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November 2, 2005.

TOWN OF WINDSOR, et al., Defendants.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

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 ...

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