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By order filed March 31, 2010, the Court took the matter under submission.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ALPHONSO OLIPHANT, et al.,

Plaintiffs,

 v.

CITY AND COUNTY OF SAN FRANCISCO,

et al.,

Defendants

 /

No. C-08-5048 MMC

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Before the Court is defendants City and County of San Francisco (“City”) and

William Siffermann’s (“Siffermann”) “Motion for Summary Judgment, or in the Alternative,

Partial Summary Judgment,” filed January 22, 2010. Plaintiffs Bruce Woodard

(“Woodard”), Roger Gainey (“Gainey”) and Alphonso Oliphant (“Oliphant”) have filed

opposition, to which defendants have replied. Having read and considered the papers filed

in support of and in opposition to the motion, the Court rules as follows.1

BACKGROUND

Plaintiffs are one former and two current employees of the San Francisco Juvenile

Probation Department (“the Department”). Each of said plaintiffs is African-American. 

According to plaintiffs, each plaintiff sought a promotion and/or other employment

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In their opposition, plaintiffs clarify that the First Cause of Action is based on 42

U.S.C. § 1983, and, specifically, a claim of “racial discrimination.” (See Pls.’ Opp. at 2:25-

27.)

2

opportunities, and was denied such opportunities “on the basis of [his] race and/or

ethnicity.” (See Compl. ¶ 11.) Based on such allegations, plaintiffs assert five causes of

action: (1) First Cause of Action, titled “Discrimination in Violation of the Civil Rights Act of

1866 (42 U.S.C. section 1981 et seq.)”;2 (2) Second Cause of Action, titled “Discrimination

in Violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. section 2000 et seq.)”

(“Title VII”); (3) Third Cause of Action, titled “Discrimination in Violation of California Fair

Employment and Housing Act [“FEHA”] (California Gov’t Code section 12900 et seq.)”; (4)

Fourth Cause of Action, titled “Discrimination in Violation of California Constitution Article 1,

section 8”; and (5) Fifth Cause of Action, titled “Intentional Infliction of Emotional Distress.”

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant

summary judgment “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c).

The Supreme Court’s 1986 “trilogy” of Celotex Corp. v. Catrett, 477 U.S. 317 (1986),

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary

judgment show the absence of a genuine issue of material fact. Once the moving party

has done so, the nonmoving party must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” See Celotex, 477

U.S. at 324 (internal quotation and citation omitted). “When the moving party has carried

its burden under Rule 56(c), its opponent must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “If the

[opposing party’s] evidence is merely colorable, or is not significantly probative, summary

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judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted). 

“[I]nferences to be drawn from the underlying facts,” however, “must be viewed in the light

most favorable to the party opposing the motion.” See Matsushita, 475 U.S. at 587

(internal quotation and citation omitted).

DISCUSSION

The five causes of action addressed herein are based on a set of factual allegations

particular to each plaintiff and, in each instance, allege such plaintiff was subjected to

employment discrimination. In their motion, defendants argue they are entitled to summary

judgment on all of plaintiffs’ claims, for the asserted reason that plaintiffs lack evidence to

establish they were subjected to employment discrimination. Further, with the exception of

the Fourth Cause of Action, defendants argue they are entitled to summary judgment,

irrespective of whether plaintiffs can raise a triable issue as to employment discrimination,

for additional asserted reasons.

The Court considers in turn the claims raised on behalf of each plaintiff.

A. Plaintiff Woodard

Plaintiffs allege that Woodard is a “former San Francisco Juvenile Probation

Counselor” (see Compl. ¶ 44), who sought but not did receive a promotion as a “Deputy

Probation Officer” (see Compl. ¶ 55). Further, plaintiffs allege, defendants denied

Woodard’s two requests for “education leave” and his request to “change his position to oncall status,” even though defendants “routinely” granted such requests when made by other

employees. (See Compl. ¶ 57.)

As noted, each of the five causes of action alleged in the instant case is based on

the theory that plaintiffs were subjected to employment discrimination. In addressing the

merits of plaintiffs’ claims that each plaintiff, including Woodard, was subjected to

employment discrimination, the parties have not distinguished among the five causes of

action. Accordingly, as set forth below, the Court, in addressing the issue of discrimination,

likewise has not done so.

//

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Where, as here, a plaintiff bases a § 1983 claim against a government employer on

a theory of racial discrimination, the “McDonnell Douglas framework is fully applicable.” 

See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 n.1 (1993). Further, the

McDonnell Douglas framework is applicable to employment discrimination claims under

FEHA. See Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000).

4

1. Sufficiency of Evidence: Employment Discrimination

a. Applicable Law

Under the burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973), a plaintiff may establish a prima facie claim of discrimination

involving a failure to promote by showing “(1) [he] 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.” See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d

1027, 1037 (9th Cir. 2005).3

 If the plaintiff establishes a prima facie case, the employer

must proffer a legitimate, non-discriminatory reason for its decision, and if the employer

does so, the plaintiff is then required to establish that the employer’s proffered reason is

pretextual. See id. The Supreme Court has noted, however, that the McDonnell Douglas

framework “does not apply in every employment discrimination case.” See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 511 (2002). “For instance, if a plaintiff is able to produce direct

evidence of discrimination, he may prevail without proving all the elements of a [McDonnell

Douglas] prima facie case.” Id.

Here, plaintiffs argue they need not establish Woodard’s claims under the McDonnell

Douglas framework, because they have direct evidence of discriminatory intent. 

Specifically, plaintiffs rely on a comment made in October 2006 by defendant Siffermann,

the Chief Probation Officer, before an audience of approximately twenty persons, including

Woodard, who had assembled to take a written examination given as part of the selection

process for the position of Deputy Probation Officer. During his deposition, Woodard

described the comment he heard as follows: “As we waited for the analyst, Mr. Beringer, to

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In his declaration, Siffermann described the comment as follows: “[F]or those of

you who are from the dark side of Juvenile Hall, this may not be the job for you.” (See

Siffermann Decl. ¶ 17.) 

5

According to Siffermann, before he was appointed as Chief Probation Officer in San

Francisco, he worked in Cook County, Illinois, where he “was a key participant in the

development of various programs and initiatives specifically designed to reduce overreliance upon secured detention and reduce the disproportionate representation of minority

youth in the juvenile justice system, while increasing the accountability of youths in the

juvenile justice system.” (See id. ¶ 3.)

5

arrive to administer the test, the Chief began to speak, and he introduced himself and went

on to talk and make the statement that if there is anyone in here that is from the dark side,

meaning the Juvenile Hall, do not expect to be hired.” (See Springman Decl. Ex. M at

98:25-99:5.)4

 Plaintiffs argue that the trier of fact could infer racial animus on the part of

Siffermann in light of such comment. The Court disagrees.

First, the comment is not, on its face, racial. Cf. Chuang v. University of California,

225 F.3d 1115, 1121, 1128 (9th Cir. 2000) (holding Chinese plaintiff, who alleged he was

not granted tenure on account of his race and ethnicity, submitted sufficient direct evidence

to support discrimination claim, where decisionmaker, when denying tenure to another

Chinese professor, “remarked that ‘two Chinks’ in the department were more than

enough”). “The dark side” is a well-known phrase in popular culture, having its origin in the

first, 1977, “Star Wars” film and pertaining to a dualistic philosophy. See, generally,

http://en.wikipedia.org/wiki/Dark_side_(Star_Wars) (“The dark side is portrayed as the evil

aspect of the Force (by the Jedi Knights, who instead advocate using the light side of the

force), the Manichean mystical energy which permeates the universe.”). As Siffermann

explains it, “[b]ased on [his] strong views on the value of detention alternatives and

community based interventions, over the years, [he] [has] referred to the detention side of

operations, both in Cook County and in San Francisco, as ‘the dark side,’ a reference to

Star Wars.” (See Siffermann Decl. ¶ 17.)5

Second, to the extent the comment could be viewed as ambiguous, plaintiffs have

not submitted any evidence to support an inference that, in the context in which the

statement was made, Siffermann was in fact referring to the race or ethnicity of any

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Although the complaint alleges that the Department interviewed Woodard on

“December 12, 2005” (see Compl. ¶ 51), the evidence offered by both parties indicates that

the referenced interview was conducted on December 12, 2006 (see Houston Decl. Ex. A,

second unnumbered page; Springman Decl. Ex. Q).

6

person. Cf., e.g., Fite v. Comtide Nashville, LLC, 2010 WL 668288, *2, *12 (M.D. Tenn.

2010) (holding where manager told African-American plaintiff that manager “planned to

‘lighten up the place’,” plaintiff offered sufficient evidence from which trier of fact could infer

racial animus therefrom, specifically, evidence that when “Caucasian” applicants arrived

shortly after manager made the subject comment, manager stated, “this is what I’m talking

about”). Indeed, Woodard stated at his deposition that he understood Siffermann’s

reference to “the dark side” to be a reference to “Juvenile Hall.” (See Springman Decl. Ex.

M at 98:25-99:5.)

Accordingly, plaintiffs have not shown they can avoid proceeding under the

McDonnell Douglas framework.

b. Alleged Adverse Employment Actions

(1) January 2007 Failure to Promote

In their complaint, plaintiffs allege that the Department interviewed Woodard in

December 2006 for a promotion to the position of Deputy Probation Officer,6 and that when

the selections were later announced in 2007, the Department did not promote Woodard.

Defendants argue that Woodard, who at the time in question was a Juvenile

Probation Counselor, cannot establish a prima facie case of discrimination, because, in

defendants’ words, “Woodard was not as qualified as others to advance through the

examination process.” (See Defs.’ Mot. at 10:3-5.) In support thereof, defendants offer

evidence, undisputed by plaintiffs, that Woodard, after taking and passing a “written

proficiency test” administered by the Department in 2006, was “invited to the oral portion of

the selection process,” along with the other applicants who had passed the written test. 

(See Houston Decl. Ex. A, second unnumbered page.) Likewise, it is undisputed that

Woodard thereafter was orally interviewed by a panel of three persons, and that when the

two positions then available were later filled in January 2007, he did not receive one (see

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As discussed above, to establish a prima face case, the plaintiff must show that “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.” See Dominquez-Curry, 424 F.3d at 1037. Plaintiffs have not offered evidence to

dispute defendants’ evidence that one of the two persons selected in January 2007 for then

open positions is African-American. Nonetheless, one of the persons selected is not

African-American.

7

id. Ex. A, third unnumbered page; Springman Decl. Ex. M at 128); rather, according to

defendants, and undisputed by plaintiffs, the Department selected two individuals,

specifically, Lorena Deras, whom defendants describe as “Hispanic,” and Viviann Green,

whom defendants describe as “African-American” (see Houston Decl. Ex. A, second and

third unnumbered pages).

Defendants, however, offer no evidence to support a finding that Woodard was not,

as a matter of objective criteria, qualified to be a Juvenile Probation Officer, nor have

defendants asserted, let alone demonstrated, that Woodard lacks evidence to support such

a finding. See Nicholson v. Hyannis Air Service, Inc., 580 F.3d 1116, 1123 (9th Cir. 2009)

(holding “objective” and not “subjective” criteria applicable when determining, for purposes

of prima facie case, whether plaintiff “qualified” for position sought). To the extent

defendants are asserting that other applicants were more qualified, such argument, as

discussed immediately below, pertains not to plaintiffs’ burden to make out a prima facie

case, but, rather, to whether defendants have met their burden to identify the existence of a

legitimate, non-discriminatory reason for the non-selection.7

In that respect, defendants argue “the candidates who were appointed performed

better in the competitive exam process.” (See Defs.’ Mot. at 10:7.) The evidence offered

by defendants pertaining to the “competitive exam process” is found in a letter written by

Louise Brooks Houston (“Houston”) to the Equal Employment Opportunity Commission

(“EEOC”), in which Houston, on behalf of the Department, responded to an EEOC charge

filed by Woodard. In her declaration submitted in support of the instant motion, Houston

states that she “gathered information,” from persons unidentified in either her declaration or

in her letter to the EEOC, that she then made an “assessment of the information gathered,”

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Houston does not explain how, if twenty-two persons were interviewed, only twenty

were given scores.

8

and that, on behalf of the Department, she “denied” the allegations made by Woodard to

the EEOC. (See Houston Decl. ¶ 3.)

In her letter to the EEOC, Houston stated that twenty-two persons, including

Woodard, were interviewed, that each such interview was conducted by one of two panels,

each composed of three persons, and that, after the interviews, Woodard was “ranked No.

15 out of 20” and given a score of “315.”8 (See id. Ex. A, third unnumbered page. 

According to Houston, because the ten persons who received the highest score on the

interview were invited back for a second interview, Woodard did not further participate in

the “selection process.” (See id.) Other than stating that the ranking was “determined by

the Department’s competitive testing process” (see id.), Houston provided therein no

information as to how the rankings were determined.

In their opposition, plaintiffs argue that “the criteria proffered by the City for

determining promotions was completely subjective” (see Pls.’ Opp. at 19:27-28), and rely

on authority holding that where an employer relies on “subjective” criteria when making

employment decisions, a court considering a claim of employment discrimination must give

such criteria “close scrutiny.” See Jauregui v. City of Glendale, 852 F.2d 1128, 1135-36

(9th Cir. 1988) (holding “close scrutiny” of subjective selective criteria necessary given “the

potential for manipulation inherent in the use of subjective evaluations”).

Defendants offer no evidence as to the criteria, subjective or otherwise, the panel

used to rank the applicants who were interviewed. Consequently, it is not possible for the

Court to scrutinize in any manner the criteria employed by the Department when it did not

select Woodard for a promotion. Further, Houston’s personal “assessment” that no

discrimination occurred (see Houston Decl. ¶ 3), is wholly irrelevant, particularly given that

she does not claim to have taken any part in the selection process.

//

//

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9

According to Houston, three of the six persons selected were “Asian/Pacific

Islander,” while the other three were, respectively, “Caucasian,” “Hispanic,” and “Filipino.” 

(See id. Ex. A, fourth unnumbered page.)

9

Accordingly, defendants have failed to offer evidence sufficient to support a finding

that the Department had a legitimate, non-discriminatory basis for their decision not to

promote Woodard in January 2007.

(2) July 2007 Non-Selection

It is undisputed that in March 2007, Woodard resigned from his job with the

Department. (See Doyle Decl. Ex. G; Springman Decl. Ex. CC.) It is also undisputed that

thereafter, in April 2007, the Department informed Woodard it had available Deputy

Probation Officer positions (see Springman Decl. Ex. S), that Woodard applied and was

given an interview (see id. Ex. M at 129), and that the Department, in July 2007, advised

Woodard he had not been selected for one of the open positions (see id. Ex. T).

In their motion, defendants do not specifically address the July 2007 non-selection,

but do offer Houston’s declaration, attached to which is a copy of her letter to the EEOC, in

which she includes information concerning the July 2007 non-selection. Specifically,

Houston’s letter to the EEOC indicated that twenty-five persons, including Woodard, were

interviewed by a panel of four persons, and that, after the interviews, Woodard received a

score of “1135 with 1200 as the highest score.” (See Houston Decl. Ex. A, third and fourth

unnumbered pages.) Houston provided therein no information as to how the score was

determined. Houston further stated that six persons, none of whom she described as

African-American, were ultimately selected,9 and that the Department selected the persons

“it believed to be the most qualified following a competitive process.” (See id. Ex. A, fourth

unnumbered page.)

For the reasons stated above with respect to the Department’s failure to promote

Woodard in January 2007, the Court finds Houston’s declaration and attached letter do not

constitute sufficient evidence to warrant summary judgment. Again, other than Houston’s

personal assessment that she believes the Department did not discriminate against

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Woodard on the basis of his race (see id.), nothing in Houston’s declaration or letter

identifies the criteria used by the panel, and, consequently, Houston fails to offer a

sufficient reason or reasons, whether objective or subjective, as to why Woodard was not

selected.

Accordingly, defendants have failed to offer evidence sufficient to support a finding

that the Department had a legitimate, non-discriminatory basis for its decision not to select

Woodard in July 2007.

(3) Request for Leave of Absence

In their complaint, plaintiffs allege that Woodard requested he be given a leave of

absence on two occasions and that both requests were denied. (See Compl. ¶ 57.) 

It is undisputed that Woodard, on February 26, 2007, requested a one-year

“personal leave” for, in Woodard’s words, “professional development,” and that the request

was denied on February 28, 2007 by Woodard’s supervisor, Dennis Doyle (“Doyle”). (See

Doyle Decl. Ex. A; Springman Decl. Ex. Z.) In a memorandum written by Doyle explaining

the denial, Doyle stated that the Department was “critically short of counseling staff,” was

“spending record-breaking amounts of overtime to backfill Counselor positions,” and had

not been able to hire permanent Counselors for “almost five years.” (See Doyle Decl. Ex.

C; Springman Decl. Ex. Z.) It is also undisputed that thereafter, on March 8, 2007,

Woodard requested a six-month “personal leave,” again, for “professional development,”

and that the second request was denied by Doyle on March 15, 2007 for the same reasons

as those supporting his denial of Woodard’s first request. (See Doyle Decl. Ex. D;

Springman Decl. Ex. AA.) Additionally, defendants offer evidence, undisputed by plaintiffs,

that Woodard advised Doyle that he wanted the above-referenced personal leaves

because he had been offered a job with another law enforcement agency and was, in

Doyle’s words, “concerned about the probationary period for his new position.” (See Doyle

Decl. ¶ 5.)

In their motion for summary judgment, defendants argue the above-described

“chronic staff shortages in Juvenile Hall” (see Defs.’ Mot. at 7:21-26) constitute a legitimate,

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10Neither defendants, in their motion, nor plaintiffs, in their opposition, address the

type of circumstantial evidence a plaintiff would need in order to establish a prima facie

discrimination claim based on a failure to grant a request for a leave of absence.

11

non-discriminatory basis for Doyle’s denials of Woodard’s requests,10 and plaintiffs, in their

opposition, do not contend such explanation ordinarily would not constitute a legitimate and

non-discriminatory reason therefor. Rather, plaintiffs assert that two other employees in

the Department, specifically, Damon Burris (“Burris”) and Chris Griffin (“Griffin”) were

granted leaves of absence. Although not clearly expressed, plaintiffs appear to argue that

if other employees in the Department were granted personal leaves, the true reason for

Woodard’s denial was not a staffing shortage. As defendants correctly point out, however,

plaintiffs offer no evidence from which a trier of fact could infer that Burris or Griffin were

granted personal leaves. Further, with respect to Burris, defendants offer evidence,

undisputed by plaintiffs, that although Burris did not work for “a month or six weeks or so” in

2005 or 2006, he was not granted a personal leave, but, rather, he used up his “accrue[d]

vacation hours” and “compensatory time.” (See Lucas Decl. Ex. B at 66-66.)

Accordingly, to the extent plaintiffs’ claims are based on the Department’s denials of

Woodard’s requests for personal leave, defendants have shown they are entitled to

summary judgment.

(4) Request for Transfer to On-Call Position

In their complaint, plaintiffs allege that Woodard “requested to change his position to

on-call status,” and that such request was denied. (See Compl. ¶ 57.) Although the

complaint does not identify the individual(s) who denied the request, plaintiffs, with their

opposition, offer evidence that Doyle told Woodard that Woodard’s request was denied. 

(See Springman Decl. Ex. M at 139.)

The undisputed evidence in the record reflects that Woodard, on March 20, 2007,

requested in writing a “transfer in title,” specifically, from a “permanent” counselor to an “oncall” counselor.” (See Doyle Decl. Ex. F.) In their motion, defendants neither argue that

plaintiffs cannot establish a prima facie case of discrimination as to such claim, nor offer

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11Although defendants apparently disagree with plaintiffs’ assertion that the decision

was made by Doyle, defendants offer no evidence as to a different decision-maker and, in

any event, at the summary judgment stage, the Court resolves factual disputes in favor of

the non-moving party.

12Defendants do not argue they are entitled to summary judgment on the Fourth

Cause of Action, by which plaintiffs allege a violation of Article I, § 8 of the California

Constitution, for any reason other than a failure to establish an act of discrimination. The

Court notes that no party has addressed the Ninth Circuit’s holding in Strother v. Southern

California Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996), in which the Ninth

Circuit held that “a claim brought directly under Article I, § 8 of the California Constitution

may only be brought where a plaintiff has been denied entrance into a profession or

particular employment or terminated from the same,” and does not apply to claims of

“discrimination in the conditions of employment” nor “reach conduct affecting particular

aspects of an individual’s job.” See id. at 871-73.

12

any evidence that sets forth the reasons why Doyle, or any other person who denied the

request for a transfer in title,11 denied the request.

Accordingly, to the extent plaintiffs’ claims are based on the Department’s denial of

Woodard’s request to work as an “on-call” counselor, defendants have failed to offer

evidence sufficient to support a finding that the Department had a non-discriminatory basis

for its decision not to grant Woodard’s request for such transfer.

c. Conclusion: Sufficiency of Evidence of Discrimination

To the extent Woodard’s claims are based on the denial of Woodard’s requests for

personal leave, defendants have shown they are entitled to summary judgment; to the

extent Woodard’s claims are based on a failure to promote/select Woodard for the position

of Deputy Probation Officer and failure to transfer Woodard to an “on-call” position,

defendants have failed to show plaintiffs’ evidence is insufficient to raise a triable issue as

to whether discrimination played a role in such decisions.

2. Additional Arguments

As noted, defendants, as to four of plaintiffs’ five causes of action, argue they are

entitled to summary judgment irrespective of whether plaintiffs can establish a claim of

employment discrimination.12 The Court next considers these additional arguments as they

pertain to Woodard’s failure-to-promote, failure-to-select, and failure-to-transfer claims.

//

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a. First Cause of Action

The First Cause of Action alleges a deprivation of rights under 42 U.S.C. § 1983. 

Defendants argue they are entitled to summary judgment thereon because Siffermann is

entitled to qualified immunity and because plaintiffs lack evidence to show that any adverse

employment action was taken pursuant to a policy or practice of the Department.

(1) Siffermann

“The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v.

Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). To determine whether a government official is entitled to qualified immunity, a

“two-step sequence” is “often appropriate.” See id. at 815, 818. First, the court determines

whether the facts “show that the [official’s] conduct violated a constitutional right.” See id.

at 816. If not, the official is entitled to qualified immunity, and, if so, the court determines

whether “the right was clearly established.” See id.

Here, defendants offer evidence, undisputed by plaintiffs, that Siffermann did not

participate in the decision not to promote or select Woodard for the position of Deputy

Probation Officer (see Siffermann Decl. ¶ 18), and, as discussed above, plaintiffs contend,

and offer evidence to support a finding, that Doyle made the decision to deny Woodard’s

request to work on an on-call basis. In short, there is no evidence in the record to support

a finding that Siffermann personally had a role in any of the alleged adverse employment

decisions made with respect to Woodard. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

1989) (“Liability under section 1983 arises only upon a showing of personal participation by

the defendant.”). Because there is no evidence to support a finding that Siffermann

“violated a constitutional right” held by Woodard, defendants have shown, at the “first step”

of the qualified immunity analysis, that Siffermann is entitled to qualified immunity. See

Pearson, 129 S. Ct. at 816.

//

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14

Accordingly, to the extent the First Cause of Action is brought on behalf of Woodard

and against Siffermann, defendants are entitled to summary judgment.

(2) The City

Defendants contend plaintiffs cannot establish a civil rights deprivation claim against

the City, for the asserted reason that plaintiffs lack evidence to demonstrate the alleged

discrimination to which Woodard was subjected was taken pursuant to a policy or custom

of the Department. See Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (2008)

(holding government entity entitled to summary judgment on civil rights deprivation claim,

where plaintiff cannot demonstrate employee who deprived plaintiff of federal right “acted

pursuant to a governmental policy or custom”). The Court agrees.

First, the complaint does not allege that the adverse employment decisions to which

Woodard is alleged to have been subjected were taken pursuant to any departmental policy

or custom. Moreover, defendants have offered statistics demonstrating that, during the

period of July 1, 2006 through June 30, 2008, 58% of the persons promoted in the

Department were African-American and 33% of persons newly-hired by the Department

were African-American, a percentage higher than for “any other racial or ethnic group.” 

(See Magee Decl. ¶ 14, Ex. F.) Lastly, plaintiffs have neither contested the statistical

showing made by defendants, nor offered any evidence demonstrating that plaintiffs 

nonetheless can establish that the Department has a policy or custom of failing to provide

equal employment opportunities for African-Americans. Indeed, plaintiffs, in their

opposition, make no argument as to why the City can be held liable on plaintiffs’ claims

under § 1983.

Accordingly, to the extent the First Cause of Action is brought on behalf of Woodard

and against the City, defendants are entitled to summary judgment.

b. Second Cause of Action

In the Second Cause of Action, plaintiffs allege a violation of Title VII.

At the outset, defendants argue that Woodard’s failure to obtain a right-to-sue letter

prior to filing the instant action constitutes a bar to Woodard’s Title VII claim. See Surrell v.

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California Water Service Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (holding failure to

receive “federal right-to-sue letter” not jurisdictional but “general requirement of a federal

right-to-sue letter remains”). In that regard, defendants point out that, as of the time they

filed their motion, the Equal Employment Opportunity Commission (“EEOC”) still had the

matter under investigation and, consequently, had not issued a right-to-sue letter to

Woodard. (See Lucas Decl. Ex. H, nineteenth unnumbered page.) Subsequent to the filing

of defendants’ motion, however, the EEOC issued a right-to-sue letter to Woodard (see

Supp. Woodard Decl. Ex. A), which issuance, as Woodard correctly notes, cures the

deficiency. See Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1351 (9th Cir.

1984) (holding lawsuit filed before receipt of right-to-sue letter is “premature” but deficiency

“cured” where right-to-sue letter received before trial).

Consequently, to the extent defendants rely on Woodard’s failure to obtain a right-tosue letter prior to his filing the instant action, defendants have not shown they are entitled

to summary judgment on the Second Cause of Action.

As defendants correctly argue, however, and plaintiffs offer no disagreement

therewith, a Title VII claim cannot be maintained against Siffermann. See Miller v.

Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir. 1993) (holding “individual defendants

cannot be held liable for damages under Title VII”).

Accordingly, to the extent the Second Cause of Action is brought on behalf of

Woodard and against Siffermann, defendants have shown they are entitled to summary

judgment, and to the extent said Cause of Action is brought against the City, defendants

have not shown they are entitled to summary judgment.

c. Third Cause of Action

In the Third Cause of Action, plaintiffs allege a violation of FEHA.

As defendants correctly argue, and plaintiffs offer no dispute, a FEHA claim cannot

be maintained against Siffermann. See Reno v. Baird, 18 Cal. 4th 640, 663 (1998) (holding

“individuals who do not themselves qualify as employers may not be sued under the FEHA

for alleged discriminatory acts”).

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Accordingly, to the extent the Third Cause of Action is brought on behalf of Woodard

and against Siffermann, defendants are entitled to summary judgment.

d. Fifth Cause of Action

In the Fifth Cause of Action, plaintiffs allege a claim for intentional infliction of

emotional distress.

Under the California Government Claims Act, to maintain “any tort claim” against a

public entity, a plaintiff must present the claim to such entity in accordance with the

procedural requirements set forth therein. See Crow v. State of California, 222 Cal. App.

3d 192, 199 (1990). A plaintiff’s failure to comply with the claim presentation requirement is

a bar to maintaining state law tort claims against a governmental entity and its employees. 

See Ortega v. O’Connor, 764 F.2d 703, 707 (9th Cir. 1985), rev’d in part on other grounds,

480 U.S. 709 (1987).

Here, defendants offer evidence, undisputed by plaintiffs, that Woodard, prior to

filing the instant action or at any other time, failed to submit the requisite claim. (See

Rothschild Decl. ¶ 4.)

Accordingly, to the extent the Fifth Cause of Action is brought of behalf of Woodard,

defendants are entitled to summary judgment.

B. Plaintiff Gainey

Plaintiffs allege that in 2007, Gainey, who was at that time a Deputy Probation

Officer, applied for and did not receive a promotion to the position of Supervising Probation

Officer. (See Compl. ¶ 33, 36, 39.) Plaintiffs also allege that in March 2008, Gainey

received a promotion as a Supervising Probation Officer, but that the promotion was “in

name only.” (See Compl. ¶ 41.)

1. Sufficiency of Evidence: Employment Discrimination

a. 2007 Failure to Promote

Defendants offer evidence, undisputed by plaintiffs, that on January 23, 2007, the

City, through its Department of Human Resources (“DHR”) announced it was accepting

applications for the civil service position of Supervising Probation Officer. (See Horan Decl.

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13It appears that six of the applicants received, essentially, a tied rank with one or

more of the other applicants. (See Horan Decl. Ex. A at 00089.)

14Although neither party expressly provides the number of applicants interviewed by

Siffermann and Nance, it appears from Siffermann’s notes, taken at the time, that

interviews of twenty-three of the twenty-four persons on the eligible list were conducted. 

(See Siffermann Decl. Ex. E.)

17

¶ 8, Ex. A at 00084.) As set forth in the DHR’s announcement, applicants would be given

an “oral/performance examination” by the DHR, which examination could include a “written

exercise” (see id. Ex. A at 00085); the purpose of the DHR’s examination was to enable the

DHR to establish an “eligible list” of persons who could be selected to fill the position of

Supervising Probation Officer (see id. ¶ 4). The announcement further provided that after

the DHR had conducted such examination, the “hiring department,” i.e, the Juvenile

Probation Department, could “conduct additional selection processes to make final hiring

decisions.” (See id. Ex. A at 00086.)

The evidence is undisputed that the DHR subsequently administered its examination

in “two parts,” specifically, a “written qualification portion” administered on March 13, 2007,

and an “oral portion” administered on March 15 and 16, 2007 (see id. ¶ 9), and that

Siffermann had no role in the administration of either the oral or written part of the DHR’s

examination and had no knowledge of any of the questions therein. (See Siffermann Decl.

¶ 6.) It also is undisputed that on April 17, 2007, the DHR issued an “eligible list,”

specifically, a list of twenty-four persons who had taken the DHR’s examination, each of

whom received a “rank” from 1 to 18,13 and that Gainey was ranked No. 1. (See Horan

Decl. Ex. A at 00089; Springman Decl. Ex. C.)

Additionally, defendants offer evidence, undisputed by plaintiffs, that in 2007, the

Department had “four approved requisitions” (see Nance Decl. ¶ 6), meaning the

Department could select four persons for the position of Supervising Probation Officer (see

id.). Defendants also offer evidence, undisputed by plaintiffs, that “all interested persons”

on the ranked list of applicants, including Gainey, were interviewed by Siffermann and Allen

Nance, the Assistant Chief Probation Officer,14 and that, following those interviews,

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28 15Defendants do not argue that Gainey is unable to establish a prima facie case.

18

Siffermann selected four individuals for the then open positions of Supervising Probation

Officer. (See id. ¶ 9; Siffermann Decl. ¶ 11.) As shown by defendants’ evidence, and

undisputed by plaintiffs, Siffermann selected Ernestine Cade-Hill (“Cade-Hill”), whom

defendants describe as “African-American,” Sarah Schumann (“Schumann”), whom

defendants describe as “of Hispanic descent,” Gary Levene (“Levene”), whom defendants

describe as “Caucasian,” and Dennis Fuata (“Fuata”), whom defendants describe as

“Pacific-Islander.” (See Nance Decl. ¶ 9.)

Defendants contend plaintiffs cannot establish a racially discriminatory motivation

for their decision not to select Gainey for one of the four available positions as a

Supervising Probation Officer. In particular, defendants argue, defendants have articulated

a legitimate, non-discriminatory reason for Siffermann’s decision to select other individuals,

and plaintiffs lack evidence to support a finding that such reasons are a pretext for racial

discrimination.15

In support of their argument, defendants offer Siffermann’s declaration, in which he

states that each of the persons he and Nance interviewed in 2007 was asked “the same

series of questions,” which questions were directed to the applicant’s “job experience” and

“views of the juvenile justice system,” as well as how the applicant “would handle certain

situations.” (See Siffermann Decl. ¶¶ 9, 10, Ex. B.) Defendants also offer Siffermann’s

deposition testimony, in which he explained why he selected the persons given the

Supervising Probation Officer position in 2007, and why he did not select Gainey at that

time. Specifically, Siffermann testified that he selected Schumann because of “her

knowledge of the job,” “her understanding of the law,” “her understanding of the vision of

the least restrictive intervention or placement that did not compromise [the] public safety

part of the detention alternatives initiative,” and “her ability to communicate [and] be direct.” 

(See Lucas Decl. Ex. D at 95-96.) Siffermann testified he selected Levene because, in

Siffermann’s view, “he possessed the knowledge, experience, leadership and vision . . .

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16The fourth person selected in 2007 was Cade-Hill, who is African-American. 

Siffermann testified she was selected because she had a “wealth of experience” and during

her interview she “brought out some great perspectives . . . on management of personnel

and her approach to the job of being a supervisor.” (See id. Ex. D at 96.)

17To the extent plaintiffs, in relying on Siffermann’s “dark side” comment, assert they

need not establish their claims under the McDonnell Douglas framework, the Court, for the

reasons stated above with respect to plaintiffs’ claims brought on behalf of Woodard,

disagrees.

19

that was most consistent with what [Siffermann] felt a good supervisor needed to possess,

particularly with his understanding of the unit [for which] he eventually was appointed as

supervisor.” (See id. Ex. D at 95.) Siffermann testified he selected Fuata because Fuata

had demonstrated “skill in managing his subordinate staff” at the time Fuata previously had

worked as an “acting supervisor,” and because his “style” of management was, in

Siffermann’s experience, “compatible with extracting the positive outputs of personnel but

at the same time able to hold officers accountable.” (See id. Ex. D at 97-98.)16 Additionally,

Siffermann testified that he did not select Gainey for a supervisory position in 2007

because he believed Gainey was “a little bit soft spoken and maybe not as definitive,” and

had not “demonstrated any leadership.” (See id. Ex. D at 100.)

The Court finds Siffermann’s stated grounds for not selecting Gainey in 2007 for a

Supervising Probation Officer position constitute legitimate and non-discriminatory reasons

for the non-selection; plaintiffs do not argue to the contrary. Rather, plaintiffs argue that, for

several reasons, plaintiffs can establish Siffermann’s stated grounds were a pretext for

racial discrimination.17 As discussed below, the Court disagrees.

First, plaintiffs argue, the Department should have selected the persons who scored

the highest on the examination administered by the DHR, i.e., the examination

administered to create the eligible list, rather than make decisions based on the interviews

conducted by Siffermann. In other words, plaintiffs argue, the Department should have

employed different selection criteria than those actually employed. Plaintiffs cannot create

a triable issue of fact as to pretext, however, by arguing they would have been selected if

plaintiffs’ own choice of criteria had been employed. See Cotton v. City of Alameda, 812

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18Defendants’ request for judicial notice of the Civil Service Rules (see Defs.’ Req.

for Judicial Notice Ex. A) is not opposed by plaintiffs, and is hereby GRANTED. 

20

F.2d 1245, 1249 (9th Cir.1987) (holding plaintiff cannot demonstrate pretext by asserting

employer should have used different criteria; observing federal discrimination laws “do[ ]

not make it unlawful for an employer to do a poor job of selecting employees,” but, rather,

“make[ ] it unlawful to discriminate on the basis of [a protected class]”).

Second, plaintiffs argue pretext can be inferred because the Department assertedly

changed the “certification rule” applicable to persons listed on the eligible list after the

rankings were known. Under the San Francisco Civil Service Rules, when a civil service

position becomes available, the DHR must “certify to the appointing officer the names of

eligibles that are reachable within the applicable certification rule.” See San Francisco Civil

Service Rule 111A.28.1.18 If the City and the employees’ union do not agree to a different

certification rule, the “Rule of Three Scores shall be used exclusively.” See San Francisco

Civil Service Rule 111A.30.3. Under the Rule of Three Scores, where more than one

position is available, “the number of scores certified shall be equal to the number of

positions to be filled plus the number of scores in the certification rule minus one.” See San

Francisco Civil Service Rule 111A.29.2.

Here, defendants offer evidence that, as of the time the DHR administered its

examination, the City and the employees’ union, the Supervising Probation Officers’

Association (“SPOA”), had not decided upon the certification rule that would apply (see

Horan Decl. ¶ 8), and that before the results were known, the City and the SPOA agreed to

the “Rule of the List” (see id. Ex. A at 00082), which rule provides that the “appointing

officer” can “select anyone from the list” and is “free to inquire further about a candidate’s

experience” (see id. ¶ 6). Plaintiffs fail to offer any evidence that any person representing

either the City or the SPOA was aware of the results of the examination at the they agreed

to the Rule of the List, or that Siffermann had any input into, or even awareness of, the

negotiations between the City and the SPOA regarding which certification rule would apply

to the eligible list. Moreover, even if the Rule of Three Scores had been applied to the four

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19As noted, under the Rule of Three Scores, “the number of scores certified shall be

equal to the number of positions to be filled plus the number of scores in the certification

rule minus one.” See San Francisco Civil Service Rule 111A.29.2. Thus, where, as here,

four positions were to be filled, the Department was allowed to make selections from

persons who were ranked No. 1 through No. 6 on the eligible list (4 + 3 - 1).

21

positions at issue, in which case the Department would have been required to select

persons ranked Nos. 1 through 6 on the eligible list,19 each person selected in 2007 would

have been “reachable,” because it is undisputed that Schumann and Levene were both

ranked No. 3, Cade-Hill was ranked No. 5, and Fuata was ranked No. 6. (See id. Ex. A at

00089; Springman Decl. Ex. C.)

Third, plaintiffs argue that “at the time [defendants] refused promotions to [plaintiffs],

the [ ] Department had not hired an African-American supervisor in over 20 years.” (See

Pls.’ Opp. at 1:11-13.) Plaintiffs cite no evidence to support such assertion. (See id.) 

Moreover, defendants offer evidence, undisputed by plaintiffs, that Siffermann did not begin

working for the Department until April 2005 (see Siffermann Decl. ¶ 1), and plaintiffs fail to

explain why the hiring practices of prior Chief Probation Officers, even if such practices

were as asserted by plaintiffs, tend to prove that Siffermann’s stated non-discriminatory

reasons for not selecting Gainey were a pretext for racial animus on his part. Further, as

discussed above, plaintiffs have offered no evidence to dispute defendants’ showing that

during the two-year period in which plaintiffs are alleged to have been subjected to adverse

employment decisions, 58% of the persons promoted by Siffermann were AfricanAmerican.

Finally, plaintiffs rely on various employment decisions made with respect to other

employees whom plaintiffs describe as African-American. In particular, plaintiffs offer

evidence that in December 2007, Lonnie Holmes (“Holmes”) was selected by Siffermann to

be “Director of Community Programs,” but that “within months,” Siffermann “eliminated

many of [Holmes’s] duties,” and, in 2009, eliminated the position of Director of Community

//

//

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20Plaintiffs offer no evidence that Holmes’ employment with the City was terminated

when the position of Director of Community Programs was eliminated or that Holmes’

salary was in any manner affected thereby.

21The evidence cited by plaintiffs for this proposition, specifically, Exhibit F to the

Springman Declaration, does not support such a finding, nor refer in any way to such

employees. Defendants, however, do not dispute plaintiffs’ assertion that Supervising

Counselor positions were eliminated; rather, defendants concede three Supervising

Counselor positions were eliminated in June 2008, but submit evidence, undisputed by

plaintiffs, that no such employee was terminated by the City (see Magee Decl. Ex. E), that

the three Supervising Counselor positions were among five positions eliminated by

Siffermann for budgetary reasons, and that the affected individuals were either to “continue

to work for Juvenile Probation in other capacities” or “move on to new opportunities with the

City” (see id.).

22

Programs from the Department’s budget. (See Holmes Decl. ¶¶ 8, 10, 11.)20 Additionally,

plaintiffs assert that in 2008, the Department “eliminated three Supervising Counselors from

Juvenile Hall,” each position held by an African-American. (See Pls.’ Opp. at 10:20-22.)21

In arguing such evidence supports a finding that Siffermann’s stated reasons for not

promoting Gainey in 2007 were pretextual, plaintiffs rely on Obrey v. Johnson, 400 F.3d

691 (9th Cir. 2005), wherein the Ninth Circuit observed that “statistical data” can be used to

“establish a general discriminatory pattern in an employer’s hiring or promotion practices,”

and that such a pattern, in turn, can “create an inference of discriminatory intent with

respect to the individual employment decision at issue.” See id. at 694. Here, even

assuming each of the above-referenced four individuals is African-American and was in

some manner adversely affected by the elimination, plaintiffs have offered no statistical

data from which an inference of a general pattern of any type can be drawn, let alone a

pattern of discriminatory practices.

Accordingly, to the extent plaintiffs’ claims are based on the Department’s decision

not to promote Gainey in 2007, defendants have shown they are entitled to summary

judgment.

b. Events Occurring Subsequent to Promotion

On March 3, 2008, Siffermann promoted Gainey to the position of Supervising

Probation Officer. (See Lucas Decl. Ex. 23 to Ex. E.) As explained by Siffermann, he did

so in large part because, between the time of Gainey’s non-selection in 2007 and his

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22In contrast to the other alleged discriminatory acts discussed herein, each of which

is alleged in the complaint, the complaint includes no allegation that Gainey was required to

share a secretary, much less that any such decision was discriminatory.

23

selection in 2008, Gainey had “volunteered for special assignments and demonstrated

strong leadership.” (See Siffermann Decl. ¶ 13.)

Plaintiffs argue that, after his promotion, defendants subjected Gainey to

discrimination.

Specifically, plaintiffs argue, defendants discriminated against Gainey by requiring

him to continue to perform the duties of his prior assignment after he was promoted. With

respect to this claim, defendants offer evidence that, prior to his promotion, Gainey had

been working at an “offsite location” known as “the Principal’s Center,” a program in which

75 youths were enrolled, and that Gainey was asked to provide “coverage at the

[Principal’s Center] following his promotion until such time as a new probation officer could

be identified and trained for the assignment.” (See Nance Decl. ¶ 15.) Defendants submit 

evidence that Gainey “agreed to work in that capacity,” and did so for one month, after

which time he was injured and did not work in any capacity for the next eight months. (See

id.) Plaintiffs offer no evidence to the contrary. Moreover, to the extent plaintiffs may be

suggesting that Gainey did not feel he could refuse to provide such interim assistance,

plaintiffs fail to explain how the making of a request for such assistance gives rise to an

inference of racial discrimination, and the Court finds it does not.

Plaintiffs also assert that Gainey was required to share a secretary with another

supervisor, who also is African-American. Assuming such assertion is intended by

plaintiffs to state a distinct claim for discrimination,22 and assuming, arguendo, that

requiring an employee to share a secretary could constitute an adverse employment action

for purposes of Title VII or FEHA, plaintiffs do not argue, nor does their evidence support a

finding, that only African-American supervisors were required to share secretaries (see

Springman Decl. Ex. G at 206), and, consequently, plaintiffs cannot establish a prima facie

case of discrimination based thereon. Cf., e.g., Hildebrandt v. Illinois Dep’t of Natural

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Resources, 347 F.3d 1014, 1034 n.14 (7th Cir. 2003) (holding where, in context of claim

based on gender discrimination in form of hostile work environment, plaintiff asserted she

had to share secretary, such assertion did not support plaintiff’s claim because plaintiff

failed to show she was “treated differently from her male coworkers with respect to [such

sharing]”).

Accordingly, to the extent plaintiffs’ claims are based on events occurring after

Gainey’s promotion, defendants have shown they are entitled to summary judgment.

c. Conclusion as to Discrimination Claims Brought on Behalf of Gainey

Defendants are entitled to summary judgment to the extent plaintiffs allege claims on

behalf of Gainey.

2. Additional Arguments

Because, as discussed above, defendants have shown Gainey lacks sufficient

evidence to establish that he was subjected to employment discrimination, the Court does

not address herein defendants’ additional arguments made in support of their motion.

C. Plaintiff Oliphant

Plaintiffs allege that Oliphant, a Deputy Probation Officer, applied for and did not

receive a promotion to the position of Supervising Probation Officer. (See Compl. ¶¶ 13,

17, 21, 25.)

1. Sufficiency of Evidence: Employment Discrimination

a. 2007 Failure to Promote

It is undisputed that Oliphant was ranked No. 2 on the DHR’s “eligible list” issued

April 17, 2007. (See Horan Decl. Ex. A at 00089; Springman Decl. Ex. C.)

As discussed above, Siffermann, in 2007, selected four persons for the then

available positions of Supervising Probation Officer. In explaining why he did not select

Oliphant at that time, Siffermann testified that Oliphant’s “understanding of casework and

casework supervision” was “inconsistent with what [Siffermann] thought was the best

perspective to take.” (See Lucas Decl. Ex. D at 100.) More specifically, Siffermann

testified that during Oliphant’s interview, the topic of “the role of the supervisor in providing

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direction on the case and whose case it is and who is responsible” was discussed, and

Oliphant indicated, as described by Siffermann, that it was Oliphant’s “belief that [the

cases] are not his cases, they are the probation officer’s cases” and that “the individual

officer [ ] had the primary case decision-making authority,” which belief, Siffermann

testified, was “not consistent with [Siffermann’s] beliefs” as to “the role of a supervisor.” 

(See id. Ex. D at 70, 149.) As Siffermann further explained, he “view[s] the role of a

supervisor” as “taking ownership and responsibility and [ ] feel[ing] that it [is] necessary in

those circumstances to affirm or question a judgment on a matter” (see id. Ex. D at 70),

and that “the supervisor is the person that has the final word on matters involving all the

cases in the unit” (see id. Ex. D at 149).

The Court finds Siffermann’s stated reasons are legitimate and non-discriminatory. 

Plaintiffs do not argue to the contrary; rather plaintiffs argue that, for the reasons discussed

above with respect to Gainey’s non-selection in 2007, plaintiffs can establish such reasons

are a pretext for racial discrimination. For the reasons stated above with respect to Gainey,

the Court disagrees.

Accordingly, to the extent plaintiffs’ claims are based on the Department’s decision

not to promote Oliphant in 2007, defendants have shown they are entitled to summary

judgment.

b. 2008 Failure to Promote

In 2008, the Department had two openings for the position of Supervising Probation

Officer. One of those positions was given to Gainey and the other to Richard Perino

(“Perino”), whom all parties describe as Caucasian. Plaintiffs argue that defendants’

selection of Perino instead of Oliphant constituted racial discrimination.

With respect to this claim, defendants offer evidence, undisputed by plaintiffs, that

the position for which Perino was selected was Supervisor of the Department’s “Courtroom

Officer Unit.” (See Siffermann Decl. ¶ 12.) Defendants also offer evidence, undisputed by

plaintiffs, that the Supervisor of the Courtroom Officer Unit would “work in Courtroom 4 in

addition to his duties to manage the work of the court officers and perform other duties as

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23To the extent plaintiffs, in relying on Siffermann’s “dark side” comment, are

asserting they need not establish a claim under the McDonnell Douglas framework, the

Court, for the reasons stated above with respect to plaintiffs’ claims brought on behalf of

Woodard, disagrees.

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assigned.” (See Nance Decl. ¶ 12.)

Siffermann testified that Perino initially was selected for such supervisory position in

an “acting” capacity, because Perino had been working in that unit and had “demonstrated

the leadership capabilities that kept that division [the Courtroom Officer Unit] running,” and

he had been “kind of the surrogate leader all along” because the prior Supervising

Probation Officer had, in Siffermann’s view, “provided little or no leadership.” (See Lucas

Decl. Ex. D at 105.) Thereafter, Siffermann permanently filled the position with Perino

because, in Siffermann’s assessment, the Courtroom Officer Unit, after Perino became the

acting supervisor, had a “tremendous turnaround in its response to the court.” (See id. Ex.

D at 111.) Specifically, under Perino’s predecessor, “there wouldn’t be a week that would

go by that [Siffermann] didn’t receive some kind of complaint from the court,” and that such

complaints stopped “right after [Perino] became acting supervisor.” (See id. Ex. D at 112.) 

When asked why he selected Perino for the permanent position, rather than Oliphant,

Siffermann testified at his deposition as follows:

Well, because of the period of time of candidacy after I had reached out to

everybody and asked them to consider participating in any kind of initiative

that we would ask. As future leaders of the court, [ ] Perino volunteered for

everything. [ ] Oliphant, it wasn’t a matter of not volunteering, it was – on two

instances, it was, having been approached, and he declined to take part in it. 

So it [the selection of Perino] had to do with leadership initiative and working

together with the administration.

(See id. Ex. D at 112.)

The Court finds Siffermann’s stated grounds for not selecting Oliphant as the

Supervisor for the Courtroom Officer Unit constitute legitimate and non-discriminatory

reasons for such decision. Again, plaintiffs do not argue to the contrary; rather, plaintiffs

argue they can establish Siffermann’s stated grounds are a pretext for racial

discrimination.23

//

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24There is no evidence suggesting any such method of assignment was intended by

Perino to provide preferred assignments to any particular individual or group of probation

officers. In Siffermann’s view, however, neither assigning cases based on the race of the

probationer nor assigning cases based on a “rotation wheel” is an appropriate method of

assignment. (See id. Ex. F at 106.)

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In support thereof, plaintiffs rely on the following evidence regarding Perino:

(1) Siffermann’s testimony that he was aware of “hearsay” that Perino, before Siffermann

became Chief Probation Officer, had been appointed as an acting supervisor and later was

removed from that position because Perino had a “method of assigning cases” based on

“race,” and that Siffermann did not believe it was necessary to learn the “details of that

decision” before appointing Perino to Supervisor of the Courtroom Officer Unit, which

position did not involve the assignment of cases (see Springman Decl. Ex. F at 177-78);24

(2) Siffermann’s testimony that during Perino’s interview for the supervisor positions that

were available in 2007, Perino gave some answers that were “deficient,” “superficial,” and

“inferior” (see id. Ex. F at 184-85); (3) Siffermann’s testimony that he knew of “concerns

raised about [ ] Perino by the prior director of probation services, Nancy Yalon,” specifically,

her concerns that Perino was “lax, not holding folks accountable” and was “giving people

too much latitude” (see id. Ex. F at 106); and (4) Siffermann’s testimony that Perino was

the “first [person] [Siffermann] disciplined for insubordination to the court”; specifically,

Siffermann suspended Perino for five days for “disrespect to the court” based on his

“answering a cell phone and telling the judge to wait while he was before the bench” (see

id. Ex. F at 108-09).

Although such information concerning Perino would not necessarily disqualify him as

a viable candidate for the then available supervisor position, the Court finds the above-cited

evidence, viewed in the aggregate and in the light most favorable to plaintiffs, is sufficient to

raise a triable issue as to whether Siffermann’s stated reasons for promoting Perino over

Oliphant are pretextual.

//

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Accordingly, to the extent plaintiffs’ claims are based on a failure to promote

Oliphant in 2008, defendants have not shown that Oliphant has failed to raise a triable

issue as to whether discrimination played a role in such decision.

c. Conclusion: Sufficiency of Evidence as to Discrimination

To the extent plaintiffs’ claims are based on the failure to promote Oliphant in 2007,

defendants have shown they are entitled to summary judgment; to the extent plaintiffs’

claims are based on the failure to promote Oliphant in 2008, defendants have failed to

show discrimination played no role in such decision.

2. Additional Arguments

Each of the five causes of action alleged on behalf of Oliphant is based on the same

alleged acts of discrimination. Defendants argue that, irrespective of whether plaintiffs can

establish a claim of employment discrimination, defendants are entitled to summary

judgment on four of the five causes of action to the extent they are alleged on behalf of

Oliphant, for reasons specific to each such cause of action. The Court next considers

these additional arguments as they pertain to plaintiffs’ claim that the failure to promote

Oliphant in 2008 constituted racial discrimination.

a. First Cause of Action

In the First Cause of Action, plaintiffs, as noted, allege a violation of § 1983.

(1) Siffermann

Defendants argue that Siffermann is entitled to qualified immunity.

As discussed above, a government official is entitled to qualified immunity if the

official’s conduct did not violate the plaintiff’s constitutional rights, or, if a violation did occur,

the right violated was not clearly established. See Pearson, 129 S. Ct. at 815. In

determining whether either such circumstance has been established, the court “must

accept the facts in the light most favorable to the [p]laintiffs,” and, with respect to the latter,

must “determine whether, in light of clearly established principles governing the conduct in

question, the [defendants] objectively could have believed that their conduct was lawful.” 

See Mena v. City of Simi Valley, 226 F.3d 1031, 1036 (9th Cir. 2000).

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Here, defendants argue, “[p]laintiffs cannot prove that [Oliphant] suffered a

deprivation of rights secured to [him] by the federal constitution.” (See Defs.’ Mot. at 16:5-

6.) As discussed above, plaintiffs have demonstrated a triable issue of fact exists as to

whether discrimination played a role in Siffermann’s decision not to promote Oliphant in

2008. Defendants have not argued that, in the event a trier of fact could find Siffermann’s

stated reasons for selecting Perino over Oliphant were pretextual in nature, the Court

nonetheless could find Siffermann entitled to qualified immunity.

Accordingly, to the extent the First Cause of Action is based on plaintiffs’ claim that

the failure to promote Oliphant in 2008 constituted racial discrimination, defendants have

failed to show Siffermann is entitled to qualified immunity.

(2) The City

Defendants contend plaintiffs cannot establish a civil rights deprivation claim against

the City, for the reason that plaintiffs lack evidence to demonstrate the discrimination to

which Oliphant is alleged to have been subjected was taken pursuant to a policy or custom

of the Department.

Again, as with the claims brought on behalf of Woodard, the complaint does not

allege the failure to promote occurred as a result of a departmental policy or custom, and,

again, defendants have offered statistics demonstrating that, during the period from July 1,

2006 through June 30, 2008, 58% of the persons promoted in the Department were

African-American and 33% of persons newly-hired for any position were African-American,

a percentage higher than for “any other racial or ethnic group.” (See Magee Decl. ¶ 14, Ex.

F.) As discussed above, plaintiffs neither contest such statistical showing nor offer any

evidence suggesting the Department has a policy of failing to provide equal employment

opportunities for African-Americans, nor do plaintiffs, in their opposition, make any

argument as to why the City can be held liable on plaintiffs’ claims under § 1983.

Accordingly, to the extent the First Cause of Action is brought on behalf of Oliphant

and against the City, defendants have shown they are entitled to summary judgment.

//

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b. Second Cause of Action

As discussed above with respect to Woodard, plaintiffs cannot establish as against

Siffermann their Second Cause of Action, by which they allege a violation of Title VII.

Accordingly, to the extent the Second Cause of Action is brought on behalf of

Oliphant and against Siffermann, defendants have shown they are entitled to summary

judgment.

c. Third Cause of Action

As discussed above with respect to Woodard, plaintiffs cannot establish as against

Siffermann their Third Cause of Action, by which they allege a violation of FEHA.

Accordingly, to the extent the Third Cause of Action is brought on behalf of Oliphant

and against Siffermann, defendants have shown they are entitled to summary judgment.

To the extent defendants argue plaintiffs’ FEHA claim on behalf of Oliphant is barred

because the complaint contains no allegation that Oliphant received a right-to-sue letter

from the Department of Fair Employment and Housing (“DFEH”), the Court disagrees. The

instant matter is no longer at the pleading stage, and plaintiffs have offered evidence,

undisputed by defendants in their reply, that Oliphant received a right-to-sue letter from the

DFEH dated October 5, 2007, well before the instant action was filed. (See Springman

Decl. Ex. EE.)

d. Fifth Cause of Action

Lastly, defendants argue they are entitled to summary judgment on plaintiffs’ Fifth

Cause of Action, by which plaintiffs allege a claim of intentional infliction of emotional

distress. Specifically, defendants offer evidence that Oliphant did not, prior to filing the

instant action, or at any other time, present his tort claim to the City. (See Rothschild Decl.

¶ 4.) Plaintiffs offer no evidence to the contrary.

Accordingly, defendants are entitled to summary judgment on the Fifth Cause of

Action. See Crow, 222 Cal. App. 3d at 199; Ortega, 764 F.2d at 707.

//

//

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CONCLUSION

For the reasons discussed above, defendants’ motion for summary judgment is

hereby GRANTED in part and DENIED in part, as follows.

1. With respect to the claims brought on behalf of Woodard,

a. to the extent the motion seeks summary judgment on the First and Fifth

Causes of Action in their entirety, the motion is GRANTED,

b. to the extent the motion seeks summary judgment on the Second and

Third Causes of Action as alleged against Siffermann, the motion is GRANTED,

c. to the extent the motion seeks summary judgment on all claims that are

predicated on denial of requests for personal leave, the motion is GRANTED, and

d. in all other respects, the motion is DENIED.

2. With respect to the claims brought on behalf of Gainey, the motion is GRANTED.

3. With respect to the claims brought on behalf of Oliphant,

a. to the extent the motion seeks summary judgment on the First Cause of

Action as alleged against the City, the motion is GRANTED.

b. to the extent the motion seeks summary judgment on the Second and

Third Causes of Action as alleged against Siffermann, the motion is GRANTED,

c. to the extent the motion seeks summary judgment on the Fifth Cause of

Action in its entirety, the motion is GRANTED,

d. to the extent the motion seeks summary judgment on all claims that are

predicated on a failure to promote in 2007, the motion is GRANTED, and

e. in all other respects, the motion is DENIED.

IT IS SO ORDERED.

Dated: May 7, 2010 

MAXINE M. CHESNEY

United States District Judge

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