Peccia v. State of Cal. Dep't of Corr. & Rehab.

JAKE PECCIA, Plaintiff, v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant.

No. 2:18-cv-03049 JAM AC

United States District Court, E.D. California

August 12, 2021

FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

Plaintiff is proceeding in this action pro se, and the case was accordingly referred to the undersigned by Local Rule 302(c)(21). The sole defendant in this case, the California Department of Corrections and Rehabilitation (“CDCR”), moves for summary judgment on all claims, ECF No. 69, and plaintiff opposes the motion, ECF Nos. 77, 78. The matter come on for hearing on July 28, 2021. ECF No. 93. For the reasons explained below, it is recommended that defendant's motion be GRANTED, that summary judgment be entered in defendant's favor, and that this case be closed.

I. Background

Plaintiff brought this discrimination and retaliation case against his employer, the California Department of Corrections and Rehabilitation (“CDCR”), through counsel on November 26, 2018. ECF No. 1. Counsel subsequently withdrew ECF No. 16, and in February 2020 the case was referred to the undersigned for pre-trial matters in light of plaintiff's pro se status, ECF No. 23. On April 9, 2021, plaintiff moved to file a supplemental pleading pursuant to Fed.R.Civ.P. 15(d). ECF No. 50. That motion was denied, ECF Nos. 68, 76, 89, and the initial complaint remains operative.

Plaintiff is a prison nurse who alleges that CDCR discriminated against him based on his male sex and retaliated against him for complaints made regarding the discrimination. ECF No. 1 at 1-5. Plaintiff brings four causes of action: (1) Breach of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; (2) Retaliation in Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; (3) Breach of California Govt. Code Section 12940, et seq., Discrimination on the Basis of Gender; and (4) Retaliation in Violation of Government Code Section 12940, et seq. Id. at 5-7. The discrimination claims are based on plaintiff's allegedly sex-based reassignment from a post exclusively assigned to the Folsom Women's Facility to a post assigned some days to the women's facility and some days to the men's facility. The retaliation claims are based on a decision to reject plaintiff from probation, which followed plaintiff's complaint regarding sex discrimination. Plaintiff's employment was ultimately not terminated.

II. The Motion

Defendant seeks judgment in its favor on all claims. ECF No. 69. Plaintiff filed an opposition to defendant's statement of undisputed facts, which includes several exhibits (ECF No. 77), and a supplemental argument (ECF No. 78).^[1] Defendant objected to several of plaintiff's exhibits as irrelevant and lacking authentication (ECF No. 82) and filed a reply brief (ECF No. 83).

Shortly prior to hearing on the motion, plaintiff submitted 29 exhibits to the court on an ex parte basis. At the hearing plaintiff was directed to file these documents on the record, and he subsequently did so. ECF No. 92. Defendant objected at hearing to consideration of the untimely submitted documents; the court informed the parties that if upon review it appeared that any of the new exhibits were appropriate for consideration in opposition to summary judgment, the court would provide defendant an opportunity to respond to them. The documents have been reviewed, and the court finds as explained further below that none of them raise a triable issue of material fact even if considered in opposition to summary judgment. Accordingly, further response by defendant is unnecessary.

III. Standard for Summary Judgment

Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such 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).

Summary judgment should be entered, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. In such a circumstance, summary judgment should “be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” Anderson, 477 U.S. at 248. In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” T.W. Elec. Service, Inc., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted).

“In evaluating the evidence to determine whether there is a genuine issue of fact, [the court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Id. at 587 (quoting First Nat'l Bank, 391 U.S. at 289).

IV. Facts

A. The Record Before the Court

Defendant's statement of undisputed facts is located at ECF No. 69-2, and is supported by excerpts of plaintiff's deposition (ECF No. 69-3); the declaration of Kimberly Masbad, former Director of Nursing at Folsom State Prison, with exhibits (ECF No. 69-4); and the declaration of Susan Burnett-Hampson, former Chief Nurse Executive at Folsom State Prison, with exhibits (ECF No. 69-5).

Plaintiff's statement of undisputed facts is located at ECF No. 77-2, and is supported by his own declaration (ECF No. 77-3) and exhibits including: a photocopy of CDCR internal regulations (ECF No. 77-4 Ex. A); a letter rescinding plaintiff's rejection during probation (id. at Ex. B); a performance report dated July 17, 2014 with an unsigned addendum (id. Ex. C); a performance report for the same date with a signed addendum (id. Ex. D); a memorandum regarding performance expectations to plaintiff from Ms. Burnett-Hampson (id. Ex. E); a memorandum requesting a letter of reprimand from Burnett-Hampson to Larry Fong, CEO (id. Ex. F); an e-mail from Burnett-Hampson to plaintiff dated January 13, 2015 (ECF No 77-5, Ex. G); various communications involving Burnett-Hampson, plaintiff, and other CDCR employees (id. at Ex. H); a memorandum from Larry Fong regarding plaintiff's EEO complaint (id. at Ex. I); communications regarding plaintiff's merit salary adjustment (id. Ex. J); e-mails between Ms. Masbad and Kishia Ogans on which plaintiff was not copied (id. Ex. K); a memorandum regarding the use of chaperones at the women's prison dated October 17, 2014 (id. Ex. L); a memorandum re: employee conduct from Burnett-Hampson to Dr. Angela Swarthout of CSP Sacramento (id. Ex. M); a memorandum regarding plaintiff's inappropriate behavior from Masbad to Burnett-Hampson dated October 10, 2014 (id....