Opinion
No. 2:13-CV-2150-GEB-DAD
06-18-2015
JANELLE PEREZ, an individual, Plaintiff, v. CITY OF ROSEVILLE, ROSEVILLE POLICE DEPARTMENT, CHIEF DANIEL HAHN, an individual; CAPTAIN STEPHAN MOORE, an individual; and LIEUTENANT CAL WALSTAD, an individual, Defendants.
ORDER GRANTING EACH DEFENDANT'S SUMMARY JUDGMENT MOTION
The following Defendants seek summary judgment on claims in Plaintiff's First Amended Complaint ("FAC"): City of Roseville ("the City"), Roseville Police Department ("Police Department"), Police Department Chief Daniel Hahn, Police Department Captain Stephan Moore, and Police Department Lieutenant Cal Walstad. Plaintiff Janelle Perez alleges gender discrimination claims against each Defendant under Title VII of the federal Civil Rights Act of 1964 ("Title VII") and under California's Fair Employment and Housing Act ("FEHA"), and that Chief Hahn, Captain Moore, and Lieutenant Walstad (collectively the "Individual Officer Defendants") violated her federal constitutional rights to intimate association, privacy, and due process.
I. LEGAL STANDARD
A party is entitled to summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law." . . . The moving party has the burden of establishing the absence of a genuine dispute of material fact.City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A "dispute about a material fact is 'genuine,' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Summary judgment "evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of that party." Sec. & Exch. Comm'n v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011) (citing Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the materials do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1).
However, if the nonmovant does not "specifically . . . [controvert duly supported] facts identified in the [movant's]Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)).
statement of undisputed facts," the nonmovant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006). A district court has "no independent duty 'to scour the record in search of a genuine issue of triable fact.'"
II. UNCONTROVERTED FACTS
Each party submitted facts concerning the motion. The following facts are undisputed or "deemed" uncontroverted since they have not been controverted with specific facts as required by Local Rule 260(b). See Beard, 548 U.S. at 527 (stating when a party fails to "specifically . . . challenge the facts identified in [another party's] statement of undisputed facts, " the validity of the unchallenged facts is "deemed" to have been admitted).
Local Rule 260(b) prescribes:
Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
In 2011, Plaintiff applied for a Police Officer position with the City. (Pl.'s Opp'n to Defs.' Statement of Undisputed Facts ("Def. SUF") ¶ 3, ECF No. 35.) She was hired and received an "offer letter" from Chief Hahn dated January 4, 2012, which states she would "serve a probationary period of twelve (12) months[, and d]uring [her] probationary period [she] may be released from City service with or without cause at the sole discretion of the City." (Hahn Decl. ¶ 4 Ex. A, ECF No. 32-1.)
The "City" referenced in the letter is the department head, Chief Hahn, since Section 3.06.160 of the City of Roseville Personnel Rules & Regulation prescribes that probationary employees receive permanent employment "[i]f at the conclusion of the employee's probationary period, the employee's performance has been satisfactory in the opinion of the department head." (Hahn Decl. Ex. B, ECF No. 31-1) (emphasis added.)
Plaintiff began her probationary period on January 9, 2012. (Def. SUF ¶¶ 8, 10.) She was given a patrol assignment and a few months into the assignment, she and another officer, Shag Begley ("Begley") initiated a personal relationship; at the time, Plaintiff and Begley were both separated from, but legally married to other individuals. (Separate Statement of Add'l Material Facts ISO Pl. Opp'n ("Pl. SUF") ¶¶ 8-10, ECF No. 36.) On or about June 6, 2012, Begley's wife, Leah Begley, filed a citizen complaint concerning Plaintiff and Begley. (Def. SUF ¶¶ 23-24.) She alleged in that complaint that Plaintiff and Begley were having an affair and "suggested that Begley and [Plaintiff] were engaging in romantic interactions while on-duty." (Def. SUF ¶¶ 26-27.) Internal Affairs ("IA") opened an investigation of the complaint, which was headed by Lieutenant Troy Bergstrom. (Def. SUF ¶¶ 28-29.) Lieutenant Bergstrom concluded there was no evidence of sexual conduct between Plaintiff and Begley while on-duty, but that Plaintiff and Begley "made a number of calls and texts when one or both was on duty" and these communications were "potentially" violations of Police Department policy. (Def. SUF ¶¶ 36-38.)
Lieutenant Bergstrom provided his IA report to Captain Moore "for review and decision about whether disciplinary action should be imposed." (Def. SUF ¶ 39.) Captain Moore assigned Lieutenant Walstad to review the report for the purpose of recommending findings; Lieutenant Walstad recommended in a memo dated July 10, 2012 that the Department find Plaintiff's and Begley's on-duty cellphone use violated Police Department policy. (Def. SUF ¶¶ 42-43.) Captain Moore agreed with Lieutenant Walstad's findings and "felt" Plaintiff should be released from probation, but Chief Hahn "disagreed and felt a reprimand was" the appropriate sanction. (Def. SUF ¶¶ 49-50.) Captain Moore "issued a findings memo to each Perez and Begley stating that two alleged policy violations were 'sustained;'" and he "also issued written reprimands dated August 23, 2012, to both Begley and Perez, stating: (1) they made personal telephone calls while on duty that interfered with their work performance in violation of [Policy Manual] section 340.3.5(c); and (2) their personal relationship impacted and reflected unfavorably upon the Department in violation of [Policy Manual] section 340.3.5(aa)." (Def. SUF ¶¶ 51-52.)
Plaintiff and Begley appealed their reprimands and Plaintiff's appeal meeting with Chief Hahn was scheduled to be held on September 4, 2012. (Def. SUF ¶¶ 53, 55.) At the conclusion of her appeal meeting, Chief Hahn advised Plaintiff she was being released from probation and provided her with a written notice of dismissal, effective September 4, 2012. (Def. SUF ¶¶ 55, 91, 94.) The written notice was prepared in advance of the meeting and Chief Hahn declares he "had already decided to terminate [Plaintiff's probationary] employment based on . . . additional information he had learned [before he met with Plaintiff on her appeal]". (Def. SUF ¶ 97.)
III. DISCUSSION
A. Title VII and FEHA Claims
Each Defendant seeks summary judgment on Plaintiff's discrimination claims, in which she alleges her probationary employment was terminated because of her gender. Defendants assert Plaintiff's probation was terminated for legitimate, non-discriminatory reasons that are unrelated to her gender. Specifically, Chief Hahn, who terminated Plaintiff's employment approximately eight months after she commenced her twelve month probation period, declares he terminated her employment for three reasons:
[First,] [s]ometime between the conclusion of the IA investigation and September 4, 2012, [Chief Hahn] learned from Lieutenant Maria Richardson that some of the Department's female officers had raised concerns about [Plaintiff's] attitude and poor communication skills with them. When [he] learned this, [Chief Hahn] recalled there being similar issues of concern from [Plaintiff's] background investigation report regarding her relationships with female officers at her old department[, the South San Francisco Police Department.](Hahn Decl. ¶¶ 3, 14-17, 19, ECF No. 32.)
. . . .
[When the Police Department] performed the customary pre-employment background investigation regarding Plaintiff, [it revealed] some issues of concern regarding her attitude and conflict with other female officers at her former department . . . [but]
it was unclear whether those conflicts were entirely her fault.
. . . .
[Second,] [s]ometime in mid-to late-August 2012, [Chief Hahn] learned from Lieutenant Troy Bergstrom of a citizen complaint about [Plaintiff] that had come in through the Department's online "complaint or concern" system. The complaint arose out of a domestic violence related call and what the complainant viewed as rude or inappropriate statements by [Plaintiff]. . . . Apparently [the complainant] did not wish to pursue it further, and [the Police Department] did not open a formal internal investigation.
[Third,] [o]n or about August 30, 2012, [Chief Hahn] had a conversation with Sargent Kelby Newton and Lieutenant Marc Glynn about a shift trade issue that had arisen involving [Plaintiff]. Sargent Newton, who at the time was . . . tasked with many scheduling and administrative matters, had contacted [Plaintiff] to determine when she would work the 'back end' of a shift trade she had . . . arranged with Begley . . . . Sargent Newton told [Chief Hahn that Plaintiff] had demonstrated a bad attitude with him on the phone, taking the position that it was none of the department's business when she worked the trade shift, and that it was between her and Begley (which is how she said it was done at her old department). . . . Newton told [Chief Hahn that Plaintiff's] attitude with him on the phone was so bad he actually asked her what he had done to upset her, and she told him words to the effect that it wasn't him but the Department was treating her poorly. [Chief Hahn] was very concerned about the attitude [Plaintiff] had displayed with Sargent Newton. Newton later documented his conversation with [Plaintiff] in a written memo and [Chief Hahn] received a copy.
. . . .
Shortly after [Chief Hahn's] August 30 conversation with Sargent Newton, [he] decided, based on all the new issues of concern [he] had recently learned from [Sargent Newton], Lieutenant Richardson, and Lieutenant Bergstrom, to release [Plaintiff] from probation.
Plaintiff objects to this South San Francisco Police Department evidence arguing it is vague, ambiguous, hearsay, and improper character evidence. Defendants counter the evidence is not hearsay since it "is not offered to prove the truth of the matter asserted, but rather for its effect on" Chief Hahn, and that it is not improper character evidence since it is offered for the limited purpose of explaining Chief Hahn's decision. (Def.s' Reply to Mem. P&A Opp'n Def. Mot. Summ. J. ¶ 6, ECF No. 48-1.) In light of Defendants' stated purpose of this evidence, the objections are overruled.
Defendants, through counsel, also argue a fourth reason for Plaintiff's termination was "Chief Hahn's knowledge from the IA report that Perez had engaged in personal communications while on duty and while involved in police duties." (Mem. ISO Defs.' Mot. Summ. J. ("Mot.") 8:7-8, ECF No. 29.) However, Chief Hahn avers he "did not release [Plaintiff] from probation based on the results of the IA investigation . . . [since making] personal calls during work time . . . was a concern, but not one warranting termination." (Hahn Decl. ¶ 27.)
Plaintiff responds that each asserted legitimate non-discriminatory reason for terminating her probationary employment was a pretext for gender discrimination, and that her gender was a motivating factor in the Chief's termination decision.
Plaintiff's Title VII and FEHA gender discrimination claims "operate under the same guiding principles," and therefore "we need only assess her claim[s] under federal law." Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (citing Beyada v. City of L.A., 65 Cal. App. 4th 511, 517 (1998)).
1. Pretext
A "plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." If a plaintiff uses circumstantial evidence to satisfy this burden, such evidence "must be specific" and "substantial." "An employee in this situation can not simply show the employer's decision was wrong, mistaken, or unwise." "Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons forDep't of Fair Emp't and Hous. v. Lucent Tech., Inc., 642 F.3d 728, 746 (9th Cir. 2011) (emphasis added, internal citations omitted.) "In assessing whether the employer's reason for the action is pretextual, 'it is not important whether [the proffered justification] is objectively false,' . . . . '[r]ather, courts only require that an employer honestly believed its reason for its actions, even if its reason is foolish, or trivial or even baseless." Westendorf v. West Coast Contractors of Nev., Inc., 712 F.3d 417, 425 (9th Cir. 2013) (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)). "All of the evidence—whether direct or indirect—is to be considered cumulatively. Shelley v. Geren, 666 F.3d 599, 609 (9th Cir. 2012).
its action that a reasonable factfinder could rationally find them unworthy of . . . credence . . . and hence infer that the employer did not act for the . . . nondiscriminatory reasons."
a. Rapport with Female Co-Workers
Plaintiff responds to Chief Hahn's averment that her probationary employment was terminated because of her negative rapport with female co-workers, contending this reason is a pretext for gender discrimination since she testified during her deposition that she "did not think" she had ever worked with another female officer at the Police Department, and her July 2012 performance evaluation listed her communication skills as satisfactory. (O'Dowd Decl. Ex. C ("Perez Dep. Tr.") 61:24-62:7, ECF No. 38; O'Dowd Decl. ¶ 13 Ex. U, ECF Nos. 37, 43.)
Defendants object to Plaintiff's performance evaluation arguing it has not been properly authenticated, Plaintiff lacks foundation, and the content of the evaluation is hearsay. (Pl. SUF ¶ 85.) Plaintiff's counsel declares that the document was created by the Police Department and produced by Defendants in discovery. Therefore, Defendants' authentication and foundation objections are overruled. See Orr v. Bank of Am., NT&SA, 285 F.3d 764, 777 n.20 (9th Cir. 2002) (citing Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir. 1996) for the proposition that "documents produced by a party in discovery were deemed authentic when offered by the party-opponent."). Further, Defendants have not shown that the content of the documents are hearsay in the situation here where they are used "against an opposing party." Fed. R. Evid. 801(d)(2).
Plaintiff's testimony that she "did not think" she had worked with any female officers does not controvert Chief Hahn's declaration that he learned she had "poor communication" with other female officers since an employee does have to engage in an assigned work task with other officers to communicate with them. Further, Plaintiff's testimony that she "did not think" she had worked with any female officer does not evince that she remembers whether she in fact worked with a female officer. Nor does Plaintiff's July 2012 performance evaluation support drawing a reasonable inference of gender discrimination since it reported how Plaintiff's performance was perceived before Chief Hahn spoke with Lieutenant Richardson "[s]ometime between the conclusion of the IA investigation and September 4, 2012." (Hahn Decl. ¶ 14.) Therefore Plaintiff has not presented evidence from which a reasonable inference could be drawn that Chief Hahn's reliance on this reason for terminating her probationary employment was a pretext for gender discrimination.
Chief Hahn does not specify when "the conclusion of the IA investigation" occurred. (Hahn Decl. ¶ 14.) However, it is uncontroverted that Lieutenant Bergstrom provided his IA report to Captain Moore for review by at least July 10, 2012, (Def. SUF ¶¶ 39, 42-43), and that Captain Moore "issued a findings memo to . . . [Plaintiff] stating that two alleged policy violations [against her] were 'sustained'" on August 23, 2013. (Def. SUF ¶¶ 51-52.)
b. "Agitated" Communication with a Superior
Plaintiff responds to Chief Hahn's averment that her probationary employment was terminated because he learned from Sargent Newton that Plaintiff had an "agitated" discussion with Newton, contending it is a pretext for gender discrimination, and that this is evidenced by Chief Hahn's violation of standard operating procedure by forcing Sargent Newton to write a memo about the matter. Plaintiff supports her position citing Sargent Newton's deposition testimony in which he testified that after speaking on the phone with Plaintiff, he was called to Lieutenant Glynn's office and upon arrival he saw Lieutenant Glynn, Captain Moore, and Chief Hahn; Sargent Newton only expected to see Lieutenant Glynn; Newton's superiors then asked him to write a memo about his conversations with Plaintiff. (Newton Dep. Tr. 38:14-39:13.) Sargent Newton also testified it was "weird" that he was asked to write a memo since he "ha[d] never written a memo about a phone conversation before" in seventeen years working for the Police Department, and when he saw Captain Moore and Chief Hahn he "kn[ew] something [was] going on." (Newton Dep. Tr. 38:15-39:6.)
However, this evidence does not "demonstrate such weaknesses . . . in . . . [Chief Hahn's] proffered legitimate reason[] for [terminating Plaintiff's probationary employment] that a reasonable factfinder could rationally find [this termination reason] unworthy of . . . credence." Lucent Tech., Inc., 642 F.3d at 746 (internal citations omitted). Chief Hahn did not need a memo memorializing the communications to justify relying on them as a basis for terminating Plaintiff's probationary employment. Chief Hahn declares he spoke to Sargent Newton directly about the issue before Sargent Newton wrote the memo, averring:
On or about August 30, 2012, I had a conversation with Sgt. Kelby Newton and Lt. Marc Glynn about a shift trade issue that had arisen involving Perez. Sgt. Newton, who at the time was the day shift sergeant tasked with many scheduling and administrative matters, had contacted Perez to determine when she would work the "back end" of a shift trade she had apparently informally arranged with Begley without using the Department's approval form. During our conversation, Sgt. Newton told me Perez had demonstrated a bad attitude with him on the phone, taking the position that it was none of the department's business when she worked the trade shift, and that it was between her and Begley (which is how she said it was done at her old department). Perez also apparently inquired as to whether it was Lt. Richardson who gave Newton direction to follow up on the matter (it had not been - Newton was performing his typical duties and reporting the issue to his own lieutenant, Lt. Glynn). Newton told me Perez' attitude with him on the phone was so bad that he actually asked her what he had done to upset her, and she told him words to the effect that it wasn't him but the Department was treating her poorly. I was very concerned about the attitude Perez had displayed with Sgt. Newton.(Hahn Decl. ¶¶ 16-17.) Plaintiff has not presented a genuine issue of material fact concerning whether Chief Hahn honestly believed Plaintiff had an agitated conversation with Sargent Newton, and displayed a bad attitude that concerned him.
c. Citizen Complaint Concerning Domestic Violence Call
Plaintiff also contends that Chief Hahn's averment that her probationary employment was terminated because of a citizen complaint, in which it was alleged that Plaintiff was rude during a domestic violence investigation, is a pretext for gender discrimination. Plaintiff cites Chief Hahn's deposition testimony where he "testified that he felt no need to get [Plaintiff's] side of the story" as support for this contention; Plaintiff contends this failure "mitigates the importance of the [citizen] complaint" and "bears on the complaint's veracity." (Mem. P&A Opp'n Defs.' Mot. Summ. J. ("Opp'n") 14:17-21, ECF No. 34.) Plaintiff also states Chief Hahn testified that the complaint never rose to the level of a formal investigation and that he did not know if anyone had ever talked with Plaintiff about the incident; and that when Chief Hahn was asked if he was "interested in hearing [Plaintiff's] side of the story," he answered, "Well, we would have [if] it was an internal affairs complaint, but it never became one." (O'Dowd Decl. Ex. A ("Hahn Dep. Tr.") 55:24-56:7, ECF No. 38.)
Even if Chief Hahn's reliance on the complaint is considered trivial, when viewing this evidence in the light most favorable to Plaintiff as required under the summary judgment standard, Plaintiff has not shown that Chief Hahn's declared reliance on the complaint was a pretext for gender discrimination.
d. Cumulative Evidence
Plaintiff argues that the cumulative weight of the evidence evinces that Chief Hahn's stated reasons for terminating her employment were pretext for gender discrimination. Defendants respond that Plaintiff has not countered their
evidentiary showing with specific facts from which a reasonable inference can be drawn that Defendants' proffered explanation for her release from probation is a pretext for discrimination[;] and [d]istilled to its essence, [Plaintiff's] . . . attempt to establish pretext relies on her own speculative belief that Chief Hahn was motivated by her gender when he released her(Def. Reply ("Reply") 8:8-12, ECF No. 48.) Defendants also respond that Plaintiff has not overcome the same actor inference principle, which creates a strong presumption that there was no discriminatory reason for terminating her probationary employment, under the circumstances here where Plaintiff was hired and fired by the same individual within a 12-month period.
from probation.
"[W]here the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive." Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996) (finding that terminating an employee after 12-months occurred within a short period of time). It is uncontroverted that Chief Hahn was the decision-maker responsible for both hiring Plaintiff in January 2012 and terminating her probationary employment in September 2012. (Def. SUF ¶¶ 7-8, 94-95.) "The same-actor inference is a 'strong inference' that a court must take into account on a summary judgment motion." Schechner v. KPIX-TV, 686 F.3d 1018, 1026 (9th Cir. 2012).
Chief Hahn is entitled to the strong inference arising from the same-actor principle, and this inference weighs heavily against the inferences Plaintiff seeks to have drawn from the evidence on which she relies in support of her gender discrimination claims.
2. Mixed-Motive Theory
Plaintiff argues that even if there is insufficient evidence from which a reasonable inference could be drawn that the stated reasons for terminating her probationary employment were pretext for gender discrimination, she still defeats Defendants' motion under a mixed-motive theory since her "evidence show[s] [that her termination] was motivated, at least in part, by [her] gender." (Opp'n 15:27-28.) Specifically, Plaintiff argues Begley and male probationary officers were treated more favorably by the Police Department than she was, and that their more favorable treatment evinces that her gender was a motivating factor in Chief Hahn's decision to terminate her probationary employment.
Plaintiff also cites the experiences of another female officer, Officer Greene, who claims she experienced gender discrimination when applying for a promotion at the Police Department, in support of her argument that gender was a motivating factor in Chief Hahn's decision to terminate Plaintiff's employment. However, Plaintiff fails to present evidence that Chief Hahn was involved in Officer Greene's allegedly discriminatory experience at the Police Department and therefore, Plaintiff fails to show this evidence is relevant to her claims.
Even where "the evidence . . . permit[s] a finding that [an employer] has a legitimate reason for [terminating a plaintiff's employment]," summary judgment in favor of the employer is error if "a reasonable factfinder could conclude that the [termination] decision was motivated at least in part by [plaintiff's] gender." Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1041 (9th Cir. 2005). Under the mixed-motive theory, "unlawful [termination] is established when the complaining party demonstrates that . . . [gender] was a motivating factor for [her termination], even though other [legitimate] factors also motivated the [termination]." 42 U.S.C. § 2000e-2 (emphasis added).
a. Begley's Treatment
Plaintiff argues her mixed-motive gender discrimination position is evinced by the following differences between how the Police Department treated her and how it treated Begley: (1) she "was terminated, while Begley was not;" (2) "the [Police] Department included a female sergeant in [Plaintiff's] IA notification meeting" yet "[t]his female sergeant was not present when Begley was notified" of the IA investigation; and, (3) although one of Chief Hahn's stated reasons for terminating Plaintiff's probationary employment was an "agitated" conversation she had with a superior, Begley had a similar conversation with his superior but "was not reprimanded or terminated for this behavior." (Opp'n 11:20-25.)
Defendants reply that Begley's employment was not terminated since "there is no evidence of him engaging in the behavior that collectively led" Chief Hahn to release Plaintiff from probation, and even if Plaintiff could show her probation was terminated as a result of the IA investigation, Begley "successfully passed probation years ago and had a positive performance history," showing he had a "dissimilar employment status" to Plaintiff. (Reply 3:5-16.) Defendants support their position citing the uncontroverted facts that Begley "was hired by the City in 2007, successfully completed his probationary period, and had a positive performance history." (Def. SUF ¶ 25.) Defendants also argue that Begley's "heated exchange" with Lieutenant Bergstrom is not evidence that Plaintiff's gender was a motivating factor in her termination since "[t]he circumstances of the Begley/Bergstrom exchange were different from the [Plaintiff]/Newton exchange." (Reply 3:23-26.) Specifically, Defendant argues "Begley and Bergstrom had an established relationship . . . and Bergstrom invited Begley to say what was on his mind . . . . [while Plaintiff] and Newton had no such history . . . [;] nor did she ask for or receive the proverbial 'permission to speak freely." (Reply 3:26-4:1.) Defendants cite the following uncontroverted fact in support for their position: when Begley and Bergstrom had what Plaintiff refers to as a "heated argument," "Bergstrom invited Begley (who he 'knew pretty well') to say what was on his mind and not beat around the bush." (Def. SUF ¶ 41.)
Plaintiff supports her position concerning IA notification meeting by citing Lieutenant Bergstrom's deposition testimony where he testified he brought a female sergeant with him to inform Plaintiff of the IA investigation, but he was not accompanied by a female officer when he informed Begley of the IA investigation. Lieutenant Bergstrom explained the difference in this treatment in his deposition as follows: because of "[t]he type of allegation that it was, [he thought] it might make [Plaintiff] feel more comfortable if [a female] was there[;] " however, Bergstrom was not accompanied by a female sergeant when he informed Begley of the IA investigation since Begley is "male" and Bergstrom "kn[ew] Officer Begley, so it's different." (O'Dowd Decl. Ex. F Bergstrom Dep. Tr. 40:20-42:12, ECF No. 38.)
Plaintiff also relies on Begley's deposition testimony to show that he also had an agitated conversation with a superior and yet was not disciplined. Begley testified he had a "heated argument" with Lieutenant Bergstrom after he was notified about the IA investigation; both men yelled, but "nothing came of" it. (Begley Dep. Tr. 90:16-92:12.)
Although Plaintiff argues Begley should have been terminated since she was terminated, the evidence does not support drawing a reasonable inference that Begley engaged in the conduct that Chief Hahn declares justified releasing Plaintiff from her probationary employment position. Nor has Plaintiff explained how having a female officer present when she was informed about the IA investigation demonstrates that her gender was a motivating factor in the termination decision. Moreover, Chief Hahn has not been shown to lack credence regarding his concern about the bad attitude Plaintiff displayed when communicating with a superior officer about a shift scheduling matter.
b. Treatment of Male Probationary Officers
Plaintiff also argues that the Police Department treated male probationary officers more favorably than she was treated, and that this evinces her gender was a motivating factor in Chief Hahn's decision to terminate her employment. Plaintiff argues "male lateral officers with similar or less experience [than she had] . . . were released early from the field training program, while [Plaintiff] was required to do the full ten (10) work weeks." (Opp'n 12:9-11.) Plaintiff supports of her position citing the field evaluations of a male officer, but does not identify where the evaluations indicate the length of the officer's field training, (O'Dowd Decl. Ex. L); and cites her declaration in which she avers that she spent ten "work weeks" in field training while a male coworker spent only nine. (Perez Decl. ¶ 2.) Plaintiff also argues that Captain Moore testified "he wanted to terminate [Plaintiff's employment] as soon as she was the subject of the initial IA, based on his . . . 'personal experience . . . that a problem in someone's . . . probationary period is often a red flag for future problems,'" yet "[a]t least two . . . male [probationary] officers . . . were the subject of IA investigations and were not terminated." (Opp'n 12:8-17.) Plaintiff supports her position citing the uncontroverted facts that Captain Moore "felt" that after the IA report was completed, releasing Plaintiff from probation would have been appropriate "based on his training with regard to probationary employees." (Def. SUF ¶ 50). Plaintiff also cites her own declaration, in which Plaintiff declares she "served as a witness in an IA investigation" of a male probationary officer who was said to have been "rude and unprofessional to a citizen during a traffic stop," but who "was allowed to pass probation." (Perez Decl. ¶ 27, ECF No. 41.) Plaintiff further cites the deposition testimony of Chief Hahn and Captain Moore in which they testify about an IA investigation into whether a male probationary officer flirted with a woman while on-duty, in which no "significant findings... were sustained, " and the officer successfully completed his probationary period. (Hahn Dep. Tr. 94:20-95:18; Moore Dep. Tr. 77:6-78:18.)
Plaintiff also cites to her own deposition testimony where she testified that three male officers completed their field training program in less than ten weeks, however she "d[id not] remember" the source of this information about the first two officers and testified that she heard about the third officer from "his own mouth." Defendants object to this statement as hearsay. The objection is sustained.
Defendant objects to the field training evaluation as "untimely, unauthenticated hearsay within hearsay." (Pl. SUF ¶ 7.) However, O'Dowd declares the document is "[a] true and correct copy of Doe #3's field training evaluations, received in Defendants' Responses to Plaintiff's Request for Production of Documents Set Two." (O'Dowd Decl. ¶ 4.) Therefore, Defendants authentication objection is overruled. See Orr, 285 F.3d at 777 n.20 (citing Maljack Prods., Inc., 81 F.3d at 889 n. 12 (9th Cir. 1996) for the proposition that "documents produced by a party in discovery were [considered properly authenticated] . . . when offered by the party-opponent."). Defendant also objects to consideration of Plaintiff's averments from her declaration since the averments are hearsay. However, Defendants have not shown that the cited portion of the declaration is hearsay and therefore the objection is overruled.
Plaintiff also argues that "at least one male officer was also given the option to resign in lieu of release from Probation," and Plaintiff "was never afforded this opportunity," but what Plaintiff cites does not support her assertion. --------
Defendants reply that the length of Plaintiff's field training program is not evidence that gender was a motivating factor in her termination, and cite the uncontroverted facts which establish: that "[t]he actual length of an individual police officer's field training program can be either longer or shorter than [10-weeks]" since "the program is not rigidly applied to each officer in exactly the same way, nor is it always a 10-week program." (Reply 4:14-26; Def. SUF ¶¶ 13, 17.) Defendants also argue that although Plaintiff "contends that two probationary male officers were . . . treated differently because they were subject to IA investigations and still passed probation . . . . [t]here is no evidence that these officers were similarly situated to [Plaintiff], nor is there any inference to be drawn that there were somehow treated more favorably." (Reply 5:15-6:1.)
Since the uncontroverted facts show that the length of the Police Department's field training program is variable, Plaintiff's evidence that certain male probationary officers finished the program more quickly than Plaintiff does not support drawing a reasonable inference that Plaintiff's gender was a motivating factor in Chief Hahn's decision to terminate her employment. Nor has Plaintiff shown that any IA investigation concerning a male probationary officer resulted in a finding that a claim was sustained. Therefore, Plaintiff has not identified specific and substantial evidence from which the reasonable inference can be drawn that her gender was a motivating factor in Chief Hahn's decision to terminate her probationary employment.
Since Plaintiff has not identified evidence from which a reasonable inference could be drawn either that Chief Hahn's stated reasons for terminating her probationary employment were pretext for gender discrimination or that Plaintiff's gender was a motivating factor in Chief Hahn's decision to terminate her probationary employment, Defendants' summary judgment motion on Plaintiff's discrimination claims is granted.
B. Right to Intimate Association and Privacy
Each Individual Officer Defendant seeks summary judgment on Plaintiff's federal constitutional claim in which she alleges her First Amendment right to intimate association and privacy was infringed, arguing that his qualified immunity defense shields him from this claim. Plaintiff alleges that her "private sexual activities were . . . protected by the Constitution from unwarranted governmental intrusion," and "[t]he internal affairs investigation [into her relationship with Begley] and the manner in which [the investigation] was conducted by [the Individual Officer] Defendants violated [her] constitutional right[s]." (FAC ¶¶ 89, 95, 97, ECF No. 15.) Each Individual Officer Defendant argues "no authority has ever held that the right to privacy [or intimate association] protects a police officer from inquiry into aspects of her personal life that impact her work . . . and therefore [Plaintiff] cannot sustain her burden of showing that her right to privacy [and intimate association] was clearly established at the time of the investigation." (Mot. 21:24-28.)
Plaintiff responds the Ninth Circuit showed her right to privacy and intimate association was clearly established at the time of the IA investigation in Thorne v. City of El Segundo, 726 F.2d 495 (9th Cir. 1983), where it "held that the Constitution prohibits unregulated, unrestrained employer inquiries into personal, sexual matters that have no bearing on job performance." (Opp'n 19:4-5.)
The plaintiff in Thorne completed a polygraph examination as part of her application to the police force; during which she admitted to a past relationship with a member of the police force, which resulted in a miscarriage. 726 F.2d at 462. The polygraph examiner "inquired into any . . . sexual relations Thorne may have had within the police department, whether on duty or off," and ultimately declined to hire her. Id. at 469. The Ninth Circuit held that it was inappropriate for the police department to refuse to hire Thorne based on the past information disclosed during the polygraph examination since it had no bearing on her job performance and "[i]n the absence of any showing that [a] private, off-duty [personal relationship]... h[as] an impact upon an applicant's on-the-job performance . . . reliance on these private non-job-related considerations by the state in rejecting an applicant for employment violates the applicant's protected constitutional interests." Id. at 471 (emphasis added).
Each movant can prevail on his "qualified immunity [defense] . . . [if] his . . . conduct d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "[Q]ualified immunity is an affirmative defense, and the burden of proving the defense lies with the official asserting it." Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). "[D]etermining whether the law was clearly established 'must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Estate of Ford v. Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002).
It is uncontroverted that in June 2012, Leah Begley filed a citizen complaint in which she alleged Plaintiff and Begley were having an affair and "suggest[ed] that Begley and [Plaintiff] were engaging in romantic interactions while on-duty." (Def. SUF ¶¶ 23, 26-27.) It is also uncontroverted that after receiving this complaint, the Police Department initiated an IA investigation into Plaintiff's and Begley's conduct. (Def. SUF ¶ 28.) The Ninth Circuit's holding in Thorne does not show that the IA investigation into Plaintiff's relationship with Begley violated a clearly established constitutional right to privacy and intimate association under the circumstances in which the investigation was conducted. The Ninth Circuit limited its holding in Thorne to circumstances where there was an "absence of any showing that [the applicant's] private, off-duty personal activities. . . [had] an impact upon [her] . . . on-the-job performance." 726 F.2d at 471. Here, the IA investigation into Plaintiff's conduct resulted from a citizen complaint that suggested Plaintiff was engaged in a personal relationship with Begley while on-duty. Therefore, Plaintiff's alleged right to privacy or intimate association was not clearly established "in light of the specific context of the case" and therefore each Individual Officer Defendant's summary judgment motion is granted. Estate of Ford, 301 F.3d at 1050.
C. Due Process Name-Clearing Hearing
Each Individual Officer Defendant seeks summary judgment on Plaintiff's claim in which she alleges she was denied her federal due process right to a name-clearing hearing prior to her termination, arguing Plaintiff did not have this right since no stigmatizing information about her was published in connection with her termination.
As early as 1972, in Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972), the United States Supreme Court established that a terminated employee has a constitutionally based liberty interest in clearing h[er] name when stigmatizing information regarding the reasons for [her] termination is publicly disclosed. Failure to provide a "name-clearing" hearing in such a circumstance is a violation of the Fourteenth Amendment's due process clause.Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004). This right also applies to probationary employees. Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 777 (9th Cir. 1982) (applying the right to a name clearing hearing in the context of a probationary employee). However, a name-clearing hearing is only required where the stigmatizing charge was "made in connection with termination of employment." Matthews v. Harney Cnty., Or., Sch. Dist. No. 4, 819 F.2d 889, 892 (9th Cir. 1987).
Plaintiff contends that the stigmatizing information about which she complains was published in connection with her termination when Captain Moore wrote to Leah Begley in response to Leah Begley's complaint since a reasonable inference can be drawn from Captain Moore's letter that the Police Department concluded Plaintiff engaged in a personal relationship with Begley while on-duty. It is uncontroverted that the letter Captain Moore sent to Leah Belgey in response to her citizen complaint is dated August 16, 2012 and states:
The Roseville Police Department has completed its inquiry into the personnel complaint you filed alleging your husband and a co-worker were engaged in a personal relationship while on duty. The following findings have been made as a result of the investigation [1] Unsatisfactory work performance-SUSTAINED [and] [2] Conduct unbecoming-SUSTAINED.(O'Dowd Decl. Ex. S, ECF No. 43.)
Captain Moore's August 16 letter to Leah Begley does not indicate Plaintiff's employment was being terminated as a result of Leah Begley's complaint. The letter does not specify whether the findings were sustained against Plaintiff, Begley, or both. Further, it is uncontroverted that Plaintiff's probationary employment was not terminated until September 4, 2012, nine days after the date on Captain Moore's letter, and Chief Hahn avers that the findings sustained as a result of Leah Begley's complaint were not a basis for his decision to terminate Plaintiff's probationary employment. (Def. SUF ¶ 94; Hahn Decl ¶ 27.) Therefore, Plaintiff has not presented evidence from which a reasonable inference could be drawn that stigmatizing information about her was published in connection with her termination. Accordingly, each Individual Officer Defendant's summary judgment motion on Plaintiff's Due Process claim is granted.
IV. Conclusion
For the stated reasons, each Defendant's summary judgment motion is GRANTED. Judgment shall be entered in favor of each Defendant. Dated: June 18, 2015
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge