rights are present in this action in that (1) the union, not Plaintiff individually, negotiated and agreed to the arbitration clause; and (2) by the terms of the MOU, only the union, on behalf of an affected employee, may seek arbitration.
Third, Defendants do not suggest that Plaintiff's claims are subject to the FAA.
Therefore, for the foregoing reasons, the court finds that the instant action is governed by Gardner-Denver, and concludes that Plaintiff's federal statutory causes of action are not precluded by the arbitration decision.
B. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE MERITS OF PLAINTIFF'S CLAIMS UNDER TITLE VII, FEHA, THE ADA, AND § 1981 IS GRANTED
Defendants also move for summary judgment on the merits of Plaintiff's claims under Title VII, FEHA, the ADA and § 1981. Claims of employment discrimination under FEHA and the federal anti-discrimination statutes (here, Title VII, the ADA and § 1981) are subject to a shifting burden analysis. The plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant to produce evidence of a legitimate, non-discriminatory motive for the action of which the plaintiff complains. If the defendant carries this burden of production, then the plaintiff must demonstrate that the legitimate reasons offered by the defendant are not the true reasons, but a pretext for discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (discussing McDonnell Douglas "shifting burden" standard); Bradley v. Harcourt, Brace & Co., 104 F.3d 267 (9th Cir. 1996) (analyzing Title VII, ADA and FEHA claims under shifting burden analysis); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985) (Title VII standards are used to prove § 1981 claim of employment discrimination), op. amended, 784 F.2d 1407 (9th Cir. 1996). Evidence that a defendant's proffered reasons for termination are not credible, together with the elements of a prima facie case, provides a sufficient legal basis upon which the trier of fact may infer that the termination was discriminatory (although it does not compel such a conclusion). See St. Mary's Center, 509 U.S. at 511 & n.4.
Defendants do not raise an issue on this motion as to whether Plaintiff can make out a prima facie case of discrimination. Rather, Defendants focus exclusively on their justification for terminating Plaintiff.
Defendants contend that the ground for discharge was that Plaintiff threatened to take the lives of his supervisors in the Public Works Department, and that this justification is supported by the following evidence: (1) Plaintiff's statements to Officer Shannon wherein Plaintiff threatened to kill someone (see King Decl. at Ex. 1 at 29:18-19); (2) Plaintiff's testimony in his deposition that he told Dr. Harrison that he would have shot his supervisors if he had a gun (see Hogan Decl. at Ex. A); and (3) the written decision of the arbitrator in Defendants' favor, which includes, inter alia, a finding of fact that public health authorities issued Tarasoff warning letters to Plaintiff's supervisors (see Rentz Decl. at Ex. A).
As noted above, the written decision of the arbitrator, upon which Defendants primarily rely, is admissible evidence. See Supra at 2 n.3. The decision constitutes evidence of non-discriminatory reasons sufficient to shift the burden to Plaintiff to come forward with evidence that the reasons given were pretextual.
Plaintiff submits no direct evidence of discrimination by Defendants nor evidence regarding the treatment of other non-Hispanic and/or non-disabled workers from which the court might infer discrimination. Rather, Plaintiff contends only that the justification proffered by Defendants is not credible on its face. See St. Mary's Center, 509 U.S. at 511 & n.4 (evidence that defendant's proffered reasons for termination are not credible provides sufficient legal basis upon which trier of fact may infer termination was discriminatory). In support of this argument, Plaintiff submits the following evidence that Defendants did not perceive Plaintiff's threats as real, and, therefore, termination based on those alleged threats was a pretext:
(1) Beth Wallace, a secretary at the Public Works Department, testified at the arbitration that she spoke with Plaintiff on October 20, 1995, and that Plaintiff said he could kill somebody but that he wouldn't kill her. See King Decl. at Ex. 1 at 18:17-21. She also confirmed that, in a prior statement, she said that Plaintiff told her he wasn't going to do "anything like that because he was not that kind of person, and he wouldn't hurt me because he didn't even know me." Id. at 20:25-21:5.
(2) Officer Shannon testified that Plaintiff, when talking to Officer Shannon, did not threaten any particular person in Shannon's presence, but that Shannon inferred that Plaintiff meant to threaten his supervisors. Id. at 29:13-22.
(3) Ray Fultz testified that he believed he was physically threatened based on the receipt of the Tarasoff warning, not because of any direct statement made to him by Plaintiff. Id. at 58:16-59:7.
(4) Jim Machado, a road worker, testified that Don Collins told him and other workers that he did not view Plaintiff as a threat. Id. at 85:24-86:4.
(5) In his statement to Dr. Harrison, Plaintiff stated that if he had a gun, he would shoot, or would have shot, his supervisors.
With respect to Ms. Wallace's testimony, the court surmises that Plaintiff is contending that Plaintiff's statement to Ms. Wallace that "he was not that kind of person" can be understood to mean that he is not the kind of person who would kill anyone, and that, therefore, Defendants could not have viewed Plaintiff's statements as threats. Even accepting Plaintiff's view that this statement can be viewed as somehow mitigating the seriousness of Plaintiff's threats, there is no evidence that this statement made by Plaintiff to Ms. Wallace, a secretary at the Public Works Department, was ever relayed to Defendants or any other decision-maker involved in Plaintiff's termination. Therefore, Defendants cannot be charged with knowledge of this supposedly "mitigating" statement.
With respect to Officer Shannon's testimony, while it is true that Officer Shannon testified that Plaintiff did not name his supervisors when, in Officer Shannon's presence, Plaintiff made threats to kill someone, this testimony does nothing to call into question Plaintiff's own deposition testimony that he indeed threatened his supervisors by name when speaking to Dr. Harrison.
With respect to Mr. Fultz's testimony, the fact that Mr. Fultz learned of Plaintiff's threat via a Tarasoff warning letter as opposed to being personally confronted by Plaintiff is immaterial. Mr. Fultz testified that the felt threatened by Plaintiff.
With respect to Mr. Machado's testimony that Don Collins stated that he did not feel threatened by Plaintiff, as with Ms. Wallace's testimony, there is no evidence that Mr. Collins -- one of three threatened supervisors -- was a decision-maker with respect to Plaintiff's termination, or that his statement was relayed to any decision-maker.
With respect to Plaintiff's statement that he would shoot his supervisors if he had a gun, Plaintiff contends that, because the statement is qualified with the word "if," it cannot be perceived as a real threat because Plaintiff did not have the instrumentality to carry out the threat. Contrary to plaintiff's suggestion, a reasonable trier of fact could not find that, simply because Plaintiff did not possess a gun at the moment he uttered his threat to Dr. Harrison, the threat could not have been perceived as real. Indeed, the mental health crisis team at Natividad Hospital, neutral third parties in the incident, viewed Plaintiff's threats as serious enough to warrant detention of Plaintiff for three days and Tarasoff warning letters to Plaintiff's supervisors.
At best, the evidence presented by Plaintiff constitutes a "scintilla" of evidence in Plaintiff's favor which is not sufficient to withstand summary judgment. See Anderson, 477 U.S. at 252. Therefore, because Plaintiff has not met his burden of coming forward with evidence of discrimination upon which a reasonable trier of fact could find in his favor, Defendants' motion for summary judgment on Plaintiff's claims under Title VII, FEHA, the ADA and § 1981 is GRANTED.
C. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE MERITS OF PLAINTIFF'S CLAIMS UNDER § 1983 AND THE NON-FEHA STATE LAW CLAIMS IS GRANTED
Defendants also move for summary judgment on the merits of Plaintiff's discrimination claims under § 1983 and the non-FEHA state law claims. In order to shift the burden to Plaintiff of coming forward with evidence on these claims, Defendants need only point out an absence of evidence of discrimination. Defendants' evidence of neutral justification for the decision to terminate Plaintiff (see supra at 10) goes further than merely pointing out an absence of evidence -- it constitutes some affirmative evidence that Defendants terminated Plaintiff for a non-discriminatory reason.
As discussed above, Plaintiff has not come forward in response with sufficient evidence upon which a reasonable jury could that Plaintiff's termination was discriminatory motivated. Therefore, Defendants' motion for summary judgment on Plaintiff's discrimination claims under § 1983 and the non-FEHA state law claims is GRANTED.
D. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE MERITS OF PLAINTIFF'S FIRST AMENDMENT CLAIM UNDER § 1983 IS GRANTED
Defendants also move for summary judgment on Plaintiff's § 1983 claim for violation of his First Amendment rights.
Plaintiff claims that his statements regarding killing his supervisors were not true threats, and, therefore, were protected First Amendment speech. Plaintiff relies upon two cases in the criminal context that set out standards for determining whether a threat is a "true threat" for First Amendment purposes. See U.S. v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990); U.S. v. Kelner, 534 F.2d 1020, 1027 (2d Cir.), cert denied, 429 U.S. 1022, 50 L. Ed. 2d 623, 97 S. Ct. 639 (1976).
Plaintiff, however, is looking to the wrong law. As Defendants point out, the standard for determining whether a public employee's speech is protected by the First Amendment is set out in Waters v. Churchill, 511 U.S. 661, 128 L. Ed. 2d 686, 114 S. Ct. 1878 (1994). In Waters, a § 1983 case involving an employee terminated because of statements she had made, the Supreme Court stated that:
to be protected [by the First Amendment], [a government employee's] speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to "'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"
Id. at 668 (citations omitted). The Waters Court further observed that:
the government as employer . . . has far broader powers [to regulate speech] than does the government as sovereign. . . . Many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees. The First Amendment demands tolerance of "verbal tumult, discord, and even offensive utterance," as "necessary side effects of . . . the process of open debate,". . . . But we have never expressed doubt that a government employer may bar its employees from using . . . offensive utterances to members of the public, or to the people with whom they work. . . . Likewise, we have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.