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Henry v. Regents of University of California

United States District Court, N.D. California

February 24, 2014

JON HENRY, Plaintiff,

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[Copyrighted Material Omitted]

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For Jon Henry, Plaintiff: Dow Wakefield Patten, Spencer Freeman Smith, LEAD ATTORNEYS, Smith Patten, San Francisco, CA.

For Regents of the University of California, San Francisco, Defendant: Eugene Brown, Jr., LEAD ATTORNEY, Delia Alexandra Isvoranu, Sedgwick LLP, San Francisco, CA.

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PHYLLIS J. HAMILTON, United States District Judge.

Defendant's motion for summary judgment came on for hearing before this court on January 8, 2014. Plaintiff Jon Henry (" plaintiff" ) appeared through his counsel, Spencer Smith. Defendant Regents of the University of California (" defendant" ) appeared through its counsel, Delia Isvoranu. Having read the papers filed in conjunction with the motion and carefully considered the arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion for summary judgment as follows.


This is an employment discrimination case. Plaintiff has been employed as a Senior HVAC [1] Mechanic at the University of California, San Francisco (" UCSF" ) since June 2006. Plaintiff is African-American, and alleges that he has suffered " severe race-based harassment" during the course of his employment. Complaint, ¶ 11.

In the complaint, plaintiff recounts specific incidents that he believes were racially motivated. First, on or about October 3, 2007, plaintiff alleges that he was " assaulted" by his supervisor's (Gary Vantassel) use of " profanities and threats of physical violence." Complaint, ¶ 16. Another supervisor, Danny Paik, was present when this incident occurred. Id., ¶ 17. Plaintiff reported the incident, but claims that he was not allowed to bring his union representative to a meeting held to discuss the incident. Id., ¶ 20. Plaintiff also claims that, during this meeting, HR employee Bob Gilmore told plaintiff that " [j]obs are on the line," which plaintiff took as an " insinuati[on] that [his] employment was in jeopardy." Id. In defendant's motion, it indicates that Vantassel was determined to have " lost his temper and had a lapse in judgment," and even though defendant found no evidence of racial animus, Vantassel's employment was terminated (though defendant does not specify when Vantassel was terminated). See Dkt. 25 at 5.

Plaintiff then alleges that, on October 10, 2007, two employees made a comment to him regarding a private personal health issue. Complaint, ¶ 21. Plaintiff reported this incident to HR. On the same day, plaintiff found that his truck had been vandalized while parked in the UCSF parking lot. Id., ¶ 22.

Plaintiff claims that, on October 12, 2007, Danny Paik unfairly admonished him for sending an email to a client. Complaint, ¶ 26. Plaintiff characterizes Paik as one of his supervisors [2].

On October 15, 2007, plaintiff had a performance evaluation, during which he was told that he had only " basic journeyman

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skills." Complaint, ¶ 27. Plaintiff claims that this was the first performance evaluation of his career that involved " such a denigrating assessment." Id. On the same day, plaintiff claims that a co-worker said to him " Hi Troublemaker. Are you causing any trouble today? You need to stop emailing people and just do your job." Id., ¶ 28.

On October 16, 2007, plaintiff was working on a component of an air conditioning unit, and claims that an engineer asked him " You still working on that unit? I guess you can't figure it out," and then said " We'd all better leave before he [referring to plaintiff] goes out again for his high blood pressure." Complaint, ¶ 29.

On October 17, 2007, plaintiff claims that " UCSF employee Patrick Lee" asked plaintiff " Do you still want your job here? If you want to know your rights, talk to Mark." Complaint, ¶ 30. Plaintiff does not indicate who " Mark" is.

On or around October 19, 2007, plaintiff was ordered to attend a meeting with " shop steward Bob Hoffer, human resources employee Mike DeGroot," and Danny Paik. Complaint, ¶ 31. Plaintiff asked to record the meeting " because of Mr. Paik's history of harassing" him, but Paik and DeGroot refused. Id. Plaintiff then asked to reschedule the meeting, but DeGroot responded by telling plaintiff that he was suspended, and that he should " get the hell off of UC property." Id. Plaintiff claims that he requested a UCSF police escort off campus that day, because he was " fearful of the continued harassment and intimidation." Id., ¶ 32.

Plaintiff alleges that, throughout October 2007, he " continued to contact UCSF supervisors and Human Resources with his complaints," but was told by Human Resources that they were unable to discuss the details of investigations. Complaint, ¶ 34.

Plaintiff claims that, on November 6, 2007, he was " forced" to attend another meeting with DeGroot about the October 12 email incident. Complaint, ¶ 35. On the same day, Patrick Lee said to plaintiff " Oh, you're still being a troublemaker. All they are going to do is 'X' you out of here." Id., ¶ 36. Lee then drew 3 Xs on plaintiff's hand, using a marker. Id.

Plaintiff then alleges that " Paik's harassment" " continued and intensified" after plaintiff's complaints. Complaint, ¶ 37.

On November 9, 2007, plaintiff claims that he was carrying a fan down a flight of stairs " when he fell, injuring his lower back and neck." Complaint, ¶ 38. Plaintiff informed Paik, who " admonish[ed] him for not requesting help" carrying the fan. Id., ¶ 39. Plaintiff claims that he was disciplined with a " letter of warning" around this time, and he alleges that the disciplinary action was " for falling on the stairs." Id., ¶ 43. In its motion, defendant claims that plaintiff was disciplined for (1) " acting contrary to an instruction from the Lead HVAC Mechanic," (2) " walking out of a meeting with management," and (3) " refusing to leave the premises after being placed on paid leave." Dkt. 25 at 4.

Plaintiff also claims that, in November 2007, he " filed complaints about the unlawful activity and the retaliation he suffered" with the State Personnel Board, the National Labor Relations Board, the Department of Health and Human Services, the Equal Employment Opportunity Commission, and the Bureau of State Audits. Complaint, ¶ 42. Later in the complaint, plaintiff explains what " unlawful activity" formed the basis of these complaints. Essentially, plaintiff alleges that he became aware of " illegal and fraudulent misuse of federal and state funds" by UCSF's Facilities Management Department, in the form

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of (1) " sham bidding arrangements for outside contract work," (2) " excessive padding of supply costs by part vendors, facilitated by inventory warehouse personnel," and (3) " fraudulent billing of non-UCSF clients for Facilities Management work." Complaint, ¶ 49. Plaintiff alleges one specific incident where he saw that Paik had billed time for a job that he did not work on, and when he raised the issue to Paik, Paik " became angry" and told plaintiff " I'm your supervisor and I can put time wherever I want to put time." Id., ¶ 54.

Plaintiff returned to work on December 14, 2007, but alleges that he did not receive his workers' compensation checks because the paperwork had not been processed properly. Complaint, ¶ 45. Plaintiff's supervisor Vantassel (who was apparently still employed at UCSF in December 2007, despite the October 2007 incident with plaintiff) asked plaintiff " Did you get all of your Christmas gifts for your kids? Did you get all of your benefits stuff worked out?" Id., ¶ 46. Plaintiff " believes that these comments were motivated by racial animus against African-Americans and were in retaliation for [plaintiff's] complaints." Id.

In his opposition brief (but not in the complaint), plaintiff alleges that " after the Vantassel incident," he " was on leave for seven to eight months, from December to March, due to his workers' comp injury." Dkt. 26 at 4. Plaintiff appears to be referring to December 2008 to March 2009, even though the phrase " Vantassel incident" appears to be referring to the October 2007 confrontation between plaintiff and Vantassel. In the opposition, plaintiff further alleges that, while he was on leave, he had a " mental breakdown and felt like he did not even want to live anymore." Id. at 4. He alleges that " his thoughts of suicide started with the harassment that was going on with Vantassel and his worker's compensation claim because he did not know how he was going to pay his mortgage and was having financial problems as a result of Vantassel signing the paperwork late." Id.

Then, in June 2009, plaintiff claims that he was " violently assaulted" by a " contracted supervisor" in plaintiff's department (Don Carpenter). Complaint, ¶ 47. Plaintiff " believes that this assault was prompted by Don Carpenter's racial animus against African-Americans." Id. Defendant discusses this incident in its motion, claiming that Carpenter " yelled" at plaintiff, but that " every witness to the incident denied that Carpenter made any physical contact with plaintiff." Dkt. 25 at 6. Defendant also notes that, when plaintiff first reported the incident, he " made no mention of Carpenter purportedly making physical contact with him." Id. However, defendant concedes that Carpenter was found to have used " inappropriate tone and language," and was told to " keep his distance" from plaintiff. In his opposition brief (but not in the complaint), plaintiff alleges that " prior to the physical assault plaintiff testified Mr. Carpenter used racial slurs in reference to African Americans and Carpenter referenced plaintiff and other African Americans as niggers and monkeys." Dkt. 26 at 4.

Plaintiff also alleges (in his opposition brief, but not his complaint) that Danny Paik, at some unspecified time, " continued to make inappropriate racial comments about African Americans with impunity," and that plaintiff " overheard Paik stating that they were not going to let a black man manage anybody." Dkt. 26 at 4. Plaintiff does not provide any time frame for these alleged racial comments.

The complaint then provides extensive details about the alleged billing manipulation, and alleges that plaintiff complained to management about the schemes

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" throughout 2009 and 2011." Complaint, ¶ 59. Plaintiff alleges that, " thereafter," he " continued to suffer intimidation, retaliation, and harassment by Don Carpenter, Danny Paik, and Gary Vantassel for complaining and refusing to participate in the unlawful manipulation processes." Id.

In March 2011, plaintiff " complained to the Department of Health and Human Services, the U.S. Department of Justice, Civil Rights Division, and the EEOC regarding his belief that UCSF was violating laws related to the privacy of his personal health information." Complaint, ¶ 60.

Plaintiff then alleges that another UCSF employee, Cornel Nickelson, " discovered a hangman's noose hanging in a locked maintenance room on the roof of the School of Nursing" in " late 2011 or early 2012." Complaint, ¶ 61. Plaintiff does not allege that he personally saw this noose.

Plaintiff alleges that, in May 2012, he " became aware that Paik was, once again, fraudulently adding time charged to clients," and as a result, plaintiff " made several more whistleblower complaints." Complaint, ¶ 62-63.

Plaintiff then turns to July 2012, and describes the main incident discussed in the motion papers. Plaintiff alleges that, on July 10, 2012, Danny Paik " hung a noose in the workplace." Dkt. 26 at 5.[3] The complaint further alleges that plaintiff saw the noose on July 10, 2012, and felt " it was placed there to intimidate, harass, and threaten him and the other African American Facilities Management Department employees." Complaint, ¶ 65. Plaintiff further alleges that he felt " it was placed there in retaliation for the complaints [plaintiff] had made and his steadfast refusal to participate in the fraudulent activities of Facilities Management supervisors." Id.

After the noose incident, an email was sent by Steven Parker (the " Superintendent for the Facilities Services in the Skilled Trades and Building Maintenance Worker Group" ) to plaintiff and two other African-American employees, explaining that Paik had hung the noose " not with racial malice or intent, but, what in his mind at the time, as an innocent prank." Dkt. 26 at 5-6. Plaintiff alleges that he " has witnessed Steven Parker, along with other supervisors, display racial animus against African-Americans," but provides no further details regarding the racial animus shown by Parker. Complaint, ¶ 68.

Here, the court notes some confusion as to who actually discovered the noose in July 2012. In the complaint, plaintiff alleges that he " saw the noose on July 10, 2012," but Parker's email stated that " Cornel Nickelson came into [his] office with a photograph of a noose someone had hung." Compare Complaint, ¶ 65 with Dkt. 26-6, Ex. J. The investigative report regarding the incident noted that plaintiff's " statement claims he was present with Cornel Nickelson when the noose was discovered," even though " [a]ccording to Nickelson's own written statement and other witnesses, Nickelson was alone when he discovered the noose." See Dkt. 25-5, Ex. D at 14. The complaint does not allege that Nickelson was present when plaintiff saw the July 2012 noose, and instead, mentions Nickelson only to say that he " discovered a hangman's noose" on the " roof of the School of Nursing" in " late 2011 or early 2012." Complaint, ¶ 61. Thus, it appears

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that the noose discovered by Nickelson in late 2011 or early 2012 was a different noose than the one discovered in July 2012 (by either plaintiff, Nickelson, or both). And even though Parker's email mentioned only Nickelson, plaintiff claimed (in his opposition brief and at the hearing) that both he and Nickelson discovered the July 2012 noose. Dkt. 26 at 20. Despite these different accounts of who found the noose, the court will construe the facts in a light most favorable to plaintiff, and will assume that plaintiff is correct in claiming that both he and Nickelson discovered the noose that was hung in July 2012. Neither the complaint nor plaintiff's opposition brief alleges that he saw any other noose, including the noose that Nickelson found in late 2011 or early 2012.

In defendant's motion, it provides its own version of the facts surrounding the July 2012 noose incident. Defendant alleges that Paik was " waiting in line" at the Facilities Maintenance Inventory Warehouse to check out materials/inventory, and while he was waiting, he noticed a box of rope and decided to tie some knots, which was a hobby of his. Defendant alleges that Paik decided to tie a noose because it was the most challenging knot he could think of, and not because of any racial connotations. Defendant alleges that Paik immediately apologized after learning that people were upset. Defendant also provides details of its response to the incident, placing Paik on administrative leave and beginning a formal investigation. The investigation was to determine (1) whether Paik tied the noose found by plaintiff and Nickelson, ...

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