Opinion
No. C 99-3029 SI
January 8, 2001
ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT
On December 15, 2000, the Court heard argument on the motion by defendants Oakland Unified School District and Carol Quan for summary judgment on plaintiffs First Amended Complaint. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS defendants' motion for the reasons set forth below.
BACKGROUND
Plaintiff Wellborn Freeman Jr. ("Freeman") brought this action alleging race-based employment discrimination and retaliation against Oakland Unified School District ("OUSD"), former OUSD Superintendent Carol Quan ("Quan"), and Oakland Education Association ("OEA"). Freeman is a teacher at Calvin Simmons Middle School ("Calvin Simmons") in Oakland, California. Declaration of Wellborn Freeman in Opp. to Motion Summ. J. ("Freeman Decl."), ¶ 2. He has taught in OUSD since 1977, and at Calvin Simmons since 1993. Id.
At the beginning of the 1997-98 school year, OUSD increased the number of periods in a school day at its middle schools from six to eight periods. Declaration of Peter Haberfield in Supp. Motion Summ. J. ("Haberfield Decl."), ¶ 4. OEA, the exclusive bargaining representative for certificated OUSD employees, objected to the eight period school day and on December 2, 1997, filed a grievance and unfair practice charge with the California Public Employment Relations Board ("Cal. PERB"). Id. at ¶ 5 and Ex. A. OEA alleged that the new eight period day violated a collective bargaining agreement between OUSD and OEA concerning the maximum allowable daily student contacts required of teachers. Id. at ¶ 5 and Ex. B. Sometime in March 1998, OUSD and OEA came to a settlement, and agreed that the six period school day would be reinstated across the district, but individual schools may elect for an eight period day. Id. at ¶ 8.
After this settlement, OEA withdrew its grievance and unfair practice charge against OUSD before Cal. PERB. Haberfield Decl., ¶ 9.
In the Spring of 1998, Calvin Simmons Middle School elected to have the eight period school day. Declaration of Delores Delbarco in Supp. Motion Summ. J. ("Delbarco Decl."), ¶ 12; Haberfield Decl., ¶ 9. Plaintiff voted against this decision. Freeman Decl., ¶ 9. Thereafter, Freeman and a number of other teachers at Calvin Simmons filed grievances with OEA to challenge Calvin Simmons' decision to switch to an eight period school day. Freeman Decl., ¶ 11. OEA declined to investigate the grievances, relying on the prior settlement allowing individual schools to opt for the eight period day. Haberfield Decl., ¶ 14. After filing the grievances, Freeman alleges that he suffered retaliatory action, including exclusion from the Faculty Council at Calvin Simmons. Freeman Decl., ¶ 15 and Ex. B. Every OUSD school has a Faculty Council comprised of teachers elected annually by the school faculty; the Faculty Council represents teachers on matters relating to operation of the school. Haberfield Decl., ¶ 13.
On March 4, 1999, Freeman filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on race and sex in the Fall 1998 Faculty Council election at Calvin Simmons Middle School. Deposition of Joyce Hendy ("Hendy Depo."). 7:4-12, 34:19-22, supporting exhibits (EEOC Complaint No. 376990208); Freeman Decl., Ex. B. The EEOC charge alleged that Calvin Simmons principal Robert Carraveo, the Faculty Council chairperson, and another teacher orchestrated the election in a manner that ensured Freeman would not be elected onto the Faculty Council. Hendy Depo., supporting exhibits. The EEOC issued a Right to Sue letter based on this claim on March 24, 1999.See Hendy Depo., supporting exhibits. On June 21, 1999, Freeman filed the instant action against OUSD, former OUSD Superintendent Carol Quan, and OEA.
On December 5, 2000, by stipulation of the parties, the Court dismissed defendant OEA from the lawsuit, with prejudice. The remaining defendants, OUSD and Carol Quan, now move for summary judgment.
LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty. Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
DISCUSSION
Defendants argue that Freeman's suit is barred because he cannot satisfy the subject matter jurisdiction requirement for Title VII claims. According to defendants, there are no genuine issues of contend that this failure to exhaust remedies bars federal adjudication of Freeman's Title VII claim, and the First Amended Complaint accordingly must be dismissed. Freeman counters that his suit is saved by the continuing violations doctrine.
A. Jurisdictional Requirement of Title VII
To satisfy federal subject matter jurisdiction for Title VII claims, a plaintiff must exhaust all administrative remedies on those claims before filing a lawsuit in federal court. See 42 U.S.C. § 2000e5(f); EEOC v. Farmer Brothers Co., 31 F.3d 891, 899 (9th Cir. 1994); Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). However, the exhaustion requirement does not bar a plaintiff from seeking judicial relief for incidents or claims of discrimination not raised in the original EEOC charge, if the new incidents or claims are "like or reasonably related to the allegations of the EEOC charge." Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). Therefore, "[t]he jurisdictional scope of a Title VII claimant's court action depends upon the scope of both the EEOC charge and investigation." Sosa, 920 F.2d at 1456 (citing Green v. Los Angeles Co. Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989)). Courts must give the EEOC charge a broad construction because they are often framed by those without technical knowledge required for formal pleading. Kaplan v. International Alliance of Theatrical and Stage Employees, 525 F.2d 1354, 1359 (9th Cir. 1975); Sosa, 920 F.2d at 1458. New claims or incidents of discrimination can be like or reasonably related to allegations of the EEOC charge if they fall "within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Yamaguchi v. U.S. Dep't of the Air Force, 109 F.2d 1475, 1480 (9th Cir. 1997).
Freeman's EEOC charge filed in March 1999 alleges race and sex discrimination in the Fall 1998 Faculty Council election at Calvin Simmons. Hendy Depo., supporting exhibits. He identifies Calvin Simmons' principal Carraveo, the Faculty Council chairperson and another teacher as the discriminators. Id. According to Freeman, these three individuals orchestrated an election slate that guaranteed his exclusion from the Faculty Council. Id. By comparison, Freeman's First Amended Complaint alleges only race discrimination and cites six incidents that constitute discrimination. See First Amended Complaint, ¶ 9. In particular, Freeman alleges that defendants discriminated against him:
(1) by requiring Freeman to teach approximately 30 students during the 1997-98 school year, which was in excess of the contract agreement between OUSD and OEA;
(2) through the execution of a separate agreement between OUSD and OEA in violation of the collective bargaining agreement;
(3) by allowing other teachers to teach at most only the prescribed number of students as determined by the collective bargaining agreement during the 1997-98 school year;
(4) by retaliating against Freeman for objecting to the assignment of approximately 30 students to him during the 1997-98 school year, by subsequently assigning 42 students to him during the 1998-99 school year as a form of harassment;
(5) by allowing other, non-African-American teachers to teach at most only the prescribed 12 number of students for the 1998-99 school year; and
(6) by failing to remediate after Freeman filed grievances and charges/claims of discrimination.Id. These allegations were not included in the March 1999 EEOC charge and are actionable only if they are like or reasonably related to the allegations in the EEOC charge.
None of the allegations in the First Amended Complaint involve the Faculty Council election, which was the sole subject of the EEOC charge. Instead, the allegations in the complaint relate exclusively to class size and student contacts at Calvin Simmons and the manner in which OUSD and OEA handled the dispute over the switch to an eight period school day. Furthermore, the EEOC charge focuses on a particular Faculty Council election in Fall 1998 that allegedly was fixed by three faculty members at Calvin Simmons. In contrast, the allegations in the complaint do not involve actions by these faculty members, but actions by OUSD and OEA affecting class size at middle schools throughout the district.
The purpose of the Faculty Council is to "provide a means of communication between the faculty and principal of the school on matters relating to improvements related to the operation of the school and settling differences on items of common concern." Haberfield Decl., ¶ 13. Exclusion from the Faculty Council might impede Freeman's ability to participate in decisions affecting Calvin Simmons. Although the First Amended Complaint challenges assignment of classes at Calvin Simmons, the principal at Calvin Simmons, not the Faculty Council, determines class scheduling. See Declaration of Brenda Bias in Supp. Motion Summ. J. ("Bias Decl."), ¶ 2. Thus, Freeman's alleged exclusion from the Faculty Council is not related to the allegations that he was subjected to discriminatory decisions in assigning classes. In addition, Freeman's exclusion from the Faculty Council is unrelated to his ability to participate in decisions made by OUSD and OEA concerning the eight period school day. A reasonable EEOC investigation of Freeman's March 1999 charge would not focus beyond Freeman's ability to participate in administrative decision-making at Calvin Simmons.
Freeman has failed to show that the allegations in the First Amended Complaint are "like or reasonably related" to allegations made in the March 1999 EEOC charge.
B. Continuing Violations Doctrine
Freeman counters that the continuing violation doctrine applies in this case to connect the allegations in the First Amended Complaint and the EEOC charge. Freeman alleges that his exclusion from the Faculty Council is part of the series of retaliatory acts that was alleged in the First Amended Complaint. Plaintiff's Opposition, at 9 ("EEOC charge arises from the incidents alleged in the complaint and specifically relates to resulting incidents."). Freeman claims that the retaliation was for filing the OEA grievances protesting class size and the decision to switch to the eight period day. Freeman Decl., ¶ 14. Freeman argues that these allegations sufficiently support a continuing violation theory. According to Freeman, because the EEOC charge alleged one act in a series of acts constituting the continuing violation, all the other acts in the continuing violation (as alleged in the First Amended Complaint) are "like or reasonably related" and thus not barred.
At oral argument, Freeman's counsel only argued that the retaliation claim in the First Amended Complaint relates back to the EEOC charge. See First Amended Complaint, ¶ 9(4). As discussed supra in Part A, the other claims and alleged incidents of discrimination directly involve class size and thus are not like or reasonably related to the EEOC charge. Therefore, Freeman's argument involving the continuing violation doctrine focuses only on the retaliation claim in the First Amended Complaint, and only this claim of retaliation will be actionable if it satisfies the jurisdictional requirement.
The continuing violation doctrine provides relief against "a systematic policy of discrimination . . . [even though] some or all of the events evidencing its inception occurred prior to the limitations period . . . [because] the continuing system of discrimination operates against the employee and violates his or her rights up to a point in time that falls within the applicable limitations period." Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.), cert. denied, 459 U.S. 971 (1982). Moreover, a continuing violation may be established "not only by demonstrating . . . [a] wide policy or practice, but also by demonstrating a series of related acts against a single individual."Sosa, 920 F.2d at 1455 (quoting Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989)) (alterations in original).
Title VII provides that plaintiffs must file a charge of discrimination with the EEOC within 180 days of an act of discrimination. 42 U.S.C. § 2000e-5(e). The 180-day limit operates as a statute of limitations barring suit of alleged discriminatory incidents occurring prior to the 180-day period. Sosa, 920 F.2d at 1455. However, incidents of discrimination occurring outside of the limitations period can still be actionable if they are part of a "continuing violation" of Title VII. Williams v. Owens-Illinois, 665 F.2d 918, 924 (9th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302 (1982) ("A systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.").
Freeman argues that because his First Amended Complaint alleged a continuing violation theory that reaches back to cover the incident alleged in the EEOC charge, he has met the jurisdictional requirement. This erroneously conflates the jurisdictional requirement into the continuing violation theory. The continuing violation doctrine is not a substitute for the subject matter jurisdiction requirement. The plaintiff must still show that any incidents or allegations raised in a judicial complaint were included in, or at least like or reasonably related to, allegations in the EEOC charge. See Greenlaw v. Garrett, 59 F.3d 994, 1000 (9th Cir. 1994) ("[T]he doctrine of continuing violations draws within the ambit of a Title VII claim all conduct occurring before or after the filing of the EEO charge, providing the conduct is `like or reasonably related to' the events charged.") (emphasis added). Thus, if an EEOC charge alleges a continuing violation theory, the subsequent judicial complaint can allege incidents not previously raised in the EEOC charge but part of the continuing violation. The continuing violation theory must arise out of the EEOC charge, not the complaint as with this case.
It is not required that the EEOC charge specifically raise a continuing violation theory. See Chung v. Pomona Valley Community Hospital, 667 F.2d 788, 790 (9th Cir. 1982); Sosa, 920 F.2d at 1457 ("Even where . . . [plaintiffs] have failed to allege a continuing violation theory specifically in their EEOC complaint, [courts] have permitted suit on a continuing violation theory."). However, the allegations in the EEOC charge must at least be sufficient to allow an inference of a pattern or practice. See Chung, 667 F.2d at 790 ("Chung's EEOC charge alleged a number of discriminatory acts that suggest a pattern."); Sosa, 920 F.2d at 1457 ("Sosa's EEOC charge expressly alleged a `pattern and practice' of retaliation discrimination. . . . [and] a course of `intimidation, harassment and disparate treatment with respect to terms and conditions of employment."); Kushner v. Glickman, C 96-1380 (MHP), 1997 WL 419402, *7 (N.D. Cal. 1997) (plaintiffs EEO complaints alleged "ongoing problems with management," "a pattern and practice," and "specific incidents . . . of hostile work environment.").
Freeman's EEOC charge alleges only one incident of discrimination — the Fall 1998 Faculty Council election at Calvin Simmons. No other incidents of discrimination were alleged. Freeman also does not indicate that the discrimination in the election was part of a larger problem or was similar to problems in the past. Nothing in Freeman's EEOC charge explicitly or implicitly suggests retaliation, a pattern or practice of discrimination, or anything else that could support a continuing violation theory.
None of the claims in the First Amended Complaint falls within the jurisdictional scope arising out of the March 1999 EEOC charge. Freeman has not received a right to sue letter from the EEOC concerning the allegations in his First Amended Complaint. He therefore has not exhausted all remedies with respect to these claims. Freeman's entire First Amended Complaint lacks subject matter jurisdiction.
C. Prima Facie Case of Discrimination
Even assuming Freeman had met the jurisdictional requirement to bring his Title VII claims, the record is devoid of evidence to establish a prima facie case of discrimination, or to raise a genuine dispute of fact about it. To establish a prima facie case of disparate treatment, Freeman must offer evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Freeman offers no direct evidence of discriminatory intent. To make out a prima facie case of intentional discrimination based on indirect or circumstantial evidence, Freeman must satisfy the formula set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and reaffirmed and clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). For a claim of disparate treatment in the terms of employment, Freeman bears the burden of showing that similarly situated employees receive different wages or benefits than he receives, and that the discrepancy is due to his status in a protected class. United States District Court v. California Teachers' Association, C-97-4525 (MHP), 1999 WL 169525, *9 (N.D. Cal. 1999).
After examining Freeman's declaration and excerpts of his deposition submitted by defendant, the Court finds the following allegations of racial discrimination:
The only evidence Freeman offered in opposition to defendant's motion for summary judgment is his own declaration, with two attached exhibits. Freeman did not present excerpts from his deposition, and he does not object to the excerpts submitted by defendant.
1) Increase in Class Size Due to Switch to a Six-Period School Day
According to Freeman, after the faculty at Calvin Simmons voted to have a six-period school day, "[t]he teachers, including me, whose student load was actually increased were all minorities." Freeman Decl. ¶ 10. Freeman offers no other evidence besides this conclusory statement to substantiate this claim, nor does he provide foundational evidence to demonstrate his knowledge. During deposition questioning, however, Freeman equivocates from this statement and at times even contradicts the statement. When asked if only African-American teachers exceeded the class size limit, Freeman responded "no," recalling that white teachers also exceeded the limit. See Freeman Depo. 73:3-9; 54:69; 79:16-19. Freeman has not raised a genuine issue of fact that the increase in class size was intentional discrimination.
2) Retaliation for Grieving the Vote to Switch to a Six Period School Day
Freeman filed a grievance, along with other non-African-American teachers, before OED protesting the vote to have a six period school day. According to Freeman, after filing the grievance, he "experienced more than nine months of retaliatory harassment for [his] opposition to coring and its impact on minority students and teachers." Freeman Decl. ¶ 14; see also id. at ¶ 20 ("Clearly the conduct of the administration of Calvin Simmons followed a pattern of intentional degradation, which started when I tried to represent the interests of both minority staff and students in opposing the coring schedule."). Defendants object, correctly, that his statement is inadmissible opinion and conclusion and that it lacks foundation. On these grounds, this statement fails to establish a prima facie case.
In any event, a Title VII retaliation claim must be premised on the exercise of protected activity. 42 U.S.C. § 2000e-3(a); Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754, 755 (9th Cir. 1997). Freeman was protesting the vote to switch to a six period school day. Title VII does not govern class size in public schools. Freeman was not exercising protected activity when he claims that defendant retaliated against him. Furthermore, non-African-American teachers also grieved the vote as Freeman did. Freeman therefore cannot raise a genuine dispute that the alleged retaliation for grieving was due to his race or to his exercise of a protected activity.
3) Requiring African-American Teachers to Move From Classroom to Classroom
According to Freeman, at the beginning of the school year in September 2000, "all the other African American teachers were then told we would not have regular classrooms, but would have to move from room to room throughout the day." Freeman Decl. ¶ 19. Freeman offers no evidence to support this statement, or to demonstrate that the statement is based on his own personal knowledge. Conclusory, speculative testimony is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty. Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
4) African-American Teachers Were Disproportionately Required to Substitute for Absent Teachers
At Calvin Simmons, when a substitute teacher was not available, the teachers at the school would be required to substitute for absent teachers. According to Freeman, African-American teachers were required to substitute for absent white teachers and African-American teachers. However, Freeman claims that white teachers were not required to substitute for absent African-American teachers. See Deposition of Wellborn Freeman, 14:20-23. Again, Freeman offers no independent evidence to corroborate this claim. He only offers his own opinion, without laying a foundation that the opinion is based on his own personal knowledge. The Court does not find such a speculative and conclusory statement to raise a genuine issue of fact.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment. This Court is a court of limited jurisdiction, and has determined that subject matter jurisdiction is lacking. Alternatively, the Court finds that plaintiff has failed to produce evidence giving rise to an inference of unlawful discrimination and has thus failed to establish a prima facie case of disparate treatment.
IT IS SO ORDERED.