Cir. 2002). or circumstantial evidence In order to establish a prima of discriminatory intent." To create a prima facie case under the McDonnell Douglas 14 Plaintiff s prima facie case of discrimination under section 15 1983 is premised on (1) the fact that only three or four percent of 16 the employees at the PDO are African American; and (2) Taniguchi s 17 response to Plaintiff s complaint regarding Alderete. 18 at 14-15). 19 PDO s demographics, Plaintiff fails to provide relevant evidence to 20 substantiate her claim. 21 (where the employer sought applicants for positions requiring 22 special skills, relevant inquiry depends on demographics of the 23 applicant pool, not the general population). (Opposition With respect to Plaintiff s argument regarding the See, e.g. Robinson, 847 F.2d at 1318 24 Plaintiff s sole allegation against Taniguchi is that he 25 required Plaintiff to file a written complaint about Alderete 26 before he took action. 27 28 Plaintiff s opposition to provides: When Muldrew reports she is being treated differently and met with open hostility by Alderete in July, 2008, Mr. Taniguchi, the Department head, responds by telling her 18 1 2 3 4 5 6 7 if she wants something done she has to file a complaint. Thus Mr. Taniguchi s understanding of the County s policy is that he has no responsibility to ensure the work place is not hostile in the face of verbal reports of discrimination, harassment or retaliation, no duty to investigate absent a formal written complaint. This is unfortunately entirely consistent with the lack of response to Muldrew s prior complaints in November 2007. And it also demonstrates why training only supervisory personnel in regard to County policies on discrimination is a way to discourage reporting. (Opposition at 15). 8 Plaintiff has not provided any evidence that Taniguchi s 9 response was motivated by racial animus, and there is nothing 10 inherently discriminatory about requiring an employee to reduce her 11 claims to writing before conducting a formal investigation. 12 does Plaintiff present any evidence that Taniguchi responded to 13 Plaintiff s 14 response to other employee complaints. 15 Taniguchi s response to her complaint about Alderete is also belied 16 by the record, as Plaintiff concedes that Diaz and Taniguchi 17 offered to remove Plaintiff from Alderete s supervision during 18 their first meeting with Plaintiff regarding her complaints about 19 Alderete. 20 prima 21 Defendants motion for summary judgment on her claim is GRANTED. 22 ORDER complaint (PUMF 46). facie claim in a different manner from Nor Taniguchi s Plaintiff s version of Because Plaintiff has failed to establish a under section 1983 against the County, 23 For the reasons stated: 24 1) Defendants motion for summary judgment on Plaintiff s 25 FEHA retaliation claim is GRANTED; 26 2) Defendants motion for summary judgment on Plaintiff s 27 FEHA discrimination claim is DENIED; 28 3) Defendants motion for summary judgement on Plaintiffs 19 1 claims under 42 U.S.C. §§ 1981 and 1983 are GRANTED; 2 4) Defendants shall submit a form of order consistent with 3 this Memorandum Decision within five (5) days following 4 electronic service of this decision. 5 IT IS SO ORDERED. 6 Dated: hkh80h August 10, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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