Appendix — Braswell v. Los Angeles Unified School District

Supreme Court brief1994

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Text

TABLE OF CONTENTS

(APPENDIX)

TABLE OF CONTENTS . + +++ «= + (i234.

TABLE OF AUTHORITIES

Cases «++ -s

Constitutional Statute. .

Federal Statutes ...- -

State Statutes

Local Rules

MEMORANDUM OF THE COURT OF APPEALS

ORDER OF THE DISTRICT COURT

GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT . . .-

VARIOUS DISTRICT COURT ORDERS

Order Dismissing Plaintiff’s

First Amended Complaint

November 6, 1990 ..-+ «+ -

February 28, 1991 +--+ +: +

Order Denying Plaintiff’s

Ex Parte Application

Civil Minutes--General .. .

(iii.1a)

(iv.

la)

.1a)

1a)

6a)

. 8a)

9a)

13a

65a

68a

71a

74a

79a

8la

Table of Contents

ORDER OF THE COURT OF APPEALS

DENYING PETITION FOR REHEARING

MEMORANDUM OF THE COURT OF APPEALS

ORDER OF THE DISTRICT COURT

GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

VARIOUS DISTRICT COURT ORAL

PROCEEDINGS

October 1, 1990

November 5, 1990. .

November 26, 1990 .. .

CONSTITUTIONAL STATUTE

Amendment XIV, United States

Constitution ar

FEDERAL STATUTES

Title VII, Civil Rights Act

of 1964 (as amended)

[United States Code,

Title 42, Sec. 2000e

et seq.] - + © « « -«

Section 701. [Sec. 2000e})

Definitions ....

84a

86a

98a

150a

158a

169a

176a

177a

-Section 703. [Sec. 2000e-2]

Unlawful employment

practices .... .

(iii.2a)

180a

ata —" PP Ste:

Table of Contents

FEDERAL STATUTES (continued)

Title VII, Civil Rights Act of

1964 [42 U.S.C. Sec. 2000e

et seq.] (contin.)

Section 704. [Sec. 2000e-3]

Other unlawful

employment practices 187a

Section 706. [Sec. 2000e-5]

Prevention of

Unlawful aaeieaale

Practices .. s « 1868

Section 708. [Sec. 2000e-7]

Effect on

state laws ae &e x ee

United States Code, Title 42

Section 2000e et seq. . -. 177a

2000e. Definitions . 177a

2000e-2. Unlawful

employment prac-

Seek « & oh e:«=C64808

2000e-3. Other unlawful

employment prac-

i908 . + -«- « 187a

2000e-5. Prevention of

unlawful employment

practices... 188a

(iii.3a)

Table of Contents

FEDERAL STATUTES (continued)

U.S. Code, Title 42 (contin.)

Section 2000e et seq. (contin)

2000e-7. Effect on

state laws .. 190a

Section 1981 ......- 191a

Section 1983 ......- 192a

DECLARATIONS

Allan Ruttenberg, M.D... .. 193a

Ellen Braswell .......- .- 202a

(iii.4a)

aan

- ne tena

TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc.

477 U.S. 242, 106 &.Ct.

2505, 2512 (1986) ... 2ila,

106a,

Barthuli v. Board of Trustees

29 Cai.3G 7Fi7?, 722,

139 Cal. Rptr. 627

5 oe

Board of Regents v. Roth

408 U.S. 564, 92 S.Ct.

ae | ee

Bradshaw vs. Zoological

662 F.2d 1301 (9th Cir.

oO a a *

73a, 78a, 94a,

Bullock v. Sweeney

644 F.Supp. 507, 508

(N.D. Cal. 1986), aff'd

S23 F.2G 554 . « «© « « « 23a,

Celotex Corp. v. Catrett

477 UsB. 347, 166 8.Ct.

2548, 2553 (1986) ... 21a,

Cleveland Board of Education

v. Loudermill

470 U.S. 532,

105 S.Ct. 1487

S—~Ethins . 5 « » $98,

(iv.1la)

57a,

142a

144a

145a

10a,

95a

108a

106a

144a

Table of Authorities

CASES (contin. )

Del Percio v. Thornsley

877 F.2d 785 (9th Cir.

1989) a a o . ° ° * . . 58a,

Falls Riverway Realty, Inc.

v. Niagra Falls

754 F.2d 49

(2a Cir. 1985) .. 2ia,

Goodman v. Lukens Steel Co.

462 U.S. 656, i107 S.Ct.

OV | a ee

Grant v. Adams

69 Cal.App.3d 127, 132,

137 Cal. Rptr. 834,

caeees SG we + 6 kh ee 59a,

Haines v. Kerner

404 U.S. 519, 520-21

py | Se a ee lla,

96a,

International Brotherhood of

Teamsters v. United States

433 U.S. 324,

97 S.Ct. 1843

(oe

Kromnick v. School District

of Philadelphia

739 F.2d 894 (3rd

ae, 8004) 2 we eS C478,

(iv.2a)

143a

106a

143a

144a

23a,

108a

114a

132a

Table of Authorities

CASES (contin. )

Loehr v. Ventura County Community

College District

7e2: Fu.ae 2220, 1317

(9th Cir. 1984)... 60a, 145a

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.

475 U.S. 574, 587,

ifs @.Gee+ 1248,

1356 (1986) .... 23a, 108a

McDonnell-Douglas Corp. v. Green

411 U.S. 792, 93 S.Ct.

1817 (1973) os 4 8 a8 29a, 30a,

45a, 114a,

115a, 130a

Mitchel v. General Electric Co.

689 F.2d 877, 879

(9th Cir. 1962) ..-. « 22a, 46a,

107a, 13la

Morgan v. Harris Trust and

Sav. Bank of Chicago

867 F.2d 1023 (7th

Oar. Beene «6 et 23a, 108a

(iv.3a)

Table of Authorities

oa ae a allie:

CASES (contin.)

ss j n

Berliner, Carson & Wurst

Vv. isi olec

854 F.2d 1538, 1545

(9th Cir. 1988)

(per curiam) .... 4a, 6a,

7a, 228,

89a, 91a,

92a, 107a

Patterson v. McLean Credit Union

U.S. , 109 S.Ct. 2363,

2376-77 (1990) ..... £63a, 148a

Reed v. Lockheed Aircraft Corp.

613 F.2d 757 (9th Cir.

1980) aia «+ #8 & -« 25a, 110a

Rizzo v. Dawson

778 F.2d 527, 529-30 (9th

Ole, 2068s. 2 we et + «108, 968

Schnei Vv W ,

938 F.2d 986, 990 n.2

(9th Cir. 1991)

(citing Hydrolec,

854 F.2d at 1545) oe oe a 6a, Q9la

(citing Szewiola,

et al. v. LAUSD,

Case No. CV 80-3348 WMB

(Cols Ca. 1963) . « - - 54a, 139a

(iv.4a)

) Table of Authorities

CASES (contin. )

Szewiola, et al. v. LAUSD,

Case No. CV 80-3348 WMB

feces G6, S084). . - « Sha, 1398

Texaco, Inc. v. Ponsoldt

939 F.2d 794, 798

(9th Cir. 1991) .... . 11a, 96a

Texas Dept. of Community Affairs

v. Burdine

450 U.S. 248, 253,

1023 6.¢e. i069,

706) (i063)... - 308, 456,

115a, 130a

Tucker v. Roach

163 Cal.App.3d 1051,

210 Cal. Rptr. 295

FROGS) «© « ts es we wo ee 59a, 144a

United Air Lines, Inc. v. Evans ~—

431 U.S. 553, 97 S.Ct.

(}. oy i Ee ce ae a ee a 26a, lila

. United States v. Mandel

| 914 F.2d 1215, 1219

(9th Cir. 1990) .... . 8a, 93a

Watson v. Fort Worth Bank and Trust

S08 BsGe. arte

A ay owe oo et ee 3la, 39a,

57a, 116a,

124a, 142a

(iv.5a)

Table of Authorities

CASES (contin. )

Williams v. Owens-Illinois, Inc.

665 F.2d 918 (9th Cir.

1982) - * ” o o — © e * 26a, llla

Wils

471, U.S. 261, 105 S.Ct.

1938 (1985) ...... 58a, 62a,

143a, 147a

STATUTES

CONSTITUTIONAL STATUTE

Amendment XIV, United States

NEON ss tw ce le 59a, 144a

S UTES

Federal Rules, Appellate Procedure

D's ee lel tl tl ell} le 72a

a a 6 ss gk Sw a 72a

Federal Rules, Civil Procedure

Rule 12(b)(6) .. . lia, 17a, 66a,

96a, 102a

(iv. 6a)

Table of Authorities

STATUTES (contin. )

FEDERAL STATUTES (contin. )

Fed. Rules, Civ. Proc. (contin.)

Rule 15(a) . «© «© «© «© © © @e @ «@ 66a

Rule 56(e) .... - 3a, 20a, 21a,

22a, 88a, 105a,

106a, 107a

Rule 56(f£) . « «© « «© e « « 8a, 93a

Title VII, Civil Rights Act of 1964

(as amended) .. 2a, 10a, 16a, 17a,

25a, 27a, 28a, 30a,

39a, 40a, 42a, 44a,

45a, 47a, 56a, 57a,

65a, 77a, 87a, 95a,

101a, 102a, 110a, 112a,

113a, 115a, 124a, 125a,

127a, 129a, 130a, 132a,

141la, 142a

United States Code, Title 42

Section 1961 ..-- -« 38,178, 62a,

63a, 65a, 88a,

102a, 147a, 148a

(iv.7a)

Ai a

Table of Authorities

STATUTES (contin. )

FEDE STATUTES (contin.

U.S. Code, Title 42 (contin.)

Section i983 «9« «© © «+ « 2 «8 3a,

10a, 17a, 18a, 57a,

58a, 59a, 6la, 65a,

88a, 95a, 102a, 103a,

142a, 143a, 144a, 146a

Section 2000e et seq.

(Title VII, Civil

Rights Act of 1964

(as amended)) ..... - 2a,

10a, 16a, 17a,

25a, 27a, 28a,

30a, 39a, 40a,

42a, 44a, 45a,

47a, 56a, 57a,

65a, 77a, 87a,

95a, 10la, 102a,

110a, ii2ga, i113a,

115a, 124a, 125a,

127a, 129a, 130a,

132a, 14la, 142a

(iv.8a)

Aileen et ei all

Table of Authorities

STATUTES (contin. )

STATE STATUTES

CALIFORNIA CODE

Civil Procedure, Sec. 340. . 58a, 62a,

143a, 147a

Education

Section 44893 .... . 59a, 144a

Section 44994 ...« « 59a, 144a

Section 446907 ..+s+e-s 59a, 144a

LOCAL RULES

CENTRAL DISTRICT OF CALIFORNIA

Mule 7.34.2 . . « « « « Sa, 78, 90a, 92a

Bete Tokesid ~ s « et oe SR, 78a, BOA, Bae

(iv.9a)

APPENDIX

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 91-55365

D.C. No. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff-Appellant,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States

District Court for the

Central District of California

John G. Davies,. District Judge, Presiding

Submitted February 4, 1993”

Pasadena, California

Filed February 11, 1993

MEMORANDUM

Before: PREGERSON, LEAVY, and TROTT,

Circuit Judges.

On January 8, 1990, the appellant, a

black school teacher, filed a third amend-

ed complaint against the Los Angeles Uni-

fied School District ("school district"),

alleging claims of race and sex discrimi-

nation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. Secs.

: The panel unanimously finds this

case suitable for submission on the record

and briefs and without oral argument.

Fed. R. App. P. 34(a) and Ninth Circuit

Rule 34-4.

x* . * > * : ‘

This disposition is not appropriate

for publication and may not be cited to or

by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3

_—eS_----~S-~S-Sr-ss sserrrsststst=SF

2000e et seq., and 42 U.S.C. Secs. 1981

and 1983. The school district moved for

summary judgment. The appellant’s counsel

withdrew shortly before the hearing on the

motion, filing a declaration with the

district court as to why she withdrew.

The appellant proceeded pro se.

Because of the appellant’s pro se

status, the court granted numerous contin-

uances and repeatedly informed the appel-

lant in writing and orally prior to the

hearing on the motion for summary judgment

that the materials she had provided thus

far were deficient to show that genuine

issues of fact remained for trial.

The issues on appeal are: (1) wheth-

er the district court -properly applied

Federal Rule of Civil Procedure 56(e); (2)

whether the court abused its discretion in

denying the appellant a court-appointed

attorney; (3) whether the district court’s

denial of appellant’ request of additional

discovery was an abuse of discretion; and

(4) whether the district court’s ruling

that appellant could not amend her third

amended complaint was an abuse of discre-

tion.

1. Whether the District Court Erred in Its

lication of Rule 56(e

The appellant argues that the dis-

trict court was obligated to examine the

entire record to determine if there was a

genuine issue of material fact.

We have held that a court’s duty to

sift through the record to determine if

there are genuine issues of fact (espe-

cially where there is no reference to

pertinent exhibits) is limited by the pro-

mulgation of a local rule. Nilsson, Rob-

Wurst Vv.

Louisiana Hydrolec, 854 F.2d 1538, 1545

(9th Cir. 1988) (per curiam) ("Hydrolec").

Hydrolec, like this case, was filed in the

Central District of California, where

Local Rules 7.14.2 and 7.14.3 govern the

requirements for plaintiffs and defendants

in summary judgment motions. Under these

local rules, there is "an affirmative

burden to list genuine issues with appro-

priate record citations in order to with-

stand the motion for summary judgment."

Id. Consequently, we held that

when a local rule such as Unit-

ed States District Court-Cen-

tral District of California

Rule 7.14.3 has been promulgat-

ed, it serves as adequate no-

tice to nonmoving parties that

if a genuine issue exists for

trial, they must identify that

issue and support it with evi-

dentiary materials, without the

assistance of the district

court judge.

Id. (emphasis added). In other words,

"the law of this circuit...recognizes that

a district court is under no obligation to

mine the full record for issues of triable

ee ee ae

fact." Schneider v. TRW, Inc., 938 F.2d

986, 990 n.2 (9th Cir. 1991) (citing Hy-

drolec, 854 F.2d at 1545).

Therefore, neither the district court

nor this court need sift through the re-

cord, particularly where appellant was

warned that her opposition was deficient

for failure to contain facts. See Hydro-

lec, 854 F.2d at 1545 (trial court warns

party that its aepeaition was insuffi-

cient). Despite every latitude the court

provided, the appellant followed neither

the local rules, of which she was aware

(see ER 1 at 214), nor the court’s specif-

ic instructions to produce facts.

Where the district court gave the

appellant every benefit, the latitude to

ignore formalities on the part of a pro se

plaintiff does not extend to a complete

failure to comply with the rules and the

court’s instructions. We affirm the dis-

trict court on the sole ground that Local

Rule 17.14.3 "serves as an adequate notice

to nonmoving parties that if a genuine

issue exists for trial, they must identify

that issue and support it with evidentiary

materials, without the assistance of the

district court judge." Hydrolec, 854 F.2d

at 1545.?

2. Whe r e Di ic

enyi S iti iscov-

ery

The appellant argues that she could

not obtain important evidence for her case

because the court denied her request for

additional discovery. A district court’s

discovery rulings are reviewed for an

lsimply by reading the defendant’s

motion, which identifies precisely the

material facts and gives record citation,

this articulate, educated appellant should

have been able to identify disputed facts

and provide references to the record, if

any.

abuse of discretion. United States v.

Mandel, 914 F.2d 1215, 1219 (9th Cir.

1990).

The appellant filed a motion to

served additional interrogatories on No-

vember 13, 1990, only two weeks before the

rescheduled hearing on summary judgment on

November 26, 1990. She did not file an

affidavit to show that she could not pres-

ent facts essential to justify her opposi-

tion as required by Rule 56(f). In view

of the fact that there already had been a

substantial passage of time and numerous

continuances in deference to the

appellant’s status, we conclude that the

district court did not abuse its discre-

tion in denying additional interrogato-

ries.

3. Whether the District Court’s Denial of

the Request for a Court-Appointed Attorney

Was an Abuse of Discretion

The appellant argues that the dis-

trict court should have appointed her

counsel. A district court’s decision on

a motion for appointment of counsel is re-

viewed for an abuse of discretion. Brad-

shaw v. Zoological Soc. of San Diego, 662

F.2d 1301, 1318 (9th Cir. 1981).

There are three factors a district

court must weigh in its decision whether

to appoint counsel: (1) the plaintiff’s

ability to pay; (2) the efforts plaintiff

makes to secure counsel; and (3) whether

the claim has merit. Bradshaw, 662 F.2d

at. 1318.. The -district:. court recognized

that plaintiff alleged she could not af-

ford counsel and that she had made dili-

gent efforts to find a substitute counsel.

However, the court decided that, in the

10a

face of the defendant’s motion for summary

judgment and the evidence presented thus

far in opposition to it, the appellant’s

claim lacked merit. We affirm the dis-

trict court’s ruling.?

4. Whether the District Court Erred in

Denying Leave to Amend the Third Amended

Complaint

The appellant argues that she wished

to amend her third amended complaint to

reinstate the claims of age discrimina-

tion, defamation, intentional infliction

of emotional distress, and retaliation,

2This court has held that an EEOC

determination of “reasonable cause" is

ordinarily sufficient to show a plain-

tiff’s case has merit. Bradshaw, 662 F.2d

at 1319-20. However, Bradshaw did not

involve a summary judgment motion. Rather,

it involved a reversal of a summary judg-

ment motion on a Title VII and section

1983 action and a remand for further pro-

ceedings. Here, where appellant requested

counsel when faced with a summary judgment

motion, the question of merit is different

from whether the pleadings are adequate to

support a claim.

lla

which were first alleged in the first

amended complaint. The claims were

dropped from the second and third amended

complaints by appellart’s attorney after

the court dismissed the first amended

complaint for failure to state a claim

under Rule 12(b) (6).

The denial of leave to amend after a

responsive pleading has been filed is

reviewed for an abuse of discretion.

Texaco, Inc. v. Ponsoldt, 939 F.2d 794,

798 (9th Cir. 1991).

The Supreme Court allows dismissal of

a pro se complaint for failure to state a

claim only where "it appears beyond doubt

that the plaintiff can prove no set of

facts in support of his claim which would

entitle him to relief." Haines v. Kerner,

404 U.S. 519, 520-21 (1972); Rizzo v.

Dawson, 778 F.2d 527, 529-30 (9th Cir.

1985). The district court had ruled early

12a

in the case that the appellant could prove

no set of facts in support of age discrim-

ination, defamation, intentional inflic-

tion of emotional distress, and retalia-

tion. It did not abuse its discretion,

therefore, to dismiss a motion to rein-

state the same claims.

AFFIRMED.

Stamped by: Cathy A. Catterson

Cathy A. Catterson

Clerk, U.S. Court of Appeals

13a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed February 4, 1991

Entered February 7, 1991

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

On November 26, 1990, defendant’s

motion for summary judgment came on for

hearing. Having reviewed and considered

the papers and oral arguments presented by

the parties, the Court hereby GRANTS de-

a Saale encima sri in 28 aS town

14a

fendant’s motion. All other motions are

hereby taken off calendar.

FACTS

Plaintiff is black. She has been em-

ployed by the Los Angeles Unified School

District as a teacher. She taught for 12

years at Polytechnic High School ("Poly-

technic"), from 1974 to 1985. From 1983

to 1984, the plaintiff held the position

of yearbook advisor but requested she be

relieved of this position in 1984.+ In

1985, the plaintiff unsuccessfully applied

for the position of mentor teacher. In

1985, the plaintiff filed a complaint with

the Equal Opportunities Employment Commis-

sion alleging discriminatory treatment on

the basis of sex and race at Polytechnic.

In 1985, at her request, the plain-

ltn some instances, the parties have

only provided the Court with approximate

dates. The dates specified in this order

reflect this deficiency.

15a

tiff transferred to Granada Hills High

School ("Granada") where she continues to

teach. In 1986, the plaintiff applied for

the positions of peer counselling director

and teen line liaison director, but was

rejected. The plaintiff held the position

of school coordinator for the Teen Line

Liaison program, which was the only school

office in the program. In 1986, 1987, and

1988 the plaintiff applied for the office

of in house dean at Granada. However,

Jody Dunlap already held that position in

1985 and continued to do so through 1989.

In 1988 Bob Weinberg and Loretta Duncan

respectively were selected to serve as in

house dean on a part time basis, and Jim

Gwin was assigned to the position part

time in the fall of 1989. In 1990, Gwin

was selected to serve as in house dean on

a full time basis. The plaintiff unsuc-

cessfully ran for the office of English

Cn eee ee

16a

Department Chairperson in 1986. She- also

ran for representative to the School Site

Council but was not elected. She took

illness leave in Spring 1987 and academic

years 1988-89 and 1989-90. She is pres-

ently on illness leave.

On October 25, 1988, the plaintiff

amended her EEOC complaint alleging that

discrimination against her due to her race

and sex continued at Granada.

On March 14, 1989 the plaintiff filed

a complaint for monetary and injunctive

relief based on age, sex, and race dis-

crimination against the Los Angeles Uni-

fied School District ("District"). With-

out having served the original complaint

on the District, the plaintiff filed the

first amended complaint May 30, 1989.

This complaint asserted claims under Title

VII of the Civil Rights Act of 1964, 42

U.S.C. sec. 2000e et seg, 42 U.S.C. sec

17a

tion 1981, and 42 U.S.C. section 1983,

intentional infliction of emotional dis-

tress and defamation. On September 12,

1989 the Court dismissed the first amended

complaint for failure to state a claim,

pursuant to Fed.R.Civ.P. 12(b) (6).

On September 29, 1989, the plaintiff

filed a second amended complaint. In this

complaint the plaintiff dropped her age

discrimination claim and her pendent state

claims, but realleged causes of action

under Title VII and sections 1981 and

1983. On December 18, 1989, the Court

granted the District’s 12(b)(6) motion to

dismiss the section 1983 claim. On Janu-

ary 8, 1990, the plaintiff filed a third

amended complaint, alleging claims under

Title VII and sections 1981 and 1983. The

plaintiff alleges that the district dis-

criminated against her by denying her re-

quests to serve in various pre-adminis-

bal 0 tl

18a

trative positions, her requests to trans-

fer and her requests to teach honors

classes, on the basis of plaintiff’s race

and sex. The plaintiff claims that the

District discriminated against her by

denying her applications to preadministra-

tive positions. Denial of these preadmin-

istrative positions prevented the plain-

tiff from getting the experience necessary

to pass the qualifying test for principal,

assistant principal and dean, secondary.

The plaintiff contends that these arbi-

trary selections policies denied her con-

stitutional due process, violating section

1983.

The plaintiff claims she wa denied

the position of mentor teacher in favor of

a white male in the 1985-86 school year.

In 1986, plaintiff states she initiated a

program on peer counselling, but the posi-

tion of director went to a white male.

19a

Plaintiff contends she was also denied the

positions of teen line liaison director

and test coordinator in 1986. Plaintiff

also asserts that she was denied the as-

Signment of honors classes, the ability to

serve as the chairperson of the English

Department and to serve as representative

to the School Site Council due to her

race. The latter two positions were

filled by popular election pursuant to the

collective bargaining agreement between

the District and United Teachers of Los

Angeles ("UTLA"). The plaintiff argues

that denial of preadministrative positions

was part of a District policy to prevent

minorities and women from gaining the

requisite administrative experience to be

promoted to principal, assistant princi-

pal, or dean, secondary. MThe plaintiff

makes further allegations under section

1981.

20a

The defendant filed this motion for

summary judgment on all claims, July 23,

1990. However, on or about August 6,

1990, the plaintiff’s attorney withdrew.

Since that time, the plaintiff has pro-

ceeded pro se. In order to allow plain-

tiff time to prepare an opposition to the

pending motion the Court has granted nu-

merous continuances. The plaintiff has

now filed an opposition to the motion for

summary judgment and exhibits in support

of her opposition.

DISCUSSION

THE STANDARD FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56(e),

"an adverse party may not rest upon the

mere allegations or denials of the adverse

party’s pleadings...[{Tjhe adverse party’s

response must set forth specific facts

showing that there is a genuine issue for

trial." Where the nonmoving party bears

21a

the burden of proof at trial on a disposi-

tive issue, Rule 56(e) requires the non-

moving party to go beyond the pleadings

and by his or her own affidavits, or by

depositions, answers to interrogatories

and admissions, designate issues of fact

in dispute. Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548, 2553 (1986). To

defeat a summary judgment motion, evidence

must exist upon which a jury could reason-

ably find for the opposing party. Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242,

106 S.Ct. 2505, 2512 (1986) ("Anderson").

A court must consider evidence pre-

sented in a summary judgment motion in the

light most favorable to the opposing par-

ty. Id. at 2513. However, just as evi-

dentiary facts are required to support a

summary judgment motion, conclusory deni-

als are insufficient to defeat summary

judgment. Falls Riverway Realty, Inc. v.

——————————————————————

22a

Niagara Falls, 754 F.2d 49 (2d Cis. 1985).

The Ninth Circuit has held that a party

opposing a summary judgment motion cannot

rest on its pleadings to carry its burden;

in the absence of specific facts, as op-

posed to allegations, showing the exist-

ence of genuine issues for trial, a prop-

erly supported summary judgment motion

should be granted. Nilsson, Robbins et

al. v. Louisiana Hydrolec, 854 F.2d 1538

(9th Cir. 1988). Moreover, the Ninth

Circuit stated that the Central District’s

Local Rule requiring a Statement of Genu-

ine Issues in Dispute puts parities on

notice that a party opposing a summary

judgment motion must identify any issue

remaining for trial. Id. at 1545. Mere

unsubstantiated and conclusory allegations

are insufficient to defeat a defendant’s

evidentiary showing under Fed. R. Civ. P.

56(e). Mitchel v. General Electric Co.,

23a

689 F.2d 877, 879 (9th Cir. 1982).

When a rational trier of fact could

not find for the nonmoving party based on

the record as a whole, there are no tri-

able issues. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587,

106 S.Ct. 1348, 1356 (1986). Summary

judgment will not be defeated simply be-

cause issues of motive or intent are in-

volved, and is proper when the plaintiff

fails to indicate any motive or intent to

support plaintiff’s position. Morgan v.

Harris Trust and Sav. Bank of Chicago, 867

F.2d 1023 (7th Cir. 1989).

A court should take proper care,

however, to read a plaintiff’s pleadings

and motions liberally. when pro se com-

plaints are involved. Haines v. Kerner,

404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96

(1972); Bullock v. Sweeney, 644 F.Supp.

507, 508 (N.D. Cal. 1986), aff’d 823 F.2d

24a

554.

In this case, while initially repre-

sented by counsel, the plaintiff is now

pro se. The Court instructed the plain-

tiff as to what her opposition to the

motion for summary judgment must encom-

pass, and continued hearings on the motion

for summary judgment for a total of four-

teen weeks to allow her to prepare her

opposition. The Court has afforded the

plaintiff a latitude it would not have

afforded an attorney. The plaintiff has

now filed her opposition to the motion for

summary judgment and exhibits in support

thereof. Having considered these filings

and attempted to liberally weigh the evi-

dence in the plaintiff’s favor, the Court

GRANTS the motion for summary judgment.

Therefore, the Court concludes the plain-

tiff has produced no convincing evidence

to support her claims and thus has failed

25a

to carry the burden required to defeat the

motion.

TITLE VII CLAIM

The plaintiff filed her complaint

with the Equal Employment Opportunities

Commission ("EEOC") on June 10, 1985, and

amended that complaint October 25, 1988.

Though some of the alleged discriminatory

incidents fall outside the limitations

period of Title VII?, the Court may still

consider those incidents due to the con-

tinuing nature of the alleged violations.

The doctrine of continuing violation will

apply when a plaintiff has attacked a

discriminatory employment system or prac-

tice. Reed v. Lockheed Aircraft Corp.,

2Title VII provides a statute of

limitations. A charge of discrimination

must be filed within 180 days of the

alleged discrimination or within 300 days

if there is a state compliance agency. 42

U.S.C. 200(e-5(e). California has such an

agency.

26a

613 F.2d 757 (9th Cir. 1980). In applying

this doctrine, the critical inquiry is

whether any present violation exists.

United Air Lines, Inc. v. Evans, 431 U.S.

553, 97 S.Ct. (1977). A plaintiff must be

able to show a present and ongoing viola-

tion of constitutional rights to prevent

claims from being time barred. If defen-

dant practiced a policy of discrimination

over an extended period of time, a court

need only determine whether the plaintiff

was exposed to discrimination during the

limitations period. Williams v. Owens-

Illinois, Inc., 665 F.2d 918 (9th Cir.

1982). In the instant case, the plaintiff

has met this burden. The plaintiff alleg-

es both in her EEOC complaint and in her

pleadings that the District engaged in a

systematic pattern of discrimination to-

ward the plaintiff due to her race and

sex. Though on sick leave, the plaintiff

27a

is still an employee of the District.

Thus any discriminatory system employed by

the District continues to impact the

plaintiff. Furthermore, the plaintiff

produced evidence of the continuing nature

of the alleged discrimination. On June

14, 1988, the plaintiff again unsuccess-

fully applied for the position of in house

dean. Hence, the plaintiff has been ad-

versely affected by the District’s alleged

policy within the limitations period.

Finding that the plaintiff’s claims

are not time barred, the Court must next

address the merits of the plaintiff’s

allegations under 42 U.S.C. sec. 2000e et

seq.

Title VII protects employees against

employment practices which adversely af-

fect an individual’s status as an employ-

ee, because of the individual’s race,

color, religion, sex, or national origin.

28a

42 U.S.C. sec. 2000e-2(a). Title VII in

the relevant part provides: (a) It shall

be unlawful euploynent practice for an

employer

(1) to fail or refuse to hire

or to discharge any individual,

or otherwise to discriminate

against any individual with re-

spect to his compensation,

terms, conditions, or privileg-

es of employment, because of

such individual’s race, color,

religion, sex or national ori-

gin.

(2) to limit, segregate, or

classify his employees or ap-

mlicants for employment in any

way that would deprive any in-

dividual of employment oppor-

tunities or otherwise adversely

affect his status as an employ-

ee, because of such

individual’s race, color, reli-

gion, sex, or national origin.

Title VII precludes- two kinds of

discrimination. When an employer treats

some employees less favorably than others,

the discrimination is labeled "disparate

treatment". Proof of discriminatory mo-

tive is critical, although in some situa-

29a

tions it may be inferred from the mere

fact of difference of treatment. The

Supreme Court has found that disparate

treatment was the most obvious evil Con-

gress had in mind when it enacted Title

VII. International Brotherhood of Team-

sters v. United States, 431 U.S. 324, 97

S.Ct. 1843 2977). The second type of

discrimination concerns claims of dispa-

rate impact. This theory of discrimina-

tion involves employment practices which

are facially neutral in their treatment of

different groups but which in fact fall

more harshly on one group and cannot be

justified by business necessity or some

other legitimate business justification.

Proof of discriminatory motive is not re-

quired under a disparate impact analysis.

Id.

In McDonnell-Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817 1973) ("McDon-

30a

nell-Douglas"), the Supreme Court estab-

jished the basic allocation of burdens and

order of proof in a Title VII case.

First, the plaintiff must demonstrate a

prima facie case of intentional discrimi-

nation by a preponderance of the evidence.

Second, if the plaintiff succeeds, the

burden of production shifts to the defen-

dant to articulate legitimate, non-dis-

criminatory reasons for its decisions.

Third, if the defendant carries this bur-

den, the plaintiff must then establish hat

the reasons offered by the defendant were

simply a pretext for discrimination. Id.,

93 S.Ct. at 1825. While the burden of

proving a prima facie case of disparate

treatment is not onerous, the ultimate

burden of persuading the trier of fact

that a defendant intentionally discrimi-

nated against the plaintiff is at all

times with the plaintiff. Texas Dept. of

31a

Community Affairs v. Burdine, 450 U.S.

248, 253, 101 S.Ct. 1089, 1093 (1981)

("Burdine").

In order to establish a prima facie

case of discriminatory treatment, the

plaintiff must show that she was treated

less favorably than similarly situated

employees. The plaintiff must also show

that the defendant intended to discrimi-

nate. In the context of promotions the

plaintiff must show that after having

rejected the plaintiff’s application for

a promotion, the District continued to

seek applicants with qualifications simi-

lar to the plaintiffs. Watson v. Fort

Worth Bank and Trust, 108 S.Ct. 2777

(1988) ("Watson"). The plaintiff has in

all respects failed. The District has

articulated legitimate, nondiscriminatory

reasons for its actions, and has produced

convincing evidence of these non-discrimi-

32a

natory reasons. Three of the positions to

which the plaintiff aspired were either

not vacant or the plaintiff lacked the

requisite qualifications. As to other

positions or offices the plaintiff has not

carried her burden of showing that the

reasons offered by the District are merely

pretexts for discriminatory decision

making. Further, the plaintiff offers no

evidence beyond conclusory allegations

that the facially neutral selection crite-

ria employed by the District pursuant to

the collective bargaining agreement, has

a discriminatory impact on minorities or

women.

The plaintiff contends that the dis-

trict arbitrarily and intentionally denied

her appointments to pre-administrative

positions because of her race. However,

three of the positions to which the plain-

tiff lays claim were either not vacant

33a

during plaintiff’s tenure of employment,

or she did not actually apply to those

positions. Furthermore, of the positions

to which the plaintiff lays claim, the

plaintiff held one, and did not apply for

another position. The Court addresses

these contentions below.

1. Youth Services Coordinator

The plaintiff claims that the Dis-

trict denied her application for the post

of youth services coordinator while at

Granada. However, while she may well have

been qualified, the post of Youth Service

Coordinator was not vacant during plain-

tiff’s employment at Granada. Joe White

is presently the youth services coordina-

tor at Granada and was prior to the plain-

tiff’s transfer to Granada. The District

stated that since White continued to per-

form satisfactorily it had no reason to

34a

remove him from the position. (Declara-

tion of Anne Falotico, principal of Grana-

Ga, at 7). Since the position was not

vacant, the plaintiff cannot make a prima

facie case of discrimination.

2. Test Coordinator

The test coordinator provides plan-

ning and coordination for the subject

content of various exams. Plaintiff as-

serts that she sought the position in

1986, but the District intentionally kept

her uninformed as to when the meeting to

elect the test coordinator would be held.

A member of the committee finally told her

late in the day that the meeting would be

that day, after class periods ended, since

it was the only time the committee could

all meet. Plaintiff did not attend the

meeting, claiming a previous engagement.

The plaintiff did not remove her name from

35a

the eligibility list, but the committee

appointed John Holodnik, a white male.

The plaintiff has no knowledge of how or

when the other candidates were notified of

the time of the committee meeting. The

plaintiff has no opinion as to whether

Holodnik was better qualified than the

plaintiff to hold the position of test

coordinator. In fact, the plaintiff

states that Holodnik may have more experi-

ence than the plaintiff because he assist-

ed the previous test coordinator, Tom

Griffin. (Deposition of the Plaintiff,

vol. II, at 65-70).

3. Teen Line Liaison Director

The plaintiff contends she estab-

lished the teen line liaison program in

1986. After she established the program

the directorship was given to a white

male. The teen line program is coordinat-

re eee heed cee a gen

36a

ed by Cedar Sinai Hospital and arranges

presentations to students at different

schools on a rotating basis. The only

school position in the program was that of

a contact person for Cedar Sinai Hospital

at Granada. The principal of Granada

appointed the plaintiff to that office in

1986. When the plaintiff went on leave in

1987, the principal appointed someone else

to fill the position. Thus the plaintiff

held the only available position while at

Granada and present on the job. (Declara-

tion of Falotico, at 11).

4. UTLA Council

Plaintiff contends that the District

refused her appointment to the UTLA Coun-

cil. However, no position by this name

exists or could be identified by the

plaintiff. (Deposition of Plaintiff, Vol

II, at 7. See also, Declaration of Falo-

37a

tico, at 6).

5. English Department Chairperson and

School Site Council

The plaintiff asserts that the Dis-

trict denied her appointments to be Chair-

person of the English Department and rep-

resentative to School Site Council. Both

these offices were filled by popular elec-

tion. The plaintiff contends that the

voting method employed by the District

discriminated against non whites.

The School Site Council is a decision

making body made up by parents, teachers,

the principal, and other school site per-

sonnel for the purpose of school improve-

ment. Participants volunteer their time.

School Site Councils adopt their own by-

laws, including size and membership of the

Council. Councils are established at

schools that opted to participate in the

38a

School Improvement Program. A School Site

Council did not exist at Polytechnic.

(Declaration of Lupe Sonnie, principal of

Polytechnic from 1981 to 1983, at 4). A

School Site Council did exist at Granada

and the positions were filled by popular

election. At Granada, the faculty elects

five teachers to the School Site Council

every year. The plaintiff does not state

in any of her filings what years she ran

for a position on the School Site Council.

Furthermore, she makes no showing that she

was personaliy discriminated against in

running for the position. Finally the

plaintiff makes no showing that minorities

or women as a class were not elected to

the School Site Council, or that the elec-

tion process was tainted in any way.

English Department Chairperson is

also a popularly elected office. This

method of selection was determined by the

39a

collective bargaining agreement between

UTLA and the District. Plaintiff has

contends that due to the racial makeup of

the individual schools, there were only

two black English teachers among a faculty

of fifteen at Granada, black teachers

would have no chance to be elected.

To make a prima facie case under

Title VII that a racially neutral policy

or practice such as this has an impermis-

sible discriminatory effect, the plaintiff

must establish that the practice results

in a disproportionate under representation

of protected minorities. To establish

disparate impact the plaintiff must show

that there are more than statistical dis-

parities in- the employer’s work force.

The plaintiff must identify specific em-

ployment practices responsible for the

disparities, and prove causation. Watson

v. Fort Worth Bank and Trust, supra at

(Re OA “

40a

2786. The plaintiff fails in both re-

spects.

The plaintiff presented no evidence

indicating that only whites or men were

popularly elected or that non whites or

women were systematically not elected to,

or even discouraged from applying for,

these positions. The plaintiff merely

identified a specific facially neutral

practice and argued that it had a dispa-

rate impact on non whites. She offered no

evidence of illegal disparities between

the number of minorities and non minori-

ties in the District’s work force as a

whole, nor in the elected positions.

Thus, the plaintiff failed to make her

prima facie case as to disparate impact

under Title VII.

4la

6. Honors Classes

The plaintiff also claims that the

District did not assign her any honors

classes to teach because of her race. The

plaintiff was assigned and taught advanced

courses at Polytechnic during the 1984-85

school year. The principal of Granada

states that the plaintiff also had the op-

portunity to teach honors courses while at

Granada, as did all teachers. (Declara-

tion of Philip Nassief, at 4; Declaration

of Sonnie, at 4; and Declaration of

Falotico, at 11). The plaintiff was never

actually assigned any honors classes at

Granada, though she indicated her desire

to teach them. She contends that white

teachers with less experience were as-

Signed honors classes. The plaintiff

named five teachers in her deposition, but

her opinion that those teachers were less

experienced than she is based only on

‘

ee]

42a

casual conversations. Since the plaintiff

provides no evidence that less qualified

whites were appointed to honors classes in

preference to the plaintiff, she fails to

establish a prima facie case of disparate

treatment under Title VII.

7. Mentor Teacher

The plaintiff further contends that

she was denied the position of mentor

teacher during the period 1985-86 in favor

of a white male rehired after retirement.

No such position exists, however. The

plaintiff appears to be confusing two

positions. The retired mentor position is

a separate program from the mentor teacher

progran. The retired mentor program is

staffed by retired teachers to help new

teachers for a maximum of 100 hours per

semester. The position was created by

specially designated funds from the Dis-

43a

trict’s Priority Staffing program specifi-

cally to hire retired teachers. The

plaintiff was not retired teacher. She

was not eligible for the position, even if

she did in fact apply. The principal of

Granada hired Don Schulz for the years

1985-86 and Mrs. Fishchli? for the years

1986-90, both retired, to fill the posi-

tion. (Declaration of Falotico, at 8-9).

Mentor teachers, on the other hand, are

selected on a District wide basis by a

Committee under Article XXVI of the col-

lective bargaining agreement between the

District and UTLA. Plaintiff states she

applied to the principal for the position,

but never applied at the District level,

where the appointment would occur. With-

out having actually applied to the correct

authority for the position, the plaintiff

3Neither party provided the Court

with Mrs. Fischili’s first name.

ee ee? Oe ee ee aS ae ee ee

44a

fails to make a prima facie case under

Title VII.

8. Peer Counselling Director

Plaintiff claims that she was denied

the position of peer counselling director.

She claims she applied for the office of

director in 1986. The peer counselling

program is a group of student counsellors

who seek to aid fellow students. A staff

trainer must possess a pupil personnel

credential. The principal appointed Dale

Alpert who possessed such a credential.

The plaintiff did not posses a credential.

The other position associated with the

peer counselling program is the position

of teacher of the guidance class. The

principal assigned Allan Kakassy to teach

the guidance class because he showed in-

tense interest and desire to be involved

in the program. The principal informed

the plaintiff that if she wanted to be

45a

involved she could volunteer to assist

Kakassy. (Declaration of Falotico, at 8).

The plaintiff did not volunteer.

In making a claim under Title VII,

the burden of proof is always on the

plaintiff. Burdine, supra. After the

plaintiff has alleged intentional discrim-

ination, the defendant may rebut such

evidence by articulating non discriminato-

ry reasons for its decision. If the de-

fendant carries this burden the plaintiff

must establish that the reasons offered by

the defendant are a pretext for discrimi-

nation. McDonnell-Douglas, supra. In the

instant case, the District appointed

Alpert because of his particular creden-

tial. © The District appointed Kakassy

because of his intense interest in the

progran. The plaintiff, on the other

hand, provides the Court with no evidence

rebutting the District’s professed nondis-

DE ee PSR epee

46a

criminatory motives for assigning both

Kakassy and Alpert to the available posi-

tions with the peer counselling program.

Mere allegations or denials of the Dis-

trict’s evidence do not create a prima

facie case or genuine issues of fact.

Mitchel v. General Electric Co., supra.

9. Schoo ansfers

Teacher initiated transfers are gov-

erned by the collective bargaining agree-

ment between the District and UTLA. The

District offers at least six kinds of

transfer: voluntary transfer, general

transfer, continuous service transfer,

transfer to a magnet school, transfer to

a year round school, and transfer to a

school participating in the urban class-

47a

room teacher program ("UCTP") .4

The plaintiff claims that the Dis-

trict denied her applications to transfer

4since 1976, the Los Angeles School

District has implemented a Teacher Staff-

ing Integration Plan ("Plan") by order of

the Office of Civil Rights. This plan

establishes a teacher staff ratio based on

the percentage of combined teacher minori-

ties District wide. District schools must

be within 15% of this annual ratio figure

or are determined to be out of compliance.

The district utilizes this ratio as guide-

line for school staffing. Through volun-

tary transfers of teachers schools seek to

address ethnic imbalances. (Declaration

Roberta Morris, Specialist in Teacher

Integration Unit). The Third Circuit up-

held this type of Plan in Kromnick v.

School District of Philadelphia, 739 F.2d

894 (3rd Cir. 1984). The Third Circuit

reviewed a voluntary policy of staff inte-

gration and held that although an overtly

race conscious classification system might

ordinarily signify a violation per se, ap-

plying a per se analysis to voluntary

policies of staff integration designed to

further the education of students of de

facto segregated public school systems

would be inconsistent with the intent of

Congress underlying Title VII. Since this

District employs alternative methods of

transfer which are not governed by race

conscious criteria for which the plaintiff

would have been eligible, the Court does

not reach the question of whether the race

conscious classification is permissible.

48a

schools due to her race and sex. She

contends that the District denied her

repeated requests for school transfers to

"schools within minority areas wherein she

could obtain the requisite administrative

qualifications." Plaintiff states that

she repeatedly applied for a voluntary

transfer and was repeatedly refused due to

her race.

Plaintiff appears only to have re-

quested voluntary and general transfers

during the period of 1983-85. The evi-

dence indicates that the plaintiff at no

time requested authorization to transfer

to any other particular school. The prin-

Cipal who supervised plaintiff from 1983

to 1985 authorized plaintiff’s voluntary

transfer to Granada after the plaintiff

had made various requests. (Declaration

of Sonnie, at 5, and Memo to Pete Martinez

from Albert Irwin, June 3, 1985, Declara-

49a

tion of Roberta Morris, at 3, stating that

the district records indicate that for the

period 1984-85, plaintiff applied for a

general transfer in December 1984, a vol-

untary teacher integration program trans-

fer, April 1985, and a general trans-

fer/general exchange program transfer in

April 1985. Records of transfers prior to

that year have been destroyed as part of

a regularly scheduled destruction pro-

cess.) The plaintiff testified in her

deposition that she never applied for a

school transfer after her July, 1985

transfer to Granada. (Deposition of

Plaintiff, Vol. III, at 48; See also

Declaration of Falotico, at 9).

The- District provided evidence to

rebut the plaintiff’s evidence that it de-

ployed its transfer policy in a discrim-

inatory manner. In 1985 the District

granted the plaintiff’s general transfer

BA RE Ae yrs:

50a

request. Evaluation by a Specialist in

the Teacher Integration Unit for the Dis-

trict indicates that the plaintiff would

have been eligible for various transfers

other than those actually requested by the

plaintiff during the period 1980-1990,

however, the plaintiff failed to apply for

any of these transfers. (Declaration of

Morris, at 4). The plaintiff provided no

evidence to show that non minorities were

able to transfer more readily than the

plaintiff, or that other types of trans-

fers were unavailable to the plaintiff.

Accordingly, the plaintiff fails to make

a prima facie showing that she was treated

less favorably than others due to her ©

race.

10. Summary

The evidence produced in this motion

establishes that the plaintiff was given

51a

opportunities to transfer between schools

and to teach honors classes. Plaintiff

has not shown that she or people of her

race or sex were treated less favorably

than others or that denial of administra-

tive positions to her was in any way based

on race. With two exceptions, all the

positions that plaintiff claims were de-

nied to her because of a policy of system-

atic discrimination were either not avail-

able during the periods the plaintiff was

available to fill them, or the plaintiff

actually held the position. She claims

that the District’s policy of maintaining

racial parity among the schools’ staff

resulted in a situation where minority

candidates were not elected to popularly

elected offices. However, the plaintiff

offered no evidence that other minority

candidates were not elected. The plain-

tiff fails to meet her burden under the

52a

standard for summary judgment, by rebut-

ting the District’s showing of legitimate,

nondiscriminatory motives for its actions.

Finally, the plaintiff argues that

the denial of these preadministrative

positions prevented her from gaining the

experience necessary to pass the adminis-

trative portion of the test for principal,

assistant principal, or dean, secondary.

The plaintiff claims that denial of pread-

ministrative positions to minorities and

women is part of a district-wide policy to

prevent women and minorities from attain-

ing the positions of principal assistant

principal and dean, secondary (now called

assistant principal, student services).

A review of the evidence presented, howev-

er, indicates that the plaintiff’s con-

tentions lack merit.

At the time the plaintiff took the

promotional examinations, in 1981 and

53a

1985, the promotional examination was a

four step process. Applications were

identified by number, so that during the

promotional selection process there is no

indication of the applicants race, sex, or

age. Applicants were initially screened

for education, experience, and credential

qualification requirements. Qualified

applicants then proceeded to the Training

and Experience evaluation portion, where

a committee reviewed the applicants skills

in organization and management, communica-

tion, professional skills, human rela-

tions, academic preparation and profes-

sional experience. Successful candidates

were then interviewed by the promotion

committee. Qualified candidates made up

the eligibility list. Hirings were made

from this list as the need arose.

The plaintiff took the promotional

examination for dean, secondary in 1985.

54a

in that year, 263 applicants were initial-

ly screened. Of the applicants proceeding

to the Training and Experience evaluation

25.6% were black and 56.2% were female.

Of the applicants proceeding to an inter-

view, 20% were black and 49.2% were fe-

male. Of the applicants on the final list

of individuals eligible for promotion,

42.9% were female.°

The plaintiff took the promotional

examination for assistant principal in

1981. In that year, 653 applicants were

initially screened. Of the applicants

proceeding to the Training and Experience

“The final statistics were compiled

pursuant to a consent decree entered into

by the District in 1981. The consent

decree requires the District to obtain on

each administrative promotional exam a

qualified applicant pool containing at

least 40% female applicants. If the ap-

Pplicant pool does not contain 40%, the

District reinitiates the promotional exam-

ination in an effort to reach that figure.

Szewiola, et al. v. LAUSD, Case No. CV 80-

3348 WMB (C.D. Ca. 1981).

55a

evaluation 35.1% were black and 54.6% were

female. Of the applicants proceeding to

the interview, 25.9% were black, and 49.6%

were female. Of the applicants on the

final list of individuals eligible for

promotion, 41.4% were female. ®

The District did not provide the

Court with statistics for the number of

black applicants who reached the final

list of individuals eligible for promo-

tion. This omission is not fatal. The

plaintiff contends that she was denied the

requisite preadministrative experience to

pass the promotional exam. This lack of

experience would screen the plaintiff out

between the first stage and the Training

and Experience stage of. the promotional

examination. At this stage of the screen-

ing process, the District provided statis-

6See Footnote 3, supra.

56a

tics which indicate that the District’s

facially neutral employment practices do

not fall more harshly on black or female

applicants. Thus, the District effective-

ly rebutted the plaintiff’s claims that

its policy of promotion disparately im-

pacted either minorities or women, at

least through the interview stage of the

evaluation process.

Hence, even reading the evidence in

the light most favorable to the nonmoving

party, and reading all her filings with

the liberality due a pro se litigant, the

plaintiff failed to establish a prima

facie case of discrimination under Title

VII. The plaintiff has only offered con-

Clusory denials and unsubstantiated alle-

gations in response to the District’s

Showing of non discriminatory reasons for

its actions. The ultimate burden of per-

Suasion is with the plaintiff and she

57a

failed to meet that burden. The employ-

er’s policy of leaving promotion decisions

to the unchecked discretion of lower level

supervisors does not, by itself, give rise

to any inference of discriminatory conduct

contrary to Title VII. Watson, supra at

2786. Accordingly, the Court finds that

there is no evidence upon which a jury

could reasonably find for the plaintiff,

Anderson, supra, and hereby grants defen-

dant’s motion for summary judgment.

SECTION 1983 CLAIM

Section 1983 provides that, "every

person who, under color of any statute,

...custom, or usage,...subjects, or causes

to be subjected, any citizen of the United

States...to the deprivation of any rights,

privileges or immunities secured by the

Constitution and laws, shall be liable to

the party in an action at law..." 42

;

‘

}

58a

U.S.C. sec. 1983. Because section 1983

and 1981 do not contain a statute of limi-

tations, federal courts apply the most

analogous state statute of limitations.

Wilson v. Garcia, 471, U.S. 261, 105 S.Ct.

1938 (1985); Goodman v. Lukens Steel Co.,

482 U.S. 656, 107 S.Ct. 2617 (1987). In

California the appropriate analogous stat-

ute of limitations is one year. Cal.c.Civ.

P. sec. 340; Del Percio v. Thornsley, 877

F.2d 785 (9th Cir. 1989).

The District argues that the plain-

tiff is barred by the statute of limita-

tions. The District’s argument, however,

lacks merit. The plaintiff applied for

the position of in house dean June 14,

1989, within one year of filing the con-

Plaint. Consequently, the Court will

consider the plaintiff’s allegations of

discrimination under section 1983.

To establish a prima facie case of a

Hic 59a

violation of section 1983, the plaintiff

must allege that she has been deprived of

a constitutional right under color of

state law. The plaintiff contends that

the District deprived her of constitution-

al due process. To determine whether the

plaintiff has a constitutionally protected

property interest, the Court must look to

state law. Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 105 S.Ct. 1487

(1985). California law clearly establish-

es that there in no property interest in

a school administrative position. Educa-

tion Code sections 44893, 44894, and 44897

provide that the only permanent statutory

position the plaintiff might have within

the District is that of a classroom teach-

er. Tucker v. Roach, 163 Cal.App.3d 1051,

210 Cal. Rptr. 295 (1985), Grant v. Adams,

69 Cal.App.3d 127, 132, 137 Cal. Rptr.

834, (1977), Barthuli v. Board of Trust-

60a

ees, 19 Cal.3d 717, 722, 139 Cal. Rptr.

627 (1977). Since there is not a property

interest attached to administrative posi-

tions there cannot be a property interest

attached to preadministrative positions.

Nor has the District violated any liberty

interest of the plaintiff by its alleged

actions. A liberty interest arises when

the government dismisses an individual for

reasons that seriously damage one’s stand-

ing in the community. "To implicate con-

stitutional liberty interests, however,

the reasons for dismissal must be suffi-

ciently serious to ‘stigmatize’ or other-

wise burden the individual so that he is

not able to take advantage of other em-

Ployment opportunities." Loehr v. Ventura

County Community College District, 743

F.2d 1310, 1317 (9th Cir. 1984).

The Supreme Court held in Board of

Regents v. Roth, 408 U.S. 564, 92 S.Ct.

61a

2701 (1972), that a teacher subject to

dismissal at the will of his employer did

not have a liberty interest in his posi-

tion, noting that a dismissal without

associated charges, such as dishonesty or

immorality, did not so stigmatize an indi-

vidual that a liberty interest was impli-

cated. In this case, the plaintiff re-

tains her position as classroom teacher,

Denying her the position of in house dean

was not stigmatizing, nor publicized ina

way that would affect her ability to re-

tain other appointments.

Absent the deprivation of a constitu-

tional right, the plaintiff cannot make a

prima facie case of discrimination under

section 1983. Accordingly, the Court

grants the District summary judgment as to

the section 1983 claim.

CTIO 9

ERS a

62a

The governing statute of limitations

for a section 1981 claim is one year.

Wilson v. Garcia, supra; Cal.C.Civ.P sec.

340. The plaintiff claims that she ap-

plied for the positions of in house dean

and assistant principal within one year of

filing the complaint. Since the plaintiff

later admitted that she had not, in fact,

applied for the position of assistant

principal, the Court will only consider

the contentions pertaining to the position

of in house dean. (Deposition of Plain-

Cee, Wel. Ii, at 203).

Section 1981 applies to the making

and enforcing of contracts. To state a

Claim of discrimination under section

1981, the plaintiff must show that the

Promotion she was denied rises to the

level of an opportunity for a new and dis-

tinct relationship between the District

and herself. The failure to promote is

63a

only actionable under section 1981 if the

nature of the change in position was such

that it involved the opportunity to enter

into a new contract with the employer.

Patterson Vv. McLean Credit Union,

__U.S.__, 109 S.Ct. 2363, 2376-77 (1990).

In the present case, the position of

in house dean does not provide an opportu-

nity for a new and distinct relation be-

tween the plaintiff and the District. The

pre-administrative position, by its very

nature, does not afford the opportunity to

enter into a new contract with the Dis-

trict, and, therefore, does not give rise

to a claim under section 1981. Hence, the

Court grants summary judgment to the Dis-

trict on the plaintiff’s section 1981

claim.

According to the foregoing analysis,

the Court finds that no evidence exists

upon which a jury could reasonably find

64a

for the plaintiff. Consequently,

Court GRANTS the District’s motion

summary judgment as to all counts.

IT IS SO ORDERED.

Dated: Feb 4 1991

JOHN G. DAVIES

United States District Judge

the

for

65a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed September 12, 1989

ORDER DISMISSING PLAINTIFF’S

FIRST AMENDED COMPLAINT

On May 30, 1989, plaintiff Braswell

filed a first amended complaint for damag-

es and an injunction based on alleged em-

ployment discrimination in violation of

the Civil Rights Act of 1964, as amended,

42 U.S.C. Section 1981 and 42 U.S.C. Sec.

1983. Plaintiff also stated pendent

66a

claims for defamation and intentional

infliction of emotional distress.

On July 19, 1989, defendant Los An-

geles Unified School District, pursuant to

F.R.Civ.P. 12(b)(6), moved to dismiss

plaintiff’s first amended complaint on the

grounds that the complaint failed to state

a cause of action upon which relief could

be granted. Plaintiff’s opposition to the

defendant’s motion concedes that the first

amended complaint contains some of the de-

fects raised by the motion. Plaintiff’s

opposition includes a proposed second

amended complaint; plaintiff requests

leave to file the second amended complaint

pursuant to F.R.Civ.P. 15(a).

The Court hereby GRANTS without prej-

udice defendant’s motion to dismiss

Plaintiff’s first amended complaint.

Plaintiff is hereby granted leave to file

a second amended complaint within twenty

67a

days. Therefore, plaintiff’s motion for

leave to file a second amended complaint,

set for hearing on October 2, is vacated.

As a result of this Order,

defendant’s motion to dismiss, set for

hearing on September 11, 1989, is taken

off calendar and the parties need not

appear.

IT IS SO ORDERED.

Dated: September 12, 1989

JOHN G. DAVIES

United States District Judge

68a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed November 6, 1990

ORDER

On November 5, 1990, the Court was

prepared to hear three motions in this

case: Plaintiff’s motion to continue

summary judgment, Defendant’s summary

judgment motion, and Plaintiff’s motion to

serve additional interrogatories. Given

that the Plaintiff continues to appear pro

se in this matter, the Court believes that

69a

a continuance of the summary judgment

motion is appropriate.

Defendant’s summary judgment motion

was originally filed on July 23, 1990 and

set for hearing on October 1, 1990. Since

that time, the Court has granted numerous

continuances to the Plaintiff within which

to file opposition papers. In large part,

the continuances were allowed due to

Plaintiff’s inability to retain new coun-

sel following the withdrawal of her prior

attorney in August, 1990.

Finally, on October 31, 1990, Plain-

tiff filed a belated opposition to the

motion, but filed to attach the relevant

exhibits. Accordingly, the Court HEREBY

GRANTS a three-week continuance to the

plaintiff. The hearing on Defendant’s

summary judgment motion is thus continued

until Monday, November 26, 1990 at 2:30

p.m. In addition, Plaintiff has the op-

70a

portunity to file further opposition pa-

pers to the summary judgment motion until

Friday, November 23, 1990 at noon.

Lastly, the Court HEREBY DENIES

Plaintiff’s motion to serve additional

interrogatories.

| IT IS SO ORDERED.

Dated: November 6, 1990

. JOHN G. DAVIES

JOHN G. DAVIES

United States District Judge

71a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed February 28, 1991

ORDER

On February 19, 1991, plaintiff

lodged a request for a court appointed

attorney, for clarification of the Court’s

order granting the defendant’s motion for

summary. judgment, and for information

regarding procedure for instituting an

appeal. As plaintiff is pro se, the Court

will respond to her inquiries.

72a

The Court granted the defendant’s

motion for summary judgment as to all

counts February 7, 1991. The result of

which was a judgment in favor of the de-

fendant Los Angeles Unified School Dis-

trict and against the plaintiff, Ellen

Braswell. Granting of that motion ends

the plaintiff’s case in this Court. The

plaintiff may appeal that ruling to the

United States Circuit Court of Appeals,

Ninth Circuit.

In a civil case the notice of appeal

must be filed with the clerk of the dis-

trict court within thirty (30) days after

the entry of the judgment or order ap-

pealed from. The order granting

defendant’s motion for summary judgment

was entered February 7, 1991. Thus, the

plaintiff has thirty days from that date

in which to file a notice of appeal. See,

Federal Rules of Appellate Procedure, Rule

73a

4(a) and Rule 3(c) for the content of the

notice of appeal.

Again, the Court DENIES the

plaintiff’s request for court appointed

counsel. The plaintiff has failed to meet

the factors set out by the Ninth Circuit

in Bradshaw v. Zoological Soc. of San

Diego, 662 F.2d 1301, 1318 (9th Cir.

1981).

IT IS SO ORDERED.

Dated: February 22, 1991

JOHN G. DAVIES

United States District Judge

74a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed November 26, 1990

ORDER DENYING PLAINTIFF’S

EX PARTE APPLICATION

On November 13, 1990, Plaintiff Ellen

Braswell filed an Ex parte Application

making the three following requests of. the

Court: 1) to continue the hearing on

defendant’s motion for summary judgment,

2) to allow plaintiff to propound addi-

tional interrogatories to the defendant,

75a

and 3) to appoint an attorney to represent

plaintiff. Having considered the argu-

ments presented, the Court HEREBY DENIES

plaintiff’s application in its entirety.

Plaintiff originally filed her com-

plaint on March 14, 1990. At a March 26,

1990 status conference, the Court set the

following schedule:

Discovery Cut-Off

August 20, 1990

Pre-Trial Conference

August 27, 1990

Trial

September 4, 1990

Defendant’s summary judgment motion

was filed on July 23, 1990 and after

granting plaintiff’ request for a continu-

ance, the Court set the hearing for Octo-

ber 1, 1990. On October 1, 1990, the

Court vacated the trial date and set the

hearing on the defendant’s motion for

76a

summary judgment for November 5, 1990.

Most recently, on November 5, 1990, the

Court granted a further and final three-

week continuance to allow plaintiff to

file supplemental opposition papers.

This chronology illustrates the

Court’s patience with the plaintiff. The

Court has granted numerous requests by the

plaintiff for continuances of the

defendant’s motion for summary judgment

because the Court is mindful that plain-

tiff appears in this matter pro se.

Plaintiff has been extended latitude in

this matter that would not have been ac-

corded a lawyer.

Nonetheless, to reiterate, the hear-

ing on defendant’s summary judgment motion

is now scheduled for Monday, November 26,

1990 at 2:30 p.m. The Court has allowed

Plaintiff to file opposition papers by or

before noon, Friday, November 23, 1990.

77a

Accordingly, plaintiff’s requests to con-

tinue the summary judgment hearing an to

serve additional interrogatories are de-

nied.

Further, the Court again DENIES

plaintiff’s application for court-appoint-

ed counsel. 42 U.S.C. Sec. 2000e-5(f)

states:

upon application by the com-

plainant and in such circun-

stances as the court may deem

just, the court may appoint an

attorney for such complainant

and amy authorize the commence-

ment of the action without the

payment of fees, costs, or se-

curity.

The Ninth Circuit has articulated three

factors a district court should consider

in exercising its discretion in ruling on

requests for counsel under Title VII.

They are, (1) the plaintiff’s financial

resources, (2) the efforts made by the

plaintiff to secure counsel, and (3)

whether the plaintiff’s claim has merit.

ee yn See

78a

Bradshaw v. Zoological Soc. of San Diego,

662 F.2d 1301, 1318 (9th Cir. 1981).

The plaintiff has alleged in her

request that she cannot afford counsel and

that she has made a diligent effort to

secure new counsel after her attorney

withdrew from representation on or about

August 6, 1990. However, in reviewing the

pleadings and the evidence presented by

the defendant in support of its motion for

summary judgment, and the evidence pre-

sented thus far by the plaintiff in oppo-

sition to the motion for summary judgment,

the Court determines that plaintiff’s

claim lacks significant merit. Thus, the

motion to appoint counsel is DENIED.

IT IS SO ORDERED.

Dated: November 26, 1990

JOHN G. DAVIES

United States District Judge

79a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

[Filed October 1, 1990]

CIVIL MINUTES--GENERAL

PRESENT: Hon. John G. Davies (Judge), Jim

Holmes (Deputy Clerk), Beverly

Casares (Court Reporter)

PROCEEDINGS: Plaintiff’s Request for

Appointment of Counsel.

Ruling: Motion denied.

Discussion: The Court has doubts about

the legal merits of plaintiff’s claims.

80a

This is sufficient to deny motion. See

Court’s order re summary judgment.

8la

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed October 1, 1990

CIVIL MINUTES--GENERAL

PRESENT: Hon. John G. Davies (Judge), Jim

Holmes (Deputy Clerk), Beverly

Casares (Court Reporter)

PROCEEDINGS: DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT.

Ruling: The motion is continued to

Monday, November 5, 1990, at 2:30

p.m. The trial date is vacated.

82a

Discussion: The plaintiff now appears pro

se. She has been represented by counsel.

Counsel withdrew in early August, leaving

plaintiff without assistance to oppose

this motion. The Court has reviewed the

motion and considers it to have substan-

tial merit. So much so that the Court

will not appoint counsel for plaintiff.

The motion is continued five weeks to

allow plaintiff to retain counsel.

Plaintiffmayfilefurther-opposition._|

to the motion on or before October 3s

1990.

In the event plaintiff continues pro

se, she is advised to file further opposi-

tion papers. In those papers she should

produce evidence by way of a declaration

by herself, and/or by others, in which the

factual basis for each of her claims is

set forth. The Court notes that her oppo-

sition filed on September 24, 1990, sets

83a

forth no facts that relate to her claims.

To successfully oppose this motion, the

plaintiff must offer facts which support

her contentions.

y aati . a

PE iat He i hoger Node

84a

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 91-55365

D.C. No. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff-Appellant,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant-Appellee.

ORDER

[Regarding Petition for Rehearing

With Suggestion for Rehearing En Banc]

(Order of the Court of Appeals

Denying Petition for Rehearing)

(Filed May 4, 1993}

es ee AAS LL RT TI,

85a

Before: PREGERSON, LEAVY, and TROTT,

Circuit Judges.

The panel has voted to deny appel-

lant’s petition for rehearing and to re-

ject the suggestion for rehearing en banc.

The full court has been advised of

the suggestion for rehearing en banc and

no active judge has requested a vote on

whether to rehear the matter en banc.

Fed. R. App. P. 35.

The petition for rehearing is denied

and the suggestion for rehearing en banc

is rejected.

Stamped by: CATHY A. CATTERSON

Cathy A. Catterson

Clerk, U.S. Court of Appeals

86a

APPENDIX

A a wh ai lat

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 91-55365

D.C. No. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff-Appellant,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States

District Court for the

Central District of California

) John G. Davies, District Judge, Presiding

87a

Submitted February 4, 1993

Pasadena, California

Filed February 11, 1993

MEMORANDUM **

Before: PREGERSON, LEAVY, and TROTT,

Circuit Judges.

On January 8, 1990, the appellant, a

black school teacher, filed a third amend-

ed complaint against the Los Angeles Uni-

fied School District ("school district"),

alleging claims of race and sex discrimi-

nation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. Secs.

“The panel unanimously finds this

case suitable for submission on the record

and briefs and without oral argument.

Fed. R. App. P. 34(a) and Ninth Circuit

Rule 34-4.

““This disposition is not appropriate

for publication and may not be cited to or

by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3

88a

2000e et seq., and 42 U.S.C. Secs. 1981

and 1983. The school district moved for

summary judgment. The appellant’s counsel

withdrew shortly before the hearing on the

motion, filing a declaration with the

district court as to why she withdrew.

The appellant proceeded pro se.

Because of the appellant’s pro se

status, the court granted numerous contin-

uances and repeatedly informed the appel-

lant in writing and orally prior to the

hearing on the motion for summary judgment

that the materials she had provided thus

far were deficient to show that genuine

issues of fact remained for trial.

The issues on appeal are: (1) wheth-

er the district court properly applied

Federal Rule of Civil Procedure 56(e); (2)

whether the court abused its discretion in

denying the appellant a court-appointed

attorney; (3) whether the district court’s

89a

denial of appellant’ request of additional

discovery was an abuse of discretion; and

(4) whether the district court’s ruling

that appellant could not amend her third

amended complaint was an abuse of discre-

tion.

1. Whether the District Court Erred in Its

Application of Rule 56(e)

The appellant argues that the dis-

trict court was obligated to examine the

entire record to determine if there was a

genuine issue of material fact.

We have held that a court’s duty to

sift through the record to determine if

there are genuine issues of fact (espe-

cially where there is no reference to

pertinent exhibits) is limited by the pro-

mulgation of a local rule. Nilsson, Rob-

bins, Dalgarn, Berliner, Carson & Wurst v.

: uisi ro » 854 F.2d 1538, 1545

(9th Cir. 1988) (per curiam) ("Hydrolec").

90a

Hydrolec, like this case, was filed in the

Central District of California, where

Local Rules 7.14.2 and 7.14.3 govern the

requirements for plaintiffs and defendants

in summary judgment motions. Under these

local rules, there is "an affirmative

burden to list genuine issues with appro-

priate record citations in order to with-

stand the motion for Summary judgment."

Id. Consequently, we held that

when a local rule such as

United States District court-

Central District of California

Rule 7.14.3 has been promul-

gated, it serves as adequate

notice to nonmoving parties

that if a genuine issue exists

for trial, they must identify

that issue and support it with

evidentiary materials, without

the assistance of the district

court judge. :

id. (emphasis added). In other words,

"the law of this circuit...recognizes that

a district court is under no obligation to

mine the full record for issues of triable

9la

fact." Schneider v. TRW, Inc., 938 F.2d

986, 990 n.2 (9th Cir. 1991) (citing Hy-

drolec, 854 F.2d at 1545).

Therefore, neither the district court

nor this court need sift through the re-

cord, particularly where appellant was

warned that her opposition was deficient

for failure to contain facts. See Hydro-

lec, 854 F.2d at 1545 (trial court warns

party that its opposition was insuffi-

cient). Despite every latitude the court

provided, the appellant followed neither

the local rules, of which she was aware

(see ER 1 at 214), nor the court’s specif-

ic instructions to produce facts.

Where the district court gave the

appellant every benefit, the latitude to

ignore formalities on the part of a pro se

plaintiff does not extend to a complete

failure to comply with the rules and the

court’s instructions. We affirm the dis-

92a

trict court on the sole ground that Local

Rule 17.14.3 "serves as an adequate notice

to nonmoving parties that if a genuine

issue exists for trial, they must identify

that issue and support it with evidentiary

materials, without the assistance of the

district court judge." Hydrolec, 854 F.2d

at 1545.1

2. Whether the District Court Erred in

Denying the Request for Additional Discov-

ery

The appellant argues that she could

not obtain important evidence for her case

because the court denied her request for

additional discovery. A district court’s

discovery rulings are reviewed for an

lsimply by reading the defendant’s

motion, which identifies precisely the

material facts and gives record citation,

this articulate, educated appellant should

have been able to identify disputed facts

and provide references to the record, if

any.

93a

abuse of discretion. United States v.

Mandel, 914 F.2d 1215, 1219 (9th Cir.

1990).

The appellant filed a motion to

served additional interrogatories on No-

vember 13, 1990, only two weeks before the

rescheduled hearing on summary judgment on

November 26, 1990. She did not file an

affidavit to show that she could not pres-

ent facts essential to justify her opposi-

tion as required by Rule 56(f). In view

of the fact that there already had been a

substantial passage of time and numerous

continuances in deference to the

appellant’s status, we conclude that the

district court did not abuse its discre-

tion in denying additional interrogato-

ries.

94a

3. Whether the District Court’s Denial of

the Request for a Court-Appointed Attorney

Was_an Abuse of Discretion

The appellant argues that the dis-

trict court should have appointed her

counsel. A district court’s decision on

a motion for appointment of counsel is re-

viewed for an abuse of discretion. Brad-

shaw _v. Zoological Soc. of San Diego, 662

F.2d 1301, 1318 (9th Cir. 1981).

There are three factors a district

court must weigh in its decision whether

to appoint counsel: (1) the plaintiff’s

ability to pay; (2) the efforts plaintiff

makes to secure counsel; and (3) whether

the claim has merit. Bradshaw, 662 F.2d

at 1318. The district court recognized

that plaintiff alleged she could not af-

ford counsel and that she had made dili-

gent efforts to find a substitute counsel.

However, the court decided that, in the

95a

face of the defendant’s motion for summary

judgment and the evidence presented thus

far in opposition to it, the appellant’s

claim lacked merit. We affirm the dis-

trict court’s ruling.?

4. Whether the District Court Erred in

Denying Leave to Amend the Third Amended

Complaint

The appellant argues that she wished

to amend her third amended complaint to

reinstate the claims of age discrimina-

tion, defamation, intentional infliction

of emotional distress, and retaliation,

“This court has held that an EEOC

determination of "reasonable cause" is

ordinarily sufficient to show a plain-

tiff’s case has merit. Bradshaw, 662 F.2d

at 1319-20. However, Bradshaw did not

involve a summary judgment motion. Rather,

it involved a reversal of a summary judg-

ment motion on a Title VII and section

1983 action and a remand for further pro-

ceedings. Here, where appellant requested

counsel when faced with a summary judgment

motion, the question of merit is different

from whether the pleadings are adequate to

support a clain.

96a

which were first alleged in the first

amended complaint. The claims were

dropped from the second and third amended

complaints by appellant’s attorney after

the court dismissed the first amended

complaint for failure to state a claim

under Rule 12(b) (6).

The denial of leave to amend after a

responsive pleading has been filed is

reviewed for an abuse of discretion.

Texaco, Inc. v. Ponsoldt, 939 F.2d 794,

798 (9th Cir. 1991).

The Supreme Court allows dismissal of

a pro se complaint for failure to state a

Claim only where "it appears beyond doubt

that the plaintiff can prove no set of

facts in support of his claim which would

entitle him to relief." Haines v. Kerner,

404 U.S. 519, 520-21 (1972); Rizzo v.

Dawson, 778 F.2d 527, 529-30 (Stn. Cir.

1985). The district court had ruled early

97a

in the case that the appeliant could prove

no set of facts in support of age discrim-

ination, defamation, intentional inflic-

tion of emotional distress, and retalia-

tion. It did not abuse its discretion,

therefore, to dismiss a motion to rein-

state the same claims.

AFFIRMED.

Stamped by: Cathy A. Catterson

Cathy A. Catterson

Clerk, U.S. Court of Appeals

98a

UNITED STATES} DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Filed February 4, 1991

Entered February 7, 1991

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

On November 26, 1990, defendant’s

motion for summary judgment came on for

hearing. Having reviewed and considered

the papers and oral arguments presented by

the parties, the Court hereby GRANTS de-

99a

fendant’s motion. All other motions are

hereby taken off calendar.

FACTS

Plaintiff is black. She has been em-

ployed by the Los Angeles Unified School

District as a teacher. She taught for 12

years at Polytechnic High School ("Poly-

technic"), from 1974 to 1985. From 1983

to 1984, the plaintiff held the position

of yearbook advisor but requested she be

relieved of this position in 1984.! In

1985, the plaintiff unsuccessfully applied

for the position of mentor teacher. In

1985, the plaintiff filed a complaint with

the Equal Opportunities Employment Commis-

sion alleging discriminatory treatment on

the basis of sex and race at Polytechnic.

In 1985, at her request, the plain-

1tn some instances, the parties have

only provided the Court with approximate

dates. The dates specified in this order

reflect this deficiency.

‘

;

100a

tiff transferred to Granada Hills High

School ("Granada") where she continues to

teach. In 1986, the plaintiff applied for

the positions of peer counselling director

and teen line liaison director, but was

rejected. The plaintiff held the position

of school coordinator for the Teen Line

Liaison program, which was the only school

office in the program. In 1986, 1987, and

1988 the plaintiff applied for the office

of in house dean at Granada. However,

Jody Dunlap already held that position in

1985 and continued to do so through 1989.

In 1988 Bob Weinberg and Loretta Duncan

respectively were selected to serve as in

house dean on a part time basis, and Jim

Gwin was assigned to the position part

time in the fall of 1989. In 1990, Gwin

was selected to serve as in house dean on

a full time basis. The plaintiff unsuc-

cessfully ran for the office of English

101a

Department Chairperson in 1986. She also

ran for representative to the School Site

Council but was not elected. She took

illness leave in Spring 1987 and academic

years 1988-89 and 1989-90. She is pres-

ently on illness leave.

On October 25, 1988, the plaintiff

amended her EEOC complaint alleging that

discrimination against her due to her race

and sex continued at Granada.

On March 14, 1989 the plaintiff filed

a complaint for monetary and injunctive

relief based on age, sex, and race dis-

crimination against the Los Angeles Uni-

fied School District ("District"). With-

out having served the original complaint

on the District, the plaintiff filed the

first amended complaint May 30, 1989.

This complaint asserted claims under Title

VII of the Civil Rights Act of 1964, 42

U.S.C. sec. 2000e et seg, 42 U.S.C. sec-

102a

tion 1981, and 42 U.S.C. section 1983,

intentional infliction of emotional dis-

tress and defamation. On September 12,

1989 the Court dismissed the first amended

complaint for failure to state a clain,

pursuant to Fed.R.Civ.P. 12 (b) (6).

On September 29, 1989, the plaintiff

filed a second amended complaint. In this

complaint the plaintiff dropped her age

discrimination claim and her pendent state

Claims, but realleged causes of action

under Title VII and sections 1981 and

1983. On December 18, 1989, the Court

granted the District’s 12(b)(6) motion to

dismiss the section 1983 claim. On Janu-

ary 8, 1990, the plaintiff filed a thira

amended complaint, alleging claims under

Title VII and sections 1981 and 1983. The

Plaintiff alleges that the district dis-

criminated against her by denying her re-

quests to serve in various pre-adminis-

103a

trative positions, her requests to trans-

fer and her requests to teach honors

classes, on the basis of plaintiff’s race

and sex. The plaintiff claims that the

District discriminated against her by

denying her applications to preadministra-

tive positions. Denial of these preadmin-

istrative positions prevented the plain-

tiff from getting the experience necessary

to pass the qualifying test for principal,

assistant principal and dean, secondary.

The plaintiff contends that these arbi-

trary selections policies denied her con-

stitutional due process, violating section

1983.

The plaintiff claims she wa denied

the position of mentor teacher in favor of

a white male in the 1985-86 school year.

In 1986, plaintiff states she initiated a

program on peer counselling, but the posi-

tion of director went to a white male.

ee ke Oe ee oe Ok See

Soe rey S

& orc Pee

OS] oS Ee eee,

104a

Plaintiff contends she was also denied the

positions of teen line liaison director

and test coordinator in 1986. Plaintiff

also asserts that she was denied the as-

signment of honors classes, the ability to

serve as the chairperson of the English

Department and to serve as representative

to the School Site Council due to her

race. The latter two positions were

filled by popular election pursuant to the

collective bargaining agreement between

the District and United Teachers of Los

Angeles ("UTLA"). The plaintiff argues

that denial of preadministrative positions

was part of a District policy to prevent

minorities and women from gaining the

requisite administrative experience to be

promoted to principal. assistant princi-

pal, or dean, secondary. The plaintiff

makes further allegations under section

1981.

105a

The defendant filed this motion for

summary judgment on all claims, July 23,

1990. However, on or about August 6,

1990, the plaintiff’s attorney withdrew.

Since that time, the plaintiff has pro-

ceeded pro se. In order to allow plain-

tiff time to prepare an opposition to the

pending motion the Court has granted nu-

merous continuances. The plaintiff has

now filed an opposition to the motion for

summary judgment and exhibits in support

of her opposition.

DISCUSSION

THE STANDARD FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56(e),

"an adverse party may not rest upon the

mere allegations or denials of the adverse

party’s pleadings...[{T]he adverse party’s

response must set forth specific facts

showing that there is a genuine issue for

trial." Where the nonmoving party bears

106a

the burden of proof at trial ona disposi-

tive issue, Rule 56(e) requires the non-

moving party to go beyond the pleadings

and by his or her own affidavits, or by

depositions, answers to interrogatories

and admissions, designate issues of fact

in dispute. Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548, 2553 (1986). To

defeat a summary judgment motion, evidence

must exist upon which a jury could reason-

ably find for the Opposing party. Ander-

son _v. Liberty Lobby, inc., 477 U.S. 242,

106 S.Ct. 2505, 2512 (1986) ("Anderson") .

A court must consider evidence pre-

sented in a summary judgment motion in the

light most favorable to the opposing par-

ty. Id. at. 2513. However, just as evi-

dentiary facts are required to support a

Summary judgment motion, conclusory deni-

als are insufficient to defeat summary

judgment. iv ty. Inc, y,

107a

Niagara Falls, 754 F.2d 49 (2d Cir. 1985).

The Ninth Circuit has held that a party

opposing a summary judgment motion cannot

rest on its pleadings to carry its burden;

in the absence of specific facts, as op-

posed to allegations, showing the exist-

ence of genuine issues for trial, a prop-

erly supported summary judgment motion

should be granted. Nilsson, Robbins et

al. v. Louisiana Hydrolec, 854 F.2d 1538

(9th Cir. 1988). Moreover, the Ninth

Circuit stated that the Central District’s

Local Rule requiring a Statement of Genu-

ine Issues in Dispute puts parities on

notice that a party opposing a summary

judgment motion must identify any issue

remaining for trial. Id. at 1545. Mere

unsubstantiated and conclusory allegations

are insufficient to defeat a defendant’s

evidentiary showing under Fed. R. Civ. P.

56(e). j Vv j ae

108a

689 F.2d 877, 879 (9th Cir. 1982).

When a rational trier of fact could

not find for the nonmoving party based on

the record as a whole, there are no tri-

able issues. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587,

106 S.Ct. 1348, 1356 (1986). Summary

judgment will not be defeated Simply be-

Cause issues of motive or intent are in-

volved, and is proper when the plaintiff

fails to indicate any motive or intent to

Support plaintiff’s position. Morgan v.

Harris Trust and Sav. Bank of Chicago, 867

F.2d 1023 (7th Cir. 1989).

A court should take proper care,

however, to read a plaintiff’s pleadings

and motions liberally when pro se com-

plaints are involved. Haines v. Kerner,

404 U.S. 519, 520-21, 92 S.ct. 594, 595-96

(1972); Bullock v. Sweeney, 644 F.Supp.

507, 508 (N.D. Cal. 1986), aff'd 823 F.2a

109a

554.

In this case, while initially repre-

sented by counsel, the plaintiff is now

pro se. The Court instructed the plain-

tiff as to what her opposition to the

motion for summary judgment must encom-

pass, and continued hearings on the motion

for summary judgment for a total of four-

teen weeks to allow her to. prepare her

opposition. The Court has afforded the

plaintiff a latitude it would not have

afforded an attorney. The plaintiff has

now filed her opposition to the motion for

summary judgment and exhibits in support

thereof. Having considered these filings

and attempted to liberally weigh the evi-

dence in the plaintiff’s favor, the Court

GRANTS the motion for summary judgment.

Therefore, the Court concludes the plain-

tiff has produced no convincing evidence

to support her claims and thus has failed

atitenaiienl

110a

to carry the burden required to defeat the

motion.

TITLE VII CLAIM

The plaintiff filed her complaint

with the Equal Employment Opportunities

Commission ("EEOC") on June 10, 1985, and

amended that complaint October 25, 1988.

Though some of the alleged discriminatory

incidents fall outside the limitations

period of Title VII*, the court may still

consider those incidents due to the con-

tinuing nature of the alleged violations.

The doctrine of continuing violation will

apply when a plaintiff has attacked a

discriminatory employment system or prac-

tice. Reed _v. Lockheed Aircraft Corp.,

*Title VII provides a statute of

limitations. A charge of discrimination

must be filed within 180 days of the

alleged discrimination or within 300 days

if there is a state compliance agency. 42

U.S.C. 2000e-5(e). California has such an

agency.

111la

613 F.2d 757 (9th Cir. 1980). In applying

this doctrine, the critical inquiry is

whether any present violation exists.

United Air Lines, Inc. v. Evans, 431 U.S.

553, 97 S.Ct. (1977). A plaintiff must be

able to show a present and ongoing viola-

tion of constitutional rights to prevent

claims from being time barred. If defen-

dant practiced a policy of discrimination

over an extended period of time, a court

need only determine whether the plaintiff

was exposed to discrimination during the

limitations period. Williams v. Owens-

Illinois, Inc., 665 F.2d 918 (9th Cir.

1982). In the instant case, the plaintiff

has met this burden. The plaintiff alleg-

es both in her EEOC complaint and in her

pleadings that the District engaged in a

systematic pattern of discrimination to-

ward the plaintiff due to her race and

sex. Though on sick leave, the plaintiff

112a

is still an employee of the District.

Thus any discriminatory system employed by

the District continues to impact the

plaintiff. Furthermore, the plaintiff

produced evidence of the continuing nature

of the alleged discrimination. On June

14, 1988, the plaintiff again wnsuccess-

fully applied for the position of in house

dean. Hence, the plaintiff has been ad-

versely affected by the District’s alleged

policy within the limitations period.

Finding that the plaintiff’s claims

are not time barred, the Court must next

address the merits of the plaintiff’s

allegations under 42 U.S.C. sec. 2000e et

seq.

Title VII protects employees against

employment practices which adversely af-

fect an individual’s status as an employ-

ee, because of the individual’s race,

color, religion, sex, or national origin.

113a

42 U.S.C. sec. 2000e-2(a). Title VII in

the relevant part provides: (a) It shall

be unlawful employment practice for an

employer

(1) to fail or refuse to hire

or to discharge any individual,

or otherwise to discriminate

against any individual with re-

spect to his compensation,

terms, conditions, or privi-

leges of employment, because of

such individual’s race, color,

religion, sex or national ori-

gin.

(2) to limit, segregate, or

classify his employees or

applicants for employment in

any way that would deprive any

individual of employment oppor-

tunities or otherwise adversely

affect his status as an employ-

ee, because of such

individual’s race, color, reli-

gion, sex, or national origin.

Title VII precludes two kinds of

discrimination. When an employer treats

some employees less favorably than others,

the discrimination is labeled "disparate

treatment". Proof of discriminatory mo-

tive is critical, although in some situa-

114a

tions it may be inferred from the mere

fact of difference of treatment. The

Supreme Court has found that disparate

treatment was the most obvious evil Con-

gress had in mind when it enacted Title

VII. Internati otherhood of Team-

sters v. United States, 431 U.S. 324, 97

S.Ct. 1843 1977). The second type of

discrimination concerns claims of dispa-

rate impact. This theory of discrimina-

tion involves employment practices which

are facially neutral in their treatment of

different groups but which in fact fall

more harshly on one group and cannot be

justified by business necessity or some

other legitimate business justification.

Proof of discriminatory motive is not re-

quired under a disparate impact analysis.

id.

In McDonnell-Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817 1973) ("McDon-

115a

nell-Douglas"), the Supreme Court estab-

lished the basic allocation of burdens and

order of proof in a Title VII case.

First, the plaintiff must demonstrate a

prima facie case of intentional discrimi-

nation by a preponderance of the evidence.

Second, if the plaintiff succeeds, the

burden of production shifts to the defen-

dant to articulate -~legitimate, non-dis-

criminatory reasons for its decisions.

Third, if the defendant carries this bur-

den, the plaintiff must then establish hat

the reasons offered by the defendant were

simply a pretext for discrimination. Id.,

93 S.Ct. at 1825. While the burden of

proving a prima facie case of disparate

treatment is not onerous, the ultimate

burden of persuading the trier of fact

that a defendant intentionally discrimi-

nated against the plaintiff is at all

times with the plaintiff. Texas Dept. of

116a

Community Affairs v. Burdine, 450 U.S.

248, 253, 101 S.Ct. 1089, 1093 (1981)

("Burdine").

In order to establish a prima facie

case of discriminatory treatment, the

plaintiff must show that she was treated

less favorably than similarly situated

employees. The plaintiff must also show

that the defendant intended to discrimi-

nate. In the context of promotions the

plaintiff must show that after having

rejected the plaintiff’s application for

a promotion, the District continued to

seek applicants with qualifications

similar to the plaintiffs. Watson v. Fort

Worth Bank and Trust, 108 S.Ct. 2777

(1988) ("Watson"). The plaintiff has in

all respects failed. The District has

articulated legitimate, nondiscriminatory

reasons for its actions, and has produced

convincing evidence of these non-

117a

discriminatory reasons. Three of the

positions to which the plaintiff aspired

were either not vacant or the plaintiff

lacked the requisite qualifications. As

to other positions or offices the plain-

tiff has not carried her burden of showing

that the reasons offered by the District

are merely pretexts for discriminatory

decision making. Further, the plaintiff

offers no evidence beyond conclusory

allegations that the facially oe

selection criteria employed by the

District pursuant to the collective bar-

gaining agreement, has a discriminatory

impact on minorities or women.

The plaintiff contends that the dis-

trict arbitrarily and intentionally denied

her appointments to pre-administrative

positions because of her race. However,

three of the positions to which the plain-

tiff lays claim were either not vacant

118a

during plaintiff’s tenure of employment,

or she did not actually apply to those

positions. Furthermore, of the positions

to which the plaintiff lays Claim, the

plaintiff held one, and did not apply for

another position. The Court addresses

these contentions below.

1. vices Coordinato

The plaintiff claims that the Dis-

trict denied her application for the post

of youth services coordinator while at

Granada. However, while she may well have

been qualified, the post of Youth Service

Coordinator was not vacant during plain-

tiff’s employment at Granada. Joe White

is presently the youth services coordina-

tor at Granada and was prior to the plain-

tiff’s transfer to Granada. The District

Stated that since White continued to per-

form satisfactorily it had no reason to

119a

remove him from the position. (Declara-

tion of Anne Falotico, principal of Grana-

da, at 7). Since the position was not

vacant, the plaintiff cannot make a prima

facie case of discrimination.

2. Test Coordinator

The test coordinator provides plan-

ning and coordination for the subject

content of various exams. Plaintiff as-

serts that she sought the position in

1986, but the District intentionally kept

her uninformed as to when the meeting to

elect the test coordinator would be held.

A member of the committee finally told her

late in the day that the meeting would be

that day, after class periods ended, since

it was the only time the committee could

all meet. Plaintiff did not attend the

meeting, claiming a previous engagement.

The plaintiff did not remove her name from

120a

the eligibility list, but the committee

appointed John Holodnik, a white male.

The plaintiff has no knowledge of how or

when the other candidates were notified of

the time of the committee meeting. The

plaintiff has no opinion as to whether

Holodnik was better qualified than the

plaintiff to hold the position of test

coordinator. In fact, the plaintiff

states that Holodnik may have more experi-

ence than the plaintiff because he assist-

ed the previous aie coordinator, Tom

Griffin. (Deposition of the Plaintiff,

vol. II, at 65-70).

3. en Line Liaison Director

The plaintiff contends she estab-

lished the teen line liaison program in

1986. After she established the program

the directorship was given to a white

male. The teen-line program is coordinat-

121la

ed by Cedar Sinai Hospital and arranges

presentations to students at different

schools on a rotating basis. The only

school position in the program was that of

a contact person for Cedar Sinai Hospital

at Granada. The principal of Granada

appointed the plaintiff to that office in

1986. When the plaintiff went on leave in

1987, the principal appointed someone else

to fill the position. Thus the plaintiff

held the only available position while at

Granada and present on the job. (Declara-

tion of Falotico, at 11).

4. UTLA Council

Plaintiff contends that the District

refused her appointment to the UTLA Coun-

cil. However, no position by this name

exists or could be identified by the

plaintiff. (Deposition of Plaintiff, Vol

II, at 7. See also, Declaration of Falo-

122a

tico, at 6).

5. English Department Chairperson and

School Site Council

The plaintiff asserts that the Dis-

trict denied her appointments to be Chair-

person of the English Department and rep-

resentative to School Site Council. Both

these offices were filled by popular elec-

tion. The plaintiff contends that the

voting method employed by the District

discriminated against non whites.

The School Site Council is a decision

making body made up by parents, teachers,

the principal, and other school site per-

sonnel for the purpose of school improve-

ment. Participants volunteer their time.

School Site Councils adopt their own by-

laws, including size and members. ip of the

Council. Councils are established at

Schools that opted to participate in the

123a

School Improvement Program. A School Site

Council did not exist at Polytechnic.

(Declaration of Lupe Sonnie, principal of

Polytechnic from 1981 to 1983, at 4). A

School Site Council did exist at Granada

and the positions were filled by popular

election. At Granada, the faculty elects

five teachers to the School Site Council

every year. The plaintiff does not state

in any of her filings what years she ran

for a position on the School Site Council.

Furthermore, she makes no showing that she

was personally discriminated against in

running for the position. Finally the

plaintiff makes no showing that minorities

or women as a class were not elected to

the School S:te Council, or that the elec-

tion process was tainted in any way.

English Department Chairperson is

also a popularly elected office. This

method of selection was determined by the

124a

collective bargaining agreement between

UTLA and the District. Plaintiff has

contends that due to the racial makeup of

the individual schools, there were only

two black English teachers among a faculty

of fifteen at Granada, black teachers

would have no chance to be elected.

To make a prima facie case under

Title VII that a racially neutral policy

or practice such as this has an impermis-

sible discriminatory effect, the plaintiff

must establish that the practice results

in a disproportionate under representation

of protected minorities. To establish

disparate impact the plaintiff must show

that there are more than statistical dis-

parities in the employer’s work force.

The plaintiff must identify specific em-

Ployment practices responsible for the

disparities, and prove causation. Watson

Vv. Fort Worth Bank and Trust, supra at

125a

2786. The plaintiff fails in both re-

spects.

The plaintiff presented no evidence

indicating that only whites or men were

popularly elected or that non whites or

women were systematically not elected to,

or even discouraged from applying for,

these positions. The plaintiff merely

identified a specific facially neutral

practice and argued that it had a dispa-

rate impact on non whites. She offered no

evidence of illegal disparities between

the number of minorities and non minori-

ties in the District’s work force as a

whole, nor in the elected positions.

Thus, the plaintiff failed to make her

prima facie case as to disparate impact

under Title VII.

126a

6. Honors Classes

The plaintiff also claims that the

District did not assign her any honors

classes to teach because of her race. The

Plaintiff was assigned and taught advanced

courses at Polytechnic during the 1984-85

school year. The principal of Granada

states that the plaintiff also had the op-

portunity to teach honors courses while at

Granada, as did all teachers. (Declara-

tion of Philip Nassief, at 4; Declaration

of Sonnie, at 4; and Declaration of

Falotico, at 11). The plaintiff was never

actually assigned any honors Classes at

Granada, though she indicated her desire

to teach them. She contends that white

teachers with less experience were as-

Signed honors classes. The plaintiff

named five teachers in her deposition, but

her opinion that those teachers were less

experienced than she is based only on

127a

casual conversations. Since the plaintiff

provides no evidence that less qualified

whites were appointed to honors classes in

preference to the plaintiff, she fails to

establish a prima facie case of disparate

treatment under Title VII.

7. Mentor Teacher

The plaintiff further contends that

she was denied the position of mentor

teacher during the period 1985-86 in favor

of a white male rehired after retirement.

No such position exists, however. The

plaintiff appears to be confusing two

positions. The retired mentor position is

a separate program from the mentor teacher

program. The retired mentor program is

staffed by retired teachers to help new

teachers for a maximum of 100 hours per

semester. The position was created by

specially designated funds from the Dis-

128a

trict’s Priority Staffing program specifi-

cally to hire retired teachers. The

plaintiff was not retired teacher. She

was not eligible for the position, even if

she did in fact apply. The principal of

Granada hired Don Schulz for the years

1985-86 and Mrs. Fishchli? for the years

1986-90, both retired, to fill the posi-

tion. (Declaration of Falotico, at 8-9).

Mentor teachers, on the other hand, are

selected on a District wide basis by a

Committee under Article XXVI of the col-

lective bargaining agreement between the

District and UTLA. Plaintiff states she

applied to the principal for the position,

but never applied at the District level,

where the appointment would occur. With-

out having actually applied to the correct

authority for the position, the plaintiff

3Neither party provided the Court

with Mrs. Fischili’s first name.

129a

fails to make a prima facie case under

Title VII.

8. Peer Counselling Director

Plaintiff claims that she was denied

the position of peer counselling director.

She claims she applied for the office of

director in 1986. The peer counselling

program is a group of student counsellors

who seek to aid fellow students. A staff

trainer must possess a pupil personnel

credential. The principal appointed Dale

Alpert who possessed such credential.

The plaintiff did not posses a credential.

The other position associated with the

peer counselling program is the position

of teacher of the guidance class. The

principal assigned Allan Kakassy to teach

the guidance class because he showed in-

tense interest and desire to be involved

in the program. The principal informed

130a

the plaintiff that if she wanted to be

involved she could volunteer to assist

Kakassy. (Declaration of Falotico, at 8).

The plaintiff did not volunteer.

In making a claim under Title Vit,

the burden of proof is always on the

plaintiff. Burdine, supra. After the

plaintiff has alleged intentional discrim-

ination, the defendant may rebut such

evidence by articulating non discriminato-

ry reasons for its decision. If the de-

fendant carries this burden the plaintiff

must establish that the reasons offered by

the defendant are a pretext for discrimi-

nation. McDonnell~-Douglas, supra. In the

instant case, the District appointed

Alpert because of his particular creden-

tial. The District appointed Kakassy

because of his intense interest in the

progran. The plaintiff, on the other

hand, provides the Court with no evidence

131a

rebutting the District’s professed nondis-

criminatory motives for assigning both

Kakassy and Alpert to the available posi-

tions with the peer counselling program.

Mere allegations or denials of the Dis-

trict’s evidence do not create a prima

facie case or genuine issues of fact.

Mitchel v. General Electric Co., supra.

9. School Transfers

Teacher initiated transfers are gov-

erned by the collective bargaining agree-

ment between the District and UTLA. The

District offers at least six kinds of

transfer: voluntary transfer, general

transfer, continuous service transfer,

transfer--to -a magnet school, transfer to

a year round school, and transfer to a

school participating in the urban class-

132a

room teacher program ("UCTP") .4

The plaintiff claims that the Dis-

trict denied her applications to transfer

4since 1976, the Los Angeles School

District has implemented a Teacher Staff-

ing Integration Plan ("Plan") by order of

the Office of Civil Rights. This plan

establishes a teacher staff ratio based on

the percentage of combined teacher minori-

ties District wide. District schools must

be within 15% of this annual ratio figure

or are determined to be out of compliance.

The district utilizes this ratio as guide-

line for school staffing. Through volun-

tary transfers of teachers schools seek to

address ethnic imbalances. (Declaration

Roberta Morris, Specialist in Teacher

Integration Unit). The Third Circuit up-

held this type of Plan in kKromnick vw.

School District of Philadelphia, 739 F.2a

894 (3rd Cir. 1984). The Third Circuit

reviewed a voluntary policy of staff inte-

gration and held that although an overtly

race conscious classification system might

ordinarily signify a violation per se, ap-

Plying a per se analysis to voluntary

policies of staff integration designed to

further the education of students of de

facto segregated public school systems

would be inconsistent with the intent of

Congress underlying Title VII. Since this

District employs alternative methods of

transfer which are not governed by race

conscious criteria for which the plaintiff

would have been eligible, the court does

not reach the question of whether the race

conscious classification is permissible.

133a

schools due to her race and sex. She

contends that the District denied her

repeated requests for school transfers to

"schools within minority areas wherein she

could obtain the requisite administrative

qualifications." Plaintiff states that

she repeatedly applied for a voluntary

transfer and was repeatedly refused due to

her race.

Plaintiff appears only to have re-

quested voluntary and general transfers

during the period of 1983-85. The evi-

dence indicates that the plaintiff at no

time requested authorization to transfer

to any other particular school. The prin-~-

cipal who supervised plaintiff from 1983

to 1985 authorized plaintiff’s voluntary

transfer to Granada after the plaintiff

had made various requests. (Declaration

of Sonnie, at 5, and Memo to Pete Martinez

from Albert Irwin, June 3, 1985, Declara-

134a

tion of Roberta Morris, at 3, stating that

the district records indicate that for the

period 1984-85, plaintiff applied for a

general transfer in December 1984, a vol-

untary teacher integration program trans-

fer, April 1985, and a general trans-

fer/general exchange program transfer in

April 1985. Records of transfers prior to

that year have been destroyed as part of

a regularly scheduled destruction pro-

cess.) The plaintiff testified in her

deposition that she never applied for a

school transfer after her July, 1985

transfer to Granada. (Deposition of

Piaintiff®, Vol. III, at 48; See also

Declaration of Falotico, at 9).

The District provided evidence to

rebut the plaintiff’s evidence that it de-

ployed its transfer policy in a discrin-

inatory manner. In 1985 the District

granted the plaintiff’s general transfer

135a

request. Evaluation by a Specialist in

the Teacher Integration Unit for the Dis-

trict indicates that the plaintiff would

have been eligible for various transfers

other than those actually requested by the

plaintiff during the period 1980-1990,

however, the plaintiff failed to apply for

any of these transfers. (Declaration of

Morris, at 4). The plaintiff provided no

evidence to show that non minorities were

able to transfer more readily than the

plaintiff, or that other types of trans-

fers were unavailable to the plaintiff.

Accordingly, the plaintiff fails to make

a prima facie showing that she was treated

less favorably than others due to her

race.

10. Summary

The evidence produced in this motion

establishes that the plaintiff was given

136a

opportunities to transfer between schools

and to teach honors classes. Plaintiff

has not shown that she or people of her

race or sex were treated less favorably

than others or that denial of administra-

tive positions to her was in any way based

on race. With two exceptions, all the

positions that plaintiff claims were de-

nied to her because of a policy of system-

atic discrimination were either not avail-

able during the periods the plaintiff was

available to fill them, or the plaintiff

actually held the position. She claims

that the District’s policy of maintaining

racial parity among the schools’ staff

resulted in a situation where minority

candidates were not elected to popularly

elected offices. However, the plaintiff

offered no evidence that other minority

candidates were not elected. The plain-

tiff fails to meet her burden under the

137a

standard for summary judgment, by rebut-

ting the District’s showing of legitimate,

nondiscriminatory motives for its actions.

Finally, the plaintiff argues that

the denial of these preadministrative

positions prevented her from gaining the

experience necessary to pass the adminis-

trative portion of the test for principal,

assistant principal, or dean, secondary.

The plaintiff claims that denial of pread-

ministrative positions to minorities and

women is part of a district-wide policy to

prevent women and minorities from attain-

ing the positions of principal assistant

principal and dean, secondary (now called

assistant principal, student services).

A review of the evidence presented;

however, indicates that the plaintiff’s

contentions lack merit.

At the time the plaintiff took the

promotional examinations, in 1981 and

138a

1985, the promotional examination was a

four step process. Applicetions were

identified by number, so that during the

promotional selection process there is no

indication of the applicants race, sex, or

age. Applicants were initially screened

for education, experience, and credential

qualification requirements. Qualified

applicants then proceeded to the Training

and Experience evaluation portion, where

a committee reviewed the applicants skills

in organization and management, communica-

tion, professional skills, human rela-

tions, academic preparation and profes-

Sional experience. Successful candidates

were then interviewed by the promotion

committee. Qualified candidates made up

the eligibility list. Hirings were made

from this list as the need arose.

The plaintiff took the promotional

examination for dean, secondary in 1985.

139a

in that year, 263 applicants were initial-

ly screened. Of the applicants proceeding

to the Training and Experience evaluation

25.6% were black and 56.2% were female.

Of the applicants proceeding to an inter-

view, 20% were black and 49.2% were fe-

male. Of the applicants on the final list

of individuals eligible for promotion,

42.9% were female.°

The plaintiff took the promotional

examination for assistant principal in

1981. In that year, 653 applicants were

initially screened. Of the applicants

proceeding to the Ilxaining and Experience

StThe final statistics were compiled

pursuant to a consent decree entered into

by the District in 1981. The consent

decree requires the District to obtain on

each administrative promotional exam a

qualified applicant pool containing at

least 40% female applicants. If the ap-~

plicant pool does not contain 40%, the

District reinitiates the promotional exam-

ination in an effort to reach that figure.

wio , Case No. CV 80-

3348 WMB (C.D. Ca. 1981).

140a

evaluation 35.1% were black and 54.6% were

female. Of the applicants proceeding to

the interview, 25.9% were black, and 49.6%

were female. Of the applicants on the

final list of individuals eligible for

promotion, 41.4% were female. ®

The District did not provide the

Court with statistics for the number of

black applicants who reached the final

list of individuals eligible for promo-

tion. This omission is not fatal. The

plaintiff contends that she was denied the

requisite preadministrative experience to

pass the promotional exam. This lack of

experience would screen the plaintiff out

between the first stage and the Training

and Experience stage of the promotional

examination. At this stage of the screen-

ing process, the District provided statis-

6See Footnote 3, supra.

141a

tics which indicate that the District’s

facially neutral employment practices do

not fall more harshly on black or female

applicants. Thus, the District effective-

ly rebutted the plaintiff’s claims that

its policy of promotion disparately im-

pacted either minorities or women, at

least through the interview stage of the

evaluation process.

Hence, even reading the evidence in

the light most favorable to the nonmoving

party, and reading all her filings with

the liberality due a pro Se litigant, the

plaintiff failed to establish a prima

facie case of discrimination under Title

VII. The plaintiff has only offered con-

clusory denials and unsubstantiated alle-

gations in response to the District’s

showing of non discriminatory reasons for

its actions. The ultimate burden of per-

suasion is with the plaintiff and she

142a

failed to meet that burden. The employ-

er’s policy of leaving promotion decisions

to the unchecked discretion of lower level

supervisors does not, by itself, give rise

to any inference of discriminatory conduct

contrary to Title VII. Watson, supra at

2786. Accordingly, the Court finds that

there is no evidence upon which a jury

could reasonably find for the plaintiff,

Anderson, supra, and hereby grants defen-

dant’s motion for summary judgment.

SECTION 1983 CLAIM

Section 1983 provides that, "every

person who, under color of any statute,

..ecustom, or usage,--- subjects, or causes

to be subjected, any citizen of the United

States...to the deprivation of any rights,

privileges or jmmunities secured by the

Constitution and laws, shall be liable to

the party in an action at law..." 42

143a

U.S.C. sec. 1983. Because section 1983

and 1981 do not contain a statute of limi-

tations, federal courts apply the most

analogous state statute of limitations.

Wilson v. Garcia, 471, U.S. 261, 105 S.Ct.

1938 (1985); Gc dman v- Lukens Steel Co.,

482 U.S. 656, 107 S.Ct. 2617 (1987). In

California the appropriate analogous stat-

ute of limitations is one year. Cal.C.Civ.

Pp. sec. 340; Del Percio v. Thornsley, 877

F.2d 785 (9th Cir. 1989).

The District argues that the plain-

tiff is barred by the statute of limita-

tions. The District’s argument, however,

lacks merit. The plaintiff applied for

the position of in house dean June 14,

1989, within one year of filing the com-

plaint. Consequently, the Court will

consider the plaintiff’s allegations of

discrimination under section 1983.

To establish a prima facie case of a

b |

144a

violation of section 1983, the plaintiff

must allege that she has been deprived of

a constitutional right under color of

state law. The plaintiff contends that

the District deprived her of constitution-

al due process. To determine whether the

plaintiff has a constitutionally protected

property interest, the Court must look to

state law. Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 105 S.Ct. 1487

(1985). California law clearly establish-

es that there in no property interest in

a school administrative position. Educa-

tion Code sections 44893, 44894, and 44897

provide that the only permanent statutory

position the plaintiff might have within

the District is that of a classroom teach-

er. Tucker v. Roach, 163 Cal.App.3d 1051,

210 Cal. Rptr. 295 (1985), Grant v. Adams,

69 Cal.App.3d 127, 132, 137 Cal. Rptr.

834, (1977), Barthuli v. Board of Trust~

145a

ees, 19 Cal.3da 717, 7332; ::239 Cal. Rptr.

627 (1977). Since there is not a property

interest attached to administrative posi-

tions there cannot be a property interest

attached to preadministrative positions.

Nor has the District violated any liberty

interest of the plaintiff by its alleged

actions. A liberty interest arises when

the government dismisses an individual for

reasons that seriously damage one’s stand-

ing in the community. "TO implicate con-

stitutional liberty interests, however,

the reasons for dismissal must be suffi-

ciently serious to ‘stigmatize’ or other-

wise burden the individual so that he is

not able to take advantage of other em-

ployment opportunities." Loehr. v. Ventura

County __Community College District, 743

F.2d 1310, 1317 (9th Cir. 1984).

The Supreme Court held in Board of

Regents Vv. Roth, 408 U.S. 564, 92 S.Ct.

146a

2701 (1972), that a teacher subject to

dismissal at the will of his employer did

not have a liberty interest in his posi-

tion, noting that a dismissal without

associated charges, such as dishonesty or

immorality, did not so stigmatize an indi-

vidual that a liberty interest was impli-

cated. In this case, the plaintiff re-

tains her position as classroom teacher,

Denying her the position of in house dean

was not stigmatizing, nor publicized ina

way that would affect her ability to re-

tain other appointments.

Absent the deprivation of a constitu-

tional right, the plaintiff cannot make a

prima facie case of discrimination under

section 1983. Accordingly, the Court

grants the District summary judgment as to

the section 1983 claim.

SECTION 1981 CLAIM

147a

The governing statute of limitations

for a section 1981 claim is one year.

Wilson v. Garcia, supra; Cal.C.Civ.P sec.

340. The plaintiff claims that she ap-

plied for the positions of in house dean

and assistant principal within one year of

filing the complaint. Since the plaintiff

later admitted that she had not, in fact,

applied for the position of assistant

principal, the Court will only consider

the contentions pertaining to the position

of in house dean. (Deposition of Plain-

tiff, Vol. II, at 203).

Section 1981 applies to the making

and enforcing of contracts. To state a

claim of discrimination under section

1981, the plaintiff must show that the

promotion she was denied rises to the

level of an opportunity for a new and dis-

tinct relationship between the District

and herself. The failure to promote is

_——

148a

only actionable under section 1981 if the

nature of the change in position was such

that it involved the opportunity to enter

into a new contract with the employer.

Patterson Vv. McLean Credit Union,

__U.S.__, 109 S.Ct. 2363, 2376-77 (1990).

In the present case, the position of

in house dean does not provide an opportu-

nity for a new and distinct relation be-

tween the plaintiff and the District. The

pre-administrative position, by its very

nature, does not afford the opportunity to

enter into a new contract with the Dis-

trict, and, therefore, does not give rise

to a claim under section 1981. Hence, the

Court grants summary judgment to the Dis-

trict on the plaintiff’s section 1981

claim.

According to the foregoing analysis,

the Court finds that no evidence exists

upon which a jury could reasonably find

_—

149a

for the plaintiff. Consequently,

Court GRANTS the District’s motion

summary judgment as to all counts.

IT IS SO ORDERED.

Dated: Feb 4 1991

JOHN G. DAVIES

United States District Judge

the

for

150a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

October 1, 1990

ORAL PROCEEDINGS

(In pertinent part as follows)

foveal

THE CLERK: Please come forward, and

state your appearance on the record.

THE COURT: Are you Miss Braswell?

MS. BRASWELL: Yes, sir.

—

THE COURT: Now, Miss Braswell, have

151a

you read the tentative ruling? It was on

the counsel table or perhaps I -- if you

would serve Miss Braswell with a copy of

the tentative ruling, which will become

the minute order in today’s proceeding.

Reus

THE COURT: Then I will explain what

I’ve done.

There are two minute orders. I would

ask you to look at the minute order that

pertains to the motion for summary judg-

ment, and you will see by that minute

order, I have continued this motion five

weeks. To the first Tuesday in November.

November 5th. The first Monday, excuse

me, November 5th 1990.

Now, the reason I have done that is

id give you more time. This is a serious

motion, as far as your case is concerned.

It may be dispositive of your case. From

what I read, it could very well be.

152a

You’ve presented me with no facts id

rebut the motion for summary judgment, but

because you are pro Se, and without an

attorney, I will give you, essentially,

one more month. Either to find an attor-

ney or, at least in your statement of

opposition, state the facts that form the

basis for the various claims that you

make. You failed id do that.

You’re opposition is a litany of

reasons why you could not state the facts.

I don’t want that. I’m not interested in

the reasons why you can’t do things. I

would appreciate it, if you would, if you

cannot find counsel, simply do the best

you can to state the facts that form the

basis for the various claims that you make

against the school district.

I will give you, still another oppor-

tunity, because you are representing your-

self.

153a

Therefore, the motion for summary

judgment js continued to Monday November

5th, 1990 at the hour of 2:30 p-m-

The plaintiff may file further Oppo-

sition to the motion on or before October

31st, 1990. That’s the week, immediately

before the Monday.

Have you papers in before that date

or on or before October 31, 1990.

And I would direct your attention to

the last paragraph of the minute order.

I have attempted to give you guidance.

That in a very general way tells you what

you should do.

The motion to appoint counsel is

denied. The reasons are set forth briefly

in the minute order that pertains to- that

motion.

So, if you wish, you may return on

the 5th of November 1990 to argue the

motion, based upon, whatever you filed

————

154a

before October 31, 1990.

All right. Do you have any ques~

tions?

MS. BRASWELL: I guess I don’t.

THE COURT: Do you have my questions

about the procedures?

Do you have any questions about the

nature of the papers that you should file?

MS. BRASWELL: Well, first of all,

like I said, I’m a lay person. I’m not

familiar with legal matters, et cetera.

THE COURT: You seem to be. Your pa-

pers, although they lack facts, they’re

certainly written in the legal style.

MS. BRASWELL: Not only that, I’ve

been off on illness leave for two years.

THE COURT: Uh-huh.

MS. BRASWELL: And I have not been

able--

THE COURT: You’ve explained that.

I’m giving you another month.

155a

MS. BRASWELL: It’s kind of hard to

get someone ~~ an attorney who wants to

get in the midst of this muddle. so they

claim.

THE COURT: It isn’t such a muddle.

MS. BRASWELL: It was too short of a

time for then, ana then I don’t have the

money to pay an attorney for his services.

THE COURT: Well, this is a Title 7

case. If you win -~- well, let me put it

this way -~- an award of attorneys’ fees

after a favorable result would be appro~

priate. I think most lawyers know that,

when they go in this type of case.

MS. BRASWELL: Well, those so far,

that I’ve asked, they said would not take

it, unless I was able to pay them on an

hourly basis.

THE COURT: I can understand that,

now, that I’ve read the moving papers.

MS. BRASWELL: SO, that’s it.

156a

THE COURT: Yes. If what is stated

in the moving papers is true and cannot be

rebutted, your case may not survive this

motion.

MS. BRASWELL: What I was really

trying to say is that it’s kind of hard

for a lay person to be able to competently

handle the case without an attorney on

such a short notice of time, particularly.

One month is really not that much time

either. 3

THE COURT: I’m not looking for com-

petence. I’m looking for facts, and

you’ve produced none. This is your oppor-

tunity to produce some facts.

MS. BRASWELL: Okay.

THE COURT: All right.

MS. BRASWELL: Thank you.

(Proceedings concluded. )

DATED: 6-2-91

157a

BEVERLY A. CASARES

BEVERLY A. CASARES CSR# 8630

official Court Reporter

158a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

November 5, 1990

ORAL PROCEEDINGS

(In pertinent part as follows)

APPEARANCES:

FOR PLAINTIFF (S) ELLEN BRASWELL

(..-)

FOR DEFENDANT (S) KERRY CUNNINGHAM |

LAUSD

Scat

(2)

THE COURT: Miss Braswell, you seek

159a

to continue this once more. What is the

reason?

MS. BRASWELL: Because I haven’t had

enough time to do the research that I need

to do to get any data, statistical data,

that I would like to have to settle this

case. There are just a number of things

that I need to do. In this kind of case,

I think that statistical evidence is very

important.

THE COURT: Well, you have filed

nothing in opposition of the motion for

summary judgment, and as I recall, the

last time you were here, you stated that

the issue was, that your opposition con~

tained no exhibits of any kind, but, nev~

ertheless, you stated that you had the

material. You had certain exhibits.

MS. BRASWELL: I do have some.

THE COURT: Now, 1 continued it one

month, so, to give you an opportunity to

160a

provide me with those exhibits.

What happened?

MS. BRASWELL: They were logged in

today.

THE COURT: Huh.

MS. BRASWELL: They were logged in

today. I had them last. -=

THE COURT: You brought them to court

today?

MS. BRASWELL: /Yes.

THE COURT: They have been filed?

MS. BRASWELL: Yes. I had them

brought in today, but lI did have them last

week, but they weren’t set up according to

the standards, I suppose of the court

rules.

THE COURT: Now, apart from those

exhibits, is there anything more you think

that you need to defend against the motion

for summary judgement?

MS. BRASWELL: Time.

161a

THE COURT: No. We all need time.

MS. BRASWELL: And, of course, like

I said, I do need statistical data for a

case like this, and I do need to do the

researcn, and, I, also need to research

the defendants’ cases that they cited, as

well as research some, in support of my

own.

THE COURT: The defendants’ cited

those cases weeks and weeks ago, maybe two

months ago-

MS. BRASWELL: Il know, but being 4

lay person it’s not very much time.

THE COURT: I’ve given you ~~ I rec-

ognize the fact that you’re a lay person,

and I’ve attempted to be patient.

MS. BRASWELL: Well I’ve also been on

sick leave.

THE COURT: I will give you two more

weeks to file the exhibits with the court.

MS. BRASWELL: They should be filed

EEE

162a

already.

THE COURT: I haven’t seen them.

MS. BRASWELL: I had them brought in

today, so they should be here.

THE COURT: I will still give you two

more weeks.

Well, it will have to he three weeks.

We will continue the motion for sum-

mary judgement to Monday, November, 19,

1990, a 2:30 p.m.

MS. BRASWELL: May I say something

else?

My former attorney was supposed to

have deposed at least two people. Only

one of whom she deposed, and I guess not

long ago got the results of that particu-

lar deposition. It wasn’t that much in

depth. It was nothing I could use for

statistical data or anything like that,

and from what I have heard, you have to,

at least, give the defendant 30 to 40 days

163a

to respond to interrogatories or whatever

or anything that you ask, and so I can’t

see how three weeks would really do that

much good.

THE COURT: The point is there’s been

a substantial passage of time.

MS. BRASWELL: Not since I have been

serving in pro per, it hasn’t.

THE COURT: Your attorney made his

last appearance on August the 6th.

MS. BRASWELL: Yes. August 6.

THE COURT: That is a substantial

period of time.

MS. BRASWELL: For a lay person?

THE COURT: I will give you another

two weeks to file whatever ~~ you may file

-whatever you wish to file. Anything.-Just

dish up the evidence — me, so, I can see

it.

MS. BRASWELL: Will I be able to send

out interrogatories to the defendant, and

‘. .

164a

get some response, and depose the other

person that --

THE COURT: If you can make an ar-~

rangement with the defendant to waive

time. You probably might.

But you may have the two weeks to re-

spond to the summary judgement motion

that’s been on file now for about two

months.

MS. BRASWELL; Two months is not very

much for a lay person without the legal

knowledge.

THE COURT: We/’re getting towards the

end of the road.

MS. BRASWELL: I know, but it seems

like I got into this thing less than a

month before the trial date, and I don’t

think that was fair to me, and without

being able to get the evidence from the

attorney, whatever, and some of the mate-

rial, and some other things. Some of the

165a

dates were not filed that she should have

filed herself, anda then there were impend-

ing dates, week- by- week since then, and

so I’ve been running to the Court, et

cetera, and having others run to the court

for me to file documents to, et cetera et

cetera et cetera.

Ana it’s just, I mean, that takes up

an awful lot of time, and two months -~-

ana I can’t see how three more weeks real-

ly is going to help me, so far as getting

the statistical data and what not, that I

want.

THE COURT: Well, I don’t want to

debate it with you. The time has, essen~

tially, run out. You have requested on

previous occasions time to retain counsel.

It has happened.

MS. BRASWELL: I have been seeking

counsel.

THE COURT: The last time you were

—_— - oe |

166a

here, you wished to file certain docu-

ments, certain items of evidence. That

was continued for one moth to allow you to

do that. Apparently, that hasn’t been

done.

So, you have the benefit of three

more weeks to gather whatever you need to

gather to seaintie the motion for summary

judgement.

MS. BRASWELL: So, there is no way

that that can be postponed further than

three weeks?

THE COURT: No. I’m not going to

postpone it more than three weeks.

MS. BRASWELL: SO, that is the final

length of time?

THE COURT: That will. be the day I

consider the motion for summary judgment.

MS. CUNNINGHAM: If I may clarify,

your Honor, is that two weeks in which to

file additional opposition papers, and

167a

three weeks for the hearing?

THE COURT: I’m giving Miss Braswell

the benefit of all of that time. We will

consider anything she files up to the

Friday before the 19th.

tries

THE COURT: And if it catches you

short, that’s too pad. I’m giving the

opportunity to file -- any time up to the

ena of the business day on a Friday, the

23rd.

Okay. Thank you.

THE CLERK: Your Honor, the case is

also on calendar for a pretrial confer~

ence.

THE COURT: Pretrial conference is

continued to the 19th of November.

Cs.80 |

(Proceedings concluded. )

Coee}

DATED: 6-72-91

168a

BEVERLY A. CASARES

BEVERLY A. CASARES CSR# 8630

Official Court Reporter

169a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 89-1522-JGD

ELLEN BRASWELL,

Plaintiff,

Vv.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

November 26, 1990

ORAL PROCEEDINGS

(In pertinent part as follows)

APPEARANCES:

FOR PLAINTIFF (S) ELLEN BRASWELL

(.e0)

FOR DEFENDANT (S) KERRY CUNNINGHAM

LAUSD

tines

bowel

THE COURT: All right. If you wish

170a

to argue the motion, you may.

I think the burden falls on Miss

Braswell. If you wish to argue se, = Wasa

be more than happy to listen to the argu-

ment.

MS. BRASWELL: I don’t know of any-

thing else to say, other than what I have

already put in the paper, your Honor.

THE COURT: All right. I did receive

your exhibits.

THE COURT: All right.

Then, it will stand submitted. I/’1ll

take it understand submission.

Coase)

MS. BRASWELL: Your Honor, may I ask

you one question?

THE COURT: Yes, Miss Braswell, come

forward. Counsel for the school district

has left, apparently.

Cvixie¥

171a

MS. BRASWELL: I did not get a chance

to read the document that he submitted to

me until after he left and after he had

finished.

THE COURT: Who submitted to who?

MS. BRASWELL: The clerk. After he

finished, he gave me the document, and I

didn’t get a chance to finish reading it

until after you had finished.

So, this is what I wanted to say- I

don’t know what the process of appeal is.

I don’t know ~~ that’s the reason why I

came back in is, because I don’t know

whether or not I’m supposed to ask you to

let me reserve the right to appeal. I

don’t really know what the procedures in -

- THE COURT: Well, the procedure for

appeal is, essentially, as follows:

At the termination of the case, your

rights to appeal are preserved for a peri-

od of time after the entry of the judg-

172a

ment.

MS. BRASWELL: Well, is this case

over?

THE COURT: No, it is not over.

MS. BRASWELL: I didn’t know what was

going on.

THE COURT: Well, what will happen

next is -- I have taken the summary judg-

ment motion under submission. I will rule

upon it, and an order will -- no matter

what happens, what the result is, an order

will issue, and that order will instruct

you what to do, and it will also advise

you whether or not the case is over.

MS. BRASWELL: Okay.

THE COURT: And that is an order,

from which you have, may have a right to

appeal. The order that you have reference

to is in large measure an unappealable

order, except, and I’11 inform you of

this.

173a

Your application, excuse me, for the

appointment of counsel, which is now de-

nied a second time is an appealable order.

MS. BRASWELL: Did you say it is or

isn’t?

THE COURT: It is.

MS. BRASWELL: Uh-huh.

THE COURT: You may, if you choose to

appeal -~- if it gets to this point -- I

can’t tell ycu what's going to happen, but

if it gets to the point where you wish to

file an appeal, that interlocutory order

is an appealable order. In other words,

you can appeal my denial of your applica-

tion for the appointment of counsel, and

that’s an application that you’ve made

twice, and twice --

MS. BRASWELL: I’m continuing to seek

an attorney. I’ve listed all of then. I

have contacted a whole list of them, but

I haven’t been successful.

174a

THE COURT: Yes. Right.

MS. BRASWELL: Okay.

THE COURT: All right. Any other

questions that I can help you with?

MS. BRASWELL: I guess that’s it.

What is the next date for what?

THE COURT: The next order you will

get, will be an order that relates to

motion for summary judgement, and that

will be an order that, essentially brings

the procedure up to current, that brings

it current.

MS. BRASWELL: Is there anything I’m

supposed to do, in the meantime?

THE COURT: Nothing.

MS. BRASWELL: Okay. Just wait for

that?

THE COURT: That will be mailed to

you by Mr. Holmes in the near future.

MS. BRASWELL: And that will just in-

struct me, as to what to do?

175a

THE COURT: That will either instruct

you what to do or that will be a disposi-

tion of the case. That will end the case.

You will lose the motion, and that will

end the case. If you lose this motion,

4¢, essentially, ends the case in this

court.

MS. BRASWELL: Oh.

THE COURT: And you have a right to

appeal from that order.

MS. BRASWELL: Okay. Thank you, your

Honor.

(Proceedings concluded. )

(eval

DATED: 6-2-91

BEVERLY A. CASARES

BEVERLY A. CASARES CSR# 8630

official Court Reporter

176a

U.S. CONSTITUTION, AMENDMENT XIV

In pertinent part:

"Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

States wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws."

177a

TITLE VII

CIVIL RIGHTS ACT OF 1964 (as amended)

42 U.S.C. Section 2000e et seq-

(In pertinent part)

"section 2000e.- [sec. 701] pefinitions

"(a) The term "person" jncludes one

or more individuals, governments, govern-

mental agencies, political subdivisions,

labor unions, partnerships, associations,

corporations, legal representatives,

mutual companies, joint-stock companies,

trusts, unincorporated organizations,

trustees, trustees in cases under Title

11, & receivers.

"(b) The term "employer" means a

person engaged in an industry affecting

commerce who has fifteen or more employees

for each working day in each of twenty or

more calendar weeks in the current or

preceding calendar year, and any agent of

178a

such a person, but such term does not

include (1) the United States, a

corporation wholly owned by the Government

of the United States, an Indian tribe, or

any department or agency of the District

of Columbia subject by statute to

procedures of the competitive service (as

defined in section 2102 of Title 5), or

(2) a bona fide private membership club

(other than a labor organization) which is

exempt from taxation under- section

501(c)of Title 26, except that during the

first year after March 24, 1972, persons

having fewer than twenty-five employees

(and their agents) shall not be considered

employers.

tee) |

"(f) The term “employee" means an

individual employed by an employer, except

that the term "employee" shall not include

any person elected to public office in any

179a

State or political subdivision of any

State by the qualified voters thereof, OF

any person chosen by such officer to be on

such officer’s personal staff, or an

appointee on the policy making level or an

immediate adviser with respect to the

exercise of the constitutional or legal

powers of the office. The exemption set

forth in the preceding sentence shall not

include employees subject to the civil

service laws of a State government,

governmental agency or political

subdivision. With respect to employment

in a foreign country, such term includes

an individual who is a citizen of the

United States.

"(g) The term "commerce" means trade,

traffic, commerce, transportation,

transmission, OF communication among the

several States; Or between a State and any

place outside thereof; OF within the

AGEL A IROL ENT EY IMIOSNLS AOS .

180a

District of Columbia, or a possession of

the United States; or between points in

the same State but through a point outside

thereof.

"(h) The term “industry affecting

commerce" means any activity, business, or

industry in commerce or in which a labor

dispute would hinder or obstruct commerce

or the free flow of commerce and includes

any activity or industry "affecting

commerce" within the meaning of the Labor-

Management Reporting and Disclosure Act of

1959, and further includes any

governmental industry, business, or

activity."

tend

"Section 2000e-2. [Sec. 703] Unlawful

employment practices

“Employer practices

"(a) Employers. It shall be an

unlawful employment practice for an

181a

employer-~

"(1) to fail or refuse to

hire or to discharge any jndividual, or

otherwise to discriminate against any

individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

jndividual’s race, color, religion, Sex,

or national origin; or

"(2) to limit, segregate,

or classify his employees Or applicants

for employment in any way which would

deprive or tend to deprive any individual

of employment opportunities or otherwise

aaversely affect his status aS an

employee, because of such individual’s

race, color, religion, sex, OF national

origin.

Coa]

“;abor organization practices

"(C) It shall be an unlawful

182a

employment practice for a labor

organization--

"(1) to exclude or to expel from

its membership, or otherwise to

discriminate against, any individual

because of his race, color, religion, sex,

or national origin;

"(2) to limit, segregate, or

classify its membership or applicants for

membership, or to classify or fail or

refuse to refer for employment” any

individual, in any way which would deprive

or tend to deprive any individual of

employment opportunities, or would limit

such employment opportunities or otherwise

adversely affect his status as an employee

or as an applicant for employment, because

of such individual’s race, color,

religion, sex, or national origin; or

"(3) to cause or attempt to

cause an employer to discriminate against

183a

an individual in violation of this

section.

"Training programs

"(d) It shall be an unlawful employment

practice for any employer, labor

organization, OF joint labor-management

committee controlling apprenticeship or

other training or retraining, including

on-the-job training programs to

discriminate against any individual

because of his race, color, religion, Sex,

or national origin ‘in admission to, oF

employment in, any program established to

provide apprenticeship or other training.

i one

“Seniority or merit system;

quantity or quality of

production; ability tests;

compensation based on sex and

authorized by minimum wage

provisions

ee ie

184a

"(h) Notwithstanding any other

provision of this subchapter, it shall not

be an unlawful employment practice for an

employer to apply different standards of

compensation, or different terms,

conditions, or privileges of employment

pursuant to a bona fide seniority or merit

system, or a_ system which measures

earnings by quantity or quality of

production or to employees who work in

different locations, provided that such

differences are not the result of an

intention to diecrininate because of race,

color, religion, sex, Or national origin,

nor shall it be an unlawful employment

practice for an employer to give and to

act upon the results of any professionally

developed ability test provided that such

test, its administration or action upon

the results is not designed, intended or

used to discriminate because of race,

185a

color, religion, sex or national origin.

It shall not be an unlawful employment

practice under this subchapter for any

employer to differentiate upon the basis

of sex in determining the amount of wages

or compensation paid or to be paid to

employees of such employer if such

differentiation is authorized by the

provisions of section 206(da) of Title 29.

Pree

“preferential treatment not to

be granted on account of

existing number oF percentage

imbalance |

"(35) Nothing contained in this

subchapter shall be interpreted to require

any employer, employment agency, labor

organization, OF joint labor-management

committee subject to this subchapter to

grant preferential treatment to any

individual or to any group because of the

186a

race, color, religion, sex, or national

origin of such individual or group on

account of an imbalance which may exist

with respect to the total number or

percentage of persons of any race, color,

religion, sex, Or national origin employed

by any employer, referred or classified

for employment by any employment agency or

labor organization, admitted to membership

or classified by any labor organization,

or admitted to, or employed in, any

apprenticeship or other training program,

in comparison with the total number or

percentage of persons of such race, color,

religion, sex, or national origin in any

community, State, section, or other area,

or in the available work force in any

community, State, section, or other

area."

187a

"section 2000e-3- [sec. 704] other

unlawful employment practices.

upiscrimination for making

charges, testifying, assisting,

or participating jin enforcement

proceedings

"(a) It shall be an unlawful

employment practice for an employer to

discriminate against any of his employees

or applicants for employment, for an

employment agency, or joint labor-

management committee controlling

apprenticeship or other training oF

retraining, including on-the-job training

programs, to discriminate against any

jndividual, oF for a labor organization to

discriminate against any menber thereof or

applicant for membership, because he has

opposed any practice made an unlawful

employment practice py this subchapter, OF

because he has made a charge, testified,

weeememe

Premera ets

188a

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this subchapter."

"section 2000e-5. [Sec- 706] Prevention of

Unlawful Employment Practices

"(g) Injunctions; affirmative

action; equitable relief

If the court finds that the

respondent has intentionaily engaged in or

is intentionally engaging in any unlawful

employment practice charged in the

complaint, the court may enjoin the

respondent from engaging in such unlawful

employment practice, and order such

affirmative action as may be appropriate,

which may include, but is not limited to,

reinstatement or hiring of employees, with

or without back pay (payable by the

employer, employment agency, or labor

organization, as the case may be,

responsible for the unlawful employment

189a

practice), or any other equitable relief

as the court deems appropriate. Back pay

liability shall not accrue from a date

more than two years prior to the filing of

a charge with the Commission. Interim

earnings or amounts earnable with

reasonable diligence by the person OF

persons discriminated against shall

operate to reduce the back pay otherwise

allowable. No order of the court shall

require the admission or reinstatement of

an individual as 4 member of a union, OF

the hiring, reinstatement of an individual

as an employee, OF the payment to him of

any back pay, if such individual was

refused admission, suspended, Or expelled,

or was refused employment or advancement

or was suspended oF discharged for any

reason other than discrimination on

account of race, color, religion, Sex, or

ore AONE

™

«saat aan i veliah dite irtalh Shan lamas

190a

national origin or in violation of section

704(a) [42 U.S.C. section 2000e-3(a)]-

Section 2000e-7. [Sec. 708] Effect on

State Laws

"Nothing in this subchapter shall be

deemed to exempt or relieve any person

from any liability, duty, penalty, or

punishment provided by any present or

future law of any State or political

subdivision of a State, other than any

such law which purports to require or

permit the doing of any act which would be

an unlawful employment practice under this

subchapter."

191a

42 U.S.Ce, section 1981

In pertinent part:

"All persons within the jurisdiction

of the United states shall have the same

right in every State and Territory to make

ana enforce contracts, to sue, be parties,

give evidence, and to the full and equal

benefit of all laws and proceedings for

the security of persons and property as is

enjoyed by white citizens, and shall be

subject to like punishment, pains,

penalties, taxes, licenses, and exactions

of every kind, and to no other."

192a

42 U.8S.C., Section 1983

In pertinent part:

"Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory,

subjects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof to

the deprivation of any rights, privileges,

or immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress."

193a

Declaration of

Allan S.- Ruttenberg, M.D.

ee Alan S- Ruttenberg, hereby

declare:

I am a physician licensed by the

State of California and if called as 4

witness could and would competently

testify to the following facts from my

personal knowledge:

1. Iama Diplomate of the American

board of Psychiatry and Neurology and am

a principal of West Hills psychiatric

‘Medical Group, located at 22048 Sherman

Way, Suite 214, Canoga Park, California

91303. Attached hereto, labeled Exhibit

1, and by this reference made a part

iit as though fully set forth herein,

is my curriculum vitae.

2. When Ellen Braswell first came to

me in September of 1988, she was on an

opp TE,

194a

industrial illness/injury leave and was

referred to me by her family doctor. When

I began seeing her in psychiatric

treatment, the immediate problem _ to

resolve was whether or not she was capable

of returning to work as a teacher. She

was continuing to experience, among other

things, gastrointestinal symptoms,

headaches, and pain in her neck and back

with sciatica. During her treatments, it

was obvious that she was severely

depressed, anxious, and agitated. She was

experiencing various symptoms which

included nightmares, social withdrawal,

decreased self-esteem, anorexia and

fluctuations in her weight. She also was

having considerable difficulty with memory

and concentration and complained of

insomnia, easy fatigability and

irritability. Moreover, she was quite

preoccupied with various discrimination

195a

(race, Sex, and age) problems that she

said she herself encountered with respect

to job assignments and promotions at the

hands of her employer, Los Angeles Unified

School District, and with respect to the

discriminatorily hostile work environment

at Granada Hills and Polytechnic High

Schools. |

3. The type of treatment which I have

provided Ellen Braswell has been two-fold.

First, I have seen her in supportive,

directive and limited insight oriented

psychotherapy, aimed at trying to reduce

her anxiety and agitation, improve her

self-esteem, deal more effectively with

her frustrations and find some way to

become less. affected emotionally by the

poor treatment and stresses which she was

subjected to at work. She has valued her

psychiatric sessions and has attempted to

make use of them for her benefit and

196a

improvement. In addition, to the above-

mentioned psychotherapy, and because of

the severity of her depressive symptoms,

I treated her with antidepressant

medication for a short period to alleviate

depression and anxiety symptoms.

4. I have continued to see Ellen

Braswell in psychiatric treatment during

her industrial illness/injury leave. Upon

her attorney’s (Ms. Owens-Murrell’s)

purported sudden substitution of herself,

without prior notice to Ms. Braswell, out

of Ms. Braswell’s discrimination case

against the Los Angeles Unified School

District, Ms. Braswell went through a very

traumatic depression. Her symptoms

included shock, humiliation, panic

attacks, diarrhea, considerable difficulty

with concentration, memory _ problems,

extreme fatigue, anxiety, major sleep

disturbance, chest pains, frustration,

197a

worry and anxiety about having to handle

the case with its numerous and impending

deadlines without an attorney, and about

the possibility of losing the case because

of her previous attorney’s mishandling of

jt and because of having to handle it

herself, a lay person in pro per and with

serious health problems. Additionally,

she complained of not knowing what to do,

when to do it, and how and where to do or

find things with respect to handling the

case. She also complained of her numerous

unsuccessful efforts in obtaining an

attorney to handle the case.

5. Along with the above-mentioned

health problems, the extremely high blood

and cholesterol levels that she was

laboring under and the tragic death of her

daughter approximately eleven days after

her attorney substituted out of the case,

rendered, I believe, Ms. Braswell

198a

incapacitate and incapable of competently

handling her employment discrimination

case.

I declare under penalty of perjury

under the laws of the State of California

that the foregoing is true and correct.

' Executed on March 10, 1993 at Canoga

Park, California.

DATED: March 10, 1993

By: ALAN S. RUTTENBERG, M.D.

Alan S. Ruttenberg, M.D.

199a

CURRICULUM VITAE

Alan 8. Ruttenberg, M.D.

BORN: Philadelphia, March 19,

1939

HOME ADDRESS: 19510 Weeburn court

Tarzana, CA 91356

EDUCATION

1959-1963 Attended University of

Pennsylvania School of

Medicine.

1964-1967 psychiatric residency at

the Neuropsychiatric

Institute, UCLA

ee ern ee eee

1967-1969

1969-present

969-

200a

Psychiatrist at the U.S.

Naval Hospital, Philadel-

phia, Pennsylvania

Private practice of

Psychiatry in West San

Fernando Valley

Assistant Professor of

Psychiatry, UCLA

Active staff member at

Northridge Hospital, Humana

Hospital West Hills and Nu

Med Regional Medical Center

Chief of Psychiatry,

Northridge Hospital

201a

1978-present . chief of Psychiatry, Humana

Hospital West Hills

1970 certified in psychiatry by

the American Board of

Psychiatry and Neurology:

AREAS OF SPECIAL INTEREST —~- Drug and

alcohol treatment, depression, hospitali-

gation for more severe psychiatric

disorders, marital conflicts, panic and

anxiety disorders.

202a

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