UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 1, 2009
MELVIN ROSALES AND CHARLIE HARRIS, PLAINTIFFS,
CAREER SYSTEMS DEVELOPMENT CORPORATION, A DELAWARE CORPORATION; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.
MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiff Melvin Rosales brought this action alleging that his employer, defendant Career Systems Development Corporation ("CSDC"), unlawfully terminated his employment because of his age, race, national origin, and for engaging in certain protected activities. Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.*fn1
I. Factual and Procedural Background
Defendant CSDC is a private company that contracted with the U.S. Department of Labor to operate the Sacramento Job Corps Center ("Center"). (Stinson Decl. ¶ 3.) The Center provides free education and vocational training for disadvantaged young people between the ages of sixteen and twenty-four. (Id.)
In January 2002, the Center hired plaintiff as a Vocational Counselor. (Rosales Decl. ¶ 2.) Plaintiff is a Filipino man who was born in the Phillippines and, at the time he was hired by the Center, was fifty-nine years old. (Id.) As part of the hiring process, plaintiff was initially interviewed by Alan Roberts, who was a Group Life Supervisor at the time, followed by Edward Bianis,*fn2 who was a Counseling Supervisor. (Id. ¶ 4.)
A few months after the Center hired plaintiff, Roberts demoted Bianis, purportedly due to certain complaints made by Vocational Counselors. (Id. ¶ 5-6; Bianis Decl. ¶ 8.) Plaintiff and other Vocational Counselors, however, denied that they had made any complaints, and they wrote a letter to Roberts requesting a meeting to discuss Bianis's demotion. (Rosales Decl. ¶ 6; Bianis Decl. ¶ 8.) According to plaintiff, Roberts became very confrontational at this meeting and, thereafter, plaintiff's relationship with Roberts was unfriendly. (Rosales Decl. ¶ 6; Bianis Decl. ¶ 8.)
In December 2003, plaintiff applied for a promotion to the position of Director of Social Development. (Id. ¶ 8.) That position required a bachelor's degree in "counseling or [a] work-related field," and applicants with a master's degree in "counseling, social services[,] or psychology" were preferred. (Id. Ex. B at 1.) Plaintiff had both a bachelor's degree and a master's degree in the specified fields, but the position was ultimately given to one Jack Jolliff, a Caucasian who had neither a bachelor's degree in the specified fields nor a master's degree. (Id. ¶ 9.) Plaintiff contacted Eugene Harris, one of the persons who interviewed applicants for the position, and stated that he believed he had been discriminated against on the basis of his race and age, but no action was taken. (Id. ¶¶ 10-11.)
In September 2004, plaintiff applied for a promotion to the position of Director of Employability. (Id. ¶¶ 12-13.) That position required a bachelor's degree in a "work-related field," and applicants with "[t]hree years [of] work-related experience, one of which was in a supervisory capacity," were preferred. (Id. Ex. D at 1.) Although plaintiff had these qualifications, the position was ultimately given to one Deana Gelman, a person who had less experience than plaintiff and for whom the application deadline was extended. (Id. ¶¶ 13-15.) Plaintiff contacted Peter Gregerson, the Center Director at the time, and indicated that he believed he had been discriminated against on the basis of his race and age, but no action was taken. (Id. ¶ 16.)
In the fall of 2005, Roberts and Traci Allen, the Center's Career Development Director, interviewed plaintiff for the position of ACT/OCT Coordinator. (Id. ¶¶ 18-19; Roberts Decl. ¶ 4; see Durrant Decl. Ex. 12.) Roberts and Allen ultimately decided to promote plaintiff to that position. (Rosales Decl. ¶ 18; Roberts Decl. ¶ 4.) On December 6, 2006, Allen completed a "Performance Growth & Development Assessment" evaluating plaintiff's performance as ACT/OCT Coordinator, in which she described plaintiff as meeting or exceeding all work-related expectations. (See Rosales Decl. Ex. F.)
On December 9, 2006, plaintiff and his wife attended the wedding of Juan Silva, whom plaintiff was currently mentoring as a trainee at the Center. (Id. ¶ 19.) Plaintiff and his wife brought a gift, a small pot worth approximately twenty dollars. (Durrant Decl. Ex. 2 ("Rosales Dep.") at 115:2-4.)*fn3 At the wedding, plaintiff sat with another trainee, but plaintiff soon left after approximately thirty minutes when certain trainees started drinking alcohol. (Id. at 115:16-19.) Plaintiff believed that remaining at the wedding and drinking alcohol with the trainees would be inappropriate fraternization, which is prohibited by Center policy. (Id. at 115:21-116:2.)
The Center's policy against fraternization is provided in a form titled, "Sexual Harassment [and] Staff/Student Fraternization." (Durrant Decl. Ex. 4 ("Policy") at 1.) When plaintiff was first hired by the Center in January of 2002, he received and signed a copy of this form, which stated:
Staff/Student Fraternization is defined as follows: Socializing with students on or off Center, except when in the performance of one's job.
Visiting with students.
Providing rides to students in private vehicles. Borrowing/lending money or other items to students. Inviting students to a staff member's home, or providing housing to students.
Selling to or buying from students.
Getting involved with a student, in any manner other than while carrying out the duties and responsibilities of one's job. (Id.) Above plaintiff's signature, that form also provided, "I acknowledge by my signature that I have read and understand [the Center's] rules and regulations relating to Sexual Harassment and Staff/Student Fraternization. I understand that by not adhering to the above rules, I will be subject to immediate discipline up to and including dismissal from my job." (Id.)
On December 11, 2006, plaintiff informed his supervisor, Allen, that he had attended Silva's wedding and had given Silva a gift. (Rosales Decl. ¶ 22; Allen Decl. ¶ 4.) Allen subsequently met with Roberts and Human Resources Manager Rebecca McClure to discuss plaintiff's admission. (Allen Decl. ¶ 4.) Allen, Roberts, and McClure determined that plaintiff's actions had violated the Center's fraternization policy and concluded that it was appropriate to terminate plaintiff's employment. (Id.; Roberts Decl. ¶ 6.)
Roberts then contacted Jeff Stinson, Senior Vice President of Human Resources and Administration for CSDC, who agreed that plaintiff's conduct had violated the fraternization policy and that it was appropriate to terminate plaintiff's employment on that basis. (Roberts Decl. ¶ 6; Stinson Decl. ¶ 8.) Allen and McClure informed plaintiff of his termination on December 12, 2006. (Rosales Decl. ¶ 23; Rosales Dep. 121:8-13.)
On December 19, 2006, plaintiff submitted a wrongful termination grievance to McClure, asserting that his termination was "capricious and arbitrary" and was "triggered by a systematic pattern of discrimination against [his] person on the basis of age and ethnicity." (Id. Ex. G.) After meeting with Allen and McClure on January 5, 2007, plaintiff received a letter from McClure dated January 8, 2007, which stated, "The decision made to terminate your employment based on you violating company policy of fraternization stands. . . . If you do not agree, you may request in writing a meeting with the Center Director within three (3) working days." (Id. Ex. H.) On January 11, 2007, plaintiff again submitted a wrongful termination grievance to McClure, stating that his termination "encapsulates a history of prejudices and discriminations" and requesting a meeting with Roberts. (Id. Ex. I.)
Plaintiff met with Roberts on January 25, 2007, to discuss his grievance, at which time plaintiff requested an official definition of "fraternization" as it applied to his termination. (See id. Ex. K.) Afterward, plaintiff received a letter from Roberts dated February 1, 2007, which provided, You were in fact aware of the company policy of fraternization with trainees and that you violated said policy by attending a [w]edding reception and also purchased a gift for the trainee. You admitted during your meeting with me that you attended the reception and gave the trainee a gift.
(Id. Ex. J.) Plaintiff also received a letter from McClure in response to his request for a definition of fraternization, which provided a page from CSDC's Employee Handbook that defined "fraternization" as "non-professional, immoral[,] or unethical situations including other than "Arm[']s Length" relationships, allowing any student/client in a staff member's place of residence without appropriate prior approval, exploiting students/clients for personal profit or gain, etc." (Id. Ex. L; Durrant Decl. Ex. 3 ("CSDC Handbook") at 27.)
After exhausting CSDC's internal grievance system, plaintiff filed a formal complaint of age and race discrimination with the California Department of Fair Employment and Housing ("CDFEH") on April 19, 2007. (Durrant Decl. Ex. 20.) Plaintiff subsequently received a right-to-sue letter from the U.S. Equal Employment Opportunity Commission ("EEOC") on March 20, 2008. (Id. Ex. 21.) Thereafter, plaintiff filed his Complaint in this court on June 18, 2008, alleging racial discrimination, national-origin discrimination, and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3, and the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940(a), (h); age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a), (d), and FEHA, Cal. Gov't Code. § 12940(a), (h); as well as a claim for wrongful discharge in violation of public policy.
Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment is proper "if 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). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Id. at 256. On issues for which the ultimate burden of persuasion at trial lies with the nonmoving party, the moving party bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the nonmoving party's case or by demonstrating that the nonmoving party cannot produce evidence to support an essential element of its claim or defense. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
Once the moving party carries its initial burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). On those issues for which it will bear the ultimate burden of persuasion at trial, the nonmoving party "must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103.
In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court also may not engage in credibility determinations or weigh the evidence, for these are jury functions. Anderson, 477 U.S. at 255.
A. Evidentiary Objections
"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). In its reply to plaintiff's opposition to summary judgment, defendant lodged several objections challenging the competency of plaintiff's evidence. After noting that many of these objections appeared meritorious, the court granted plaintiff an additional week to procure competent evidence in opposition to defendant's motion for summary judgment. (See Docket No. 31.) Despite plaintiff's counsel's assurances that such evidence would be forthcoming, plaintiff ultimately filed an additional opposition brief in which he submitted that the court need not "rely on any additional independent evidence of discrimination" and "contends that his evidence is sufficient to raise a genuine issue of material fact." (Pl.'s 2d Opp'n Summ. J. 1:25-2:2.) At the September 15, 2009, hearing on defendant's motion for summary judgment, the court afforded plaintiff another two-week opportunity to amend his declarations and procure competent evidence. (See Docket No. 39.) In his third attempt to provide competent evidence, plaintiff submitted supplemental declarations for Joany Titherington and Edward Bianis, and a new declaration from one Oesha Goss. (See Docket Nos. 41-43.) In response, defendant has raised further objections challenging the competency of these new declarations.
"Rule 56(e) of the Federal Rules of Civil Procedure requires that declarations used to support or oppose summary judgment motions 'shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the [declarant] is competent to testify to the matters stated therein.'" S.E.C. v. Phan, 500 F.3d 895, 913 (9th Cir. 2007) (quoting Fed. R. Civ. P. 56(e)). In opposition to summary judgment, plaintiff has submitted his own declaration, which counsel declined to amend despite having two opportunities to do so. There are legitimate questions as to whether many of the facts provided therein have the requisite foundation to be admissible. Specifically, paragraphs nine, fifteen, and twenty-four provide:
I learned that Mr. Jolliff had withdrawn his application for the promotion because of his commitment to the National Guard and had been encouraged to re-apply for the position. Additionally, Mr. Jolliff did not have the requisite degree nor did he have a Master's degree in counseling which the promotion announcement indicated was preferred. (Rosales Decl. ¶ 9.)
[T]he Center Director extended the application cutoff date and allowed the Human Resources [M]anager, Deana Gelman, who had no experience in employability areas, to apply for the position. (Id. ¶ 15.)
"I was replaced as [ACT/OCT] Coordinator by a woman in her mid-[thirties]." (Id. ¶ 24.)
Plaintiff has not affirmatively demonstrated how he "learned" the foregoing information. It is unclear, for example, how plaintiff came to know of the age of the person who replaced him after he was no longer employed at the Center; if plaintiff had somehow acquired personal knowledge of this fact, plaintiff should have set forth in his declaration the circumstances under which he had done so. During discovery, plaintiff also had ample opportunity to depose Jolliff or Gelman regarding their qualifications or to obtain their declarations.*fn4 See generally Fed. R. Civ. P. 56(c), (d)(1), (e)(1)-(2). Plaintiff also could have directed requests for admissions or interrogatories to defendant regarding this information. See id. 31-32, 33, 36. In its current form, plaintiff's declaration leaves the court to speculate as to the source of much of the information it contains.
Defendant argues that hearsay issues are implicit in many portions of plaintiff's declarations. A court may sometimes consider hearsay evidence at the summary judgment stage where that evidence satisfies the requirements of Federal Rule of Civil Procedure 56(e). See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of [Rule 56(e)]."). For example, in Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003), the Ninth Circuit concluded that, for purposes of summary judgment, "[i]t would be sufficient if the contents of [a] diary [were] admissible at trial, even if the diary itself may be inadmissible." The court reasoned that "[t]he contents of the diary [were] mere recitations of events within Fraser's personal knowledge and, depending on the circumstances, could be admitted into evidence at trial in a variety of ways." Id. Regardless of the admissibility of the challenged statements, plaintiff has produced sufficient non-hearsay evidence that this court may evaluate in deciding this motion.
Defendant has lodged numerous objections to evidence submitted by plaintiff on the ground that this evidence is irrelevant. While the court may agree with defendant as to many of these objections,*fn5 a painstaking discussion of each objection is unnecessary. As this court and others have often explained, summary judgment can be granted "only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant." Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see Smith v. County of Humboldt, 240 F. Supp. 2d 1109, 1115-16 (N.D. Cal. 2003) (declining to rule on the evidentiary objections in defendant's reply because "even if the evidence submitted by plaintiff is considered by this Court, plaintiff fails to state a colorable claim").
4. Other Improper Evidence
In opposition to defendant's motion for summary judgment, plaintiff has submitted three complaints from different lawsuits pending in Sacramento County Superior Court. (See Docket No. 29.) Referencing these complaints, plaintiff asserts, "This is not Alan Roberts' first encounter with discrimination lawsuits. . . . [T]here is little doubt that Roberts has been alleged to act on discriminatory tendencies through his tenure at [CSDC]." (Pl.'s Opp'n Summ. J. 6:22-23, 7:8-9.) The facts alleged in these complaints do not constitute competent evidence for purposes of summary judgment; indeed, the facts alleged in plaintiff's own Complaint are not evidence, see Fed. R. Civ. P. 56(e)(2), and neither are the facts alleged by parties in separate lawsuits. See, e.g., Thomas v. Chrysler Fin., LLC, 278 F. Supp. 2d 922, 926 (N.D. Ill. 2003) ("Thomas cites only allegations in a complaint in another lawsuit against Chrysler--clearly not evidence that may be considered under Rule 56(e)."). Accordingly, the court will not evaluate this evidence for the purposes of defendant's motion for summary judgment.
B. ADEA Exhaustion
Both Title VII and the ADEA require exhaustion of administrative remedies before filing a lawsuit alleging employment discrimination. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d). Here, defendant does not dispute that plaintiff timely filed a formal complaint of race and age discrimination with the CDFEH and that, pursuant to a "worksharing" agreement with the EEOC, that complaint was a timely filing with the EEOC for purposes of Title VII and the ADEA. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 2008) (citing Green v. L.A. County Superintendent of Schs., 883 F.2d 1472, 1476 (9th Cir. 1989)). Defendant contends, however, that plaintiff's claim of age discrimination under the ADEA fails as a matter of law because "[p]laintiff obtained . . . his right-to-sue [letter] for violation of Title VII, but not a right-to-sue [letter] under the ADEA." (Def.'s Mem. Supp. Mot. Summ. J. 14:5-8.)
Contrary to defendant's argument, other circuits and district courts within the Ninth Circuit have consistently recognized that, "unlike claims under Title VII, the ADEA does not require a claimant to first obtain a right to sue letter before initiating a lawsuit." Keiser v. Lake County Superior Court, No. 05-2310, 2005 WL 3370006, at *10 (N.D. Cal. Dec. 12, 2005) (citing 29 U.S.C. § 626(d)); accord Shek v. Stanford Univ. Med. Ctr., No. 07-871, 2007 WL 2318904, at *3 (N.D. Cal. Aug. 13, 2007); see, e.g., Francis v. Elmsford Sch. Dist., 442 F.3d 123, 127 (2d Cir. 2006) ("[T]here is no provision in the ADEA that requires a claimant to receive such a [right-to-sue] letter before commencing a court action under the ADEA."). Thus, by timely filing his age discrimination complaint with the CDFEH, plaintiff has satisfied the exhaustion requirements of the ADEA.*fn6
C. Race, National-Origin, and Age Discrimination
On a defendant's motion for summary judgment, claims of race, national-origin, and age discrimination under Title VII and the ADEA are evaluated pursuant to the burden-shifting framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008). Claims of race, national-origin, and age discrimination under FEHA are subject to that same analysis. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996); see Guz v. Bechtel Nat'l Inc., 24 Cal. 4th 317, 354 (2000) ("Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.").
Under the McDonnell Douglas framework, "the burden of production first falls on the plaintiff to make out a prima facie case of discrimination." Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005). He may do so by showing that "(1) he belongs to a protected class, (2) he was qualified for the position he held . . . , (3) he was terminated or demoted from . . . that position, and (4) the job went to someone outside the protected class." Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). If plaintiff successfully establishes his prima facie case, the "burden of production, but not persuasion,  shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802).
Assuming the employer articulates a legitimate, nondiscriminatory reason for its actions, plaintiff, in order to survive summary judgment, bears the burden of supplying evidence to the court that gives rise to an inference of intentional discrimination. See Coghlan, 413 F.3d at 1094 (citing St. Mary's Honot Ctr. at 507-08.).
1. Prima Facie Case
The parties do not dispute that plaintiff has established the first three elements of a prima facie case for his race, national-origin, and age discrimination claims. First, because plaintiff is Filipino, was born in the Philippines, and was at least forty years of age at the time of his termination, he was a protected-class member under Title VII, the ADEA, and FEHA. See 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 631(a); Cal. Gov't Code § 12940(a). Second, as evinced by plaintiff's "Performance Growth & Development Assessment" dated December 6, 2006, he satisfactorily performed his job as ACT/OCT Coordinator. (See Rosales Decl. Ex. F; see also Durrant Decl. Ex. 13 (awarding plaintiff a "Certificate of Appreciation" on August 29, 2006, for "outstanding performance").) Third, plaintiff suffered an adverse employment action on December 12, 2006, when his employment at the Center was terminated.*fn7 (Id. ¶ 23.) See generally Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004); Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 660 (9th Cir. 2002).
To satisfy the fourth prong of his prima facie case for his Title VII, ADEA, and FEHA claims, plaintiff proffers that he was replaced in his position as ACT/OCT Coordinator by "an African-American female in her mid-[thirties]." (Pl.'s Mem. Opp'n Summ. J. 10:18-21 (citing Rosales Decl. ¶ 24).) Ninth Circuit precedent, however, is somewhat unclear as to whether a plaintiff's replacement by a person outside of his or her protected class--standing alone--is sufficient to satisfy this prong of his or her prima facie case. Compare Coghlan, 413 F.3d at 1094 (finding that an American commercial fisherman established a prima facie case in his Title VII claim for national-origin discrimination where he was passed over for several promotions and "the people chosen instead were Norwegian-born and thus outside the protected class"), with Lyons v. England, 307 F.3d 1092, 1116 (9th Cir. 2002) ("[P]roof that the employer filled the sought position with a person not of the plaintiff's protected class is 'neither a sufficient nor a necessary condition' of proving a Title VII case." (quoting Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 n.1 (7th Cir. 1999)) (emphasis added)).
Regardless of whether plaintiff has proffered any competent evidence as to the person who replaced him as ACT/OCT Coordinator, he may still establish a prima facie case for his Title VII, ADEA, and FEHA claims if he can adduce other evidence showing that he was "discharged under circumstances otherwise 'giving rise to an inference of . . . discrimination,'" Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir.2000)), i.e., that his employer "treated [him] differently than . . . similarly situated employee[s] who [did] not belong to the same protected class," Cornwell, 439 F.3d at 1028 (citing McDonnell Douglas, 411 U.S. at 802).
Here, plaintiff asserts in his declaration that he was passed over for promotions to positions for which he was well-qualified and to which other, less-qualified applicants were appointed.*fn8 (See Rosales Decl. ¶¶ 8-16.) Plaintiff does not specify the nationality or age of these employees, but mentions that one of them was "Caucasian." (See id.) Defendant has not shown facts to show that the employees promoted over plaintiff were qualified. Though this evidence alone may not provide "circumstances giving rise to an inference of [age or national-origin] discrimination," it lends greater credence to plaintiff's contention that defendant fired him under circumstances giving rise to an inference of discrimination. Aragon, 292 F.3d at 660 (quoting Coleman, 232 F.3d at 1281) (internal quotation marks omitted).
Plaintiff also attempts to establish the fourth prong of his prima facie case by impugning the Center's inconsistent enforcement its fraternization policy. Defendant contends that it terminated plaintiff's employment consistent with the neutral enforcement of its fraternization policy (Def.'s Mem. Supp. Mot. Summ. J. 10:7-16), while plaintiff insists that this policy was never vigorously enforced and was applied against him because of his race, age, and national origin (Pl.'s Opp'n Summ. J. 9:18-18:4).
To discredit defendant's proffered reason for his termination, plaintiff provides the declarations of Edward Bianis, Joany Titherington, Oesha Goss, and Edward Johnson. As mentioned previously, Bianis was a Counseling Supervisor at the Center and had interviewed plaintiff in 2002 for the position of Vocational Counselor. (See Rosales Decl. ¶ 4.) Titherington was employed by defendant from April 2000 to May 2007 as a Residential Advisor and a Career Counselor, Goss worked for defendant as Student Records Supervisor for approximately nine years until its contract with the Department of Labor ended, and Johnson was employed by defendant for thirteen years as a Residential Shift Supervisor and acting Group Life Director. (Titherington Decl. ¶ 2; Goss Decl. ¶ 2; Johnson Decl. ¶ 4.)*fn9
In his declaration, Bianis states, "In my experience the fraternization policy was very loosely applied at the Center. Counselors and resident advisors would frequently give trainees money for bus passes or give them rides to town or similar types of things." (Bianis Decl. ¶ 9.) Bianis proceeds to describe an instance in 2003 when one of his trainees, a young woman, became romantically involved with a security guard employed by defendant. (Id. ¶ 10.) When the relationship was discovered, the trainee was terminated from the program, but defendant continued to employ the security guard. (Id.) Bianis also recalls an employee named Bridgette Brown who had transported trainees from the Center to perform work on her own property. (Id. ¶ 11.) Although Brown was suspended for this conduct, she was not terminated until she repeated her offense. (Id.)
In his Supplemental Declaration, Bianis also states that he would periodically take a mentee of his, Ashkay Nair, off center to take him to lunch, drive him to college or the Lemon Hills Skills Center, and spend "substantial time" with him. (Bianis Supp. Decl. ¶ 4.) Bianis also helped Nair move. (Id.) Bianis asserts that his "supervisor and the administration knew what [he] was doing with Mr. Nair" but he was never reprimanded. (Id.) Bianis is a Hispanic man who was under the age of forty at the time of these incidents. (Id. ¶¶ 1,5.)
In Titherington's declaration, she states that she had witnessed "a number of staff interactions with trainees which might be termed 'fraternization,'" which included "sexual relationships, money-lending[,] and consuming drugs or alcohol." (Titherington Decl. ¶ 3.) Although some staff members were terminated for this behavior, Titherington proceeds to describe what she terms "second tier" fraternization, "which was deemed appropriate and not grounds for discipline, such as weddings, funerals[,] and graduations from partner programs." (Id. ¶ 4.)
Titherington states that she, along with other Center employees, attended the wedding of a trainee named Tiana Morrisson as well as funerals for two Center trainees with the last names of Martinez and Pranjit. (Id. ¶ 4(c)-(e).) After notifying her supervisor, she also attended the wedding of trainees by the last names of Martinez and Frisbee, where the Center's math instructor, Robert Lassaco, presided over the ceremony. (Id. ¶ 4(b).) In her Supplemental Declaration Tiherington also states that she "regularly took students off Center" and "customarily provided notice to [her] supervisor that [she[ would be taking the student/trainee off Center but . . . never asked permission." (Titherington Supp. Decl. ¶ 3.) Titherington was never disciplined for this conduct. (Id. ¶ 4.) Titherington asserts that, "for the most part, supervisory staff was aware of our attendance at these events" and that she "was never told that these activities constituted fraternization and could be grounds for termination." (Titherington Decl. ¶ 5.)
In Goss's declaration, she states she "would regularly take [her] 'mentees' off-Center grounds to go to lunch, get coffee or ice cream, or just socialize with them." (Goss Decl. ¶ 4.) Goss also states that her supervisor, Leslie Gillroy, was aware that she took one particular mentee, Isaac Johnson, off-Center because they "discussed [her] mentoring relationship" and she was never disciplined or instructed that her conduct was improper. (Id. ¶¶ 4-5.) Goss also observed that "[o]ther employees did the same thing" and recalled that a fellow employee, Halima Bishop, mentored Ashkar Singh and "did the same kind of things" that she did with her mentees. (Id. ¶ 5.) Goss states that brother, DeAndre Stone, attended the Center and that she regularly drove him to and from the Center without permission. (Id. ¶ 6.) Goss says that she attended gathering with her brother where other trainees were in attendance, and advised her supervisor of these gatherings, but was never told not to go or was disciplined as a result. (Id.) Goss was also never questioned by security guards at the Center about taking students off site. (Id. at ¶ 6.)
Goss proceeds to describe her attendance at the Frisbee baby shower, and says she did not ask permission to go to the gathering. (Id. ¶ 7.) Goss also notes that she talked to a "young female employee" when she worked at CSDC that told her she was in a romantic relationship with employee Brian Archie. (Id. ¶ 8.) Goss states that Archie was demoted at "about the time" she became aware of "unconfirmed reports" of the relationship. (Id.) Goss is neither Filipino, nor over the age of forty. (Id. ¶ 1.)
Finally, in Johnson's declaration, he provides that Ernest Wiles, a Social Development Supervisor, "admitted in front of [him] and Alan Roberts that he was taking [a] trainee home with him; yet he was not disciplined and continued working at the Center." (Johnson Decl. ¶ 16.) Johnson opines that "this was highly inappropriate for an employee having young clients with him at his home." (Id.)
While far from conclusive, this evidence is sufficient to satisfy the fourth and final prong of plaintiff's prima facie case. The Goss declaration establishes that a non-Filipino person under the age of forty was allowed to socialize with students and trainees off-Center without facing any repercussions. Goss specifically spoke with her supervisor about these actions and was never rebuked. (Goss Decl. ¶¶ 4, 7.) Goss is similarly-situated to plaintiff as a Center staff member who comparably violated the fraternization policy, and was treated differently in the way the policy was applied.*fn10 Combined with Titherington's declaration indicating that she informed her supervisors that she took students off-Center without permission and Biantis's claims that he was never rebuked for his violations of the fraternization policy, plaintiff has established the fourth prong of the prima facie case. Indeed, as the Ninth Circuit has advised, the "requisite degree of proof necessary to establish a prima facie case . . . is minimal and does not even need to rise to the level of a preponderance of the evidence." Lyons, 307 F.3d at 1112 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)); see Aragon, 292 F.3d at 659 ("[T]he amount [of evidence] that must be produced in order to create a prima facie case is very little." (quoting Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110-11 (9th Cir. 1991)) (alterations in original)).
2. Nondiscriminatory Reason and Pretext
Because plaintiff has established a prima facie case of age, race, and national-origin discrimination, defendant must produce a legitimate, nondiscriminatory reason for terminating plaintiff's employment. E.g., Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). To do so, defendant provides that plaintiff's termination was due to his "violation of CSDC's policy against fraternization with students/trainees." (Def.'s Mem. Supp. Mot. Summ. J. 10:6-7.) Defendant specifically asserts:
CSDC has a strict policy against fraternization that precludes staff from socializing with students off Center, which [p]laintiff acknowledged several times. Plaintiff also understood that a violation of the fraternization policy would result in immediate termination. Plaintiff reported to his supervisor that he had attended the wedding of a trainee and provided the trainee a gift . . . . Plaintiff's supervisor, along with the Center Director, Human Resources Manager[,] and the Vice President of Human Resources determin[ed] that . . . they had no choice but to terminate [p]laintiff['s] employment.
(Id. at 10:7-16.) In light of this legitimate, nondiscriminatory reason proffered by defendant, plaintiff must now adduce evidence "show[ing] that the reason is pretextual." Davis, 520 F.3d at 1089.
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court held that "the factfinder may infer 'the ultimate fact of intentional discrimination' without additional proof once the plaintiff has made out her prima facie case if the factfinder believes that the employer's proffered nondiscriminatory reasons lack credibility." Lyons, 307 F.3d at 1112-13 (9th Cir. 2002) (quoting Reeves, 530 U.S. at 147). After Reeves, the Ninth Circuit has "reiterate[d] that at the summary judgment stage, a plaintiff may raise a genuine issue of material fact as to pretext via (1) direct evidence of the employer's discriminatory motive or (2) indirect evidence that undermines the credibility of the employer's articulated reasons."*fn11 Noyes v. Kelly Servs., 488 F.3d 1163, 1170-71 (9th Cir. 2007) (citing Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)). Given these "two options for proving pretext," the Ninth Circuit has advised that showing "the ultimate fact of intentional discrimination" is "obviously . . . more difficult than the burden imposed on a plaintiff to raise a triable issue of fact as to pretext sufficient to defeat summary judgment."
As previously addressed, plaintiff provides the declarations of Bianis, Titherington, and Goss to undermine the basis of defendant's articulated reasons for firing plaintiff. Bianis, Titherington, and Goss's declarations establish that employees regularly attended social functions off site with students and trainees without repercussions. The declarations demonstrate that it was felt amongst the staff that there were two "tiers" of fraterinzation, and that benign acts like attending weddings, funerals, and casual social gatherings without permission would not be punished severely, if at all. As noted above, these events all undermine the credibility of defendant's reasons for firing plaintiff and lend credence to plaintiff's argument that the fraternization policy was used as a pretext to fire him.
Additionally, while the existence of some policy against fraternization is evident, the notion that defendant "had no choice but to terminate [p]laintiff['s] employment" may reasonably appear to be an overstatement sounding in pretext. (Id. at 10:15-16.) Indeed, the Center's official "Sexual Harassment [and] Staff/Student Fraternization" form indicates some flexibility as to potential sanctions for fraternization. (See Policy at 1 (stating that by not adhering to the policy, employees will be subject to immediate discipline up to and including dismissal" (emphasis added)); see also CSDC Handbook 28 ("The use of progressive discipline will be decided in its discretion by [CSDC] in each individual case taking into consideration the seriousness of the infraction, facts and circumstances surrounding the case[,] and the employee's past work record.").
Furthermore, while fraternization is listed as a "dischargeable offense" in CSDC's Employee Handbook (see CSDC Handbook 30), the term is placed alongside other offenses sounding far more egregious than attending a trainee's wedding for thirty minutes and providing a small wedding gift. These offenses include "[t]hreatening others with physical injury," "[s]tealing private Company or Government property," "[d]eliberate falsification of records," "[c]onviction of a crime that has a moral impact on students," and "[c]riminal offense[s] committed on the facility." (Id. at 29-30.) The placement of "fraternization" among these offenses lends support to Titherington's contention that the attendance by staff of trainees' weddings, funerals, and graduations constituted "second tier" fraternization, which was "not grounds for discipline." (Titherington Decl. ¶ 4.) See generally, e.g., James v. United States, 550 U.S. 192, 222 (2007) ("[T]he meaning of an unclear word or phrase should be determined by the words immediately surrounding it."). This inference is further supported by the "Rules and Regulations" section of the CSDC Employee Handbook, which sternly defines "fraternization" as "non-professional, immoral[,] or unethical situations including other than 'Arm[']s Length' relationships, allowing any student/client in a staff member's place of residence without appropriate prior approval, exploiting students/clients for personal profit or gain." (CSDC Handbook 27.)
Ultimately, although defendant contends that plaintiff's termination stemmed from the neutral enforcement of a workplace policy, the aforementioned evidence suggests that the strict application of the fraternization policy against plaintiff may have been an aberration.*fn12 The Ninth Circuit, moreover, has held that the inconsistent application of a workplace policy may permit a factfinder to conclude that an employer's stated reasons for terminating an employee are pretextual. See, e.g., Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003) (denying summary judgment for defendant who allegedly terminated plaintiff for violating defendant's cell phone use policy where evidence showed that the policy was inconsistently enforced); E.E.O.C. v. Cal. Psychiatric Transitions, Inc., --- F. Supp. 2d ----, No. 06-1251, 2009 WL 2399975, at *30 (E.D. Cal. Aug. 4, 2009) (Wanger, J.) (holding that plaintiff had "pointed to enough evidence of pretext" to survive summary judgment, including the "inconsistent application of internal policies"); Baker v. Aramark Uniform & Career Apparel, Inc., No. 04-549, 2005 WL 2122050, at *9 (E.D. Cal. Aug. 31, 2005) (Burrell, J.) ("[A]n inconsistent application of a policy can be evidence of pretext." (citing Coszalter, 320 F.3d at 978)). Accordingly, plaintiff has carried his burden of establishing a genuine issue of material fact as to whether defendant's stated reason for his termination is pretextual.
3. Same-Actor Inference
The Ninth Circuit has long held that "where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory action." Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996)). "[T]he point of the same-actor inference is that the evidence rarely is sufficient . . . to find that the employer's asserted justification is false when the actor who allegedly discriminated against the plaintiff had previously shown a willingness to treat the plaintiff favorably." Id. at 1097 (internal quotation marks omitted). Here, defendant contends that the "same-actor inference" precludes plaintiff's claim of employment discrimination because "Roberts interviewed Plaintiff for the position of Career Counselor and made the decision to hire Plaintiff" and subsequently "approved his termination for violating the fraternization policy." (Def.'s Mem. Supp. Mot. Summ. J. 13:4-5.)
As an initial matter, the court notes that the four-year span between plaintiff's hiring and termination--while not necessarily negating application of the same-actor inference--may at least weaken its potency. Cf. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th Cir. 2000) (applying the same-actor inference where the time span between favorable and alleged discriminatory actions was one year); Bradley, 104 F.3d at 270-71 (same); Coghlan, 413 F.3d at 1097 (applying the same-actor inference where the time span between favorable and alleged discriminatory actions was three years, although noting that "Bradley did limit its holding to cases where the alleged discrimination took place 'within a short period of time'").
It is unclear, moreover, whether Roberts was the relevant decision maker for both the hiring and termination of plaintiff; although Roberts provides that he was "involved" in hiring plaintiff, Bianis asserts that, "[i]n [his own] capacity [as] Counseling Supervisor, [he] interviewed and hired Melvyn Rosales as a counselor in [his] department." (Bianis Decl. ¶ 3.) For these reasons, the same-actor inference may find stronger application with respect to Roberts' involvement in plaintiff's promotion to ACT/OCT Coordinator between in the fall of 2005.
(Rosales Decl. ¶¶ 18-19; Roberts Decl. ¶ 4); see Hartsel v. Keys, 87 F.3d 795, 804 n.9 (6th Cir. 1996), cited with approval in Coghlan, 413 F.3d at 1096.
Nonetheless, while the same-actor inference may sway a fact finder in deciding whether plaintiff ultimately prevails on his claims, there is little support in the Ninth Circuit for the proposition that the same-actor inference warrants summary judgment for defendant where, as here, plaintiff has established a prima facie cased and adduced evidence of pretext. Cf. Bradley, 104 F.3d at 271 (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "did not produce any evidence showing [her employer's] proffered reasons were pretexts for an improper discriminatory motive"); Coleman, 232 F.3d at 1287 (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "ha[d] not cast doubt on the sincerity of [defendant's] explanation"). Accordingly, in light of the evidence presented by plaintiff, the court cannot grant summary judgment in defendant's favor based on the same-actor inference.
Retaliation claims made pursuant to Title VII, the ADEA, and FEHA are also analyzed pursuant to the burden-shifting framework prescribed by the Supreme Court in McDonnell Douglas. See Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008); Xin Liu v. Amway Corp., 347 F.3d 1125, 1143 (9th Cir. 2003). Under McDonnell Douglas, the burden of production first falls upon plaintiff to present a prima facie case of retaliation. Xin Liu, 347 F.3d at 1143. To do so, plaintiff must show that (1) he was engaging in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there was a causal link between the protected activity and the employer's action. Id. at 1143-44 (citing Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1140 (9th Cir. 2001)).
To satisfy the first element of his prima facie case for retaliation, plaintiff proffers two instances in which he complained to Eugene Harris and Peter Gregerson that he had been passed over for promotions due to his age and race.*fn13 (See Pl.'s Mem. Opp'n Summ. J. 20:10-15; Rosales Decl. ¶¶ 10-11, 16.) It is well-established that making complaints of unlawful discrimination constitutes protected activity for purposes of retaliation claims. See, e.g., 42 U.S.C. § 2000e-3(a); Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003). As to the second element of plaintiff's prima facie case, it is undisputed that defendant terminated plaintiff's employment, which qualifies as an adverse employment action. See generally Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004); Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 660 (9th Cir. 2002).
With respect to the third element of plaintiff's prima facie case, however, plaintiff concedes that "the causal link [between his complaints and his termination] is admittedly more precarious." (Pl.'s Mem. Opp'n Summ. J. 20:15-16.) Indeed, although plaintiff "may use circumstantial evidence" to establish a "causal link," he must ultimately "demonstrate the employer's knowledge of the protected activity and proximity in time between the protected activity and the adverse action." O'Neil v. Henkel Adhesive, No. 06-3614, 2007 WL 2261560, at *6 (N.D. Cal. Aug. 6, 2007) (citing Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); Morgan v. Regents of the Univ. of Cal., 88 Cal. App. 4th 52 (2000)); see Manatt, 339 F.3d at 802.
Here, not only does plaintiff lack any evidence that the relevant decisionmakers were aware of his complaints, but defendants also have presented uncontroverted evidence that all of the decisionmakers attest that they had no knowledge of plaintiff's complaints regarding age and race discrimination. (See Roberts Decl. ¶ 7; Allen Decl. ¶ 9; Stinson Decl. ¶ 5.)*fn14
While plaintiff contended at the hearing on this motion that knowledge of the complaints by one member of the administration of the Center should be imputed to other decisionmakers within the Center, plaintiff admitted that there is no authority to support this proposition. Furthermore, the time span between plaintiff's most recent complaint and his termination was approximately twenty months, thus negating any inference of causation. See, e.g., Manatt, 339 F.3d at 802 ("While courts may infer causation based on the proximity in time between the protected action and the allegedly retaliatory employment decision, such an inference is not possible in this case because approximately nine months lapsed between the date of Manatt's complaint and the Bank's alleged adverse decisions." (citations and internal quotation marks omitted)).
Contrary to plaintiff's protestations, he cannot withstand summary judgment based on the mere "possibility that [his termination] could be causally related to [his] earlier complaints about discrimination." (Pl.'s Mem. Opp'n Summ. J. 20:21-23.) See generally Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000) ("If . . . a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." (citing Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990))). Accordingly, because plaintiff cannot carry his burden of establishing a prima facie case of retaliation, the court will grant defendant's motion for summary judgment with respect to plaintiff's retaliation claims.
E. Wrongful Discharge in Violation of Public Policy
The tort of wrongful termination in violation of public policy "is based on the principle that, although an employer may terminate an at-will employee for no reason, or any arbitrary or irrational reason, the employer has no power to terminate the employee for a reason contrary to the law or fundamental public policy." Phillips v. St. Mary Reg'l Med. Ctr., 96 Cal. App. 4th 218, 226 (2002). Here, the parties agree, and relevant caselaw supports, that this claim is derivative of plaintiff's Title VII, ADEA, and FEHA claims. (See Def.'s Mem. Supp. Summ. J. 21:25-22:5; Pl.'s Mem. Opp'n Summ. J. 21:2-6); see also, e.g., Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1287 n.11 (9th Cir. 2001). Accordingly, the court will deny defendant's motion for summary judgment on this claim insofar as it is based on plaintiff's claims of race, national-origin, and age discrimination; the court will grant the motion, however, insofar as this claim is based on plaintiff's retaliation claims.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment be, and the same hereby is,
(1) GRANTED as to plaintiff's retaliation claims;
(2) GRANTED as to plaintiff's claim for wrongful termination in violation of public policy insofar as it is based on his retaliation claims; and
(3) DENIED in all other respects.