The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 BOOKER COOK, No. 2:23-cv-00843-DJC-CKD
12 Plaintiff,
13 v. ORDER
14 BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY, et
15 al.,
16 Defendants.
17
18 Plaintiff Booker Cook claims that while he was employed at California State
19 University, Sacramento, he was subject to discrimination, harassment, and retaliation
20 based on his age and race, including when he was not selected to interview for a
21 tenure-track professorship. Defendants now move for summary judgment, arguing
22 that each of Plaintiff’s claims fails as a matter of law. (ECF No. 20.)
23 For the reasons stated below, Defendants’ Motion is granted in part and denied
24 in part.
25 BACKGROUND
26 I. Undisputed Facts
27 Plaintiff is an African American man in his 70s who is and was, at all relevant
28 times, employed as a lecturer by the Ethnic Studies Department of California State
1 University, Sacramento (“CSUS”).1 (Joint Statement of Undisputed Facts (“JSUF”) (ECF
2 No. 20-2) ¶ 1–4.) During a 2017 faculty meeting that occurred shortly after Plaintiff
3 was hired as a lecturer, Plaintiff perceived Defendant Elvia Ramirez, a professor in the
4 Chicanx/Latinx Studies program of the Ethnic Studies Department who identifies as
5 Hispanic, as acting “cold and cruel” towards him. (Response to Defendants’ Separate
6 Statement of Undisputed Facts (“SSUF”) (ECF No. 24-1) ¶ 15; JSUF ¶ 6–8.)2 Plaintiff
7 also noted that Defendant Ramirez did not welcome him to the Ethnic Studies
8 Department. (Id.) After starting at CSUS, Plaintiff’s office was initially next to
9 Defendant Ramirez’s office. (JSUF ¶ 42.) During this time, Plaintiff claims that
10 Defendant Ramirez would close her door after he arrived. (Id. ¶ 43.) Anne Thomas,
11 Defendant Ramirez’s former assistant, told Plaintiff that Defendant Ramirez closed her
12 door when African American individuals were around her office. (SSUF ¶ 47.) At a
13 2018 faculty meeting, Plaintiff claims to have overheard Defendant Ramirez ask Dr.
14 Boatamo Mosupyoe, Associate Dean of the College of Social Sciences and
15 Interdisciplinary Studies,3 “why did you hire that old Black man as a lecturer? He does
16 not represent the student body.”4 (Id. ¶¶ 19–20.) Plaintiff also claims that he heard
17 Defendant Ramirez make other comments “against Black people and the Pan-African
18 Studies Program” and that Defendant Ramirez would regularly ask “[w]hy do we keep
19 hiring all these Black people?” at the twice-a-month faculty meetings. (JSUF ¶ 48;
20 SSUF ¶ 51.) Plaintiff also alleges that Defendant Ramirez referred to Plaintiff as a “Pan-
21
1 Plaintiff identifies himself as an African American man in his filings. African American is used
22 throughout this order except where individuals are quoted.
23 2 The Court only cites portions of the separate statement of facts provided by Defendants that Plaintiff
expressly states are undisputed.
24
3 Plaintiff states that Dr. Mosupyoe is no longer in the same position and, at the time of her deposition
25 was Dean of the CSUS Black Honors College, a separate department from the Ethnic Studies
Department. (Opp’n at 4.) The Court refers to her by her former title as it appears that was her title at
26 the time of most of the incidents in question.
27 4 Plaintiff and Associate Dean Mosupyoe clearly understood this statement to be referencing Plaintiff,
but it is not clear whether it is disputed that this alleged statement was in reference to Plaintiff. (Id. ¶ 23;
28 Mosupyoe Dep. at 41:1–12.)
1 African Studies hire” when he was actually hired and employed as a lecturer by the
2 Ethnic Studies Department more broadly.5 (SSUF ¶ 49.)
3 On November 3, 2020, Plaintiff filed a complaint with CSUS’s Office of Equal
4 Opportunity in which he claimed that Defendant Ramirez was discriminating against
5 him on the basis of race and age. (JSUF ¶ 53.) Plaintiff later submitted an updated
6 complaint on February 1, 2021. (Id. ¶ 54.)
7 In 2021, Plaintiff applied for a tenure-track faculty position in the Pan-African
8 Studies program which was created in response to the passage of AB 1460. (SSUF
9 ¶¶ 59, 78.) Hiring for the Pan-African Studies position was performed by a five-person
10 search committee. (Id. ¶ 63.) After one of the original members of the search
11 committee was unable to participate, Defendant Ramirez was requested to join the
12 search committee. (Id. ¶ 70; JSUF ¶¶ 6–8.) Defendant Ramirez was ultimately voted
13 onto the search committee. (Id.) Based on the applications the search committee
14 received, the search committee members each created a “top list” of candidates to
15 interview. (SSUF ¶¶ 80, 105–06.) Plaintiff applied for the Pan-African Studies position
16 but was not selected for an interview. (Id. ¶ 127.) After interviews were conducted,
17 the search committee ultimately recommended four candidates for hiring including
18 Dr. Martin Boston and Dr. Clarence George, III, both of whom were ultimately hired for
19 the Pan-African Studies position.6 (Id. ¶¶ 107–09.) Both Dr. Boston and Dr. George
20 identify as African American. (Id. ¶¶ 113–14.)
21 Plaintiff claims that Defendant Ramirez joined the search committee to ensure
22 that Plaintiff was not hired for the Pan-African Studies position. (Id. ¶ 123.) While a
23 member of the hiring committee, Defendant Ramirez did not place Plaintiff in her top
24 ////
25
26 5 Pan-African Studies is a program within the Ethnic Studies Department at CSUS. The Ethnic Studies
Department is itself within the College of Social Sciences and Interdisciplinary Studies.
27
6 While it was originally anticipated that only one Pan-African Studies position would be open, two Pan-
28 African Studies program positions were ultimately available and filed.
1 list of ten candidates. (SSUF ¶ 83–85.) Other members of the committee had Plaintiff
2 on their top list.7 (Id. ¶ 89.)
3 II. Procedural History
4 Plaintiff originally filed suit in Sacramento County Superior Court, but
5 Defendants removed the action to this Court on May 5, 2023. (ECF No. 2.) Plaintiff
6 now proceeds on his Second Amended Complaint (“SAC” (ECF No. 8)) wherein
7 Plaintiff brings claims for racial harassment and discrimination under both Title VII of
8 the 1964 Civil Rights Act and the California Fair Housing and Employment Act
9 (“FEHA”); failure to prevent racial discrimination and harassment under FEHA; age
10 discrimination, retaliation, and harassment under FEHA; failure to prevent age
11 discrimination and harassment under FEHA; and negligent hiring, supervision,
12 training, and retention under common law. (See id.) Briefing on Defendants’
13 summary judgment motion is completed. (Mot. (ECF No. 20-1); Opp’n (ECF No. 24);
14 Reply (ECF No. 28).) On February 6, 2025, the Court held oral argument on the
15 Motion, after which the matter was taken under submission. (ECF No. 29.)
16 EVIDENTIARY OBJECTIONS
17 In ruling on summary judgment, the Court must only consider admissible
18 evidence and resolve evidentiary objections that are material to its ruling. Orr v. Bank
19 of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2010); Norse v. City of Santa Cruz, 639
20 F.3d 966, 973 (9th Cir. 2010). However, the Court need not consider objections made
21 on the ground that evidence is irrelevant, speculative, argumentative, or constitutes an
22 improper legal conclusion as these are “duplicative of the summary judgment
23 standard itself . . . .” Holt v. Noble House Hotels & Resort, Ltd, 370 F. Supp. 3d 1158,
24 1164 (S.D. Cal. 2019). Additionally, at the summary judgment stage, the Court is not
25
26 7 It is undisputed that Dr. Brian Baker, another member of the committee had Plaintiff on his top list. (Id.
¶ 89.) Defendant Ramirez also allegedly stated that she was the only member of the hiring committee
27 to not have Plaintiff on their top list. Defendants object to the introduction of this evidence but, as
discussed later, this evidence can be considered by the Court as it could be introduced at trial in
28 admissible form. (See infra Evidentiary Objections.)
1 concerned with whether the form of evidence’s presentation is admissible but whether
2 the content is admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
3 Thus, evidence that is not presented in an admissible form, such as statements that
4 constitute hearsay, may be considered provided the evidence could be provided in an
5 admissible, non-hearsay form at trial. Id. at 1036–37; see Pablo-Dejesus v. County of
6 Multnomah, No. 3:19-cv-01574, 2020 WL 8361919, at *4 (D. Or. Dec. 29, 2020).
7 Defendants have raised six objections to evidence presented by Plaintiff in
8 opposing Defendants’ Motion for Summary Judgment. (Obj. to Evid. (ECF No. 28-1).)
9 The first two objections concern the admissibility of portions of the Investigation
10 Report prepared by Special Consultant Investigator Susan Hua at the request of
11 CSUS’s Office for Equal Opportunity in connection with the Pan-African Studies
12 position hiring and Plaintiff’s allegations that Defendant Ramirez discriminated against
13 him. (See Investigation Report (ECF No. 27-2).) As the Investigation Report was
14 produced by Investigator Hua outside of any court proceeding, the Report itself is
15 hearsay. Moreover, in many cases, the information contained in the Report is subject
16 to multiple levels of hearsay within hearsay as the Report largely consists of statements
17 by other witnesses that were provided to Investigator Hua. However, the vast majority
18 of evidence relevant to deciding the Defendants’ Summary Judgment Motion is also
19 found outside the Report in other admissible non-hearsay forms. As such, the Court
20 need not consider the Report in deciding most of the Motion before it and
21 Defendants’ objections to the Court considering the Report are sustained with two
22 exceptions.
23 Within the Investigation Report, Investigator Hua provides a quote from Dr.
24 Annette Reed who herself quoted Defendant Ramirez as telling Dr. Reed “I’m being
25 attacked again. They're after me again." (Investigation Report at 19.) While in its
26 present form this statement contains at least two levels of hearsay, unlike other
27 statements contained within the report, the original quote would not itself be hearsay
28 given it is the statement of a party opponent. See Fed. R. Evid. 801(d)(2)(A). Due to
1 the multiple levels of hearsay, this statement would be inadmissible at trial as hearsay
2 in its current form. However, this evidence could be presented in an admissible, non-
3 hearsay form at trial and may thus be considered by the Court. See Fraser, 342 F.3d at
4 1036–37; see also Pablo-Dejesus, 2020 WL 8361919, at *4 (permitting hearsay
5 statements included in an investigation report where the statements could be
6 provided in an admissible, non-hearsay form at trial). Defendants’ objection to the
7 Court considering the contents of the Investigation Report is overruled as to this
8 statement.
9 Similarly, Investigator Hua’s report states that Defendant Ramirez stated that her
10 top list was the only list that did not include Plaintiff as one of the top candidates.
11 (Investigation Report at 10.) This evidence could be presented in an admissible non-
12 hearsay form on the same basis as the prior statement. See Fraser, 342 F.3d at 1036–
13 37; see also Pablo-Dejesus, 2020 WL 8361919, at *4. As such, it may be considered
14 by the Court and Defendants’ objection to the usage of the contents of the
15 Investigation Report is also overruled as to this evidence.
16 Defendants’ third objection concerns Plaintiff’s deposition statements that Anne
17 Thomas told him Defendant Ramirez closed her office door when African American
18 individuals were around. Defendants first object on hearsay grounds. Given that the
19 Court has Thomas’ own statements on this issue as provided in her deposition, the
20 Court need not consider Plaintiff’s recollection of Thomas’ statement for the truth of
21 the matter asserted. However, these statements may still be considered not for the
22 truth of the matter asserted but for their effect on Plaintiff. Defendants also object that
23 Plaintiff’s recounting of Thomas’ statements lacks foundation and is speculative. But
24 Thomas’ own testimony on this issue sufficiently establishes that Thomas perceived
25 that Defendant Ramirez would close her door when African American individuals were
26 around Defendant Ramirez’s office. (See Thomas Dep. at 15:16–20:24.) Thomas’
27 reliability and truthfulness in this regard is an issue for a jury to determine at trial.
28 Thus, Defendants’ objection to this evidence is sustained to the extent these
1 statements are presented for the truth of the matter asserted but overruled on all
2 other grounds.
3 Finally, Defendants’ fourth, fifth, and sixth objections concern evidence that is
4 not relevant for the Court to consider in ruling on Defendants’ Motion. This evidence
5 has not been considered by the Court in reaching the conclusions below. Thus, the
6 Court need not rule on these objections. Holt, 370 F. Supp. 3d at 1164.
7 LEGAL STANDARD
8 Summary judgment may be granted when the evidence shows that there is no
9 genuine issue as to any material fact and the moving party is entitled to a judgment as
10 a matter of law. Fed. R. Civ. P. 56(c). The principal purpose of summary judgment is
11 to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477
12 U.S. 317, 325 (1986). Therefore, the “threshold inquiry” is whether there are any
13 factual issues that could reasonably be resolved in favor of either party, or conversely,
14 whether the facts are so one-sided that one party must prevail as a matter of law.
15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–52 (1986). However, “[o]nly
16 disputes over facts that might affect the outcome of the suit under the governing law
17 will properly preclude the entry of summary judgment.” Id. at 248.
18 In a summary judgment motion, the moving party must inform the court of the
19 basis for the motion and identify the portion of the record that it believes
20 demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at
21 323. If the moving party meets its initial burden, the burden then shifts to the
22 opposing party, which must establish that there is a genuine issue of material fact.
23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). To meet
24 their burden, parties must either cite to materials in the record supporting their
25 position or show that the materials cited do not establish the absence or presence of a
26 genuine dispute. Fed. R. Civ. P. 56(c)(1).
27 For the opposing party to succeed and avoid summary judgment, they “must
28 do more than simply show that there is some metaphysical doubt as to the material
1 facts.” Matsushita, 475 U.S. at 586. Rather, the opposing party must produce enough
2 evidence such that the specific facts set forth by the nonmoving party, coupled with
3 undisputed background or facts, are such that a reasonable jury might return a verdict
4 in its favor. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th
5 Cir. 1987). In other words, for the moving party to succeed, the court must conclude
6 that no rational trier of fact could find for the opposing party. Matsushita, 475 U.S. at
7 587. However, so as not to usurp the role of the jury, “[c]redibility determinations, the
8 weighing of the evidence, and the drawing of legitimate inferences from the facts are
9 jury functions,” and so the court draws all reasonable inferences and views all
10 evidence in the light most favorable to the opposing party. Liberty Lobby, 477 U.S. at
11 255; Matsushita, 475 U.S. at 587–88.
12 DISCUSSION
13 I. Plaintiff’s Racial Discrimination and Harassment Claims under Title VII
14 and FEHA8
15 A. Racial Discrimination
16 Plaintiff’s first and second cause of action brings claims under Title VI and FEHA
17 under two theories, the first of which is a racial discrimination theory based on the
18 failure to offer him an interview for the Pan-African Studies position. In racial
19 discrimination cases under Title VII and FEHA, courts most commonly employ the
20 McDonnell Douglas burden shifting framework under which the plaintiff must first
21 establish a prima facie case of discrimination, then the defendant may show that the
22 action was taken for a legitimate, non-discriminatory reason, and finally, the plaintiff
23 may rebut the defendant’s evidence by showing the reasons offered by the defendant
24 are a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
25 802–05 (1973).
26
8 Plaintiff brings racial discrimination and harassment claims under both Title VI and FEHA. As noted by
27 both parties (see Mot. at 18, 21; Opp’n at 11 n.1), FEHA mirrors Title VII for racial discrimination and
harassment. Defendants move for summary judgment on the same grounds for both the Title VI and
28 FEHA causes of action. (Mot. at 10–18, 21.) As such, these claims are considered jointly.
1 i. Prima Facie Racial Discrimination
2 In order to succeed on a racial discrimination claim under Title VII and FEHA,
3 Plaintiff must first establish a prima facie case by “offer[ing] evidence that gives rise to
4 an inference of unlawful discrimination.” Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1359
5 (9th Cir. 1985) (cleaned up). This prima facie case is typically satisfied, and the
6 inference of unlawful discrimination is established, using the test described
7 McDonnell Douglas where a plaintiff must show: “(1) he belongs to a protected class;
8 (2) he was qualified for the position; (3) he was subject to an adverse employment
9 action; and (4) similarly situated individuals outside his protected class were treated
10 more favorably.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th
11 Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). Defendants contend that
12 Plaintiff cannot present evidence to satisfy the fourth and final requirement of prima
13 facie discrimination under the four element McDonnell Douglas prima facie test as he
14 cannot show that individuals outside his protected class were treated more favorably.
15 (Mot. at 11.)
16 Under the traditional test for establishing a prima facie case, Defendants are
17 correct. As Defendants note, the two individuals who were ultimately hired for the
18 Pan-African Studies position also identified as African American. (Id. at 12.) Plaintiff
19 also testified that applicants for the Pan-African Studies position were “all African
20 Americans.” (Cook Dep. at 140:19–24; 141:12–18.)9 Plaintiff has not presented any
21 evidence that similarly situated individuals of other races were treated more favorably.
22 Plaintiff likely cannot provide that evidence because, per Plaintiff’s own testimony, the
23 only applicants were members of his protected class. Plaintiff thus cannot meet the
24 fourth element to establish a prima facie case of racial discrimination under the four
25 element McDonnell Douglas test.
26 ////
27
9 Defendants have lodged the entirety of Plaintiff’s deposition transcript, but the relevant portion cited
28 here can be found in Exhibit F to Defendants’ Motion to Summary Judgment. (See ECF No. 20-4.)
1 The four element test identified in McDonnell Douglas is not the only way to
2 establish a prima facie case, however. The Ninth Circuit has repeatedly reinforced that
3 the prima facie test described in the McDonnell Douglas is not the only way to
4 establish the requisite “inference of discrimination” to create a prima facie Title VII
5 discrimination claim. See Diaz, 752 F.2d at 1361. Under Ninth Circuit precedent, a
6 plaintiff “may demonstrate an inference of discrimination in whatever manner is
7 appropriate in the particular circumstances.” Id. It is still necessary for Plaintiff to offer
8 some evidence that gives rise to the inference of discrimination by suggesting that
9 “[the] employment decision was based on a discriminatory criterion illegal under the
10 [Civil Rights] Act.” International Brotherhood of Teamsters v. United States, 431 U.S.
11 324, 358 (1977). But this is not intended to be a high burden; “[v]ery little evidence is
12 necessary to raise a genuine issue of fact regarding an employer's motive; any
13 indication of discriminatory motive may suffice to raise a question that can only be
14 resolved by a fact-finder.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1124 (9th
15 Cir. 2004) (cleaned up); see Diaz, 752 F.2d at 1361.
16 As discussed below, Plaintiff has presented sufficient evidence for a jury to find
17 that Plaintiff was subject to racial discrimination in the form of a hostile workplace.
18 The entire basis for the discrimination claim is Defendant Ramirez’s alleged
19 statements and actions both as to Plaintiff specifically and African Americans
20 generally. Defendant Ramirez’s presence on the hiring committee given her alleged
21 discriminatory conduct is enough to indicate a discriminatory motive and meet the
22 low bar to create an inference of discrimination. Thus, while Plaintiff has not strictly
23 satisfied all elements of the four element McDonnell Douglas test for a prima facie
24 case, the evidence is sufficient to create a genuine dispute of material fact as to
25 whether a discriminatory motive drove the decision to not interview Plaintiff for the
26 Pan-African Studies position. Thus, Plaintiff has still satisfied his initial prima facie
27 burden.
28 ////
1 Cases where courts permit claims to proceed even where the fourth element of
2 the McDonnell Douglas prima facie test is not strictly satisfied are sometimes
3 distinguishable from the facts here. For example, in Diaz, cited by Plaintiff, the court
4 was careful to limit the scope of its ruling and only sought to address the facts before
5 it. While the court found that the later hiring of a member of the same class as the
6 plaintiff did not preclude a discrimination claim, the court also noted that the timing of
7 the hiring was relevant stating “[w]hen the individual who was promoted receives the
8 challenged position only after the plaintiff has filed a discrimination charge, the fact
9 that both individuals are members of the same protected class does not rebut the
10 otherwise established inference of discrimination.” Id. (emphasis added). This is
11 clearly not the case here; the two individuals who were ultimately selected for the Pan-
12 African Studies position, both of whom identify as African American, were selected to
13 advance to the interview stage by the hiring committee — including by Defendant
14 Ramirez herself — at the same time Plaintiff was not selected. (SSUF ¶ 84.) Diaz is thus
15 distinguishable in some ways from the present case.
16 With that said, the Ninth Circuit was still clear in Diaz that Title VII was intended
17 to protect both individuals and groups. In doing so, the court quoted the Supreme
18 Court’s statement in Connecticut v. Teal, 457 U.S. 440, 455 (1982) that “Congress
19 never intended to give an employer license to discriminate against some employees
20 on the basis of race or sex merely because he favorably treats other members of the
21 employees' group.” Diaz, 752 F.2d at 1360. As such, the overall point that
22 discrimination claims are not precluded by the fact that another member of the same
23 group was successful where the plaintiff was not, still stands. Plaintiff has presented
24 sufficient evidence to demonstrate an inference of discrimination and create a
25 genuine dispute of material fact.
26 ii. Legitimate, Non-Discriminatory Reason
27 Defendants contend that even if Plaintiff can make a prima facie case of racial
28 discrimination, Defendants then have the burden to establish that Plaintiff was not
1 interviewed for a legitimate, non-discriminatory reason. Defendants argue that while
2 Plaintiff was qualified for the position, he was not hired for the position because he did
3 not have a doctorate in African Studies or Ethnic Studies, and because he was not
4 hired he did not have peer-reviewed publications or presentations at academic
5 conferences or fellowships. (Mot. at 12.) This is a legitimate, non-discriminatory
6 reason but a jury could reasonably find that it is pretextual.
7 iii. Pretext
8 It is uncontested that Plaintiff was qualified for the Pan-African Studies position
9 and that at least one member of the search committee, Dr. Brian Baker, had Plaintiff
10 on their “top list” to receive an interview. (Mot. at 12; SSUF ¶ 89; Baker Decl. (ECF No.
11 20-4, Ex. C) ¶ 7.) Moreover, Defendant Ramirez allegedly told Investigator Hua that
12 her top list was the only one that did not include Plaintiff. (Investigation Report at 10.)
13 Given the evidence Plaintiff has presented about Defendant Ramirez’s conduct
14 outside of the context of the hiring committee, a jury could reasonably conclude that
15 Defendants’ claimed legitimate, non-discriminatory reasons for not interviewing
16 Plaintiff was pretextual and in fact the result of Defendant Ramirez’s intent to
17 discriminate against Plaintiff. As discussed above, the fact that all applicants for the
18 Pan-African Studies position were African American is not preclusive to Plaintiff’s
19 claims.
20 Defendants also argue that Plaintiff cannot show that Ramirez’s decision to
21 leave him off her top list was the reason he did not receive an interview and that even
22 if he had received an interview, Plaintiff cannot show he would have been hired. The
23 former issue is clearly the subject of some serious factual disagreement as Defendants
24 dispute whether Defendant Ramirez’s decision to leave Plaintiff off her top list had any
25 effect on the decision to not interview him, while Plaintiff claims he would have been
26 guaranteed an interview if Defendant Ramirez had placed him on her top list.
27 Whether there is a causal link between Defendant Ramirez’s decision to not include
28 Plaintiff on her top list and the fact that Plaintiff was not interviewed is thus a factual
1 question for the jury to decide. While the question of whether Plaintiff would have
2 ultimately been hired if he had received an interview may prevent an issue for
3 damages, it is not necessary that Plaintiff be able to prove such a speculative fact in
4 order to succeed on a racial discrimination claim. It is sufficient that Plaintiff can
5 establish that he suffered an adverse employment action. A jury could reasonably
6 conclude that the decision to not interview Plaintiff for the Pan-African Studies position
7 was an adverse employment action. See Foster v. Costco Wholesale Corp., No. 17-cv-
8 02229-FMO-SPx, 2019 WL 8640647, at *7 (C.D. Cal. Dec. 27, 2019); see also Doan v.
9 San Ramon Valley Sch. Dist., No. 13-cv-03866-CRB, 2014 WL 296861, at *2 (N.D. Cal.
10 Jan. 27, 2014).
11 In sum, there is a genuine dispute of material fact as to whether the alleged
12 legitimate, non-discriminatory reason for not interviewing Plaintiff was pretextual.
13 Defendants’ Motion for Summary Judgment on Plaintiff’s racial discrimination claim
14 must thus be denied.
15 B. Racial Harassment
16 As alluded to above, there are genuine disputes on material issues of fact that
17 also preclude summary judgment as to Plaintiff’s racial harassment claim under Title
18 VII and FEHA. “To prevail on a hostile workplace claim premised on [race], a plaintiff
19 must show: (1) that he was subjected to verbal or physical conduct of a racial . . .
20 nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently
21 severe or pervasive to alter the conditions of the plaintiff's employment and create an
22 abusive work environment.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th
23 Cir. 2003). The plaintiff must establish both that the work environment was both
24 objectively and subjectively hostile. McGinest, 360 F.3d at 1113. “Whether an
25 environment is sufficiently hostile or abusive must be judged by looking at all the
26 circumstances, including the frequency of the discriminatory conduct; its severity;
27 whether it is physically threatening or humiliating, or a mere offensive utterance; and
28 whether it unreasonably interferes with an employee's work performance.” Clark
1 County Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001) (cleaned up). “The required
2 level of severity or seriousness varies inversely with the pervasiveness or frequency of
3 the conduct.” Nichols v. Azteca Rest. Enter., 256 F.3d 864, 872 (9th Cir. 2001).
4 It is uncontested that Plaintiff has established the subjective hostility
5 requirement. (See Reply at 7.) Defendants’ argument is that Plaintiff has not met his
6 burden to show that the working environment was objectively hostile. Plaintiff’s
7 evidence of harassing conduct related to Plaintiff’s race consists of: (1) Defendant
8 Ramirez’s “coldness” and failure to “welcome” him during his first faculty meeting in
9 2017; (2) Defendant Ramirez asking Associate Dean Boatamo Mosupyoe in 2018 why
10 “that old black man” was hired in reference to Plaintiff; (3) Defendant Ramirez shutting
11 her door when African American individuals were near her office; (4) Defendant
12 Ramirez’s opposition to hiring additional African American professors and lecturers
13 during staff meetings and “constantly say[ing] things in meetings against Black people
14 and Pan-African Studies Program” (Cook Dep. 37:19–21) while not making any such
15 statements in relation to hirings in other programs of the Ethnic Studies Department;
16 and (5) Defendant Ramirez repeated mischaracterization of African American
17 members of the Ethnic Studies Department as a “Pan-African Studies” hires (id. at
18 48:13–49:3, 60:16–61:1).
19 There is evidence to support each of these allegations, though Defendants
20 contest the veracity of that evidence. If a jury were to accept this evidence as true,
21 they could find for Plaintiff on a hostile workplace claim. The bulk of Defendant
22 Ramirez’s alleged actions and statements directed at Plaintiff were closing her office
23 door when Plaintiff was nearby, and the “old black man” comment made to Associate
24 Dean Boatamo Mosupyoe. However, hostile workplace claims can be premised on
25 general race-related comments and actions that are not specifically targeted toward a
26 particular individual. See McGinest, 360 F.3d at 1117. Additionally, Plaintiff was
27 present at the bimonthly faculty meetings where Defendant Ramirez allegedly
28 repeatedly spoke “against Black people” and questioned the hiring of African
1 American individuals to the Ethnic Studies Department. (See Cook Dep. 37:19–21; id.
2 48:13–50:1 (stating that Defendant Ramirez would complain about the Pan-African
3 Studies program hiring more faculty at twice-a-month faculty meetings); Mosupyoe
4 Dep. 59:24–60:23 (stating that Defendant Ramirez opposed hiring African American
5 staff “every time” it came up).) This included regularly asking “[w]hy do we keep hiring
6 all these Black people?” during faculty meetings. (Cook Dep. 50:2–51:22.) Defendant
7 Ramirez purportedly did not raise similar objections to hiring staff for any other
8 program within the Ethnic Studies Department besides the Pan-African Studies
9 program. (Mosupyoe Dep. at 53:4–54:2, 63:2–13.) Witnesses have also testified that
10 Defendant Ramirez would repeatedly assume and refer to African American CSUS
11 staff members as members of the Pan African Studies program, despite being
12 corrected that they were actually members of the Ethnic Studies Department more
13 generally. (Mosupyoe Dep. 53:23–54:8.) This included making similar remarks
14 around and to Plaintiff himself. (Cook Dep. 46:17–47:14.)
15 The facts here present a close case for racial discrimination. The alleged
16 conduct does not include some of the direct bigotry and/or racist stereotypes found
17 in other cases. See e.g., Few v. Lenovo (United States), Inc., No. 4:20-cv-03115-KAW,
18 2021 WL 5973053, at *4 (N.D. Cal. Dec. 14, 2021); Wallis v. Greyhound Lines, Inc., No.
19 2:19-cv-03448-JWH-Ex, 2021 WL 1573817, at *3 (C.D. Cal. Jan. 19, 2021). However,
20 viewing the evidence in the light most favorable to Plaintiff, a reasonable fact finder
21 could conclude that Defendant Ramirez’s actions and statements were sufficiently
22 severe and pervasive when combined to create a hostile work environment due to
23 their repeated nature and their apparent targeting toward Defendant Ramirez’s
24 African American co-workers. The combination of repeated negative statements and
25 actions towards African Americans and the Pan-African Studies program generally as
26 well as specific negative actions toward Plaintiff seemingly based on his race could be
27 sufficient for a jury to find that, in sum, these events altered the conditions of the
28 plaintiff's employment and created an abusive work environment. While the level of
1 severity of the conduct in question is relatively low as compared to other cases, it was
2 sufficiently pervasive such that Plaintiff’s claims do not fail as a matter of law. See
3 Nichols, 256 F.3d at 872 (“The required level of severity or seriousness varies inversely
4 with the pervasiveness or frequency of the conduct.” (Internal citations and quotations
5 removed)). There exists a genuine dispute as to what Defendant Ramirez’s conduct
6 and statements were and whether they were sufficiently severe or pervasive to create
7 an abusive work environment.
8 Plaintiff’s Title VII and FEHA racial harassment claims thus do not fail as a matter
9 of law and there are triable issues of fact related to these claims. Accordingly,
10 Defendants’ Motion for Summary Judgment is denied on this basis.
11 II. Plaintiff’s Fourth and Fifth Causes of Action for Age Discrimination and
12 Harassment Under FEHA
13 A. Age Harassment
14 Plaintiff also brings both age discrimination and harassment claims under
15 FEHA. The Court first starts with Plaintiff’s age harassment theory of liability. The
16 elements of an age-based harassment claim under FEHA are the same as those for a
17 race-based harassment claim: “(1) the plaintiff belongs to a protected group; (2) the
18 plaintiff was subjected to unwelcome harassment because of being a member of that
19 group; and (3) the harassment was sufficiently severe or pervasive to alter the
20 conditions of employment and create an abusive working environment.” Landucci v.
21 State Farm Ins., 65 F. Supp. 3d 694, 703 (N.D. Cal. 2014).
22 Here, the only alleged conduct related to age was Defendant Ramirez’s
23 questioning of Associate Dean Boatamo Mosupyoe about why she had hired “that old
24 black man” when he did not represent the student body.10 This single statement is not
25
10 While Plaintiff has also alleged that Defendant Ramirez made other statements related to age more
26 generally, there is no evidence that Plaintiff was aware of any statements related to age besides the one
noted above. While harassing age-based statements not specifically directed toward Plaintiff could still
27 create a hostile work environment and support his claims, this is only the case where Plaintiff knew of
those statements. See Brooks v. City of Mateo, 229 F.3d 917, 924 (9th Cir. 2000); see also Biggs v.
28
1 sufficiently severe to form the basis for an age harassment claim under FEHA. See Lyle
2 v. Warner Bros. Television Prod., 38 Cal. 4th 264, 283 (2006) (stating that FEHA does
3 not create liability for “harassment that is occasional, isolated, sporadic, or trivial”); see
4 also Eyraud v. Swift Transp. Corp., No. 2:17-cv-00791-JAM-DB, 2018 WL 2157176, at
5 *3 (E.D. Cal. May 10, 2018). Accordingly, there is no genuine dispute of material fact
6 and Defendants are entitled to judgment as a matter of law as to Plaintiff’s FEHA age
7 harassment cause of action.
8 B. Age Discrimination
9 Plaintiff also brings age discrimination claims based on the failure to interview
10 him for the Pan-African Studies position. The Court applies the same analysis to age
11 discrimination claims under FEHA as racial discrimination claims. (See supra
12 Discussion I.A.)
13 Defendants are entitled to summary judgment as to Plaintiff’s age-based
14 discrimination claim. Like with the race discrimination claim, Plaintiff has not met the
15 fourth requirement to establish a prima facie age discrimination case under the four
16 element McDonnell Douglas test. This requires that Plaintiff must show that he was
17 treated less favorably than similarly situated younger individuals. Cozzi v. County of
18 Marin, 787 F. Supp. 2d 1047, 1057 (N.D. Cal. 2011). Plaintiff has presented no
19 evidence from which a jury could conclude that Plaintiff was treated less favorably
20 than other, younger applicants for the Pan-African Studies position. Plaintiff cites no
21 evidence about the age of any other applicant for the Pan-African Studies position, let
22 alone evidence about the treatment of those applicants. Absent such evidence,
23 Plaintiff cannot meet the fourth requirement of the prima facie case under the four
24 element McDonnell Douglas test.
25 Unlike Plaintiff’s racial discrimination claim though, Plaintiff has not provided
26 sufficient evidence that a discriminatory reason more likely than not motivated the
27
Nicewonger Co., 897 F. Supp. 483, 485 (D. Or. 1995). Thus, such evidence is not relevant for purposes
28 of age-based harassment.
1 decision not to hire Plaintiff for the Pan-African Studies position. See Diaz, 752 F.2d at
2 1361. Plaintiff’s evidence supporting any inference of discrimination is limited to (1)
3 Defendant Ramirez questioning Associate Dean Mosupyoe in 2018 about why she
4 hired “that old black man” in reference to Plaintiff and (2) Defendant Ramirez’s
5 statement that CSUS needed to hire younger applicants during a different hiring
6 process. (Opp’n at 18–19.) The former statement was an isolated statement made
7 approximately three years prior to the hiring for the Pan-African Studies position for
8 which Plaintiff had applied. The latter is a single statement that was overheard by
9 Associate Dean Mosupyoe at a different time in connection with a separate hiring
10 process for a LatinX/ChincanX Studies position. (Id.) These two statements, made
11 years separate from the hiring for the Pan African Studies position at issue, are the full
12 scope of alleged conduct related to age.
13 Given the limited nature of the statements both in terms of severity and
14 pervasiveness, as well as the fact that Plaintiff has not presented evidence of age
15 based discrimination connected with the hiring of the Pan-African Studies position,
16 this evidence is insufficient to establish an inference of discrimination. Plaintiff has not
17 presented any other evidence to show an age-based discriminatory intent in the
18 decision to not interview Plaintiff for the Pan-African Studies position. The factual
19 allegations thus cannot support a discrimination action based on Plaintiff’s age and
20 the decision to not interview him for the tenured Pan-African Studies position.
21 Given the above, taking all evidence and inferences in favor of Plaintiff, Plaintiff
22 cannot establish a prima facie age-based discrimination claim, regardless of what
23 approach is used. Accordingly, Defendants are entitled to summary judgment on
24 Plaintiff’s age discrimination claim.
25 ////
26 ////
27 ////
28 ////
1 III. Plaintiff’s Fourth Cause of Action for Retaliation Under FEHA11
2 There are genuine disputes of material facts that preclude the Court from
3 granting summary judgment as to Plaintiff’s FEHA retaliation claim. For retaliation
4 claims under FEHA, courts still apply the burden shifting process described in
5 McDonnell Douglas. To meet the first step and make a prima facie case for retaliation
6 under FEHA, a plaintiff must establish that (1) he was engaging in a protected activity,
7 (2) the employer subjected him to an adverse employment decision, and (3) there was
8 a causal link between the protected activity and the employer's action. Guyton v.
9 Novo Nordisk, Inc., 151 F. Supp. 3d 1057, 1069 (C.D. Cal. 2015). Defendants contend
10 that Plaintiff cannot meet the third element. (See Mot. at 19.)
11 The theory underlying Plaintiff’s retaliation claim is essentially that Defendant
12 Ramirez knew Plaintiff had submitted complaints regarding the statements and
13 conduct discussed above, knew that Plaintiff was applying for the Pan-African Studies
14 position, and joined the hiring committee to prevent Plaintiff from receiving that
15 position. Plaintiff argues that a jury could conclude Defendant Ramirez knew Plaintiff
16 was applying for the position because she was also present at a faculty meeting where
17 other faculty encouraged Plaintiff to apply for the tenure Pan-African Studies position.
18 Plaintiff also argues there is evidence that Defendant Ramirez knew Plaintiff had filed
19 complaints against her previously because Defendant Ramirez allegedly stated “I’m
20 being attacked again. They’re after me again[,]”12 during the investigation of the Pan-
21 African Studies position hiring process. (Investigation Report at 19.)
22 Defendants contend that Defendant Ramirez’s presence at a meeting where
23 Plaintiff was encouraged to apply does not mean that Defendant Ramirez knew that
24 Plaintiff intended to apply (Reply at 3), but this evidence is at least sufficient to create a
25
11 While in the SAC Plaintiff brings his FEHA age harassment and retaliation claims in the same cause of
26 action, the Court here separates these as Plaintiff’s retaliation and age-based discrimination claims
concern different relevant facts and theories of liability.
27
12 Concerning the admissibility of this statement, see the Court’s discussion above. (See supra
28 Evidentiary Objections.)
1 genuine issue of material fact as to whether Defendant Ramirez knew Plaintiff
2 intended to apply for the Pan-African Studies position. Similarly, though Defendants
3 argue that Defendant Ramirez’s statement that she was being attacked “again” does
4 not mean that Defendant Ramirez was aware of Plaintiff’s prior complaints as it was
5 made “after the [Pan-African Studies] search process concluded,” (id. at 10 (emphasis
6 in original)), this is Defendants’ interpretation of this evidence. This statement could
7 be alternatively interpreted as Defendant Ramirez referencing Plaintiff’s November 3,
8 2020 complaint and updated February 1, 2021 complaint as “attacks” and that the
9 Pan-African Studies investigation was a new attack. This interpretation is supported by
10 Defendant Ramirez’s alleged usage of the word “again” in her statements that she was
11 being attacked and that they were after her.
12 Whether Defendant Ramirez knew of Plaintiff’s complaints is a material fact and
13 the interpretation of Defendant Ramirez’s statement represents a genuine dispute that
14 can only be resolved by a finder of fact. Accordingly, Defendants’ Motion for
15 Summary Judgment is denied as Plaintiff’s FEHA retaliation claim.
16 IV. Failure to Prevent Claims
17 Plaintiff brings claims under FEHA against CSU for failure to prevent
18 discrimination and harassment on the basis of Plaintiff’s race and age. Defendants
19 only argue that to the extent Plaintiff cannot establish claims for discrimination or
20 harassment, the related failure to prevent claims should be dismissed. Plaintiff
21 contends that all of his claims are viable for the reasons stated in their opposition but
22 does not argue that summary judgment would not be appropriate where the
23 underlying claim has been dismissed.
24 As the Court has granted summary judgment as to some, but not all of Plaintiff’s
25 discrimination and harassment claims, the Court will grant summary judgment as to
26 the related Failure to Prevent claim. Where the Court has denied summary judgment
27 as to those claims, summary judgment is also denied as to the related Failure to
28 Prevent claim.
1 V. Common Law Claim
2 Both Plaintiff and Defendants agree that Defendants should be granted
3 summary judgment as to Plaintiff’s claim against CSU for negligent hiring, supervision,
4 training, and retention. As such, the Court grants summary judgment for Defendants
5 as to this claim.
6 CONCLUSION
7 For the reasons stated above, IT IS HEREBY ORDERED that Defendants’ Motion
8 for Summary Judgment (ECF No. 20) is GRANTED IN PART and DENIED IN PART as
9 follows:
10 1. Defendants’ Motion is GRANTED as to:
11 a. Plaintiff’s age discrimination claim under FEHA (Fourth Cause of
12 Action)13,
13 b. Plaintiff’s age harassment claim under FEHA (Fifth Cause of Action),
14 c. Plaintiff’s claims under FEHA for failure to prevent age discrimination
15 and harassment (Sixth Cause of Action), and
16 d. Plaintiff’s common law claim for negligent hiring, supervision, training
17 and retention (Seventh Cause of Action).
18 2. Defendants’ Motion is DENIED as to:
19 a. Plaintiff’s race discrimination claims under Title VII and FEHA (First
20 and Second Claim for Relief),
21 b. Plaintiff’s race harassment claim under Title VII and FEHA (First and
22 Second Claim for Relief),
23 ////
24 ////
25 ////
26
27 13 As noted above, the Court here divides Plaintiff’s Fourth Cause of Action between Plaintiff’s FEHA age
discrimination claim, for which summary judgment is granted, and Plaintiff’s FEHA retaliation claim for
28 which summary judgment is denied.
1 c. Plaintiff's claim under FEHA failure to prevent race discrimination and
2 harassment (Third Claim for Relief), and
3 d. Plaintiff's claim for retaliation under FEHA (Fourth Cause of Action).
4
5 IT IS SO ORDERED.
6 | Dated: _ April 17, 2025 “Daniel CoD tto—
Hon. Daniel t |. od
/ UNITED STATES DISTRICT JUDGE
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