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United States District Court, Northern District of California

May 21, 2003


The opinion of the court was delivered by: Susan Illston, United States District Judge


Summary judgment has been granted to defendants. Accordingly, judgment is hereby entered in favor of defendants and against plaintiff.



On May 16, 2003, the Court heard argument on defendants' motion for summary judgment. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the motion for the reasons set forth below.


A. Factual history

Plaintiff Janeith Glenn-Davis brings this employment action alleging that defendants denied her promotion to Captain at the Oakland Police Department because of her gender and/or pregnancy. Ms. Davis was hired as a police officer by the Oakland Police Department ("OPD" or "Department") on March 12, 1985. Davis Decl. ¶ 3. She was promoted to sergeant on March 11, 1994 and was promoted to lieutenant on June 20, 1998. Id. On October 1, 2002, Ms. Davis left the OPD to take a position as Chief of Police with Cal State Hayward. Davis Decl. ¶ 2. The events giving rise to this litigation occurred during the years 2000-2002, prior to plaintiffs appointment as Chief of Police at Cal State Hayward.

Based on the results of an examination, an eligibility list for promotion to the ranks of sergeant, lieutenant and captain is posted. Defendants' Supporting Evidence in Support of Motion for Summary Judgment, Exhibit B, Declaration of Richard Word, Exhibit 1, Memorandum of Understanding Between the City of Oakland and Oakland Police Officers' Association. This eligibility list is valid for eighteen months from the date it is posted. Id., paragraph 9. Only five candidates from each eligibility list are eligible for promotion. Id. paragraph 10. Chief of Police Richard Word makes recommendations for promotion of police officers within the Department; these recommendations are subject to the review of Dr. George Musgrove, the Assistant City Manager, who has the authority to approve or deny promotions within the Department regardless of the Chiefs recommendation. Word Decl. ¶ 3; Declaration of Dr. George Musgrove ¶ 4, Exhibit 1 to Defendants' Supporting Evidence in Support of Motion for Summary Judgment.

On July 3, 2000, the Department posted an eligibility list for captain; Ms. Davis was ranked number 4 on that list. Exhibit 2 to Word Decl. That list had an expiration date of January 2, 2002. Id. There is no rank order of promotion within the top five employees on the eligibility list; this is known within the department as the Rule of Five. Word Decl. ¶ 7. The two individuals ranked 2 and 3 on the list were promoted to captain in late September of 2000. Word Decl. ¶ 13. Lt. Rodney Yee, ranked number 2, filled the position of captain of Youth and Community Services, and Lt. Frank Lowe filled the position of captain of Special Operations. Id.

Plaintiff was placed in an Acting Captain position for Area 2 in January of 2001 when Area 2's then captain retired. Id. ¶ 15. Chief Word declared that it was his intention to promote plaintiff into the next available captain position. However, in the late summer of 2001, Dr. Musgrove made the decision not to promote anyone to the rank of captain, as a result of his belief that there was no need for nine captains positions, the number of captain positions in existence in the department at the time. Word Decl. ¶ 25; Musgrove Decl. ¶ 13-16. City Manager Bobb agreed with Dr. Musgrove, and determined to freeze any promotions to captain. Bobb Deposition, Exhibit C(1) to the Declaration of Rachel Wagner p. 28:14-18. Chief of Police Word was opposed to this plan, but the hiring freeze was instituted anyway. Word Decl. ¶ 24. No one else from the July 2000 eligibility list for captain was promoted from October 2000 to the expiration of the list on January 2, 2002. Musgrove Decl. ¶ 20; Word Decl. ¶ 27.

Plaintiff informed Deputy Chief Dunbar in late March or early April of 2001 that she was pregnant, but that she wanted to continue working in active patrol during her pregnancy. Davis Decl. ¶ 13. Plaintiff states that she was asked several questions about her pregnancy, use of maternity leave, and her future plans. Davis Decl. ¶ 15. On August 17, 200, plaintiff requested temporary reassignment from her Acting Captain position, because her pregnancy impaired her ability to perform field duties. Davis Decl. ¶ 18. She was reassigned to Area 1 as a lieutenant in Investigations. Id. In late July or August of 2001, plaintiff learned that Deputy Chief Dunbar had attempted to initiate an Internal Affairs investigation against her; the Internal Affairs Commander rejected this request. Davis Decl. ¶ 19. In September of 2001, plaintiff met with Deputy Chief Holland; she states that in this meeting he told her that Chief Word had voiced concerns over whether OPD was her number one priority, alluding specifically to plaintiff's involvement with the National Organization of Black Law Enforcement Executives. Davis Decl. ¶ 20. Plaintiff states that Deputy Chief Holland later told her that her August 2001 request for temporary reassignment had negatively affected her chances of promotion to captain. Davis Decl. ¶ 21. Plaintiff alleges that Police Chief Ward and City Manager Bobb allowed the eligibility list to expire in order to prevent her from becoming captain.

The next captain's exam was administered in late January of 2002. Word Decl. 29. In March 2002, Chief Word met with City Manager Bobb to urge a captain promotion in Area 2, the area in which he had desired to promote plaintiff to captain. Word Decl. ¶ 30. After this meeting, Bobb agreed to fill a captain position for Area 2. Word Decl. ¶ 31. A new eligibility list for promotion to captain was posted on or about March 15, 2002, and plaintiff ranked number 13 on that list. Word Decl. Exhibit 5. The individual ranked No. 1 on that list was promoted to captain in May 2002; no other individuals from that list have been promoted to captain. Word Decl. ¶ 32-34.

As of 2000, there were six female sergeants, compared to one hundred fourteen male sergeants in the OPD. Davis Decl. ¶ 4, Exhibit A to Davis Decl. For the majority of the time that Davis was a lieutenant, she was the only female lieutenant in the OPD, while there were twenty three male lieutenants. Davis Decl. ¶ 5, Exhibit A to Davis Decl. Davis states that during her over seventeen year tenure at the Department, only two women rose to ranks of captain or above, and that "[n]o pregnant women have ever been promoted above the rank of lieutenant at OPD." Davis Decl. ¶ 5.*fn1

B. Procedural history

In April 2002, plaintiff filed an EEOC claim regarding the failure to promote her as captain, claiming that her pregnancy had affected the possibility of promotion, and that her failure to be promoted was due to gender discrimination. In early 2002, plaintiff filed a state court action for injunctive relief, seeking to prevent any promotion of other qualified candidates to captain while her discrimination claims were pending. She also filed this action, alleging claims for gender and pregnancy discrimination under 42 U.S.C. § 1983, Title VII, 42 U.S.C. § 2000e et seq. and California's Fair Employment and Housing Act ("FEHA"), Cal. Govt. Code, § 12940 et seq.

Now before the Court is defendants' motion for summary judgment.


A. Summary judgment

The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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).

In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" See T.W. Elec. Service. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626,630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,106 S.Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504,1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).

B. Gender and pregnancy discrimination

The burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), governs plaintiffs claims of gender and pregnancy discrimination under Title VII and FEHA. That process requires the plaintiff first to establish a prima facie case of discrimination or retaliation. See Wallis v. J.R. Simplot, 26 F.3d 885, 889-91 (9th Cir. 1994). Once a plaintiff meets this burden of production, the employer must offer a legitimate, nondiscriminatory reason for the adverse employment decision. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097,2105 (2000); Collings v. Longview Fibre Co., 63 F.3d 828, 833-34 (9th Cir. 1995); Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990). If the employer meets this burden, then the plaintiff must produce "specific, substantial evidence" that the proffered reason is pretextual. Collings, 63 F.3d at 834 (citation and internal quotation marks omitted). The plaintiff bears the ultimate burden of establishing that she has been discriminated against on the basis of a disability. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993). However, the trier of fact may infer the existence of a discriminatory motive from the plaintiff s proof that the employer's proffered explanation is false. See Reeves, 120 S.Ct. at 2108-09.

California relies on decisions interpreting federal nondiscrimination statutes to interpret the FEHA. See Bradley v. Harcourt. Brace and Co., 104 F.3d 267, 272 (9th Cir. 1996). Thus analyses of federal discrimination claims apply equally to the analogous FEHA claims.

To put forth a prima facie case of employment discrimination, plaintiff must show that (1) she belongs to a protected class; (2) she was subjected to an adverse employment action by her employer; and (3) others who were similarly situated and not within her protected class were treated more favorably than he was. McDonnell Douglas Corp. v. Green, 411 U.S. at 802.


A. Motion for summary judgment

1. Plaintiff's requirement to state a prima facie case of discrimination
Defendants contend that plaintiff has not met her burden to state a prima facie case of discrimination. They maintain that she cannot show that other employees with qualifications similar to her own were treated more favorably, nor that she applied for an available position for which she was qualified, as is required under Godwin v. Hunt Wesson. Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). They maintain that it is undisputed that no eligible persons were promoted to captain throughout 2001, while the eligibility list on which plaintiff was number 4 was in effect. They also maintain that it is undisputed that Assistant City Manager Musgrove froze hiring for the position of captain in 2001. Furthermore, defendants state that when this hiring freeze was lifted in 2002 and the captain position became available, plaintiff was now number 13 on the list, and so plaintiff was not in the top five and therefore not qualified for the position of captain.

Plaintiff maintains that other employees with qualifications similar to her own were treated more favorably than she was, because two of the other employees in the top five were promoted to captain in September of 2000, and plaintiff was not. Plaintiff then states that she did apply for an eligible position for which she was qualified, as she applied for the available position of captain: she took the captain's exam and placed within the top five on the eligibility list; and that captain's positions were available during the time that she was eligible for promotion, both when Yee and Lowe were placed into captain's positions, and when the vacant position in Area 2 opened up. Plaintiff then states that defendants rejected her promotion to captain based on the hiring freeze; and that defendants continued to review applicants by offering another captain's exam, and promoting Jeff Israel to captain after the results of the exam were posted. Therefore, plaintiff asserts that she has established a prima facie case of discrimination. While the Court questions whether plaintiff's allegations in support of the third prong of the McDonnell Douglas test are sufficient to state a prima facie case of discrimination, the Court also notes that "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253. Therefore, the Court finds that plaintiff has established a prima facie case of discrimination.

2. Defendants' requirement to produce legitimate non-discriminatory reasons for not promoting plaintiff to captain
Defendants argue that the City of Oakland more than meets its burden to show a legitimate reason for not promoting plaintiff to captain: The City Manager, Chief of Police and other consultants were discussing the restructuring of the Police Department, and therefore instituted a hiring freeze on captain positions. Defendants state that at the time that he imposed the hiring freeze, Assistant City Manager Musgrove did not know the names of the top five candidates on the list. Defendants state that this administrative freeze constitutes a legitimate non-discriminatory reason for failing to promote plaintiff. The Court finds that defendants have met their burden to show a legitimate reason for not promoting plaintiff to captain.

3. Plaintiff's requirement to show that the reorganization and hiring freeze were a pretext for discrimination
Plaintiff argues that the hiring freeze never happened, and that defendants' arguments to the contrary are pretext for discriminating against her during her pregnancy. However, the Court finds that plaintiff has not met her burden to show that the proffered legitimate reasons were pretexts for discrimination.

Plaintiff must produce either direct evidence of employment discrimination, or specific and substantial evidence that would create a triable issue with respect to whether the employer intended to discriminate on the basis of sex. Direct evidence has been defined by the Ninth Circuit as "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Aragon v. Republic Silver State Disposal, 292 F.3d 654, 662 (9th Cir. 2002) (emphasis in original), quoting Godwin, 150 F.3d at 1221. Indirect evidence must be both specific and substantial to overcome the legitimate reasons put forth by defendant and would tend to show that those reasons are unworthy of credence. Aragon, 292 F.3d 659.

Plaintiff asserts that the alleged hiring freeze was undocumented, and that the reorganization of the OPD was completed by January of 200 1, so that any hiring freeze would necessarily be over by then. Plaintiff discounts Assistant City Manager Musgrove's concerns about redundant captain's positions because, she asserts, Chief Word only provided Musgrove with written justifications for captains' positions in Communications, Personnel & Training and Youth Services, and not in Area 2, where the captain position was available to plaintiff.

Plaintiff claims that City Manager Bobb never mentioned a hiring freeze in his letter to her describing the reasons why she had not been promoted to captain. However, Bobb's letter stated that "[f]ollowing the two appointments of other individuals to the Captain position on or about September 30, 2001, the City Manager's Office did not authorize a Captain's position during the duration of the 2000 eligibility list, on which you ranked number 4, although the Department did attempt to secure a new position during this time period." Davis Decl. Exh. F. While plaintiff points to Bobb's deposition testimony that he could "arbitrarily lift" this freeze at any time, that statement substantiates the fact that there was a hiring freeze in place. Although Jess Gonzalez, of the City of Oakland Equal Opportunity Programs Division, did testify that to his knowledge, the City Manager has the authority to extend the eligibility list beyond its expiration date, he also stated that he had never heard of an eligibility list being extended within the police department, but only in other civilian positions within the City of Oakland. Thorne Decl., Exh. 1, Deposition of Jess Gonzales, 43:22-44:3. It is true that the hiring freeze was lifted as soon as the list on which plaintiff was eligible expired, but it is significant that there were two other individuals in the top five on that same list, neither of whom was promoted to captain throughout the duration of that list or thereafter.

Nor is plaintiffs reference to statistics in the annual report of the breakdown by gender of sworn officers in the Oakland Police Department sufficient to demonstrate intentional discrimination on the basis of gender. Under Gay v. Waiters' and Dairy Lunchmen's Union. Local No. 30,694 F.2d 531,552 (9th Cir. 1982), to "establish a prima facie case of disparate treatment based solely on statistical evidence, the plaintiff must produce statistics showing `a clear pattern, unexplainable on grounds other than [the protected category].'" (citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977). Although plaintiff argues that her statistical evidence shows "a discriminatory pattern probative of motive and therefore create[s] an inference of discriminatory intent," citing Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir. 1985), the statistics plaintiff provides show only a snapshot of the OPD, not a discriminatory pattern. Plaintiff produced no evidence concerning the number of women who applied and were rejected for captain or lieutenant positions, or the number who qualified by taking the examination and finishing in the top five. Simply demonstrating that there are few women in positions of authority in the Oakland Police Department does not show that the hiring freeze was pretextual.

Bobb and Musgrove, the decision-makers in this matter, provided sworn statements that they did not know plaintiff was on the eligibility list at the time of the hiring freeze. Bobb became aware that plaintiff was on the eligibility list when she called him on December 21, 2001, just days before the list was to expire. Plaintiff states in her declaration that she saw City Manager Bobb at a promotional ceremony "at some point between August and December 2001" and that he indicated that he knew that she was on the list by asking her if she had been promoted to Captain yet, but Bobb states that he made this comment both because he knew that her husband was a captain and because he assumed that all lieutenants would try to become captain. Bobb Deposition 50:15-25. Dr. Musgrove and Chief Word both state in their declarations that Dr. Musgrove became aware that plaintiff was on the eligibility list sometime in September or October of 2001, after the hiring freeze had already been implemented. In light of that evidence, plaintiff does not raise a triable issue of fact that would establish that the freeze was motivated by an intent to discriminate against her on the basis of her gender or pregnancy, or that there was no freeze at all. There is no evidence to suggest, as plaintiff argues, that City Manager Bobb and Assistant City Manager Musgrove decided to allow the eligibility list to expire in January, 2002 because of plaintiffs presence on the list.

Plaintiff discusses conversations with Chief Word and Deputy Chiefs Holland and Dunbar, negatively alluding to her pregnancy and its effect on her chances of promotion. Even if such statements were proven with admissible evidence, there is no evidence to show that there was a causal relationship between what was said and defendants' decision not to appoint her as captain. Defendants state, and plaintiff does not refute, that the authority to make promotions to captain rested first with Chief Word and then with City Manager Bobb, and that the decision to impose, and then to lift, the hiring freeze and indeed, any decision on hiring a captain within the Police Department, was solely that of Assistant City Manager Musgrove and City Manager Bobb. See Gay 694 F.2d at 552 (discriminatory intent "implies that the decisionmaker . . . selected . . . a particular course of action at least in part `because of' not merely `in spite of' its adverse effects upon an identifiable group.") (ellipsis in original).

While plaintiff argues that there was no hiring freeze and that therefore defendants' proffered reason for not promoting her to captain was false, she does not produce "significant substantial evidence" to the Court. The Supreme Court stated in Reeves: "an employer would be entitled to judgment as a matter of law if . . . the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148.

That the hiring freeze ended just as the eligibility list on which plaintiff was number 4 expired was a suspicious temporal relationship, but plaintiff has failed to demonstrate any causal relationship between her gender or pregnancy and the fact that she was not promoted. Therefore, this Court finds that there is no triable issue of fact, and GRANTS defendants' motion for summary judgment.

B. Evidentiary objections

Both plaintiff and defendants have filed evidentiary objections to evidence produced in this case. In a motion for summary judgment only admissible evidence may be considered by the court. Fed.R.Civ.P. 56(c).

1. Defendants' objections

Defendants object to Paragraphs 7, 12, 13, 18, 19,20,21,23 and 28 of the Declaration of Janeith Glenn-Davis in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment. Defendants further object to the Declaration of Betsy Watson, alluded to in plaintiff's opposition to this motion, as no such declaration was ever served on defendants. At the hearing, the declaration of Elizabeth M. Watson was submitted to the Court and counsel. Without deciding whether the evidence submitted by plaintiff is admissible, the Court finds that none of the facts in the record submitted by plaintiff create a genuine issue of material fact. Thus the question of whether those facts are admissible such that they may properly be considered on summary judgment is immaterial to the disposition of the summary judgment motion. Accordingly, this Court declines to rule on defendants' objections to plaintiff's evidence.

2. Plaintiffs objections

Plaintiff objects to: portions of Paragraph 7, 15, 17, 19 and 22 to the Declaration of George Musgrove; portions of Paragraphs 17, 19, 20, 21, 22, 23, 24, 25, and 31 to the Declaration of Richard Word; and Janine Levine's Report.

With respect to the Declaration of George Musgrove, all of plaintiff's objections state that portions of the declaration should be stricken as inadmissible hearsay. This Court overrules the objections except that the portion of Paragraph 15 that reads Chief Word "disagreed with my views" is stricken.

The objections to the Declaration of Richard Word also contend that the disputed statements should be stricken as inadmissible hearsay. In Paragraph 20, lines 12-15, the Court strikes the reference to the disagreement between Dr. Musgrove and Chief Word, but not that Chief Word submitted justifications for the captains' positions to Dr. Musgrove, as that portion of the declaration is not hearsay. With respect to Paragraph 24, lines 3-9, the Court strikes the sentence "We disagreed as to whether captains were needed and in which positions." In all other respect, the objections to Chief Word's declaration are overruled.

The Court declines to rule on the objection to Janine Levine's report, as it was not relied upon by this Court.


For the foregoing reasons, defendants' motion for summary judgment is GRANTED.


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