White v. State of California, et al

MOTION for Summary Judgment

N.D. Cal.February 9, 2017

-1- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 PAMELA Y. PRICE, ESQ. (STATE BAR NO. 107713) LAW OFFICES OF PAMELA Y. PRICE A Professional Law Corporation Kaiser Center 300 Lakeside Drive, Suite 417 Oakland, CA 94612 Telephone: (510) 452-0292 Facsimile: (510) 452-5625 E-mail: pamela.price@pypesq.com DARRYL PARKER, ESQ. (STATE BAR NO. 95914) CIVIL RIGHTS JUSTICE CENTER, PLLC 2150 North 107th Street, Suite 250 Seattle, WA 98133 Telephone: (206) 557-7719 Facsimile: (206) 659-0183 E-mail: dparker@civilrightsjusticecenter.com Attorneys for Plaintiff DEJON D. WHITE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DEJON D. WHITE, Plaintiff, v. STATE OF CALIFORNIA, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, BRENT L. WARREN, LENARD M. PENNISI, JR., and WILLIAM L. MUNIZ, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. C15-03521 NC NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES Date: March 16, 2017 Time: 9:00 a.m. Dept: Courtroom 4, 5th Floor; San Jose Courthouse Judge: Hon. Edward J. Davila TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on March 16, 2017, at 9:00 a.m., or soon thereafter as the matter may be heard in Courtroom 4, 5th Floor of the above-entitled court, in its San Jose Division Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 1 of 28 -2- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 Courthouse, plaintiff Dejon White will and hereby does move this Court to grant his Motion for Summary Judgment on the issue of liability on each of his claims. Specifically, plaintiff will seek to have the following issues summarily adjudicated and be deemed established: 1. Plaintiff is African American and was one of three African Americans working in Facility A at the California Department of Corrections and Rehabilitation in Salinas; 2. Prior to and in 2013, plaintiff suffered from migraine headaches and suffered from a qualifying medical condition under the CFRA; 3. On July 4, 2013, plaintiff Dejon White made complaints about conduct at California Department of Corrections and Rehabilitation in Salinas that he reasonably believed to be racially discriminatory and a violation of federal and California law; 4. By July 5, 2013, defendants Brent Warren, Lenard Pennisi, Jr. and William Muniz had knowledge of plaintiff’s complaints of racial discrimination; 5. On July 8, 2013, defendant Warren interfered with plaintiff’s ability to go home sick when he suffered a migraine attack, by delaying his ability to leave the institution; 6. On July 30, 2013, unbeknownst to plaintiff, Pennisi and Warren wrote him up for going home sick by accusing him of abandoning his post; 7. On July 4, 2014, defendants Warren, Pennisi, and Muniz initiated adverse actions against plaintiff for complaining on account of his race and because he complained about discrimination; Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 2 of 28 -3- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 8. In July of 2014, plaintiff was notified that his salary was reduced by 10% for 24 months for his conduct on July 9, 2013, the day he went home sick. 9. A finding of liability against all defendants for discriminating against plaintiff because of his race in violation of 42 U.S.C. § 1981 (SAC, Third Claim); 10. A finding of liability against all defendants for retaliating against plaintiff in violation of 42 U.S.C. § 1981 and California law (SAC, Fourth and Fifth Claims); 11. A finding of liability against all defendants for interfering with is CFRA rights (SAC, First Claim), and; 12. A finding of liability against all defendants for retaliating against plaintiff because he exercised his rights under the CFRA rights (SAC, Second Claim); This motion is based upon this notice of motion and motion, the memorandum of points and authorities in support thereof, the Declaration of Darryl Parker, the Declaration of Dejon White, the Declaration of Anthony Morrison, the Declaration of Magdaleno Arredondo, the Declaration of Dr. Rodolfo Garcia, MD, the reply brief to be filed in support of this motion, the papers and pleadings on file herein, and on such oral argument and any other matters this Court may properly consider. Dated: February 9, 2017. Respectfully Submitted, /s/ Darryl Parker Attorney for Plaintiff, CA Bar No. 95914 Civil Rights Justice Center, PLLC 2150 N 107th Street, Ste 520 Seattle, WA 98133 Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 3 of 28 -i- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 TABLE OF CONTENTS INTRODUCTION .............................................................................................................................. 1 STATEMENT OF THE ISSUES ........................................................................................................... 1 STATEMENT OF THE FACTS ............................................................................................................ 2 A. PLAINTIFF IS MODEL EMPLOYEE .................................................................................................. 2 B. PLAINTIFF IS FALSELY ACCUSED OF BRINGING CONTRABAND INTO PRISON ........................................... 2 C. PLAINTIFF COMPLAINS OF DISCRIMINATION ................................................................................... 3 D. PLAINTIFF SUFFERS FROM A CHRONIC MEDICAL CONDITION ............................................................. 4 E. PLAINTIFF REQUESTS TO GO HOME SICK AND IS ASKED TO RELIEVE ANOTHER EMPLOYEE OF HER POST ..... 5 F. PLAINTIFF IS FURTHER CONFRONTED REGARDING HIS COMPLAINTS OF DISCRIMINATION ....................... 7 G. OFFICER MORRISON FILES MEMORANDUM REGARDING DISCRIMINATION WITH EMPLOYER ................... 8 H. OFFICER MORRISON IS CONFRONTED BY DEFENDANTS REGARDING HIS COMPLAINTS OF DISCRIMINATION 8 I. DEFENDANTS INITIATE ADVERSE ACTION PROCESS AGAINST PLAINTIFF ............................................... 9 J. NO INVESTIGATION REGARDING THE PROPOSED ADVERSE ACTION AGAINST WHITE IS CONDUCTED BY DEFENDANTS; THE BASIS OF THE ADVERSE ACTION IS COMPLETELY FALSE ......................................... 10 K. PLAINTIFF SUFFERS DAMAGES BECAUSE OF THE ADVERSE ACTION ................................................... 11 L. MORRISON IS AGAIN CONFRONTED BY DEFENDANT PENNISI REGARDING HIS COMPLAINTS OF DISCRIMINATION; MORRISON CHANGES TO A DIFFERENT SHIFT ...................................................... 11 ARGUMENT AND DISCUSSION OF AUTHORITIES ........................................................................ 11 A. LEGAL STANDARD ................................................................................................................... 11 B. DEFENDANTS VIOLATED THE CFRA WHEN THEY INTERFERED WITH PLAINTIFF’S LEAVE ........................ 12 C. PLAINTIFF MAKES OUT A PRIMA FACIE CASE OF RACIAL DISCRIMINATION ......................................... 14 D. PLAINTIFF MAKES OUT A CASE OF RETALIATION ........................................................................... 17 E. DEFENDANTS STATED REASON FOR THEIR TREATMENT OF PLAINTIFF IS PRETEXTUAL COMPELLING AN INFERENCE OF DISCRIMINATION ................................................................................................ 20 CONCLUSION ................................................................................................................................ 22 PROPOSED ORDER ........................................................................................................................ 22 Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 4 of 28 -ii- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................. 12 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) .......................................................... 19 Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ................................ 18, 19 Celotex v. Catrett, 477 U.S. 317 (1986) ....................................................................................... 12 Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115 (9th Cir.2000) ......... 20 Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008) .............................................................. 16 Farrell v. Planters Lifesavers Co. 206 F.3d 271 (3rd Cir. 2000) .................................................. 19 Faust v. Cal. Portland Cement Co., 150 Cal.App.4th 864, 58 Cal.Rptr.3d 729 (2007) ............... 13 Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 100 Cal.Rptr.2d 352 (2000) ........................................ 16 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ....................................................................... 16 Hopkins v. Price Waterhouse, 825 F.2d (D.C. Cir. 1987) ............................................................ 15 Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988) ............................................................................ 19 Kaulia v. Cnty. of Maui, 504 F.Supp.2d 969 (D. Haw. 2007) ................................................ 18, 19 Lewis v. Smith, 255 F. Supp. 2d 1054 (D. Ariz. 2003) ................................................................. 18 Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.1985) .............................................................. 15 Lust v. Sealy, Inc., 277 F.Supp.2d 973 (W.D.Wis.,2003) ............................................................. 15 Lynn v. Regents of the Univ. of Cal., 656 F.2d 1337 (9th Cir.1981) ............................................ 15 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574 (1986) .............................................. 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .................................................... 15, 16 Peterson v. Hewlett–Packard Co., 358 F.3d 599 (9th Cir. 2004) ................................................. 16 Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) .............................................................. 15 Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003) ...................... 17 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) ......................................................................... 18 Reidt v. County of Trempealeau, 975 F.2d 1336 (7th Cir.1992) .................................................. 15 Richey v. AutoNation, Inc., 60 Cal.4th 909, 182 Cal.Rptr.3d 644 (2015) .................................... 13 Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 5 of 28 -iii- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 Sanders v. City of Newport, 657 F.3d 772 (9th Cir.2011) ............................................................ 13 Sischo–Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir.1991) .............. 15 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) ............................................ 15 Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir.1999) ........................................................ 14 Yanowitz v. L'Oreal USA, Inc, 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005) ...... 16 STATUTES 42 U.S.C. § 1981 ........................................................................................................................... 14 42 U.S.C. § 2000e-3(a) ................................................................................................................. 18 42 U.S.C. § 2000e–3(a)................................................................................................................. 17 CFRA. Cal. Gov.Code § 12945.2(t) ....................................................................................... 12, 13 COURT RULES Federal Rule of Civil Procedure 56(a) .......................................................................................... 11 Federal Rule of Civil Procedure 56(c) .......................................................................................... 12 Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 6 of 28 -1- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 INTRODUCTION Plaintiff Dejon White, an African American Correctional Officer at the California Department of Corrections and Rehabilitation in Salinas (CDCR), brings this action for violation of state law under FEHA and under Federal law pursuant to 42 U.S.C. § 1981. Defendants interfered with Officer White’s rights under the California Family Rights Act (CFRA), which is administered by the Department of Fair Employment and Housing. When Officer White expressed his need to take immediate leave from work, due to a severe migraine headache that qualifies as a condition which triggers the protections of the CFRA, defendants Warren and Pennisi violated and interfered with his rights under the Act and subjected him to adverse employment actions. Defendants violated 42 U.S.C. § 1981 by discriminating against plaintiff because of his race, African American, in the terms and conditions of his employment. This discrimination was manifested by defendants’ accusations that plaintiff and other African American Correctional Officers were bringing contraband into the prison. When plaintiff complained that he believed that the accusations were race based, he was retaliated against, including given completely unwarranted adverse actions and subjected to ongoing harassment by defendants. STATEMENT OF THE ISSUES 1. Whether the undisputed material facts demonstrate that defendants violated the interference provisions of the California Family Rights Act (“CFRA”) as a matter of law. 2. Whether the undisputed facts demonstrate that defendants violated the anti- retaliation provisions of the CFRA as a matter of law. 3. Whether the undisputed material facts demonstrate that defendants violated 42 U.S.C. § 1981 as a matter of law, by discriminating against plaintiff because of his race through Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 7 of 28 -2- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 accusations of illicit acts, depriving plaintiff of his right to be free from intentional discrimination in his employment. 4. Whether the undisputed material facts demonstrate that defendants violated the anti-retaliation provisions of the California Fair Employment and Housing Act (“FEHA”) and 42 U.S.C. § 1981 as a matter of law by harassing plaintiff and subjecting him to adverse actions after he complained that the accusations of misconduct made against him were race based. STATEMENT OF THE FACTS The evidence establishes the following facts. A. Plaintiff is Model Employee Plaintiff Dejon White (“Plaintiff” or “White”) was hired as a permanent employee with the CDCR in 2004. See Declaration of Dejon White at ¶ 2. On August 16, 2013, he received “outstanding” ratings on his Annual Report of Performance. He was rated “outstanding” in six out of seven categories and “above standard” in the one remaining category. Id at ¶ 23. His supervising officer describes him as professional, an excellent officer, someone who knows policy and procedure, and someone who does not need to be supervised. See Deposition of Diane Ledbetter at 21:15-23. B. Plaintiff is Falsely Accused of Bringing Contraband into Prison In July of 2013, plaintiff was one of only three African American officers working in Facility A at the CDCR. See Deposition of Lenard Pennisi at 13:22-14:5; Deposition of Brent Warren at 34:11-35:4; Ledbetter Deposition at 27:6-16. On July 3, 2013, at approximately 1530 hours, plaintiff spoke to Officer Anthony Morrison (“Morrison”), who was working on Third Watch. He learned that they were both accused of bringing contraband into the prison and both believed the accusations occurred simply Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 8 of 28 -3- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 because they are Black. Morrison informed plaintiff that he felt like he was being ostracized and was scared while at work. Plaintiff showed Morrison how to write an EEO report and suggested that he file a complaint. He further said that they both should complain to the State Personnel Board in San Jose. See White Dec at ¶ 4; See Declaration of Anthony Morrison at ¶¶ 3, 4. There were rumors spread among prison staff that plaintiff was bringing contraband into the institution. Other officers approached Sgt. Ledbetter and told her that she needed to keep an eye on White. See Ledbetter Deposition at 7:19-25. Officer Melissa Pender (“Pender”) overheard the July 3, 2013 conversation between plaintiff and Morrison. She informed both of them that Lt. Pennisi (“Pennisi”) assigned her to be Morrison’s partner so that she could watch him. She further stated that the administration thought Morrison was dirty and that both of them were doing something illegal. She said that she knew both plaintiff and Morrison were clean and were not doing anything illegal. See White Dec at ¶ 5; Morrison Dec at ¶ 5. C. Plaintiff Complains of Discrimination On July 4, 2013, Officer D. Shaltry (“Shaltry”) and Pennisi confronted plaintiff on the patio at the Program Office door. Shaltry stated, “I heard that you and Officer Morrison stated that me, Sgt. Warren (“Warren”), and Lt. Pennisi are racist against Black officers on the Yard, and are going to fill out paperwork.” Plaintiff did not respond to the statement. Id at ¶ 6. The same day, Officers Leanna Reck (“Reck”) and Magdaleno Arredondo (“Arredondo”) informed Morrison that Warren told them White and Morrison were bringing contraband into the prison and they needed to watch him. Morrison knew this was a lie and there was no remote possibility that he was doing anything that could cause anyone to think that he was bringing contraband into the institution. See Morrison Dec at ¶¶ 6, 7. See Declaration of Magdaleno Arredondo at ¶ 3. Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 9 of 28 -4- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 Shortly after the two July 4, 2016 incidents, plaintiff and Morrison tracked that, when plaintiff worked Third Watch, Warren also accused him of bringing contraband into the prison. Plaintiff and Morrison believed the allegations were based solely on their race, African American. Id at ¶ 7; See White Dec at ¶ 7. On July 5, 2013, after the staff meeting at 1800 at Alpha 5, Pennisi approached Morrison and asked him if he believed there was discrimination on the yard. He also asked Morrison if he planned on filing a complaint. Morrison answered that he was planning to file. Id at ¶ 8. D. Plaintiff Suffers from a Chronic Medical Condition Plaintiff has suffered from chronic migraine headaches for many years and had several during the month of July 2013. The migraines cause him to suffer from debilitating pain, hindering his daily activities. See White Dec at ¶ 8. When plaintiff experiences a migraine headache, he has throbbing head pain, eye pain, tunnel vision, sensitivity to light and sound, nausea, and vomiting. Typically, the migraines last approximately 6-12 days without medication, and approximately 4-5 days with medication. Id at ¶ 9; See Declaration of Rodolfo Garcia M.D. at ¶ 6. Plaintiff takes the following medications for his chronic migraine headaches: Kaopectate for nausea and vomiting, Emetrol for nausea, Naproxen 500 as an anti-inflammatory pain killer, Ibuprofen as a pain killer, Sumavel migraine injection, Fioricet for migraines caused by muscle contractions, Fioricet with Codeine to sleep when having a migraine, Testosterone Therapy for migraines, and Botox Treatment for chronic migraines. Id at ¶ 10. His insurance sometimes changes, causing the type of medications prescribed for his migraines to change. In July of 2013, the medication his physician prescribed was no longer covered by his insurance, so they dropped Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 10 of 28 -5- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 it. It took several months for plaintiff’s Physician to find a comparable medication that did not make plaintiff sick. Id at ¶ 11; See Garcia Dec at ¶ 7. Prior to July of 2013, plaintiff informed his supervisor, Sergeant Diane Ledbetter, that he had chronic migraine headaches. She shared that she often got migraines herself. Id at ¶ 12. E. Plaintiff Requests to go Home Sick and is Asked to Relieve Another Employee of Her Post On July 8, 2013, Plaintiff went to a medical appointment to meet with his Physician to address recurring migraine headaches and feeling drowsy in the morning. His Physician gave him a sample drug called Nuvigil, to offset the drowsiness he experienced from the other medications he was taking at the time. See White Dec at ¶ 13; See Garcia Dec at ¶ 10. Plaintiff returned to work the next day, July 9, 2013, and worked his regular assignment as Facility A Security Officer #1 (Post #31172) and then took an overtime assignment and worked under Sergeant Warren. White had taken the sample medication earlier and was beginning to feel nauseous, which for him is an early sign that a migraine is coming on. Plaintiff informed his supervisor, Warren, that he was ill and needed to go home. When an employee informs a supervisor that they are ill and need to go home, the supervisor is required to let the employee go home. See Pennisi Deposition at 30: 3-6; Warren Deposition at 14:15-15:9 and 106:17- 107:13; Ledbetter Deposition at 15:6-10. Warren requested for him to stay long enough to cover the meal and Plaintiff agreed to do so. See White Dec at ¶ 14. Plaintiff continued to feel ill through the meal and prepared to leave work when the meal was over. As he was preparing to leave, at approximately 5:00 p.m., Warren directed him to cover a post for another officer, Officer Polanco, who was also going home sick. Officer Polanco requested to go home because of back pain. Defendant Warren informed her that he would find Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 11 of 28 -6- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 someone to relieve her and that she would be able to go home. He did not question her regarding her illness, nor did he require her to go to medical to fill out a 7219 form in order to leave work sick. See Deposition of Vanessa Polanco at 15:11-16:10; See Warren Deposition at 104:4- 106:16. Plaintiff understood his obligation as a peace officer to follow orders and instructions and, under normal circumstances, would have assumed the control booth post, but he was ill and needed to go home. He reminded Warren about his illness, and Warren quickly became angry and abusive towards him. Id at ¶ 15. Warren directed plaintiff to go to the Correctional Treatment Center (“CTC”), which is located a long distance from where plaintiff works at Facility A, to complete a Medical Report of Injury. Plaintiff went to the CTC, as ordered, and attempted to confirm with the CTC Nurse that he was sick. The CTC Nurse questioned his right to take off sick and told him he could not leave the institution without explaining his illness to her. Plaintiff informed the nurse that he did not need to fill out the form because the form is for inmates. Id at ¶ 15. Form 7219 is also used when an officer is injured in an incident. See Ledbetter Deposition at 18:4-19:8. Plaintiff left the CTC and contacted Sgt. Rodriguez (“Rodriguez”) on the yard to report the treatment he received from both the CTC Nurse and Warren. Rodriguez authorized plaintiff to go home because he was sick and also contacted Lt. Oyarzabal about the situation. It is standard practice to ensure the officer can drive himself home, determined by speaking directly to the officer. See Deposition of Kristi Rodriguez at 17:2-19:21. After Plaintiff left work, he was contacted by Pennisi, who criticized him and suggested that he was feigning illness. See White Dec at ¶ 16. Prior to July 9, 2013, plaintiff called in sick or left work a total of four times since his hiring date in 2004. Id at ¶ 17. On July 10, 2013, plaintiff saw his Physician for a follow-up Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 12 of 28 -7- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 appointment regarding his chronic migraine headaches and the medication that made him sick; and, he scheduled a follow-up appointment. Id at ¶ 18; See Garcia Dec at ¶¶ 12-13. Plaintiff had further follow-up appointments with his Physician for issues regarding his migraines on July 15, 2013, July 22, 2013, and July 29, 2013. See Garcia Dec at ¶¶¶ 13-15. Meanwhile, on July 10, 2013, as Officer Morrison began his shift at 1400 hours, he spoke to Warren and told him that he believed Warren and others were racist and had isolated Morrison and other Blacks on the yard. Later, during his shift, he spoke to Officer Shaltry, who was friends with Warren, about discrimination on the yard. See Morrison Dec at ¶ 9. After this conversation, Morrison was ignored and completely isolated. Everywhere he went, people asked him if he was dirty and if he was bringing contraband into the prison. Id at ¶ 11. Plaintiff’s Physician provided a doctor’s note from the July 10, 2013 appointment, which excused him from work on July 9, 2013. Plaintiff turned in the doctor’s note on the employee attendance sheet when he returned to work on July 11, 2013. See White Dec at ¶ 18; See Garcia Dec at ¶ 12. F. Plaintiff is Further Confronted Regarding His Complaints of Discrimination On July 11, 2013, plaintiff signed in for his overtime shift in the Program Office. Warren was also in the office and approached plaintiff, stating, “So, we are allegedly discriminating against you and Officer Morrison.” Plaintiff assumed Warren’s statement stemmed from the July 4, 2016 conversation he had in A5. Plaintiff proceeded to A5 to talk to Morrison. Id at ¶ 19. At approximately 1445 hours, plaintiff and Morrison discussed filing an EEOC charge of discrimination against the A-yard supervisors. They also discussed filing a complaint with the State Personnel Board in Sacramento. Id at ¶ 20; See Morrison Dec at ¶10. Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 13 of 28 -8- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 G. Officer Morrison Files Memorandum Regarding Discrimination with Employer Approximately a day later, Morrison went to Lt. Gifford’s office and gave him a hand- written memorandum, stating his concerns about the behavior of the supervisor on the Alpha Facility Third Watch, the constant scrutiny of himself and other African Americans, and that plaintiff was the source of his information. Morrison was directed to Chief Deputy Warden Muniz’s office, where he handed the memorandum to Muniz’s secretary. He also spoke with Lt. Ramirez and Associate Warden Belinda Hendrix. He was assured that they would do an inquiry and a follow-up with the Alpha Facility Captain in the morning to address the behavior. See Morrison Dec at ¶¶¶ 12-14. On July 29, 2013, at approximately 1450 hours, Morrison was not feeling well and asked Warren if he could go home sick. Warren directed him to fill out a form 7219. Morrison went to the Nurse in the yard, had the form filled out, and returned it to Warren. Warren stated that it was not good enough and that Morrison had to go to CTC on the other end of the prison to have the Nurse there fill out the form. Morrison went to CTC and the Nurse inquired why Warren kept sending officers there when there were so many Nurses on the yard. Morrison reported this incident to Captain Moore and Watch Sgt. Lasso. He went back to the yard with the 7219 and presented it to Warren. Id at ¶ 15. H. Officer Morrison is Confronted by Defendants Regarding His Complaints of Discrimination Warren, with a smirk on his face, told Morrison to sit down, and asked him if he wanted to file a complaint against him because he was racist and was discriminating against Morrison. Morrison told him “yes,” because there was racism on the yard and that Warren was discriminating against him. Lt. Martinez, who was present at the time, told Morrison that they Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 14 of 28 -9- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 had the right to redirect officers who were on overtime to any position that they want. Morrison felt this comment came out of nowhere, considering he was not on overtime when he asked to go home sick. Id at ¶ 16. Warren and Martinez told Morrison that he could leave, but when he got to the front gate, he was informed by Officer Hailsted, of the Tower, that the Tower was instructed not to let him leave. Morrison walked back to the yard and waited 45 minutes until the staff meeting was over. At approximately 1900 hours, 4.5 hours after Morrison requested to go home sick, Warren informed him that he was allowed to leave. Id at ¶ 17. I. Defendants Initiate Adverse Action Process Against Plaintiff On July 30, 2013, Warren and Pennisi each wrote Memoranda to the appointing authority, requesting adverse action be taken against plaintiff for alleged willful disobedience. The Memoranda were false and full of slanderous statements about plaintiff. See White Dec at ¶ 22. Sometime in August of 2013, CTC Clinician Jessica Ramirez was asked to fill out a statement regarding the events that took place with plaintiff in the CTC on July 9, 2013, a full month after the incident. See Deposition of Jessica Ramirez at 21:4-22:6. Plaintiff was unaware that Warren and Pennisi had written memoranda regarding the incident on July 9, 2013, requesting that adverse action be imposed on him. See White Dec at ¶ 25. On August 6, 2013, Morrison met with Chief Deputy Warden Muniz and CCPOA Chapter President B. Messier regarding his hostile work environment, defamation of character, discrimination, and harassment. Muniz stated he would follow-up on Morrison’s concerns. See Morrison Dec at ¶ 18. In October of 2013, Morrison again met with Muniz to discuss the ongoing hostile work environment. Morrison stated that he felt unsafe and requested a job change. Id at ¶ 19. Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 15 of 28 -10- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 On November 5, 2013 and January 8, 2014, Morrison overheard Pennisi and Warren making unprofessional remarks regarding Warren’s transfer going through regardless of any staff complaints filed against him. Id at ¶ 20. On January 9, 2014, Morrison spoke with Muniz regarding the remarks. Id at ¶ 21. At this point, there has been no resolution, nor finding of the investigation in Morrison’s case. Id at ¶ 22. J. No Investigation Regarding the Proposed Adverse Action Against White is Conducted by Defendants; the Basis of the Adverse Action is Completely False On July 4, 2014, as a direct result of Warren and Pennisi’s July 2013 Memoranda, CDCR served plaintiff with a Notice of Adverse Action, proposing to reduce his salary by 10% for 24 months, effective at the close of business on July 14, 2014. Plaintiff met with Chief Deputy Warden William L. Muniz in late July of 2014 and provided him with proof that plaintiff was entitled to take medical leave and that Warren and Pennisi interfered with his rights. See White Dec at ¶ 24. Plaintiff was unaware that Warren and Pennisi had written Memoranda in August of 2013, requesting that adverse action be taken against plaintiff, until July 4, 2014. Id at ¶ 25. Plaintiff’s Supervisor, Diane Ledbetter, was not informed of, or involved with, any adverse action or investigations being taken against plaintiff. She only heard of the incident directly from plaintiff. See Ledbetter Deposition at 34:25-35:9. After plaintiff appealed the adverse action, it was discovered that the adverse action was based only on three documents: one from Pennisi, one from Warren, and one from Jessica Ramirez. Id at ¶ 26. Ramirez was not informed of any investigation against plaintiff. She was only asked complete a statement about what happened on the date of the incident. She would not have filled out a statement, unless asked; and, she was never interviewed with respect to the incident by any officers, including defendants Warren and Pennisi. See Ramirez Deposition at 20:18-22:6; 22:15-23:23. Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 16 of 28 -11- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 K. Plaintiff Suffers Damages Because of the Adverse Action Despite plaintiff’s glowing employment evaluations, due to this incident he has not received any promotions, and the advancement of his career has been destroyed. See White Dec at ¶ 27. Plaintiff now takes anti-anxiety medications in the form of Cymbalta and Xanax, due to the stress and anxiety he suffers from his job, including the feeling that he is going to wake up and not have a job the next day. Id at ¶ 28. L. Morrison is Again Confronted by Defendant Pennisi Regarding His Complaints of Discrimination; Morrison Changes to a Different Shift On February 21, 2016, as Morrison was leaving the facility and Pennisi was entering, Morrison walked past Pennisi without saying anything. Pennisi stopped and said, “Oh, it is like that.” Morrison replied, “I do not have anything to say to you.” Pennisi said, “Do not walk away from me officer, I want to talk to you. Come on bro, come to the office so we can talk. I have a wife and kids to take care of. I got Warren out of here. I am not a racist.” Morrison replied, “You guys come up with all those lies about me and White bringing drugs into the prison. You went to Officers Reck and Arredondo and had them watching me.” Pennisi then told Morrison that he was sorry and asked to shake his hand, which Morrison did. See Morrison Dec at ¶ 23. Morrison now works First Watch, from 10:00 p.m. through 6:00 a.m. He tries to avoid working around other people. He does not feel safe in his job because he knows the other officers do not have his back. Id at ¶ 24. ARGUMENT AND DISCUSSION OF AUTHORITIES A. Legal Standard Rule 56(a) of the Federal Rules of Civil Procedure permits a party seeking to recover on a claim to move for summary judgment in the party's favor upon all or any part thereof. Rule Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 17 of 28 -12- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 56(c) permits a district court to enter an interlocutory judgment on the issue of liability when the record demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. The purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses." Celotex v. Catrett, 477 U.S. 317, 323- 24 (1986). To preclude the entry of summary judgment, defendants in this case must set forth disputed material facts, that is, those facts that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Defendants "must do more than simply show that there is some metaphysical doubt as to the material facts." Where the record taken as a whole could not lead a rational trier-of-fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588 (1986). Plaintiff will show that defendants discriminated against him because of his race when they singled him out as someone who would bring contraband into the prison and spread rumors among staff and prisoners that he was “dirty”; defendants violated the CFRA when they interfered with plaintiff’s leave; and defendants retaliated against plaintiff when they requested that adverse action be taken against plaintiff after he complained about the racial discrimination that was happening to him and other African American employees, and after he requested to go home sick from work with a migraine headache. B. Defendants Violated the CFRA When They Interfered with Plaintiff’s Leave Defendants violated the CFRA when they interfered with plaintiff’s right to leave work when suffering from the serious medical condition of chronic migraine headaches; and, they have no defense to this action. Under CFRA, it is unlawful “for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under” CFRA. Cal. Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 18 of 28 -13- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 Gov.Code § 12945.2(t). The elements of an interference claim under CFRA are: (1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights. Faust v. Cal. Portland Cement Co., 150 Cal.App.4th 864, 879, 58 Cal.Rptr.3d 729 (2007) . The elements of an FMLA interference claim are similar: (1) the plaintiff must be an eligible employee who was entitled to take leave and gave notice of his intent to do so; and (2) his employer is an employer under the FMLA and denied him the benefits to which he was entitled under the FMLA. Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir.2011). The provisions of CFRA mirror its federal counterpart, the FMLA, and “courts use language from the FMLA and CFRA interchangeably.” Richey v. AutoNation, Inc., 60 Cal.4th 909, 919, 182 Cal.Rptr.3d 644 (2015). The purpose of the CFRA is to protect the employee’s job and benefits, in the event of serious illness, such as a serious or chronic medical condition. Full-time employees, who have worked in their position for over a year, are entitled to take leave under the CFRA. The CDCR has policies and procedures in-place to follow these guidelines, and defendants violated said guidelines when plaintiff became ill on July 9, 2013. First, plaintiff has been a full-time employee with CDCR since 2004. He suffers from the serious medical condition of chronic migraine headaches. Thus, he is eligible to take leave under the CFRA. Further, plaintiff’s employer should have been aware of his condition. Plaintiff previously informed his supervisor of his serious medical condition. Plaintiff, who was entitled to take leave, informed his supervisor that he was ill and needed to go home. It is reasonable to assume that defendants were aware that he suffered from said condition when he became sick and requested to go home. Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 19 of 28 -14- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 Finally, defendant Warren, already aware of plaintiff’s condition and current illness, interfered with his CFRA rights when he: (1) requested that plaintiff work through dinner after he informed them he was ill; (2) allowed another employee to go home after they already told plaintiff he could go home after dinner; (3) demanded that plaintiff relieve said employee of her post instead of going home sick; (4) forced plaintiff to walk a long distance to the CTC to obtain a form stating he was sick; and (5) failed to follow their own admitted policy of not questioning an employee when he or she becomes ill at work. Additionally, after being required to stay a lengthy time period and to work while sick, White was then verbally reprimanded by defendant Pennisi for leaving work, who accused him of feigning illness. Thereafter, defendants punished plaintiff for requesting and taking the partial day leave by instituting an adverse action against him that reduced his pay by 10% for 24 months. The CFRA was put into place to protect employees and their right to take time off of work. Defendants clearly violated the CFRA when they interfered with plaintiff’s rights and punished him for being sick with a serious medical condition. None of the defendants have a defense to this claim and to the extent they put forth one, plaintiff can demonstrate pretext as shown infra. C. Plaintiff Makes Out a Prima Facie Case of Racial Discrimination Plaintiff has alleged that defendants committed discrimination on the basis of race in violation of Section 1981. Section 1981 prohibits discrimination based on race, ethnic background, ancestry, and/or national origin committed under color of law. 42 U.S.C. § 1981(b). “The Supreme Court has long recognized that unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus.” Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir.1999) (see also Lynn v. Regents of the Univ. of Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 20 of 28 -15- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 Cal., 656 F.2d 1337, 1343 n. 5 (9th Cir.1981). Courts have also provided protection for bias that arises from "unwitting or ingrained bias,” that “is no less injurious or worthy of eradication than blatant or calculated discrimination." Hopkins v. Price Waterhouse, 825 F.2d. 469 (D.C. Cir. 1987); Lust v. Sealy, Inc., 277 F.Supp.2d 973 (W.D.Wis.,2003); Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971): Reidt v. County of Trempealeau, 975 F.2d 1336, 1340 (7th Cir.1992). “There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.” McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) (emphasis added). Courts have ruled that, in § 1981 claims, the plaintiff must prove that the defendants “acted with intent to discriminate.” Sischo–Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1113 (9th Cir.1991). The “crux” of disparate treatment claims is “the elusive factual question of intentional discrimination.” Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir.1985), modified, 784 F.2d 1407 (9th Cir.1986) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981)). During the summary judgment stage, plaintiff can demonstrate he was a victim of discrimination inferentially by utilizing the well-settled prima facie case and burden-shifting standard originally announced in McDonnell Douglas Corp. 411 U.S. 792 at 802. An inference of discrimination may be established based on our facts by showing “(i) that he belongs to a Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 21 of 28 -16- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 racial minority; (ii) that he was performing satisfactory in the position that he held; (iii) he was subject to an adverse action; (iv) that there is a causal connection between the adverse action and plaintiff’s race or some other circumstance suggests a discriminatory motive. Guz v. Bechtel Nat. Inc., 24 Cal.4th 317 at 355, 100 Cal.Rptr.2d 352 (2000) see also Peterson v. Hewlett– Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) McDonnell Douglas Corp., 411 U.S. 792 at 802- 804, holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). An adverse employment action, for purposes of a discrimination action, is one that “materially affect[s] the compensation, terms, conditions, or privileges of ... employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); see also Yanowitz v. L'Oreal USA, Inc, 36 Cal.4th 1028, 1052, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005) (stating “an adverse employment action must materially affect the terms and conditions, or privileges of employment to be actionable” in the FEHA context). A reduction in pay even temporarily affects the terms and conditions of employment and is an adverse action for purposes of a discrimination claim. In the present case, plaintiff is one of very few African American officers at the CDCR, working as a Corrections Officer, and is one of only three African American officers on Facility A. Plaintiff, as described by his supervisor, is a model employee, who is professional, understands the policies and procedures, and does not need to be supervised. Defendants, who were also plaintiff’s superior officers, intentionally spread vicious rumors among prison staff and inmates, falsely accusing plaintiff and other African American officers of illicit activities, such as bringing contraband into the prison. Plaintiff endured, and continues to endure, the painful, spurious stories among prison staff and inmates about him being a “dirty” officer. There is no factual basis for believing that either Morrison or White were bringing contraband into the Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 22 of 28 -17- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 institution. The only reason to make the accusation is race. It is a logical inference to make from the totality of the facts. Following the July 9, 2013 incident, plaintiff was again confronted by defendants on July 11, 2013, this time by defendant Warren, regarding plaintiff’s complaints of racial discrimination. By the end of July of 2013, Pennisi and Warren filed memoranda for adverse employment action to be taken against plaintiff. Subsequently, a year later, plaintiff was disciplined and informed that he would receive a 10% reduction in pay for 24 months. As a direct consequence of their actions, defendants permanently tarnished plaintiff’s reputation; and, these actions have prevented plaintiff, an exemplary officer, from being promoted in the workplace. The facts clearly spell out the discrimination plaintiff has been forced to endure at the hands of defendants. Defendants have no defense to the action at all and are unable to rebut plaintiff’s prima facie case or come up with a non-pretextual rationale for their treatment of plaintiff. D. Plaintiff Makes Out a Case of Retaliation Defendants retaliated against plaintiff under Title VII, which prohibits actions taken against an employee in retaliation for activities under its protection. Protected activity includes: (1) the filing of a charge or a complaint; (2) providing testimony regarding an employer's alleged unlawful practices, and; (3) engaging in other activity intended to “oppose[ ]” an employer's discriminatory practices. 42 U.S.C. § 2000e–3(a). To make a prima facie case of retaliation under Title VII, plaintiff must demonstrate that (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) there was a causal link between his activity and the employment decision. Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1196-1197 (9th Cir. 2003). Once a plaintiff sets forth a prima facie retaliation case, the burden Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 23 of 28 -18- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Here, plaintiff makes out a nonrebuttable case for retaliation. First, plaintiff engaged in protected activity when he complained that there was racial discrimination at the CDCR in 2013. Title VII protects employees who make a charge, testify, assist, or participate in proceedings or hearings under the statutes or who oppose acts made unlawful by the statutes. 42 U.S.C. § 2000e- 3(a). It is undisputed that an employee is engaging in protected activity when he files a complaint for discrimination. See Lewis v. Smith, 255 F. Supp. 2d 1054, 1068 (D. Ariz. 2003) (Plaintiff’s opposition to a salary disparity established a “protected activity”); Kaulia v. Cnty. of Maui, 504 F.Supp.2d 969, 991 (D. Haw. 2007) (plaintiff engaged in a protected activity when he made his complaints of discrimination known to defendants and when he filed an EEOC complaint). Second, plaintiff suffered an adverse action when defendants submitted memoranda, falsely stating that plaintiff was insubordinate and left his post. For the purposes of retaliation, an adverse action includes those actions that are harmful and could well dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). The Ninth Circuit has held that the: (1) elimination of employee feedback meetings; (2) elimination of a flexible start-time policy; (3) imposition of additional security measures that made it more burdensome for employees to perform their job duties; and (4) reduction in the employee’s workload disproportionately to the reductions of other workers, which resulted in disproportionately reduced pay, all constitute adverse employment actions for the purposes of a retaliation claim. Ray, 217 F.3d 1234 at 1242-43. Acts that are likely to dissuade employees from complaining or assisting in complaints about Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 24 of 28 -19- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 discrimination are considered adverse actions for purposes of a retaliation claim. Burlington N. & Santa Fe Ry. Co., 548 U.S. 53 at 69–70. In Kaulia, the court noted that the defendant’s refusal to transfer an employee from a violent workplace constitutes an adverse employment action as it would likely dissuade others from filing discrimination complaints. 504 F.Supp.2d 969, 992. Similarly, in Brooks v. City of San Mateo, the court noted that in certain circumstances, scheduling a plaintiff with a co-worker who is openly hostile to him may be an adverse employment action. Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000). Here, plaintiff was constantly harassed, making his working environment hostile, and he suffered an adverse employment action because he was docked 10% of his pay for weeks. The employer did not reverse its decision until plaintiff took legal action and the money had already been removed from his paycheck. This case is distinguishable from Brooks, supra who received a negative performance review that could have been corrected before she abandoned her position, because the decision to reduce plaintiff’s salary was upheld during the skelly process and the money was actually taken from him. Third, plaintiff must show a causal link between the employee’s protected activity and the employer’s adverse action. Farrell v. Planters Lifesavers Co. 206 F.3d 271, 279 (3rd Cir. 2000). The causal link may be established by an inference derived from circumstantial evidence such as: the employer’s knowledge that the employee engaged in protected activities; and the proximity in time between the protected action and allegedly retaliatory employment decision. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988). Plaintiff can demonstrate a causal link between his engagement in a protected activity and defendants’ adverse action. In 2013, plaintiff complained to his co-workers and supervisor Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 25 of 28 -20- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 of racial discrimination in the workplace. It is undisputed that defendants knew that plaintiff had engaged in protected activities. In fact, they confronted plaintiff several times regarding his complaints against them. On July 9, 2013, plaintiff left work sick and almost one month later, defendants Warren and Pennisi wrote memoranda requesting adverse action be taken against plaintiff for insubordination and abandoning his post the day he left work sick. The CDCR went on to take adverse action against plaintiff a year later, depending only on the memoranda of three persons. They never conducted an investigation; and, no interviews took place. The CDCR continued to allow defendant officers to harass plaintiff regarding his complaints of racial discrimination without intervention or taking steps to discipline defendant officers. E. Defendants Stated Reason for Their Treatment of Plaintiff is Pretextual Compelling an Inference of Discrimination Defendants openly discriminated against plaintiff through: (1) spreading false accusations and rumors among staff and inmates; (2) interfering with plaintiff’s right to take leave from work by demanding that he relieve another employee of her post; (3) contradicting their own policy by forcing plaintiff to obtain a medical form from the CTC; (4) verbally reprimanding him for leaving work sick, and; (5) writing memoranda laced with false accusations to institute an adverse action. In a fairly recent Ninth Circuit case, the Court held that “a plaintiff may demonstrate pretext by showing that the employer's proffered explanation is unworthy of credence because it is ‘internally inconsistent or otherwise not believable.’” Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir.2000). In the present case, plaintiff has direct evidence of pretext and retaliatory motive. Defendants stated reason for taking adverse action was that plaintiff abandoned his post and went home without signing out and without permission. This reason is false and has no evidentiary Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 26 of 28 -21- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 support. The sequence of events that took place with defendants, before and after July 9, 2013, establishes the implausibility of defendants’ story about why they took adverse action against plaintiff. First of all, defendants did not write memoranda stating that plaintiff was insubordinate and abandoned his position for 21 days after the event. Defendants and other supervising officers acknowledge that when an employee informs a supervisor that he or she is sick, the supervisor is required to send the employee home without question. Defendants failed to follow their own policy on July 9, 2013, when they prevented plaintiff from immediately leaving work upon informing them he was sick; and, defendants’ own admission about said policy contradicts their decision to write memoranda requesting adverse action be taken against plaintiff. More important, Sergeant Rodriguez gave plaintiff permission to leave and she was never asked about it. Prior to July 9, 2013, other officers informed plaintiff of the false accusations against him and other African American officers by defendants, regarding bringing contraband into the prison. Defendants were well-aware of plaintiff’s vocal complaints about racial discrimination taking place in the workplace and that plaintiff and other African American employees were victims of said discrimination. Indeed, on July 4, 2013, two officers, including defendant Pennisi, confronted plaintiff, demanding to know if he was going to fill out paperwork, accusing both him and defendant Warren of racial discrimination. During the time period between July 9, 2013, and when Warren and Pennisi’s memoranda were turned in on July 30, 2013, defendants continued to treat plaintiff with hostility, repeatedly confronted him about his complaints, and demanded to know if he was going to report them for racial discrimination. These intimidating confrontations included July 11, 2013, the Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 27 of 28 -22- NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 day that plaintiff returned to work after going home sick, when defendant Warren confronted him by bringing up his complaints about racial discrimination. Prior to initiating the adverse actions, defendants conducted no investigations at all. Plaintiff’s supervisor was not interviewed; the nurse at CTC medical was not interviewed; the supervisor who allowed plaintiff to go home sick was not interviewed, the time records and the FLSA sheet were never consulted, and; the memoranda written by Warren and Pennisi, almost a full month after the incident, were written at the same time with no explanation for the delay. The adverse action was not initiated for a year after the event. All of these antagonistic interactions, along with the contradictions in the reasoning behind defendants’ decisions, and the time lapse between the July 9, 2013 incident and July 30, 2013, when defendants penned their memoranda, demonstrate pretext as a matter of law. CONCLUSION For the foregoing reasons, Plaintiff Dejon White respectfully requests this Court to grant his Motion for Summary Judgment against all defendants in its entirety. PROPOSED ORDER A Proposed Order granting the relief requested is attached. DATED this 9th of February, 2017. CIVIL RIGHTS JUSTICE CENTER, PLLC /s/ Darryl Parker Darryl Parker, California Bar No. 95914 Attorney for Plaintiff Case 5:15-cv-03521-EJD Document 47 Filed 02/09/17 Page 28 of 28 -1- [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAMELA Y. PRICE, ESQ. (STATE BAR NO. 107713) LAW OFFICES OF PAMELA Y. PRICE A Professional Law Corporation Kaiser Center 300 Lakeside Drive, Suite 417 Oakland, CA 94612 Telephone: (510) 452-0292 Facsimile: (510) 452-5625 E-mail: pamela.price@pypesq.com DARRYL PARKER, ESQ. (STATE BAR NO. 95914) CIVIL RIGHTS JUSTICE CENTER, PLLC 2150 North 107th Street, Suite 250 Seattle, WA 98133 Telephone: (206) 557-7719 Facsimile: (206) 659-0183 E-mail: dparker@civilrightsjusticecenter.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DEJON D. WHITE Plaintiff, vs. STATE OF CALIFORNIA, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, BRENT L. WARREN, LENARD M. PENNISI, JR., and WILLIAM L. MUNIZ, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case Number: 15-03521 NC [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES Date: March 16, 2017 Time: 9:00 a.m. Dept: Courtroom 4, 5th Floor; San Jose Courthouse Judge: Hon. Edward J. Davila BEFORE this Court is Plaintiff’s Motion for Partial Summary Judgment or Alternatively Summary Adjudication of Issues: Memorandum of Points and Authorities. Having reviewed Case 5:15-cv-03521-EJD Document 47-1 Filed 02/09/17 Page 1 of 2 -2- [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION OF ISSUES: MEMORANDUM OF POINTS AND AUTHORITIES (No. 15-03521 NC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 said motion, the opposition, the reply and having considered the argument of counsel and the files and pleadings herein, the Court deems itself otherwise fully advised in the premises. Accordingly, IT IS HEREBY ORDERED: Plaintiff’s Motion for Partial Summary Judgment or Alternatively Summary Adjudication of Issues: Memorandum of Points and Authorities is GRANTED on the issues of liability on all five causes of action and the only issues remaining for trial are that of damages. IT IS SO ORDERED. The District Court Executive is hereby directed to enter this Order and to provide copies to counsel. DATED this ___ day of _______________, 2017. _______________________________ EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE Presented by: CIVIL RIGHTS JUSTICE CENTER, PLLC /s/ Darryl Parker Darryl Parker, Cal. Bar No. 95914 Attorney for Plaintiff 2150 N 107th Street, Suite 520 Seattle, WA 98133 Tel.: (206) 577-7719 Fac.: (206) 659-0183 dparker@civilrightsjusticecenter.com Case 5:15-cv-03521-EJD Document 47-1 Filed 02/09/17 Page 2 of 2