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.
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).
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,
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."
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.
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).
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.
"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.
In the Court's prior Order granting in part Defendants' motion for judgment on the pleadings, in discussing the lack of clarity in Plaintiff's original complaint, the Court ordered as follows: "In any future, amended complaint, Plaintiff shall clearly separate each claim, i.e., discrimination on the basis of age, discrimination on the basis of sex, etc., and clearly state the statutory basis for each claim not grounded on the common law." ECF No. 32 at 5 n.3. Plaintiff's First Amended Complaint ("FAC") does not comply with this order. The FAC does not identify which protected characteristic Plaintiff alleges was the basis of Defendants' allegedly adverse employment actions taken against him. Nor does Plaintiff separate his FEHA claims, instead grouping them into one cause of action that may be read as combining claims for discrimination, harassment, and retaliation. Plaintiff's failure to abide by the Court's Order makes it difficult for the Court and Defendants to respond to Plaintiff's allegations.
In addition, Plaintiff has failed to state a claim upon which relief can be granted; even if the claims were adequately stated, he has failed to submit any evidence in response to Defendants' motion for summary judgment to support his claims.
In the absence of direct evidence of discrimination, to establish a prima facie case of employment discrimination, a plaintiff must establish that "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive."
To establish a prima facie case of disability discrimination, the plaintiff must establish that he suffered from a disability, that he could perform the essential duties of the job, and that he was subjected to an adverse employment action because of the disability.
To establish a prima facie case of age discrimination, Plaintiff must establish that he is over forty years of age. Cal. Gov't Code § 12926. If no reduction-in-force program was in effect, in the absence of any other evidence of discrimination, the plaintiff must also establish that he was replaced by a younger worker.
In its prior Order, the Court concluded that Plaintiff had not alleged sex discrimination, but Plaintiff testified at his deposition that he contends he was discriminated against because he is male. Even if a sex discrimination claim is asserted in the First Amended Complaint (and there are no allegations to that effect), there is no evidence to support it.
To establish a prima facie case of sex discrimination, Plaintiff must establish either direct evidence of discrimination, or satisfy the circumstantial test discussed above — he must establish that he is a member of a protected class, that he was performing competently in his position, that he suffered an adverse employment action, and that some other circumstance suggests discriminatory motive.
Even if Green did, in fact, say "Oh, you're just a man," the lack of evidence concerning the context in which the sentence was uttered, the fact that Green was not a decision-maker, and the lack of any other evidence supporting Plaintiff's sex discrimination case leads the Court to conclude that Plaintiff has failed to establish his prima facie case.
Because Plaintiff has failed to raise a genuine issue of material fact concerning his FEHA discrimination claims based on disability, age, and sex, the Court will grant summary judgment on those claims in Defendants' favor.
In order to establish a prima facie case of FEHA retaliation, Plaintiff must show (1) that he engaged in a "protected activity," (2) that the Department subjected him to an adverse employment action, and (3) "a causal link existed between the protected activity and the employer's action."
There is no evidence before the Court establishing, or even alleging, that Plaintiff engaged in protected activity. The FEHA makes it unlawful for "any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA]." Cal. Gov't Code § 12940. Also, although Plaintiff need not prove that the conduct he complained about was actually unlawful, his belief that the conduct violated FEHA must be reasonable.
Even if Plaintiff's complaints were protected, however, Defendants would still be entitled to judgment on Plaintiff's retaliation claim, because Plaintiff has failed to identify any adverse employment action taken in response to Plaintiff's complaints. Plaintiff alleges that the restructuring was discriminatory, and that he complained of the restructuring because he felt it was discriminatory. But he fails to even to allege, much less provide evidence demonstrating, what adverse employment action flowed from his complaints.
For these reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact concerning his FEHA retaliation claim, and the Court will grant summary judgment on that claim in Defendants' favor.
The basis of Plaintiff's FEHA harassment claim, if one has been stated, is not clear. The first cause of action mentions "berating and harassing Plaintiff about his work, accusing Plaintiff of `bringing down the Department,' usurping Plaintiff's position and appointing Defendant Green as his immediate supervisor in violation of State law" as examples of retaliation, but it appears Plaintiff may also intend to state a harassment claim based on this alleged conduct.
Plaintiff also asserts a common law harassment claim as his third cause of action. That claim identifies the following conduct as harassing: Green stated on October 21, 2011, that she was Plaintiff's direct supervisor; Green removed Plaintiff from his required EEO meeting duties and usurped his authority by managing Plaintiff's EEO employees; and Plaintiff was stripped of certain duties and responsibilities.
As an initial matter, the Court notes that, for purposes of the FEHA harassment claim, Plaintiff has failed to identify any harassment based on a protected characteristic. Membership in a protected class, and harassment based on the protected characteristic, are prerequisites to a FEHA harassment claim.
Even if Plaintiff had adequately set forth the discriminatory basis for Defendants' conduct, the Court finds as a matter of law that none of that conduct amounts to harassment in violation of FEHA. Harassment "may be verbal, physical, or visual and `communicates an offensive message to the harassed employee.'"
The conduct alleged by Plaintiff does not rise to that level. Defendants' personnel decisions cannot form the basis of Plaintiff's FEHA harassment claim because "`commonly necessary personnel management actions such as hiring and firing, job project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.'"
Nor can Gibbs' isolated comments, or the vague allegation that Plaintiff was called a liar, unaccompanied by details of time, speaker, and place, support his FEHA harassment claim. These allegations, even if taken as true, do not rise to the level of a "concerted pattern of harassment." Nor could a reasonable jury conclude, from the perspective of a reasonable person belonging to the relevant protected class, that the comments were "sufficiently severe or pervasive to alter the conditions of the [Plaintiff's] employment and create an abusive environment."
In any case, though the Court has taken the allegations as true for purposes evaluating the FEHA harassment claim, Plaintiff has not adduced any evidence to support his allegations. Finally, as noted above, Plaintiff has not linked any comments to a protected characteristic.
For these reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact concerning his FEHA harassment claim, and the Court will grant summary judgment on that claim in Defendants' favor.
In the absence of a viable FEHA discrimination claim, a FEHA failure to prevent discrimination claim will not lie.
Plaintiff's third cause of action is titled "harassment," and alleges that Plaintiff has subjected to a hostile work environment. California courts do not recognize a common law tort of harassment.
As the Court discussed in its previous Order dismissing Plaintiff's common law harassment claim, the Department is immune from tort liability unless otherwise provided for by statute.
As for Defendant Green, Plaintiff has not invoked California Code of Civil Procedure § 527.6, and no tort of harassment is recognized by California courts. Even if the statutory claim applies, Plaintiff has not adduced any evidence that Green's conduct "seriously alarm[ed], annoy[ed], or harasse[d]" Plaintiff, or that Plaintiff suffered "substantial emotional distress."
For these reasons, the Court will grant summary judgment in favor of Defendants on Plaintiff's third cause of action for harassment.
For the foregoing reasons, the Court hereby GRANTS Defendants' motion for summary judgment in its entirety. Defendants shall submit a proposed form of judgment within thirty days from the date of this Order.
