The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 16]
On June 12, 2009, Plaintiff Gregory Montoya filed the instant action against Defendant Regents of the University of California alleging racial discrimination in violation of Title VII and 42 U.S.C. § 1981. (Doc. No. 1.) On May 14, 2010, Defendant filed a motion for summary judgment. (Doc. No. 16.) On June 4, 2010, Plaintiff filed an opposition to the motion (Doc. No. 21), and on June 21, 2010, Defendant filed a reply (Doc. No. 25). On June 25, 2010, in advance of the Court's hearing on the motion, the Court issued a notice and order providing the parties with the Court's tentative ruling. (Doc. No. 26.) In the notice, the Court stated that its tentative ruling was to grant Defendant's motion for summary judgment. On June 28, 2010, the Court held a hearing on the motion. Attorney Doc Anthony Anderson, III appeared on behalf of the Plaintiff and attorney John S. Adler appeared on behalf of the Defendant. At the end of the hearing, the Court took the matter under submission. Having considered the oral and written arguments of the parties, and for the reasons stated herein, the Court confirms its tentative ruling and GRANTS Defendant's motion for summary judgment.
The following facts are not reasonably in dispute. Plaintiff considers himself to be Hispanic and/or Latino. (Pl.'s Depo. at 157:24--158:1; Pl.'s Decl. at ¶ 3.)*fn2 On July 15, 2002, Plaintiff was hired by the University of California, San Diego ("UCSD" or "the University") to work as a Senior Building Maintenance Worker in UCSD's University Centers' Maintenance Department. (Def.'s Notice of Lodgment ("NOL"), Ex. 1.) At all times during Plaintiff's employment in the University Centers' Maintenance Department, Plaintiff's work schedule was 2:30 p.m. to 10:30 p.m., Sunday through Thursday, (Pl.'s Depo. at 22:19--23:3), and his main tasks were plumbing and electrical (Arcia Decl. at ¶ 5; Pl.'s Depo. at 60:7--15; 63:2--4; 164:8--10; Maringer Depo. at 15:20--16:7). In November 2005, Plaintiff voluntarily left his position at UCSD to accept a position at San Diego State University ("SDSU"). (Id. at 47:24-48:2.) Plaintiff's move to SDSU was accompanied by an increase in pay. (Id. at 48:3--5.)
In the Spring of 2006, Plaintiff contacted Joe Arcia, his former supervisor at UCSD, and expressed an interest in returning to the University Centers' Maintenance Department. (Pl.'s Depo. at 50:10--13; Arcia Decl. at ¶ 4.) At all times during Plaintiff's employment in the University Centers' Maintenance Department, Arcia was either the Assistant Superintendent or the Superintendent of the Department. (Arcia Decl. at ¶ 3.) Arcia's race and/or national origin is Latino/Hispanic. (Arcia Decl. at ¶ 2.) Arcia told Plaintiff that his old position as a Senior Building Maintenance Worker was still available, with a listed schedule of Sunday through Thursday. (Arcia Decl. at ¶ 4.) Plaintiff applied for and was ultimately hired by Arcia to fill the position. (Id.; Pl.'s Depo. at 50:14--51:7.) To return to his old position at UCSD, Plaintiff took a pay cut of approximately $400.00 a month, and was forced to decline SDSU's offer of a $200 a month increase in pay if he agreed to stay. (Pl.'s Depo. at 48:16--20; 51:8--14; 53:23--54:16.) On April 24, 2006, Plaintiff returned to his position at UCSD with a Sunday through Thursday, 2 p.m. to 10:30 p.m. work schedule. (Def.'s NOL, Ex. 4; Pl.'s Depo. at 51:3--7.) Plaintiff testified during his deposition that this schedule was acceptable. (Pl.'s Depo. at 23:1--3.)
In the Fall of 2006, Mike Prouty, a Caucasian, learned about an open Senior Building Maintenance Worker position in the University Centers' Maintenance Department. (Prouty Depo. at 14:20--22.) At the time, Prouty was working as a Development Tech III in UCSD's Chemistry Department. (Prouty Depo. at 10:4--11:20; Stinson Decl. at ¶ 5.) It is undisputed that the posting originally advertised the work schedule for the Senior Building Maintenance Worker position as Monday through Friday. (Id. at 16:1--20; Arcia Decl. at ¶ 6.) After Prouty applied for the position but before his interview with Arcia, Arcia changed the position's work schedule to Tuesday through Saturday. (Prouty Depo. at 16:5--20; Arcia Decl. at ¶ 6.) Nevertheless, after interviewing Prouty, Arcia hired Prouty on a Monday through Friday schedule. (Arcia Decl. at ¶ 6; Prouty Depo. at 17:9--18:16; Def.'s NOL, Ex. 9.) On September 1, 2006, Prouty began working as a Senior Building Maintenance Worker. (Def.'s NOL, Ex. 9.) Although Prouty incurred a small reduction in pay as a result of the transfer, it is undisputed that Prouty entered the position at the top of the pay scale for Senior Building Maintenance Workers and made more than Plaintiff. (Stinson Decl. at ¶ 5; Pl.'s Depo. at 166:18--167:167:5; Prouty Depo. 19:24--20:10.) A few months later, Arcia hired Duarte Da Rosa, a Caucasian, as a Senior Building Maintenance Worker on a Tuesday through Saturday schedule. (Arcia Decl. at ¶ 6.)
Shortly after Prouty was hired, the Maintenance Department requested and was granted an equity pay increase for Plaintiff. (Stinson Decl. at ¶ 5.) Effective November 1, 2006, Plaintiff's monthly salary was increased by approximately $200.00 a month. (Pl.'s Depo. at 100:1--4.) Plaintiff's pay rate was sufficient under the union's collective bargaining agreement because it placed Plaintiff's pay rate within five percent of Prouty's pay rate. (Id. at 95:17--22.) Prouty, however, still earned more than Plaintiff. (Id.)
At some point in the Fall of 2007, Plaintiff applied for a Maintenance Mechanic position in UCSD's Facilities Maintenance Department. On October 16, 2007, the day after UCSD's Facilities Management Department extended an oral offer to Plaintiff, Plaintiff issued Arcia an ultimatum that if certain demands were not met, Plaintiff would resign his position as Senior Building Maintenance Worker. (Pl.'s Depo. at 67:20--68:4; Def.'s NOL at Ex. 3.) When Arcia advised Plaintiff that he could not meet all of the demands, Plaintiff resigned. (Pl.'s Depo. at 68:7--71:11.)
Plaintiff began working in the Facilities Management Department on November 1, 2007, receiving a "significant increase in pay." (Pl.'s Depo. at 72:23--73:7; Def.'s NOL at Ex. 4.) Plaintiff's schedule requires him to work Saturdays and Sundays. (Pl.'s Depo. at 73:8--18.) Despite the fact that Plaintiff is now employed as a Maintenance Mechanic at a higher rate of pay, Plaintiff has tried to transfer back to the Maintenance Department, where he would again be under Arcia's supervision. (Pl.'s Depo. at 75:5--7.)
On March 7, 2008, Plaintiff filed a Charge of Discrimination with the California Department of Fair Employment and Housing ("FEHA"). In the charge, Plaintiff asserts that he was discriminated against because of his national origin when he was (1) paid less than his non-Latino co-worker, (2) was denied opportunities to work overtime when his non-Latino co-worker was permitted to work overtime, (3) when his non-Latino co-worker was given weekends off when Plaintiff was not, and (4) when Plaintiff was "forced to resign [his] position on October 16, 2007." (Compl., Ex. A.) On June 12, 2009, Plaintiff filed the instant action alleging racial discrimination in violation of Title VII and 42 U.S.C. § 1981.*fn3
A moving party is entitled to summary judgment only if the moving party can demonstrate that
(1) "there is no genuine issue as to any material fact," and (2) he is "entitled to judgment as a matter of law." Fed R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is one that raises a question that a trier of fact must answer to determine the rights of the parties under the substantive law that applies. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The initial burden is on the moving party to show that both prongs are satisfied. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322--23. If the moving party fails to discharge this initial burden, summary judgment must be denied, and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159--60 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1180 (9th Cir. 2002). "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
Plaintiff alleges racial discrimination under both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act. The Court shall address each allegation in turn.
A. 42 U.S.C. § 1981 - Unlawful Discrimination
Plaintiff first asserts that Defendant's conduct constituted unlawful discrimination in violation of 42 U.S.C. § 1981. Defendant seeks summary judgment on this claim in part because the claim is barred by the Eleventh Amendment. (Def.'s Mot. for Summ. J. at 8:10--19 (citing Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989); Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)).) In Plaintiff's response to Defendant's Separate Statement of Undisputed Facts, Plaintiff concedes that this claim should be dismissed because UCSD is entitled to immunity under the Eleventh Amendment. (Pl.'s Separate Statement of Undisputed Facts at ¶ 1.) Accordingly, the Court GRANTS Defendant's motion for summary judgment on Plaintiff's Section 1981 claim.
B. Title VII - Racial Discrimination
a. Exhaustion of Administrative Remedies
Plaintiff filed a Charge of Discrimination with the California Department of Fair Employment and Housing on March 7, 2008. (Def.'s NOL, Ex. 5; Compl., Ex. A.) In his Charge, Plaintiff identified four adverse actions: (1) since January 1, 2007, Plaintiff was paid less than his non-Latino co-worker; (2) Plaintiff was denied an opportunity to work overtime on three days in August 2007; (3) since September 1, 2007, Plaintiff's non-Latino co-worker received preferential treatment when he was given weekends off, and (4) Plaintiff felt he was forced to resign from his position on October 16, 2007. (Id.) Plaintiff also states in the Charge that the discrimination took place between January 1, 2007 and October 16, 2007. However, in his Complaint, Plaintiff identified the following 14 actions that he contends were the result of discrimination: (1) Plaintiff was denied a promotion or reclassification to the Maintenance Mechanic position when similarly situated employees of a different race were not; (2) Plaintiff was paid less than other similarly situated employees of a different race; (3) Plaintiff was denied educational opportunities; (4) Plaintiff was required to complete job assignments started by others; (5) Plaintiff was required to purchase his own uniform items at his own expense when other similarly situated employees of a different race were not; (6) Plaintiff was denied requests for time off when other similarly situated employees of a different race were not; (7) Plaintiff was publicly berated and treated in a non-professional manner by supervisory staff; (8) Plaintiff's comings and goings were "extremely scrutinized and criticized" by supervisory staff; (9) since January 1, 2007, Plaintiff had been earning less than similarly situated employees of a different race; (10) Plaintiff was denied overtime on three occasions in August 2007; (11) since September 1, 2007, Plaintiff's request for weekends off were consistently denied; (12) Plaintiff was required to do the work of others; (13) Plaintiff was publicly berated and belitted; and (14) Plaintiff was not allowed time off for UCSD functions. (Compl. at ¶ 18.)
The Court notes that the allegations set forth in the complaint are, for the most part, generalized and lack any supporting facts. However, the Court has reviewed the evidence and determined that plaintiff's allegations in his complaint are based on the following identifiable actions:
(1) Plaintiff was denied a Maintenance Mechanic position during the entirety of his employment in the Maintenance Department (Pl's Depo. at 46:4--17); (2) since January 1, 2007, Plaintiff was paid less than Senior Building Maintenance Worker Michael Prouty (Pl.'s Depo. at 95:17--96:6) and Maintenance Mechanic Michael Sutherland (Pl.'s Depo. at 169:5--16); (3) in April 2006, Arcia decided not to allow Plaintiff to attend an electrical certification course (Pl.'s Depo. at 94:24--95:2; 109:17--110:3; 113:24--115:24); (4) in January 2004, Plaintiff was not reimbursed for a second work jacket (Pl.'s Depo. at 67:7--8; 94:14--95:2); (5) in March 2007, Arcia denied Plaintiff's request for two consecutive Sundays off (Pl.'s Depo. at 95:2; 145:6--146:21; 147:5--6); (6) Plaintiff was denied overtime opportunities on one occasion in May 2007 (Pl.'s Depo. at 158:17--159:4) and three occasions in August 2007 (Pl.'s Depo. at 176:11--22); and (7) since September 2007, Plaintiff was repeatedly denied weekends off (Pl.'s Depo. at 34:12--41:25).*fn5
Defendant first contends that Plaintiff's claim is barred and/or limited by his failure to exhaust his administrative remedies. A California employee who claims violations of Title VII must file his charge with the EEOC, or the California Department of Fair Employment and Housing, within 300 days after the discriminatory act occurred. 42 U.S.C. § 2000e-(5)(e)(1); See also Bouman v. Block, 940 F.2d 1211, 1220 (9th Cir. 1991). The administrative requirement to timely file a charge "serves as a judicial statute of limitations" and substantial compliance with the presentment requirement is a jurisdiction prerequisite. Sommatino v. United States, 255 F.3d 704, 707--09 (9th Cir. 2001); Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990). In other words, if a claim is not timely raised with the EEOC ...