The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
On October 18, 2005, the Court heard argument on defendants'
motion for summary judgment. Having carefully considered the
arguments of counsel and the papers submitted, and for the
reasons set forth below, the Court GRANTS defendants' motion for
summary judgment with respect to plaintiff's FEHA termination
claim, plaintiff's FEHA and Title VII harassment claims, and
plaintiff's claim of failure to prevent harassment. The Court
DENIES defendants' motion for summary judgment on plaintiff's
Title VII termination claim.
Plaintiff Antonio Rosas brings this employment action alleging
that defendants terminated his employment as Maintenance
Supervisor for the Town of Windsor because of his race. Mr. Rosas
was hired by the Town as a maintenance worker in 1990 and in 1997
he was promoted to Maintenance Supervisor. Rosas Decl. ¶ 4. He
held this position until his termination on May 29, 2003. Berlant
Decl. ¶ 9.
In April 2003, the Town received a complaint from a member of
plaintiff's crew that another employee had repeatedly made
comments of a sexual nature at work in the presence of plaintiff,
and that plaintiff failed to take adequate action to stop the
offensive comments. Berlant Decl. ¶ 4. The crewmember's complaint
also charged that plaintiff himself had made sexually offensive
comments in the workplace. Andres Decl., Exh. B at WIN-001487. The Town hired an independent investigator to
investigate the charges. Berlant Decl. ¶ 5. The investigator
found that the other employee violated the Town of Windsor's
General Rules of Conduct and Harassment Policy. Berlant Decl.,
Exh. C at WIN-001912. The investigation also found that plaintiff
made inappropriate statements of a sexual nature while at work.
Id. at WIN-001913.
On May 21, 2003, Don Monk, the Town of Windsor's Public Works
Director, issued to the plaintiff a Notice of Intent to Render
Disciplinary Action for violation of Town policies. Berlant Decl.
¶ 8. Plaintiff did not pursue pre-disciplinary hearings available
to him. Berlant Decl. ¶ 9. On May 29, 2003, Paul Berlant, then
Town Manager, terminated plaintiff based on the following five
violations of the Town's General Rules of Conduct (Article
26.3.2): (1) violation of the Town's Nondiscrimination Policy;
(2) offensive treatment of the public or other employees; (3)
furnishing knowingly false information in the course of the
employee's duties and responsibilities; (4) inefficiency,
incompetence, carelessness or negligence in the performance of
duties; and (5) inattention to duty. Rosas Decl., Exh. A.
Plaintiff appealed the termination pursuant to Town
disciplinary policy. Berlant Decl. ¶ 10. The appeal hearing was
conducted by independent Hearing Officer Karen Andres. Andres
Decl. ¶ 2. On February 11, 2004, Ms. Andres issued a written
decision finding that plaintiff's failure to discipline the
offensive crew member violated the Town's Nondiscrimination
Policy. Id. at WIN-001483. Ms. Andres also found that plaintiff
made inappropriate sex-oriented comments in a work context and
that such behavior violated Town rules. Id. at WIN-001486.
However, Ms. Andres concluded that defendants did not sustain the
remaining charges against plaintiff (dishonesty during an
investigation; inattention to duty; and inefficiency in the
performance of duties). Id. at WIN-001494. Ms. Andres
recommended demoting plaintiff to the level of non-supervisory
employee. Id. at WIN-001495.
Under the Town's policy, the ultimate determination of
employment remained with the Town Manager. Berlant Decl., Exh. A
at WIN-001164. In a March 1, 2004, letter titled "Final Decision
Regarding Termination of Employment," Mr. Berlant adopted Ms.
Andres' findings of fact and her conclusions that plaintiff had
violated the Town's Nondiscrimination Policy by failing to report
and effectively stop the inappropriate conduct of another
employee, and by making inappropriate comments of a sexual nature
at work. Mr. Berlant declined to adopt Ms. Andres' recommendation
regarding demotion, and instead, Mr. Berlant terminated
plaintiff. Berlant Decl., Exh. E. According to the Town's policy, "[t]he
Town Manager's decision is reviewable by administrative writ of
mandamus." Berlant Decl., Exh. A at WIN-001164. Plaintiff did not
seek review of his termination through administrative writ of
mandamus. Berlant Decl. at ¶ 16.
On December 8, 2004, plaintiff filed this action alleging race
and age discrimination. In an order filed on May 20, 2005, the
Court dismissed four of plaintiff's claims for lack of subject
matter jurisdiction, leaving only the claims for race
discrimination and harassment before the Court.*fn1 Now
before the Court is defendants' motion for summary judgment, or
in the alternative, partial summary judgment on the following
causes of action: (1) plaintiff's FEHA discrimination claim; (2)
plaintiff's Title VII discrimination claim; (3) plaintiff's claim
of harassment under FEHA and Title VII; and (4) plaintiff's claim
of failure to prevent harassment under FEHA and Title VII.
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 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 issue 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 there is a genuine issue for
trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n., 809 F.2d 626, 630 (9th Cir. 1987).
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 (1986)). 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. Am. Airlines,
Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
B. Racial discrimination in employment
The analysis for claims under Title VII of the 1964 Civil
Rights Act, 42 U.S.C § 2000e-2(a) ("Title VII") and the State of
California's Fair Employment and Housing Act ("FEHA"), Government
Code § 12900, et seq., is the same. See Wallis v. J.R. Simplot
Co., 26 F.3d 885, 888-89 (9th Cir. 1994). The burden-shifting
method of proof set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-805 (1973), governs plaintiff's claims of
discrimination under Title VII and FEHA. Once a plaintiff
establishes a prima facie case of discrimination, the employer
must offer a legitimate, nondiscriminatory reason for the adverse
employment decision. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 140 (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 the plaintiff may ...