The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 35, 41)
This case arises from the refusal to hire Plaintiff James Li ("Li") by Defendant Michael Sheltzer ("Sheltzer"), the Public Defender of Tulare County. Li alleges that Sheltzer did not hire Li based on Li's race, national origin, and protected speech in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the California Constitution. Li moves for summary judgment on each of the thirteen affirmative defenses pled by Sheltzer in his answer. Sheltzer moves for summary judgment on all causes of action alleged against him. For the reasons that follow, both Li's and Sheltzer's motions will be granted in part and denied in part.
Li applied for employment as a deputy with the Tulare County Public Defender's Office in 2005. DUMF No. 1.*fn2 Li's interview panel included Sheltzer, Lisa Bertolino, Joyce Frazier, and Ben Smuckler. DUMF No. 9; POUMF No. 3. Although Sheltzer cannot recall specific examples, during Li's interview, Li made frequent grammatical errors, paused often, and was not very dynamic in his presentation. See DUMF No. 10; Sheltzer Deposition at 11:13-14. Also during the interview, Ben Smuckler asked Li to explain what Li did between the time of graduation from college and attending law school. POUMF No. 4. Li explained that he got employment offers in the defense industry, and because of a Chinese spy incident at the time, Li's employment was placed on hold for a security clearance check. POUMF No. 5. After hearing Li's explanation, Sheltzer stated, "We don't hire gooks, either." POUMF No. 6.*fn3 After hearing Sheltzer's statement, Li was offended and was thinking that Sheltzer may have been making a joke about the politics of Tulare County, but Li did not laugh. Li Deposition at 71:21-24. Other than not laughing, Li looked at Sheltzer and saw no particular facial expression. See id. at 71:25-72:3. Li then looked at Smuckler and Smuckler immediately followed with a question about the nature of the work Li's performed after obtaining an engineering degree. See id. at 72:3-10. Li testified that there was a period of silence after Sheltzer made the "gook statement." See id. at 72:11-14. The period of silence was one second in duration. See id. at 72:15-16. Any indication of disapproval made by Li during the interview was not apparent to Sheltzer and Bertolino. See DUMF No. 24.
Out of concern that the "gook statement" was a botched joke, shortly after the interview, Li sent a thank-you letter to each member of the interview panel. POUMF No. 7-2. Li also sent a letter to Sheltzer on August 14, 2005, that purported to once again thank Sheltzer. See Plaintiff's Exhibit D. On August 25, 2005, Sheltzer wrote a letter to Li in which he informed Li that the position had been offered to another applicant, but that other positions were expected to be open in the Fall. See Plaintiff's Exhibit M. Sheltzer was unaware that Li had filed previous lawsuits alleging discrimination until after the present action was filed in July 2007. DUMF No. 22. The fact that Li had filed lawsuits alleging discrimination was not a factor in the hiring decisions made to appoint other candidates. DUMF No. 23. At all times since Li interviewed, Public Defender Michael Sheltzer determined who would be appointed as a deputy in the public defender's office. DUMF No. 2.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when it is demonstrated that there exists 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); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets it initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
1. Race and National Origin Discrimination*fn4
Sheltzer argues that in cases of racial and national origin discrimination, the courts generally apply a form of the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden shifting framework. Sheltzer expressly does not challenge whether Li can make out a prima facie case of discrimination, but argues instead that he had non-discriminatory reasons for not hiring Li. Specifically, Sheltzer argues that Li was not particularly compelling in his presentation, that Li made grammatical errors, and that there were more qualified applicants.
Li argues inter alia that, during the interview, Sheltzer stated "We don't hire gooks, either." This is direct evidence of discriminatory intent and prevents summary judgment.
The Ninth Circuit "applies the same standards to disparate treatment claims pursuant to Title VII, the [ADEA], and [42 U.S.C.] §§ 1981 and 1983." Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n.11 (9th Cir. 1998); see also Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007); English v. Colo. Dep't of Corrections, 248 F.3d 1002, 1007-08 (10th Cir. 2001) ("'While McDonnell Douglas involved a Title VII claim for failure to hire, the analytical framework it pioneered applies equally to claims brought pursuant to section 1981,' as well as to § 1983 claims based on allegations of racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment"); Lelaind v. City and County of San Francisco, 576 F.Supp.2d 1079 (N.D. Cal. 2008). When a plaintiff alleging discrimination responds to a summary judgment motion, he "may proceed by using the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the defendant]." Metoyer, 504 F.3d at 930; see Surrell v. Cal. Water Serv., 518 F.3d 1097, 1105 (9th Cir. 2008); Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005). Direct evidence is "evidence, which, if believed, proves the fact [of discriminatory animus] without inference or presumption" and "typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer." Dominguez-Curry, 424 F.3d at 1038. The direct evidence produced need not be substantial; "very little direct evidence of the employer's discriminatory intent [is needed] to move past summary judgment." Chuang v. University of Cal. Davis, 225 F.3d 1115, 1128 (9th Cir. 2000). The Ninth Circuit has "repeatedly held that a single discriminatory comment by a plaintiff's supervisor or decisionmaker is sufficient to preclude summary judgment for the employer." Dominguez-Curry, 424 F.3d at 1039 (citing Chuang, 225 F.3d at 1128; Cordova v. State Farm Ins., 124 F.3d 1145, 1149 (9th Cir. 1997)); see also Metoyer, 504 F.3d at 937-38.
It is undisputed that Sheltzer was the primary decision-maker with respect to hiring decisions. DUMF No. 2. Li, who is of Chinese decent, declares that Sheltzer told him, "We don't hire gooks, either." POUMF No. 5. The term "gook" is a racial slur. See Hart v. Township of Hillside, 228 Fed. Appx. 159, 162 n.5 (3d Cir. 2007); Collier v. Ram Partners, Inc., 159 F.Supp.2d 889, 894-95 (D. Md. 2001); Cherry v. Menard, Inc., 101 F.Supp.2d 1160, 1181 (N.D. Iowa 2000). Merriam-Webster's on-line dictionary defines "gook" as meaning: "usually offensive: a nonwhite or non-American person; specifically: Asian." Sheltzer's statement (although denied by Sheltzer) is direct evidence of discriminatory intent. Since Sheltzer was the primary decision-maker with respect to hiring, and since Li was not offered a job, Sheltzer's alleged statement is sufficient to ...