Petition for Writ of Certiorari — Alfred Lam, et al., Petitioners v. City and County of San Francisco, California, et al.

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Appendix A: Attached 9th Circuit Court

Memorandum on 3/18/2019

Page 36

United States Court of Appeals, Ninth Circuit.

ALFRED LAM; PAULA LEIATO, Plaintiffs-Appellants,

v.

CITY AND COUNTY OF SAN FRANCISCO; et al.,

Defendants-Appellees.

Nos. 16-15596, 16-16559. No. 1715208.

Submitted March 14, 2019^.

Filed March 18, 2019.

Appeal from the United States District Court for the

Northern District of California; D.C. Nos. 4:10-cv-04641PJH, 4:08-cv-04702-PJH. Phyllis J. Hamilton, Chief

Judge, Presiding.

Before: WALLACE, FARRIS, and TROTT, Circuit Judges.

NOT FOR PUBLICATION

MEMORANDUM^

In these appeals, Alfred Lam and Paula Leiato appeal pro

se from the district court's summary judgment in their action

alleging employment discrimination; from the district court's

award of costs to the defendants; and from the district

court's denial of their motion to reconsider a prior summary

judgment. We affirm in part and dismiss in part.

In Appeal No. 16-15596, Lam and Leaito appeal from the

district court's summary judgment. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Vasauez v.

County of Los Anaeles. 349 F.3d 634, 639 (9th Cir.

2003), and we affirm.

Page 37

The district court properly granted summary judgment on

Lam's and Leiato's discrimination claims because Lam and

Leiato failed to raise a genuine dispute of material fact as

to whether defendants took adverse action against

plaintiffs, and whether defendants had legitimate, nondiscriminatory motives for their actions. Id.at 640-42

(providing framework for analyzing discrimination claims).

Lam and Leiato's contentions that the district court ignored

relevant evidence or was biased against them are

unsupported by the record. See, e.g., Brown Baa Software

v. Symantec Coro., 960 F.2d 1465, 1474 (9th Cir.

1992) (district court's failure to refer to declaration and

exhibits in summary judgment order was harmless where

plaintiff failed to argue how consideration of declaration

would have changed result reached by district court).

The district court properly concluded that Lam and Leiato,

as pro se litigants, lacked the authority to represent a

class. See C.E. Pope Equity Trust v. United States, 818

F.2d 696. 697 f9th Cir. 1987) ("Although a non-attorney

may appear in propria persona in his own behalf, that

privilege is personal to him. ... He has no authority to

appear as an attorney for others than himself."). To the

extent Lam and Leiato contend that reversal is required due

to alleged ineffective assistance of counsel, this contention

is without merit. See, e.g., Nicholson v. Rushen, 767 F.2d

1426. 1427 (9th Cir. 19851 (plaintiff is a civil case has no

right to effective assistance of counsel). We reject Lam and

Leiato's remaining arguments as unsupported by the

record.

The district court did not abuse its discretion in awarding

costs to defendants because Lam and Leiato failed to

establish why the defendants were not entitled to

costs. See Save Our Valiev v. Sound Transit. 335 F.3d 932,

944-45 n.12 (stating standard of review and burden of

proof).

Page 38

In Appeal No. 16-16559, Lam and Leiato appeal the district

court's order denying their second motion to reconsider the

district court's costs award. We dismiss this appeal

because it was not timely filed. See Fed. R. App. Proc.

4(a)(1)(A), 26(a)(1); United States v. Sadler. 480 F.3d 932,

937 (9th Cir. 2007) (untimely civil appeals must be

dismissed for lack of jurisdiction).

In Appeal No. 17-15208, Lam and Leiato appeal the

district court's order denying their motion for relief

under Federal Rules of Civil Procedure 59(b), (e), 60(b),

and 60(d)(3) as "untimely and meritless". We have

jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion. School Dist. No. 1J. Multnomah

County. Or. v. ACandS. Inc.. 5 F.3d 1255.1262 (9th Cir.

1993) (Rule 59(e) and Rule 60(b)). We affirm.

The district court correctly exercised its discretion in

denying Lam and Leiato's motion. The district court

properly determined that all of the twenty-two alleged

questionable grounds for relief were untimely because

their motion was filed more than four years after the

entry of judgment.

APPEAL NOS. 16-15596 and 17-15208 AFFIRMED.

APPEAL NO. 16-16559 DISMISSED.

f**l Lam and Leiato's request for oral argument is denied, because the panel

unanimously concludes this case is suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

Cl This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Page 39

Appendix B: U.S. District Court Order denying

Motion for Reconsideration on 1/4/2017.

Page 40

United States District Court, N.D. California.

Case No. 08-CV-04702-PJH.

January 4, 2017.

ALFRED LAM, et al., Plaintiffs,

v.

CITY AND COUNTY OF SAN FRANCISCO, et al.,

Defendants.

ORDER DENYING MOTION FOR

RECONSIDERATION

Re: Dkt. No. 257

PHYLLIS J. HAMILTON, District Judge.

Before the court is pro se plaintiffs Alfred Lam and Paula

Leiato's motion for reconsideration. Having reviewed the

papers, and good cause appearing, the court hereby

DENIES the motion as untimely and meritless.

This case has been closed since April 13, 2012. On that

date, the court granted summary judgment in favor of

defendants and entered judgment against plaintiffs. Dkt.

236, 237. Plaintiffs appealed to the Ninth Circuit, which

affirmed on March 23, 2014. Dkt. 246. The Supreme

Court declined to grant certiorari on June 22, 2015. Dkt.

255.

Plaintiffs motion for reconsideration is made pursuant to

Federal Rules of Civil Procedure 59(b), 59(e), 60(b) and

60(d)(3). Plaintiffs ask the court to reconsider and vacate

its April 2012 summary judgment order based on "newly

discovered evidence" and "overlooked grounds." The

motion lists 22 grounds for reconsideration, the main

Page 41

theme being that alleged newly discovered evidence—to

wit, alleged "fraud" or "wrongful statements" by various

defense witnesses—justifies relief from the court's prior

judgment.

It has been over four years since judgment was entered in

this case. Rule 59 motions must be made 28 days after

the entry of judgment. Fed. R. Civ. P. 59(b), (e). To the

extent that plaintiffs' motion is based on Rule 59, it is

DENIED as untimely.

Rule 60 motions must be made "no more than a year after

the entry of judgment" or "within a reasonable time,"

depending on the alleged ground for relief. Fed. R. Civ. P.

60(c)(1). This one-year time limit foreclosures any claim

for relief from the judgment based on "mistake [or]

inadvertence," "newly discovered evidence," or "fraud . . .

by an opposing party." Fed. R. Civ. P . 60(b)(1)-(3);

60(c)(1). (Plaintiffs do not appear to rely on Rule 60(b)(4)(6), and in any event, their motion was not made "within a

reasonable time.") Thus, to the extent that plaintiffs'

motion is based on Rule 60(b), it is DENIED as untimely.

The only remaining ground for relief that is not expressly

time-barred is Rule 60(d)(3), which reflects the court's

inherent power to "set aside a judgment for fraud on the

court." Fed. R. Civ. P. 60(d)(3). However, this ground is to

be distinguished from simple fraud by an opposing party.

See In re Levander, 180 F.3d 1114. 1119 (9th Cir.

1999) ("[N]ot all fraud is fraud on the court."). True "fraud

on the court" requires a showing by clear and convincing

evidence of egregious misconduct that "does or attempts

to, defile the court itself, or is a fraud perpetrated by

officers of the court so that the judicial machinery cannot

perform in the usual manner its impartial task of adjudging

cases that are presented for adjudication." In re

Intermaanetics America. Inc.. 926 F.2d 912, 916 (9th

Cir.1991). "Mere nondisclosure of evidence is typically not

Page 42

enough to constitute fraud on the court, and 'perjury by a

party or witness, by itself, is not normally fraud on the

court."1 United States v. Estate of Stonehill, 660 F.3d 415,

444 (9th Cir. 2011). The allegations in plaintiffs’ motion,

even if proven, amount to (alleged) perjury by a witness or

nondisclosure of evidence by the defense. At most, this is

ordinary fraud subject to Rule 60(b) and its one-year time

limit, not fraud on the court.

For the foregoing reasons, plaintiffs' motion for

reconsideration is DENIED.

IT IS SO ORDERED.

Page 43

U.S. District Court Motion of

Appendix C:

Summary Judgment and dismissed case on 4/13/2012

Page 44

868 F.Supp.2d 928 (2012)

Alfred LAM, et al., Plaintiffs,

v.

CITY AND COUNTY OF SAN FRANCISCO, et al.,

Defendants.

No. C 08-4702 PJH.

United States District Court, N.D. California.

April 13, 2012.

933*933 Dow Wakefield Patten, Law Offices of Spencer F.

Smith, San Francisco, CA, for Plaintiffs.

Rafal Ofierski, San Francisco City Attorney's Office,

Geoffrey Gordon-Creed, Gordon-Creed Kelley Holl &

Sugerman, LLP, San Francisco, CA, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY

JUDGMENT AND DENYING MOTION FOR

SANCTIONS

PHYLLIS J. HAMILTON, District Judge.

Defendant's motion for summary judgment and plaintiffs'

motion for sanctions came on for hearing before the court

on February 15, 2012. Plaintiffs Alfred Lam, Frank Chen,

Gregory Chin, and Paula Leiato appeared through their

counsel, Dow Patten and Spencer Smith. Defendant City

and County of San Francisco appeared through its counsel,

Lauren Monson and Rafal Ofierski. Having read all the

papers submitted and carefully considered the relevant

legal authority, the court hereby GRANTS defendant's

motion for summary judgment and DENIES plaintiffs'

Page 45

motion for sanctions, for the reasons stated at the hearing

and as follows.

BACKGROUND

This is an action alleging discrimination in the workplace.

Plaintiffs Alfred Lam ("Lam"), Gregory Chin ("Chin"), Frank

Chen ("Chen"), and Paula Leiato ("Leiato") (collectively

"plaintiffs") are all persons of Asian Pacific American

("APA") race and/or national origin. See Third Amended

Complaint ("TAC"), 5. During the relevant time period, all

were employed by defendant Juvenile Probation

Department ("JPD"), an entity that falls under the direction

of defendant City and County of San Francisco

("defendant" or the "City"). See TAC, fl 6. Individual

defendants Timothy Diestel ("Diestel"), Dennis Doyle

("Doyle"), Alfred Fleck ("Fleck"), Charles Lewis ("Lewis"),

John Radogno ("Radogno"), and Barry Young ("Young")

(collectively "individual defendants") were allegedly

employed in supervisory positions above plaintiffs at the

JPD. See id. at fflf 8-12, 20. Plaintiffs generally allege that

defendants engaged in a pattern of discriminatory

treatment of them and unlawfully retaliated against them

when they complained about the discriminatory treatment.

A. Background Facts

The JPD operates two detention facilities for minors who

have been charged with criminal offenses, or have been

deemed to be beyond parental control. The two detention

facilities are Juvenile Hall located in the City, and Log Cabin

Ranch located in San Mateo County. Juvenile Hall has

eight separate detention housing units. Each unit contains

single rooms where individual detainees are locked at

night, and a common area where they are allowed to

congregate during the day. Male and female detainees are

housed separately, and detainees are assigned to different

Page 46

housing units based on factors including age, size, and the

nature of the charges they face (from shoplifting 9:>l:TK to

murder). See generally Declaration of Toni Ratcliff-Powell

ISO MSJ ("Ratcliff-Powell Decl."), ffil 3-4.

Juvenile Hall employs staff in various civil service

classifications

including

8316

counselors,

8318

counselors, 8320 counselors, 8322 senior counselors, and

8324 supervising counselors. Plaintiffs Lam, Leiato and

Chin are 8320 counselors, as was plaintiff Chen when he

retired in 2009. See Declaration of Rafal Ofierski ISO MSJ

("Ofierski Decl."), Ex. I at 21:15-22:4. The duties of 8320

counselors include supervising detainees' behavior;

maintaining security in the detention units; escorting

detainees to and from various locations inside and outside

Juvenile Hall; keeping various records such as logbooks

indicating the count and movements of detainees; and

organizing and supervising various activities intended to

educate

detainees

and

modify

anti-social

behaviors. See Ratcliff-Powell Decl.,

6, Ex. B; Ofierski

Decl., Ex. Kat 97:15-25.

Distilling the evidentiary record into further particulars, the

parties set forth the following facts with respect to each

particular plaintiff:

1. Plaintiff Lam

The majority of allegations asserted by plaintiffs against

defendants relate to plaintiff Lam. Lam alleges that, over

the course of several incidents beginning in September

2005 and lasting through August 2008, he was subjected

to discriminatory treatment and retaliation by defendants,

on the basis of his race and/or national origin. See TAC, ffl]

19-40.

Page 47

Lam, who is Chinese, began working at JPD in

2001. See Ofierski Deck, Ex. F at 34:16-18; 35:2. He began

working as a provisional full time 8320 counselor, but was

appointed as a permanent full time 8320 counselor in June

2002. See id. at 34:24-35:2. For the first several years of

his employment, he was supervised by individual

defendant Radogno, and was given generally positive

performance evaluations. See Declaration of John

Radogno ISO MSJ ("Radogno Decl."),

3, Exs. A-B. In

2003. 2004 and 2005, for example, Lam was rated as

"exceeding expectations." See Lam Deck, Exs. A-C.

In March 2006, senior counselor Al Fleck discovered that

Lam and another counselor who were charged with

inspecting visitors' bags failed to detect two glass jars that

should not have been allowed inside Juvenile Hall. Fleck

sent a memo to Lam and the other employee reminding

them to be thorough. See Ofierski Deck, Ex. H at 63:2067:3, Ex. 32.

In May 2006, there was a physical altercation in the unit

where Lam worked. It involved a detainee with a history of

mental health issues. The detainees and staff who

witnessed the incident — including Lam — reported that

the detainee attacked counselor Damien Semien and

struck him in the face with his fists as Semien tried to

defend himself. See Declaration of Dennis Doyle ISO MSJ

("Doyle Deck"),

4, Ex. D. Afterwards, Radogno held a

meeting with staff to review the incident. During the

meeting, Radogno noted that Lam made statements that

he did not know that an event was planned for the unit on

the day the detainee attacked Semien (which Lam should

have known if he were reading the daily logbook as

required), and also that he did not immediately come to

Semien's defense because he had to put on knee pads

first. See Radogno Deck, U 4, Ex. C. Based on these

statements, Radogno met with Lam after the staff meeting,

in order to discuss Lam's shortcomings during the incident.

Page 48

Radogno also made an official "Record of Discussion"

setting forth his concerns. Radogno Decl., U 5, Ex. D.

As part of the investigation into the incident, individual

defendant Diestel (JPD 93T935Assistant Director)

discovered that there was tension between Lam and other

counselors in his unit. Lam specifically reported that he did

not feel comfortable working in his unit, and the other

counselors reported that they were wary of working with

Lam because they felt he could not be trusted in emergency

situations. Diestel concluded that the mistrust posed

operational problems and risks, since the unit where Lam

worked was the maximum security unit. Consequently,

Diestel reassigned Lam to the admissions unit, where he

believed Lam's ability to deal well with the public would be

an asset. See Declaration of Timothy Diestel ISO MSJ

("Diestel Decl."), 3, Ex. A.

In early 2006, JPD issued six new informational packets

(apprising of changes to JPD policies and regulations).

Radogno began holding a series of six sessions with each

staff member, in order to review the informational packets

with each member, and to ensure staff was up to date on

all JPD policies and regulations. Radogno's first five

sessions with Lam were uneventful. When Radogno asked

Lam to review the final informational packet with him in July

2006, Lam refused to do so on grounds that he had not had

sufficient time to review it alone. Radogno Decl., U 6. Lam

then summoned his union representative, who encouraged

Lam not to review the packet with Radogno, and Lam

thereafter refused Radogno's request. The next day,

however, Radogno conducted the training session with

Lam without incident. See Radogno Decl., U 6, Ex. E.

Radogno complained to his superiors about Lam's conduct,

and wrote a memo regarding Lam's refusal to participate in

the training. He suggested that Lam should be disciplined,

although JPD did not immediately take any disciplinary

Page 49

action against Lam in response to Radogno's complaint.

Radogno Decl., 7, Ex. F. In April 2007, based on these

events, individual defendant Doyle (Director of Juvenile

Hall) admonished Lam for insubordination. Doyle Decl.,

2, Ex. A.

In August 2007, Lam's co-worker Reginald Cooks asked

Lam why he had not entered a count of detainees in the

logbook in the detention unit where they were working, and

Cooks

then

proceeded

to

call

Lam

a

"smartass." See Ofierski Decl., Ex. H at 81:1-83:2. Lam

demanded a written apology, but JPD did not order Cooks

to provide one. Doyle Decl., ^j 7, Ex. G. In late 2007, Lam

filed a formal grievance regarding the matter, which JPD

denied in January 2008. Id.; Ofierski Decl., Ex. H at 81:1483:6.

On March 15, 2008, Lam was assigned to a high volume

work post alone, and he was also ordered to ambulance

high risk detainees alone. See Declaration of Alfred LAM

ISO MSJ Opp. ("Lam Decl."), Exs. I-J.

On April 20, 2008, Lam complained to JPD and his union

regarding management's "misuse" of performance

appraisals. Lam Decl., Ex. K. On May 22, 2008, Lam

received his performance evaluation for the 2006-07 year.

Lam met his objectives in all but one of six categories:

attendance and punctuality. Lam Decl., Ex. L. Lam

disputed the 2006-07 performance appraisal by attaching a

rebuttal, stating that he had been harassed, retaliated and

discriminated against, causing him stress and affecting his

health. Lam Decl., Exs. M-N.

In June 2008, Lam refused to report to his assigned post

because he would have to work with Cooks. When he

disobeyed a direct order to report to his post, Doyle ordered

Lam home. Lam then filed a complaint alleging that Doyle's

order was in retaliation for his numerous previous

Page 50

complaints. See Declaration of Silvia Castellanos ISO MSJ

("Castellanos Decl."), fl 3, Ex. A. The City's

Department j-)36*936of Human Resources' ("DHR") Equal

Employment Opportunity ("EEO") Division investigated the

complaint and found no evidence to support it. Lam

appealed to the Civil Service Commission, which upheld

DHR's finding. Id., Ex. B.

In October 2009, Lam submitted a public document to the

Civil Service Commission that included the unredacted

name of the detainee who had attacked counselor Semien

in May 2006. See Declaration of Louise Brooks Houston

ISO MSJ ("Brooks Houston Decl."), 7, Ex. D at Exs. B-C.

Since this violated Lam's signed oath promising not to

disclose any information about the detainees, in November

2009, senior counselor Mildred Singh reprimanded Lam for

violating his oath and the confidentiality laws. See id.

2. Plaintiff Chin

Plaintiff Chin began working as an 8320 counselor at

Hall

in

1998,

and

is

Chinese

Juvenile

American. See Ofierski Decl., Ex. K at 20:22-21:8. Chin

received performance appraisal ratings of competent and

effective from 2002 throughout 2006. He has received

his work,

and

two

three

commendations for

admonishments.

Chin's first admonishment came in March 2007, from senior

counselor Jose Alardo. Alardo admonished Chin for

breaching security regulations after he learned that Chin

had left his post to go to the bathroom without notifying his

co-worker, which allowed a detainee he was supervising to

gain access to a door control panel and let other detainees

out from their rooms. See Declaration of Jose Alardo ISO

MSJ ("Alardo Decl."), H 2, Ex. A; Ofierski Decl., Ex. K at

Page 51

43:2-44:3; Declaration of Gregory Chin ISO MSJ Opp.

("Chin Decl."), Ex. F.

In September 2007, Chin received his second

admonishment, this time from senior counselor Barry

Young. He was admonished for leaving a detainee

unsupervised once again, and for failing to do a mandatory

count that would have revealed that he was leaving the

detainee behind. See Ofierski Decl., Ex. K at 47:17-48:13.

With respect to both admonishments, Chin asserts that he

was the only one disciplined for the oversight, despite that

several other non-APA workers were also culpable. In

November 2009, he filed a rebuttal to his second

admonishment, which Chin believed would commence an

internal grievance process. See Chin Decl.,

17. No

response to Chin’s written rebuttal was ever made or filed.

Chin does point out, however, that he received his very first

commendation on the job, shortly after filing a complaint

with the Equal Employment Opportunity Commission

("EEOC") regarding his second admonishment. See Chin

Decl., Ex. I-J.

In late 2009, JPD had an opening for an 8322 senior

counselor position, and Chin applied for the position. Chin

and the other candidates who met the minimum

qualifications were required to complete a take-home

written examination. Two JPD senior managers, who did

not know the identity of the applicants, then graded the

examinations. Based on the anonymous examination

scores, JPD Human Resources staff placed the applicants

in three ranks. Only the applicants in the first rank were

invited to participate in the next step of the hiring process,

which consisted of interviews. Chin's written examination

score placed him in the second rank of applicants, and

therefore he was not interviewed. See Brooks Houston

Decl., fflj 3-5, Exs. A-B.

Page 52

Chin points out that his 2009 performance evaluation

reflected that he was meeting expectations in performing

certain functions of the job that he had been tested on in

the take-home written examination for promotion, thus

leading to the ^ 03/ conclusion that his written exam

results were "suspiciously poor." See Chin Deck, Ex. N.

3. Plaintiff Chen

Plaintiff Chen, who is Chinese, started working at Juvenile

Hall in May 2000 and retired in 2009. See Ofierski Deck,

Ex. L at 13:19-25, 23:12-23. He was hired as a temporary

on call counselor, and became a permanent full time 8320

counselor in September 2000.

In 2001, Chen received his first performance appraisal and

was rated as "exceeding standards" in knowledge of his

job. See Declaration of Frank Chen ISO MSJ Opp. ("Chen

Deck"), Ex. A. In his. next performance appraisal in 2005,

he was again rated as "exceeding standards" in 6 out of 8

categories. Chen Deck, Ex. B.

On January 19, 2007, Chen complained to Officer Charles

Lewis and to Chief Probation Officer William Siffermann

about defendant Wayne Williams' unprofessional conduct

in the workplace. Chen requested a roundtable meeting

with Williams and higher management, so that the incident

would not repeat itself. Chen Deck, Ex. D.

In November 2007, JPD Chief Siffermann suspended Chen

for thirty days, based on a finding that Chen had been

grossly negligent and had violated several security

regulations in connection with an earlier incident.

Specifically: Chen allowed a detainee to leave his room,

which allowed the detainee to attack another detainee;

Chen and his coworker Scott Kato then allowed themselves

to be locked in a room where they placed the escaped

Page 53

detainee; Chen did not carry a radio or a scan pen that

could be used to call for help; Chen carried a cell phone but

did not use it to call for help; Chen did not report the incident

to his supervisor or to medical staff; Chen asked and

convinced Kato not to file an incident report; and Chen did

not file the required report until the episode came to the

attention of other staff. See Declaration of Barry Young ISO

MSJ ("Young Decl."), U 4, Ex. B; Declaration of Diana

Garcia ISO MSJ ("Garcia Decl."), U 3, Ex. A. Chief

Siffermann offered to reduce the suspension to fifteen days

and hold the remaining fifteen days in abeyance, but Chen

refused. See Brooks Houston Decl., 8, Ex. I.

Chen appealed his suspension to DHR EEO, asserting that

the JPD had not disciplined non-APA employees for similar

or worse misconduct. DHR investigated the claim and

found no evidence to support it. Garcia Deck, 3, Ex. A.

Chen then appealed to the Civil Service Commission,

which upheld DHR's finding. See Declaration of Sandra

Eng ISO MSJ ("Eng Decl."), If 2, Ex. B.

Aside from this suspension, Chen contends that he was

subjected to improper language and/or undeserved verbal

criticism on several occasions. In November 2007 and

January 2008, senior counselor Wayne Williams

purportedly spoke to Chen using profanities. See Ofierski

Deck, Ex. L at 34:8-36:5, 37:7-10, 42:16-45:13. In October

2006, Radogno accused or scolded him for failing to

perform a task properly. See id. at 48:17-50:16. And in

2004 and 2008, senior counselor Barry Young also scolded

him. See id. at 55:5-19, 58:6-59:2, 68:13-19.

4. Plaintiff Leiato

Plaintiff Leiato began working as a permanent 8320

counselor in Juvenile Hall in 1996, and identifies herself as

Page 54

a Pacific Islander from Samoa. See Ofierski Deck, Ex. J at

22:1-3, 30:16-24.

In a 2001 performance evaluation, Leiato was rated as

exceeding expectations. In a 2005 performance evaluation,

Leiato was rated as exceeding expectations in several key

substantive areas, though her

overall evaluation

due

to attendance

"development

needed

was

issues." See Declaration of Paula Leiato ISO MSJ Opp.

("Leiato Decl."), Exs. A, C.

In May 2007, Leiato was suspended for fifteen days,

following a confrontation between her and a detainee,

which confrontation was witnessed by senior counselor Al

Fleck. According to Leiato's own report, she responded to

hostile behavior exhibited by the detainee in question by

saying "you're right, I'm the queen of bitches and you can

do whatever you wanna do" and "Hey you wanna beat my

ass? I'm right here. I'm not going anywhere." See id. at

40:14-21,93:14-17, Ex. OO. The incident was investigated

and after the investigation confirmed that Leiato used

profanity and combative language that provoked the

detainee to attempt to assault Leiato, defendant Doyle

recommended that Leiato be suspended for thirty days for

violating Juvenile Hall regulations that require counselors

to use physical and verbal techniques that de-escalate,

rather than escalate the potential for violence. See Doyle

Deck, U 3, Ex. C. Chief Sifferman reduced the suspension

to fifteen days and directed Leiato to take an anger

management course. See Ofierski Deck, Ex. J at 87.2488:25, Ex. TT.

Leiato contested the suspension on grounds that she had

been treated more severely compared to non-APA

employees. DHR investigated the claim, and found that

none of the allegedly similar episodes involved.a counselor

challenging a detainee to a fight. See Declaration of Janie

White ISO MSJ ("White Deck"), 1f 3, Ex. A.

Page 55

In December 2008, Juvenile Hall Director Ratcliff-Powell

sent Leiato home without pay after Leiato was thirty

minutes late for work. Leiato admitted she was late, and

Juvenile Hall regulations expressly authorize such an

action whenever an employee is more than 15 minutes

late. See Ofierski Deck, Ex. I at 64:21-65:15, Ex. 10; id., Ex.

J at 54:20-55:1.

In July 2010, Ratcliff-Powell denied Leiato's request to

leave work two hours early in order to attend a traditional

and cultural family event. See Ofierski Deck, Ex. J at 123:8127:23. Ratcliff-Powell states that the request was denied

because there was no one available to take Leiato's

place. See Ratcliff-Powell, Deck, % 9.

B. Procedural History

Plaintiffs' original complaint was filed on October 10, 2008.

The complaint named the City and County of San

Francisco, as well as numerous individual defendants.

Plaintiffs originally alleged two causes of action under Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e-2 et seq.

On April 28, 2009, plaintiffs filed their first amended

complaint, and on July 30, 2009, plaintiffs filed a second

amended complaint, revising once more their stated

claims, as well as the named defendants.

After a subsequent motion to dismiss, plaintiffs filed the

operative third amended complaint. After yet another

motion to dismiss was heard, the court granted the City's

motion to dismiss three causes of action alleged under 42

U.S.C. § 1981. This effectively terminated the individual

defendants from the action, since they had only been

named in the section 1981 claims.

Page 56

As a result, the third amended complaint asserts only five

remaining claims against the remaining City defendant:

(1) violation of 42 U.S.C. § 1983

(First Cause of Action);

(2) violation of Title VII, by virtue of

disparate treatment based on race

and national origin (Fifth Cause of

Action);

(3) violation of Title VII, by virtue of

harassment and hostile work

race

939*939

environment

discrimination (Sixth Cause of

Action);

(4) violation of Title VII, by virtue of

retaliation (Seventh Cause of

Action); and

(5) violation of California's Fair

Employment and Flousing Act

("FEHA"), for failure to prevent

discrimination

and

harassment

(Eighth Cause of Action)

See generally TAC.

The City now moves for summary judgment as to all claims.

Plaintiffs have also separately moved for civil contempt and

for sanctions against the City.

DISCUSSION

A. Legal Standards

1. Motion for Summary Judgment

Summary judgment is appropriate when there is no

genuine issue as to material facts and the moving party is

entitled to judgment as a matter of law. Fed. R.Civ.P. 56.

Page 57

Material facts are those that might affect the outcome of the

case. Anderson v. Liberty Lobby, Inc.. All U.S. 242. 248,

106 S.ct. 2505. 91 L.Ed.2d 202 (1986V A dispute as to a

material fact is "genuine" if there is sufficient evidence for a

reasonable jury to return a verdict for the nonmoving

party. Id.

A party seeking summary judgment bears the initial burden

of informing the court of the basis for its motion, and of

identifying those portions of the pleadings and discovery

responses that demonstrate the absence of a genuine

issue of material fact. Celotex Coro, v. Catrett, All U.S,

317. 323. 106 S.ct. 2548 91 L.Ed.2d 265 (1986). Where

the moving party will have the burden of proof at trial, it

must affirmatively demonstrate that no reasonable trier of

fact could find other than for the moving party. Southern

Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th

Cir.20031.

On an issue where the nonmoving party will bear the

burden of proof at trial, the moving party can prevail merely

by pointing out to the district court that there is an absence

of evidence to support the nonmoving party's

case. Celotex. 477 U.S. at 324-25. 106 S.Ct. 2548. If the

moving party meets its initial burden, the opposing party

must then set forth specific facts showing that there is some

genuine issue for trial in order to defeat the

motion. See Fed. R.Civ.P. 56(e); Anderson. All U.S. at

960 106 S.Ct. 2505.

2. Motion for Sanctions

Generally, the court has inherent authority to punish a

party's failure to obey the terms of a court order through a

civil contempt proceeding. See, e.g., Int'l Union. UMWA v.

Bagwell, 512 U.S. 821. 831-32. 114 S.Ct. 2552,—129

l Fd.2d 642 (1994). "Civil contempt is characterized by the

Page 58

court's desire to compel obedience to a court order or to

compensate the contemnor's adversary for the injuries

which result from the noncompliance." Falstaff Brewing

Coro, v. Miller Brewing Co., 702 F.2d 770, 778 (9th

Cir.1983) (internal citations omitted). Given the remedial

purpose of the sanction, a finding of contempt must be

accompanied by conditions by which contempt may be

purged, spelled out in either the original order or the

contempt order. Moreover, although the district court

generally must impose the minimum sanction necessary to

secure compliance, see Whittaker Corp._v.—Execuair

Cora. 953 F 2d 510. 517 (9th Cir. 1992), the district court

appropriate

establish

retains

discretion

to

sanctions. See Richmark Coro, v. Timber—Falling

Consultants. 959 F.2d 1468. 1473 (9th Cir. 1992).

B. Defendant’s Motion for Summary Judgment

Defendant seeks summary judgment on the merits of each

one of the claims alleged imo'sho against the City.

Specifically, defendant contends that plaintiffs cannot

demonstrate the existence of triable issues of material fact

as to any of the five remaining claims asserted by the

individual plaintiffs in their complaint: (1) plaintiffs' Title VII

claim, to the extent premised on disparate treatment due to

race; (2) plaintiffs' Title VII claim, to the extent premised on

harassment and hostile work environment; (3) plaintiffs

Title VII claim, to the extent premised on retaliation; (4)

plaintiffs' section 1983 claim; and (5) plaintiffs' Fair

Employment and Housing Act claim, which is premised on

failure to prevent unlawful discrimination and harassment.

Preliminarily, the court notes that the gravamen of plaintiffs'

complaint and the underlying thread connecting all the

foregoing claims, is plaintiffs' contention that the City is

liable to plaintiffs for certain acts of discrimination that

Page 59

plaintiffs assert were directed at them during the course of

their tenure with JPD.

The general framework for proving discrimination within the

context of plaintiffs' claims is well established, and is guided

by the burden-shifting format established in McDonneJl

Douglas Cnrp. v. Green. 411 U.S. 792. 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff

must first prove a prima facie case of discrimination by

showing that he is a member of a protected class; that he

was performing his job duties in a competent and

satisfactory manner; that he suffered an adverse

employment action; and that some that similarly situated

individuals outside the protected class were treated more

favorably, or other circumstances surrounding the adverse

employment action give rise to an inference of

discrimination. Hawn v. Executive Jet Mgmt., Inc., 615 F.3d

1151. 1156 fQth Cir.2010): Guz v. Bechtel Nat. Inc., 24

CaUth 317. 355-56. 100 Cal.Rptr.2d 352, 8 P.3d 1089

(2000). The Ninth Circuit has repeatedly emphasized that

a plaintiffs burden in establishing a prima facie case of

discrimination is "minimal." Coghlan v. Am. Seafoods Co.

LLC. 413 F.3d 1090. 1094 (9th Cir.2005).

Once a plaintiff establishes a prima facie case of

discrimination, the burden shifts to the employer to offer a

legitimate, nondiscriminatory reason for the adverse

employment decision. See Reeves v. Sanderson Plumbing

Products. Inc., 530 U.S. 133, 142. 120 S.Ct.. 2097, 147

LEd.2d 105 (2000). An employer's reasons need not rest

on true information. Villiarimo v. Aloha Island Air, Inc., 281

F.3d 1054. infi3f9thCir.2002T Instead, courts require only

that the employer "honestly believed its reasons for its

actions, even if its reason is foolish or trivial or even

baseless." Id. (citation and quotation omitted).

If the employer meets this burden, the plaintiff must then

raise a triable issue of material fact as to whether the

Page 60

defendant's proffered reasons for its actions are a mere

pretext for unlawful discrimination. Hawn. 615 F.3d at 1155.

A plaintiff may do this by producing either direct evidence

of discriminatory motive, which need not be substantial, or

circumstantial evidence that is "specific and substantial

evidence of pretext. Godwin v. Hunt Wesson, Inc., 150 F.3d

1217. 1221-?? f9th Cir.1998). If the plaintiff succeeds in

demonstrating a genuine issue of material fact as to

whether the reason advanced by the employer was a

pretext for discrimination, then the case proceeds beyond

the summary judgment stage. See Reeves, 530 U.S. at

143 120 S.Ct. 2097.

A plaintiffs subjective belief that his termination was

unnecessary or unwarranted is not sufficient to create a

genuine issue of material fact. See Cornwell v. Electra

Cent. Credit Union. 439 F.3d 1018,_1028 n. 6 (9th

Cir.2006). In addition, "[a] plaintiff cannot defeat summary

judgment simply by making out a prima facie

case." 94l:94j. Wallis v. J.R. Simolot Co.. 26 F.3d 885, 890

f9th Cir.1994) (quoting Lindahl v. Air France, 930 F.2d

1434 1437 fflth Cir. 19911). Rather, the plaintiff must

produce

"specific,

substantial

evidence

of

pretext." Id. (quoting Steckl v. Motorola. Inc., 703 F.2d 392^

393 f9th Cir. 1983)).

With this legal overview in mind, the court's analysis of

each of the substantive claims asserted by plaintiffs — on

a plaintiff by plaintiff basis — is as follows.

1. Title VII Disparate Treatment Claim (Fifth

Cause of Action)

All four plaintiffs assert that the City is liable for disparate

treatment discrimination, pursuant to 42 U.S.C. § 2000e2(a)(1). See TAC, fflj 95-101. Plaintiffs contend that the City

has treated them differently on account of their race, by

Page 61

subjecting them to harsher discipline than that imposed on

non-APA employees, and by declining to appoint them to

'acting' supervisor roles that would predispose them to

promotions. Defendants, however, assert that such claims

fail, because plaintiffs have failed to come forward with any

evidence of either a prima facie case of disparate treatment

discrimination, or assuming that they can, any evidence of

pretext in response to defendants' non-discriminatory

reason for taking the disciplinary measures complained of.

To establish a prima facie case of disparate treatment,

each employee must show (1) that he/she belongs to a

protected class, (2) was performing according to his/ her

employer's legitimate expectations, (3) suffered an adverse

employment action, and (4) that other employees with

qualifications similar to his/her own were treated more

favorably. See McDonnell Douglas Coro, u. Green, 411

U.S. 792. 802. 93 S.Ct. 1817. 36 L.Ed.2d 668

(1973): Godwin v. Hunt Wesson. Inc., 150 F,3d 1217, 1220

(9th Cir.1998).

a. Chin's disparate treatment claim

Chin asserts disparate treatment based on the following

adverse actions taken by the City: failure to appoint him to

an 'acting' supervisor role; the March and September 2007

written reprimands based upon alleged safety and security

breaches; and the February 2010 denial of promotion to a

permanent supervising counselor position. See Opp. Br. at

18:10-16; see also Chin Decl., U 16.

As a preliminary matter, to the extent Chin's allegations

predate February 5, 2008, they are time-barred. Chin's

underlying EEOC charge was filed with the EEOC on

December 2, 2008 (which the EEOC then cross-filed with

the DFEH). See Chin Decl., Ex. K.tu Because Title VII

establishes a limitations period that extends backwards

Page 62

300 days before the date of the charge (applicable also to

charges cross-filed with the DFEH), plaintiffs' allegations

must fall within 300 days of the December 2, 2008 EEOC

charge to be actionable — i.e., February 5, 2008. See42

U.S.C. § 2000e-5(e)(1). As applied to Chin's allegations

here, this would preclude consideration of the March and

September 2007 written reprimands, as well as any alleged

failure to appoint to an 'acting' role or promotion denial, to

the extent it occurred prior to February 5, 2008. Plaintiffs,

for their part, have blithely asserted that Chin's rebuttal to

his September 2007 written reprimand tolls

the

statute of limitations with respect to Chin's EEOC charge;

however, Chin invokes no relevant legal authority in

support of his position, and argues only in the broadest and

conclusory of fashions that the court should toll the

limitations period. Without more this argument is

unpersuasive.

Thus, the question at issue before the court is whether Chin

has come forward with a prima facie case of disparate

treatment discrimination, based on the failure to appoint

him to an acting supervisor role, or the February 2010

denial of promotion.

With respect to the former, plaintiffs have not introduced

evidence raising a triable issue as to a prima facie claim of

discrimination. To satisfy the requisite showing, plaintiffs

rely on Chin’s declaration, which states that he "told

supervisory staff Alardo and Recinos [he] wanted to be

appointed to acting supervisory roles," as well as statistical

evidence that purportedly demonstrates that no APA

employees have been appointed to acting positions from

January 1,2006 through June 30, 2008. See Chin Decl., H

16; Declaration of Dow Patten ISO MSJ Opp. ( Patten

Decl."), Ex. J. However, Chin's testimony is only that he told

supervisors that he wanted to be appointed to acting

supervisory roles; his testimony is silent as to the date(s)

when Chin requested the appointment or the dates when

Page 63

such appointment became available, what his supervisors’

response to Chin's statement was, or whether they

understood his statement to be a request, nor does it

address whether the JPD actually refused to appoint him to

a supervisory role in response to Chin's request to do so.

There is thus no concrete basis upon which to conclude

that Chin ever suffered any adverse action, based on a

failure to appoint him to an acting supervisor role.

To the extent that Chin relies on statistical evidence,

moreover, the statistical evidence fails to establish that

other employees with qualifications similar to his own were

treated more favorably than Chin. Indeed, the evidence set

forth in Exhibit J to the Patten Declaration — which consists

of a summary and assortment of EEO statistics regarding

disciplinary and other facts (the significance of which goes

unexplained by any of the plaintiffs) — is silent as to what

other employees requested appointment to acting

supervisor' roles and when such requests were made, or

the JPD's response to such requests. Additionally, there

are no details provided establishing whether any acting

supervisor appointments were actually made during the

relevant time period, and if there were, the race or

nationality of the appointees. At best, the statistics include

a compilation of names and corresponding race and

nationality of employees at JPD generally who appear to

have been given official "promotions" to various positions.

However, not only does this compilation fail to address the

presence or lack of acting supervisor appointments, but

even if it did, it would still fail to address the critical question

whether any other individuals who had been promoted to

acting supervisor positions were similarly situated to Chin

(i.e., equally qualified). Thus, and in sum, Chin fails to

introduce any triable issues of material fact in support of a

prima facie case of discrimination, based on the failure to

appoint to an acting supervisor role.

Page 64

With respect to the denial of promotion claim, Chin asserts

that in February 2010, he was denied a promotion interview

after taking a written exam, whereas non-APA employees

were allowed to pass from the exam stage to the interview

stage in the promotion process, and one of them eventually

earned the promotion. However, 04:;V:)'I3 Chin does not

dispute the following: that he and other candidates took a

take-home written examination in order to qualify for the

promotion; that based on these scores, JPD Human

Resources staff placed the applicants in three ranks; that

only the applicants in the first rank were invited to

participate in the next step of the hiring process, which

consisted of interviews; and that Chin's written examination

score placed him in the second rank of applicants, and

therefore

was

the

reason

he

was

not

interviewed. See Brooks Houston Deck,

3-5, Exs. A-B.

These facts fall short of establishing a triable issue of fact

as to a prima facie case of disparate treatment. Specifically,

these facts make it impossible for Chin to establish that

other employees with qualifications similar to his own were

treated more favorably. Indeed, the facts tend to establish

that those non-APA employees who secured interviews,

and were then promoted, were able to do so because they

were more qualified than Chin — based on the written take

home test. Additionally, he fails to point to any evidence

that any non-APA employee in the second rank was

interviewed or promoted when he was not. Chin attempts

to materially dispute the evidence by arguing that the

written test taken to determine promotion eligibility was not

"in any fashion anonymous." Chin notes, for example, that

the Brooks Houston declaration states only that the test

was "intended" to be anonymous, and that supervisor

Doyle scored the test, but has not submitted a declaration

that the test was anonymous. However, Chin submits no

tangible evidence actually refuting that the test was

anonymous — or intended to be anonymous. And he has

submitted no evidence that even if the test was not

Page 65

anonymous, supervisor Doyle intentionally mis-graded the

test results to ensure that he did not place in the first rank.

Plaintiff merely suggests the possibility that such is the

case, This suggestion alone is inadequate to raise a triable

issue.

Even if, however, Chin were able to satisfy the elements of

a prima facie case based on the February 2010 denial of

promotion, he has nonetheless failed to materially dispute

defendants' articulation of a legitimate non-discriminatory

reason for his promotion denial (i.e., that the scoring

system placed Chin into a lesser qualified category), with

any evidence of pretext.

In sum, and for all the foregoing reasons, the court hereby

GRANTS the City’s motion for summary judgment with

respect to Chin's Title VII claim alleging disparate treatment

against the City.

b. Chen's disparate treatment claim

Chen argues that he suffered disparate treatment, based

solely on the thirty day suspension he received in April

2007. The underlying facts in relation to the suspension do

not appear to be disputed: Chen allowed a detainee to

leave his room, which allowed the detainee to attack

another detainee; Chen and his coworker Scott Kato then

allowed themselves to be locked in a room where they

placed the escaped detainee; Chen did not carry a radio or

a scan pen that could be used to call for help; Chen carried

a cell phone but did not use it to call for help; Chen did not

report the incident to his supervisor or to medical staff;

Chen asked and convinced Kato not to file an incident

report; and Chen did not file the required report until the

episode came to the attention of other staff. See Young

Dec!., 1| 4, Ex. B; Garcia Decl., 3, Ex. A. Chen contends,

however, that his discipline was evidence of disparate

Page 66

treatment because non-APA counselors were treated more

favorably with respect to similar incidents.

In support of his position, Chen points out: that in 1993, a

non-APA counselor incited a riot and received no

discipline;

that in 2007, a non-APA counselor

escorted three detainees through an unsecured area

without handcuffs, and was suspended for one day; that in

1990 a non-APA counselor allowed a juvenile to escape

and received a letter of reprimand; and that in 1992, a nonAPA counselor took juveniles off premises and received

only a 5 day suspension. See Declaration of Dow Patten

ISO MSJ Opp. ("Patten Decl."), Ex. J. With respect to the

incident leading to Chen's suspension specifically, Chen

points out that his non-APA counterpart in February 2005

exhibited violent behavior in the workplace and submitted

inaccurate reports about the incident, and only received a

5 day suspension. See Patten Decl., Ex. J. Finally, Chen

relies on the JPD's PMK deposition, in which the PMK

testified that the only 30 day suspensions that have been

issued aside from Chen, were all for non work-related

criminal activity. See (Patten Decl., Ex. A at 20:9-35:25).

Chen's claim, however, cannot overcome the procedural

hurdle placed in front of it by Title Vll's statute of limitations.

The same limitations period that applies to Chin's claims,

applies to Chen’s claims. Chen's lawsuit is founded upon

an EEOC charge filed on October 14, 2008, and which was

cross-filed with the DFEH. Since 300 days before October

14, 2008 was December 19, 2007, any adverse action

based on events before this date are time-barred. As with

Chin's arguments, plaintiffs make no persuasive response

to this procedurally meritorious objection, other than to

conclusorily assert, without reference to relevant case law,

that the limitations period should be tolled. Absent a more

persuasive showing by plaintiffs, the court concludes that

conduct that pre-dates December 19, 2007 is not properly

before the court. And since Chen's claim with respect to the

Page 67

thirty day suspension he received in April 2007 is premised

on conduct that occurred prior to December 19,2007, Chen

fails to plead any actionable conduct under Title VII.

However, even if the court were to consider the merits of

Chen's claim, Chen nonetheless fails to demonstrate a

triable issue of fact as to a prima facie case of disparate

treatment discrimination, or as to pretext. Beginning with

his prima facie case, and crediting Chen's contention that

he was generally performing his job in a satisfactory

manner, Chen has failed to introduce evidence establishing

that similarly situated individuals were treated more

favorably. To be sure, Chen has relied upon purportedly

similar incidents that span from 1990 to 2007, and which

are set forth in a compilation of EEO statistics, in order to

demonstrate that other counselors were similarly

situated. See Patten Decl., Ex. J. But these incidents, the

significance of which is unexplained by plaintiffs, are far too

isolated and random to support such a claim. Not only are

many of the earlier incidents too far apart temporally to be

considered truly 'similar' to plaintiff, but none appear to deal

with facts similar to those alleged by plaintiff here. Indeed,

the specific details of the comparative incidents are even

provided, such that a true basis for comparison exists.

Moreover, even if a prima facie case were stated, a case of

pretext would not be. Since Chen does not dispute his

conduct that was the basis for discipline, nor does he

dispute that discipline was warranted, he cannot dispute

that defendant had a legitimate non-discriminatory reason

to suspend him. In the face of this, plaintiffs must come

forward, as defendant notes, with "substantial and specific"

evidence of pretext. This, Chen has not done.

Accordingly, the court GRANTS defendant's motion for

summary judgment as to

Chen's disparate

treatment claim under Title VII.

Page 68

c. Lam's disparate treatment claim

Lam contends that he suffered disparate treatment, based

on the following adverse actions: he was repeatedly placed

in high risk situations; he received an April 2007

admonishment for refusing to review training materials with

supervisor Radogno; and he was sent home from the job in

June 2008 for refusing to engage in a high risk training

exercise while on a work restriction. See Lam Decl.,

2425. Lam also asserts that he asked to be placed in the

acting supervisor position, but has never received such an

appointment. Id., 25. These are all instances of disparate

treatment, he contends, because non-APA counselors

were not exposed to the same treatment.

As a preliminary matter, defendant points out that the

relevant limitations period for Lam's disparate treatment

claim begins on January 13, 2006. See Ofierski Decl., Ex.

E. Since Lam complains of discriminatory conduct that falls

within this limitations period, there does not appear to be

any procedural bar to his claims.

Turning to the merits of Lam's claim, the City is correct that

Lam fails to establish a prima facie case of discrimination

in connection with the claim that he was repeatedly placed

in high risk situations. Lam himself cites no specific

evidence in support of this claim anywhere in his opposition

brief. His complaint does allege that he was "ordered alone

to ambulance high-risk Spanish detainees who were

injured in a gang fight." TAC, U 20. But again, he provides

no evidence of such an incident. Defendant, by contrast,

points to Lam's testimony at his deposition stating that the

incident in question involved Lam riding in the back of an

ambulance together with an emergency medical

technician, a single detainee cuffed to a stretcher, and Lam

doing no more during the trip than observing the

situation. See Ofierski Decl., Ex. G at 115:21-121:14.

Page 69

These facts are undisputed by Lam. The court concludes

that these facts cannot support Lam's contention that there

was any "adverse" employment action taken against him

by the City, such that a prima face case with respect to

disparate treatment may be based thereon.

Regarding Lam's April 2007 admonishment for refusing to

review training materials, Lam also fails to establish a prima

facie case. Indeed, Lam's opposition mentions hardly

anything about the incident at all, and thus fails to introduce

specific articulable facts about the incident from which to

conclude that a prima facie case has been shown. Even if

a prima facie case could be shown, however, defendant

has correctly noted that undisputed facts establish

legitimate, non-discriminatory reasons for the April 2007

admonishment: when Radogno asked Lam to meet with

him to review the final informational packet in July 2006,

Lam refused to do so on grounds that he had not had

sufficient time to review it alone; and when told that the

purpose of the meeting was for both Lam and his

supervisor to review the packet materials together, Lam

then summoned his union representative, who encouraged

Lam not to review the packet with Radogno, and Lam

thereafter refused the request (although the training

session with Lam was completed without incident the very

next day). See Radogno Decl., U 6, Ex. E. Thus, Lam's

refusal to review materials with Radogno was clearly

established, and his resulting admonishment was

legitimate and non-discriminatory, in the absence of any

evidence of pretext. Yet Lam has not articulated, in

response to defendant's showing, any evidence suggesting

that the City's basis for its April 2007 admonishment was

pretextual.

946*946 With respect to the June 2008 incident in which

Lam was purportedly sent home for refusing to engage in

high risk training while on a work restriction, Lam

introduces absolutely no evidence of this. He submits no

Page 70

evidence that supports or explains his claim that he was on

a work restriction in June 2008, was ordered to do high risk

training while so restricted, and/or was sent home for

refusing to do the training. Defendant, by contrast, submits

the following evidence that is undisputed by Lam: in June

2008, Lam objected to his assigned post because he would

have to work with a colleague named Cooks, and Cooks

had previously called Lam a "smartass"; the JPD ordered

him to report to work notwithstanding Lam’s objections;

Lam refused to report to work; and Doyle ordered Lam

home and without pay for 4 hours. See Castellanos Decl.,

U 3, Ex. A. When Lam disobeyed direct orders to report to

his post, Doyle ordered Lam home. Lam then filed a

complaint alleging that Doyle’s order was in retaliation for

his numerous previous complaints. Castellanos Decl., 3,

Ex. A.

These facts demonstrate the absence of any high risk

training or any work restriction. Furthermore, there is simply

no evidence in these facts suggesting a discriminatory

animus by the City that was directed toward Lam, or that

any other similarly situated group of persons was treated

more favorably. In sum, there is no prima facie case

established by Lam, let alone any evidence of pretext.

Finally, Lam asserts that he asked to be placed in the acting

supervisor position, but has never received such an

appointment. Lam Decl., 25. As did Chin, Lam relies on

his declaration, which states that he "asked supervisory

staff Richardson to be placed in the 'acting' position, but

never received an appointment." Lam's testimony is only

that he asked to be appointed to acting supervisory roles;

his testimony is silent as to the date when he requested the

appointment, the date any such appointments were

available, what his supervisor's response to his request

was, whether his request was officially considered, and

who got the appointment(s) in his stead. Thus, for the same

reasons already expressed in connection with the court's

Page 71

discussion of Chin's disparate treatment claim, there is no

basis upon which to conclude that Lam ever suffered any

adverse action. And since Lam — unlike Chin — does not

expressly rely on any statistical evidence for support of his

claim that he was unlawfully denied an acting supervisor

appointment, there is no other evidence articulated by Lam

that could support his claim that he suffered disparate

treatment based on a failure to appoint him to an acting

supervisor role.

Moreover, even if the court were to construe Lam s claim

as resting on the same statistical evidence relied upon by

Chin, the same reasons given for the evidence's failure to

support Chin's claim — namely, a total lack of explanation

or facts establishing that Lam was treated differently from

employees similarly situated when he sought appointment

to an acting supervisor role — apply here, too. In sum,

therefore, there are no triable issues of fact with respect to

Lam's claim that he suffered disparate treatment on the

basis of his race, as evidenced by the failure to appoint him

to an acting supervisor role.

Accordingly, Lam has failed to introduce a triable issue of

fact as to disparate treatment discrimination under Title VII,

and defendant's motion for summary judgment as to this

claim is GRANTED.

d. Leiato's disparate treatment claim

Leiato asserts that she suffered disparate treatment, based

on the following adverse actions: her 15 day suspension

following the May 2007 incident when she used profanity in

dealing with a detainee; _94.mZ and Juvenile Hall Director

Ratcliff-Powell's decision in December 2008 to send Leiato

home without pay. Leiato contends that other non-APA

counselors engaged in numerous and repeated acts of

inappropriate language, but were never disciplined as

Page 72

harshly, and she also suggests that she was sent home

from work in retaliation for making complaints.

A portion of Leiato's claim, however, is time-barred.

Leiato's suit is premised upon a charge she filed with the

DFEH on October 21, 2008. Counting backwards for 300

days, Leiato's allegations must post-date December 26,

2007, in order to be actionable. See 42 U.S.C. § 2000e5(e)- Green v. Los Anaeles Ctv. Superintendent of

Knhs.. 883 F 2d 1472. 1473 (9th Cir.1989) (300 day

limitations period applicable where complainant initially

institutes proceedings with a state or local agency). This

means that Leiato's claim, to the extent premised on the

May 2007 incident, is time-barred, and only the December

2008 decision to send her home is actionable.

With respect to the December 2008 decision to send Leiato

home without pay, Leiato does not dispute that she was

thirty minutes late on that day, and that Juvenile Hall

regulations authorize the director to send an employee

home without pay who is more than fifteen minutes

late. See Ofierski Deck, Ex. I at 64:21-65:15; id., Ex. J at

54:20. These facts preclude a finding that Leiato was acting

according to her employer's legitimate expectations at the

time she was subjected to the purportedly discriminatory

discipline. Furthermore, plaintiff has submitted no evidence

demonstrating that other similarly situated employees were

treated more favorably in a similar factual scenario.

Accordingly, no prima facie case as to this incident has

been stated.

Even if Leiato had been able to introduce a material dispute

of fact as to a prima facie case of discrimination as to both

incidents in question, moreover, she has still failed to

introduce specific and substantial evidence of pretext.

Plaintiffs do not materially dispute that the City —

particularly in light of the foregoing undisputed evidence —

had a legitimate non-discriminatory reason to discipline her

Page 73

for her tardiness. Yet plaintiffs have submitted no evidence

that suggests that the City's non-discriminatory reasons are

not plausible, or that the City was somehow motivated by

discriminatory animus.

In sum, therefore, Leiato's disparate treatment claims, to

the extent they are actionable and within the limitations

period, fail to raise a triable issue of fact as to a prima facie

case of discrimination, or pretext. Accordingly, the City's

motion for summary judgment with respect to Leiato's Title

VII disparate treatment claim is GRANTED.

2. Title VII Harassment Claim (Sixth Cause of

Action)

Only two of the plaintiffs here — Lam and Chen — assert

a hostile work environment claim, claiming harassment on

the basis of race. To prevail on a hostile workplace claim

premised on race, a plaintiff must show: (1) that he was

subjected to verbal or physical conduct of a racial nature;

(2) that the conduct was unwelcome; and (3) that the

conduct was sufficiently severe or pervasive to alter the

conditions of the plaintiffs employment and create an

abusive work environment. See Fuller v. City of

Oakland. 47 F.3d 1522. 1527 (9th Cir.1995). The more

outrageous the conduct, the less frequent must it occur to

make a workplace hostile. See Ellison v. Brady, 924 F.2d

872. 878 (9th Cir.1991). To determine whether conduct is

sufficiently severe or pervasive to violate Title VII, the court

looks at all surrounding circumstances, including

frequency, severity, whether the alleged conduct 94£L*94£ is

threatening or humiliating, or merely an offensive

utterance, and whether it interferes with an employee's

work performance. See, e.g., Vasouez v. County of Los

Anoeles. 349 F.3d 634. 649 (9th Cir.2004). Finally, the

allegations of a racially hostile workplace must be

assessed from the perspective of a reasonable person

Page 74

belonging to the same racial or ethnic group as the

plaintiff. See Natl Railroad Passenger Corp.__ y,

Morgan. 536 U.S. 101. 116. 122 S.Ct. 2061, 153 L.Ed.2d

106 (2002V McGinest v. GTE Service Coro.. 360 F.3d

1103. 1115 (9th Cir.20041.

a. Lam's harassment claim

Plaintiffs' opposition omits reference to any specific

or

hostile

workplace

of

harassment

instances

discrimination. The City, however, highlights two incidents

of purported discrimination that Lam testified to in his

deposition: one occasion on which assistant director

Diestel once said in reference to Lam that "if he does it

again, I'm going to fire him;" and on another occasion,

senior counselor Young had a "mean demeanor" when he

spoke with Lam. See Ofierski Decl., Ex. G at 140:6-143:21;

271:21-273:5.

The court concludes that this comment by one supervisor

and a "mean demeanor" of another supervisor, though

unwelcome, did not amount to verbal or physical conduct

of a racial nature and was not sufficiently severe or

pervasive to alter the conditions of Lam's employment.

Further, no reasonable APA counselor would conclude

otherwise. To be sure, the comment/demeanor

demonstrate that there is tension between the parties; but

this cannot be said to be evidence of any race based

harassment. In short, it simply cannot be said that the

comment/demeanor produced an "unreasonably abusive

or offensive work-related environment or adversely

affected [Lam’s] ability to do [his] job." See, e.g., Davisjr

Monsanto Chem. Co.. 858 F.2d 345, 350 (6th Cir.1988).

Thus, the City's motion for summary judgment with respect

to Lam's harassment and hostile work environment claim,

is GRANTED.

Page 75

b. Chen’s harassment claim

As with Lam, plaintiffs' brief fails to cite to any specific

instances of harassment or hostile workplace

discrimination vis a vis Chen. The City, for its part,

highlights the following incidents of purported

"harassment": senior counselor Williams used profanity

when he spoke to Chen in January 2007 and November

2008 (stating "we have staff who don't know how to use the

fucking radio"); senior counselor Radogno "accused or

"scolded" Chen once in October 2006 for failing to properly

perform a task; and senior counselor Young "scolded"

Chen in 2004 by shouting "why are you opening the door,

da, da, da, da" and in 2008, told Chen not to watch

television while on the job. See Ofierski Decl., Ex. L at 34:836:5, 42:16-45:13, 48:17-50:16, 55:5-19, 58:6-59:2. The

City also highlights the fact that Chen testified in his

deposition that neither Williams, nor Radogno, nor Young,

ever said anything suggesting anti-Chinese bias, or made

racial comments. See id. at 37:7-10, 38:3-6, 39:1-9, 53:314, 68:13-19.

As a preliminary matter, defendant correctly argues once

again that any allegations that precede December 19, 2007

are time-barred, and additionally, that the allegations are

not actionable, because none were raised in the underlying

discrimination charge. See Ofierski Decl., Ex. M at Ex. II.

Thus, plaintiffs' allegations relating to Williams' use of

profanity in January 2007, Radogno's scolding of Chen in

October 2006, and Young's scolding of Chen in 2004 are

precluded from consideration as grounds for harassment.

Moreover, as to the scope of the underlying MSiMS charge

filed with the EEOC, defendant is also correct that the

charge does not provide notice of any harassment claims.

Rather, it is entirely predicated upon claims by Chen that

he was subjected to "unequal discipline." See id. Thus,

Chen has failed to exhaust administrative remedies with

Page 76

respect to his harassment charge, and his claim fails on this

ground.

Even considering the actual substance of all the incidents

highlighted by defendant, however, none suggest any bias

or reflect racially-motivated comments. And Chen himself

testifies that the same individuals who he complains of,

never said anything explicitly suggestive of any racial bias

or animus. Thus, as with Lam, plaintiffs have failed to

highlight any "unreasonably abusive or offensive workrelated environment or adversely affected [Chen's] ability

to do [his] job." See, e.g., Davis, 858 F.2d at 350.

The court should accordingly GRANTS the City's motion for

summary judgment as to Chen's harassment claim, as well.

3. Title VII Retaliation Claim (Seventh Cause of

Action)

Plaintiffs Lam, Chen, and Leiato assert that JPD targeted

them for discrimination on the basis of their APA status, in

retaliation for various complaints that all made. Generally,

in order to make out a prima facie case of retaliation, a

plaintiff must establish "that [he or she] acted to protect [his

or her] Title VII rights, that an adverse employment action

was thereafter taken against [him or her], and that a causal

link exists between those two events." See Steiner v.

Showboat Operating Co.. 25 F.3d 1459,_1465 (9th

Cir.1994).

a. Lam's retaliation claim

Lam notes that he filed complaints — which would

constitute "protected activity" — with JPD and with the Civil

Service Commission on April 30, 2008, May 28, 2008, June

2, 2008, and June 16, 2008. See Lam Decl., Exs. K, O-Q.

In terms of the purported retaliatory conduct, however,

Page 77

plaintiffs' brief is silent and it is left to defendant to

specifically highlight the nature of what such retaliatory

conduct could be — which defendant does by highlighting

two instances: Doyle's decision to send Lam home when

Lam refused to work with fellow counselor Cooks because

Cooks had previously called Lam a "smartass;" and the

reprimand that Lam received from senior counselor Singh

in November 2009, for disclosing the identity of a detainee

in a public record Lam submitted to the Civil Service

Commission. See Castellanos Decl., 3, Ex. A; Houston

Dec!., 7, Ex. D.

The first incident — Doyle's decision to send Lam home

early for Lam's refusal to work with Cooks — occurred in

June 2008, and technically falls within the proper temporal

time frame such as to suggest a possible causal link

between Lam's filing of written complaints, and the decision

to send him home. However, given the court's prior analysis

: of the foregoing incident in the discrimination context, and

the court's finding that the incident fails to suggest any

discriminatory intent by Lam's supervisor and is supported

by a legitimate business reason at any rate, the court finds

the temporal proximity insufficient alone to establish a

causal connection. Moreover, Lam does not provide any

his

complaints

and

evidence

other

than

omits any argument with respect to the foregoing incident

in his brief. As such, Lam cannot establish a viable claim

for retaliation based on this June 2008 incident.

The second incident — i.e., the reprimand that Lam

received in November of 2009 — compels a similar

analysis. While a written reprimand may properly be

considered an adverse employment action, the November

2009 incident occurred more 950;;M) than a year after the

filing of Lam's last June 16, 2008 complaint. The two

incidents therefore lack a sufficiently close temporal

connection to suggest a causal link between Lam's 2008

written complaints, and the November 2009 reprimand.

Page 78

Moreover, Lam does not dispute that the reprimand was

issued for his failure to redact detainee information in a

public filing, or that he in fact failed to do as much — facts

that demonstrate that the JPD had a legitimate nonretaliatory reason for issuing the reprimand, and which only

further weaken the case for any causal link between the

two incidents.

In short, Lam's substantive claims with respect to

retaliation, to the extent they are based on what defendant

has identified as the basis for Lam's claim, since Lam has

not bothered to do so, do not raise triable issues of fact.

Thus, the City's motion for summary judgment as to Lam's

retaliation claim is GRANTED.

b. Chen's retaliation claim

Once again, plaintiffs fail to introduce specific examples or

incidents of retaliation taken with respect to Chen.

Defendant, however, points to the following retaliatory

incident about which Chen testified in his deposition: that

senior counselor Young supported Chen's 30 day

suspension in November 2007, in retaliation for Chen s

filing of a discrimination complaint with JPD. See Ofierski

Decl., Ex.

Preliminarily, defendant again asserts that this retaliation

allegation cannot proceed for failure to exhaust

administrative remedies, since no retaliation claim was

made in connection with the underlying EEOC charge filed

by Chen. This is correct. As already noted, the EEOC

charge filed by Chen is solely based on the "unequal

discipline" that Chen purportedly received at the hands of

his supervisors, and makes no reference to any retaliatory

conduct. As such, Chen has failed to exhaust his

administrative remedies in connection with this claim, and

it fails on this basis.

Page 79

Even addressing the merits of the claim, it would

nonetheless fail as nonsensical. As defendant notes, the

JPD complaint that Chen filed was filed in June 2008. See

Ofierski Decl., Ex. M at Ex. FF. This was thus nearly a

year after the November 2007 suspension. Since the

complaint for which he was supposedly retaliated against

occurred after the suspension that constituted the

retaliation, there can be no causal link between any

adverse action and a protected activity.

Thus, summary judgment in the City's favor as to Chen's

retaliation claim, is therefore GRANTED.

c. Leiato's retaliation claim

Leiato asserts a retaliation claim based on two allegations:

first, that she was placed in danger when she was assigned

to work with two newly hired on-call counselors; second,

that supervisor Ratcliff-Powell retaliated against her when

Ratcliff-Powell refused Leiato's request to leave work two

hours early to attend a "family conference," a "traditional

and cultural thingy." See Ofierski Decl., Ex. J at 111:14114:25, 123:8-127:23.

These allegations fail to establish any prima facie case of

retaliation. Neither plaintiffs assignment to work with two

newly hired on-call counselors, nor the refusal of Leiato's

request to leave work two hours early, constitute any

material change or alteration in the terms of plaintiffs

employment, such that an adverse employment action has

been stated. Moreover, even if they did constitute adverse

actions, plaintiff provides no argument or evidence

establishing that these actions were taken in a sufficiently

close temporal time frame to a protected activity, so as to

suggest retaliation. To be sure, no one disputes that Leiato

filed gsr-usi written complaints throughout 2008, or that

these complaints constitute protected activity, see Leiato

Page 80

Deck, Exs. E-J. However, Leiato has not attempted to

suggest a causal link between that activity and either of the

foregoing incidents. Indeed, the denial of Leiato's request

to leave work 2 hours early occurred in July 2010, and

Leiato's filing of several complaints occurred from May

2008 through October 2008. This suggests a lack of causal

relationship.

In sum, Leiato's retaliation claim falls woefully short of

establishing a prima facie case of retaliation. Accordingly,

the City's motion for summary judgment is GRANTED on

this ground.

4. Section 1983 Claim (First Claim for Relief)

Finally, all plaintiffs have asserted a section 1983 claim

against the City, based on the City's alleged violation of the

Equal

Protection

Clause

of

the

Fourteenth

Amendment. See TAC,

61-65. To state a claim under

section 1983 for a violation of the Equal Protection Clause,

a plaintiff "must show that the defendants acted with an

intent or purpose to discriminate against the plaintiff based

upon membership in a protected class," and that plaintiff

was

treated

differently

from

persons

similarly

situated. See Barren v. Harrington, 152 F.3d 1193. 1194

(9th Cir. 1998): Lee v. City of Los Angeles. 250 F.3d 668

(9th Cir.2001): see also Washington v. Davis, 426 U.S.

229. 239-40. 96 S.Ct. 2040. 48 L,Ed.2d 597 (1976). As the

parties here note, a plaintiff may satisfy this showing by

alleging four separate elements: (1) that the plaintiff was

treated differently from others similarly situated; (2) this

unequal treatment was based on an impermissible

classification; (3) that the defendant acted with

discriminatory intent in applying this classification; and (4)

the plaintiff suffered injury as a result of the discriminatory

classification. See, e.g., Pers. Adm'r_of—Mass.—

Feenev. 442 U.S. 256. 279. 99 S.Ct. 2282. 60 L.Ed.2d 870

Page 81

(1979): see also T.A. ex rel. Amador v. McSwain Union

Elementary Sch. Dist., 2009 WL 1748793 (E.D.Cal.2009).

In the equal protection context, just as in a Title VII

disparate treatment case, the fundamental question

revolves around the plaintiffs ability to demonstrate a

discriminatory "purpose" or intent (which need not be

proved by direct evidence). To that end, generally, when

analyzing claims of disparate treatment in employment

under § 1981 or § 1983, a district court is guided by Title

VII analysis. See St. Mary's Honor Center v. Hicks, 509

U.S. 502. 506 n. 1. 113 S.Ct. 2742. 125 LEd.2d 407

(1993) (applying Title VII law regarding employment

discrimination and retaliation to cause of action under 42

U.S.C. § 1983); Surrell v. California Water Serv. Co., 518

F.3d 1097. 1103 (9th Cir.2008); Mustafa v. Clark County

Sch. Dist.. 157 F.3d 1169. 1180 (9th Cir.1998); see

also Lowe v. City of Monrovia. 775 F.2d 998, 1010-11 (9th

Cir. 1985) ("[Djetermining the existence of a discriminatory

purpose demands a sensitive inquiry into such

circumstantial and direct evidence of intent as may be

available").

Here, plaintiffs rely on the same evidence they submit in

support of their Title VII claims, for support of their section

1983 claim. As a preliminarily matter, however, the court

notes that the statute of limitations applicable to section

1983 actions is two years. See Wilson v. Garcia. 471 U.S.

261. 105 S.Ct. 1938. 85 L.Ed.2d 254 (1985) (forum state’s

statute of limitations for personal injury torts sets forth

appropriate period for determining statute of limitations

under section), superseded by statute on other grounds, as

stated in Jones v. R.R. Donnelley & Sons Co.. 541 U.S.

369. 124 S.Ct. 1836. 158 L.Ed.2d 952*952 645 (2004);

Cal.Civ.Proc.Code § 335.1 (establishing two year limitation

for the filing of civil claims). Thus, and applying the

foregoing limitations period here, plaintiffs may only

proceed with respect to their section 1983 claim, to the

Page 82

extent premised on allegations that post-date October 10,

2006.

Ultimately, the same deficiencies that preclude a finding

that triable issues of material fact exist in connection with

plaintiffs' Title VII claims, exist with respect to plaintiffs'

section 1983 claim. Namely, and for all the reasons

highlighted in connection with the court’s discussion of

plaintiffs’ Title VII claims, plaintiffs' evidence fails to

demonstrate that plaintiffs — each of them — were treated

differently from others similarly situated, based on an

impermissible classification. In other words, plaintiffs'

evidence fails to raise a triable issue as to the existence of

a discriminatory "purpose" in the actions taken by plaintiffs'

JPD supervisors. As such, plaintiffs do not prevail in

establishing a triable issue as to their section 1983 claims.

Moreover, to establish municipal liability of the City under

section 1983, plaintiffs must show: (1) that they possessed

a constitutional right of which they were deprived; (2) that

the municipality had a policy; (3) that this policy amounts to

deliberate indifference to the plaintiffs' constitutional rights;

and (4) that the policy is the moving force behind the

constitutional violation. Plumeau v. Sch. Dist. # 40 County

of Yamhill. 130 F.3d 432. 438 (9th Cir.1997). There can be

no municipal liability without an underlying constitutional

violation. See Scott v. Henrich. 39 F.3d 912. 916 (9th

Cir.1994).

Here, because plaintiffs fail to establish the existence of

triable issues with respect to any equal protection violation

that underlies their section 1983 claims, they also fail to

establish the first of the elements necessary for liability

against the City — i.e., a "constitutional violation." Thus,

and although plaintiffs spent considerable time in their brief

and at the hearing arguing about the City’s pattern and

practice of discrimination, the court's analysis of any

Page 83

"pattern and practice" is additionally unnecessary, as it is

ultimately immaterial.

In sum, and for the foregoing reasons, defendant's motion

for summary judgment with respect to plaintiffs' section

1983 claim, is GRANTED.

5. Fair Employment and Housing Act Claim

(Eighth Cause of Action)

Finally, all plaintiffs assert that the City is liable for failure to

prevent discrimination and harassment under California's

FEHA. Generally, it is an unlawful employment practice

under FEHA for an employer to "fail to take all reasonable

steps necessary to prevent discrimination and harassment

from occurring." See Truiillo v. North Co. Transit Distr., 63

Cal.Aoo.4th 280. 289. 73 Cal.Rptr.2d 596 (1998).

California law under FEHA mirrors federal law under Title

VII. Thus, and since plaintiffs have not established

discrimination or harassment in the first instance — for the

foregoing reasons — plaintiffs' claim for failure to prevent

or investigate such discrimination, fails at the

outset. See Truiillo. 63 Cal.Aop.4th at 289. 73 Cal. Rptr.2d

596; Tritchlerv. Countv of Lake. 358 F.3d 1150, 1155 (9th

Cir.20041: Cook v. Lindsav Olive Growers. 911 F.2d 233

(9th Cir.1990) (citing Mixon v. FEHC. 192 Cal. App.3d

1306. 237 Cal Rotr. 884 (19871 for the proposition that Title

VII law applies to FEHA claims).

The City's motion for summary judgment as to the FEHA

claim is also accordingly GRANTED.

953:953 C. Motion for Sanctions

Plaintiffs also move for civil contempt and resulting

sanctions, on grounds that defendant failed to file a motion

Page 84

to seal certain exhibits designated "attorney's eyes only" or

"confidential," as required by the protective order in place

in this action. In response, defendant contends that its

failure to do so was inadvertent, and that defendant sought

to correct its error as soon as practicable by notifying the

ECF help desk of its error, requesting a lock on the

documents in question, and promptly filing a motion to seal.

The City also withdrew several of its confidentiality

designations.

As defendant conceded at the hearing, its initial failure to

seek a sealing order in connection with the exhibits in

question technically violated the terms of the protective

order in place. However, the court is persuaded that any

error by defendant was inadvertent. Thus, and for the

reasons stated at the hearing, the court DENIES plaintiffs

motion for sanctions. See Richmark Corn, v. Timber Falling

Consultants. 959 F.2d 1468. 1473 (9th Cir. 1992) (district

court retains discretion to establish appropriate sanctions).

D. Conclusion

For the foregoing reasons, defendant's motion for

summary judgment is hereby GRANTED. Plaintiffs'

corresponding motion for civil contempt and for sanctions

is also DENIED. The pretrial and trial dates are

VACATED.121 The clerk shall close the file.

IT IS SO ORDERED.

Dated: April 13, 2012

/s/ Phyllis. J Hamilton

United District Judge

Page 85

[1] The court notes that Chin, Chen, and Leiato's underlying "EEOC"

charges are copies of their Department of Fair Employment and Housing

discrimination charge. See Chin Decl,, Ex. K; Chen Decl., Ex. E, Leiato

Decl Ex J Neither party disputes, however, that these DFEH charges

constitute the charge filed before the EEOC, or that the charges were crossfiled, and are for that reason referred to by the parties as the "EEOC"

charge.

[2] In view of the court's ruling, the request to reschedule the parties' pretrial

conference, as set forth in the April 13, 2012 letter submitted by defense

counsel, see Docket No. 235, is moot.

Page 86

i—

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ALFRED LAM, et al.,

Plaintiffs,

Vs.

CITY AND COUNTY OF

SAN FRANCISCO, et al.,

Defendants.

CV 08-04702 PJH

JUDGMENT

This action came on for hearing before the court and

the issues having been duly heard and the court

having granted defendant's motion for summary

judgment it is Ordered and Adjudged that the

complaint is dismissed with prejudice.

IT IS SO ORDERED.

Dated: April 13, 2012

PHYLLIS J. HAMILTON

United States District Judge

Page 87

i

Appendix D: 9th (Ninth) Circuit Motion for

Reconsideration Decision on 4/19/2019

Page 88

I

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFRED LAM; PAULA LEIATO,

Plaintiffs - Appellants,

V.

CITY AND COUNTY OF SAN FRANCISCO;

et al.,

Defendants - Appellees.

April 19, 2019

No. 17-15208

D.C. No. 4:08-cv-04702-PJH

Northern District of California, Oakland

ORDER

Before: WALLACE, FARRIS, and TROTT, Circuit

Judges,

Appellants' motion for reconsideration is DENIED.

No further motions will be entertained in this closed

case.

Page 89

i

i

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