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Anthony Delanda v. County of Fresno Department

January 24, 2012



This is an employment retaliation claim brought by Plaintiff Anthony Delanda ("Delanda") against his current employer, Defendant County of Fresno ("the County"). The operative complaint is the First Amended Complaint. Delanda alleges causes of action for inter alia retaliation under 42 U.S.C. § 2000e-3(a) and California Government Code § 12940(h). Delanda now moves for partial summary judgment on the issue of whether his removal from the position of Force Options Instructor by the County constitutes an "adverse employment action." For the reasons that follow, Delanda's motion will be granted.


Delanda was hired by the County in June 1999, and was promoted to Supervising Juvenile Correctional Officer in June 2006. See Delanda Depo. 14:10-19. At some point (which appears to be around 2004, see Delanda Depo. 175:21-23), Delanda became the Force Options Instructor ("FOI") for the County. The FOI is an at will, auxiliary position which carries with it no added benefits. DUMF's 1, 5. Delanda was removed from his position as FOI on June 11, 2009. JUMF 1. *fn2 As the FOI, Delanda essentially had developed the Force Options Instruction Program for the County and earned substantial income on the side as an expert witness in force options. See Delanda Depo. 35:24-36:19, 63:2-14, 175:14-180:5. While the County contends that the removal of Delanda as the FOI was not a disciplinary act, see DUMF 6, the County stated to the California Department of Fair Employment and Housing that "the removal was the result of inappropriate conduct." Request For Admissions Ex. 1. The removal of Delanda as the FOI did not result in a reduction of pay or benefits, or loss of seniority with respect to Delanda's employment with the County as a Supervising Juvenile Corrections Officer. *fn3 DUMF 2. Delanda suffered a loss of prestige/loss of credibility and reputation as a potential expert witness because of his removal from the FOI position. *fn4 See Delanda Depo. 160:2-161:3.

Delanda earned overtime compensation working as the FOI. See JUMF 2; JUMF 7. *fn5 In his position as a Supervising Juvenile Correction Officer, Delanda has the ability and opportunity to earn overtime outside/irrespective of the FOI auxiliary position. See DUMF 4. Overtime hours were available to Delanda in his capacity as a Supervising Juvenile Correctional Officer both before and after his removal as a FOI. DUMF 8. From September 2007 through May 31, 2009, Delanda worked approximately 1,236 hours of overtime. See DUMF 7. *fn6 Delanda estimated that, since 2004, he worked between 8 and 12 hours per week on FOI matters. See Delanda Depo. 178:18-179:13. Delanda declares that he earned approximately $19,600 per year in overtime as the FOI. See Delanda Dec. ¶ 4. The overtime rate of pay is 1.5 times the normal hourly rate. DUMF 9. In July 2007, Delanda earned $29.75 per hour, but thereafter he periodically received raises. DUMF 10. As of May 31, 2009, his hourly rate of pay was $33.31. Id.

Delanda reapplied and interviewed for the FOI position in 2010. JUMF 3; Elliot Depo. 144:6-18. Delanda was not selected for the FOI position in 2010. JUMF 4.


Under Rule 56, "[a] party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought." Fed. R. Civ. Pro. 56(a). This rule permits a court to dispose of less than an entire claim or defense, including a particular issue within a claim or defense, or a particular element of a claim or defense. See Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir. 1981); Servicios Especiales Al Comercio Exterior v. Johnson Controls, Inc., 791 F.Supp.2d 626, 631-32 (E.D. Wis. 2011); Di Sandro v. Makahuena Corp., 588 F.Supp. 889, 892 (D. Haw. 1984); 11 Moore's Fed. Practice -- Civil § 56.122[2] (3d ed. 2011). A motion for partial summary judgment, also known as summary adjudication, is resolved under the same standards as a motion for summary judgment. See California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998); Barnes v. County of Placer, 654 F.Supp.2d 1066, (E.D. Cal. 2009); Nyk Line v. Burlington N. & Santa Fe R.R. Co., 222 F.Supp.2d 1176, 1178 (C.D. Cal. 2002).

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The opposing party's evidence is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 573 F.3d 1040, 1058 (9th Cir. 2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.


Plaintiff's Motion

Delanda argues that his removal from the FOI position constitutes an adverse employment action. Overtime is considered compensation, and with the loss of the FOI position came the loss of overtime. Thus, the loss of the position resulted in a loss of compensation. Further, his removal from the position cost him prestige. Further, he loved the work, developed the program, and was furthering a career as an expert witness in force options. Under these circumstances, the loss of the FOI position would dissuade a reasonable ...

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