LAWRENCE J. O'NEILL, District Judge.
Defendants Jerry Dyer ("Chief Dyer") and Mark Salazar ("Sgt. Salazar") seek summary judgment in the absence of evidence
Sgt. Salazar conducted an IA investigation into the arrest and charges against Rolando Celdon ("Mr. Celdon"). After the investigation, disciplinary action resulted in a decision to terminate Officer Plymale, who is white. However, after administrative appeals, Officer Plymale was reinstated with a letter of reprimand. Officer Plymale proceeds on his First Amended Complaint for Damages ("FAC") to allege that he was subjected to IA investigations and disciplinary action which were racially motivated or biased against him. Defendants seek summary judgment in that Officer Plymale is unable to raise factual issues that he was subjected to adverse employment action based on discrimination. Defendants further contend that immunities bar Officer Plymale's claims. Officer Plymale's opposition papers do not include points and authorities and chiefly respond to defendants' factual statement.
On October 10, 2005, Officer Plymale and three other City police officers were involved in Mr. Celdon's arrest. Mr. Celdon claimed that during the arrest, he was punched, kicked, bitten by a police dog, tasered, and shot by a less lethal shotgun. Mr. Celdon was taken for medical care and booked in jail.
In response to a complaint from an assisting City police officer, an IA investigation was commenced on October 10, 2005. As commander of the IA division, former City police Lieutenant Art Alvarado ("Lt. Alvarado")
On February 21, 2006, Chief Dyer issued a Notice of Proposed Disciplinary Action to Plymale to review charges and investigation material, to allow Officer Plymale to offer evidence and mitigating circumstances, and to discuss issues at a Skelly meeting. At a March 27, 2006 Skelly hearing with Chief Dyer, Officer Plymale and his attorney raised issues regarding the incident and investigation. Based on issues raised by Officer Plymale and other officers, Chief Dyer directed the IA division to conduct additional work.
Because Sgt. Salazar had left the IA division, City police Sergeant Mindy Medina ("Sgt. Medina")
On July 24, 2006, Chief Dyer issued an Amended Notice of Proposed Disciplinary Action and conducted another Skelly hearing with Officer Plymale and his attorney.
On Officer Plymale's appeal of the termination decision, the hearing officer's October 2, 2007 report recommended a written reprimand rather than termination. The hearing officer noted:
The Civil Service Board's ("CSB's") November 1, 2007 order adopted the hearing officer's recommendations, ordered Officer Plymale reinstated with a letter of reprimand, and found that Officer Plymale:
Officer Plymale did not seek judicial review of the CSB findings.
On October 7, 2010, a federal indictment was filed to charge Officer Plymale with misprison of a felony in violation of 18 U.S.C. § 4 and obstruction of justice in violation of 18 U.S.C. § 1519 in that Officer Plymale included in his report a false description of the circumstances surrounding Mr. Celdon's arrest. Defendants note that during discovery, Officer Plymale has invoked the Fifth Amendment as to all issues involving Mr. Celdon as well as Officer Plymale's conduct, investigation and reports.
The FAC alleges that the IA investigations and Officer Plymale's disciplinary action "were racially motivated and/or biased against Plaintiff as a Caucasian; that had Plaintiff been Hispanic he would not have been subjected to such investigation and/or the discipline of termination." According to the FAC, "there was an environment in which Hispanic officers received preferential treatment, particularly in terms of internal investigations and resulting disciplinary actions." The FAC alleges on information and belief that Lt. Alvarado and Sgt. Salazar "had a particular racial bias against Sgt. Manfredi
The FAC seeks to recover damages for economic injury, lost wages and emotional distress, punitive damages, and attorney fees.
Defendants seek summary judgment on Officer Plymale's remaining section 1981 claim in the absence of evidence that Officer Plymale suffered adverse employment action based on "discriminatory reasons" and based on immunities to bar his section 1981 claim.
F.R.Civ.P. 56(a) permits a party to seek summary judgment "identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought." "A district court may dispose of a particular claim or defense by summary judgment when one of the parties is entitled to judgment as a matter of law on that claim or defense." Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir.1999).
Summary judgment is appropriate when the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." F.R.Civ.P. 56(a); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).
On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(a), (c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505.
To carry its burden of production on summary judgment, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden
"[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102; see High Tech Gays, 895 F.2d at 574. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (F.R.Civ.P. 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")
"But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion." Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "The amount of evidence necessary to raise a genuine issue of material fact is enough `to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
As discussed below, defendants demonstrate the absence of disputed material facts and that they are entitled to judgment as a matter of law.
Section 1981 provides in pertinent part:
Section 1981 "by its broad terms,... proscribe[s] discrimination in the making or enforcement of contracts against, or in favor of, any race." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Under section 1981, "discrimination based on `ancestry or ethnic characteristics' is prohibited." Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004).
Defendants note that elements of a section 1981 claim in the employment context are "akin" to a Title VII race discrimination claim for disparate treatment. See Manatt v. Bank of America, 339 F.3d 792, 798 (9th Cir.2003); Jones v. Robinson Property Group, 427 F.3d 987, 992 (5th Cir.2005) ("analysis under both statutes are identical"). "Analysis of an employment discrimination claim under § 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case .... Both require proof of discriminatory treatment ..." Fonseca, 374 F.3d at 850.
Defendants place on a section 1981 and/or Title VII plaintiff the burden to prove that the "plaintiff's race was a motivating factor for the defendant's adverse action." See Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir.1995) ("plaintiff has the ultimate burden of proving, either directly or indirectly, that his discharge was motivated by racial basis.") Defendants further hold Officer Plymale to establish that each defendant was involved personally in Officer Plymale's adverse action and intentionally infringed on Section 1981 rights. Cardenas v. Massey, 269 F.3d 251, 268 (3rd Cir.2001) (individual liability arises under section 1981 when a defendant "intentionally" causes an infringement of section 1981 rights, regardless of whether the employer may also be held liable).
Without stating as much, defendants appear to apply portions of the McDonnell Douglas
With these section 1981 and discrimination concepts in mind, this Court next analyzes Officer Plymale's section 1981 claims against each defendant.
Defendants contend that Sgt. Salazar is not subject to section 1981 liability because the IA investigation "was not undertaken for discriminatory reasons ... to amount to an adverse employment action."
Defendants argue that the IA investigation, undertaken without discriminatory reasons, is not an adverse action. See McRae v. Department of Corrections and Rehabilitation, 142 Cal.App.4th 377, 392, 48 Cal.Rptr.3d 313 (2006) ("the investigation itself, irrespective of the reasons for its initiation or its outcome, made no material change in the terms or conditions of... employment"); Harrison v. City of Akron, 43 Fed.Appx. 903, 905 (6th Cir. 2002) ("investigations are not adverse actions"); Ware v. Billington, 344 F.Supp.2d 63, 76 (D.D.C.2004) ("although the discipline imposed as a result of an investigation may have a sufficiently adverse effect on plaintiff's employment to be actionable, the mere initiation of the investigation does not").
Defendants are correct that Sgt. Salazar's initiation and conduct of the IA investigation is not an adverse action to support a section 1981 claim against him. Officer Plymale appears to agree in that he notes that "the initiation of the IA is not the focus" of Officer Plymale's complaint.
Defendants argue that Officer Plymale lacks evidence to create an inference that Sgt. Salazar intended to discriminate against Officer Plymale based on Officer Plymale's race. Defendants point to Officer Plymale's deposition testimony:
Officer Plymale appears to rest Sgt. Salazar's purported discriminatory intent on his claim that Sgt. Salazar "has a reputation for giving preferential treatment to Hispanic officers." Officer Plymale notes that Sgt. Salazar did not open an IA investigation after Chief Dyer assigned him "to `look into' an incident involving four Hispanic
Nothing in the record raises an inference that Officer Plymale's race motivated Sgt. Salazar's findings. At most, Officer Plymale speculates that Sgt. Salazar favors Hispanics. Even assuming such favoritism, there is no evidence to suggest that Sgt. Salazar harbored a racially discriminatory intent as to Officer Plymale.
Defendants argue that Officer Plymale lacks a section 1981 claim against Sgt. Salazar in that Sgt. Salazar "had a legitimate non-discriminatory basis for his conduct." Defendants point to the following:
Defendants raise legitimate, non-discriminatory reasons for Sgt. Salazar's findings. Officer Plymale offers nothing to challenge the legitimate, non-discriminatory reasons. Officer Plymale's section 1981 claim against Sgt. Salazar fails.
Defendants argue that Officer Plymale's section 1981 claim against Chief Dyer fails in the absence of Chief Dyer's "discriminatory animus in issuing the order of termination." Defendants point to Officer Plymale's deposition testimony wherein Officer Plymale answered "No" in response to questions:
The record is devoid of evidence or inferences of Chief Dyer's discriminatory intent.
Defendants argue that the following demonstrates the "legitimacy" of Chief Dyer's actions:
Officer Plymale offers nothing to raise a factual issue as to Chief Dyer's legitimate, nondiscriminatory basis for his actions toward Officer Plymale.
Defendants argue that the CSB findings preclusively bar Officer Plymale's section 1981 claims. Defendants argue that unreviewed administrative proceedings have preclusive effect when a state agency resolves disputed issues properly before it. "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United States v. Utah Construction & Mining Co., 384 U.S. 394, 421, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966).
A failure to challenge an agency's administrative decision rendered in its judicial or quasi-judicial capacity entitles that decision to have preclusive effect in all subsequent actions. Before pursuing a claim for damages, a plaintiff first must have the agency decision reviewed and set aside by the superior court in an administrative mandamus proceeding. Johnson v. City of Loma Linda, 24 Cal.4th 61, 65, 69-71, 99 Cal.Rptr.2d 316, 319, 5 P.3d 874 (2000); Westlake Community Hosp. v. Superior Court, 17 Cal.3d 465, 482-485, 131 Cal.Rptr. 90, 551 P.2d 410 (1976) (defendants were entitled to summary judgment against a doctor whose staff privileges were revoked by a hospital pursuant to a quasi-judicial proceeding, where affidavits established that plaintiff did not challenge the revocation through a mandamus action prior to instituting the damage action). Where an administrative decision is quasi-judicial in nature (notice and hearing provided) and is subject to judicial review, such review must be sought. Johnson, 24 Cal.4th at 65, 99 Cal.Rptr.2d 316, 5 P.3d 874. "[U]nless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions." Johnson, 24 Cal.4th at 65, 99 Cal.Rptr.2d 316, 5 P.3d 874.
Defendants point to the CSB findings that Officer Plymale violated City police department policy by moving a bottle 75 yards and placing it next to Mr. Celdon
The unchallenged CSB findings further support the absence of defendants' racially biased or pretextual action against Officer Plymale.
Defendants argue that the federal indictment precludes Officer Plymale to challenge defendants' findings as based on pretext or racial animus in that the indictment charges Officer Plymale with including in his report a false description of the circumstances surrounding Mr. Celdon's arrest.
The "finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer." Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002).
Similar to the CSB findings, the federal indictment against Officer Plymale further supports the absence of defendants' racially biased or pretextual action against Officer Plymale.
Defendants contend that Officer Plymale's invocation of the Fifth Amendment privilege precludes him to introduce "evidence of pretext or racial animus" on the part of defendants. Defendants note that Officer Plymale fails to dispute that he invoked the Fifth Amendment privilege as to any question involving the incident with Mr. Celdon and Officer Plymale's reports and investigation. Defendants point to following colloquy during Officer Plymale's deposition testimony:
"While it may be true that an individual should suffer no penalty for the assertion of a constitutional right, neither should third parties sued by that individual who have no apparent interest in the criminal prosecution, be placed at a disadvantage thereby." Jones v. B.C. Christopher & Co., 466 F.Supp. 213, 227 (D.Kan.1979). Thus, "a civil plaintiff has no absolute right to both his silence and his lawsuit." Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1088 (5th Cir.1979). In Lyons v. Johnson, 415 F.2d 540, 542 (9th Cir. 1969), the Ninth Circuit Court of Appeals explained:
Defendants argue that they are entitled to qualified immunity to bar Officer Plymale's section 1981 claims.
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir.1994) (qualified immunity available in 42 U.S.C. § 1985 action).
The issue of qualified immunity is "a pure question of law." Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994); Romero v. Kitsap County, 931 F.2d 624, 627-628 (9th Cir.1991). To analyze qualified immunity, a court determines: (1) what right has been violated; (2) whether that right was so "clearly established" at the time of the incident that a reasonable officer would have been aware of its constitutionality; and (3) whether a reasonable public officer could have believed that the alleged conduct was lawful. Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.1998), cert. denied, 525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1988). In Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir.2006), the Ninth Circuit explained in greater detail:
Defendants ask this Court to evaluate qualified immunity "in light of the clear authority that to maintain the public's confidence in its police force, a law enforcement agency must promptly, thoroughly, and fairly investigate allegations of officer misconduct."
As discussed above, Officer Plymale fails to establish violation of a clearly established statutory or constitutional right. Qualified immunity further supports summary judgment for defendants.
Defendants argue that the absolute privilege under California Civil Code section 47 ("section 47") defeats Officer Plymale's section 1981 claims.
Section 47(b) renders as privileged a publication or broadcast "[i]n any (1) legislative
The section 47(b) privilege is "absolute" and "bars all tort causes of action except a claim for malicious prosecution." Hagberg v. California Federal Bank FSB, 32 Cal.4th 350, 360, 7 Cal.Rptr.3d 803, 808, 81 P.3d 244 (2004). The "privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Silberg v. Anderson, 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 (1990).
The section 47(b) privilege "applies not only to judicial proceedings but to all truth-seeking inquiries, including legislative and other official proceedings." Crowley v. Katleman, 8 Cal.4th 666, 695, 34 Cal.Rptr.2d 386, 881 P.2d 1083 (1994). The privilege is not limited to statements made during trial or other proceedings "but may extend to steps taken prior thereto or afterwards." Rusheen v. Cohen, 37 Cal.4th 1048, 1057, 39 Cal.Rptr.3d 516, 128 P.3d 713 (2006). Communications do not fall outside the section 47 privilege "simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal. This is assuming, of course, that the communications are `logically related' to the litigation" or official proceeding. Kashian v. Harriman, 98 Cal.App.4th 892, 920, 120 Cal.Rptr.2d 576 (2002). Doubts as to application of the section 47(b) privilege are "to be resolved in favor of a finding of privilege." Brody v. Montalbano, 87 Cal.App.3d 725, 733, 151 Cal.Rptr. 206 (1978), cert. denied, 444 U.S. 844, 100 S.Ct. 87, 62 L.Ed.2d 57 (1979).
Defendants argue the "official proceeding" or "other proceeding authorized by law" extends to investigatory activities, such as those subject to Officer Plymale's claims. Officer Plymale offers no opposition to defense arguments to further support summary judgment for defendants.
Defendants further seek to invoke the privilege under California Government Code section 821.6, which provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." "California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits." Gillan v. City of San Marino, 147 Cal.App.4th 1033, 1048, 55 Cal.Rptr.3d 158 (2007). "Investigations are considered to be part of judicial and administrative proceedings for purposes of section 821.6 immunity." Richardson-Tunnell v. School Ins. Program for Employees (SIPE), 157 Cal.App.4th 1056, 1062, 69 Cal.Rptr.3d 176 (2007). "An investigation is cloaked in immunity because it is an essential step to instituting administrative proceedings." Richardson-Tunnell, 157 Cal.App.4th at 1062, 69 Cal.Rptr.3d 176.
Defendants note that section 821.6 immunity applies to public employment investigations for possible disciplinary proceedings. "The investigation, the preliminary notice and the proceedings before the civil service commission come within the scope of an `administrative proceeding' as that term is used in Government Code section 821.6. It follows that pursuant to section 821.6, [defendants] are immune from tort liability for any acts done to
Defendants argues that section 821.6 immunity precludes liability "predicated on a personnel investigation or its outcome." This Court construes Officer Plymale's absence of opposition to section 821.6 immunity as his concession that it applies to defendants. Defendants are correct that section 821.6 immunity further supports summary judgment for defendants.
Defendants contend that the record fails to raise a factual issue that Officer Plymale is entitled to punitive damages.
"A prevailing plaintiff in a cause of action under § 1981 is entitled under the common law to punitive damages ... `for conduct [by the defendant] exhibiting malice, an evil motive, or recklessness or callous indifference to a federally protected right.'" Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir.2000) (quoting Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 489 (4th Cir. 1988)). 42 U.S.C. § 1981a(b)(1) permits imposition of punitive damages if a defendant "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." The "punitive damages standard set forth in § 1981a ... is equally applicable to clarify the common law punitive damages standard with respect to a § 1981 claim." Lowery, 206 F.3d at 441.
Defendants point to the absence of evidence of their conduct which qualifies as malicious or in reckless disregard of Officer Plymale's rights. Again, defendants are correct. Punitive damages are unavailable in the absence of a viable section 1981 claim.
For the reasons discussed above, this Court:
IT IS SO ORDERED.
