The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT/SUMMARY ADJUDICATION
Before the court is Defendant City of Fresno's motion for summary judgment or, in the alternative, partial summary judgment/summary adjudication pursuant to Rule 56 of the Federal Rules of Civil Procedure. The following background facts are taken from the parties' submissions in connection with the motion and other documents on file in this case.*fn1
Plaintiff Robert Harris is an African-American male who is employed by the City of Fresno ("City") in its Water Division. He was initially hired by the City as an Engineering Technician I. On approximately April 1, 1992, he was promoted to his current position as Engineering Technician II. Plaintiff is still employed by the City in its Water Division and he has not sought employment outside of the Water Division or the City since 2002. During his entire tenure with the City, Plaintiff has received nothing but positive performance reviews. (Doc. 39-3 at 2; Doc. 38-6 at 6.)
In his lawsuit against the City, Plaintiff contends that, during his employment with the City, he has been discriminated against and harassed due to his race. Events and statements that compromise Plaintiff's claims of discrimination and harassment are set forth below.
A. Reclassification To Senior Technician
In November 2002, the Personnel Services Department ("HR Department") received a request by Plaintiff to reclassify his job position from Engineering Technician II to Senior Engineering Technician. (Doc. 38-6 at 7.) In response to the request, the HR Department followed its usual procedures by having an analyst: (1) obtain a supervisor's statement of job duties; (2) review documents; and (3) conduct comparative audits. (Id.) It is undisputed that the analyst recommended that Plaintiff's job classification remain the same, as Plaintiff's job duties were consistent with those of an Engineering Technician II, and the recommendation was approved. (Id.)
In June 2003, the HR department issued a written decision, signed by Juanita Chavez, in which it determined that Plaintiff was properly classified as an Engineering Technician II based upon his current job duties. (Id.) After allowing Plaintiff an opportunity to provide additional information supporting his reclassification request, the HR Department's prior decision was reaffirmed on or about December 8, 2003, as reflected in a writing signed by Chavez, and reaffirmed a third time on May 4, 2004, as reflected in a writing signed by Nancy Kast of HR. (Id. at 8.) In doing so, the HR Department concluded that Plaintiff's duties corresponded with the job classification of Engineering Technician II, and did not reach the level of responsibility that is reflective of a Senior Engineering Technician. (Id. at 8.)
As to the decision-makers involved in the reclassification denial, Chavez and Kast, Plaintiff testified at his deposition that he was unaware of any personalized racial animus on their part. (Id.) Nevertheless, Plaintiff believes (but the City does not concede) that other non-African-American workers with the "same experience and qualifications" as Plaintiff have been reclassified from Engineering Technician II to Senior Engineering Technician and paid at a higher rate. (Pl. Decl. ¶ 11.)
B. Project Manager Position
In February 2006, the City posted a promotional opportunity for "Project Manager." (Doc. 38-6 at 9.) In 2006, Plaintiff applied for the Project Manager position. (Doc. 39-3 at 4.) As part of the test that all applicants were required to take to be considered for the Project Manager position, Plaintiff was interviewed by an outside, three-member panel which included David Fey, a Caucasian. (Doc. 39-3 at 4; Doc. 38-6 at 10.) After the HR process, which included this outside panel review, Plaintiff was 14th on the eligible list. (Doc. 38-6 at 10.) The HR Department sent a list of the top seven (7) candidates for Project Manager to the Water Division pursuant to the Fresno Municipal Code (Plaintiff was not on the list, as he was 14th). (Doc. 38-6 at 10.) The individual ultimately selected by the Water Division, Mark Hughson, a Caucasian, was on the eligible list and was interviewed by the Division. (Id.; Doc. 39-3 at 5.)
Prior to serving on the outside panel, Fey once worked for the Water Division alongside Plaintiff. (Pl. Dep. 80:17-18; 80:24-81:8.) According to Plaintiff, one day during Plaintiff's employment, in Plaintiff's presence, Fey said "Arnold Schwarzenigger" instead of "Schwarzenegger." (Pl. Dep. 84:2-6.) Plaintiff did not appreciate this comment. (Pl. Dep. 84:9.)
As of 2004, Plaintiff's sister-in-law was ill with cancer.
(Pl. Dep. 253:23-254:1.) Plaintiff asked his supervisor, Neil Montgomery, for time off from work so that Plaintiff could, along with his wife, visit his sister-in-law. (Doc. 39-3 at 8.) In response to this request, Montgomery admonished Plaintiff for overuse of sick time and warned Plaintiff that he would have a letter on his desk when he returned from his visit. (Id. at 9.) Because he worried about the repercussions, Plaintiff did not visit his sister-in-law. (Id.) The sister-in-law eventually passed away on January 2, 2005, before Plaintiff had an opportunity to see her again. (Id; Pl. Dep. 254:24.) Plaintiff does not dispute that throughout his years with the City, Plaintiff has been cautioned about his use of sick leave and about the need to comply with the City policy. (Doc. 38-6 at 11.)
D. Request For Safety Boots And Transfer
Montgomery and other supervisors went through training in which they were advised of the utility of slip-on, steel-toe boots for individuals who worked out in the field on a periodic basis.
(Doc. 38-6 at 11.) In 2005, Plaintiff started performing well abandonments and he worked in the field on a periodic basis. (Id.) Plaintiff asked Montgomery to authorize steel-toe work boots (not the slip-on boots) for Plaintiff's use. (Id.; Montgomery Decl ¶ 6; Pl. Dep. 10-13.) Montgomery requested that, instead, Plaintiff try the slip-on, steel-toe boots to see if they meet his needs. (Doc. 38-6 at 11.) According to Plaintiff, these boots were not appropriate. Jagged objects could penetrate the bottom sole of the slip-on boots because the bottom sole was not thick enough. (Doc. 39-3 at 6.) Rather than the slip-on, steel-toe boots, Plaintiff wanted "work boots" or "safety boots" which, apparently, have a thicker sole.
According to Plaintiff, on a prior occasion, Montgomery had authorized safety boots for a man named "Buster" who Plaintiff believes is Hispanic or Latino. (Pl. Dep. 123:18-20; 124:6-7.) While Montgomery did not authorize safety boots for Plaintiff's use, unknown to Montgomery, Plaintiff later acquired authorization for safety boots from Montgomery's superior, Lon Martin. (Doc. 39-3 at 7; Pl. Dep. 136:24-25.) The City does not dispute that third party contractors, who Plaintiff had to interact with, required him to wear safety boots while on-site. (Doc. 39-3 at 6.)
Shortly after Plaintiff secured authorization from Martin, there was a brief conversation in the parking lot between Plaintiff, Martin and Montgomery. (Doc. 39-3 at 7.) When Montgomery's failure to issue the safety boot authorization came up, Montgomery became visibly angry and told Martin that he wanted Plaintiff out of his department. (Doc. 39-3 at 7.) Montgomery admits that he "became increasingly frustrated" after it was revealed that Plaintiff had "obtained approval elsewhere" and Plaintiff continued to take Montgomery's time on this issue. (Montgomery Decl. ¶ 7.)
According to Martin, after this conversation in the parking lot, he had discussions and/or meetings with Plaintiff, Plaintiff's union representative, Garth Gaddy, Montgomery, and others as to the situation and the potential solutions. (Martin Decl. ¶ 6.) According to Martin, he believed that Plaintiff was having ongoing disputes with Montgomery. (Martin Decl. ¶ 5.) Plaintiff was transferred, within the Water Division, to Gaddy's supervision in the Telemetry Section. (Doc. 38-6 at 12-13; Doc. 39-3 at 7; Gaddy Decl. ¶ 2.) According to Martin, he believed Gaddy would be a better fit as supervisor, and he wanted Plaintiff to continue performing well abandonments. (Martin Decl. ¶ 7.)*fn2 According to Plaintiff, he has spent increased time in the field as a result of the transfer, and has not been able to "display his full repertoire of skills and abilities." (Doc. 38-6 at 13.) Plaintiff protested the transfer (Doc. 39-3 at 7), and he feels isolated from the rest of his team in his new section (Pl. Decl. ¶ 21.) He admits, however, that he has had no problems with Gaddy's supervision and has not been the subject of any negative reviews or disciplinary conduct. (Doc. 38-6 at 13.)
E. Alleged Improper Racial Comments
Prior to his transfer, and allegedly throughout his employment, Plaintiff has heard several comments which he finds objectionable.
a. "I got your Back; White Power, Brother"
Peyton worked in the City's Water Division. Peyton left the City's employ in 2002. (Doc. 38-6 at 4.) It is undisputed that, while employed by the City, Peyton reviewed some of Plaintiff's work. (Doc. 39-3 at 2.)
At his deposition, Plaintiff recalled a conversation that occurred in the mid-90's between Martin McIntyre and Peyton. Plaintiff overheard Peyton say to McIntyre: "Hey, man, I got your back; white power, brother." (Pl. Dep. 166:24-25.)
b. "Okay, Back to Work Slave"
Later, in 2000, Plaintiff was having a conversation with Peyton and two co-workers, Rick and Donna. (Doc. 39-3 at 3.) Just after this conversation concluded, and as Rick and Donna were walking away, Peyton stated "Okay, back to work slave." (Id.) Plaintiff drafted an e-mail to Montgomery in which Plaintiff purported to document the conversation. (Pl. Dep. Ex. 18.) As stated in Plaintiff's e-mail, he asked Peyton what he meant by the comment and Peyton responded that "Rick was the slave/indentured slave becasue (sic) he is paid." (Id.) Plaintiff felt that Peyton was referring to Plaintiff. (Pl. Dep. 171:9.) Ultimately, after an investigation into the matter, Peyton was advised that he should be sensitive about comments made in the presence of co-workers. (Montgomery Decl. ¶ 11, Ex. A.)
According to Plaintiff, Montgomery and Peyton were once discussing movies and Peyton said "something about Arnold 'Schwarzenigger.' And I said, What did you say? And he got quiet and that was it." (Pl. Dep. 62:20-22.)
In 2001, Peyton attended a work meeting with others. Upon concluding the meeting, as he was leaving, Peyton walked past Plaintiff and, according to Plaintiff, Peyton uttered the words "black man." (Pl. Dep. 175:11-15, Ex. 20.) Plaintiff asked Peyton what he said, and Peyton replied with "nothing." (Pl. Dep. 176:10, Ex. 20.) In Plaintiff's words, the "black man" utterance was a "mumble" and "inaudible." (Pl. Dep. 177:24-178:1.) The matter was investigated (Montgomery Decl. ¶ 3), and the Water Division concluded that "it is unknown if the words were spoken or not" (Montgomery Decl. Ex. B).
a. "There are Niggers and then there are Blacks"
Little worked for the City as a Water Supervisor I. (Doc. 39-3 at 3.) Sometime in the late 1990's to 2002 time-frame (Doc. 38-6 at 4; Little Decl. ¶ 2), Plaintiff had a conversation with Little in which Little stated "there are niggers and then are blacks." (Pl. Dep. 182:15-16.) Neither party disputes that such a comment was made. Indeed, Little admits in his declaration:
In with Plaintiff the late 1990's in which Plaintiff was upset by Senator or 2000-01, I recall a conversation John McCain's use of the term 'gooks.' I indicated that perspective as a prisoner of war, and that does not mean Plaintiff had to look at the situation from Mr. McCain's the conversation he categorized all Asians by that term. Later that day, effect that there are good and bad categorizations within continued and I stated something to the asians and gooks, blacks and niggers.... each race: whites and honkies, hispanics and spics, (Little Decl. ¶ 2.) Over a year later (Pl. Dep. 185:2-3), as Plaintiff recalls, Little told Plaintiff about an employee who was fired for using the word "niggardly" in a public meeting (Pl. Dep. 185:22-24;192:8).
According to Plaintiff, Little told him "I got a joke for you" and Plaintiff stated he did not "want to hear your jokes and you know what I'm talking about." (Pl. Dep. 186:6-8.) Little indicated "it's not like that at all" (Pl. Dep. 186:9), Plaintiff agreed to listen, and Little said "What do you think of a black man getting fired for using the word 'niggardly'? And I asked him, Didn't I just tell you not to go there? Didn't I just tell you not to do that? He said, Well, don't you think it's funny? It's not the same. 'Niggardly' and 'nigger' is not the same." (Pl. Dep. 185:11-18.) Later, Little provided Plaintiff with documentation on the word "niggardly" and eventually the dictionary was brought out. (Pl. Dep. 190:6-11; 190:16-191:6; 193:15-19.)
In his declaration, Little recounts the situation differently: In approximately 2001-2002, I recall that Plaintiff 'niggardly.' I did not brought up a story about a politician's use of the term Plaintiff and I looked it up together. Thereafter, I know what the word meant, so explained that according to the dictionary the term was not derived from meaning, and that Plaintiff should therefore not be so the term 'nigger' and had a different offended by its use. Because the term Plaintiff appeared upset by conversation with an African-American supervisor in the and our conversation, I discussed the Department, Jim Wilson, and Mr. Wilson advised me that there was nothing to worry about.
(Little Decl. ¶ 3.) At his deposition, Montgomery recalled that, before the initiation of Plaintiff's lawsuit, someone told him (Montgomery) that Little used the word "nigger" in front of Plaintiff. (Doc. 39-3 at 4; Montgomery Dep. 47:14.) Montgomery testified that he did not pursue any action after hearing this: "What -- there's nothing for me to do. I don't even know who I heard it from. There are 150 people in the water yard, and rumors and discussion go, and you hear things. You have no idea whether there's a basis for them. So, no, I didn't do anything." (Montgomery Dep. 48:1-10.).
According to Plaintiff's testimony, Dick Short is a water production supervisor. (Pl. Dep. 199:25-200:1). It is undisputed that, from 2004 to 2006, Short used the word "boy" more than once when referring to African-American men. (Doc. 39-3 at 8.) When asked about those occasions, Plaintiff testified that, on one occasion, when talking about Tiger Woods, Short said "that boy is good." (Pl. Dep. 57:8.) On another occasion, Short referred to some African-American man as "a big boy." (Pl. Dep. 55:22-23.)
b. "If you can't Get your Niggers to do this, I'll get Mine"
According to Plaintiff, at some point in time, Short said to another individual, "[i]f you can't get your niggers to do this, I'll get mine." (Doc. 39-3 at 9; Pl. Dep. 325:1-4.) The individual to whom Short was speaking is believed to be Kenny Jennings, a Caucasian. (Pl. Dep. 325:20-1.)
On March 12, 2004, in response to a group e-mail from Leslie Smith, an executive secretary, about a "slotted map box holder thingie" and a "hanging/pull down map holder thingie," Montgomery wrote back that Plaintiff "understands technical terms such as 'holder thingie.'" (Pl. Dep. Ex. 24, Montgomery Decl. ¶ 14.) Plaintiff did not find any humor in Montgomery's e-mail. (Pl. Dep. Ex. 24.)
F. Administrative Remedies And Complaint
It is undisputed that Plaintiff filed a single complaint with the DFEH on or about August 21, 2006. (Doc. 38-6.)*fn3 Plaintiff filed an initial complaint in federal court on August 20, 2007 (Doc. 1) and a first amended complaint on March 5, 2008 (Doc. 13). Plaintiff's first amended complaint, the operative pleading, contains five claims, and they are: (1) disparate impact discrimination based on race in violation of Title VII, 42 U.S.C. § 2000e et seq.; (2) disparate treatment based on race in violation of Title VII; (3) retaliation in violation of Title VII; (4) deprivation of civil rights under 42 U.S.C § 1981; (5) and race discrimination and harassment under California's Fair Employment and Housing Act ("FEHA"). (Doc. 13 at 1.)
Plaintiff alleges causes of action for violations of Title VII, FEHA, and 42 U.S.C. § 1981. The City moves for summary judgment on the grounds that "Plaintiff cannot maintain these claims as they are barred by the statute of limitations; Plaintiff cannot satisfy the requisite elements; and he cannot satisfy Monell. Plaintiff cannot establish any materially adverse action was taken against him for racial or retaliatory reasons, or that he was the subject of any severe or pervasive harassment." (Doc. 25 at 2.) The City also moves for summary adjudication on several listed issues, some of which overlap with the foregoing. (Id.)
III. STANDARD OF DECISION
Summary judgment, or summary adjudication, is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
IV. DISCUSSION AND ANALYSIS
A. Disparate Impact Claim
Claims of disparate impact "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another." Raytheon Co. v. Hernandez, 540 U.S. 44, 52-3 (2003) (internal quotation marks omitted). "To establish a prima facie case of disparate impact under Title VII, the plaintiff must: (1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact." Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). "A plaintiff establishes a prima facie case of disparate impact by showing a significant disparate impact on a protected class caused by a specific, identified, employment practice or selection criterion." Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002). In a disparate impact case, "[t]he plaintiff must actually prove the discriminatory impact at issue." Stout, 276 F.3d at 1122 (internal quotation marks omitted).
The City argues that, in discovery, Plaintiff was unable to identify any policy or practice of the City that has a disparate impact on African-Americans or come forth with any evidence that supports this claim. Plaintiff testified that he could not identify any "written policy" of the City that, when applied by the City, adversely impacted African-Americans. (Pl. Dep. 271:16.) When questioned further, Plaintiff explained the "policy" or procedure of the City he believed adversely affected African-Americans: "I have to say that as a personal and a political policy that's not even written, it's how people are, it's what they believe and they do what they feel they have the authority to do, and they do it under the color of law or under the authority of their positions." (Pl. Dep. 271:22-272:2.) This conclusory testimony is insufficient to create a triable issue that the City has some employment practice, selection criterion, or custom that has a significant racially adverse impact on a protected class or group. In a written discovery response (Rubin Decl. Ex. C at 11), Plaintiff provided no description of what specific employment practice or criterion he believed exists, or how it disparately impacted a protected class or group.
Plaintiff does not even mention his disparate impact claim in his opposition brief. Plaintiff's only apparent attempt to salvage this claim is his response to the City's separate statement of undisputed material facts. There, Plaintiff briefly states: "Plaintiff testified that over his time with Defendant, it has become clear to him that only non African-Americans are promoted through the ranks. Plaintiff indicated that there is discrimination in the promotion process." (Doc. 38-6 at 21.) In support of these arguments, Plaintiff cites to paragraph twelve (12) of his declaration.
Paragraph 12 of Plaintiff's declaration states, "[a]s a result of these experiences, I have concluded that Defendant's promotional process has the effect of discriminating against African Americans." The "experiences" that Plaintiff refers to are his own alleged experiences in not being awarded the Project Manager position, which was given to a Caucasian candidate, even though Plaintiff felt qualified for the job, and not being reclassified as a Senior Engineering Technician despite requesting reclassification. According to Plaintiff, other non-African-American workers, "including Neil Montgomery and Litu Bucu, have been re-classified" to the Senior Engineering position and they allegedly have the "same experience and qualifications" as Plaintiff. (Pl. Decl. ¶ 11.)
Plaintiff's declaration is insufficient to create a triable issue. Plaintiff has not identified one other African-American who, allegedly, has not been promoted on account of race, nor has Plaintiff pointed to any evidence which suggests that, for promotions, African-Americans are disproportionately affected when compared to other racial groups. See Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003) ("Summary judgment is appropriate when statistics do not support a disparate impact analysis"); see also Lawrence v. Dep't of Interior, 525 F.3d 916, 921 (9th Cir. 2008) (affirming grant of summary judgment in favor of the employer on a disparate impact claim, stating that plaintiff "presented evidence that the BIA's policy affected some Indian employees, but he presented no evidence that the failure to provide actual and timely notice disproportionately affected Indians more than other racial groups."); Paige v. California, 291 F.3d 1141, 1145 (9th Cir. 2002) (recognizing that "[s]tatistical evidence is used to demonstrate how a particular employment practice causes a protected minority group to be under represented in a specific area of employment (for example, hiring or promotion)" and stating that the "statistical analysis must show a disparity that is sufficiently substantial") (internal quotation marks omitted).
In addition, to advance a Title VII disparate impact claim, the employee must be able to pinpoint some "facially neutral employment practice," Paige, 291 F.3d at 1145 (internal quotation marks omitted), that is causing the alleged disparate impact, and Plaintiff is unable to do so here. Although Plaintiff conclusorily claims there is discrimination in the "promotion process," Plaintiff has not demonstrated (or even attempted to demonstrate) what compromises the discriminatory promotion process nor does he describe the "face" of this alleged practice to permit an evaluation of its impact.
For the reasons discussed above, with respect to his disparate impact claim, Plaintiff has failed to create a genuine issue of material fact. Summary judgment on this claim is GRANTED in favor of the City.
B. Disparate Treatment Claim
Federal law prohibits an employer from taking an adverse employment action against an employee because of his or her race. See 42 U.S.C. § 2000e-2; Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). "For a prima facie case, [the plaintiff] must offer evidence that give[s] rise to an inference of unlawful discrimination, either through the framework set forth in McDonnell Douglas Corp. v. Green or with direct or circumstantial evidence of discriminatory intent." Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003) (footnotes omitted). In other words, "the plaintiff first must establish a prima facie case of discrimination by coming forward with evidence that an employer considered race in its employment decisions." Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 470 F.3d 827, 837 (9th Cir. 2006).
To create a prima facie case under the McDonnell Douglas framework, the plaintiff "must show that: (1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) similarly situated employees not in his protected class received more favorable treatment." Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002); see also Leong, 347 F.3d at 1124. If the "plaintiff establishes a prima facie case" a presumption of discrimination arises and "the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision." Leong, 347 F.3d at 1124. "If the employer offers a nondiscriminatory reason, the burden returns to the plaintiff to show that the articulated reason is a pretext for discrimination." Id. The plaintiff can show that the employer's articulated reason is pretextual "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Villiarimo v. Aloha Island, Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (internal quotation marks omitted).
Apart from the McDonnell Douglas framework, a plaintiff can raise an inference of discrimination (i.e., create a prima facie case) with circumstantial or direct evidence of discriminatory intent. Vasquez, 349 F.3d at 640. If the plaintiff attempts to do so and the employer provides evidence of a legitimate, nondiscriminatory reason for the adverse employment action, to avoid summary judgment, the plaintiff's evidence must be such as to create a triable issue as to discriminatory intent. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) (recognizing that whether an employee uses the McDonnell Douglas approach or "relies on direct or circumstantial evidence of discriminatory intent," the employee must "counter" the employer's legitimate, nondiscriminatory reason for its adverse action in such a manner as to create a genuine issue as to discriminatory intent); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (recognizing that whether the employee uses the McDonnell Douglas framework or other evidence to create a prima facie case, when the employer offers a legitimate, nondiscriminatory reason for its adverse action, the question is whether a "rational trier of fact could" conclude that the "employer's action was taken for impermissibly discriminatory reasons"); Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 473 & n.16 (9th Cir. 1991).
1. Statute Of Limitations
The City asserts that Plaintiff's Title VII race discrimination claim is barred by the statute of limitations. The City seeks summary adjudication on the issue that Plaintiff "cannot pursue alleged adverse employment actions that took place prior to October 25, 2005, for purposes of Title VII." (Doc. 25 at 2.)
Any adverse employment action "which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed" and, as such, "it is merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). "Discrimination claims under Title VII ordinarily must be filed with the EEOC within 180 days of the date on which the alleged discriminatory practice occurred. 42 U.S.C. § 2000e-5(e)(1). However, if the claimant first 'institutes proceedings' with a state agency that enforces its own discrimination laws-a so-called 'deferral' state-then the period for filing claims with the EEOC is extended to 300 days." Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174 (9th Cir. 1999). California is a deferral state. Josephs v. Pac. Bell, 443 F.3d 1050, 1054 (9th Cir. 2006); Bouman v. Block, 940 F.2d 1211, 1219-20 (9th Cir. 1991). Accordingly, the 300-day limitation period applies. It is undisputed that Plaintiff filed his charge of discrimination with the DFEH, a local agency, on or about August 21, 2006. Three hundred days prior to that is October 25, 2005, a fact which neither party disputes. The alleged adverse employment actions must fall "within the 300-day limit" Bouman, 940 F.2d at 1219, or else they are barred by the statute of limitations. "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002); see also RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 2002) ("[T]he statute of limitations runs separately from each discrete act.").
Plaintiff alleges he was improperly denied reclassification in the 2003-2004 time-frame. (Doc. 38-6.) More specifically, it is undisputed that after he submitted a request for reclassification in November 2002, the HR department decided, in June 2003, not to reclassify Plaintiff, and, after Plaintiff had an opportunity to submit more information, the HR's decision was reaffirmed on December 8, 2003 and again on May 4, 2004. (Doc. 38-6 at 7-8.) Plaintiff claims that these decisions were based on his race. These three decisions all occurred well outside the 300-day limit. In hopes of escaping the statute of limitations, Plaintiff raises two arguments.
First, Plaintiff argues that he requested "re-classification to this position [Senior Engineering Technician] multiple times, both orally and in writing (AUMF #22)" and his requests were "repeatedly denied." (Doc. 38-5 at 9.) Plaintiff makes this brief argument suggesting that the City made an additional decision denying his reclassification -- apart from the three time-barred decisions -- and this decision fell within the statute of limitations period. Plaintiff's argument, and the asserted evidence supporting it, does not overcome the City's statute of limitations defense.
Plaintiff does not address the statute of limitations directly, i.e., Plaintiff does not even state or argue that any of the "repeated" denials occurred within the 300-day limit. The evidence Plaintiff relies on in connection with "AUMF # 22" is deposition testimony from Plaintiff which does not discuss any additional denial of reclassification beyond the three time-barred denials discussed above.
Plaintiff's declaration is equally unavailing. Plaintiff declares: "Since 1995, I have been performing the duties of Senior Engineering Technician, but have remained classified as an Engineering Technician II, despite multiple requests to be re-classified." (Pl. Decl. ¶ 10.) There is no mention of the dates of these alleged "requests." There is also no statement in Plaintiff's declaration that actual decisions were made in response to these "multiple" requests. Plaintiff does not provide the names of any alleged decision-makers involved or other salient details which would permit an inference that an actual decision was made within the 300-day limit in response to his asserted "multiple requests." For these reasons, Plaintiff's "repeatedly denied" argument does not overcome the statute of limitations issue.
Second, Plaintiff argues that until his recent transfer to Gaddy's supervision, his pay was less than what it should have been had he been properly classified as a Senior Engineering Technician. (Doc. 38-5 at 9.) In other words, Plaintiff argues that even though the adverse employment action (the decision not to reclassify him) occurred outside the statute of limitations period, the effect of that decision (the inequitable compensation level) was experienced within the statute of limitations period. Under this theory, Plaintiff was underpaid until the time he was transferred. From the briefing and declarations, it appears that Plaintiff was transferred some time around December 2005 (which is after October 25, 2005), and so the effect (the decreased compensation level) could have occurred within the 300-day limit.*fn4
The statute of limitations runs separately from each discrete discriminatory act, not the ill effect of the act. See Morgan, 536 U.S. at 114; Evans, 431 U.S. at 558; Garcia v. Brockway, 526 F.3d 456, 462-63 (9th Cir. 2008). This is the usual rule. When applied in this case, this rule would eviscerate Plaintiff's argument and bar his disparate treatment claim to the extent it is based on the three decisions (with the most recent occurring in May 2004) to deny Plaintiff's reclassification request. However, a recent act passed by Congress, which neither party discusses, may impact the analysis.
On January 29, 2009, the Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. No. 111-2) was enacted into law. It amended 42 U.S.C. § 2000e-5(e). As amended, that section now provides:
practice occurs, with respect to discrimination in For purposes of this section, an unlawful employment compensation in violation of this subchapter, when a discriminatory compensation decision or other practice, adopted, when an individual becomes subject to a discriminatory compensation decision or other practice is or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
42 U.S.C. § 2000e-5(e)(3)(A) (emphasis added). Congress deemed this amendment retroactive to May 28, 2007: "[t]his Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 . . . . that are pending on or after that date." Pub. L. 111-2, § 6. The amendment was in response to Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
In Ledbetter, the Supreme Court analyzed when the statute of limitations begins to run on an employer's "pay-setting decision" that is allegedly discriminatory on the basis of sex. Ledbetter, 550 U.S. at 621. The pay-setting decisions in Ledbetter were made outside the statute of limitations period, but the effects of those decisions, the receipt of reduced compensation, continued into the limitations period. Id. at 623, 628. Drawing on prior precedent, the Court concluded that the "charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination." Id. at 628. "Because a pay-setting decision is a 'discrete act,' it follows that the period for filing an EEOC charge begins when the act occurs." Id. at 621. With respect to unlawful discrimination in compensation, Congress disagreed with this analysis as evidenced by the Lilly Ledbetter Fair Pay Act. Now, as a result of the Act, for purposes of claims of discrimination in compensation, the ill effect of a prior discriminatory compensation decision or practice can be considered in the statute of limitations analysis.
Plaintiff's lawsuit was filed after May 28, 2007, after the Ledbetter retroactive date. The amendment applies in this case. Plaintiff has not strictly labeled his claim as one for discrimination in compensation. The substance of his claim, however, is that based on his qualifications and experience, he should have been classified as a Senior Engineering Technician and paid accordingly (i.e., earning more money). Plaintiff alleges that the decision not to reclassify him as a Senior Engineering Technician was illegally motivated by his race. According to Plaintiff, he continued to receive less pay (i.e., pay not commensurate with a Senior Engineering Technician position) until he was transferred to Gaddy's supervision. No party has discussed whether and to what extent the Lilly Ledbetter Fair Pay Act impacts the statute of limitations issue in this case. Given that neither party has raised ...