# Appendix — Braswell v. Los Angeles Unified School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0449%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 964 ## 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 .. . Civil Minutes--General .. . (iii.1a) (iv. la) .1a) 1a) 6a) 6a) . 8a) 9a) la 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 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) ee 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) Ce 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) la 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 2a 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 3a 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 4a 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"). 5a 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 6a 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- 7a 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. i | 8a 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. 9a 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 s 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. a a 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 j a 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 ‘ g ee] 8 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 af ¢ # 4 x 4 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 ; ‘ 3 2 } 4 3 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 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 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 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 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, v. 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- ee 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. ie 9 ‘ ; f | 5 2 9 pa 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 dism [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0449%3A2. Public record. Not legal advice.