The opinion of the court was delivered by: PECKHAM
ROBERT F. PECKHAM, UNITED STATES DISTRICT JUDGE
This matter comes before the court on defendants' second motion for summary judgment. Plaintiff, a black man, has brought suit against the County of San Mateo ("County") and individual defendants Donati, Frimmersdorf, Fagetti, and McCreadie under 42 U.S.C. § 2000e ("Title VII"), 42 U.S.C. §§ 1981, 1983, and 1985, and the California Fair Employment and Housing Act (California Government Code § 12900 et seq., hereinafter "FEHA"), alleging that Defendants subjected him to racially motivated discrimination and harassment in his employment in the San Mateo County Probation Department. Specifically, plaintiff alleges that he was denied promotions, involuntarily transferred to San Mateo County's Hillcrest Juvenile Hall facility, subjected to significantly higher levels of scrutiny than other employees, required to take excessive amounts of job retraining courses, given falsely negative performance evaluations, and otherwise subjected to discriminatory working conditions, all on the basis of his race and as retaliation for lodging earlier complaints of race discrimination.
By order dated October 3, 1989, this court granted in part and denied in part defendants' first motion for summary judgment. Specifically, the court granted summary judgment on statute of limitations grounds on that portion of plaintiff's FEHA claim rooted in a 1986 complaint filed with the California Department of Fair Employment and Housing ("DFEH"). We granted summary judgment on the portion of plaintiff's § 1983 claim based on events occurring before January 3, 1988, also on statute of limitations grounds. These rulings served to narrow the scope of these claims factually, but otherwise left the claims intact. The individual defendants' motion for summary judgment on plaintiff's Title VII and FEHA claims was denied, as was the motion by all defendants for summary judgment on the portion of plaintiff's Title VII claim rooted in his 1986 complaint to the Equal Employment Opportunity Commission ("EEOC").
Defendants now move for summary judgment a second time on the following grounds. First, defendants argue that the court should grant summary judgment in their favor on plaintiff's Title VII claim. They advance two separate arguments in favor of this motion. First, defendants allege that the discovery process has produced no evidence of either race-based disparate treatment of plaintiff or disparate impact of Probation Department policies on black employees. Second, defendants also argue that discovery has produced no evidence that the employment decisions forming the basis of plaintiff's complaint were made in retaliation for his prior complaints of race discrimination.
Next, defendants move for summary judgment on plaintiff's claims under 42 U.S.C. §§ 1981, 1983, and 1985, arguing that these claims are precluded by plaintiff's Title VII claim.
Third, defendants move for summary judgment on plaintiff's § 1981 claim on several grounds. Defendants argue first that discovery has produced no evidence that plaintiff was denied his right to make or enforce a contract on the basis of his race, as they contend is required by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), in order to maintain a § 1981 claim. Also, they argue that the court should find that the statute of limitations for § 1981 claims is one year, requiring that any portion of plaintiff's claim rooted in events occurring more than one year before the filing of this action should be dismissed. Further, defendants assert that plaintiff's § 1981 claim should be dismissed on the grounds that § 1981 affords no remedy for racial discrimination by public actors.
Defendants next move for summary judgment on plaintiff's claim under 42 U.S.C. § 1983, arguing that discovery has produced no evidence of either race discrimination or of an unconstitutional policy or custom.
Alleging that discovery has produced no evidence of a conspiracy to deprive plaintiff of his civil rights, defendants further argue that summary judgment should be granted on his claim under 42 U.S.C. § 1985.
Finally, defendants move for summary judgment on plaintiff's FEHA claim, again on the basis of their allegation that no facts have emerged in discovery showing that plaintiff was discriminated against on the basis of race.
Plaintiff opposes defendants' motion for summary judgment. This matter has been submitted to the court for decision on the papers. Because our order of October 3, 1989, contained a full discussion of the facts of this case, the court will not reiterate the essential facts underlying the claim at this time. Where relevant to determination of the motion before us, however, we will discuss below any new facts which have come to light during the discovery process.
A. Standard for Granting Summary Judgment.
Federal Rule of Civil Procedure 56(c) provides for the granting of summary judgment where there is no triable issue of material fact and where the moving party is entitled to summary judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). However, once the moving party has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, Federal Rule of Civil Procedure 56(e) shifts to the non-moving party the burden of presenting specific facts showing that such contradiction is possible. British Airways Board v. Boeing Co., 585 F.2d 946, 950-52 (9th Cir. 1978), cert. denied, 440 U.S. 981, 99 S. Ct. 1790, 60 L. Ed. 2d 241 (1979).
A party opposing summary judgment may not rest upon the mere allegations or denials in its pleadings. Rather, its responses, either by affidavits or otherwise as provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere "scintilla" of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
The question is whether reasonable minds could differ as to the import of the evidence. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288 (9th Cir. 1987). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Id. at 1288. The non-moving party's evidence is to be taken as true and all inferences are to be drawn in the light most favorable to the non-moving party. Id. at 1289.
B. Motion for Summary Judgment on Title VII Claim.
Defendants contend that plaintiff's Title VII claim should be dismissed because the discovery process has produced no facts to support a Title VII race discrimination claim based on either a disparate treatment or a disparate impact theory. Defendants also argue that discovery has produced no evidence supporting a Title VII claim based on retaliation for plaintiff's prior race discrimination complaints. The court will consider each of these contentions in turn.
i. Disparate Treatment Theory.
In arguing that plaintiff has not presented facts to support a disparate treatment theory, defendants rely upon International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36, n. 15, 52 L. Ed. 2d 396, 97 S. Ct. 1843, 1854 (1977). In that case, the Supreme Court noted that proving a violation of Title VII under a disparate treatment theory requires proof of discriminatory motive; proof of discriminatory motive may be either by direct proof or by inference "from the mere fact of differences in treatment." Id. At the summary judgment stage of proceedings, proof of disparate treatment sufficient to raise an inference of discriminatory motive requires plaintiff to "adduce facts which, if believed, could generate the inference. . . ." Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985).
Defendants argue that plaintiff has failed to raise a genuine question of material fact regarding the discriminatory motives of the county or of any of the individual defendants, either by direct proof or through inference. In response, plaintiff refers the court to his deposition, a declaration submitted by him to the court, and determinations on prior race discrimination complaints filed by plaintiff with the San Mateo County Civil Service Commission and the EEOC. Having reviewed these portions of the record, the court finds evidence sufficient to raise a genuine question of material fact regarding disparate treatment and discriminatory motive. This evidence is sufficient to allow plaintiff to maintain his Title VII claim against the county and each of the individual defendants.
Plaintiff's declaration details the unusual level of scrutiny and evaluation he was subjected to, both before and after his involuntary transfer to the Hillcrest facility. Before his transfer, plaintiff notes that, unlike any other employees, he was subjected to intensive ...