Opinion
No. C 02-1573 JL.
June 29, 2004
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS Granting Docket # 26; Dismissing with Prejudice Complaint Against Union Defendants
Introduction
Before the Court is the motion of Lynnette Giacobazzi and USS-Posco Industries ("Defendants") for summary judgment. Howard Moore, Jr. Appeared for Plaintiff. Cory S. Anderson appeared for Defendants. The matter having been considered and good cause appearing, it is hereby ordered that summary judgment is granted. Edwards claims discrimination, retaliation and hostile work environment based on the termination of his 27-year employment with USS Posco Industries ("UPI" or "Defendant"). UPI maintains that it terminated Edwards solely because he made "credible threats of violence" against UPI employees. The Court finds that Edwards fails to make his prima facie case for racial discrimination because he does not show a nexus between his termination and racial animus. Edwards fails to make a prima facie case for retaliation because he fails to show a nexus between his termination and protected behavior. Edwards' prima facie case for hostile work environment also fails because he does not show that the frequency and severity of UPI's actions affected his work performance. In his opposition, Edward submitted additional facts and affidavits of new witnesses. However, these additional statements are largely unsubstantiated or inadmissible. Therefore, Edwards does not meet his burden to present "specific and substantial" evidence required to defeat a motion for summary judgement on claims for racial discrimination, retaliation or hostile work environment. This court grants Defendants' Motion for Summary Judgement on all of Plaintiff's causes of action. Plaintiff's complaint against United Steel Workers of America-AFL-CIO and Local 1140 is dismissed with prejudice for failure to prosecute.
Procedural Background
Edwards filed his discrimination complaint in the Northern District of California on March 1, 2002. All parties consented to the jurisdiction of ths Court as required by 28 U.S.C. § 636©). Defendants then filed their Motion to Dismiss, Motion for More Definite Statement, and Motion to Strike on August 30, 2002. This court issued an order on November 25, 2002, denying in part and granting in part. As per the order, plaintiff filed a First Amended Complaint on January 2, 2003. Case management conferences were held on February 5, 2003 and September 9, 2003. Defendants requested a jury trial which is currently set for July 12, 2004. Defendants filed this Motion for Summary Judgment on September 2, 2003. This motion was heard October 29, 2003.
Factual Background Plaintiff's Employment with UPI
On or about April 4, 2001, Defendant USS-Posco Industries (UPI) terminated the employment of Plaintiff Ezell Edwards. (Exhibit M. To Defendants' Motion) UPI or its predecessor had hired Edwards in 1974 and, excepting several layoffs and reinstatements, continued his employment until the April 2001 termination. Edwards received neither promotions nor any training that would have facilitated promotion until 1999, after he filed a discrimination charge with the California Department of Fair Employment and Housing. (Pl.'s P. A. In Opp'n, p. 2.)
Plaintiff received a written reprimand for abusive language in 1995 and another written reprimand for profane language in 1997. (Hanley Reply Decl. Ex. 1-2.) In 1997 and in 2000, Edwards filed charges of racial discrimination against UPI with the California Department of Fair Employment and Housing (DFEH) and with the United States Equal Employment Opportunity Commission (EEOC). DFEH dismissed these claims in 1998 and 2000, respectively, on the basis of "No probable Cause To Prove Violation of the Statute." (Exhibits to Request for Judicial Notice in Support of Defendants' Motion, RJN 1-3.) Edwards became increasingly frustrated with UPI during this period of his employment.
The Triggering Incident
On March 19, 2001, Walter Rowell, Edwards' shift supervisor, reminded Edwards to wear his safety glasses. When Rowell subsequently saw Edwards not wearing his safety glasses, he repeated his order to wear them. Later that day Edwards approached Rowell in the office of another supervisor, and in front of two other supervisors, stated: "You know what time I get off, you know where the parking lot is at, and you know what time I'll be out there. We'll just take care of this." Each of the three witnesses perceived this statement to be a threat. The mill manager, Lynette Giacobazzi, investigated the incident and issued a disciplinary action against Edwards for violation of company policy prohibiting the use of threatening language. By this action she suspended Edwards' employment for four days subject to permanent discharge. During these four days UPI continued to investigate the incident and upon receiving more information from other employees regarding Edwards' behavior, issued an additional 5-day suspension, also subject to permanent termination. On March 22, 2001, UPI contacted the police regarding Edwards' threats and the police arrested Edwards on related charges. On April 4, 2001, UPI terminated Edwards employment.
The TRO
On April 6, 2001, UPI requested a temporary restraining order (TRO) against Edwards, under California Code of Civil Procedure § 527.8, the "Workplace Violence Statute." The Contra Costa County Superior Court issued a restraining order and renewed it several times over the summer. In October, Judge Steven Austin extended the TRO for three years. Edwards moved to modify the TRO, but Judge Austin denied the motion in February 2002. Edwards appealed the denial, and on August 18, 2003, the California Court of Appeal for the First Appellate District affirmed, deciding that in part that by "clear and convincing" evidence that Edwards made "credible threats of violence" against UPI employees. (Exs. RJN 5-15, Defendants' Request for Judicial Notice in Support of Motion; USS-Posco Industries v. Edwards, 111 Calliope.4th 436 (2003).Plaintiff's Union Grievances
Following the March 19, 2001 incident and his subsequent termination, Edwards and his union filed a grievance with UPI regarding the reprimand, suspension and termination. After a "second-step" hearing, UPI denied his grievance on May 1, 2001. Edwards and his union appealed to the third step of the grievance process. UPI affirmed the denial on December 1st, 2001. The union withdrew support of Edwards' grievance on January 25, 2002, citing lack of merit.
Legal Argument
Plaintiff charges Defendants with racial discrimination, retaliation for Plaintiff's discrimination grievances, hostile work environment, and violation of public policy.
1st Claim: Race Discrimination — Violation of 42 U.S.C. § 1981 — Against UPI
2nd Claim: Retaliation — Violation of 42 U.S.C. § 1981 — Against UPI Giacobazzi
3rd Claim: Hostile Work Environment — Violation of 42 U.S.C. § 1981 — Against UPI
4th Claim: Race Discrimination — Violation of Cal. Gov. Code § 12940 — Against UPI
5th Claim: Retaliation — Violation of Cal. Gov. Code § 12940 — Against UPI Giacobazzi
6th Claim: Race Discrimination — Violation of 42 U.S.C. § 1981 — Against Union Defendants
7th Claim: Violation of Public Policy — Cal. Cons. Art. 1, § 8 Gov Code §§ 12920 12940(a) — Against UPI Giacobazzi. (First Amended Complaint)
The United Steel Workers of America-AFL-CIO and Local 1440 have not been served with the Summons and Complaint. Plaintiff failed to serve them even though the Court at the Case Management Conference on February 5, 2003, ordered Plaintiff to serve the Union Defendants within forty days or his complaint against them would be dismissed with prejudice.
Plaintiff bases his claims for discrimination and retaliation on his termination by UPI. He alleges facts, events and omissions that occurred during the course of his 27-year employment. These include:
1. UPI's failure to train or promote Edwards while non-minority employees with less seniority received training and promotion;
2. Defendants' role in Edwards' "false arrest" for alleged threats;
3. Defendants' reprimand of Edwards for taking time off to care for his son;
4. Defendants' reprimand of Edwards for not wearing his safety glasses;
5. Defendants' denial of contract pay for tractor work;
6. Edwards' discovery of nooses in the area in which he worked;
7. Defendants' restriction of Edwards' freedom of speech where non-minority employee's speech was not restricted; and
8. Defendants' employment of a lower percentage of black employees, than the percentage of blacks in its applicant pool or in the surrounding community. ( Id.)
Defendants move for summary judgment on the ground that there is no genuine issue as to any material fact that Edwards' claims. Defendants assert that UPI Giacobazzi treated Edwards the same as other similarly situation non-minority employees; Edwards cannot prove a causal connection between filing his civil rights claims against UPI and his termination; Edwards cannot refute UPI's nondiscriminatory reason for his termination; and Edwards cannot show that UPI's alleged conduct interfered with Edwards' employment.
Legal Analysis Discrimination Claims
Edwards' claim of employment discrimination is subject to the McDonnell Douglas burden-shifting analysis. Under this analysis if the employee claiming discrimination meets his burden of establishing a prima facie case that he experienced adverse employment action due to his race, then the burden shifts to the employer either to dispute that the employee made his prima facie case or to present evidence that the employer had a justifiable reason for the adverse action. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-1063 (9th Cir. 2002).
If a defendant shows that a plaintiff is unable to meet the burden to establish a prima facie case, or that the adverse employment action was based on non-discriminatory factors, then in order to defeat a motion for summary judgment, the employee must produce "specific, substantial evidence" that the employer's explanations were pretextual or that the employer acted with discriminatory intent. Wallis v. J.R. Simplot Co. 26 F.3d 885, 890 (9th Cir. 1994), Horn v. Cushman Wakefield Western, Inc., 72 Cal.App.4th 798, 799 (1999), Aragon v. Republic Silver State Disposal Inc. 292 F.3d 654, 658-659 (9th Cir. 2002).
Thus in order to prevail on its motion for summary judgment UPI must show either that Edwards did not make a prima facie case or that UPI based the adverse employment actions on non-discriminatory reasons. If UPI meets this burden then Edwards must produce "specific, substantial" evidence that the adverse employment actions or omissions were discriminatory.
In an employment discrimination claim, plaintiff makes his prima facie case for discrimination when he shows that:
(1) He belongs to a racial minority;
(2) He applied and was qualified for the job in question;
(3) Despite his qualifications, he received adverse employment action, and
(4) After this action, similarly situated non-minority employees were treated differently. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063.
Defendants assert that Edwards did not meet his burden to make a prima facie case because he failed to establish the nexus between the adverse employment action and racial discrimination and thus did not meet the fourth element. Edwards bases all claims on the facts, events and omissions listed above. While these facts imply discord in the relationship between Edwards and UPI, Edwards states only that UPI treated non-minorities differently in training, promotion, speech and the ratio of black employees to non-black employees. He fails to establish any racial nexus for the remaining issues.
Defendants also assert that they based the adverse employment action, Edwards' termination, solely on the non-discriminatory fact of Edwards' threats toward his supervisors and fellow employees. In addition to the affidavits of witnesses who atleast to these threats, Defendants offer the three-year restraining order issued by the Superior Court of California which was affirmed by the Court of Appeal. That court found that UPI established by "clear and convincing" evidence that Edwards made "credible threats of violence" against UPI employees: "The lunch room threats, the Rowell incident, and the reasonable concern that Edwards might retaliate for his suspension and termination provided clear and convincing evidence of a credible threat of future violence directed at Giacobazzi." USS-Posco Industries v. Edwards, 111 Cal.App.4th 436, 445 (2003).
Collateral estoppel prevents this court for from reconsidering any issues that the State court has "actually litigated and necessarily decided." Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996). The state court already adjudicated whether or not Edwards made credible threats toward his employers and co-workers. UPI claims that it terminated Edwards on the basis of those threats. Thus, UPI has met its burden of showing a non-discriminatory reason for Edwards' termination.
The Retaliation Claims
A retaliation claim is also subject to the McDonnell Douglas burden shifting analysis Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994). To make his prima facie case on a retaliation claim, Plaintiff must show that:1) He engaged in a protected activity,
2) He suffered an adverse employment action, and that
3) There was a causal link between plaintiff's activity and the employment decision. Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002), citing Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997).
UPI asserts that Edwards did not establish a prima facie case for retaliation, because he cannot show the third element: a causal connection between the protected behavior and the adverse employment action. Edwards asserts that he engaged in the protected activity of filing civil rights actions against UPI in 1997 and 2000, and that there is a causal connection between these actions and his termination in 2001. In support of this claim, plaintiff asserts that after filing charges against UPI the facts, events, and omissions previously listed as numbers (1)-(8) [at p. 5 above] occurred.
Although Edwards engaged in protected behavior (making civil rights claims against UPI in 1997 and 2000) and he experienced adverse employment action (termination), he fails to establish the causal link. In some circumstances, the timing of events can be enough to make a causal link. "When adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred. Moreover, we have held that evidence based on timing can be sufficient to let the issue go to the jury, even in the face of alternative reasons proffered by the defendant." Passantino v. Johnson Johnson Consumer Products, Inc., 212 F.3d 493, 507 (9th Cir. 2000) (Internal citations omitted).
However, in this case, although the termination did take place after Edwards engaged in the protected behavior, the three years between the termination and the first civil rights claim and the one year between the termination and the second civil rights claim precludes finding a clear causal connection based on timing above. The other events that took place between the civil rights claims and termination also do not prove a causal link. Each seems to have a story or explanation of its own, and Edwards has not explained how those events indicate that UPI retaliated by terminating him.
Edwards contends that because his termination occurred only four months after he received his `right to sue' notice, that this establishes a causal link between his claim and his termination. [Plaintiff's P A in Opp'n p. 15-16.] However, a claim of retaliation is based on the protected behavior, which in this case would be filing the civil right claims, not the notice of right to sue. It makes more sense to calculate the time between the protected behavior occurred and the termination. Edwards filed his second civil rights claim on January 10, 2000, and UPI terminated his employment on April 4, 2001. This lapse more than a year between events does not create a casual link based on timing. Edwards suggests that the gap in time between the claim and the termination may have been purposeful, to hide UPI's true intentions. [Plaintiff's P A in Opp'n p. 15-16.] However, this suggestion does not refute UPI's assertion that it fired Edwards for the threats he made against UPI and his co-workers.
UPI asserts that it based Edwards' termination solely on Edwards' threats. Therefore, even if Edwards could make the causal connection between the termination and his civil rights claims, UPI had a justifiable reason for his termination. As proof of these threats UPI filed depositions by several employees who witnessed Edwards' threats of violence. UPI also cites the evidence of Plaintiff's threats in a three-year restraining order issued by the Superior Court of California and affirmed by the Appellate Court of California, that established by "clear and convincing evidence" that Edwards made credible threats toward his employers. USS-Posco Industries v. Edwards, 111 Cal.App.4th 436, 445 (2003).
The doctrine of collateral estoppel prevents this Court from reassessing any issues that the state court has "actually litigated and necessarily decided." Moore v. Brewster, 96 F.3d 1240. The state court decided that Edwards made credible threats against his employers and his co-workers. Since that fact has been firmly established, and UPI claims to have terminated Edwards in response to those threats, Defendant has met its burden to assert a justifiable non-retaliatory reason for Edwards' termination.
Defendants claim that Edwards is also collaterally estopped from asserting a claim of retaliation because the California court found no evidence of a retaliatory motive on the part of UPI. However, that issue was not actually litigated in the California court. As the appellate court stated, the trial court found no evidence of retaliation because "Edwards never presented this argument to the trial court." 111 Cal.App.4th at 445.
Thus, although Edwards is not collaterally estopped from claiming retaliation, because USS Posco has asserted a justification for Edwards' termination, the burden now shifts back to Edwards to show "specific and substantial" evidence that UPI fired him in retaliation for his civil rights claims. This Edwards has failed to do.
Hostile Work Environment
Edwards claims that UPI subjected him to a hostile work environment on the basis of his race in violation of 42 U.S.C. § 1981. In order to show a hostile work environment due to race, the plaintiff must show that:
1) He was subjected to verbal or physical conduct because of his race,
2) The conduct was unwelcome, and
3) The conduct was sufficiently severe or pervasive to alter the conditions of plaintiff's work environment and created an abusive work environment.Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998).
UPI asserts that Edwards cannot show the third element of the claim, that UPI's conduct was sufficiently severe or pervasive. In considering the severity and pervasiveness of the conduct, the court examines the frequency and severity of the conduct, the degree to which it is threatening or humiliating, and whether it interfered with the employee's performance. Clark County School Dist. v. Breeden, 532 U.S. 268, 270-271 (2001). Salter v. Washington Tp. Health Care Dist. 260 F. Supp.2d 919, 926-927 (N.D.Cal. 2003).
This is Edwards' only claim that does not result solely from his termination. However the evidence Edwards cites to support this claim is the same. He has not made established a significant connection between any of these claims and racial animus, nor has he asserted how these claims affected his ability to perform his job. Thus, Plaintiff fails to meet his burden to defeat summary judgment.
Edwards' Opposition to Defendants' Motion for Summary Judgment
As detailed in the sections above, Edwards does not provide sufficient facts in his claim to defeat a motion for summary judgement. In order to do so he must present "specific and substantial" evidence to show that UPI's reason for his termination was pretexual. In order to continue with his claim of hostile work environment, Edwards must show that his UPI's actions were sufficiently severe or pervasive to affect his ability to perform his job.
In his opposition, Edwards offers his own statements and those of other UPI employees to substantiate his claim that UPI treated white employees differently from black employees (in discipline and in opportunity for promotion), that racial epithets and graffiti were common at the plant, that Edwards experienced discrimination, and that he openly opposed that discrimination both verbally and in writing. Edwards also submits testimony suggesting that he may not have made the threats for which UPI claims to have fired him. He reiterates that these facts show that UPI fired him based on racial discrimination and retaliation and that UPI subjected him to a hostile work environment.
First, Edwards cannot successfully oppose Defendants' motion by denying that he made the threats for which UPI claims to have fired him. The state court's ruling estops Edwards from claiming that he did not make "credible threats," and it is undisputed that UPI claims to have fired him on the basis of those threats.
The additional facts that Edwards submits to support his claim are problematic for several reasons. He includes declarations of three witnesses who were not initially disclosed, and so their testimony may be inadmissible and therefore inadequate to refute summary judgment. Further, several statements Edwards uses to support his claim were made by witnesses who were not employees of UPI at the time of his termination. They testify to the general atmosphere of the plant while they were there, rather than to Edwards' experience while he was there. Also, much of their testimony is inadmissible hearsay. In addition, Defendants submit evidence indicating that some of the statements made by these former employees are factually false. (Reply Decl. Of Connally.)
Finally, Edwards submits his own testimony to support his claim. He makes several inadmissible hearsay statements. For example, "I was told by another employee that the word Sambo was written on the wall." (Plaintiff's Decl. In Opp'n, 4:6.) Also, some of this new testimony contradicts his earlier deposition testimony. In particular, in his deposition, he did not describe any specific instances of racial animus, but in his opposition he says a fellow employee referred to him using the "n" word. (Hanley Decl. Ex. Y, p. 384-385, Plaintiff's Decl. In Opp'n, 4:11-12.) Although the Court does not make credibility determinations at the summary judgment stage, the conflicts in Plaintiff's own testimony dilute its significance.
Thus Edwards' opposition does not provide "specific and substantial" facts to show a nexus between his termination and either racial discrimination or retaliation. Edwards does not show that UPI's reason for firing him was pretextual and he cannot defeat Defendants' motion for summary judgement for the discrimination and retaliation claims. Similarly, Edwards provides no further indication that UPI's actions were so severe as to affect his ability to perform, and therefore Edwards cannot defeat Defendants' motion for summary judgment on the hostile work environment claims.
Other Issues
Plaintiff's seventh claim is for "Violation of California Public Policy." Neither party discusses the details of this claim. Presumably this refers to wrongful termination in violation of public policy and would be tied to the fate of Plaintiff's claim of discrimination.
Conclusion
Plaintiff brings three types of claims: discrimination, retaliation and hostile work environment. The discrimination and retaliation claims are each subject to the McDonnell Douglass shifting burden analysis: Plaintiff must first establish his prima facie case; Defendant must then rebut with evidence of non-discriminatory intent; Plaintiff then must show "specific and substantial" evidence of his claim. Edwards does not make his prima facie case of discrimination or retaliation and does not show "specific, substantial" evidence that UPI's reason for his termination was pretexual. Regarding the hostile work environment claim, plaintiff has not made a prima facie case because he has not shown that the frequency and severity of UPI's actions affected his work performance. Therefore, Plaintiff's claims fail at the outset and the Court must grant Summary Judgment for Defendants on all causes of action. Defendants' motion is granted. Judgment shall be issued for Defendants. Plaintiff's complaint against the United Steelworkers of America AFL-CIO and Local 1140 is dismissed with prejudice for failure to prosecute.
IT IS SO ORDERED.