United States District Court, N.D. California
November 1, 2005.
ANTHONY MARES, Plaintiff,
CITY AND COUNTY OF SAN FRANCISCO, and DOES 1 through 10, Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, PARTIAL SUMMARY ADJUDICATION
Now before the Court is the motion for summary judgment filed
by the City and County of San Francisco ("the City"). Having
carefully considered the parties' arguments, the relevant legal
authority, and having had the benefit of oral argument, the Court
hereby GRANTS the City's motion for summary judgment.
The City hired Plaintiff Anthony Mares, Jr. ("Mares") as a
recruit at the San Francisco Police Academy in June 2001. (City's
Ex. 20 (Deposition of Anthony Mares, Jr. ("Mares Depo.") at
10:10-11.) On August 23, 2001, while standing in uniform in front
of a Burger King restaurant, Mares told fellow recruits a story
about a man who raised his shirt and showed Mares his "fake
boobs." (City's Ex. 8; Ex. 20 (Mares Depo.) at 13:3-16:13,
49:9-56:3.) Approximately one month later, on September 21, 2001,
Mares made another comment while on duty in the Police Academy
locker room. After another recruit asked what time it was and an African-American recruit answered, Mares said "you can never
trust a black man's watch" or "you can't trust this black guy's
watch." (City's Ex. 3; Ex. 20 (Mares Depo.) at 23:6-24:24.)
The City discharged Mares from the Academy on September 24,
2001. In a letter dated October 3, 2001, the City informed Mares
the reason for his discharge was his "inappropriate comments
regarding females" made on August 23, 2001 and his conduct on
September 21, 2001, in violation of the Police Department's
General Order 11.07, Discrimination and Harassment. (City's Ex.
The City provided Mares with a hearing on November 15, 2001
regarding his termination. (City's Ex. 20 (Mares Depo.) at
29:9-33:5.) At the hearing, Deputy Chief William Welch determined
that the City was justified in discharging Mares from the Academy
but also found that Mares was eligible for future employment with
the City. (Declaration of William Welch, ¶¶ 4-5.) The Chief of
Police, Fred H. Lau, adopted Welch's recommendation. (City's Ex.
12; Ex. 20 (Mares Depo.) at 70:5-71:4.) Mares then reapplied to
the Academy but was rejected based on his psychological
evaluation. (City's Ex. 20 (Mares Depo.) at 85:5-86:13;
Declaration of Antonio Parra at ¶¶ 7-8.)
Under the first claim in his First Amended Complaint ("FAC"),
entitled "Injunctive Relief/Writ of Mandate," Mares alleges that
Defendant violated his "civil rights and right to due process by
expelling him from the San Francisco Police Academy training
program without cause and on the basis of false and unproven
charges, and by upholding the expulsion on the basis of a charade
of a hearing, all in violation of California law." (FAC ¶ 14.)
Under his second claim, entitled "Monetary Damages Based on
Violation of Civil Rights," Mares alleges that the City violated
his "state and federal civil rights by wrongfully depriving him
of a vested interest through an unequal and unfair treatment of
[him]." (FAC ¶ 17.) Finally, under his third claim entitled
"Breach of Contract," Mares alleges the City breached an
agreement not to terminate his employment without good cause.
(FAC ¶ 21.)*fn1 ANALYSIS
A. Legal Standard
Summary judgment is proper when 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
judgment as a matter of law." Fed.R.Civ.P. 56(c). A principal
purpose of the summary judgment procedure is to identify and
dispose of factually unsupported claims. Celotex Corp. v.
Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden
of identifying those portions of the pleadings, discovery, and
affidavits which demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party meets this
initial burden, the non-moving party must go beyond the pleadings
and by its own evidence "set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The
non-moving party must "identify with reasonable particularity the
evidence that precludes summary judgment." Keenan v. Allan,
91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined
Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)) (stating that it is
not a district court's task to "scour the record in search of a
genuine issue of triable fact"). If the non-moving party fails to
make this showing, the moving party is entitled to judgment as a
matter of law. Celotex, 477 U.S. at 323.
B. Mares' Claim for Violation of His Federal Civil Rights Does
Not Survive Summary Judgment.
Mares contends that the City violated his "federal civil rights
by wrongfully depriving him of a vested interest through an
unequal and unfair treatment of [him]." (FAC ¶ 17.)
42 U.S.C. § 1983 ("Section 1983") provides the exclusive remedy for claims
alleging violations of federal constitutional rights. Bank of
Lake Tahoe v. Bank of America, 318 F.3d 914, 917 (9th Cir.
The City argues that summary judgment is proper on Mares'
claims relating to his federal civil rights because, inter
alia, Mares has no evidence that the City's conduct in discharging Mares was part of an official policy, practice or
custom. To establish liability against a municipal entity under
42 U.S.C. § 1983, a plaintiff must demonstrate that their injury
was caused by an official policy, practice or custom of the city.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); see
also McInerney v. City & County of San Francisco,
668 F. Supp. 1352, 1354-55 (N.D. Cal. 1986) ("Under Monell . . . a plaintiff
cannot sue a municipality on a civil-rights violation unless he
demonstrates that the violation was the result of an official
municipal policy."). As the court explained in McInerney, "[a]t
the very least the plaintiff must make an affirmative link
between the policy and the particular constitutional violation
alleged." Id. In opposition to the City's motion, Mares does
not submit any evidence that his alleged injuries were caused by
an official policy or custom. Accordingly, the Court grants the
City's motion on Mares' claim for violation of his federal civil
Alternatively, even assuming arguendo that Mares sufficiently
demonstrates an official policy or custom, Mares' Section 1983
claim fails for additional reasons. To the extent Mares's claim
is premised on violations of due process, for the reasons
discussed below, Mares fails to demonstrate he was entitled to a
hearing. At the hearing on this motion, Mares clarified that his
federal civil rights claim is also based on a claim of
retaliation. As discussed below, whether this retaliation claim
is premised on Title VII of the Civil Rights Act of 1964 or the
First Amendment, Mares has no evidence to demonstrate the
required elements of such claims.
i. Mares' Due Process Claim
Mares contends that his federal civil rights were violated when
Defendant discharged him for making comments without giving him a
proper hearing and opportunity to defend himself. Determining
whether the City deprived Mares of due process involves a
two-part inquiry: (1) whether the City deprived Mares of a
protected interest, and (2) if so, what process Mares was due.
See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
Thus, to state a procedural due process claim, Mares must
establish that he had a protectable interest. See Bateson v.
Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988).
When he was discharged, Mares was a probationary employee and
thus, had no protectible property interest in continued
employment. Nor did Mares have a protectible interest in being rehired. Mares does not dispute these points. Rather, he
contends that because the reason he was terminated was a
stigmatizing one, he was entitled to have a pre-termination
hearing in order to clear his name. Due Process requires the City
to provide Mares a hearing to refute the charges against him if
they are stigmatizing but only if he disputes the basis upon
which he was discharged. Codd v. Belger, 429 U.S. 624, 627
(1977). As the Court explained in Codd, "the remedy mandated by
the Due Process Clause of the Fourteenth Amendment is `an
opportunity to refute the charge. . . . The purpose of such
notice and hearing is to provide the person an opportunity to
clear his name. . . . But if the hearing mandated by the Due
Process Clause is to serve any useful purpose, there must be some
factual dispute between an employer and a discharged employee
which has some significant bearing on the employee's reputation."
Id. In Codd, the employee's failure to affirmatively assert
that the reason for his termination that he allegedly attempted
to commit suicide was substantially false was fatal to his
claim. Id. at 627.
Similarly, here, Mares does not present any evidence
demonstrating that the reason for his termination the two
comments made about "fake boobs" and "black man's watch" were
substantially false. The City terminated Mares for making
inappropriate comments regarding females and for making a comment
regarding not trusting a black man's watch, in violation of the
San Francisco Police Department's General Order 11.07,
Discrimination and Harassment. (Defendant's Ex. 10.) Mares does
not dispute that he made these comments, but argues instead that
these comments did not constitute "sexual harassment" or "racial
discrimination."*fn2 Thus, Mares does not dispute the facts
underlying his discharge that he made these comments but only
disputes how the City evaluated his comments. Without a
substantial factual dispute regarding the reason for his
termination, Mares cannot demonstrate that he was entitled to a hearing to clear his name. Codd, 429 U.S. at 627. Accordingly,
the Court grants the City's motion for summary judgment as to
Mares' federal civil rights claims.*fn3
i. Mares' Purported Retaliation Claim
In opposition to the City's motion, Mares made several
references to "retaliation," but it is not clear from his
complaint whether and on what basis Mares is asserting a claim
for retaliation. At the hearing, Mares conceded that his
complaint was not clear and sought leave to amend to state a
claim for violation of his federal civil rights based on the
City's failure to rehire Mares because he filed the instant
lawsuit. The Court denies Mares' request to amend at this late
stage, after discovery has closed, based on the prejudice it
would cause the City and because it would be futile. See Flowers
v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) ("A
district court . . . does not abuse its discretion in denying
leave to amend where amendment would be futile."); see also
Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir.
1981) (affirming denial of leave to amend complaint raised at the
eleventh hour, after discovery was virtually complete and a
motion for summary judgment was pending before the court).
If Mares intended to assert a Section 1983 claim for
retaliation premised on Title VII, he would need to present
evidence that he exhausted his administrative remedies by filing
a claim with the Equal Employment Opportunity Commission and that
reason he was not rehired was because he challenged an employment
practice made unlawful by Title VII. See
42 U.S.C. §§ 2000e-3(a), 2000e-5(b). Mares has not presented any evidence, nor
argued that he could present evidence if given another
opportunity, of either requirement. If Mares' purported
retaliation claim is premised on a denial of free speech
protected by the First Amendment, Mares would need to demonstrate
he engaged in speech that was constitutionally protected because
it related to a matter of public concern and that such speech was
the motivating factor for the City's decision not to rehire him. See Coszalter v. City of Salem,
320 F.3d 968, 973 (9th Cir. 2003). Again, Mares has not presented, or
argued that he could present, any evidence of these requirements.
Accordingly, the Court will not allow Mares leave to amend at
this late stage.*fn4
For the foregoing reasons, the Court GRANTS the City's motion
for summary judgment.
IT IS SO ORDERED.
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