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September 6, 2005.

Clark Walker, Plaintiff,
Contra Costa County and Keith Richter, Defendants.

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

Plaintiff Clark Walker brought suit against Contra Costa County ("County") and Keith Richter (Fire Chief) under 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil Rights Act of 1964 for alleged racial discrimination and retaliation. This matter came before the Court on Monday July 25, 2005, on Defendants' motion for summary judgment or summary adjudication. After carefully considering the parties' written and oral arguments, relevant case law, and the factual allegations in this case, the Court grants in part, and denies in part, summary adjudication for the reasons discussed below.


  Plaintiff alleges that he has suffered several adverse employment decisions and has been treated differently on account of his race or participation in protected activities. Most recently, Plaintiff alleges that he was retaliated and discriminated against when the Contra Costa County Fire Protection District ("District") failed to promote him to one of two vacant Assistant Fire Chief positions in 2003 (one relating to operations and the other to services), filling those positions with white applicants. Plaintiff also was not selected for this position in 2000. Plaintiff asserts five causes of action: (1) a violation of § 1981 for intentional race discrimination against all Defendants; (2) a violation of Title VII for race discrimination in employment against Defendant County; (3) a violation of Title VII for retaliation for engaging in protected activities against Defendant County; (4) a § 1983 violation for race discrimination against Defendant Richter; and (5) a § 1983 violation based on discriminatory customs, policies, and practices against Defendant County.

  Briefly, plaintiff makes the following allegations of historical and recent discrimination against him. Plaintiff alleges impropriety in the selection for the Battalion Chief position in 1985. Plaintiff sued the District on this matter, but later dropped the suit when he subsequently attained the position. In 1998, the District investigated possible cheating on the Captain's exam allegedly because three of the top four candidates were African-American, and the District refused to release the results of the investigation. In 1999, Plaintiff contends that he was not invited to, and was intentionally excluded from, the first Management Labor Retreat convened by Defendant Richter, despite being the elected president of the United Chief Officers' Association (UCOA). Richter opposes the Croskrey Consent Decree.*fn1 In 2000, in a meeting with Black Firefighters Association representatives to discuss the group's concerns about racial and gender bias in hiring an all-white male firefighter paramedic class, Defendant Richter stated, "I don't hire by the consent decree." In November 2002, Defendant Richter banned the Croskrey Consent Decree Board from using the District's training center, and there is some question as to whether other groups were permitted to use the facility. Since Defendant Richter became Fire Chief, recruiting and outreach for minority candidates has virtually ceased. Finally, Plaintiff alleges that the hiring criteria and process were changed between the 2000 and 2003 selection for the Assistant Fire Chief Position to create a procedure less favorable to Plaintiff. LEGAL STANDARD

  Summary judgment is appropriate "if 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 the law." FRCP 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A fact is material for the purposes of summary judgment if, when applied to the substantive law, it effects the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must examine the evidence in the light most favorable to the non-moving party. U.S. v. Diabold, Inc., 369 U.S. 654, 655 (1962). Summary judgment should not be granted unless the evidence could not support any reasonable inference for the non-moving party. Stegall v. Citadel, 350 F.3d 1061, 1067. (9th Cir. 2004); see also Desert Palace v. Costa, 539 US 90, 100 (2003). Further, summary judgment is appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp, 477 U.S. at 322.


  A. Statute of Limitations

  The statute of limitations bars Plaintiff's potential claims for discrimination or retaliation brought under 42 U.S.C. §§ 1981 and 1983 that accrued prior to January 1, 2002. Plaintiff did not respond to this defense in his papers, nor did Plaintiff offer any objection at oral argument. There is no genuine issue of material fact as to the applicability of the statute of limitations.

  The statute of limitations also bars Plaintiff's claims for discrimination or retaliation brought under Title VII of the Civil Rights Act of 1964 that accrued prior to July 13, 2002. 42 U.S.C. 2000e-5. Again, Plaintiff did not respond to this contention in his papers, nor did Plaintiff object to this conclusion at oral argument. There is no genuine issue of material fact as to the applicability of the statute of limitations. B. Failure to Promote Plaintiff to the Fire Chief Position in 1998

  Although claims arising out of a failure to promote Plaintiff to the position of Fire Chief in 1998 are barred by the various statutes of limitations referenced above, Defendants also seek summary adjudication on all claims against Defendant Richter arising from the District's decision to select Defendant Richter for Fire Chief in 1998. This portion of the motion is uncontested. There is no genuine issue of material fact. Indeed, Defendant Richter cannot be vicariously liable for the District's decision to select him over Plaintiff for the position. Title VII does not hold the individual who attains a position as result of a discriminatory decision liable for that decision. 42 U.S.C. 2000e-2(a)(1). Further, "individual defendants cannot be held liable for damages under Title VII." Miller v. Maxwell's Int'l, 991 F.2d 583, 587 (9th Cir. 1993). Thus, to the extent that Plaintiff is relying on this incident and pre-1998 events to support his claim, they cannot be used to support a claim against Defendant Richter personally.

  C. § 1981 Claims Against a Public Employer

  Section 1981 provides that "all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42. U.S.C. § 1981. The Supreme Court has clarified when a promotion is actionable under § 1981:
Whether a promotion claim is actionable under § 1981 depends on whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so then the employer's refusal to enter into the new contract is actionable under § 1981. In making this determination, a lower court should give a fair and natural reading to the statutory phrase ` the same right . . . to make . . . contracts,' and should not strain in an undue manner the language of § 1981. Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981.
Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989). A promotion of Plaintiff Walker from Battalion Chief to Assistant Fire Chief would appear to fall within the Supreme Court's restrictive guidelines. Walker would move from non-exempt to exempt status and he would have new and added responsibilities. Defendants do not argue that the promotion is insufficient to result in the formation of a new contract, but instead contend that public employment in California is statutory, not contractual, making § 1981 inapplicable to a public employee who sought promotion to another public employment position. The Court rejects this contention. Section 1981 applies to both private and public actors. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-460 (1975). The Court also rejects Defendants' reliance on Miller v. State of California, a case dealing with a change in the mandatory retirement age for state employees. 18 Cal.3d 808, 811 (1977). In Miller, the California Supreme Court held that "public employment is not held by contract, but by statute." Id. at 813. However, Miller focused on whether a public employee may have a vested contractual right to continued employment beyond the time fixed by statute. Id. Miller did not address claims brought under § 1981, and the Court finds it inapposite in the present circumstances.

  The Ninth Circuit addressed the right to contract under § 1981 in Judie v. Hamilton, 872 F.2d 919, 923 (9th Cir. 1989). The court noted that claims involving discriminatory rejection or discharge are distinguishable from the kinds of employment terms that are appropriately deemed held by statute rather than contract. Id. at 922.

  Further, if a promotion does not create a contract because all public employment in California is statutory, then California public employers would be provided with blanket immunity from § 1981 liability. Although public employment in California is statutory, and a public employee has no vested contractual interest in a number of terms and conditions of employment, it does not follow that once a public position is developed the hiring into that position itself would not create a vested contractual interest sufficient to fall within the scope of § 1981. The Court therefore holds that denial of a promotion based upon race restricts ...

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