Exhibit 16 to the Declaration of William Maddox.
Plaintiff alleges that defendants took adverse action against him in retaliation for these protected activities; he pleads the following specific instances of adverse action. Plaintiff asserts that defendants Frimmersdorf, McCreadie, and Fagetti at various times gave plaintiff falsely negative performance evaluations.
Declaration of William Maddox at paras. 17-18. He asserts that defendant Frimmersdorf, with the approval of defendant Donati, involuntary transferred plaintiff to the Hillcrest facility. Id. at P 15. Further, plaintiff provides evidence of what he asserts were unwarranted disciplinary actions taken against him, such as a ten-day suspension implemented by defendant Donati in 1983. See, e.g., Exhibit 7 to Declaration of William Maddox. Also, he asserts that his requests to transfer from the graveyard shift to a more desirable shift were repeatedly denied in retaliation for his complaints.
Defendants offer as a non-discriminatory reason for the negative performance evaluations and disciplinary action plaintiff's alleged incompetence. See, e.g., Affidavit of Don McCreadie at paras. 4-5. In response to plaintiff's charge that he was transferred to Hillcrest in retaliation for his complaints and assigned undesirable duties once there, defendants again offer the explanation of his supervisors' frustration with plaintiff based on his alleged incompetence and the fact that plaintiff "made unfounded complaints of racism."
Memorandum in Support of Motion for Summary Judgment at 10.
The court finds that a question of material fact remains for trial regarding the causal link between plaintiff's numerous complaints of race discrimination and the adverse employment actions taken against plaintiff by defendants. We further find that a question of fact remains regarding whether the non-discriminatory reasons proffered by defendants to explain the adverse action were merely pretextual: while defendants assert that plaintiff was an incompetent employee, they present as evidence of the alleged incompetence performance evaluations which plaintiff asserts were discriminatorily motivated. This factual dispute is one for the trier of fact. Further, as noted above, defendants knew of at least some of plaintiff's protected activities.
In sum, we find that plaintiff has presented evidence such that a reasonable jury could draw an inference of retaliatory motive. Accordingly, defendants' motion for summary judgment on plaintiff's claim for retaliation under Title VII must fail and is hereby DENIED.
C. Motions for Summary Judgment on §§ 1981, 1983, and 1985 Claims.
We next consider defendants' motions for summary judgment on plaintiff's claims for violation of 42 U.S.C. §§ 1981, 1983, and 1985. Defendants argue that they are entitled to summary judgment as a matter of law on these claims because the claims are precluded by plaintiff's suit under Title VII. Summary judgment having been denied on plaintiff's Title VII claim, this line of argument remains relevant. Should we determine that defendants' preclusion arguments are meritorious, consideration of defendants' other arguments in favor of summary judgment on the §§ 1981, 1983, and 1985 claims becomes unnecessary.
i. § 1981 Claim.
Defendants argue that plaintiff's § 1981 claim should be precluded by his pursuit of a Title VII remedy. As authority for this proposition, defendants cite only to Sosa v. Hiraoka, 714 F. Supp. 1100 (E.D.Cal. 1989). In that case, the court relied on a Colorado district court's interpretation, affirmed by the Tenth Circuit, of Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975), to hold that "when a plaintiff brings a Title VII claim and a § 1981 claim in the same action, the plaintiff is not entitled to remedies beyond those available under Title VII unless an independent basis for the § 1981 claim can be established." 714 F. Supp. at 1105.
Going directly to the controlling authority of Johnson v. Railway Express Agency itself, we cannot agree that it dictates this holding. In deciding that the filing of a Title VII complaint with the EEOC did not toll the statute of limitations for filing a claim under § 1981, the Supreme Court found that the relief afforded by the two statutes was not entirely coextensive. We believe that it significantly overstates the holding of Johnson, however, to infer from this that the two statutes are mutually exclusive. Indeed, the Johnson Court wrote,
Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief. 'The legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.' 421 U.S. at 459, 95 S. Ct. at 1719, 44 L. Ed. 2d 295, citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 39 L. Ed. 2d 147, 94 S. Ct. 1011, 1019 (1974).
The court finds as a matter of law that plaintiff's pursuit of relief under Title VII does not preclude his maintaining a claim under 42 U.S.C. § 1981. Therefore, defendants' motion for summary judgment on the § 1981 claim on these grounds is DENIED.
ii. § 1983 Claim.
Defendants next argue that plaintiff's claim under 42 U.S.C. § 1983 is precluded by his pursuit of a claim under Title VII. The law of this circuit is otherwise. In Roberts v. College of the Desert, 870 F.2d 1411 (9th Cir. 1988), the issue was squarely decided when the court held, "We agree with the reasoning of those courts that have held that Title VII does not preempt an action under section 1983 for a violation of the fourteenth amendment." 870 F.2d at 1415.
Therefore, defendants' motion for summary judgment on the § 1983 claim on preclusion grounds is DENIED.
iii. § 1985 Claim.
The Supreme Court in Great American Federal S. & L. Assn. v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979), held that a conspiracy to deprive a plaintiff of rights created by Title VII cannot form the basis for a cause of action under 42 U.S.C. § 1985(c). 442 U.S. at 378, 99 S. Ct. at 2352. In order to make out a § 1985 claim, plaintiff must allege that defendants conspired to deprive him of equal protection of the laws or of equal privileges and immunities under the laws. Id. at 372, 99 S. Ct. at 2349, citing Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). An allegation that defendants conspired to commit violations of Title VII -- i.e., conspired to discriminate against plaintiff in his employment or to retaliate against him for protected activities -- is insufficient to make out a § 1985 claim. Id. See also, Roberts v. College of the Desert, 870 F.2d at 1415; Cleghorn v. Herrington, 813 F.2d 992, 995 (9th Cir. 1987).
Plaintiff's response to defendants' argument focuses on the conspiracy element of § 1985. Plaintiff argues that Novotny merely prohibits basing a § 1985 claim on independent instances of employment discrimination prohibited by Title VII. Plaintiff appears to argue, however, that a conspiracy to violate Title VII can form the basis of a § 1985 claim. As just indicated, we read Novotny differently.
A review of plaintiff's complaint in this action reveals that his claims involve allegations of employment discrimination only. No conspiracy to deprive plaintiff of equal protection of the laws or equal privileges and immunities in the sense required by Novotny is alleged in the complaint or apparent from the facts pled in opposition to defendants' motion for summary judgment. We are therefore compelled to find that plaintiff has failed to allege a valid basis for a claim under § 1985. Accordingly, summary judgment on plaintiff's § 1985 claim is hereby GRANTED.
D. Motion for Summary Judgment on § 1981 Claim.
Defendants next move for summary judgment on plaintiff's § 1981 claim on several grounds, which we will address in the following order. First, they argue that plaintiff's § 1981 claim must fail in light of the requirement announced by the Supreme Court in Patterson v. McLean Credit Union that plaintiff show discrimination in the making rather than the enforcement of a contract. Next, they argue that the § 1981 claim must fail because that statute affords no remedy for discrimination by a public actor such as the County. Finally, defendants move for partial summary judgment, arguing that the applicable statute of limitations requires us to limit plaintiff's § 1981 claim to events occurring within one year of the filing of this action.
i. Patterson Argument.
Defendants contend that plaintiff's claim fails under the reasoning of Patterson v. McLean Credit Union. While declining to overrule Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), the Patterson Court held that only the making and enforcement of a contract and not post-formation racial discrimination are actionable under § 1981. 105 L. Ed. 2d at 147. Defendants argue that plaintiff has alleged only post-formation discrimination. Without alleging discrimination in contract formation, plaintiff, they contend, cannot satisfy the Patterson standard for making out a § 1981 claim.
Plaintiff responds that discriminatory failure to promote is comprehended within Patterson's definition of discrimination in contract formation. This is true where the promotion is such that it effectively amounts to "an opportunity for a new and distinct relation between the employee and the employer." 105 L. Ed. 2d at 156. Finding that the question was not really before the Court because the employer did not challenge the cognizability of the employee's promotion claim, the Patterson Court declined to elaborate on the meaning of this phrase. Id.
Plaintiff contends that the various promotions which he alleges he was discriminatorily denied would have been opportunities for a new and distinct relation with the county. We find that this constitutes a genuine question of material fact for trial of this matter; therefore, defendants' motion for summary judgment based on the reasoning of Patterson is hereby DENIED.
ii. Public Actor Argument.
Defendants next contend that plaintiff may not bring an action against a public actor under § 1981. They cite to Jett v. Dallas Independent School District, 491 U.S. 701, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989) for the proposition that § 1983 is the exclusive remedy for race discrimination claims brought against public entities.
Defendants misread Jett. The Supreme Court in Jett held that § 1981 does not create a damages remedy against public actors broader than that given by § 1983. Specifically, the Court held that plaintiffs could not circumvent the limitations on municipal liability made applicable to § 1983 by Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), by bringing a § 1981 claim against a municipality under a respondeat superior theory. In order to properly plead a § 1981 claim against a municipality, a plaintiff is now required by Jett to allege that "the violation of his 'right to make contracts' protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases." 109 S. Ct. at 2722. Jett does not hold, as defendants contend, that § 1981 claims are no longer cognizable against public actors.
Therefore, we find defendants' argument unpersuasive; their motion for summary judgment on the § 1981 claim on these grounds is DENIED.
iii. Statute of Limitations.
Defendants next move for partial summary judgment on the § 1981 claim on statute of limitations grounds. They argue that Goodman v. Lukens Steel, 482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987), requires that we apply a one-year statute of limitations to § 1981 claims. Goodman held that state statutes of limitations governing personal injury claims apply to claims under § 1981. 96 L. Ed. 2d at 582. California has a one-year statute of limitations for personal injury claims. Cal.Civ.Proc.Code § 340(3). Therefore, defendants' motion for partial summary judgment on plaintiffs' § 1981 claim is hereby GRANTED: plaintiff may maintain the § 1981 claim only as to events occurring within one year prior to the filing of this action on January 3, 1989.
E. Motion for Summary Judgment on § 1983 Claim.
Defendants make two arguments in support of their motion for summary judgment on plaintiff's § 1983 claim. First, they argue that the claim must fail as against all of the defendants because discovery has produced no factual evidence of discrimination. Based on the factual record discussed in detail in Section III(B)(i) above, the court has determined that a question of fact indeed remains regarding the discrimination question. Therefore, we will not grant summary judgment based on that theory.
Defendants next argue that discovery has failed to produce evidence of a discriminatory custom or policy by the County. Defendants argue that the § 1983 claim must fail as against the County, because in the absence of such evidence municipalities cannot be held liable for violation of § 1983 under the reasoning of Monell v. New York City Dept. of Social Services and Pembaur v. Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986).
Monell held that local governments could not be held liable for violation of § 1983 on a respondeat superior theory. Rather than basing local government liability on a showing of a violation by a municipal employee, the alleged deprivation of constitutional rights suffered by the plaintiff must result from an unconstitutional custom or policy of the local government itself. 436 U.S. at 690, 98 S. Ct. at 2035. Pembaur elaborated this holding, stating that the individual official responsible for the deprivation must possess "final authority to establish municipal policy with respect to the action ordered." 475 U.S. at 481, 106 S. Ct. at 1299. Whether an official has final decision-making authority is a question of state law. Id. at 483, 106 S. Ct. at 1300.
The County argues that only the County Board of Supervisors has final decision-making authority regarding County matters, including employment policy. It provides a copy of the County charter as evidence of this fact. Exhibit E to the Declaration of Deborah P. Bennett. Plaintiff does not dispute that the Board of Supervisors is the relevant final decision-maker for purposes of the § 1983 inquiry. The County then provides the declaration of Mary Griffin, President of the Board of Supervisors, stating that the county has no policy or custom of race discrimination, and indeed that the County follows an affirmative action policy in hiring.
Plaintiff argues that the County in effect validated the alleged discrimination, having been put on notice of it by plaintiff's 1986 complaint to the San Mateo County Civil Service Commission and having taken no action to remedy the situation. As a matter of law, however, this argument is insufficient to overcome the County's argument that no custom or policy resulting in discrimination against plaintiff existed. Pembaur makes clear that, assuming arguendo that the County was on notice by virtue of plaintiff's 1986 complaint,
an affirmative decision by the Board of Supervisors would nevertheless be required to establish a custom or policy. In Pembaur, the Supreme Court held that municipal liability under § 1983 attaches "where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." 475 U.S. at 483, 106 S. Ct. at 1300. The court sees no evidence in the record of the County participating in any affirmative decision to discriminate. Therefore, finding that the requirements of Monell and Pembaur are not satisfied, we hereby GRANT summary judgment in favor of the County on plaintiff's claim for violation of § 1983.
F. Motion for Summary Judgment on FEHA Claim.
Finally, defendants move for summary judgment on plaintiff's claim for violation of the California Fair Employment and Housing Act ("FEHA"), California Government Code § 12900 et seq., arguing that discovery has produced no evidence of employment discrimination.
Because we found, as discussed in detail in section III(B)(i), that there is a question of fact regarding race discrimination, summary judgment on the FEHA claim is hereby DENIED.
For the foregoing reasons, the court has ruled as follows on defendants' motion for summary judgment on plaintiff's claims:
The motion for summary judgment on plaintiff's Title VII claim is DENIED.
The motion for summary judgment on plaintiff's § 1981 claim is DENIED. However, the motion for partial summary judgment on statute of limitations grounds is GRANTED. Plaintiff may maintain the § 1981 claim only as to events occurring within one year prior to the filing of this action on January 3, 1989.
The motion for summary judgment on plaintiff's § 1983 claim is DENIED as to the individual named defendants but GRANTED as to the County of San Mateo.
The motion for summary judgment on plaintiff's § 1985 claim is GRANTED.
The motion for summary judgment on plaintiff's FEHA claim is DENIED.
IT IS SO ORDERED.