Miller, J., and Booras, J., specially concurs
Opinion by JUDGE WEBB.
I. The Defective Curtis Advisement Was Not Plain Error
Defendant first contends the trial court gave him a defective Curtis advisement, and therefore his waiver of the right to testify was not knowing and voluntary. We conclude that even if the advisement was defective, the error was not plain. Cf. People v. Wylie, ___ P.3d ___, ___ (Colo. App. No. 07CA2324, Sept. 2, 2010) (reviewing predicate statute de novo but applying plain error review to unpreserved sentencing issue).
A split exists among divisions of this court on limiting review of a Curtis issue to post-conviction proceedings. Compare People v. O'Hara, 240 P.3d 283 (Colo. App. 2010) ( People v. Blehm, 983 P.2d 779, 797 (Colo. 1999), holds that an invalid waiver "may be addressed only in post-conviction proceedings"), with People v. Gomez, 211 P.3d 53, 55 (Colo. App. 2008) (taking up waiver issue "based on judicial economy"). Here, the Attorney General did not cite Blehm and argued that "a remand is unnecessary because this Court can conclude from the existing record that the trial court's advisement . . . did not affect the defendant's decision to waive his right to testify." For this reason, as well as because Blehm did not cast the procedural issue as jurisdictional and we can resolve waiver without the fact-specific inquiry contemplated in Blehm, we follow Gomez.
People v. Curtis, 681 P.2d 504 (Colo. 1984), addressed the advisement that a trial court must give before a criminal defendant decides whether to testify. The trial court need not follow the Curtis language exactly. People v. Chavez, 853 P.2d 1149, 1152 (Colo. 1993). But if the court expands on that wording, the additional information must be correct. See People v. Raehal, 971 P.2d 256, 260 (Colo. App. 1998). A defendant's waiver of the right to testify based on an incorrect advisement may not be knowing and voluntary. Chavez, 853 P.2d at 1152. The adequacy of a Curtis advisement is a legal question that we review de novo. People v. Harding, 104 P.3d 881, 885 (Colo. 2005).
Here, during the Curtis advisement, the trial court told defendant, "[T]he Prosecutor may ask you what [your] prior felony conviction or convictions were for" and "whether the convictions were by a guilty plea, or whether you actually went to trial, and were found guilty at the trial." Defense counsel did not object to the advisement, and defendant chose not to testify.
Nevertheless, defendant now asserts that under Gomez, decided after his trial, the advisement was defective as a matter of law. Gomez held that "in cross-examining a defendant, the prosecutor may not ask whether a prior felony conviction arose from a plea or a trial," and that a Curtis advisement to the contrary is erroneous. 211 P.3d at 57.
The Attorney General responds that Gomez was wrongly decided and we should not follow it, but cites no more recent contrary authority. One division of this court is not bound by the decision of another division. See People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008). However, because we conclude that the error, if any, was not plain, we need not accept the invitation to revisit Gomez.
The Attorney General next asserts that even if the advisement was erroneous, defendant's failure to object requires us to apply the plain error standard in deciding whether this error entitles him to relief. We agree. See, e.g., People v. Cook, 197 P.3d 269, 275 (Colo. App. 2008) (lack of contemporaneous objection triggers plain error review).
Reversal for plain error is a "drastic remedy." Domingo-Gomez v. People, 125 P.3d 1043, 1055 (Colo. 2005). Even where a reviewing court detects error, two questions must be answered in the affirmative before it grants relief: whether the error was "plain," "clear," or "obvious"; and, if so, whether it "undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (internal quotation marks and citations omitted).
Both questions recognize the import of the contemporaneous objection rule "to conserve judicial resources by alerting the trial court to a particular issue in order to give the court an opportunity to correct any error." People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006). Requiring such an objection before considering error on appeal ensures that defendants do not end up "gambling for favorable verdicts and then resorting to appeal on errors that might have easily been corrected by objection at trial." People v. Petschow, 119 P.3d 495, 505 (Colo. App. 2004) (quotation marks and citation omitted). Hence, "[p]lain error is error that is so clear-cut, so obvious, that a competent trial judge should be able to avoid it without benefit of objection." People v. Beilke, 232 P.3d 146, 152 (Colo. App. 2009).
Here, defendant asserts that whether the Curtis error was plain or obvious should be measured by Gomez. However, his reliance on People v. Versteeg, 165 P.3d 760, 767 (Colo. App. 2006), quoting Johnson v. United States, 520 U.S. 461, 468 (1997), for the proposition that, "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be `plain' at the time of appellate consideration," is misplaced. In contrast, Gomez makes clear that Colorado law was unsettled as to a prosecutor's ability to cross-examine a defendant on whether a prior felony conviction was the result of a plea or a trial. 211 P.3d at 56. In his reply brief, defendant agrees. This issue does not involve an overarching constitutional principle whose application in Colorado was predetermined by federal precedent.
If the law is unsettled at the time of trial, "plain error analysis will be conducted using the status of the law at the time of trial." People v. O'Connell, 134 P.3d 460, 464-65 (Colo. App. 2005). Thus, "[w]hen the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court's error is perforce not plain." United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997). This result reflects the particular value of a contemporaneous objection to assist the trial court in dealing with unsettled law. Id.
Therefore, because the law was unsettled at the time of defendant's trial, we conclude that the unpreserved error in the Curtis advisement, if any, was not plain or obvious. Cf. People v. Valencia, 169 P.3d 212, 221 (Colo. App. 2007) (error not obvious absent "case interpreting, or providing an analytical model how to apply" statutory language), abrogated in part on other grounds by Brendlin v. California, 551 U.S. 249 (2007).
Having so concluded, we do not reach the second question whether the alleged error casts serious doubt on the reliability of the judgment of conviction. See People v. Griffin, 224 P.3d 292, 299 (Colo. App. 2009) (citing with approval State v. Barnes, 759 N.E.2d 1240, 1248 (Ohio 2002) (if alleged error is not plain, appellate court need not consider whether it affected defendant's substantial rights)); see also United States v. Olano, 507 U.S. 725, 734 (1993) (addressing whether error is plain before determining its effect on defendant's rights).
Accordingly, the Curtis advisement does not entitle defendant to any relief.
II. The Trial Court Did Not Abuse Its Discretion in Declining to Excuse a Juror
Defendant next contends the trial court erred by denying his motion to excuse juror S, because during trial she had been exposed to a newspaper article containing prejudicial information about him. We discern no abuse of discretion.
Defendant first argues that juror S violated the court's sequestration order, which requires automatic reversal. Even assuming that she did, defendant cites no case, nor have we found one in Colorado, holding that reversal would be automatic. Cf. People v. Sherman, 45 P.3d 774, 780 (Colo. App. 2001) (although defendant argued for new trial because of violation of a sequestration order, court held that to warrant reversal, defendant must show that juror heard or saw extraneous information and that the information was prejudicial).
Defendant next argues that the trial court abused its discretion by denying his motion to excuse juror S because of prejudicial information in the article. We disagree.
A trial court should deal with juror exposure to prejudicial publicity during trial as follows:
1) the trial court must determine whether the publicity is inherently prejudicial;
2) if so, the court should canvass the jury to determine whether the jury learned of the prejudicial publicity; and
3) the trial court should individually examine exposed jurors to determine how much they know of the publicity and what effect, if any, the publicity will have on their deliberations.
Dunlap v. People, 173 P.3d 1054, 1091 (Colo. 2007). Defendant's reliance on
People v. Harlan, 109 P.3d 616 (Colo. 2005);
People v. Wadle, 97 P.3d 932 (Colo. 2004); and
Wiser v. People, 732 P.2d 1139 (Colo. 1987), is misplaced.
These cases involve exposure to extraneous information during deliberations, and CRE 606(b) precludes inquiry into the deliberative process.
Here, the article contained prejudicial information because defendant's extensive criminal history could not have been offered directly into evidence. See People v. Moore, 701 P.2d 1249, 1252-53 (Colo. App. 1985). After the article had come to the trial court's attention, the court asked the jurors if any of them had been exposed to it. When juror S and three others indicated that they had, the court examined each one separately.
In response to the court's questions, juror S said that: her husband read the article to her while she was in another room; she did not pay much attention to him; she did not remember anything from the article about defendant; and she could remain fair and impartial. The court declined to excuse her, explaining that: "her husband was the one reading the article"; she "was not really paying attention to him" as he read it; and "she didn't know how to tell her husband to stop without telling him that was the case she was on." Because the record supports this decision, we decline to disturb it. See People v. Muckle, 107 P.3d 380, 383 (Colo. 2005) ("Under the abuse-of-discretion standard, an appellate court must affirm the trial court's decision if there is any evidence in the record to support the trial court's finding.").
Defendant's citation of Moore, 701 P.2d at 1253, for the proposition that a new trial was required, because the prior conviction information would have warranted reversal if offered directly into evidence, is misplaced. Here, the trial court accepted the juror's statement that although she recalled some information from the article, she did not remember any information concerning defendant. Cf. People v. Mondragon, 217 P.3d 936, 944 (Colo. App. 2009) (trial court determines competency and credibility of jurors in ruling on challenge for cause).
Accordingly, we conclude that the court did not abuse its discretion in denying defendant's motion.
III. Evidence of Defendant's Prior Convictions Did Not Violate His Confrontation Clause Rights
Defendant next contends the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting pen packs and certificates of authenticity into evidence at his habitual offender trial. He relies on Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527 (2009), in which the Supreme Court held that sworn certificates by state laboratory analysts attesting that the substance they analyzed was cocaine were testimonial, and therefore the defendant had a constitutional right to confront them at trial. Assuming, without deciding, that a confrontation clause challenge can be raised in a habitual proceeding, we discern no confrontation clause violation.
Compare People v. Lassek, 122 P.3d 1029, 1031-32 (Colo. App. 2005) (confrontation clause provides a trial right that does not apply at sentencing), with Specht v. Patterson, 386 U.S. 605, 609-10 (1967) (confrontation right applied when sentencing court made a new finding of fact to impose longer sentence).
An alleged confrontation clause violation "is subject to constitutional harmless error analysis if the error was properly preserved by objection at trial[,] and reversal is required unless the error was harmless beyond a reasonable doubt." People v. Boykins, 140 P.3d 87, 96 (Colo. App. 2005). Defendant admits that he failed to object at trial to admission of the pen packs and certificates on confrontation grounds. This failure limits review to plain error. People v. Vigil, 127 P.3d 916, 929 (Colo. 2006); People v. Gash, 165 P.3d 779, 781 (Colo. App. 2006).
However, defendant argues that because Melendez-Diaz announced a new rule of constitutional magnitude, we must review for constitutional harmless error despite his failure to preserve the issue below. Johnson v. United States, 520 U.S. 461 (1997), postdates two of the cases on which defendant relies and undercuts his argument. Nevertheless, because we conclude that Melendez-Diaz did not adopt such a rule, we decline to decide whether Colorado would follow those states that have endorsed this view.
See, e.g., People v. Turner, 789 P.2d 887, 905 (Cal. 1990); People v. Rincon, 28 Cal. Rptr. 3d 844, 856 (Cal. Ct. App. 2005); State v. Carter, 114 P.3d 1001, 1003-04 (Mont. 2005); Ex parte Turner, 542 S.W.2d 187, 189 (Tex. Crim. App. 1976).
In Melendez-Diaz, the certificates at issue were functionally equivalent to affidavits. The Court determined that the affidavits were "testimonial," and therefore implicated the defendant's Sixth Amendment right to confront witnesses against him. See Crawford v. Washington, 541 U.S. 36 (2004). It explained that they were made for the purpose of establishing some material fact at the defendant's trial and under circumstances which would lead a reasonably objective witness to believe that the statements they contained would be available for use at a later trial. Melendez-Diaz, 129 S. Ct. at 2531-32.
Defendant correctly notes that at the time of his trial, under the most recent Colorado case to have addressed the issue, admission of pen packs at a habitual criminal trial did not implicate confrontation clause rights. See People v. Shreck, 107 P.3d 1048, 1060-61 (Colo. App. 2004). Nevertheless, Melendez-Diaz did not, as he contends, represent an unforeseeable doctrinal shift.
• The
Melendez-Diaz Court stated that the case "involve[d] little more than the application of [the] holding in
Crawford . . .,"
129 S. Ct. at 2542, and was a "straightforward application" of it,
id. at 2533.
• Before defendant's trial, the Colorado Supreme Court had reached the same conclusion with respect to laboratory reports identifying the nature of a tested substance, relying on
Crawford. Hinojos-Mendoza v. People, 169 P.3d 662, 666-67 (Colo. 2007).
• Although we have found no published decisions that have done so, several unpublished decisions have denied
Melendez-Diaz retroactive effect on collateral review, stating it is not a
"watershed" rule that implicates the fundamental fairness and accuracy of criminal proceedings.
Hence, defendant cannot escape plain error review by relying on
Melendez-Diaz. We begin that review by looking for error, and for two reasons, find none.
First, unlike the reports at issue in Melendez-Diaz and Hinojos-Mendoza, here the documents in the pen packs were prison and court records relating to defendant's prior convictions. They included registers of action, charging documents, and mittimuses from the other cases, as well as photographs and fingerprint sheets prepared and kept by law enforcement agencies in connection with those cases. These documents were created before defendant's habitual offender trial, and not for the purpose of establishing a material fact in any criminal proceeding. Rather, they were created for routine administrative purposes. Therefore, they were not testimonial and did not trigger defendant's right to confrontation. See Melendez-Diaz, 129 S. Ct. at 2539-40 ("Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial."); accord People v. Espinoza, 195 P.3d 1122, 1126-27 (Colo. App. 2008) (proofs of service contained in the defendant's driving record were administrative documents and were not testimonial); see also State v. Bennett, 162 P.3d 654, 657 (Ariz. Ct. App. 2007) (documents proving the defendant's prior convictions were not testimonial); Commonwealth v. McMullin, 923 N.E.2d 1062, 1063-64 (Mass. App.Ct. 2010) (certified copies of records from district court and registry of motor vehicles were not testimonial).
Second, unlike the documents at issue in Melendez-Diaz and Hinojos-Mendoza, the certificates here only authenticated the documents contained in the pen packs. Defendant's assertion, for which he fails to cite supporting authority, that the certificates should be analyzed differently because they cumulated several documents, does not change the nature of the documents being authenticated. Thus, the certificates were not testimonial. Melendez-Diaz, 129 S. Ct. at 2539 ("A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not . . . create a record for the sole purpose of providing evidence against a defendant.") (emphasis in original); id. at 2532 n. 1 (noting that not everyone whose testimony is used to establish authenticity must appear in person at trial); accord Bennett, 162 P.3d at 656-57 (affidavit authenticating a police record was not testimonial); see also United States v. Bacas, 662 F. Supp. 2d 481, 484 (E.D. Va. 2009) (certificates of accuracy regarding testing equipment were not testimonial); State v. Murphy, 991 A.2d 35, 41-42 (Me. 2010) (certificate from secretary of state regarding notice sent to defendant about his license was not testimonial).
Therefore, we join other courts that have addressed the issue since Melendez-Diaz and held that because pen packs and other "certified records of convictions" are not testimonial, their admission does not violate a defendant's confrontation clause rights. See, e.g., Commonwealth v. Weeks, 927 N.E.2d 1023, 1027-28 n. 4 (Mass. App.Ct. 2010) (collecting cases).
Accordingly, we conclude that the court did not err in admitting pen packs and authenticating certificates without affording defendant an opportunity to confront the persons who prepared them.
IV. Only Defendant's Sentence for First Degree Burglary-Assault/Menace was Erroneous
Finally, defendant contends several errors require reversal of his sentences. We agree with him in part, and remand for the trial court to vacate his first degree burglary-assault/menace conviction. In all other respects, we affirm his sentences.
Defendant contends, the Attorney General concedes, and we agree that one of defendant's first degree burglary convictions was entered erroneously. Defendant was convicted of first degree burglary under section 18-4-202(1), C.R.S. 2010, which prohibits "assault[ing] or menac[ing]" someone during a burglary or being armed with an "explosive[] or a deadly weapon" during its commission. He was sentenced, on separate counts, for first degree burglary-assault/menace and for first degree burglary-deadly weapon. This was error because, while "the General Assembly may proscribe alternative means of committing the same offense," a court may not "impos[e] multiple punishments for each prohibited method a defendant uses" if he uses "more than one of the proscribed methods . . . to accomplish the offense." Woellhaf v. People, 105 P.3d 209, 218 (Colo. 2005).
To maximize the jury's verdict, we remand the case to the trial court to vacate defendant's first degree burglary-assault/menace conviction. See, e.g., People v. Glover, 893 P.2d 1311, 1315 (Colo. 1995). Doing so moots defendant's argument that his convictions for first degree assault and for menacing must be vacated because they are lesser included offenses of first degree burglary-assault/menace.
Defendant further asserts that the sentences for his first degree burglary conviction and his attempted first degree murder conviction must run concurrently. We disagree.
Section 18-1-408(3), C.R.S. 2010, states in relevant part: "When two or more offenses . . . are supported by identical evidence . . . [and] more than one guilty verdict is returned . . . the sentences imposed shall run concurrently." "[T]he test for identical evidence is an evidentiary test rather than an elemental test." Juhl v. People, 172 P.3d 896, 902 (Colo. 2007). If the acts that form the basis of the two charges are sufficiently distinct, the convictions are not supported by identical evidence. Id.
Here, the evidence supporting the charges involves different acts. Defendant's first degree burglary conviction is supported by evidence that he broke into the victim's house armed with a deadly weapon. Evidence that he stabbed the victim supported the attempted first degree murder conviction. This case is unlike Juhl, where the court noted, "the act that was the basis of [defendant's] first degree assault conviction cannot be logically separated from the act that formed the basis of the vehicular assault conviction." Id. Therefore, the trial court did not err in imposing consecutive sentences. See, e.g., Muckle, 107 P.3d 380 (evidence supporting heat-of-passion manslaughter and first degree assault convictions not identical where two shots fired at different times).
Accordingly, we conclude that only defendant's sentence for first degree burglary-assault/menace was erroneous, and we vacate that sentence.
V. Conclusion
The case is remanded to the trial court with directions to correct the mittimus concerning defendant's first degree burglary-19 assault/menace conviction. In all other respects, the judgment and sentences are affirmed.
JUDGE MILLER concurs.
JUDGE BOORAS specially concurs.
e statute of limitations under these statutes.
C. Racial Discrimination in Failure to Promote/Demotion (Title VII, FEHA, § 1981 and Equal Protection)
Defendants challenge the prima facie case on the four alleged discriminatory acts; (1) plaintiff's May 2006 suspension, (2) plaintiff's transfer to utility man II position upon his return from family leave on August 20, 2007, (3) non-selection for the sales representative positions on August 13, 2008, and (4) withdrawal of the purchasing administrator position in August 2009. (Doc. 39. Moving papers p. 18-19; Doc. 49, Opposition p. 20.) To the extent that any such acts occurred within the statute of limitations, the Court turns to these allegations.
1. McDonnell Douglas Shifting Burden Framework
Title VII makes it an "unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race . . ." 42 U.S.C. § 2000e et seq. A plaintiff may show violation of Title VII by proving disparate treatment or disparate impact, or by proving the existence of a hostile work environment. Sischo-Nownejah v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991). Here, plaintiff alleges he was intentionally discriminated on the basis of race.
A plaintiff may establish a prima facie case of discrimination by introducing evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094 (1981); Sischo-Nownejah, 934 F.2d at 1109. The evidence may be either direct or circumstantial, and the amount that must be produced to create a prima facie case is "very little." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Sischo-Nownejah, 934 F.2d at 1110-1111. A plaintiffs' Title VII claim is analyzed through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Claims under the FEHA for discrimination also follow the same burden-shifting analysis set forth in McDonnell Douglas. See Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 378, 100 Cal.Rptr.2d 352 (2000). The McDonnell Douglas burden-shifting burdens of proof is also used in § 1981 race discrimination cases. Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir. 2004).
Under the burden-shifting analysis, plaintiffs must first establish a prima facie case of employment discrimination. Hawn v. Executive Jet Management, Inc., 615 F.3d 1151 (9th Cir. 2010). If plaintiff establishes a prima facie case, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Id. If defendant meets this burden, plaintiffs must then raise a triable issue of material fact as to whether the defendant's proffered reasons for their terminations are mere pretext for unlawful discrimination. Id. The employer's proof of legitimate, nondiscriminatory reasons for its action dispels the inference of discrimination raised by plaintiff's prima facie case. The McDonnell Douglas framework "disappears," leaving plaintiff with the ultimate burden of persuading the trier of fact that defendant intentionally discriminated against plaintiff. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000).
2. Burden of Proof on Prima Facie Case
In a failure to promote case, the specific elements of the prima facie case may be based on circumstantial evidence by showing: (1) plaintiff belongs to a protected class; (2) he applied for and was qualified for the position he was denied; (3) he was rejected despite his qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff. Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005); see Breiner v. Nevada Dept. of Corrections, 610 F.3d 1202, 1208 (9th Cir. 2010) (denial of a single promotion opportunity is actionable under Title VII). At summary judgment, the degree of proof necessary to establish a prima facie case is "minimal and does not even need to rise to the level of a preponderance of the evidence." Dominguez-Curry, 424 F.3d at 1037.
(A) Account Representative and Business Development Positions — Employer filled the position with an Employee not of plaintiff's Class
MID challenges the fourth prong of the prima facie case. MID argues that plaintiff's prima facie case must fail because plaintiff cannot show that any of the failures to promote were the result of racially discriminatory animus.
Here, Flores satisfied the fourth prong by showing that MID "filled the position with an employee not of plaintiff's class." Dominguez-Curry, 424 F.3d at 1037. Both the Account Representative position and the Business Development position were filled by Caucasians. Thus, plaintiff has shown that MID filled the positions with employees not of plaintiff's race.
MID incorrectly argues plaintiff's burden on the prima facie case. Plaintiff does not have to show racial animus as part of the prima facie case. (Doc. 39, Moving papers p. 18-19.) Plaintiff must show the elements of the prima facie case as listed above. This, plaintiff has done. In a failure to promote case, the fourth element of the prima facie case is shown by evidence that the employer filled the position with an employee not of plaintiff's class. Plaintiff presents evidence that the position of Account Representative was awarded to Marc Smith, a Caucasian male. (Doc. 39, Joint Statement Fact, fact 40.) Plaintiff presents evidence that the position of Business Development was filled by Kyle Ford, also a Caucasian. Once plaintiff establishes a prima facie case, a presumption of discriminatory intent arises. Dominguez-Curry, 424 F.3d at 1037.
(B) August 2009 Withdrawal of Purchasing Administrator Position
Plaintiff fails to carry his burden on the failure to promote him to the Purchasing Administrator Position. Defendant presents undisputed evidence that the position was withdrawn. On August 12, 2009, the MID informed plaintiff that it had decided not to fill the purchasing administrator position. That position was in fact withdrawn by the MID prior to any interviews being conducted and was never filled. (Doc. 39, Undisputed Fact, fact 60). Plaintiff does not dispute that the Purchasing Administrator Position he applied for was withdrawn and never filled. Plaintiff does not argue or address that he is able to present a prima facie case for this position. Accordingly, summary adjudication is appropriate on the claims for failure to promote for this position.
(C) Transfer to Utilityman II on August 20, 2007
To the extent that this claim is not barred by the statute of limitations, plaintiff has not raised an issue of fact in the prima facie case that his transfer to Utilityman II was the result of racial discrimination. Plaintiff's evidence shows the transfer to Utilityman II was for retaliation for filing a FMLA leave request. The transfer occurred upon his return from FMLA leave. No evidence shows it was related to racial discrimination. This FMLA retaliation claim may be cognizable under the FMLA, but is not cognizable under Title VII.
It is unlawful for an employer "to interfere with, restrain, or deny the exercise of . . . any right" under the FMLA. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(a)(1). An employer is prohibited from interfering with an eligible employee's right to take either an FMLA leave or discriminating or retaliating against an employee for taking such a leave. Xin Liu v. Amway Corp., 347 F.3d 1125, 1133, fn. 7 (9th Cir. 2003) (where the employer takes adverse employment action (e.g., demotion or discharge) against an employee for taking FMLA leave is "interference" claims under 29 U.S.C. § 2615(a)(1).)
The facts introduced by plaintiff show that he was retaliated against for FMLA leave, and the retaliation upon his return from leave was related to his leave. Plaintiff presents evidence that he was the first male to take FMLA leave. He was told he "he should be careful" with what he did, which plaintiff took as a threat for his job should he take the leave. (Doc. 49-2, Plaintiff's Disputed facts, facts 133-143.) None of his facts indicates any indicia or inference of racial motivation.
Plaintiff fails to raise an issue of fact that his transfer to Utilityman II was for racially discriminatory reasons. Accordingly, summary adjudication is appropriate on the claims for the transfer to this position.
(D) May 2006 Suspension
To the extent that this claim is not barred by the statute of limitations, defendant argues that plaintiff cannot show a prima facie case that his suspension was motivated by racially discriminatory animus. (Doc. 39, Moving paper p. 16; Doc. 50, Exh. 27 (May 2006 Notice of Employee Reprimand).) Plaintiff argues that his suspension was the result of his Caucasian supervisors, Jim Kaiser's and Bill Otterson's, false allegations that plaintiff had mishandled a customer complaint regarding release of water. (Doc. 49, Opposition p. 26.) Plaintiff had previously complained that Otterson and Kaiser had called him "Spick" and "Wetback." He argues that they recommended his suspension which was endorsed by Michael Higgins. Mr. Higgins, himself, had threatened plaintiff when he complained about unsafe working conditions and for failing to protect an inter-office relationship Higgins was having. (Doc. 49, Opposition p. 26.)
Plaintiff may establish a prima facie case (in a case other than a failure to promote case) based on circumstantial evidence by showing: (1) that he is a member of a protected class; (2) that he was qualified for his position and performing the job satisfactorily; (3) that he experienced adverse employment actions; and (4) that "similarly situated individuals outside [his] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010); see also Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).
The proof required in the prima facie case depends on the type of claim asserted. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, fn. 13. "The facts necessarily will vary in Title VII cases, and the specification above of the prim a facie proof required from [plaintiff] is not necessarily applicable in every aspect to differing factual situations." Id.
Here, plaintiff has failed to raise an issue of fact as to the fourth prong of the prima facie case for the May 2006 suspension. Plaintiff's evidence fails to identify that other employees outside of his protected class were treated differently. Plaintiff does not point to evidence of policy or procedures related to discipline for such conduct, or any other evidence. Rather, plaintiff argues that MID "has never" issued such a harsh punishment, but fails to point to evidence to support his conclusion. (Doc. 50, Flores Decl. 38.)
Further, plaintiff failed to raise an inference of discrimination related to his suspension. Plaintiff does not point to any evidence that his race motivated Mr. Higgins to suspend him. Plaintiff argues that Mr. Otterson and Mr. Kaiser influenced Mr. Higgins, but it is undisputed that Mr. Higgins was the person to authorize the suspension. Plaintiff does not present evidence that Mr. Higgins was racially motivated. Plaintiff points to evidence that Mr. Higgins retaliated against him for complaining about unsafe working conditions or because of Mr. Higgins' personal relationship. But this evidence does not infer that the suspension was in any part related to Plaintiff's race. It is undisputed that a customer called in for a release of water for irrigation but that plaintiff, as the night monitor, did not release the water. Plaintiff argues that he was instructed not to do so by Bill Otterson. Nonetheless, an incident regarding a customer's request happened, which spurred the discipline. Plaintiff does not introduce any evidence that Mr. Higgins was motivated by any racial bias. Defendant in fact introduces evidence that Mr. Higgins later recommended plaintiff's promotion to the control room monitor position. (Doc. 39-2, Undisputed Facts, fact 22.) Thus, plaintiff has failed to establish an inference that his suspension was racially motivated and summary adjudication is appropriate on the claims for suspension.
3. Articulated Legitimate Nondiscriminatory Reason
Since plaintiff can establish a prima facie case on some of the discriminatory acts, defendant argues the next step in the McDonnell Douglas burden shifting analysis: Defendant argues that it articulates a legitimate non-discriminatory reasons for his non-selection. Defendant argues that plaintiff was not selected for the positions because he did not have experience in the related fields, that he was less qualified, that he did not interview well, and that the panel was not motivated by discrimination. MID argues that plaintiff's May 2006 suspension was the result of a customer complaint as to how plaintiff handled the customer's request.
As plaintiff correctly notes, the bulk of defendant's position is premised upon the "deemed admitted" admissions which have now been withdrawn and are of no evidentiary value.
MID has articulated a non-discriminatory reason for its treatment of plaintiff. Accordingly, MID has met its burden of articulating a nondiscriminatory reason.
4. Plaintiffs' Argument of Pretext
Because defendant rebutted the presumption of discrimination, the burden shifts back to plaintiff to establish that MID's stated reasons for the adverse employment action was pretext for unlawful discrimination. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996). Plaintiff may establish "pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is `unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (citing Godwin v. Hung Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998)). Plaintiff must provide "specific, substantial evidence" that the reasons given were a pretext for discrimination. Bradley, 104 F.3d at 270. In addition, Plaintiff must establish that there was a causal connection between his protected status and the adverse employment action. Mixon v. Fair Employment and Housing Com., 192 Cal. App. 3d 1306, 1317 (1987).
To oppose this motion, plaintiff must show that the "claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona, 391 U.S. at 290. "A disparate treatment plaintiff can survive summary judgment without producing any evidence beyond that constituting his prima facie case, if that evidence raises a general issue of material fact regarding the truth of the employer's proffered reasons." Chuang, 225 F.3d at 1127 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)). If Plaintiff demonstrates through specific evidence that a genuine issue of material fact exists, defendants' summary judgment motion must be denied. In a Fed.R.Civ.P. 56 motion, however, this Court does not resolve factual issues. Chuang, 225 F.3d at 1124 (ultimate question of employment discrimination is conducted most appropriately by a factfinder, not on summary judgment).
(A) Account Representative and Business Development Positions
Here, the Court finds that plaintiff produced some direct evidence as to his discrimination claims. There is direct evidence of possible racial animus. For instance, racially derogatory terms were used by coworkers and used to refer to plaintiff in particular. Plaintiff has been referred to as "wetback." Chuang, 225 F.3d at 1128 (egregious and bigoted insult is direct evidence of discriminatory animus). Thus, plaintiff has offered some direct evidence of a possible "culture" of racial animus. "With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Chuang, 225 F.3d 1115, 1128 (9th Cir. 2000).
Further, plaintiff has presented indirect evidence that MID's proffered reasons for non-selecting plaintiff are not worthy of credence. Plaintiff argues that Account Representative position and the Business Development position were awarded to two Caucasians who were far less qualified than plaintiff. Plaintiff has an M.B.A. while the other applicants did not have advance degrees. (Doc. 49-2, Plaintiffs Disputed facts, fact 150.) Plaintiff presents evidence that the positions were under the supervision of Jem Brown, whom plaintiff attributes derogatory, racial comments. Plaintiff alleges that he had been, over the number of years, called a wetback and other derogatory terms for which he routinely complained to management and others. Plaintiff argues that it was common knowledge that he complained and that a reasonable inference that the interview panel had knowledge that he complained. Plaintiff presents some evidence that the interview possess was not wholly objective. For instance, plaintiff presents evidence that the interview panel was not knowledgeable about the positions, and the questions posed during the interview were irrelevant to the job functions. Plaintiff was told he did not get the positions because he was not "a team player" which plaintiff argues is attributable to his complaints about racial discrimination.
This finding of a factual dispute does not alter the Court's ruling that the 300-day statute of limitations bars claims which occurred prior to 300 days before the EEOC Charge was filed under Title VII.
MID objects to this evidence on the grounds, among others, that plaintiff lacks personal knowledge to state that "Both of these positions were in the electrical department of MID, which was managed by Jem Brown." (Doc. 50-1, Exh. 1, Flores Decl. ¶ 65.) However, as a long term employee of MID and one who applied for these positions, there is sufficient foundational basis, for purposes of this motion, for the statement.
Defendant objects to this evidence as hearsay (Fed.R.Evid. 802), but plaintiff does not introduce it for the truth of the matter asserted.
Considering the totality of the selection and evaluation process, and the race of the selected candidates, the Court cannot conclude that Plaintiff has failed to raised a question of fact. Plaintiff has presented indirect evidence that MID's proffered reasons for not selecting plaintiff are not worthy of credence and that he was non-selected based upon a racial basis.
MID argues that several members of the interview selection panel are likewise Hispanic and therefore plaintiff could not have been discriminated against on the basis of race. (Doc. 39, Moving paper p. 19.) The Court rejects this position as supported in law and fact. A triable issue of fact exists as to whether members of the same race may be motivated to act on impermissible racial grounds.
(B) May 2006 Suspension
While the Court has found that plaintiff failed to present a prima facie case on this discriminatory act, the Court would also find that plaintiff failed to rebut MID's legitimate reason for his suspension. Plaintiff must provide "specific, substantial evidence" that the reasons given were a pretext for discrimination. Plaintiff's evidence is not substantial or specific. There is no evidence that Mr. Higgins had any racial animus against Plaintiff. Plaintiff speculates that Mr. Otterson and Mr. Kaiser influenced Mr. Higgins to suspend him. Speculation is not specific of substantial evidence of a racially motivated adverse employment action.
D. Failure to Prevent Discrimination and Harassment
Government Code Section 12940(k) provides that it is an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." The parties acknowledge that this claim can only survive if there is a viable claim of discrimination under the FEHA. (See Doc. 39-1, Moving papers p. 20; Doc. 49, Opposition p. 27.) Since the Court has found questions of fact as to certain discriminatory acts, summary adjudication on this claim will be denied.
E. Retaliation Claim
Plaintiff claims that defendant violated the anti-retaliation provisions of Title VII and the California FEHA in retaliating against him for complaining about racial discrimination. These statutes prohibit employers from taking adverse actions against employees who complain about discrimination in the work place. Title VII provides that it is an:
unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter, . . .
42 U.S.C. § 2000e-3(a).
To establish a prima facie case of retaliation under Title VII, "[t]he plaintiff must show (1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision." E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989); see Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 476, 4 Cal.Rptr.2d 522 (1992)).
The legal standard for a retaliation claim is the same under Title VII and the FEHA. Surrel v. California Water Serv. Co., 518 F.3d 1097, 1107 (9th Cir. 2008). Under the burden-shifting scheme of Title VII and the FEHA, after the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory explanation for the adverse employment action. Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001). If the employer rebuts the inference of retaliation, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible retaliation. Winarto, 274 F.3d at 1284. Pretext may be shown either (1) directly by persuading the jury that a discriminatory motive more likely than not motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence. Winarto, 274 F.3d at 1284. To establish pretext, "very little" direct evidence of discriminatory motive is sufficient, but if circumstantial evidence is offered, such evidence has to be "specific" and "substantial." Id.
Defendant argues that plaintiff cannot show a prima facie case of protected activity. Defendant also argues that the EEOC charge plaintiff filed failed to allege retaliation and therefore, plaintiff has failed to exhaust his administrative remedies. In his opposition, plaintiff argues that he engaged in the following protected activity (Doc. 49, Opposition p. 28):
— in 1999, complained of being called a "wet back" and "Spick' by supervisors.
— in 2005, complained that timing preference was being given on a promotional exam being given to a white Caucasian male.
— in July 2005, complained about unsafe working conditions.
— August 28, 2005, plaintiff complained that a senior employee continuously called him a "wetback."
— June 2006, complained about being called racist names and unfair work environment.
— August 1, 2006, complained about unfair treatment to the MID Board.
— August 2006, complained about not being given opportunities to advance or interviews for positions.
— March 20, 2007, complained to supervisors about gender discrimination and privileges to females who flirt with male supervisors.
— August 2007 complained regarding retaliation and discrimination.
Plaintiff argues that MID's non-retaliatory reasons for not selecting plaintiff are false and pretextual.
1. Like and Reasonably Related to Administrative Charge
MID argues that Plaintiff cannot pursue retaliation for being called derogatory names because his administrative charge did not mention this specific conduct. Plaintiff argues that his complaints are "like and reasonably related to" the allegations in the EEOC complaint such that he exhausted his administrative remedies.
While the parties argue whether the content of the administrative charge covered "name calling", the alleged incidents are outside the scope of the statute of limitations. As argued above, the 300 day limitations period applies under title VII and for the FEHA, the 1 year limitations applies.
The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the EEOC charge. Thus, the judicial complaint may encompass any discrimination "like and reasonably related to" the allegations of the EEOC charge. EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). Administrative charges are liberally construed. Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990).
In plaintiff's charge of "Discrimination/Retaliation," he alleges he has was not promoted "on the basis of race and retaliation." (Doc. 39, Administrative Charge Exh. 55.) Plaintiff claims he was discriminated against in the promotional opportunities and retaliated against because of a prior discrimination complaint. Plaintiff's EEOC charge states that he did not get the promotional opportunities because he was told he was not a "team player," which plaintiff alleged in the EEOC charge was because of his prior history of filing discrimination charges. (Doc. 39, Administrative Charge Exh. 55 p. 3 of 5.)
Whether plaintiff was retaliated against in the promotional opportunities because of previous complaints that he was "called names" is reasonably related to the EEOC charge. The crux of plaintiff's claim is that he was denied the promotions because he had a history of complaining and opposing discriminatory practices in the workplace.
The Court cannot rule as a matter of law that plaintiff was not retaliated against for making numerous complaints of discrimination or racial bias. From a review of the motion and opposition, it is undisputed that plaintiff complained about various things, comments, and situations related to his employment throughout his tenure. Some of the complaints were objections to racial stereotypes he encountered. Some were not. It is undisputed that management was aware of his complaints, because he made some complaints directly to management, some to employees, and some to the MID Board. For instance, after he was not selected for the account representative position, he was told by one of the panelist that he was not selected because he was "not a team player." Plaintiff argues the only way he was not a team player is because of the various discrimination complaints he made. Plaintiff argues that he was being punished for his prior complaints. The Court cannot find as a matter of law that his complaints did not result in retaliation. Plaintiff has raised a question of fact of retaliation.
F. Personal Liability of the Individual Defendants Robert Blum and Dan Pope
Plaintiff alleges in the Sixth and Seventh Causes of action that defendants Robert Blum and Dan Pope are individually liable for violation of sections 1981 and 1983 for race discrimination. The Sixth cause of action is for Race Discrimination under 42 U.S.C. § 1981. The Seventh Cause of Action is for violation of Equal Protection pursuant to 42 U.S.C. § 1983.
1. Summary of Plaintiff's argument
Plaintiff argues that both individuals were "personally involved and discriminated against plaintiff." (Doc. 49, Opposition p. 30.) Plaintiff argues Dan Pope was the General Manager when plaintiff was denied promotion and was entrusted to approve "all proposed appointment and removals of subordinate employees by all Department Heads." He failed to oversee, uphold and maintain equality in hiring.
Plaintiff argues that Robert Blum is the Director of Administrative Services since 1990. Plaintiff argues that he reported complaints of discrimination to Robert Blum and that Mr. Blum did not investigate these complaints, did nothing to stop discrimination and told plaintiff he is causing problems and it could be easy to get rid of plaintiff. (Doc. 49, Opposition p. 31.)
2. Personal Involvement Requirement for Supervisor Liability
A supervisory official may be liable only if he or she was personally involved in the constitutional deprivation, or if there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435,
1446-47 (9th Cir. 1991)), cert. denied, 502 U.S. 1074 (1992); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (same). Supervisors can be held liable for (a) their own culpable action or inaction in the training, supervision, or control of subordinates; (b) their acquiescence in the constitutional deprivation of which a complaint is made; or (3) for conduct that showed a reckless or callous indifference to the rights of others. Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000).
Under no circumstances, however, is there respondeat superior liability under § 1983; that is, there is no liability under § 1983 solely because one is responsible for the actions or omissions of another. Redman v. County of San Diego, 942 F.2d at 1446. A supervisor therefore generally "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The court concludes that there is no evidence that these defendants personally acted with intent to discriminate against the plaintiff based on his race. Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998). Race is a suspect class for the purposes of an equal protection claim. N.A.A.C.P., Los Angeles Branch v. Jones, 131, F.3d 1317, 1321 (9th Cir. 1997). Discriminatory intent "implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
For defendant Dan Pope, plaintiff relies solely upon Mr. Pope's position as the basis for his liability. As the General Manager, he has ultimate responsibility for the conduct at MID. Plaintiff does not point to specific conduct or any conduct which infers discriminatory treatment by Mr. Pope. It is undisputed that Mr. Pope was the General Manager only from July 1, 2008 to August 1, 2009. Plaintiff does not point to specific conduct by Dan Pope during this time frame which was discriminatory. Mr. Pope's role as the General Manager, and as the ultimate supervisor, is legally insufficient to establish liability. He cannot be liable merely because he holds a specific position of authority.
For defendant Robert Blum, plaintiff argues several incidents which plaintiff attributes to racially discriminatory acts:
— Mr. Blum tells plaintiff it would be "easy to get rid of him" when plaintiff
complains of unsafe working conditions.
— Mr. Blum fails to investigate plaintiff's claims that he was called a "wetback."
— Mr. Blum takes plaintiff to lunch and tells him plaintiff should "move on."
— Mr. Blum threatens plaintiff's job before plaintiff takes the FMLA leave.
— After demotion to Utilityman II, Mr. Blum said he had warned plaintiff that "he was going to get his."
— Mr. Blum failed to comply with procedures and recommendations in a 1990 Grand Jury report. (Doc. 49, Opposition p. 31.)
Plaintiff's evidence fails to show that Mr. Blum had personal involvement in any of the alleged discriminatory acts: (1) plaintiff's May 2006 suspension, (2) plaintiff's transfer to utility man II position upon his return from family leave on August 20, 2007, (3) non-selection for a sales representative positions on August 13, 2008, and (4) withdrawal of the purchasing administrator position in August 2009. Plaintiff's evidence does not show that Mr. Blum was involved in any of the decisions related to plaintiff's employment. While Mr. Blum is the Director of Administrative Services and Director of Human Resources, plaintiff has not shown that in his position, he is responsible for promotional decisions. Indeed, plaintiff's list of items of alleged wrongful conduct fail to implicate plaintiff's race. For instance, two of the incidents relate to plaintiff's FMLA which is conduct not cognizable under § 1983 or § 1981. Plaintiff's evidence does not show Mr. Blum's personal involvement in any of the alleged discrimination acts. Likewise, Mr. Blum cannot be liable merely because he holds a specific position of authority.
G. Injunctive and Declaratory relief
Defendant argues plaintiff is not entitled to equitable relief. Defendant argues it already maintains a policy against discrimination. Plaintiff cannot offer any evidence showing that it is the MID's position that treating minorities less favorably than whites is somehow lawful.
Both Title VII and the FEHA provide for equitable remedies. Title VII explicitly authorizes courts to "enjoin the [employer] from engaging in an unlawful employment practice, and order such affirmative action as may be appropriate." 42 U.S.C. § 2000e-5(g). "Once intentional discrimination in a particular employment decision is shown . . . the disadvantaged applicant should be awarded the position retroactively unless the defendant shows `by clear and convincing evidence that even in the absence of discrimination the rejected applicant would not have been selected for the position.'" League of United Latin American Citizens (LULAC), Monterey Chapter 2055 v. City of Salinas Fire Dept., 654 F.2d 557, 559 (9th Cir. 1981) (internal quotes omitted) (retroactive promotion appropriate remedy where discrimination was cause of fireman's failure to be promoted, and City failed to prove he would not have obtained position even absent discrimination). Upon finding a Title VII or FEHA violation, the court has a "duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372 (1975). Courts may order employers to take certain affirmative steps (mandatory injunction) to remedy past unlawful employment practices. However, mandatory injunctions may be harder to obtain than injunctions prohibiting behavior. See Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993).
Here, plaintiff may pursue equitable remedies. If plaintiff prevails at trial, he may obtain certain equitable remedies. Accordingly, the request for adjudication will be denied.
CONCLUSION
For the foregoing reasons, the Court GRANTS, in part, and DENIES, in part, MID's motion as follows:
— GRANTS the motion for summary adjudication on the first and third claims for relief under Title VII as to discriminatory conduct which occurred more than 300 days before the filing of the May 5, 2009 EEOC Charge;
— DENIES, in part, and GRANTS, in part, the motion for summary adjudication on the first and second causes of action under Title VII and the FEHA, as more fully set forth in the order;
— DENIES the motion for summary judgment on the third and fourth causes of action for Retaliation;
— DENIES, in part, and GRANTS, in part, the motion for summary adjudication on the fifth cause of action under the FEHA, as more fully set forth in the order;
— DENIES, in part, and GRANTS, in part, the motion for summary adjudication on the
sixth and seventh causes of action under
42 U.S.C. § 1981 and Equal Protection, as more fully set forth in the order;
— GRANTS the motion for summary judgment as to Defendant Dan Pope;
— GRANTS the motion for summary judgment as to Defendant Robert Blum;
— DENIES the motion for summary adjudication on the claims for equitable relief.
IT IS SO ORDERED.