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September 5, 1997

GERALD J. GROMKO, et al., Defendants.

The opinion of the court was delivered by: INFANTE


 On July 7, 1997, Defendants Gerald J. Gromko and the County of Monterey ("the County") filed a motion for summary judgment. Plaintiff opposed the motion. For the reasons set forth below, Defendants' motion is GRANTED.


 Plaintiff's First Amended Complaint (the "FAC") alleges that Plaintiff was discriminatorily discharged on the basis of race, national origin and/or disability from his employment as a maintenance worker for the Monterey County Public Works Department ("the Public Works Department"). The FAC attempts to state claims against Defendants under (1) 42 U.S.C. §§ 2000e et seq. ("Title VII"); (2) Cal. Gov't Code §§ 12900 et seq. (the "Fair Employment and Housing Act" or "FEHA"); (3) 42 U.S.C. § 1983 ("§ 1983"); *fn1" (4) 42 U.S.C. § 1981 ("§ 1981); (5) 42 U.S.C. §§ 12101 et seq. (the "Americans with Disabilities Act" or "ADA"); and (6) the common and statutory law and the Constitution of the State of California (the "non-FEHA state law claims"). *fn2" Defendants contend that Plaintiff was terminated because he threatened to kill his three supervisors at the Public Works Department -- Ronald Lundquist, Don Collins and Ray Fultz.

 Pursuant to a Memorandum of Understanding ("MOU") between the County and the Service Employees' Union, the employment dispute between Plaintiff and the County was submitted to arbitration. On November 14, 1996, the arbitrator issued a written decision containing findings of fact and concluding that Defendants' termination of Plaintiff was justified. See Declaration of William K. Rentz in Support of Defendants' Motion for Summary Judgment ("Rentz Declaration") at Ex. A. Plaintiff filed this action in federal court on July 15, 1996, prior to the arbitration.

 The following facts, which Plaintiff does not appear to dispute, are contained in the arbitration decision, except where otherwise indicated: *fn3"

if I had a gun and these three individuals; [sic] Lundquist, Don Collins and Ray Fultz were in front of me, if I owned a gun for them discriminating against me and harassing me is what I said, I would have shot them.

 See Declaration of J. Michael Hogan in Reply to Plaintiff's Opposition to Motion for Summary Judgment ("Hogan Declaration") at Ex. A [excerpt of transcript of Plaintiff's July 24, 1997 deposition]. After speaking with Plaintiff, Dr. Harrison contacted the Greenfield Police Department and reported that Plaintiff had made threats against his supervisors. See Arbitration Decision at 6. Dr. Harrison further recommended that Plaintiff be taken to a mental health facility and placed on a 72-hour hold. See id.

 In response to Dr. Harrison's report, Greenfield Police Officer Mike Shannon was dispatched to Plaintiff's residence. See id. Plaintiff told Officer Shannon that "he was going to, go quote, postal. Get a .09 millimeter, go to Monterey and kill someone." See Declaration of James Moore King in Opposition to Defendants' Motion for Summary Judgment ("King Declaration") at Ex. 1 at 29:18-19 [excerpt of transcript of arbitration testimony of Mike Shannon]; Arbitration Decision at 7. Although Plaintiff did not expressly reference his three supervisors in Officer Shannon's presence, Officer Shannon understood Plaintiff's statement to refer to Plaintiff's employers. See King Decl. at Ex. 1 at 29:21-22. Officer Shannon persuaded Plaintiff to go voluntarily to the mental health unit of Natividad Hospital. See id.

 At the Natividad Mental Health Unit, a mental health crisis team evaluated Plaintiff and placed him on a 72-hour hold. See Arbitration Decision at 7. The team concluded that Plaintiff's threats were sufficiently credible to require warnings to potential victims in accordance with Tarasoff v. Regents of the University of Cal., 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976). See id. Accordingly a letter was sent from the Department of Public Health to Public Works Director Ron Lundquist. Copies of the Tarasoff warning letter also were sent to Ray Fultz and Don Collins, as well as to the Greenfield Police Department. See id. Although the mental health crisis team recommended that Plaintiff remain at the Natividad facility for an additional 14 days, Plaintiff was released several days after the 72-hour hold expired after a hearing officer determined that there was no evidence that Plaintiff's behavior was the result of a mental disorder. See id.

 On October 26, 1995, the County obtained a temporary restraining order in Monterey County Superior Court against Plaintiff barring Plaintiff from making any contact with any of the three supervisors or from entering Public Works Department premises. See Rentz Decl. at Ex. B [Restraining Order]. On December 15, 1995, Plaintiff was terminated from his employment with the Public Works Department. A termination letter sent to Plaintiff states that the discharge was "based on threats of physical violence" against his supervisors, and "continuing refusal or failure to observe the rules and regulations of the workplace." See Arbitration Decision at 3.


 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). However, the moving party has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S. Ct. at 2554.

 The burden then shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S. Ct. at 2553 (quoting Rule 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). Evidence that "is merely colorable, or is not significantly probative," is not sufficient to avoid summary judgment. Id. at 249-250, 106 S. Ct. at 2511.

 Summary judgment cannot be granted where a genuine dispute exists as to any material fact. Fed.R.Civ.P. 56(c). A "material" fact is one that might affect the outcome of the case under the applicable law. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the non-moving party. Id. In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. at 2513. Moreover, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] he is ruling on a motion for summary judgment." Id.



 Defendants contend that Plaintiff's federal statutory causes of action are precluded by the arbitration in this matter, which, according to the terms of the MOU, is to be "final and binding." See Rentz Decl. at Ex. C at §§ 28.1 & 28.2 [excerpt from MOU]. Defendants argue that Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974), in which the Supreme Court ruled that an employee's right to bring a Title VII action is not waived by inclusion of an arbitration clause in a collective bargaining agreement, has been overruled by Gilmer v. Interstate/Johnson Lane Co., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991). Defendants rely on the Fourth Circuit's decision to this effect in Austin v. Owens-Brockway Glass Container, Inc. 78 F.3d 875 (4th Cir.), cert. denied, U.S. , 136 L. Ed. 2d 330, 117 S. Ct. 432 (1996), a case arising under the Americans with Disabilities Act.

 Although Plaintiff does not appear to challenge Defendants' argument that Gilmer overruled Gardner-Denver, *fn4" the court declines to adopt the Fourth Circuit's analysis of these two Supreme Court cases. In Gilmer, the Supreme Court held that an agreement in a securities registration application to arbitrate statutory claims is enforceable against an employee. The Gilmer Court therefore concluded that the plaintiff's claim under the Age Discrimination in Employment Act was subject to mandatory arbitration as provided for in the application, which formed part of the employment contract between the plaintiff and the defendant. Primarily relying on this holding in Gilmer, the Fourth Circuit concluded in Austin that:

whether the dispute arises under a contract of employment growing out of a securities registration application, a simple employment contract, or a collective bargaining agreement, [where a voluntary] agreement has . . . been made to arbitrate the dispute . . ...

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