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James Lewis, et al v. City of Fresno

July 13, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



James Lewis ("Plaintiff") proceeds with an action against the City of Fresno ("the City"), Jerry Dyer ("Dyer"), Robert Nevarez ("Nevarez"), John Romo ("Romo"), Greg Garner ("Garner"), Anthony Martinez ("Martinez"), and multiple Doe defendants. Plaintiff filed a first amended complaint ("FAC") on September 23, 2009. (Doc. 45).

The City, Dyer, Nevarez, and Romo filed a motion for summary judgment against Plaintiff on May 10, 2011. (Doc. 75). Plaintiff filed opposition to the motion for summary judgment on June 6, 2011. (Doc. 81).


Plaintiff has been employed as a peace officer with the Fresno Police Department ("Department") since 1986. In 2006, Plaintiffheld the rank of sergeant with the Department.

In January 2006, John Romo ("Romo") was a sergeant with the Department and was the supervising officer for the Department's Duty Office. Romo issued a memorandum on January 21, 2006 prohibiting personnel from outside the Duty Office from reviewing records relevant to overtime assignments.

On February 21, 2006, Plaintiff complained to Captain Lydia Carrasco that he believed Romo was assigning overtime in a disparate manner and discriminating against Plaintiff. Plaintiff further complained that Romo was restricting Plaintiff's access to information regarding overtime assignments.

On March 1, 2006, the Fresno Police Officer's Association ("FPOA") issued a memorandum stating that it would pursue an informal grievance against Romo on Plaintiff's behalf for alleged disparate treatment in violation of the Department's Standing Orders 2.4.8 and 2.5.1. On May 19, 2006, the Department issued a response to the FPOA memorandum in which the Department agreed to form a committee to draft a recommendation for a new overtime policy. Plaintiff was assigned to serve on the committee.

On July 8, 2006, Plaintiff went to the Duty Office to view records related to overtime assignments and to obtain a copy of the January 21, 2006 Romo memorandum. Plaintiff instructed Duty Officer Barajas that Romo's memorandum was void and ordered Barajas to permit him to view the overtime records. Barajas complied. Plaintiff was subsequently investigated by Internal Affairs for allege violations of Department policy related to giving conflicting orders and disciplined.


Summary judgment/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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (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, 106 S. Ct.2505, 91 L. Ed. 2d 202 (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.


A. FEHA Claim

California's Fair Employment and Housing Act ("FEHA") affords California employees broad protection against discrimination, harassment, and retaliation on any of a wide range of impermissible bases. McDonald v. Antelope Valley Community College Dist., 45 Cal. 4th 88, 105 (Cal. 2008). The FAC asserts two FEHA claims: (1) a racial discrimination claim based on disparate assignment of overtime hours; and (2) a retaliation claim based on the Department's disciplinary action against Plaintiff for his July 8, 2006 conduct.

1. Statute of Limitations

Employees who believe they have been discriminated against generally have one year in which to file an administrative complaint with California's Department of Fair Employment and Housing ("DFEH"), the agency charged with administering California's Fair Employment and Housing Act ("FEHA"). McDonald, 45 Cal. 4th at 105 (citing Cal. Gov. Code 12960(d)). Exhaustion of FEHA's administrative remedy is mandatory; an employee may not proceed in court with a FEHA claim without first obtaining a right-to-sue letter from the DFEH. Id.

The governing statute of limitations for FEHA's administrative process provides in part:

No [DFEH] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . ." It then identifies four exceptions: (1) a 90-day extension in instances of delayed discovery of the unlawful practice;

(2) a one-year extension in certain instances of delayed discovery of the identity of the actual employer; (3) a one-to-three-year extension for Ralph Hate Crimes Act (Civ. Code, § 51.7) violations in cases of delayed discovery of the perpetrator's identity; and (4) an extension to one year after an aggrieved party achieves the age of majority if the misconduct occurred while the party was a minor (§ 12960, subd. (d)(1)--(4)). We discern in this provision no basis for limiting the application of equitable tolling.

Id. at 106-07.

Defendants contend that Plaintiff failed to file his DFEH complaint within the one year proscribed by section 12960(d). Defendants note that paragraph 17 of the FAC alleges that Plaintiff first raised concerns to Captain Lydia Carassco about Romo's disparate assignment of overtime and restrictions on overtime information on February 21, 2006. It is undisputed that ...

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