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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANDRE G. VANN, No. CIV.S-04-0562 DAD PS

Plaintiff,

v. ORDER

COUNTY OF SACRAMENTO, et al.,

Defendants.

____________________________/

This matter is before the court on defendants’ motion for

summary judgment, or in the alternative summary adjudication. 

Plaintiff, proceeding pro se, appeared on his own behalf at the

hearing on the motion. Demond L. Philson appeared on behalf of

defendants. Having considered all written materials submitted in

connection with the motion, and after hearing oral argument, the

court will grant defendants’ motion for summary judgment.

LEGAL STANDARDS

Summary judgment is appropriate when it is demonstrated

that there exists no genuine issue as to any material fact, and that

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the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).

The party moving for summary judgment

always bears the initial responsibility of

informing the district court of the basis for its

motion, and identifying those portions of "the

pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any," which it believes

demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

“[W]here the nonmoving party will bear the burden of proof

at trial on a dispositive issue, a summary judgment motion may

properly be made in reliance solely on the ‘pleadings, depositions,

answers to interrogatories, and admissions on file.’” Celotex Corp.,

477 U.S. at 323. Indeed, 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. See id. at 322. “[A] complete

failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Id. 

In such a circumstance, summary judgment should be granted, “so long

as whatever is before the district court demonstrates that the 

standard for entry of summary judgment, as set forth in Rule 56(c),

is satisfied.” Id. at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a genuine

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issue as to any material fact actually does exist. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also

First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89

(1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th

Cir. 1979). 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, 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 v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 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 (quoting Fed. R. Civ. P. 56(e)

advisory committee’s note on 1963 amendments).

In resolving the summary judgment motion, the court

examines the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); see also SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th

Cir. 1982). The evidence of the opposing party is to be believed,

Anderson, 477 U.S. at 255, and all reasonable inferences that may be

drawn from the facts placed before the court must be drawn in favor

of the opposing party. Matsushita, 475 U.S. at 587 (citing United

States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also United

States v. First Nat’l Bank of Circle, 652 F.2d 882, 887 (9th Cir.

1981). Nevertheless, inferences are not drawn out of the air, and it

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is the opposing party's obligation to produce a factual predicate

from which the inference may be drawn. See Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd,

810 F.2d 898, 902 (9th Cir. 1987). 

Finally, “[a] scintilla of evidence or evidence that is

merely colorable or not significantly probative does not present a

genuine issue of material fact” precluding summary judgment. Addisu

v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). See also

Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). 

On summary judgment the court is not to weigh the evidence or

determine the truth of the matters asserted but must only determine

whether there is a genuine issue of material fact that must be

resolved by trial. See Summers, 127 F.3d at 1152. Nonetheless, in

order for any factual dispute to be genuine, there must be enough

doubt for a reasonable trier of fact to find for the plaintiff in

order to defeat a defendant’s summary judgment motion. See Addisu,

198 F.3d at 1134.

ANALYSIS

Plaintiff is employed as an Office Assistant II by the

County of Sacramento. He initiated this action for discrimination in

employment under Title VII of the Civil Rights Act of 1964, as

amended. Plaintiff’s one-page pro se complaint alleges that he was 

discriminated against on the basis of his sex by defendant Priscilla

Hill, his immediate supervisor, and by defendant Elizabeth FosterWard, who is Ms. Hill’s supervisor.

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 In the course of discovery, plaintiff also claimed that 1

defendant Hill registered plaintiff for a seminar to improve certain

work skills whereas she registered no female employees for that

seminar.

5

According to the complaint, defendant Hill “would record

[plaintiff’s] absences and tardies as Absent Without Leave (AWOL) but

allowed female coworkers to charge absences and tardies as vacation

time.” The complaint goes on to allege that both defendants Hill and

Foster-Ward “have subjected me to differential treatment and

harassment by charging me with AWOLs and scrutinizing my work and

attendance causing an extremely stressful and hostile working

environment.” In this regard, the complaint refers to two specific

instances when defendant Hill asked plaintiff to provide “a list of

all my incomplete work and the reason for incompleteness. Hill has

not requested any female employee to do this.” It also refers to an

incident where defendant Hill allegedly sent “an official timesheet

correction” to human resources “to dock [plaintiff’s] pay for pay

period 5 ten minutes vacation time.” The complaint alleges that 1

plaintiff has been “discriminated against because of my sex, male.” 

Liberally construed, plaintiff’s complaint alleges one cause of

action for discrimination based on sex and another for sexual

harassment resulting in a hostile work environment.

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 Sexual discrimination claims brought under Title VII are 2

analyzed under the McDonnell-Douglas burden shifting framework. 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Godwin v. Hunt

Wesson, Inc., 150 F.3d 1217, 1219-20. The plaintiff must first

present a prima facie case of discrimination. Godwin, 150 F.3d at

1220. The evidence required at this stage is minimal and need not

meet the preponderance of the evidence standard. Id.; Aragon v.

Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir.

2002). If he succeeds in establishing a prima facie case, there is a

rebuttable presumption that the defendant committed unlawful

discrimination. Godwin, 150 F.3d at 1220; Dominguez-Curry v. Nevada

Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005). If the defendant

offers a legitimate reason for adverse employment action, the

presumption is defeated and the burden shifts back to the plaintiff

to create a genuine issue of material fact as to whether the

proffered reason is pretext for discrimination. Godwin, 150 F.3d at

1220; Dominguez-Curry, 424 F.3d at 1037. 

 There is no suggestion in plaintiff’s complaint, or anywhere 3

in the record, of direct evidence of discriminatory intent. See

Godwin, 150 F.3d at 1220 (“The prima facie case may be based either

on a presumption arising from the factors such as those set forth in

McDonnell Douglas, or by more direct evidence of discriminatory

intent.”).

6

Taking up first plaintiff’s sexual discrimination claim,2

to establish a prima face case of discrimination based on sex

plaintiff must demonstrate that he: (1) belongs to a protected class;

(2) was performing according to his employer's legitimate

expectations; (3) was subject to an adverse employment action; and

(4) similarly situated individuals outside of his protected class

were treated more favorably. Reeves v. Sanderson Plumbing, 530 U.S. 3

133, 142 (2000); Godwin, 150 F.3d at 1220.

Defendants persuasively argue that plaintiff has failed to

raise a triable issue that similarly situated women were treated more

favorably than he was. See Godwin, 150 F.3d at 1220. Plaintiff

complains about the accounting of his absences and tardies; scrutiny

of his work; and being registered for a seminar to improve his

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skills. However, the uncontroverted evidence shows that similarly

situated females employees were not treated any more favorably in

this regard. Plaintiff admitted at his deposition that the absences

and tardies of female coworkers were treated in the same manner as

his by superiors. That is, similarly situated female employees also

were charged with being AWOL as a result of tardiness and

unauthorized absences. (Dep. of Andre G. Vann (“Vann Dep.”) at 94-

97, 101, Ex. D to Decl. of Demond L. Philson (“Philson Decl.”).) 

Defendant Hill also has averred that she charged her staff with AWOL

for tardiness and unauthorized absences, regardless of sex, in order

to deter attendance problems that were occurring in her office at the

time. (Decl. of Priscilla Hill in Supp. of Mot. for Summ. J. (“Hill

Decl.”), ¶¶ 6-9; see also Exs. 8, 35 and 36 to Pl.’s Opp’n.) 

Likewise, male and female staff working under defendant Hill were

required to provide her with a list of work load and incomplete work

so that she could assess the proper apportionment of work among her

staff. (Hill Decl. ¶ 10.) Finally, a similarly situated female

staff member was also registered for the same work improvement

seminar that plaintiff claims no other female staff member was asked

to attend. (Hill Decl. ¶ 11.) 

For these reasons, plaintiff has failed to raise a triable

issue that similarly situated women were treated more favorably. As

such, he is unable to establish a prima face case on his claim of

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 Plaintiff’s citation at the hearing to Exhibits 9, 10, 12, 13, 4

14 and 17 to his opposition is unpersuasive. Even assuming those

documents were to survive the hearsay and authentication objections

of defendants, at most they suggest that some employees felt

defendant Hill “played favorites” among her staff. They do not

suggest that any such favoritism, even if it existed, was based on

the sex of any staff member.

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sexual discrimination. Defendants therefore are entitled to summary

judgment in their favor on that claim.4

Next, with respect to whether plaintiff was subjected to a

hostile work environment, plaintiff’s comments at the hearing on this

motion strongly suggest that any hostile work environment claim is

not the focus of his lawsuit. Rather, the crux of his complaint is

that he was “singled out” because he is a man and treated unfavorably 

compared to his female coworkers. In any event, out of an abundance

of caution, the court has considered whether plaintiff, as a person

bringing a hostile work environment claim, is able to meet his burden

of establishing that: (1) he was subjected to verbal or physical

conduct of a sexual nature; (2) the conduct was unwelcome; and (3)

the conduct was "sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive working

environment." Fuller v. City of Oakland, Calif., 47 F.3d 1522, 1527

(9th Cir. 1995)(quoting Ellison v. Brady, 924 F.2d 872, 875-76 (9th

Cir. 1991)).

Here, plaintiff has failed to raise a triable issue that he

was subjected to verbal or physical conduct of a sexual nature or

that the alleged conduct of his superiors was sufficiently hostile or

abusive. Plaintiff’s deposition testimony indicates that defendant

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 To his opposition plaintiff has attached documents reflecting 5

an e-mail and voice mail exchanges at work between himself and

another employee at the County whom plaintiff describes as an exgirlfriend and current friend. Those exchanges are laden with

profanity. Plaintiff has apparently offered this evidence to suggest

that the defendants treated him unfairly in connection with a

workplace violence complaint filed by his ex-girlfriend stemming from

his e-mail and voice mail exchanges with her. However, these e-mails

and voice mail messages, while laced with profanity by both plaintiff

and his ex-girlfriend, did not involve the defendants and have no

relevance to plaintiff’s claims against the defendants that are set

out in his complaint.

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Hill was “very callous, very short and abrupt in communication, very

brash in communication” with plaintiff; “wasn’t nice” to plaintiff;

was not approachable; and made the isolated remark that she could

make plaintiff’s life “miserable.” (Pl.’s Dep. at 111-14.) However,

even drawing all reasonable inferences in favor of plaintiff, there

has been no showing that defendant Hill’s conduct in this regard, or 

any other conduct, was of a sexual nature. Indeed, plaintiff also 5

testified that at no time did defendants direct any sexual or genderrelated slurs toward him. (Pl.’s Dep. at 112-13.)

Nor were the isolated remarks and actions about which

plaintiff complains sufficiently severe or pervasive. See Clark

County School Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)

(“[W]hether an environment is sufficiently hostile or abusive must be

judged by looking at all the circumstances, including the frequency

of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's work

performance.”)(internal quotations and citations omitted). 

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For these reasons, plaintiff has failed to raise a triable

issue that he was subjected to verbal or physical conduct of a sexual

nature that was sufficiently hostile or abusive. He has likewise

failed make a prima face showing with respect to any such claim. 

Therefore, summary judgment in defendants’ favor will be granted as

to plaintiff’s hostile work environment claim due to plaintiff’s

complete failure of proof.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that defendants’ motion

for summary judgment is granted and this action is dismissed in its

entirety.

DATED: March 31, 2006.

DAD:th

DDad1\orders.prose\vann0562.msj

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