Opinion
No. C 02 0205 SI.
June 20, 2003.
JUDGMENT
Defendant's motion for summary judgment has been granted on the merits. Accordingly, judgment is entered in favor of defendant and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On June 20, 2003 the Court heard arguments on defendant's motion for summary judgment. After consideration of the arguments and the papers submitted, the Court GRANTS defendant's motion for summary judgment.BACKGROUND
Plaintiff Gregory Brum brings this action for employment discrimination against the County of Alameda Department of Social Services. Plaintiff, a 52 year-old Caucasian male, alleges that he suffered adverse employment actions based on his age, race, and perceived mental disability and that he was retaliated against for expressing his opinion regarding differential standards between Caucasian men and minority females.
Plaintiff, a Caucasian male, was first employed by defendant in 1988 and was promoted to a supervisory position in March 1995, subject to a six month probationary period. (Declaration of Andrea S. Carlise, Ex.C, Brum Depo., 41:17-21; Carlise Dec., Ex. D, Exhibit 2 to Brum Depo., Vol. II, Performance Planning Review and Review, pg. 7) In August 1995, citing irremediable issues, defendant demoted plaintiff from his supervisory position. Plaintiff subsequently filed a charge with the EEOC alleging race, age, and sex discrimination. Unable to establish plaintiff's allegation, the EEOC dismissed plaintiff's complaint and issued him a notice of his right to sue. (Carlise Dec. Ex. E, Defendant's Initial Disclosures, AC247-248.) The plaintiff did not exercise his right to sue within the applicable statute of limitations.
In 1996, plaintiff was placed on paid administrative leave based on complaints filed by African-American female co-workers. (Carlise Dec., Ex. E, Defendants' Initial Disclosures, AC 89.) Following an investigation and a fitness for duty examination, plaintiff returned to work in May 1997. Problems between the plaintiff employee and defendant employer continued, resulting in the plaintiff again being placed on administrative leave in December 1999. (Carlise Dec., Ex. B, Karstens Depo., 139:17-20.) In 2000, plaintiff returned to work and has not been placed on administrative leave since. (Carlise Dec., Ex. C, Brum Depo., 95:18-20.)
In order to be promoted in this County agency, one must take a civil service examination. Plaintiff last took such an exam in 2000; he placed 71st in ranking with a combined rating of 86. (Carlise Dec., Ex. C, Brum Depo., 83:5-84:1.)
On October 1, 2000 plaintiff filed a charge of racial discrimination under the provisions of the California Fair Employment and Housing Act, alleging that he was subjected to differential treatment and suspended because of his race. Plaintiff did not check the boxes on the Department of Fair Employment and Housing ("DFEH") form alleging discrimination based on age or disability. Plaintiff also did not allege any facts concerning allegations of discrimination based on age, disability, or employer retaliation in "the particulars" section of the complaint. (Carlise Dec., Ex. E, Plaintiff's DFEH Complaint, Defendant's Initial Disclosures, AC117.) In the fall of 2001, the DFEH and the EEOC, which adopted the DFEH's findings, closed the case based on "insufficient evidence to prove a violation of Statute." Each agency informed the plaintiff that he had a right to sue, as he had officially exhausted his administrative remedies. (Carlise Dec., Ex. F, October 15, 2001 Dismissal and Notice of Rights from the EEOC, Plaintiff's Initial Disclosures, p. 228.)
In his complaint, plaintiff asserts that since 1995, he has been harassed and called a racist, and that his co-workers were told that he was a physical threat to them, all in retaliation for expressing his opinion regarding differential treatment between Caucasian males and minority females. Compl., ¶ 6. Plaintiff additionally alleges that he was forced to take administrative leave to undergo fitness for duty examinations. Compl., ¶ 7. He passed these examinations and was permitted to return to work. Compl., ¶ 7 After passing these tests, plaintiff claims that employees of defendant continued to tell him and his co-workers that he suffered from a mental disability, and that his office relations must be continuously scrutinized. Compl., ¶ 8.
Plaintiff further asserts that he was not promoted, even though he was qualified, and that he was required to do additional work. Compl., ¶¶ 9, 11. Plaintiff alleges that he has been criticized and disciplined, even though his co-workers have had less "onerous tasks and have been less productive." Compl., ¶ 11. Finally, plaintiff claims that he has suffered increased harassment as a result of filing a complaint with the Department of Fair Employment and Housing and the EEOC. Compl., ¶ 10.
Based on these facts, plaintiff asserts four causes of action, claiming violations of: (1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; (2) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; (3) Title VII, 42 U.S.C. § 2000(e), et seq.; and (4) the Fair Employment and Housing Act of the State of California ("FEHA"), California Government Code § 12900, et seq. Compl., ¶¶ 17, 19, 23, 25. Plaintiff requests both damages and injunctive relief for the damages he allegedly suffered as a result of defendant's harassment and discrimination. Compl. at p. 6.
Plaintiff's original complaint was filed on January 11, 2002. Defendants filed a motion to dismiss and a motion for a more definite statement; on June 24,2002, the Court issued an order granting in part and denying in part defendant's motion to dismiss. The order also denied defendant's motion for a more definite statement. The Court granted plaintiff leave to amend his complaint, which he did.
Now before the Court is defendant's motion for summary judgment.
LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" See T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626,630 (9th Cir. 1987) (citingCelotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,106 S.Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible.See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
DISCUSSION
Defendant argues that plaintiff's failure to exhaust his administrative remedies for his first and second (disability and age) causes of action precludes him from seeking federal adjudication of those claims. Furthermore, defendant argues that plaintiff does not have a prima facie claim for race discrimination in his third or fourth causes of action, under Title VII and FEHA. Additionally, defendant that plaintiff failed to exhaust his administrative remedies regarding his retaliation claim.
A. Plaintiff's claims based on age and disability discrimination based on the ADA and the ADEA
Before seeking federal adjudication of claims based on the ADA and the ADEA, plaintiff must exhaust his administrative remedies by filing an administrative charge with the EEOC or the DFEH, and obtaining a right to sue letter from the EEOC. A plaintiff has satisfied the exhaustion requirement if the civil claim is within the scope of the actual or likely EEOC charge and investigation. 42 U.S.C. § 2000e-5(b), (c), (d), (e), f(1).
Plaintiff's complaint of discrimination filed with the DFEH and the EEOC in October 2000 does not contain claims for age and disability discrimination. Under the section entitled "Cause of Discrimination Based On," plaintiff only checked the box marked "race." Defendant argues that the EEOC investigation (which resulted in a right to sue letter) would thus have only investigated race claims, and not claims based on age or disability discrimination. Defendant argues that under Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990), these claims of age and disability discrimination are not like or reasonably related to the race based claims alleged in plaintiff's EEOC and DFEH filing. Defendant argues that there is no basis for federal subject matter jurisdiction for claims based on the ADA and ADEA.
Plaintiff argues that he has in fact exhausted his administrative claims. Plaintiff contends that his filings with the EEOC exhausted his administrative claims, because EEOC charges are to be interpreted "with the utmost liberality since they are made by those unschooled in the technicalities of formal pleading." Kaplan v. Int'l Alliance of Theatrical Stage Employees 525 F.2d 1354, 1359 (9th Cir. 1975). He argues that he can raise allegations related to those in the complaint even if they were not specifically raised in his original charge. He asserts that his age and disability claims are in fact reasonably related to his race claim. Plaintiff also points to his earlier discrimination complaints filed in 1995, in which he did in fact check boxes indicating his belief that he had been subjected to discrimination due to his age, sex, and gender. However, because the DFEH issued his right to sue letter for these claims in August 1995, the statue of limitation has long expired on these claims.
A letter issued to defendant on August 17, 1995 by the DFEH informed him that he had one year in which to file suit pursuant to California Government Code Section 12965(b). Under 42 U.S.C. § 2000e-5f(1), defendant had 180 days in which to file suit for EEOC based claims.
Plaintiff's failure to include allegations of age or disability discrimination in his October 2000 filing prevent this court from asserting jurisdiction over these claims, because he has failed to exhaust his administrative remedies.See Vasguez v. County of Los Angeles, 307 F.3d 884, 895 (9th Cir. 2002) (holding that plaintiff, by failing to both check the "retaliation" box on his EEOC filing and to include relevant factual allegations, had not exhausted his administrative remedies). Plaintiff fails to show how his charges of age and disability discrimination are related to his race based claim. Furthermore, plaintiff does not elaborate in the "particulars" section about any age or disability discrimination, so the Court can not conclude that his failure to check certain boxes was merely an oversight. Finally, plaintiff's 1995 form, in which he checked multiple boxes, indicates that he understood that he could allege multiple reasons for disparate treatment.
The Court cannot construe the plaintiff's EEOC filings as liberally as plaintiff urges when he has previously proven his understanding of the complaint process. Accordingly, defendant's motion for summary judgement on plaintiff's claims of age and disability discrimination is GRANTED.
B. Plaintiff's claims of racial discrimination and retaliation based on Title VII
Because plaintiff did in fact exhaust his administrative remedies for discrimination claims based on race, this Court has jurisdiction over this claim. To establish a prima facie case of racial discrimination, plaintiff must prove defendant acted intentionally to discriminate against him. Plaintiff must prove the following four prongs to meet his burden: (1) that he belongs to a group protected by Title VII; (2) that he applied and was qualified for a job for which defendant sought applicants; (3) that despite his qualifications, he was rejected; and (4) that after he was rejected, the defendant continued to seek applicants from or hold open positions for people with the same qualifications as the plaintiff. McDonell Douglas Corp v. Green 411 U.S. 792, 802-805, 93 S.Ct. 1817, 1824-1826 (1973).
Defendant argues that plaintiff fails to establish the second, third, and fourth elements of the prima facie case. To refute the second prong, defendant points to plaintiff's performance on the civil service exam, on which he placed 71st. Defendant notes that the plaintiff admits in his deposition that his number has not yet been reached on the list of employees eligible for promotion. Defendant argues that plaintiff cannot prove that he was qualified for promotion and that these facts also provide legitimate non-discriminatory reasons for not promoting the plaintiff.
Plaintiff argues that he has been the consistent target of harassment and has himself been unjustly labeled a racist. Plaintiff does not address specifics regarding the promotion process but claims that he was placed on leave and sent for a fitness for duty exam because he is white. Plaintiff also argues that his supervisors' treatment was part of a plan to harass him until he could not perform his job. At oral argument, plaintiff argued that the Karstens' deposition establishes that he was in fact the victim of racial discrimination.
The Court finds that plaintiff supplies no factual evidence to establish a prima facie case of racial discrimination under Title VII. By failing to show in his papers or at oral argument that he was qualified for promotional opportunities, plaintiff has not met his burden. Additionally, for the reasons discussed previously, the plaintiff's retaliation claim under Title VII can not be addressed because he failed to include it in his initial administrative filing. Accordingly, the Court GRANTS defendant's motion for summary judgement based on plaintiff's Title VII claims.
C. Plaintiff's claims for racial discrimination and retaliatory treatment under FEHA
As with the plaintiff's first three causes of action, plaintiff must exhaust all administrative remedies before bringing a civil action. As outlined in Cal. Govt. Code § 12900 et seq., and as with plaintiff's first three causes of action, the plaintiff must have received a right to sue letter before invoking the Court's jurisdiction. Similarly, the exhaustion requirement is only met if the allegations in the DFEH claim are "like or related to" allegations made in the civil complaint.Okoli v. Lockheed Technical Operations Co. 36 Cal.App.4th 1607, 1617 (1995).
As discussed, plaintiff failed to make allegations regarding age and disability discrimination and retaliatory claims in his filing with the EEOC and DFEH. The Court thus has only to consider plaintiff's claims of racial discrimination. As stated in Mixon v. Fair Employment and Housing Commission, 192 Cal.App.3d 1306, 1316 (1987), "while the California act and Title VII differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of the state statute." California courts employ the McDonnell Douglas framework to determine whether a plaintiff has established a prime facie case for racial discrimination. Guz v. Bechtel National, Inc. 8 P.3d 1089, 1113 (Cal. 2000). As analyzed in the previous discussion, plaintiff here has failed to establish a prima facie case for racial discrimination. Accordingly, the Court GRANTS defendant's motion for summary judgment based on plaintiff's fourth cause of action for violation of FEHA.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment. [docket #38 (motion to dismiss)]
IT IS SO ORDERED.