United States District Court, N.D. California
November 2, 2005.
ANTONIO ROSAS, Plaintiff,
TOWN OF WINDSOR, et al., Defendants.
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.
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 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 produce either direct evidence of
discriminatory motive, which need not be substantial, or
circumstantial evidence that is "specific, substantial evidence
of pretext." See Godwin v. Hunt Wesson, 150 F.3d 1217, 1221-22
(9th Cir. 1998).
I. Claims concerning discriminatory termination
A. Plaintiff has established a prima facie case
To demonstrate a prima facie case of employment discrimination,
plaintiff must show that (1) he was a member of a protected
class, (2) he was qualified for the position he sought or was
performing competently in the position he held, (3) he suffered
an adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance suggests
discriminatory motive.*fn2 See Guz v. Bechtel Nat. Inc.,
24 Cal.4th 317, 355 (2000) (citing, e.g., Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
The Court concludes that, although it is a close question,
plaintiff has established a prima facie case of discrimination.
Plaintiff is a member of a protected class because he is Hispanic
and his parents were born in Mexico. Until his termination,
plaintiff received positive job reviews. Rosas Decl. at ¶ 12.
Plaintiff's termination was an adverse employment action.
Plaintiff's supervisor, Mike Carson, who is not in plaintiff's
protected class, also failed to inform the Administrative
Services Director of the complaint, thus violating the Town's
Nondiscrimination Policy, but he received only a letter of
reprimand. Terrerri Decl., Exh. E. Plaintiff also states that
another employee, who is Caucasian, regularly engaged in the use
of foul and vulgar language in the workplace, and that this
employee was not disciplined or terminated. Rosas Decl. at ¶ 8.
Based on this evidence, the Court concludes that plaintiff has
established a prima facie case of discrimination.
B. Plaintiff's FEHA claim for discriminatory termination
Once a plaintiff has established his prima facie case, the
burden shifts to the defendants to show a legitimate,
nondiscriminatory reason for the employment decision. See Godwin
v. Hunt Wesson, 150 F.3d 1217, 1220 (9th Cir. 1998). Defendants
contend that plaintiff's violation of the Town's
Nondiscrimination Policy, as established during the
administrative hearing, is the legitimate, nondiscriminatory
reason for terminating plaintiff's employment.
Plaintiff asserts that this asserted reason is pretext. As to
the FEHA termination claim, however, defendants assert plaintiff
is precluded from challenging the legitimacy of the grounds for
his termination because he did not exhaust his judicial remedies
by seeking review of the Town's decision through administrative
mandamus. Defendants contend that as a result of plaintiff's
failure to seek administrative mandamus review, the Town's final
decision as set forth in Mr. Berlant's March 1, 2004 letter is
binding in this action. The California Supreme Court held in Johnson v. City of Lama
Linda that unless a party to a quasi-judicial administrative
agency proceeding challenges the adverse findings made in that
proceeding by means of a mandate action in Superior Court, those
findings are binding in a later civil action under FEHA. Johnson
v. City of Lama Linda, 24 Cal. 4th 61, 69 (2000) (citing
Westlake Cmty. Hosp. v. Superior Court, 17 Cal.3d 465 (1976);
see also Cal. Code of Civ. P. § 1094.5(b)). Consequently, when
"a public employee pursues administrative civil service remedies,
receives an adverse finding, and fails to have the finding set
aside through judicial review procedures, the adverse finding is
binding on discrimination claims under the FEHA." Johnson,
24 Cal. 4th at 76.
Plaintiff contends that Johnson does not apply because the
administrative hearing was not a proceeding by a
quasi-judicialagency and there were no procedural protections in
place for plaintiff. Plaintiff notes that this was the Town's
first hearing, and the hearing officer commented that it would be
conducted in an informal manner. Terrerri Decl., Exh. F.
Plaintiff further states that the hearing officer's opinion was
merely advisory to Town Manager Paul Berlant, who was involved in
the original decision to terminate plaintiff, and thus could not
have been impartial in his ultimate decision to terminate
The Court notes as an initial matter that California Civil
procedure Code § 1094.5 specifically provides that a party
challenging an administrative agency's decision may challenge
such a decision on procedural due process grounds. Cal. Code of
Civ. P. § 1094.5(b) ("The inquiry in such a case shall extend to
the questions whether the respondent has proceeded without, or in
excess of jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion."). In any
event, the Court concludes that the administrative hearing
satisfied the requirements of procedural due process. The
administrative hearing occurred before an impartial decision
maker, Karen Andres; plaintiff was represented by his current
counsel at the proceedings; the testimony of witnesses was
submitted under oath; the hearings occurred over five dates from
August through November; and there was a court reporter and a
record. Terrerri Decl. Exh. F. Karen Andres provided a written
report of her findings and Paul Berlant also provided a written
statement of the reasons for the determination made. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
(describing minimum requisite protections of procedural due
process: written notice of grounds for the disciplinary measures;
disclosures of the evidence supporting the disciplinary grounds;
the right to present witnesses and to confront adverse witnesses; the right to be represented by
counsel; a fair and impartial decision maker; and a written
statement from the fact finder listing the evidence relied upon
and the reasons for the determination made).
The Court concludes that plaintiff failed to exhaust his
judicial remedies by not petitioning for writ of administrative
mandamus, thus giving binding effect to the finding that he was
terminated for his violation of the Town's Nondiscrimination
Policy. Therefore, the Court GRANTS defendants' motion for
summary judgment on plaintiff's FEHA discrimination claim. See
Johnson, 24 Cal. 4th 61 (2000).
C. Plaintiff's Title VII claim for discriminatory termination
1. Collateral estoppel
Relying on Castillo v. City of Los Angeles,
92 Cal. App. 4th 477, 482 (2001), defendants argue that under the doctrine of
collateral estoppel, plaintiff is also precluded from
relitigating the issue of the wrongfulness of his termination
under Title VII because the Town's unreviewed administrative
findings conclusively establish it had a legitimate,
nondiscriminatory reason for terminating plaintiff.
Plaintiff responds that this California authority addressed
only a FEHA claim, not a Title VII claim. Plaintiff points
instead to McInnes v. State of California, 943 F.2d 1088, 1093
(9th Cir. 1991), which held that in a Title VII action a prior
state decision enjoys issue preclusive effect only if rendered or
reviewed by a court. Here, the findings of the administrative
hearing officer were never reviewed by a court, thus the Court
finds plaintiff is not precluded from challenging the reason for
Although not preclusive, this Court does find that the
administrative determination that plaintiff violated the Town's
Nondiscrimination Policy would constitute a legitimate,
nondiscriminatory reason for plaintiff's discharge. Under the
burden-shifting pattern of McDonnell Douglas, this returns the
evidentiary burden to plaintiff to raise a genuine factual
question whether the proffered reasons are pretextual. See Raad
v. N. Star Borough Sch. Dist., 323 F.3d 1185, 1193-94 (9th Cir.
Plaintiff asserts that the comment of Assistant Town Manager
Matt Mullan that plaintiff "looked like a crooked Tijuana cop" is direct evidence of discriminatory
intent. When the plaintiff offers direct evidence of
discriminatory motive, a triable issue as to the actual
motivation of the employer is created even if the evidence is not
substantial. Little direct evidence is needed to establish a
triable issue as to the actual motivation of the employer. See
Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1221 (9th Cir. 1998),
Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991)
(direct evidence of sexual stereotyping where employer believed
that the female candidates get "nervous" and "easily upset"),
Cordova v. State Farms, 124 F.3d, 1145, 1150 (direct evidence
of race discrimination where employer referred to
Mexican-American employee as a "dumb Mexican.").
The Court finds that plaintiff has provided enough direct
evidence of discriminatory animus to support his claim that the
provided reason for his termination is pretextual. Plaintiff has
submitted evidence that Matt Mullan was involved in the original
decision to terminate plaintiff's employment, and this has raised
a triable issue of fact as to defendants' motivation in
terminating plaintiff. Terrerri Decl., Exh. B at 644-45.
Therefore, the Court DENIES defendants' motion for summary
judgment on plaintiff's Title VII termination claim.
II. Hostile work environment
Plaintiff alleges he suffered racial harassment under both
FEHA, Cal. Gov. Code § 12940(j)(1), and under Title VII.
Defendants assert they are entitled to summary judgment on this
claim due to plaintiff's failure to demonstrate the objective
hostility of his work environment.
Plaintiff's FEHA claim will be evaluated under federal law
because FEHA and Title VII operate under the same guiding
principles. See Brooks v. City of San Mateo, 229 F.3d 917, 923
(9th Cir. 2000). To survive summary judgment, plaintiff must show
the existence of a genuine factual dispute as to whether a
reasonable Hispanic man would find the workplace so objectively
and subjectively racially hostile as to create an abusive working
environment. See McGinest v. GTE Service Corp., 360 F.3d 1103,
1113 (9th Cir. 2004).
To evaluate the hostility of a work environment, the totality
of the following factors are considered: the frequency of
discriminatory conduct; its severity; whether it is physically
threatening or humiliating; and whether it unreasonably
interferes with an employee's work performance. See Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998), McGinest,
360 F.3d at 1113 (9th Cir. 2004). The harassment must be sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment. See
McGinest, 360 F.3d at 1113 (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57 (1986) (internal quotations omitted)).
Defendants argue that plaintiff failed to raise a genuine issue
of a hostile work environment because in his deposition plaintiff
agreed that none of the comments or incidents he now complains
about interfered with his ability to do his job. Moran Decl. Exh.
B at 250-251:18-2; 252:4-6; 253:11-16;259:10-15.
The Court concludes that plaintiff's evidence of a hostile work
environment is not sufficient to survive summary judgment. The
standards for judging hostility are sufficiently demanding to
ensure that Title VII does not become a "general civility code."
Faragher, 524 U.S. at 788. Conduct must be sufficiently extreme
to amount to a change in terms and conditions of the employment.
Faragher, 524 U.S. at 788. Plaintiff relies on the following
incidents to establish his hostile work environment claim: (1) in
1990, a coworker told plaintiff that he was the "token Mexican";
(2) in 1992, the Mayor did not shake plaintiff's hand when
plaintiff delivered his furniture; (3) in 1993, a coworker told
plaintiff to "go speak her lingo" to a Mexican woman because the
coworker did not speak "that Spanish bullshit"; (4) in 1998 or
1999, plaintiff was instructed not to wear dark glasses inside
the building because he looked like a "corrupt Tijuana cop"; and
(5) in 1998, plaintiff overheard Matt Mullan refer to Hispanics
by saying: "You know how those people are."
Teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment. See Manatt v. Bank of
Am., 339 F.3d 792 (9th Cir. 2003) (citing Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998)). Plaintiff here points to
five offensive comments and incidents over a thirteen year
period. While not admirable, given their nature and frequency the
described incidents do not satisfy the standards established for
objective hostility of a work environment. Therefore, the Court
GRANTS defendants' motion for summary judgment on plaintiff's
claim of racial harassment.
III. Failure to prevent harassment under FEHA and Title VII
Plaintiff's Seventh Cause of Action is for defendants' failure
to take appropriate corrective action to stop the harassment
against plaintiff in violation of Cal. Gov. Code § 12940(k)
(formerly 12940(i)). However, in order to prevail on this claim the "necessary foundational
requirements of harassment" must be established. Trujillo v.
North Co. Transit Dist., 63 Cal. App. 4th 280, 284 (1998). Thus,
because plaintiff failed to prove the "essential foundational
predicate of harassment," plaintiff cannot support a finding of
violation of § 12940(k).
Therefore, the Court GRANTS defendants' motion for summary
judgment on plaintiff's claim of failure to prevent harassment.
IV. Evidentiary objections
Defendants have filed evidentiary objections to paragraphs 13
and 14 and portions of paragraphs 5, 6, 7, 9 and 12 of the
Declaration of John Johnson. In a motion for summary judgment
only admissible evidence may be considered by the Court.
Fed.R.Civ.P. 56(c). "When a motion for summary judgment is made and
supported, . . . the adverse party's response, by affidavits or
otherwise . . ., must set forth specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e). John
Johnson was the Town of Windsor's Public Works Director from 1992
through 2001. During that time, Mr. Johnson directly supervised
Mike Carson, who was Antonio Rosas' supervisor. Johnson Decl. ¶
Paragraph 5: Defendants object to paragraph 5, lines 8-9, "When
I spoke to Antonio Rosas regarding Mr. Mullan's comments, Mr.
Rosas was offended and upset." The Court DENIES the objection.
Paragraph 6: Defendants object to paragraph 6, lines 16-17,
"Mr. Mullan seemed to have a general distrust of Mr. Rosas which
was not based on any facts." The Court SUSTAINS the objection on
the grounds that the statement is conclusory and inappropriately
Paragraph 7: Defendants object to paragraph 7, lines 18-20,
"Mr. Mullan criticized each promotion given to Mr. Rosas and felt
that each promotion was a mistake and that he did not think that
Mr. Rosas should be promoted." The Court SUSTAINS the objection
on the grounds that the statements lack foundation, is
conclusory, and inappropriately opinion testimony. Defendants
object to paragraph 7, lines 20-21, "Comments made by Mr. Mullan
caused me to believe that he felt that Mr. Rosas was a dirty
Mexican and not fit to be a supervisor on his team." The Court
SUSTAINS the objection on the grounds that the statement lacks
foundation, is conclusory, and inappropriately opinion testimony. Paragraph 9: Defendants object to paragraph 9, lines 7-9, "I
believe that the discipline he received as a result of that
incident was in excess of what was appropriate given his level of
participation in the event," on the grounds that the plaintiff
cannot create a triable issue of fact by offering a third party
witness declaration which is contradicted by that witness' prior
testimony, and that such testimony lacks foundation. Bank of
Ill. v. Allied Signal Safety Restraint Sys, 75 F.3d 1162, 1169
(7th Cir. 1996). The Court SUSTAINS the objections to this
statement on the grounds it is inadmissible lay opinion testimony
and lacks foundation.
Paragraph 12: Defendants object to paragraph 12, lines 27-2,
"Although Mr. Mullan did not participate in the investigation, he
expressed his dissatisfaction with the results of that
investigation."The Court SUSTAINS the objection on the grounds
that the statement lacks foundation.
Paragraph 13: Defendants object to paragraphs 13, lines 3-8,
"After Antonio Rosas' termination was final and while I remained
employed by the Town of Windsor, I met with Mr. Rosas and
discussed issues relating to his employment and shared with him
my opinion that he was terminated as a result of being Hispanic.
I also told Mr. Rosas that Mr. Mullan appeared to have wanted him
terminated for several years prior to the complaint by Mary
Coburn in April and May of 2003 which resulted in Mr. Rosas'
termination." The Court DENIES the objection to paragraph 13.
Paragraph 14: The defendants object to paragraph 14, lines
9-11, "I believe that the investigation and allegations which led
to Mr. Rosas' termination, and the findings by the Town
management were merely a pretext to terminate Mr. Rosas." The
Court SUSTAINS the objection to paragraph 14 on the grounds that
the statement is improper lay opinion testimony, speculation,
lack foundation and improper conclusion.
For the foregoing reasons and for good cause shown, the Court
hereby GRANTS defendants' motion for summary judgment on
plaintiff's FEHA termination claim, plaintiff's FEHA and Title
VII harassment claims, and plaintiff's failure to prevent
harassment claim. The Court hereby DENIES defendants' motion for
summary judgment on plaintiff's Title VII termination claim.
[Docket No. 25].
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.