Torres v. Lyon County Nevada et al, No. 3:2007cv00538 - Document 32 (D. Nev. 2009)

Court Description: ORDER GRANTING Ds' 20 Motion for Summary Judgment. LET JUDGMENT ENTER ACCORDINGLY. Signed by Magistrate Judge Robert A. McQuaid, Jr on 3/31/2009. (Copies have been distributed pursuant to the NEF - DRM)
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Torres v. Lyon County Nevada et al Doc. 32 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 9 10 11 12 13 14 15 16 17 JULIE TORRES, ) ) Plaintiff, ) ) vs. ) ) THE COUNTY OF LYON and; DOES ) 1 - 10, inclusive; ABC CORPORATIONS ) 1 - 20, inclusive; and BLACK & WHITE ) ENTITIES, 1 - 20, inclusive, ) ) Defendants. ) ) 20 21 22 23 24 25 26 MEMORANDUM DECISION AND ORDER Before the court is Defendant Lyon County’s Motion for Summary Judgment (Doc. #20.1) Plaintiff has opposed (Doc. #26) and Defendants have replied (Doc. #31). Having read the papers, and carefully considered the arguments and the relevant legal authority, and with good cause appearing, the court grants the motion. 18 19 3:07-CV-538-RAM I. BACKGROUND This is an action for employment discrimination brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. Plaintiff Julie Torres (“Torres”) began working for Lyon County, Nevada (“Defendant”) as a part-time clerk in the juvenile master court in July 1999. In one incident, she alleges that Judge Robert Bennett suggestively touched her arm. Her supervisors addressed this issue and granted Plaintiff administrative leave. She also alleges that Judge Stephen Grund regularly subjected her to sexual discrimination and retaliation. (Doc. #26 at 2.) Judge Grund stared at her breasts and made sexually inappropr iate comments to her. (Id. at 2-3.) She complained about this conduct to her supervisors, 27 28 1 Refers to the court’s docket number. Dockets.Justia.com 1 Debra Depaoli and Judge Wayne Pederson, to no avail. (Id. at 3.) Torres also alleges four 2 retaliatory actions against her as a result of her prior complaints: 1) for the past three years, she 3 was denied a reclassification in her position that would result in a pay increase; 2) she was 4 denied a promotion to a Juvenile Probation Officer; 3) she was denied a promotion to Court 5 Services Officer position; and 4) she was written up by Depaoli for trivial reasons. (Id. at 3-6.) 6 The last act of discriminatory conduct occurred more than 180 days but less than 300 days 7 before she filed her complaint with the Equal Employment Opportunity Commission (EEOC). 8 (Doc. #26 at 3.) 9 Torres alleges that she filed a formal complaint to Judge Pederson in July 2006, but no 10 appropriate action was taken. (Id. at 5.) Judge Grund later confronted her after learning that 11 the complaint had been filed. Torres filed another formal complaint in September 2006 to the 12 Lyon County Human Resources Administrator, who also failed to take further action. (Id. at 13 6.) Torres then filed a complaint with the Nevada Commission on Judicial Discipline against 14 Judge Grund on October 25th, 2006, and that investigation is currently pending. (Id. at 7.) 15 Torres resigned from her position on the same date and filed a charge of discrimination with 16 the EEOC on July 18th, 2007. 17 Torres’s complaint contains the following four causes of action: 1) that she was subjected 18 to a hostile work environment in violation of Title VII from the behavior by Judges Grund and 19 Bennett; 2) that she was subjected to retaliatory conduct in violation of Title VII; 3) that she 20 was constructively discharged from her employment as a result of the Title VII violations; and 21 4) that Lyon County was negligent with respect to its retention and supervision of Judge 22 Grund. Defendant moves for summary judgment on Plaintiff’s Title VII claims based on the 23 applicable statute of limitations. With respect to the last claim, Defendant also argues that the 24 court should decline to exercise its supplemental jurisdiction and that it had no duties with 25 respect to hiring or supervising Judge Grund. Torres argues that a longer statute of limitations 26 applies so that her action is not time-barred. 27 /// 28 II. STANDARD FOR SUMMARY JUDGMENT 1 2 The purpose of summary judgment is to avoid unnecessary trials when there is no 3 dispute as to the facts before the court. Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 4 F.3d 1468, 1471 (9th Cir. 1994). All reasonable inferences are drawn in favor of the non-moving 5 party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 6 477 U.S. 242, 244 (1986)). Summary judgment is appropriate if “the pleadings, the discovery 7 and disclosure materials on file, and any affidavits show that there is no genuine issue as to any 8 material fact and that the movant is entitled to judgment as a matter of law.” Id. (citing 9 Fed.R.Civ.P. 56(c)). Where reasonable minds could differ on the material facts at issue, 10 however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 11 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). In deciding whether to grant summary 12 judgment, the court must view all evidence and any inferences arising from the evidence in the 13 light most favorable to the nonmoving party. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 14 1996). 15 The moving party bears the burden of informing the court of the basis for its motion, 16 together with evidence demonstrating the absence of any genuine issue of material fact. 17 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, 18 the party opposing the motion may not rest upon mere allegations or denials of the pleadings, 19 but must set forth specific facts showing there is a genuine issue for trial. Anderson, 477 U.S. 20 at 248. Although the parties may submit evidence in an inadmissible form, only evidence 21 which might be admissible at trial may be considered by a trial court in ruling on a motion for 22 summary judgment. Fed. R. Civ. P. 56(c). 23 In evaluating the appropriateness of summary judgment, three steps are necessary: (1) 24 determining whether a fact is material; (2) determining whether there is a genuine issue for the 25 trier of fact, as determined by the documents submitted to the court; and (3) considering that 26 evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248. As to 27 materiality, only disputes over facts that might affect the outcome of the suit under the 28 3 1 governing law will properly preclude the entry of summary judgment; factual disputes which 2 are irrelevant or unnecessary will not be considered. Id. Where there is a complete failure of 3 proof concerning an essential element of the nonmoving party’s case, all other facts are 4 rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 5 477 U.S. at 323. 6 “A plaintiff alleging employment discrimination ‘need produce very little evidence in 7 order to overcome an employer’s motion for summary judgment. This is because the ultimate 8 question is one that can only be resolved through a searching inquiry—one that is most 9 appropriately conducted by a factfinder, upon a full record.” Davis v. Team Electric Co., 520 10 F.3d 1080, 1089 (9th Cir. 2008) (citing Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 11 (9th Cir. 2000)). An employee’s right to a full trial should be zealously guarded in light of the 12 difficulty in proving an employment discrimination claim. Id. (citing McGinest v. GTE Serv. 13 Corp., 360 F.3d 1103, 1112 (9th Cir. 2004)). III. DISCUSSION 14 15 I. STATUTE OF LIMITATIONS 16 Defendants argue that this action should be dismissed due to the statute of limitations. 17 Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an 18 employer to discriminate against any individual with respect to his compensation, terms, 19 conditions and privileges of employment because of such individual’s race, religion, sex, or 20 national origin.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 20 (1993) (citing 42 U.S.C. § 21 2000e-2(a)(1)). According to § 706(e) of the Act, a plaintiff must first file an administrative 22 charge with the Equal Employment (EEOC) within 180 days of the last act of discrimination.2 23 2 24 25 26 27 28 Section 706(e) provides: “(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employm ent practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is m ade within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the 4 1 MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081-82 (citing 42 U.S.C. § 2 2000e-5(e)(1)). “[I]f the employee does not submit a timely EEOC charge, the employee may 3 not challenge that practice in court.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 4 127 S.Ct. 2162, 2166-67 (2007) (citing 42 U.S.C. § 2000e-5(e)(1)); accord Nat'l R.R. Passenger 5 Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). However, there 6 is an exception to this rule in so-called deferral states – states where there is an 7 antidiscrimination law and an agency tasked with enforcement responsibilities. 42 U.S.C. § 8 2000e-5(e)(1). In deferral states, when the plaintiff institutes proceedings with a “State or local 9 agency with authority to grant or seek relief from [the alleged unlawful employment] practice”, 10 the limitations period is extended to 300 days. Id. Nevada is a deferral state by virtue of the 11 Nevada Equal Rights Commission (NERC). Roberts v. Nevada ex rel. Dept. of Conservation 12 and Natural Resources, Div. of State Parks, 2008 WL 3925084, at *4 (D.Nev. August 28, 13 2008). 14 Because Plaintiff filed her complaint with the EEOC on July 18th, 2007, the critical dates 15 for the 180-day and 300-day statutes of limitations are January 19, 2007, and September 21, 16 2006. Torres claims that the last discriminatory act occurred on October 25th, 2006, when 17 Plaintiff was constructively discharged from her position. (Doc. #26 at 11.) This occurs in the 18 interim between the two limitations periods, so it is necessary to determine which one applies. 19 Torres argues that the 300-day period should apply because she filed a complaint against Judge 20 Grund with the Nevada Commission on Judicial Discipline (“the Commission”) on October 21 25th, 2006. (Doc. #26, Ex. D.) That complaint alleged inter alia that the judge had made 22 sexually inappropriate comments toward her.3 Therefore, the applicability of the statute of 23 24 25 26 27 28 State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.” 42 U.S.C. § 2000e-2(a)(1). 3 The complaint indicates that Judge Grund “made sexually explicit comments to deputy court clerk, juvenile defendants, and their parents.” It goes on to list three such comments: where he asked the clerk whether she “wanted her own judge”,“I’d like to see what your husband eats for lunch”, and a comment remarking that the recipient was not wearing pantyhose that day. (Doc. #22, Ex. D, at 3.) The complaint makes no other references to employment discrimination or sexual harassm ent. 5 1 limitations turns on whether the Commission is an “agency with authority to grant or seek 2 relief from [an unlawful employment] practice or to institute criminal proceedings with respect 3 thereto upon receiving notice thereof.”4 42 U.S.C. § 2000e-5(e)(1). The parties cite to no 4 authority, and the court is unable to locate any, that directly addresses this question. 5 Courts may consider enabling legislation that establishes state or local agencies to 6 determine whether an agency has the “authority to grant or seek relief.” MacDonald, 457 F.3d 7 at 1084-85 (citing EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 123, 108 S.Ct. 1666 8 (1988)). Under Nevada law, the Commission has exclusive jurisdiction over the “censure, 9 removal, involuntary retirement and other discipline of judges.” Nev. Rev. St. § 1.440. The 10 Commission originated from a 1976 amendment to the Nevada Constitution providing that “[a 11 judge] may, in addition to the provision of Article 7 for impeachment, be censured, retired, 12 removed or otherwise disciplined by the Commission on Judicial Discipline.” Nev. Const. Art. 13 VI, § 21. The Commission has the power to impose various forms of discipline for judicial 14 misconduct, including censure, removal, fines, suspension, and counseling. Id. at § 1.4677. 15 “Any person may bring to the attention of the commission any matter relating to the fitness of 16 a justice or judge.” Nev. Const. Art. VI § 21.7. 17 Based on the applicable the state law, the Commission is not an agency with subject 18 matter jurisdiction over unlawful employment practices within the meaning of § 706(e) of the 19 Act.5 20 antidiscrimination laws. Neither can it “seek” relief with respect to discriminatory practices, 21 such as by representing Torres in court, cooperating with enforcement authorities within the It lacks the ability to “institute criminal proceedings” based on state or federal 22 23 24 25 4 Because the powers to "grant" relief, "seek" relief, and "institute criminal proceedings" are disjunctively stated in the statutory language, the Commission need only possess one of these powers to satisfy the requirements for the 300-day rule. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 440 (4th Cir. 1998), abrogated on other grounds by Edelman v. Lynchburg College, 228 F.3d 503 (4th Cir. 2000). 5 26 27 28 The enabling legislation for NERC, however, indicates that its subject matter jurisdiction includes claims based on employment discrimination matters. See Nev. Rev. St. § 613.405. Defendants seem to assume that the jurisdiction of the Commission and NERC m ust be m utually exclusive, but this is not clear from the statutory language. It is therefore necessary to consider the jurisdiction of the Commission itself. 6 1 state, or mediating a settlement between the parties. See Tinsley v. First Union Nat'l Bank, 155 2 F.3d 435, 440 (4th Cir. 1998), abrogated on other grounds by Edelman v. Lynchburg College, 3 228 F.3d 503 (4th Cir. 2000). In some sense, the Commission can “grant” relief by disciplining 4 or removing a judge responsible for discriminatory conduct, thereby bringing some measure 5 of “relief” to a victim. But unlike the Nevada Equal Rights Commission (NERC), which is 6 considered a fair employment practices agency by the EEOC6, the Judicial Commission cannot 7 order the restoration of employment, back pay, annual leave time, sick time, or sick pay to an 8 aggrieved employee. See Nev. Rev. St. § 233.170. Other local agencies qualifying for the 300- 9 day statute of limitations have far greater powers to directly resolve employment 10 discrimination. See Tinsley, 155 F.3d at 440 (deferral agency had powers to investigate 11 complaints alleging discriminatory practices, hold hearings, make findings and 12 recommendations, attempt mediation, and cooperate with enforcement authorities on 13 prevention or relief); Crosslin v. Mountain States Telephone and Telegraph Co., 422 F.2d 1028 14 (1970) (deferral agency had power to issue cease and desist orders); Hadfield v. Mitre Corp., 15 562 F.2d 84 (1st Cir. 1977) (deferral agency had mediation powers). While judicial discipline 16 imposed by the Commission may end discriminatory conduct, this is not the sort of “relief” that 17 extends the statute of limitations for filing an employment discrimination complaint. 18 Congress’s purpose in adopting Title VII was to eliminate discriminatory employment 19 practices. This basic policy informs the construction of this remedial legislation. Mohasco 20 Corp. v. Silver, 447 U.S. 807, 818, 100 S.Ct. 2486, 2493 (1980). In a thorough analysis of the 21 legislative history, the Supreme Court noted that the purpose of the longer limitations period 22 was “to give state agencies an opportunity to redress the evil at which the federal legislation was 23 6 24 25 26 27 28 The EEOC has a designated list of fair em ployment practice (FEP) agencies with which it cooperates when processing discrimination charges. These agencies have coextensive jurisdiction with the EEOC to enforce state and local civil rights laws, and often work- and notice-sharing agreements as well. See EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 410 n. 15 (4th Cir.2005) (internal citations omitted). The standard for being designated an FEP agency is virtually identical to that for being a local antidiscrimination agency that triggers the 300-day limitations period. Com pare 29 C.F.R. § 1601.70(a) with 42 U.S.C. § 2000e-5(e)(1). The NERC is listed as an FEP agency; the Commission is not. See 29 CFR § 1601.74(a) (listing Nevada Commission on Equal Rights of Citizens as an FEP agency (now known as NERC)). 7 1 aimed, and to avoid federal intervention unless its need was demonstrated.” 447 U.S. at 821, 2 100 S.Ct. at 2494. Similarly, the Ninth Circuit has held that Congress intended to give each 3 state which establishes the proper administrative machinery a reasonable opportunity to deal 4 with alleged employment discrimination problems arising in that state before the EEOC 5 intervenes. E.E.O.C. v. Union Bank, 408 F.2d 867 (9th Cir. 1969) (citing 110 Cong.Rec. 13087). 6 The Commission lacks the administrative capacity to remedy employment 7 discrimination, as evidenced by its enabling legislation and limited remedial powers. Indeed, 8 by her own admission, Torres was not seeking protection of the federal or state civil rights laws, 9 which she erroneously believed were inapplicable to her grievances. Rather, she lodged her 10 complaint with the Commission for a different recourse – the sanctioning of Judge Grund 11 under the Code of Judicial Conduct. (Doc. #26 at 28.) The Commission’s limited purpose was 12 apparent to Torres herself from the preprinted language of the complaint form, which makes 13 no mention of employment discrimination, civil rights laws, or employment-related remedies.7 14 (Doc. #26, Ex. D.) Moreover, Torres evinced an awareness of the disciplinary function of the 15 Commission by complaining about conduct bearing no relationship to employment 16 discrimination, and because she did not deem it necessary to identify herself as the target of 17 the harassment in the complaint.8 18 It would therefore distort Congressional intent to find that the Commission was a local 19 antidiscrimination agency to which the extended limitations period is applicable. Had 20 Congress intended to allow a complainant a period of time to pursue any administrative 21 remedy to cure the effects of discrimination, it could have simply said so rather than limiting 22 23 24 25 26 27 28 7 The form also contains a warning that “filing of a complaint does not stay or stop any time I am provided to appeal a decision I disagree with or any decision that adversely affects m e.” (Doc. #26, Ex. D, at 1.) 8 For example, the complaint mentions the overuse of prescription medications while on the bench; allowing other court employees to falsely claim reimbursements and pay; convincing defendants to plead guilty; screaming at probation officers; and making inappropriate comments toward juvenile defendants. (Doc. #26, Ex. D, at 3.) M oreover, the portion of the com plaint where Torres complaints of "sexually explicit comments" mentions not only behavior exclusively directed toward her, but also comments directed to juvenile defendants and their defendants. Id. Besides identifying three sexual-based comments, Torres identifies none of the other forms of discrimination identified in her complaint, such as the retaliatory conduct and constructive discharge. 8 1 the agencies triggering the 300-day limitations period to those targeting discriminatory 2 employment practices. Allowing Torres to bring her claim would render this provision a nullity 3 and overrule the legislative judgment that “most genuine claims of discrimination would be 4 promptly asserted and that the costs associated with processing and defending stale or dormant 5 claims outweigh the interest in guaranteeing a remedy to every victim of discrimination.” 447 6 U.S. at 820; 100 S.Ct. at 2494. Therefore, the 180-day statute of limitations bars Torres’s 7 claim. 8 To overcome the statute of limitations, Torres argues that her claim should be subject 9 to equitable tolling. The doctrine of equitable tolling applies when “despite all due diligence, 10 a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Santa 11 Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) (citing Holmberg v. Armbrecht, 327 12 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946)). “If a reasonable plaintiff would not have 13 known of the existence of a possible claim within the limitations period, then equitable tolling 14 will serve to extend the statute of limitations for filing suit until the plaintiff can gather what 15 information he needs.” Id. “Equitable tolling is unavailable in most cases” because of the “high 16 hurdle” to its application. Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir.2002) (internal 17 quotation marks and citation omitted). The Ninth Circuit recognizes equitable tolling in two 18 instances: (1) when the defendant's wrongful conduct or (2) extraordinary circumstances make 19 it impossible for the plaintiff to timely assert a claim. Forti v. Suares-Mason, 672 F.Supp. 1531, 20 1549 (N.D.Cal.1987). “Wrongful conduct” consists of a defendant's fraudulent concealment of 21 relevant facts without any fault or lack of due diligence by the plaintiff. Holmberg, 327 U.S. 22 at 396-97, 66 S.Ct. 582. “Extraordinary circumstances” are those in which external forces 23 beyond a plaintiff's control prevent a plaintiff from bringing his claim. Osbourne v. United 24 States, 164 F.2d 767 (2d Cir. 1947). A Title VII plaintiff has the burden of demonstrating 25 entitlement to equitable tolling. Scholar v. Pacific Bell, 963 F.2d 264, 266 (9th Cir.1992). 26 Torres argues that equitable tolling should apply because (1) Judge Pederson informed 27 her that judges were not covered under the anti-discrimination policy; (2) she reasonably 28 believed that the Commission had exclusive jurisdiction over her allegations; and (3) she was 9 1 unable to secure counsel until she had the sufficient funds. Taking the evidence offered in a 2 light most favorable to Torres, the court finds that she has failed to create a “genuine issue of 3 material fact” of extraordinary circumstances or wrongful conduct that made it “impossible” 4 for her to file within the statutory period. Plaintiff’s reliance on the alleged misstatement 5 concerning the antidiscrimination policy does not rise to the level of “wrongful conduct” 6 sufficient to invoke equitable tolling. As a threshold matter, this statement did not conceal the 7 facts underlying Plaintiff’s claim. Moreover, Torres does not claim that this was “wrongful” in 8 the sense that the speaker was deliberately attempting to mislead Plaintiff. Finally, Plaintiff 9 was still obligated to exercise due diligence with respect to preserving her legal rights. She had 10 notice of the filing requirements through informational posters in her workplace, contact 11 information for an Equal Employment officer assigned to her workplace, and underwent 12 training regarding the antidiscrimination policy. Plaintiff was also advised by an attorney to 13 secure counsel regarding her complaints as early as 2005. (Doc. #26, Ex. O at 178, 180.) In 14 fact, Plaintiff represented that she had retained an attorney when making a written complaint 15 to the office in September 2006. (Id. at Ex. P.) 16 Similarly, Plaintiff’s erroneous belief in the exclusive jurisdiction of the Commission – 17 a mistake of law – is not a sufficient basis for equitable tolling. See Mahar v. City of Portland, 18 2005 WL 465428, at *11 (D.Or. February 28, 2005) (“Ignorance of the law, as opposed to 19 ignorance of the facts which form the basis of the claim, is simply not a basis to apply the 20 doctrine of equitable tolling.”) (citing Wisley v. Martinez, 1995 WL 463670, at *2 (N.D.Cal. 21 July 17, 1995)). Neither does the mere fact that Torres was unable to hire an attorney sooner, 22 as a financial constraint does not rise to the level of an “extraordinary” obstacle beyond her 23 control that made it “impossible” to file a charge with the EEOC. Accordingly, Plaintiff has not 24 proven that she is entitled to equitable tolling. Because the court determines that Plaintiff did 25 not timely file her complaint with the EEOC before the expiration of the 180-day statute of 26 limitations, it grants Defendants’ motion for summary judgment dismissing Counts 1, 2, and 27 3 of her complaint. 28 /// 10 1 II. PLAINTIFF’S REMAINING CLAIM 2 In her fourth and final claim, Torres pleads a state law tort theory of negligence against 3 Defendant. “If the federal claims are dismissed before trial, even though not insubstantial in 4 a jurisdictional sense, the state claims should be dismissed as well.” United States of America 5 v. Gibbs, 383 U.S. 715, 726 (1966); see also 28 U.S.C. § 1367(a). Because no federal claims 6 remain in this action, the remaining state law claim should be dismissed. 7 8 9 10 11 IV. CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (Doc. #20) is GRANTED. LET JUDGMENT ENTER ACCORDINGLY. DATED: March 31, 2009. 12 13 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11