Hauschild v. City of Richmond et al, No. 3:2015cv01556 - Document 78 (N.D. Cal. 2016)

Court Description: ORDER DENYING 52 PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART 62 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. (whalc2, COURT STAFF) (Filed on 6/24/2016)
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Hauschild v. City of Richmond et al Doc. 78 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 THOMAS HAUSCHILD, 11 For the Northern District of California United States District Court 10 12 13 14 No. C 15-01556 WHA Plaintiff, v. ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CITY OF RICHMOND AND CHRISTOPHER MAGNUS, Defendants. 15 / 16 INTRODUCTION 17 In this wrongful-termination action brought by a police officer under the California 18 19 Public Safety Officers Bill of Rights, his motion for partial summary judgment is DENIED and 20 defendants’ motion for summary judgment is GRANTED IN PART. STATEMENT 21 The undisputed facts are as follows. Plaintiff Thomas Hauschild began working as a 22 23 police officer for defendant City of Richmond in 2005. Plaintiff, who is Asian, served as a 24 detective, a member of the SWAT team, and as a firearms instructor.1 Between 2006 and 2012, 25 plaintiff’s former spouse, who also worked for the City of Richmond, made several domestic 26 abuse complaints against plaintiff. In response, plaintiff notified the City of these complaints 27 (Hauschild Decl ¶ 3). The Police Department investigated one of these incidents, an incident 28 1 Plaintiff is of Japanese and Caucasian descent (Hauschild Dep. at 76). Dockets.Justia.com 1 that took place at a 2007 Christmas party, and concluded that the complaint was unfounded 2 (Poore Decl., Exh. B). their faces and bodies (Hauschild Decl. ¶ 4; Poore Decl., Exh. A). The City initiated an internal 5 affairs investigation of plaintiff covering past abuse incidents occurring between 2006 and 6 2012. Investigators questioned plaintiff about them. The investigation concluded on September 7 18, 2013 (almost one year after the fight). The investigator, Sergeant Albert Walle, made the 8 following four findings: (1) plaintiff was the “primary aggressor” in the September 2012 9 domestic violence incident; (2) plaintiff placed a condom on his wife’s door the day after the 10 incident; (3) plaintiff illegally purchased eight firearms and stored them in his workspace; and 11 For the Northern District of California On September 23, 2012, plaintiff and his wife fought. Both suffered physical injuries to 4 United States District Court 3 (4) plaintiff made false statements to a supervisor during the investigation (Poore Decl., Exh. 12 A). 13 On September 24, 2013, plaintiff received a Skelly hearing notice regarding the 14 termination of his employment. Defendant Police Chief Christopher Magnus became the 15 hearing officer (id. at ¶ 6; Dickerson Decl., Exh. E). After the hearing, Magnus recommended 16 termination of plaintiff. Magnus’ recommendation stated that each of the charges, standing 17 alone, warranted dismissal. Moreover, his conclusion stated (Dickerson Decl., Exh. E at 3): 18 19 20 the evidence collected regarding the September 23, 2012 incident, six years of domestic abuse of [plaintiff’s wife] leading up to this incident, and Officer Hauschild’s defacement of [plaintiff’s wife’s] property after the incident, conclusively proved that Officer Hauschild was the primary aggressor on September 23, 2012, and battered [plaintiff’s wife] in a jealous rage after finding text messages from another officer on her mobile phone. 21 The recommendation also stated that the evidence showed plaintiff to be the primary aggressor 22 during the September 2012 incident, “even without any consideration of the prior allegations of 23 domestic abuse” (id. at 7). The Richmond City Manager, Bill Lindsay, reviewed the Skelly 24 recommendations from Magnus, and made his own determination to terminate Officer 25 Hauschild. The City then terminated plaintiff’s employment. (Lindsay Decl., Exh. B) 26 The parties disagree about the following facts. Plaintiff submits a declaration that 27 Magnus “began inappropriately touching” plaintiff’s body on one occasion in 2009 and that 28 plaintiff later reported the incident to his supervisor, Lieutenant Arnold Threets (Hauschild 2 1 Decl. ¶ 8). Defendants submit declarations that no sexual advance ever took place and that 2 plaintiff also never reported any incident to Threets (Magnus Decl. ¶¶ 6–7; Threets Decl. ¶¶ 3). 3 Plaintiff submits testimony that Magnus has made discriminatory remarks towards 4 African-Americans and Latinos. Lieutenant Arnold Threets, former supervisor to plaintiff, 5 testified that, on a first-hand basis, he heard Magnus refer to African-American officers as 6 “jigaboos,” and say “dance, jigaboo, dance” when referring to an African-American (Threets 7 Dep. at 71–81). He also heard Magnus refer to Latinos as “Joses” (ibid.) and say that, “If 8 you’re going to try to take me out, you better succeed, because a wounded animal is more 9 dangerous than a dead one” (id. at 78–79). He also heard Magnus say, “I’m more comfortable around people who look like, act like, and talk like me, so I might as well just be a racist” (id. at 11 For the Northern District of California United States District Court 10 79–81). Another officer heard Magnus say that the Juneteenth holiday was a holiday for 12 shooting people (Gagan Dep. at 58–60). Plaintiff also submits testimony that Magnus 13 demanded that he lie in connection with an investigation into a racial discrimination complaint 14 in 2011 (Hauschild Decl. ¶ 10). In a declaration, Magnus denies ever asking plaintiff to make 15 an untrue statement (Magnus Decl. ¶ 12). 16 Plaintiff filed his first amended complaint in May of 2015, alleging six separate claims 17 related to the termination of his employment: (1) violation of the First, Fifth, and 18 Fourteenth Amendments under Section 1983; (2) discrimination in violation of Fair 19 Employment and Housing Act (FEHA); (3) retaliation in violation of FEHA; (4) harassment in 20 violation of FEHA; (5) violation of the California Constitution; and (6) violation of the Public 21 Safety Officers Procedural Bill of Rights (POBR). Plaintiff later dropped claim four 22 (harassment) and claim five (violation of the California Constitution). A prior order denied 23 defendants’ motion for partial summary judgment, concluding that a reasonable trier of fact 24 could conclude that defendants violated POBR’s one-year statute of limitations (Dkt. 50). 25 26 Plaintiff filed for partial summary judgment as to his POBR claim and Section 1983 due process claim. Defendants filed for summary judgment on all claims. 27 28 3 1 ANALYSIS 2 1. MOTION FOR SUMMARY JUDGMENT. 3 Summary judgment is proper where the pleadings, discovery, and affidavits show that 4 there is “no genuine issue as to any material fact and that the moving party is entitled to 5 judgment as a matter of law.” Rule 56(c). Material facts are those which may affect the 6 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 7 A. POBR Claim. 8 The California Public Safety Officers Procedural Bill of Rights provides that “no 9 punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s 11 For the Northern District of California United States District Court 10 discovery.” Cal. Govt. Code Section 3304(d)(1). Section 3304(d)(2)(A) tolls the one-year 12 statute of limitations during the pendency of a criminal investigation. The California Supreme 13 Court has held that the purpose of this statute is “to ensure that an officer will not be faced with 14 the uncertainty of a lingering investigation, but will know within one year of the agency’s 15 discovery of the officer’s act or omission that it may be necessary for the officer to respond in 16 the event he or she wishes to defend against possible discipline.” Mays v. City of Los Angeles, 17 43 Cal. 4th 313, 322 (2008). 18 During the investigative interview of plaintiff, internal affairs investigator Walle asked 19 numerous questions about incidents that occurred well beyond the one-year statute of 20 limitations. These included inquiries into domestic incidents which occurred in 2007, 2009, 21 2010, and 2011 (Wilkinson Decl., Exh. A at 29–48). Moreover, defendant Magnus’ 22 recommendation following the Skelly hearing made several references to these previous 23 incidents. Specifically, Magnus’ memorandum stated that, among other things, plaintiff’s “six 24 years of domestic abuse of [plaintiff’s wife] . . . conclusively proved that Officer Hauschild was 25 the primary aggressor on September 23, 2012” (Dickerson Decl., Exh. E at 3). Magnus also 26 considered that plaintiff “was able to provide detailed accounts” regarding the incident on 27 September 23, 2012 and other domestic violence incidents dating back several years (ibid). 28 4 1 Defendants argue that all evidence points to the conclusion that the punitive action 2 against plaintiff arose solely from the incident on September 23, 2012. Defendants contend that 3 the above quoted passages from the Magnus memorandum were contained in the “Summary of 4 Charges” section and were not mentioned in the “Discussion” section, which supposedly 5 contained the analysis and recommendation. Specifically, defendants point out that in the 6 “Discussion” section, Magnus stated (id. at 7): 7 8 The evidence collected during the investigation supports the investigator’s finding that Officer Hauschild was the primary aggressor during the incident on September 23, 2012, even without any consideration of the prior allegations of domestic abuse by [plaintiff’s wife] against Officer Hauschild. 9 Moreover, in discussing the four separate charges — the domestic violence incident, the 10 investigators — Magnus determined that each of these charges, standing alone, warranted For the Northern District of California United States District Court placement of the condom on the door handle, the unregistered firearms, and lying to 11 12 termination of employment. 13 Thus, defendants argue, because the discussion of the “six years of domestic abuse” only 14 appeared in the “Summary of Charges” section and because Magnus explicitly stated that the 15 incident on September 23, 2012, had been sufficient (in and of itself) without consideration of 16 prior incidents, no issue of material fact exists as to whether defendants took punitive action 17 based on old misconduct. 18 Defendants’ assertion, that the old conduct played no role in the termination decision, 19 may very well be true. That, however, must be determined by the trier of fact. A reasonable 20 trier of fact could find that based on the several references to past events in the Magnus 21 memorandum, and based on the questions regarding old incidents raised in the investigatory 22 interview, that the City actually gave weight to these old events in making its termination 23 decision. While Magnus stated that the evidence showed plaintiff was the primary aggressor 24 even without any consideration of the prior allegations of domestic abuse, the recurring 25 reference to those events throughout the process raises an inference, even if remote, that 26 plaintiff’s past came back to haunt him. From the fact that a substantial portion of the 27 investigation focused on plaintiff’s conduct from 2006–2011, along with the fact that Magnus’ 28 memorandum discussed the prior instances multiple times, a reasonable trier of fact could find 5 1 that defendants’ punitive actions were based on conduct that occurred beyond POBR’s one-year 2 statute of limitations. 3 With its motion, defendants submit new declarations in an attempt to show that the 4 termination was not based on acts outside the one-year statute of limitations. In a declaration, 5 Magnus avers that he believes plaintiff was the primary aggressor on September 23, 2012 6 regardless of any prior allegations of domestic abuse (Magnus Decl. ¶ 18). In a declaration, the 7 City Manager Lindsay states that he did not base any part of his termination decision upon the 8 statement that there had been a long-standing history of domestic abuse (Lindsay Decl. ¶ 8.) 9 These after-the-fact statements do not cure the underlying issue. At the hearing on June 23, defendants’ counsel asserted that plaintiff himself had 11 For the Northern District of California United States District Court 10 requested that the investigator examine the prior incidents to show a pattern of lying and 12 aggression on the part of his former spouse. That is, counsel said plaintiff himself invited an 13 examination into the forbidden time zone. Counsel, however, could not point to a particular 14 document that showed plaintiff had made this request. After the hearing, defendants submitted 15 an email from plaintiff’s counsel in an attempt to show plaintiff had made this request. The 16 email attached a letter from plaintiff’s counsel to the District Attorney outlining the former 17 spouse’s history of aggressive conduct. The email did not expressly invite the department to 18 investigate incidents older than a year. This will have to remain a point of contention for trial. 19 This order, like the prior order, concludes that a reasonable trier of fact could find (and 20 could refuse to find) that defendants took punitive action against plaintiff for events occurring 21 earlier than the POBR’s one-year statute of limitations. Defendants’ motion for summary 22 judgment as to plaintiff’s POBR claim is DENIED. 23 If we were writing on a clean slate, the Court would be inclined to hold that, under the 24 POBR, events older than one year may be considered solely for the purposes of the credibility 25 of the officer (as well as the complaining witness), but that no officer may be punished or 26 disciplined for alleged misconduct older than one year. For example, the first time an officer 27 gives an explanation it may seem plausible but as the same scenario recurs year after year, the 28 same explanation may sour. Thus, in this case, it would have been permissible for the 6 1 reviewing officer to limit the consideration of older events solely to credibility of the officer in 2 question so long as he was punished for nothing more than events within the one-year period. 3 Unfortunately, there is no definitive case law on this point — at least counsel have failed to 4 supply any. More than that, on the particular facts of this case, the memorandum mentioned 5 events outside the one-year period in such a way as to allow a trier of fact to reasonably 6 conclude that defendant was punished for older events and that the older events were not limited 7 to credibility. Of course, a trier of fact could very reasonably conclude the plaintiff was not 8 punished for anything older than one year, and in fact that may be the best reading of the 9 memorandum. Nevertheless, it is not the only reasonable reading, and the trier of fact will have 11 For the Northern District of California United States District Court 10 to decide. This order concludes that summary judgment for the plaintiff is also inappropriate. In 12 his memorandum, Magnus stated that he had determined that each of these charges, standing 13 alone, warranted termination of employment. Moreover, the memorandum concluded that the 14 evidence showed plaintiff was the primary aggressor even without any consideration of the prior 15 allegations of domestic abuse. A reasonable trier of fact could conclude that defendants’ 16 termination of plaintiff was not based on acts outside the one-year limitations. Plaintiff’s 17 motion for summary judgment as to his POBR claim is DENIED. 18 19 20 B. FEHA Claims. (1) FEHA Discrimination Claim. Under FEHA, an employer may not, because of a person’s race, discharge the person 21 from employment or discriminate against the person in compensation or in terms, conditions, or 22 privileges of employment. Cal. Gov’t Code § 12940(a). To evaluate whether a party has 23 proven discrimination in violation of FEHA, California courts use the burden-shifting test 24 established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 25 Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000). 26 The test requires a plaintiff to first establish a prima facie case of discrimination by 27 “offering evidence that give[s] rise to an inference of unlawful discrimination.” E.E.O.C. v. 28 Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). If a plaintiff has established a prima facie 7 1 discrimination claim, the burden shifts to the defendant to articulate a legitimate 2 nondiscriminatory reason for the adverse employment action. If the defendant articulates such a 3 reason, a plaintiff may defeat summary judgment by offering direct or circumstantial evidence 4 that a discriminatory reason more likely motivated the employer to take the adverse 5 employment action or that the employer’s proffered explanation is unworthy of credence and a 6 pretext for discrimination. Surrell v. California Water Serv. Co., 518 F.3d 1097, 1106 (9th Cir. 7 2008). In his opposition to defendants’ motion for summary judgment, plaintiff asserts an 8 9 entirely new theory of discrimination. Plaintiff argues that his former spouse committed the same alleged conduct as plaintiff — she engaged in battery and destruction of plaintiff’s 11 For the Northern District of California United States District Court 10 property and admitted to lying regarding a 2007 incident — but the City did not discipline her. 12 Plaintiff contends this demonstrates the City engaged in gender discrimination against him.2 Plaintiff’s new theory of discrimination is not reflected in the First Amended Complaint. 13 14 A plaintiff may not raise new theories for the first time on summary judgment this late in 15 litigation. Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006). This order 16 finds that plaintiff failed to provide defendants with adequate notice of these allegations. 17 Plaintiff’s new theory will be disregarded. 18 What remains is plaintiff’s theory that he was fired because of his race. Plaintiff 19 presents evidence that Magnus made deeply offensive comments regarding African-Americans 20 and Latinos. Plaintiff submits testimony that Magnus stated he preferred to work with officers 21 who looked like him (Threets Dep., pp. 71, 79–81). In addition, plaintiff submits evidence that, 22 unlike plaintiff, the non-Asian officers who illegally transferred firearms to plaintiff were not 23 terminated from their employment due to the illegal transfers. Assuming for the sake of argument that plaintiff met his initial burden to show a prima 24 25 facie case of discrimination, defendants submit more than enough evidence to meet their burden 26 under McDonnell Douglas to show a legitimate basis for the employment decision. The City 27 28 2 Plaintiff’s complaint includes a generic reference to gender discrimination but provides no factual allegations to support a claim for gender discrimination. 8 1 determined that plaintiff had battered his former spouse, placed a condom on her door, and then 2 lied to investigators about it (Dickerson Decl., Exh. E). A “substantial showing” by plaintiff is 3 required at the pretext stage. Decker v. Barrick Goldstrike Mines, Inc., No. 14-15051, 2016 WL 4 1128176, at *1 (9th Cir. Mar. 23, 2016). Plaintiff fails to make a “substantial showing” that his 5 termination was a pretext. A reasonable trier of fact could not conclude that plaintiff was 6 terminated for discriminatory reasons. 7 8 9 (2) FEHA Retaliation Claim. Our court of appeals has stated that to establish a prima facie case of FEHA retaliation, a plaintiff must demonstrate: (1) a protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and the adverse employment action. Cornwell v. 11 For the Northern District of California United States District Court 10 Electra Cent. Credit Union, 439 F.3d 1018, 1034–35 (9th Cir. 2006). 12 If a plaintiff has established a prima facie retaliation claim, the burden shifts to the 13 defendant to articulate a legitimate nondiscriminatory reason for the adverse employment 14 action. If the defendant articulates such a reason, a plaintiff may defeat summary judgment by 15 offering direct or circumstantial evidence that a discriminatory reason more likely motivated the 16 employer to take the adverse employment action or that the employer’s proffered explanation is 17 unworthy of credence and a pretext for discrimination. Surrell v. California Water Serv. Co., 18 518 F.3d 1097, 1106 (9th Cir. 2008). 19 In his opposition to defendants’ motion for summary judgment, plaintiff asserts a new 20 theory of retaliation. Plaintiff alleges that he repeatedly complained that his former spouse was 21 creating a hostile work environment. Plaintiff’s new theory of discrimination is not asserted in 22 the First Amended Complaint. A plaintiff may not raise new theories for the first time on 23 summary judgment this late in litigation. Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 24 969 (9th Cir. 2006). As such, the complaint did not put defendants on notice about the evidence 25 it would need to defend against plaintiff’s new allegations. This order finds that plaintiff failed 26 to provide defendants with adequate notice of these allegations. Plaintiff’s new theories will 27 therefore be disregarded. 28 9 1 What remains is plaintiff’s assertion that he was fired in retaliation for allegedly making 2 complaints about sexual harassment by Magnus and for allegedly refusing to lie in the course of 3 an investigation. In a declaration, plaintiff states that, after Magnus allegedly made a sexual 4 advance, plaintiff reported the incident to his supervisor, Threets (Hauschild Decl. ¶ 8). 5 Defendants submit testimony from Threets that plaintiff never reported any such incident to him 6 (Threets Decl. ¶¶ 3). Plaintiff’s evidence that he was asked to lie in the course of an 7 investigation but refused to do so is similarly thin. He submits only his own declaration. 8 9 Assuming for the sake of argument that plaintiff met his initial burden to show a prima facie case of discrimination, defendants submit more than enough evidence to meet their burden under McDonnell Douglas to show a legitimate basis for the employment decision. The City 11 For the Northern District of California United States District Court 10 determined that plaintiff had battered his former spouse, placed a condom on her door, and then 12 lied to investigators about it (Dickerson Decl., Exh. E). 13 A “substantial showing” by plaintiff is required at the pretext stage. Decker v. Barrick 14 Goldstrike Mines, Inc., No. 14-15051, 2016 WL 1128176, at *1 (9th Cir. Mar. 23, 2016). 15 Plaintiff fails to submit a “substantial showing” that his termination was a pretext. A reasonable 16 trier of fact could not conclude that plaintiff was terminated in retaliation for alleged complaints 17 he made about an alleged sexual advance. 18 19 C. Section 1983 Claims. (1) Due Process Claims. 20 In December of 2013, plaintiff opted to submit his appeal of his dismissal to binding 21 arbitration and concurrently waived his right to a Personnel Board hearing (Dkt. 20, Ex. A). 22 Plaintiff also previously dismissed his due process claims under the California Constitution. 23 Plaintiff contends that he is not asserting a “due process claim involving the adequacy of 24 the pre- or post-termination remedies in this case, or his liberty interest.” Rather, he contends 25 that he has a property interest in the “existing state law rule or understandings [including] the 26 procedural protections contained in POBR, including the one-year limitations period.” 27 28 This order declines to hold that plaintiff has a property interest in the one-year statute of limitations. To be sure, plaintiff had a property interest in his employment. Here, however, 10 1 plaintiff waived his rights to post-termination proceedings by opting to submit his appeal of his 2 dismissal to binding arbitration and concurrently waiving his right to a Personnel Board 3 hearing. Plaintiff thereby waived his ability to bring a due process claim based on the 4 termination of his employment. Ramirez v. Cty. of Marin, 578 F. App’x 673, 676 (9th Cir. 5 2014) (plaintiff cannot complain about defect in pre-termination hearing when the plaintiff did 6 not take advantage of the available post-termination process). Plaintiff’s back-door effort to 7 evade the preclusive effect of his waiver is unconvincing. Plaintiff’s motion for summary 8 judgment as to his due process claim is DENIED. Defendants’ motion for summary judgment as 9 to plaintiff’s due process claim is GRANTED. (2) First Amendment Retaliation Claim. As an initial matter, it should be noted that plaintiff asserts entirely new theories to 11 For the Northern District of California United States District Court 10 12 support his First Amendment retaliation claim in his opposition to defendants’ motion for 13 summary judgment. Plaintiff asserts that his First Amendment claim is supported by complaints 14 he made “about the criminal misconduct of his former spouse” and his “refusal to lie during the 15 course of a racial discrimination complaint” (Opp. at 24). Plaintiff’s new theory of retaliation is not reflected in the First Amended Complaint.3 A 16 17 plaintiff may not raise new theories for the first time on summary judgment. Pickern v. Pier 1 18 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006). As such, the complaint did not put 19 defendants on notice about the evidence they would need to defend against plaintiff’s new 20 allegations. This order finds that plaintiff failed to provide defendants with adequate notice of 21 these allegations. Plaintiff’s new theories will be disregarded. What remains under the First Amendment retaliation claim is plaintiff’s assertion that he 22 23 was fired in retaliation for making complaints about alleged sexual harassment by Chief 24 Magnus and for refusing to lie in the course of an investigation. A First Amendment retaliation claim involves a five-step analysis: (1) whether the 25 26 plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen 27 28 3 Defendants also assert that plaintiff’s responses to interrogatories also did not reflect these new allegations (Reply at 3). 11 1 or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating 2 factor in the adverse employment action; (4) whether the state had an adequate justification for 3 treating the employee differently from other members of the general public; and (5) whether the 4 state would have taken the adverse employment action even absent the protected speech. 5 Plaintiff’s evidence of protected speech is thin. In a declaration, he avers that he made a 6 complaint to his supervisor, Threets, about an alleged sexual advance by Magnus. The 7 supervisor remembers no such thing. Plaintiff further avers that Magnus demanded he lie in 8 connection with an investigation and that plaintiff refused to do so. These statements are 9 uncorroborated by any other evidence. Nonetheless, assuming arguendo that plaintiff complained to Threets, and that he 11 For the Northern District of California United States District Court 10 refused to lie during an investigation, the City would have taken the same employment action 12 regardless — and reasonably so. 13 For the reasons described above, defendants make a substantial showing that the City had a 14 legitimate basis for the employment decision. A reasonable trier of fact could not conclude that 15 plaintiff was terminated in retaliation for a complaint he made about an alleged sexual advance 16 or for his alleged refusal to lie. (3) 17 Monell Claim. 18 Plaintiff has presented no evidence that the City of Richmond maintains a custom, 19 policy, or practice of retaliating against employees who make complaints of public concern. As 20 such, defendants’ motion for summary judgment is GRANTED. 21 2. 22 Defendants ask the Court to take judicial notice of a judgment in a 2006 lawsuit against 23 Magnus and the City of Richmond in the Superior Court of Contra Costa. Defendants contend 24 that all of the alleged derogatory statements by Magnus relate back to this 2006 lawsuit brought 25 by African-American officers, including Lieutenant Threets. This order declines to take judicial 26 notice of the judgment because it is impossible to know if the lawsuit arose from the same 27 statements alleged here. 28 JUDICIAL NOTICE. CONCLUSION 12 1 For the foregoing reasons, plaintiff’s motion for summary judgment as to his POBR and 2 due process claim is DENIED. Defendants’ motion for summary judgment is GRANTED IN 3 PART: defendants’ motion for summary judgment as to plaintiff’s POBR claim is DENIED; 4 defendants’ motion for summary judgment as to plaintiff’s FEHA claims for discrimination is 5 GRANTED; defendants’ motion for summary judgment as to plaintiff’s FEHA claims for 6 retaliation is GRANTED; defendants’ motion for summary judgment as to plaintiff’s due process 7 claim is GRANTED; defendants’ motion for summary judgment as to plaintiff’s First 8 Amendment retaliation claim is GRANTED; and defendants’ motion for summary judgment as to 9 plaintiff’s Monell claim is GRANTED. Plaintiff’s remaining claim is his claim for violation of POBR. 11 For the Northern District of California United States District Court 10 12 IT IS SO ORDERED. 13 14 Dated: June 24, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13