United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DERRICK ROSS,

Plaintiff,

v.

INDEPENDENT LIVING

RESOURCE OF CONTRA COSTA

COUNTY,

Defendant.

NO. C08-00854 TEH

ORDER RE HEARING ON

MOTION FOR SUMMARY

JUDGMENT

This matter is scheduled for hearing on Monday, July 19, 2010, at 10:00am, on

Defendant’s motion for summary judgment. The parties shall be prepared to address the

following questions at the motion hearing:

For Both Parties

1. Defendant characterizes this as a mixed-motives case, and argues that the Supreme

Court’s decision in Gross v. FBL Financial Services should apply. However, Plaintiff

alleges in the Third Amended Complaint (“TAC”) that the “reason given to Plaintiff

for his termination was a pretext.” TAC ¶ 12. In light of Plaintiff’s pretext theory,

should the Court analyze this case under the McDonnell Douglas standard? See

Brown v. City of Tucson, 336 F.3d 1181, 1186 (9th Cir. 2003) (observing that courts

“have almost uniformly adopted the burden-shifting analysis set forth by the Supreme

Court in McDonnell Douglas” in examining ADA retaliation claims). On what basis

should this Court determine whether to analyze Plaintiff’s retaliation claim under

Gross or McDonnell Douglas?

Case 3:08-cv-00854-TEH Document 110 Filed 07/15/10 Page 1 of 2
United States District Court

For the Northern District of California

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2. If the Court grants summary judgment to Defendant as to Plaintiff’s claim under

section 1101 of the California Labor Code, would that decision also dispose of the

prayer for attorneys’ fees pursuant to the Private Attorneys General Act?

For Defendant

3. You appear to believe that Ross’s prosecution of the Basketball Town lawsuit could

only be political if he had been actively publicizing the case. However, the definition

of “political” endorsed in Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., 24 Cal. 3d

458, 487 (1979), requires only the espousal of a cause plus “some degree of action to

promote the acceptance thereof by other persons.” Can’t Ross’s pursuit of the lawsuit

by itself meet the low threshold of “some degree of action,” especially in light of the

publicity that was in fact generated by the action he undertook?

4. If the ADA retaliation claim survives summary judgment, do you concede that the 

claim for the tort of wrongful termination survives, as well?

For Plaintiff

5. You argue that the existence of a policy controlling employees’ political activity

should be inferred from Plaintiff’s termination and statements by ILR managers

disapproving litigation advocacy. However, Plaintiff’s termination represents a single

episode – not a policy – and the statements cited demonstrate only ILR’s policy not to

prosecute ADA claims as an agency. How, based on this evidence, could a fact-finder

infer the existence of a policy controlling employees’ political activities?

IT IS SO ORDERED.

Dated: 7/15/10 

THELTON E. HENDERSON, JUDGE

UNITED STATES DISTRICT COURT

Case 3:08-cv-00854-TEH Document 110 Filed 07/15/10 Page 2 of 2