United States District Court, N.D. California
MICHAEL D. MORSHED, Plaintiff,
COUNTY OF LAKE, et al., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 62)
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff Michael Morshed brings the instant action alleging a total of seven claims arising from: (1) discrimination and hostile environment harassment based on his national origin, as well as retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. section 2000e et seq.; (2) national origin discrimination, harassment, and retaliation in violation of the California Fair Employment and Housing Act ("FEHA"); and (3) violation of the Civil Rights Act of 1871, 42 U.S.C. section 1981 and 1983 on account of national origin harassment. (Complaint, Dkt. No. 1.)
Defendant County of Lake ("County") has filed a Motion for Summary Judgment (Dkt. No. 44-4) on the grounds that: (1) Plaintiff cannot establish a prima facie claim of discrimination or retaliation under Title VII or FEHA, since the acts of which he complaints were not adverse action, and all of the County's actions, including failure to promote, were based on nondiscriminatory, non-pretextual reasons; (2) Plaintiff cannot establish a claim for national origin harassment under either Title VII or FEHA; and (3) the claim under 42 U.S.C. section 1981 fails as a matter of law and because Plaintiff cannot prove that the County had a custom, policy, and practice of unlawful discrimination, retaliation, and/or harassment.
Having carefully considered the papers submitted, the admissible evidence,  the parties' oral arguments, and the pleadings in this action, and for the reasons set forth below, the Court hereby ORDERS that the Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. In summary, the Court finds that only the claims based upon the existence of a hostile work environment, due to evidence of national origin harassment, raise a triable issue of fact.
I. APPLICABLE STANDARD
Where the moving party will have the burden of proof 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, 994 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25. If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. 242, 250; see also Fed.R.Civ.P. 56(c), (e).
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). However, a district court may rule on summary judgment based upon facts that would be admissible in evidence at trial. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 2010); Fed.R.Civ.P. 56(c).
II. SUMMARY OF FACTS
Plaintiff is of Iranian descent, and was born in Seattle, Washington. (UMF 1.) He began working for the County as a deputy sheriff on July 15, 1990, and was promoted to sergeant in 2002. (UMF 2, 3.)
A. Discriminatory Conduct/Comments Directed At Plaintiff
Plaintiff asserts that he was subjected to national origin harassment by co-workers beginning within first six months of employment and continuing throughout his employment, increasing after September 11, 2001. Plaintiff testified that he was referred to as "camel jockey, " "sand nigger, " "raghead, " "carpet rider, " "whacky Iraqi" and "A-rab." (AF 19.) He testified that he was asked: "where is your red dot, " "aren't you supposed to be praying to the east, " and "where is your carpet?" ( Id. ) He further testified that officers and deputies yelled, weekly or sometimes more often, "lalalalala, " (imitating an Arabic ululative cry). ( Id. ) Plaintiff also attested that three superiors, Sergeant Chris Macedo, and Lieutenants Gary Hall and David Garzoli, made discriminatory comments based upon national origin. According to Plaintiff, Macedo made comments about Plaintiff throwing a carpet on the ground and praying to the east, as well as sending Plaintiff an email with a link to a video called "Achmed the Dead Terrorist." Hall told Plaintiff that the County's Canine Unit dog would "watch him in the concentration camps." Garzoli addressed Plaintiff in an email as "you terrorist." The County disputes Plaintiff's testimony as to these incidents of harassment, contending that all of the witnesses deposed by Plaintiff denied these incidents.
B. On-Duty Misconduct IA
In September of 2006, Plaintiff admitted an incident of misconduct: having sexual relations with another County employee while on duty and in uniform. (UMF 4.) In February 2007, at the conclusion of an Internal Affairs ("IA") investigation of the incident, Plaintiff was demoted to deputy, with a condition that he could seek reinstatement to sergeant if there were "no further incidents" in the twelve-month period thereafter. (UMF 6, 7.) Plaintiff testified that he did not believe that his demotion was motivated by national origin discrimination. (UMF 8.) He also testified that the comments about his national origin significantly reduced at this time, since he was reassigned to a more remote area with different co-workers. (UMF 92.)
C. Neglect of Duty IA
In December of 2007, Plaintiff was dispatched to a call for service regarding an assault with injuries, and possible gun involvement, at Middletown Middle School. (UMF 10, 11.) Plaintiff testified that he prepared a report for a simple battery, but did not deem it worthy of a more serious level report. (UMF 11 and Plaintiff's response thereto.) Captain Brown learned of the incident when the parent of the victim called the Sheriff's Department to complain. (UMF 13.) Brown directed Plaintiff to prepare the appropriate report, and initiated an IA investigation. (UMF 13, 14.) The IA investigation found that Plaintiff had violated rules and regulations, and neglected his duties. (UMF 15, 16, 17.) At the conclusion of the IA investigation, in April 2008, Plaintiff was disciplined with 20 hours of unpaid time off and a book report. (UMF 18.) In May 2008, Sheriff Mitchell informed Plaintiff that he could not be reinstated to Sergeant at that time, as a consequence. (UMF 19.)
D. Denial of Promotion to Sergeant
In February of 2008, Plaintiff received "below standard" marks on his annual performance evaluation in the "field endorsement/service delivery" category. (UMF 21, 22.) The poor marks were based upon low numbers of arrests, citations, service of warrants as compared to his colleagues. (UMF 23-26.) Plaintiff contends that he was advised that he was not eligible to take the promotional exam because of this "below standard" mark. (UMF 29 and AF 1.) Sometime around March 2009, Plaintiff took the sergeant exam, scoring an 86, the lowest out of the nine participants. (UMF 30, 31.) Again, Plaintiff was not promoted. (UMF 32.)
E. EEOC Complaint and Subsequent Events
Around May 2009, then-sheriff candidate Frank Rivero filed an EEOC complaint and began talking about issues of harassment and discrimination at the Sheriff's Department. Plaintiff testified that comments related to his national origin "practically ceased" after Rivero filed his charge. On June 1, and apparently in response to Rivero's complaint, Plaintiff was interviewed by an investigator for ...