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McCree v. State of California Department of Conservation

United States District Court, N.D. California

May 14, 2014

ROBERT McCREE, Plaintiff,
v.
STATE OF CALIFORNIA DEPARTMENT OF CONSERVATION, et al., Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT Re: ECF No. 36

JON S. TIGAR, District Judge.

Before the Court is Defendants' motion for summary judgment, ECF No. 36. The Court will grant the motion and enter summary judgment in Defendants' favor.

I. BACKGROUND

Plaintiff Robert McCree filed this action on August 6, 2012, asserting several employment discrimination claims against the California Department of Conservation, Robert Gibbs, and Theresa Green. The Court previously granted in part and denied in part Defendants' motion for judgment on the pleadings. Order, ECF No. 32. In its Order, the Court noted that the complaint had not clearly described Plaintiff's claims, and concluded that Plaintiff had asserted the following causes of action: (1) wrongful termination; (2) harassment; (3) intentional infliction of emotional distress; (4) age discrimination in violation of the Age Discrimination in Employment Act (ADEA); (5) age discrimination in violation of Title VII; (6) disability discrimination in violation of the Civil Rights Act; (7) age discrimination in violation of the California Fair Employment and Housing Act (FEHA); (8) retaliation based on disability in violation of FEHA; (9) harassment in violation of FEHA; (10) failure to prevent discrimination in violation of FEHA (against the Department only); (11) violation of the California Unfair Competition Law (UCL); (12) breach of contract (against the Department only); and (13) breach of the implied covenant of good faith and fair dealing (against the Department only). Id. at 5.

The Court previously dismissed Defendant Gibbs and a number of causes of action. Plaintiff's operative First Amended Complaint, ECF No. 32, asserts three causes of action: (1) violation of FEHA, against all Defendants, (2) failure to prevent discrimination, against the Department, and (3) harassment, against Defendant Green. It appears that Plaintiff intends to assert discrimination, harassment, and retaliation claims under FEHA, though his claims have not been separately identified. Although Plaintiff has previously suggested he might be alleging discrimination based on age, sex, race, and/or disability, [1] nowhere in the First Amended Complaint does Plaintiff specify what type of discrimination he alleges occurred in violation of FEHA. To the extent Plaintiff alleges disability discrimination, no disability has been alleged. Plaintiff's age also cannot be discerned from his allegations.

The body of the eight-page First Amended Complaint alleges that Plaintiff was hired as the EEO Officer for the Department on September 7, 2010. FAC ¶ 7. Defendant Theresa Green is the Chief of Employee Relations Office at the Department. Id . ¶ 5. Plaintiff alleges that he was "subjected to harassment" by unspecified "fellow employees prior to and subsequent to serveral [sic] one-on-one meetings with his then supervisor Thomas Gibbs." Id . ¶ 8. According to Plaintiff, he was informed by Defendants Green that he had been removed from the bi-monthly Executive Staff Meetings on October 21, 2011; Green was not Plaintiff's supervisor. Id . ¶ 10. Plaintiff alleges that after that date, he began to report to Green, in violation of California Government Code section 19795(a), which states, in relevant part: "The appointing power of each state agency and the director of each state department shall appoint, at the managerial level, an equal employment opportunity officer, who shall report directly to, and be under the supervision of, the director of the department, to develop, implement, coordinate, and monitor the agency's equal employment opportunity program." Plaintiff alleges in vague terms that he was "discriminated against, subjected to a hostile work environment, and retaliated against for engaging in a protected activity of improper department restructuring." Id . ¶ 12. Plaintiff alleges that Green and others called him a liar, that his performance was questioned, and that Gibbs said to him: "You might want to talk with your wife about whether or not this job is for you, " and "I have gone to counseling because of you." Id . ¶ 18. Finally, the third cause of action alleges that the basis of the harassment claim is that Green told Plaintiff that he would report directly to Green, usurping his authority to manage EEO employees. Id . ¶¶ 31-35.

In response to Defendants' motion for summary judgment, ECF No. 36, Plaintiff's counsel filed three documents on the Court's electronic case filing system on March 20 and 21, 2014, at ECF Nos. 42, 43, and 44. ECF No. 42's title (as reflected on the Court's electronic docket) indicates that it is a response to the motion for summary judgment. The document is entirely composed of characters that are not part of the alphabet. The body of what might have been intended as the concluding paragraph of the opposition, for example, reads as follows:f020

ECF Nos. 43 and 44 purport to be declarations in support of the opposition, but both are composed of similar, illegible characters. In violation of the Court's Standing Order for All Civil Cases, and the Civil Local Rules, the Court never received courtesy copies of the documents.

In response, Defendants filed an objection to the opposition documents based on their illegibility and also because they were untimely. ECF No. 45. Plaintiff's counsel is registered as an ECF user, and the Court's Notices of Electronic Filing indicate that counsel received electronic service of the documents they filed, as well as Defendants' objections to them. Defendants also filed a reply in support of their motion. ECF No. 46. Plaintiff has not filed anything further since the filing of his illegible documents.

II. LEGAL STANDARDS

Summary judgment is proper when "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). See Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). A dispute is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, and material only if the fact may affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). The court must draw all reasonable inferences in the light most favorable to the non-moving party. Johnson v. Rancho Santiago Cmty. Coll. Dist. , 623 F.3d 1011, 1018 (9th Cir. 2010). However, unsupported conjecture or conclusory statements do not create a genuine dispute as to material fact and will not defeat summary judgment. Surrell v. Cal. Water Serv. Co. , 518 F.3d 1097, 1103 (9th Cir. 2008).

If the moving party does not satisfy its initial burden, then the non-moving party has no obligation to produce anything, and summary judgment must be denied. Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). If, however, the moving party satisfies its initial burden of production, then the non-moving party must produce admissible evidence to show there is a genuine dispute of material fact. Id.

"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, ... or (B) showing 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). If a party fails to support an assertion of fact, the court may "(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or (4) issue any other appropriate order." Fed.R.Civ.P. 56(e).

"Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." Fed.R.Civ.P. 56(e), Adv. Comm. Notes, 1963 Amend. The moving party's evidentiary burden cannot be abrogated by the opposing party's failure to respond; the moving party must affirmatively establish its entitlement to summary judgment. See Martinez v. Stanford , 323 F.3d 1178, 1183 (9th Cir. 2003) (quoting Fed.R.Civ.P. 56(a)). However, if the motion is ...


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