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NOT FOR PUBLICATION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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.