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Radford v. Brand

United States District Court, S.D. California
Feb 8, 2006
Case Nos. 05 CV 0019 BEN (JMA), 04 CV 1855 BEN (JMA) (S.D. Cal. Feb. 8, 2006)


Case Nos. 05 CV 0019 BEN (JMA), 04 CV 1855 BEN (JMA).

February 8, 2006



This case concerns alleged violations of due process and equal protection rights stemming from the permanent transfer of plaintiff Sherry Radford ("Plaintiff" or "Radford"), a high school teacher, from Eastlake High School to Sweetwater High School, another school within the Sweetwater Union High School District (the "District"). Defendants Sweetwater Union High School District, Edward Brand ("Brand") and Ramon Osuna ("Osuna") (collectively "Defendants") move for summary judgment on the basis that the transfer was rationally related to a legitimate state interest. Plaintiff Radford opposes the Motion. For the reasons that follow, this Court grants the Motion.

Plaintiff has two related cases pending before this Court, Case No. 04 CV 1855 and Case No. 05 CV 0019. These cases arise out of the same set of facts, but assert separate causes of action. The parties have treated the motion as applicable to both related cases, and the Court does the same. This Order therefore addresses both cases.


The relevant facts in this case are undisputed. The Court views the facts in the light most favorable to the non-moving party, in this case Plaintiff, as it must on a motion for summary judgment.

Plaintiff Radford was a teacher at Eastlake High School ("Eastlake"), one of the high schools in the District. By all accounts, Plaintiff was and is an excellent teacher. She was named Teacher of the Year for Eastlake in March 2004. (Complaint filed Sept. 15, 2004 ("2004 Compl.") ¶ 7). At all relevant times, Sid Salazar ("Salazar") was the principal of Eastlake. Salazar and Radford developed a personal friendship in addition to their professional relationship. In or about October 2003, Plaintiff and Salazar planned a trip to Las Vegas together. (Radford Decl. ¶ 12(a); Def. Reply Statement of Undisputed Facts ("Def. Reply Stat.") ¶ 1). Salazar became uncomfortable with the trip, and informed Plaintiff he would not be going. A few days thereafter, Salazar informed Radford that he no longer wished to continue their friendship. (Def. Ex. M).

All references to "Def. Ex. ___" are to the exhibits to Defendants' Notice of Lodgment in Support of Motion for Summary Judgment, or Alternatively Summary Adjudication.

Plaintiff sent numerous emails pleading for reconciliation. Salazar found these emails inappropriate, and brought them to the attention of Osuna, the Executive Director of Human Resources. (Def. Ex. M). Osuna contacted Radford on December 11 and instructed her to cease and desist from any communication with Salazar that was not strictly business related. (Def. Ex. B). On December 11 or 12, Radford delivered a lengthy letter to Salazar discussing: (1) physical symptoms of stress she was experiencing as a result of their falling out; (2) her depression; and (3) speculation on the reason for their falling out revolving around sex and her perceived interest in a three-way encounter with Salazar and another man. The record is unclear as to whether the letter was delivered before or after Osuna instructed Radford to cease personal communications with Salazar. Subsequently, Osuna held at least one meeting with Radford on December 19 where she was again advised to limit her communications with Salazar to business matters. (Radford Decl. ¶ 12(d)). Radford had her union representative present at the meeting. (Radford Decl. ¶ 11). Plaintiff accepted the conditions set out for her by Osuna. (Def. Ex. D).

In spite of the instructions given to her by Osuna regarding her future communications with Salazar, Radford continued to send Salazar emails and letters of a personal nature. (Def. Exs. M-S). A letter she hand-delivered to him on March 12, 2004 suggested the two of them should look for jobs in Europe and move there together, telling Salazar "you'd have a sense of acceptance [for being gay] that you could never get in the USA. . . . never." And, "I want you to meet European men and buy European clothes every weekend!" The letter also states:

When I ponder what could have gone so wrong, he [a former romantic interest of Radford's] said, "Sherry, Sid has a hard-on for you and doesn't know what to do with it." I just laughed and told him that was not the case. Then he said, "Sherry, I KNOW he's gay, which is why he's freaking out." I told him that I seriously doubted that. Someone else told me that maybe you freaked because you thought I was too interested in you. My answer to that is, "Even if that were true, is that what punishment I deserve?"

On June 8, 2004 Salazar filed a formal complaint against Radford for sexual harassment. (Def. Ex. F). On June 11, 2004, Radford was placed on administrative leave with pay. (Def. Ex. H). On July 8, 2004, Osuna informed Plaintiff that she would be administratively transferred to Sweetwater High School ("Sweetwater"). (Osuna Decl. ¶ 13). The District retained Palomar Investigative Group ("Palomar") to conduct an independent investigation of Salazar's sexual harassment complaint against Radford. Palomar submitted its report to the District on August 13, 2004. (Def. Ex. J). The report concludes that Radford's emails and letters to Salazar could be considered as contributing to a hostile working environment. (Id.). On August 26, 2004, Osuna sent a memorandum to Radford outlining the findings of fact and conclusions from the Palomar investigation, as well as the corrective action recommended by the District. The memorandum also advised Radford that she had the right to request reconsideration of the findings. (Def. Ex. K). She did so, and the District held an administrative hearing on October 27, 2004. (Def. Ex. L). Radford's attorney and union representative attended the hearing. (Id.). The hearing officer's report concluded that Radford did in fact sexually harass Salazar, and that pursuant to District Regulation 4117.1, I, K, her reassignment to Sweetwater should stand. (Def. Ex. L).

Radford filed this action on September 15, 2004 alleging violations of her due process and equal protection rights. She subsequently filed a second suit on January 6, 2005 alleging Title VII violations. On August 23, 2005, the Court denied Plaintiff's motion for summary judgment. (August 23, 2005 Order Denying Plaintiff's Motion for Summary Judgment). Defendants filed the instant motion on July 29, 2005.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party meets this burden, the opposing party must set forth specific facts showing that a genuine issue remains for trial. Fed.R.Civ.P. 56(e).

"The moving defendants need provide nothing more than a reference to those materials on file in the case which support the movant's belief that there is an absence of any genuine issues of material fact." Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). An adverse plaintiff, however, must "offer evidence sufficient to raise a genuine issue of fact on an issue on which the plaintiff has the burden of proof." Id. "[S]ummary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (internal citation omitted).

An issue of fact is only a genuine issue if it can reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250-51. "A mere scintilla of evidence supporting the nonmoving party's position is insufficient; there must be evidence on which a jury could reasonably find for the nonmoving party." Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). "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. The evidence must be viewed in the light most favorable to the nonmoving party. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001).


A. Equal Protection Claims

Plaintiff alleges that the Defendants' action of permanently transferring her to Sweetwater from Eastlake High School violates her equal protection rights. Defendants contend, and Plaintiff does not dispute, that the proper test under which to evaluate her claim is the "rational relation" test.

Plaintiff brings her equal protection claim as a "class of one," alleging that she has been treated differently from those similarly situated and there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). State action that does not implicate a fundamental right or a suspect classification passes constitutional muster under the equal protection clause so long as it bears a rational relation to a legitimate state interest. Armendariz v. Penman, 75 F.3d 1311, 1326 (9th Cir. 1996) ( citing New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976)).

In this case, Defendants offer as a rational basis for the transfer of Plaintiff to Sweetwater her continuing inappropriate communications to Sid Salazar, and the resulting allegations of sexual harassment brought against her. Defendants argue that once informed of sexual harassment, they were obligated to take action to remedy a potentially hostile working environment. As part of this obligation, they first put Plaintiff on paid administrative leave. (Def. Ex. H). During the course of an investigation (but before its formal completion), Defendants permanently transferred Plaintiff to Eastlake. (Osuna Decl. ¶ 13, Def. Ex. K).

In order to defeat summary judgment for the Defendants, Plaintiff must raise "a triable issue of fact as to whether the defendants' asserted rationale [of transferring Plaintiff to comply with an employer's obligation to promptly stop sexual harassment] was merely a pretext." (Pl. Mem. at p. 11) ( citing Amendariz v. Penman, 75 F.3d at 1327). An equal protection plaintiff may show pretext by creating a triable issue of fact that either: "(1) the proffered rational basis was objectively false; or (2) the defendant actually acted based on an improper motive." Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 946 (9th Cir. 2004). Plaintiff here fails to create a triable issue of fact on either of these issues.

Radford does not identify any alternative "improper motive" on which she believes the Defendants acted, therefore the Court will treat her arguments as dealing with the first prong of the standard, "the proffered rational basis was objectively false." Id. In opposition to Defendants' motion, Radford offers "Seven Dispositive Reasonable Inferences" (Pl. Mem. at p. 5), with underlying assertions of fact, which she claims create triable issues sufficient to defeat summary judgment.

1. Plaintiffs "Reasonable Inferences"

None of Plaintiff's offered "reasonable inferences" or the facts underlying them address what she herself has identified as the critical issue: she must provide some evidence that Defendants' proffered rational basis for transferring her to Eastlake was objectively false. At best, Plaintiff has shown that Defendants may not have carried out their administrative responsibilities perfectly, but perfection has never been required under the rational basis standard.

Radford places significant weight on the fact that Defendants decided to transfer her prior to receiving Salazar's formal sexual harassment complaint. (Pl. Mem. at p. 5, 7, 8, 10). But she cites to no authority that would require Defendants to wait until receiving a formal complaint before rectifying an arguably hostile working environment. In fact, the opposite is required. Once Defendants were put on notice, formally or informally, that Salazar considered himself to be the target of harassing behavior by Radford, under California's Fair Employment and Housing Act ("FEHA"), Defendants were obligated to take action. Cal. Gov. Code § 12940(k). ("It shall be an unlawful employment practice . . . [f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."); Id. at subd. (j)(1) ("Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action."); see also, State Department of Heath Services v. Superior Court, 31 Cal. 4th 1026, 1040-41 (Cal. 2003).

Radford also posits that her e-mail communication with Salazar did not constitute sexual harassment because (1) her conduct was not motivated by Salazar's male gender; (2) there is no specific evidence that her conduct created a hostile work environment for Salazar; and (3) the Executive Summary of the investigator's report indicates that other people had not noticed problems between the two. (Pl. Mem. at 9-10). Even drawing all reasonable inferences in favor of the Plaintiff here, none of these arguments create a triable issue of fact. It is not for this Court to determine whether Radford's behavior did or did not constitute sexual harassment, only whether Defendants had a rational basis to transfer her. The emails and other communications sent by Radford to Salazar after December 2003, when she was warned to cease personal communications with him, would give any administrator pause. Radford does not deny sending the emails, nor dispute the content of those lodged with the Court. Nor does she dispute the need to place her on administrative leave in order to separate her from Salazar. (Pl. Mem. at 14). Radford's dispute with Defendants lies only in her permanent transfer. But once again, she fails to offer any evidence of a motive other than that proffered by Defendants — that in a school district with a tight budget, it made little sense to keep an admittedly excellent teacher on administrative leave when she could be teaching at another school in the district. Radford also complains that the transfer was permanent, as opposed to temporary. But she cites no authority standing for the proposition that Defendants were obligated to implement a temporary solution to the problem. In this case, there is no indication that a temporary solution would have in fact been a solution at all — had Defendants transferred Radford back to Eastlake at some future date, they would have risked her renewed improper communications with Salazar.

2. Pretext

Radford further claims that the Defendants' changing reasons for her transfer support an inference of pretext. Radford cites the following reasons proffered by the District as evidence that the basis for the transfer has varied:

Ms. Radford's transfer to Sweetwater High School is not a reflection on her performance as a teacher and is not intended as a disciplinary action against her. The decision to administratively transfer Ms. Radford was based solely on the operational needs of the District. (Letter of the District's general counsel, dated July 27, 2004, Tooks Decl. Ex. 2).
The District determined that Ms. Radford's incessant non-business related communications with Mr. Salazar were negatively affecting Ms. Radford, Mr. Salazar, and the other staff at Eastlake High School. The District further determined that the interests of the District and its students would best be served by assigning Mr. Salazar and Ms. Radford at different school sites so that any contract between them could be minimized. . . . The decision to transfer Ms. Radford was made prior to the District receiving Mr. Salazar's sexual harassment complaint against Ms. Radford. (Letter from District's general counsel, dated August 11, 2004, Tooks Decl. Ex. 2).
Notice of sexually harassing conduct triggers an employer's duty to take prompt corrective action that is `reasonably calculated to end the harassment.' Separation of the two employees — including the transfer of the harasser to another position — is an approved response by an employer. (Def. Mem. at 6-7).

In addition to the three explanations offered above, Defendants now also frame the transfer as justified by their obligation under California law to respond to sexual orientation harassment. (Def. Mem. at 11-16). Plaintiff is correct in noting that when an employer offers fundamentally different explanations for its action, a court may find a genuine issue of material fact exists as to its motive for the action, because a reasonable inference can be drawn that none of the explanations are true. See Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993). In this case however, Defendants' supposedly shifting explanations are just different pieces of the same rational basis for transferring Plaintiff — they were on notice of arguably sexually harassing behavior, needed to separate the parties, and did not wish to waste a good teacher by leaving her on permanent administrative leave when she could be teaching in another school. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997) (reasons given by an employer for an action which are not incompatible are not properly characterized as "shifting").

The Court addresses Defendants' claim regarding their obligations to stop sexual orientation harassment separately. At first glance, this appears to be an attempt to retrofit a new legal theory to the facts, which could raise exactly the question of pretext addressed above. But as noted above, if the explanations given by an employer are not fundamentally different, they do not create an inference of pretext. Id. In this case, Defendants' concern about their obligation under FEHA to prevent sexual orientation harassment overlaps their obligations to address sexual harassment.

The record supports this rationale. The August 26, 2004 memorandum sent by Osuna to Radford regarding the findings of the independent investigation appears to address both types of harassment in its "Findings of Fact." (Def. Ex. K). Findings numbers 3 and 4 both deal with incidents relating to Salazar's sexual orientation — namely Radford's alleged disclosure of his orientation to third parties without his permission, and her playing of the theme song from "Queer Eye for the Straight Guy" when Mr. Salazar walked on stage at the Day of the Teacher event. Radford provides an alternative explanation for the Day of the Teacher incident, although admits to disclosing Salazar's orientation to a third person. (Def. Mem. at 16, Radford Decl. ¶ 7). Accepting Plaintiff's version of the Day of the Teacher incident, and drawing all reasonable inferences therefrom, she still does not create a triable issue of fact regarding the falsity of Defendants' proffered explanation for their actions. This is because, once again, the issue before the Court is not whether Radford did or did not harass Salazar on the basis of sexual orientation. Drawing all reasonable inferences in her favor, that question could be answered either way. But it does not matter whether Salazar could have sustained an affirmative case for sexual orientation harassment, only that the Defendants believed they had an obligation under FEHA to take action to remedy the situation. Plaintiff provides no evidence to suggest that this rationale is pretextual — its late full articulation as a legal theory notwithstanding.

Plaintiff has failed to create a triable issue of fact as to her claim that the District violated her equal protection rights.

B. Due Process Claim

Plaintiff's substantive due process claim rests on the same premise as her equal protection claim — that Defendants' rational basis for transferring her is pretextual. As discussed above, she has failed to offer evidence which creates a genuine issue of material fact as to Defendants' motive for her transfer.

Plaintiff also claims the Defendants violated her procedural due process rights. But she has failed to create a triable issue of fact as to this claim either. The first flaw in Plaintiff's claim is that she had no property right in a teaching position at a particular school within the District. She has cited no authority to the contrary. Plaintiff was not fired or demoted — she was laterally transferred, an action within the discretion of the District under Cal. Educ. Code § 35035(c) as well as the District's own rules. Cal. Educ. Code § 35035(c) (A superintendent has the "power to transfer a teacher from one school to another school at which the teacher is certificated to serve within the district when the superintendent concludes that the transfer is in the best interest of the district."). She also cites to Cal. Educ. Code § 44031(b)(1), and the California Supreme Court's interpretation thereof, for the proposition that she was denied due process because the District relied on derogatory information (the allegations of sexual orientation harassment) in transferring her without giving her an opportunity to first review and comment on that information. (Pl. Mem. at p. 16, citing Miller v. Chico Unified School District, 24 Cal. 3d 703 (Cal. 1979).). But the court's decision in Miller has little bearing on Radford's complaint. In Miller, a principal of a school was demoted to a teaching position on the basis of a series of secret memoranda by the associate superintendent negatively evaluating his performance. The principal in that case had no knowledge of the memoranda used as the basis of his demotion, and therefore no ability to refute them.

In the instant case, the District did not rely on secret derogatory information supplied by others in making its decision to transfer Radford. It relied on the emails and letters she herself sent to Salazar, his complaint of sexual harassment, and their own assessment of their obligations to remedy a potentially hostile working environment. Second, Radford was aware of all of this. She herself wrote the damning documents, and she was promptly informed of the District's initiation of an investigation into the sexual harassment complaint. She participated in the investigation, and had the opportunity to present her own version of events to Palomar. (Def. Ex. J, indicating Palomar interviewed Radford as part of its investigation). Radford claims she did not however have the opportunity in her interview with Palomar to address the sexual orientation harassment allegations, i.e., the playing of the theme song from "Queer Eye for the Straight Guy" at the Day of the Teacher event when Salazar walked on stage, and her alleged disclosure of Salazar's orientation to a third party without his permission.

Viewing the evidence in the light most favorable to Plaintiff, the Court will assume she did not in fact have the opportunity to address these particular allegations prior to the completion of the Palomar report. But this does not raise a genuine issue of material fact as to whether the District violated Cal. Educ. Code § 44031(b)(1), and thereby Plaintiff's due process rights. The Defendants did not decide to transfer Radford based solely on those allegations. They transferred her on the basis of a series of undisputed emails and letters from her to Salazar, and their need to remedy a potentially hostile environment. Additionally, Radford had the opportunity to address these allegations, along with all the others, at a hearing held on October 27, 2004. The Court finds that there is no triable issue of fact as to whether Plaintiff was afforded sufficient due process.

C. Title VII Claims

Radford claims that defendants discriminated against her because she is female, thereby violating Title VII, specifically 42 U.S.C. § 2000e et seq. This discrimination allegedly took the form of (i) transferring her, (ii) advising Salazar to file a sexual harassment complaint against her, (iii) placing her on administrative leave, (iv) denying her rights in processing Salazar's complaint, and (v) concluding that she sexually harassed Salazar. (2005 Compl. ¶ 13).

Title VII prohibits employers from discriminating against "any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). Radford's claim amounts to one of "disparate treatment," meaning a claim that she was treated differently because of her sex. In order to survive summary judgment on a Title VII disparate treatment claim, plaintiff must at the least make a prima facie showing of discrimination. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973)).

McDonnell Douglas provides a burden shifting framework often utilized "to assist plaintiffs at the summary judgment stage so that they may reach trial." Costa v. Desert Palace Inc., 299 F.3d 838, 855 (9th Cir. 2002), aff'd, 539 U.S. 90 (2003). However, nothing compels a plaintiff to utilize this framework. Id. Rather, the Plaintiff here has a choice of how to establish her case, and may do so by using the tools provided in McDonnell Douglas, or by simply producing direct or circumstantial evidence that a discriminatory motive more likely than not was behind the District's decision to permanently transfer her to Eastlake. McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). Plaintiff here has not invoked McDonnell Douglas, and the Court will therefore consider whether, viewing the evidence in the light most favorable to Radford, she has created a triable issue of fact regarding whether the District more likely than not had a discriminatory motive in permanently transferring her.

As discussed above, the District has provided a legitimate non-discriminatory reason for transferring Radford, namely the undisputed fact that it was on notice of Radford's alleged harassment of Salazar and had an obligation to undertake remedial measures. Radford has produced no evidence, either direct or circumstantial, that would allow a reasonable fact-finder to conclude that the District's motive was other than what it claims. Her claim for sex-based discrimination under Title VII must therefore fail.


For the reasons stated above, Defendants' Motion for Summary Judgment or Alternatively Summary Adjudication is granted.


Summaries of

Radford v. Brand

United States District Court, S.D. California
Feb 8, 2006
Case Nos. 05 CV 0019 BEN (JMA), 04 CV 1855 BEN (JMA) (S.D. Cal. Feb. 8, 2006)
Case details for

Radford v. Brand

Case Details

Full title:SHERRY RADFORD, Plaintiff, v. EDWARD BRAND; RAMON OSUNA, Defendants

Court:United States District Court, S.D. California

Date published: Feb 8, 2006


Case Nos. 05 CV 0019 BEN (JMA), 04 CV 1855 BEN (JMA) (S.D. Cal. Feb. 8, 2006)