United States District Court, N.D. California
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
ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
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
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
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
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 Plaintiff's ability to contract for employment.
Thus, a promotion in the public employment realm can create a
sufficiently vested interest to permit a § 1981 claim.*fn2
Defendants' request for summary adjudication for all § 1981
claims arising out of Defendants' failure to promote Plaintiff is
improper because there is a sufficiently vested contract interest
in promotion to a new and distinct position.
D. Pattern or Practice of Discrimination
Defendants request summary adjudication on Plaintiff's fifth
cause of action a § 1983 claim against Defendant County
because Plaintiffs' allegations are not sufficient to state a
claim. Although Plaintiff did not respond to this argument in his
papers, at oral argument Plaintiff conceded that discovery did
not yield sufficient evidence to support a pattern or practice
claim against Defendant County. Since Plaintiff has admittedly
failed to allege facts sufficient to support a pattern or
practice case against Defendant County, Plaintiff cannot pursue
E. Disparate Treatment Claims Arising Out of Plaintiff's
Non-Selection for Assistant Fire Chief in 2003
To survive summary judgment on a disparate treatment claim, a
plaintiff must first state a prima facie case. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 807 (1973). A plaintiff must show:
(1) that he belongs to a protected group, (2) that he was
qualified, (3) that he suffered an adverse employment action, and
(4) the position remained open or another employee with similar qualifications was treated more favorably.
Sischo-Nownejad v. Merced Community College Dist.,
934 F.2d 1104, 1109-1110 (9th Cir. 1991). Once the plaintiff establishes a
prima facie case, the burden shifts to the defendant to
articulate "a legitimate non-discriminatory reason" for the
challenged action. Id. at 1109. If the employer does so, the
burden shifts back to the plaintiff to show that the articulated
reason is pretextual. Id. At the summary judgment stage, the
plaintiff need only present "minimal" proof that "does not even
need to rise to the level of a preponderance of the evidence."
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
Defendants stipulate for the purposes of this motion that
Plaintiff has the evidence to make a prima facie case with
respect to non-promotion.*fn3
In a "mixed-motive" case there is no one "true" motive behind
the decision. Instead, the decision is a result of multiple
factors, at least one of which is legitimate. Stegall v. Citadel
Broad. Co., 350 F.3d 1061, 1067 (9th Cir. 2003). In such cases,
a "jury should be instructed to determine first whether the
discriminatory reason was `a motivating factor' in the challenged
action. If the jury's answer to this question is yes, then the
employer has violated Title 7." Id.
On the facts presented in this motion, there is a genuine issue
of material fact as to whether race was a motivating factor in
the District's decision. Specifically, there are triable issues
as to whether the subjective evaluations of Plaintiff were in
part motivated by racial discrimination, whether Plaintiff was
more qualified than the candidates selected, whether the ad hoc
changes to the hiring process were initiated with an improper
motive and whether changes to the process resulted in the
non-selection of Plaintiff. Thus, summary adjudication is denied
on the merits of Plaintiff's claim of discrimination based upon
race for the non-selection of Plaintiff for the Assistant Fire
Chief position in 2003, as discussed in greater detail below.
1. Racial Animus Plaintiff alleges that Richter demonstrated a racially
discriminatory animus, particularly through his opposition to a
court mandated obligation to ensure equal employment opportunity.
Some of the incidents that would support this notion include: (a)
In 1998, Defendant Richter launched an investigation into alleged
cheating by African American fire fighters and refused to release
the findings (Walker Decl. 8:24-9:10);*fn4 (b) since
Defendant Richter became Fire Chief, recruiting and outreach for
minority candidates virtually ceased (Price Decl., Ex. K
50:10-17); (c) in 2000, in a meeting with the Black Firefighters
Association representatives to discuss the group's concerns
regarding racial and gender bias in the hiring of an all-white
male firefighter paramedic class, Defendant Richter stated "I
don't hire by the consent decree" (Walker Decl. 15:2; see also
Price Decl. Ex. L 42:1-49:25, 55:1-25); (d) in November 2002,
Defendant Richter banned the Croskrey Consent Decree Board from
using the District training center, and there is some question as
to whether other groups were permitted to use the facility
(Walker Decl. 15:20-16:1).
There is a genuine issue of material fact as to whether
Defendants' stated reasons for the decisions made in 2003 are
pretextual. Defendants maintain that the chosen candidates were
more qualified. Defendants further posit that simple statements
from the Plaintiff that he is more qualified are not sufficient
to create a material issue and that the Court should not act as a
super personnel department in reviewing which employees are best
qualified. Tunnel v. Powell, 219 F. Supp. 2d 230, 239 (N.D.
Cal. 2002). However, the Ninth Circuit has held that "subjective
practices are particularly susceptible to discriminatory abuse
and should be closely scrutinized." Atonio v. Wards Cove Packing
Co., 810 F.2d 1477, 1481 (9th Cir. 1987). Many of the criteria chosen, as well as aspects of the decision-making
process, for selecting candidates for the two Assistant Fire
Chief positions in 2003 were subjective.
Plaintiff identifies a number of changes to the hiring process
that could be pretexts for selecting another candidate. The 2003
Assistant Fire Chief Position openings were the first time that
the position was opened to candidates from outside the
Department.*fn5 (Walker Decl. 16:10). Defendant Richter also
asserted that the two vacant positions were interchangeable,
necessitating that both needed a background in Support Services,
while Plaintiff's primary area of expertise is operations.
(Walker Decl. 17:25-17:27). Further, the examination was skewed
to addressing administrative support concern 11 of the 14
questions dealt with support services.
Additionally, after Plaintiff finished as one of the top
candidates under the initial panel, Defendant Richter convened a
second panel; this was an unprecedented move in the hiring
process. (Walker Decl. 16:13-14). One of the members of this
second panel had been involved in the issues that led to
Plaintiff's first suit against the County in 1985. (Walker Decl.
16:20-28; Price Decl. Ex. J 57:5-9). Richter also asked a
question regarding lateral hiring that was not on the standard
list of questions and that was a "hot button issue which the
Black Firefighters Association had opposed [because] lateral
hiring . . . would provide for an all white recruitment pool."
(Walker Decl. 10:11-17. 10:22-23). Further, Plaintiff alleges
that Defendant Richter scored the candidates before the final
interview for the position had taken place. (Price Decl.
84:5-85:20; Ex. B290:16-291:13; Ex. N 4; Ex. 120). Many of the
factors that Plaintiff scored lower on were highly subjective,
such as inter-personal skills. (Richter Decl. Ex. 123).
Thus, there are genuine issues of material fact compelling the
Court to deny summary adjudication on this claim. F. Retaliation Claims Arising Out of Plaintiff's Non-Selection
for Assistant Fire Chief in 2003
The elements of a prima facie case for retaliation under Title
VII include: (1) that the plaintiff engaged or was engaging in
activity protected by Title VII; (2) the employer subjected the
employee to an adverse employment decision; and (3) a causal link
exists between the protected activity and the employment
decision. Yartzoff v. Thomas, 809 F.2d 1371, 1375-6 (9th Cir.
1987). After the elements of the prima facie case are satisfied,
the same burden shifting scheme occurs as described in the
Defendants contend that Plaintiff fails to present a prima
facie case of retaliation because the causal connection between
protected activity and an adverse employment action is too weak.
The Ninth Circuit has held that there must be a "causal link."
Manatt v. Bank of Am., 339 F.3d 792, 802 (9th Cir. 2003).
Specifically, the Ninth Circuit noted that a court may not infer
causation from temporal proximity alone unless the gap is "very
close," and that gaps of three and four months often are
insufficient to infer causation. Id. However, the Ninth Circuit
has also held that "even if elapsed time, considered without
regard to other circumstances, were the criterion, three to eight
months is easily within the time range that supports an inference
of retaliation." Coszalter v. City of Salem, 320 F.3d 968, 977
(9th Cir. 2003). Thus, a "specific time period cannot be a
mechanically applied criterion." Id. at 977-978.
In addition to the timing, the context of the events is
important and needs to be examined to determine if there is a
causal link. Here, Plaintiff's last protected act occurred in
November 2002 when Plaintiff attempted to host a Croskrey
Consent Decree Advisory Board meeting at the District's training
facility. Plaintiff took the exam for the position in February
2003 and was denied the position in March 2003. Thus, Plaintiff
alleges that the first opportunity for adverse action was not
until three months after his last protected act. Given Defendant
Richter's opposition to the Croskrey consent decree,
Plaintiff's history of participation in protected activities and
the timing between the incidents, Plaintiff has provided
sufficient evidence to shift the burden to the Defendants. Defendants respond, as with respect to the discrimination
claim, by arguing that the promotion denial was because Plaintiff
was not the most qualified candidate. However, Plaintiff presents
material disputes of fact as to whether this ground is pretext.
Plaintiff was the only in-house candidate among the top
finalists, and he was more familiar with the daily operations of
the District than the other candidates. Plaintiff had 30 years
experience in comparison to the two selected candidates who had
27 or 28 years of experience. (Richter Decl. Ex. F, D, E).
Plaintiff had 30 years experience in operations while the two
individuals selected had just 11 and 8 years respectively. Id.
The ad hoc changes to the hiring process, viewing the positions
as interchangeable, the question on the lateral hiring of
paramedics that was not on the standard list of questions, in
addition to Plaintiff's experience, create issues of material
fact as to whether retaliation played a role in Defendants'
failure to select Plaintiff for the position. The Court therefore
finds that the facts surrounding this incident create material
disputes that prevent the Court from granting summary
adjudication on the retaliation claim.
Based on the discussion above, and with GOOD CAUSE APPEARING,
the Court now DENIES summary judgment, and GRANTS summary
adjudication in part and DENIES it in part, as follows.
The Court GRANTS Defendants' motion for summary adjudication on
the claims barred by the statute of limitations. Specifically,
Plaintiff's §§ 1981 or 1983 claims accruing before January 1,
2002 are time-barred. Additionally, Plaintiff's Title VII claims
accruing prior to July 13, 2002 are time-barred.
The Court GRANTS summary adjudication on Plaintiff's claims
against Defendant Richter arising out of Plaintiff's
non-selection for the Fire Chief position in 1998 and any prior
incidents of discrimination or retaliation. The Court DENIES summary adjudication on Defendants' assertion
that a § 1981 claim cannot be brought against a public employer.
Although employment in California is statutory not contractual,
individuals still have a vested contractual interests in hiring
The Court GRANTS summary adjudication on Plaintiff's § 1983
claim against Defendant County. Plaintiff has presented
insufficient evidence to establish a pattern or practice case
against the County.
The Court DENIES summary adjudication on whether discrimination
was a motivating factor in Defendants' decision not to promote
Plaintiff to one of the Assistant Fire Chief Positions in 2003.
The Court DENIES summary adjudication on whether Defendants
retaliated against Plaintiff when Defendants decided not to
select Plaintiff for one of the Assistant Fire Chief Positions in
IT IS SO ORDERED.
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