Defendants Yolo County ("County") and Edward Prieto ("Prieto") (collectively, "defendants") filed a summary judgment motion contendingplaintiff's racial harassment, discrimination, intentional infliction of emotional distress ("IIED"), and negligence claims fail as a matter of law. (ECF 9.) The court held a hearing on this matter on January 18, 2013; Cori Sarno appeared for defendants and Manolo Olaso appeared for plaintiff. For the reasons set forth below, defendants' motion for summary judgment is GRANTED.
I. UNDISPUTED FACTS AND PROCEDURAL HISTORY
Plaintiff, an African-American, worked as a deputy sheriff with the Yolo County Sheriff's Department at all times relevant to this case. (Compl. ¶ 14.) On September 28, 2011, Sheriff Prieto ("Prieto"), who is Hispanic, spoke at a meeting of the deputies working out of the Yolo courts, at which approximately twenty-five deputies were present. (Johnson Depo. at 56-57, 63, ECF 9-5.) At this meeting, after Prieto had finished addressing the deputies, he asked if anyone had any questions. (Id. at 59.) No one said anything; Prieto then looked at plaintiff and said, "Gravy, you have any questions?" (Id.) Plaintiff, unsure whom Prieto was addressing, looked to his left at Deputy Torrez. (Id.) Apparently noticing plaintiff's uncertainty, Prieto looked straight at plaintiff and said, "You, the dark one." (Id.) As plaintiff was the only African-American in the room and as Prieto was looking directly at him, plaintiff believed Prieto was talking to him. (Id. at 59-60.) Plaintiff interpreted both terms to be offensive, not "descriptive." (Id. at 60.) Plaintiff responded that he did not have any questions. (Id. at 63.) Immediately after using the term "dark one," and following plaintiff's reply that he had no questions, Prieto started telling an anecdote about when he was younger and he used to play with his cousin. (Id.) His aunt, who would supervise the two, would refer to Prieto as "the dark one" because he was darker than his cousin. (Id. at 60-61.) At this point, the meeting was adjourned. (Id. at 61.)
After the meeting, Deputies Zetwick, Powell, Hembry, Whitehead and McMaster expressed support for plaintiff by telling him they thought Prieto's comments at the meeting were inappropriate. (Id. at 65-66, 75.) Yet each of these deputies, except Whitehead, at some point after the meeting also called Johnson "gravy." Hembry called plaintiff "gravy" and then said "Oh, I'm just messing around" or "I'm just kidding," and stated he also was tired of Prieto calling him names. (Id. at 50-51). McMaster called plaintiff "gravy" in passing; in response, plaintiff pretended to write down his name on an index card, while saying McMaster should not be using that term. (Id. at 72-74.) McMaster replied that he did not say "the whole thing;" rather, he stated that he only said "Gravy, but I didn't say dark one." (Id. at 76.) Powell said "Hey gravy" to plaintiff, and plaintiff responded "You can't be saying that." (Id. at 80-81.) Powell then said, "The sheriff said it, Gravy." (Id. at 82.) Zetwick, on three to five occasions when the lieutenant said a court room was "dark," meaning not in session, commented to the group that the courtroom was "dark like gravy." (Id. at 85-88.) On one occasion, plaintiff overheard Deputy Ney, while speaking with another person, use the term "dark one." (Id. at 90-92.) Plaintiff assumed the term was in reference to him, although he could not remember what the context of the discussion was or who Ney was speaking to. (Id. at 91-92.) Despite these deputies' use of "gravy" and "dark one," plaintiff asserts he got on well with all the deputies and considered them his friends. (Id. at 30, 82.) All these comments occurred between September 28 and October 13, 2011, during which time plaintiff worked a total of nine days. (Id. at 42-43.)
On October 13, 2011, plaintiff first complained to the County about Prieto's and the deputies' comments by submitting a formal complaint to Mindi Nunes in the county Human Resources Department. (Id. at 65, 94.) The next day, Lieutenant Carter Vaughn approached plaintiff and asked him what he wanted done in response to his complaint. (Id. at 105.) Vaughn asked if plaintiff wanted him to instruct the other deputies to call each other by name only. (Id.) Plaintiff responded "No, people joke around. I mean guys joke around sometimes. I just want you to just tell 'em what the sheriff said was wrong and offensive." (Id.) Vaughn agreed to this. (Id.) Plaintiff never requested Vaughn tell the other deputies to stop using the terms he found offensive. (Id. at 111.) However, Vaughn called a meeting with all the deputies, at which he told the deputies what Prieto said was wrong and instructed the deputies not to repeat those terms plaintiff found offensive, on pain of discipline. (Id.) Vaughn also made every deputy read and sign the county's harassment policy. (Id.) After this October 14, 2011 meeting, none of the deputies repeated any of the terms plaintiff found offensive.
Plaintiff left work on October 19, 2011, saying he needed time off because he felt stressed that people who should have protected him, including Vaughn, did nothing. (Id. at 125.) Plaintiff asserts Vaughn heard Prieto use the offensive terms at the September 28 meeting, yet no one at the department took action until plaintiff complained. (Id. at 106-107.) Plaintiff told Vaughn he believed the other deputies felt plaintiff snitched and were upset with him. (Id. at 123-124.) Plaintiff never returned to work. (Id. at 43.)
In January 2012, plaintiff's doctor issued him a note authorizing him to return to work with the restriction that he avoid contact with Prieto. (Id. at 179; Ex. B, ECF 9-6.) On January 13, Nunes, Director of Human Resources, sent plaintiff a letter offering him a temporary position as a probation officer and directing him to report to that position by January 23. (Id. at 184-85; Ex. C, ECF 9-6.) Plaintiff did not report to work as a probation officer because he felt he was being offered an insulting demotion. (Johnson Depo. at 186-191.) However, plaintiff never inquired about the particulars of the job, including salary. (Id.) On March 16, plaintiff's doctor placed an additional work restriction on his authorization to work: plaintiff was not allowed to have any contact whatsoever with the Yolo County Sheriff's Department. (Johnson Depo. at 201-202; Exs. E & F, ECF 9-6; Nunes Decl. ¶¶ 3, 6-7, ECF 9-8.) The County informed plaintiff by letter that there were no law enforcement positions available at the County that complied with his doctor's restriction. (Johnson Depo.at 201-202; Nunes Decl. ¶¶ 3, 6-7.) In response to this letter, plaintiff's counsel sent the County a letter on April 18 informing them plaintiff considered himself constructively terminated. (Id. at 203-205; Ex. G, ECF 9-6.)
Plaintiff filed his complaint in this action on March 29, 2012, alleging five causes of action. (ECF 1.) Defendants filed this summary judgment motion on December 4, seeking summary judgment on all five claims. (ECF 9.) Plaintiff timely filed an opposition on January 4, 2013, in which plaintiff abandoned his third cause of action, which pled constructive termination. (ECF 10 at 12.) Defendants timely filed a reply on January 11, 2013. (ECF 14.)
II. SUMMARY JUDGMENT STANDARD
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, who "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
Plaintiff proceeds on four causes of action against defendants.*fn1 In his first and second causes of action, plaintiff brings claims under Title VII and California's Fair Employment and Housing Act ("FEHA"), respectively, for both employment discrimination and harassment. Because the legal standards for Title VII and FEHA are similar but the standards for establishing discrimination and harassment are distinct, the court will examine harassment under both Title VII and FEHA ...