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The complaint in this case was initially filed by 1

plaintiffs as bankruptcy adversary action number 03-2492-B,

related to bankruptcy case number 01-31315-b-7, in which the

debtors are Michael Burch and Sylvia Burch. The adversary

proceeding in the bankruptcy court was withdrawn by court order

dated January 15, 2004 and renumbered as captioned here.

1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

MICHAEL D. BURCH and THE

BANKRUPTCY ESTATE OF MICHAEL

D. BURCH,1

NO. CIV. S-04-0038 WBS GGH

Plaintiffs,

v. MEMORANDUM AND ORDER

RE: DEFENDANTS’ MOTIONS FOR

SUMMARY JUDGMENT

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, LARRY VANDERHOEF,

GREG WARZECKA, PAM GILLFISHER, ROBERT FRANKS, and

LAWRENCE SWANSON,

Defendants.

----oo0oo---- 

Plaintiffs have filed claims against defendants for

violations of Title IX of the Education Amendments of 1972, 20

U.S.C. §§ 1681-1688, and 42 U.S.C. § 1983. These claims are

based on allegations that defendants terminated plaintiff Michael

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The bankruptcy estate of Michael D. Burch is also a 2

plaintiff in this action because Burch’s claims became assets of

that estate when he filed bankruptcy on September 27, 2001. (See

Mar. 16, 2004 Order 2 n.2.) However, the court will refer to

“plaintiff”, meaning Michael Burch the individual, throughout

this order. 

2

D. Burch from his position as head wrestling coach at the 2

University of California at Davis (“UCD”) because he opposed

defendants’ sex discrimination against female athletes and

publicly advocated on the athletes’ behalf. Currently before the

court are defendants two (separate) motions for summary judgment

under Federal Rule of Civil Procedure 56. The first seeks

summary judgment as to all defendants on both claims due to

plaintiff’s inability to show that he was retaliated against. 

The second seeks summary judgment on plaintiff’s § 1983 claim

against defendant Larry Vanderhoef.

I. Factual and Procedural Background

Beginning in 1995, UCD employed plaintiff as its head

men’s wresting coach through a series of one-year contracts. 

(Compl. ¶ 5.) Plaintiff was classified as a part-time employee

with the Athletic Department, but he also served as a lecturer in

the Religious Studies Department starting in 1997. (Id. ¶ 6;

Defs.’ Statement of Undisputed Facts (“SUF”) Ex. A (Warzecka

Decl. ¶ 4).) At the time of plaintiff’s termination on June 30,

2001, he was employed pursuant to a contract with the Athletic

Department that started on July 1, 2000 and, by its terms, ended

on June 30 of the following year. (Defs.’ SUF Ex. M (contract).) 

In addition to the Board of Regents of the University

of California, which governs the University of California

campuses including UCD, plaintiff is suing several UCD

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3

administrators for damages and his reinstatement. Defendant

Larry Vandehoef is the Chancellor of UCD. (Compl. ¶ 12.) 

Defendant Greg Warzecka is the Athletic Director at UCD and

defendants Pam Gill-Fisher and Lawrence Swanson are Associate

Athletic Directors. (Id. ¶¶ 13-14, 16.) Defendant Robert Franks

is the Assistant Chancellor for the Student Affairs Department,

which oversees the Athletic Department at UCD. (Id. ¶ 15; Defs.’

SUF Ex. N (Franks Decl. ¶ 2).) In 2001, Franks supervised

Warzecka, who in turn supervised Swanson (plaintiff’s direct

supervisor). (See Pl.’s SUF Ex. 15 (Franks Dep. 119:2-11);

Defs.’ SUF Ex. M (contract).) 

The UCD men’s wrestling team (“the team”) competes at

the Division I level of the National Collegiate Athletic

Association (“NCAA”). (Compl. ¶ 29.) Prior to plaintiff’s

appointment as head coach, the team suffered six straight losing

seasons. (Id. ¶ 32.) However, during the 1995-96 season,

plaintiff’s first year, the team won five dual meets. (Id. ¶

33.) During his final year, the team won ten dual meets and,

according to plaintiff, enjoyed its first winning season in

twenty years. (Id. ¶ 37.) Additionally, the student newspaper,

The California Aggie, named plaintiff “Coach of the Year” for the

1996-97 and 2000-01 seasons. (Id. ¶¶ 34, 37; Answer ¶¶ 34, 37.) 

In general, defendants do not dispute that the team’s win-loss

record, and the wrestling program overall, improved significantly

during plaintiff’s tenure. (Defs.’ Mem. of P. & A. in Supp. of

Mot. for Summ. J. 36.)

///

///

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Athletic scholarships are alternatively called “grants- 3

in-aid” by the parties.

4

A. The Relationship Between Plaintiff and His Supervisors

However, despite plaintiff and the team’s success on

the mat, defendants’ documents submitted in support of the

present motions indicate that a number of conflicts between

plaintiff and his supervisors occurred over the years. The first

conflict that plaintiff can recall occurred during his first year

of coaching, when he approached Warzecka and expressed interest

in teaching Physical Education classes. (Pl.’s SUF Ex. 13 (Burch

Dep. 175:3-176:3).) Warzecka told plaintiff in a “condescending”

tone that this opportunity was not available to him. (Id. at

175:20-25.) Another conflict occurred during plaintiff’s second

year, when he expressed his concern about his pay to Warzecka

during contract discussions. (Id. at 176:4-11.) Warzecka

allegedly told him that, in the future, he would put plaintiff’s

contract in plaintiff’s box and he could either sign it or UCD

would look for another coach. (Id. at 176:14-24.) Throughout

plaintiff’s tenure, he believed that he should have been paid

more for his coaching activities. (Id. at 625:24-626:2.)

The next dispute concerned athletic scholarships.3

When plaintiff began coaching, UCD did not offer athletic

scholarships because of restrictions imposed by the Northern

California Athletic Conference (of which UCD was a member). 

(Defs.’ SUF Ex. A (Warzecka Decl. ¶ 5).) Shortly thereafter, the

Athletic Department circulated proposals indicating that,

pursuant to UCD’s change in athletic conferences, athletic

scholarships might be available in 1997-98 for the sports in

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Plaintiff “denies”, without support, this 4

“characterization of the mediation.” (Pl.’s SUF No. 25.) 

However, the non-movant in a motion for summary judgment cannot

simply deny the moving party’s stated material fact. “[T]he

nonmoving party has an affirmative duty to direct the court’s

attention to those specific portions of the record upon which it

seeks to rely to create a genuine issue of material fact.” 

Weaver v. Ohio State Univ., 71 F. Supp. 2d 789, 792 (S.D. Ohio

1998); see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

1996) (requiring “the nonmoving party to identify with reasonable

particularity the evidence that precludes summary judgment”). 

Moreover, in this instance, plaintiff’s research into this fact

is obviously incomplete, as the response submitted to the court

still includes the assumed internal comment “WAS THIS THE REASON

FOR THE MEDIATION?”

5

which UCD participated at the Division I level (wrestling and

women’s gymnastics). (Id.) According to defendants, however,

the finalized plan, approved in late 1996 by Chancellor

Vanderhoef, authorized athletic scholarships to be issued

starting the 1998-99 season. (Id.; Pl.’s SUF Ex. 16 (Warzecka

Dep. 212:21-24).) 

Nevertheless, while recruiting students to join the

team for the 1996-97 school year, plaintiff represented to

prospective students that scholarship money would be available to

them beginning in 1997-98. (Pl.’s SUF Ex. 13 (Burch Dep. 158-

59).) Plaintiff believes that Warzecka authorized him to make

that promise. (Id. at 160:9-161:13.) Predictably, the athletes

recruited by plaintiff and their parents complained in person to

both Warzecka and plaintiff after learning that athletic

scholarships would not be awarded in 1997-98. (Id. at 168-69.) 

This situation created tension between plaintiff and Warzecka

that led to their participation in a university facilitated

mediation. (Id. at 172; Defs.’ SUF Ex. AA (Mediation Settlement 4

Agreement).)

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Although wrestling is a men’s sport, women wrestlers 5

were permitted to practice with the team, as discussed in more

detail below.

6

Defendants also point the court to the failure of two

female wrestlers to complete documentation required by UCD to 5

support their argument that plaintiff was lax in performing his

oversight duties. (See Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶ 4

(wrestlers completed required paperwork and were allowed to

return to practice)).) Plaintiff contends that he was not

required to ensure that the documentation was complete because it

was not required of the female wrestlers by NCAA rules. (Pl.’s

SUF Ex. 13 (Burch Dep. 435:21-437:6).) 

The next dispute defendants cite involved documentation

for $420 in recruiting costs advanced to plaintiff. On May 25,

2000, UCD recruiting coordinator Mitch Campbell wrote a

memorandum to defendant complaining that defendant had not

submitted an accounting of how the money was spent. (Id. Ex. PP

(Campbell Mem.).) On June 13, 2000, plaintiff, Campbell, GillFisher, and Jennifer Cardone, the Assistant Athletic Director for

Compliance, met concerning defendant’s continuing failure to

submit his expense documents and resolved that plaintiff would

submit the required documentation by June 16, 2000. (Id. Ex. RR

(Minutes of June 13, 2000 Meeting).) “It was also established

[at the meeting] that workload issues or employee status . . .

[would] not excuse [plaintiff] from turning in the required

paperwork.” (Id.)

Also in the spring of 2000, Warzecka conducted a

meeting regarding UCD’s plans for moving various coaching

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7

positions to full-time status. (Id. Ex. A (Warzecka Decl. ¶

21).) The plan did not include the head coach of the wrestling

team in the first round of changes. (Id. Ex. II (Gill-Fisher

Decl. ¶ 5).) According to Gill-Fisher, at some point after the

meeting, Burch asked her to amend the plan to make the wrestling

coach a full-time position. (Id.) Gill-Fisher declined to offer

her support for this change, stating that UCD needed to extend

more full-time positions to female coaches to comply with Title

IX. (Id.) Gill-Fisher alleges that, in response, plaintiff

“blurted out ‘[f]uck Title IX,’ and stormed out of [her] office.” 

(Id.; Pl.’s SUF Ex. 17 (Gill-Fisher Dep. 564:3-565:23).)

The next dispute involved an open tournament on

November 17, 2000 at Southern Oregon University. Plaintiff

contends that the team was scheduled to participate in the

tournament, and defendants contend that the team was not

scheduled to do so: both have submitted schedules supporting

these positions. (See Defs.’ SUF Ex. AAA (defendants’ version of

2000-01 wrestling schedule); id. Ex. BBB (plaintiff’s version of

2000-01 wrestling schedule).) Compliance Director Cardone,

concerned by plaintiff’s alleged failure to schedule the

tournament, conducted an investigation into the Oregon trip,

looking for potential violations of intercollegiate athletics

rules. (Id. Ex. JJ (Cardone Decl. ¶ 5).) The issue was

apparently still unresolved several months later. Although

plaintiff sent Associate Athletic Director Swanson an e-mail on

March 26, 2001 claiming that all paperwork for that trip had been

completed and submitted to Gill-Fisher, (id. Ex. DDD (Mar. 26,

2001 Burch e-mail)), Cardone declared that the required expense

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reports were not submitted until April, 2001. (Id. Ex. JJ

(Cardone Decl. ¶ 5).) The investigation itself consequently

continued until August, 2001--well after plaintiff’s termination. 

(Id.) 

In March, 2001, there was another dispute, again

potentially involving NCAA violations, regarding a recruiting

trip that plaintiff took to Stockton to watch the California

State High School Wrestling Championships. Two of plaintiff’s

assistant coaches, Mike Collier and Beau Weiner, also attended

the event. (Pl.’s SUF Ex. 13 (Burch Dep. 579).) Although

plaintiff stated in his deposition that he met his assistant

coaches there by chance and not by plan, (id. at 579:7-8), he

claimed a hotel room for three people and meals for three people

in his reimbursement form submitted to the university. (Pl.’s

SUF No. 103 (admitted); Defs.’ SUF Ex. JJJ (Stockton trip

documentation).) Under NCAA rules, only two coaches are

permitted to recruit off-campus, and thus, according to

defendants, attendance by the three coaches violated that rule. 

(Id. Ex. X (Cardone Dep. 132:1-25).) Furthermore, defendants

also argue that because a volunteer coach like Weiner is not

permitted to recruit off-campus, another NCAA rule was

potentially violated by that same trip. (Id.) 

After Cardone investigated the Southern Oregon

University scheduling incident, the Stockton recruiting trip

violations, and other potential NCAA rule violations, UCD selfreported plaintiff’s perceived infractions. (Pl.’s SUF Ex. 125

(Nov. 7, 2001 Letter from Melvin Ramey to Christopher Strobel).) 

Although Cardone appears to have concluded that the scheduling

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discrepancies did not violate NCAA rules, (id. Ex. 126 (Cardone

Dep. 129:10-13)), she did find that the Stockton recruiting trip,

the use of a second volunteer coach, excessive time spent in Las

Vegas following an authorized competition, excessive allowances

for athletes’ meal expenses, and plaintiff’s failure to ensure

that female wrestlers completed required paperwork all violated

NCAA policies. (Id. Ex. 125 (Sept. 12, 2001 Letter from Cardone

to Gill-Fisher).) This investigation was not complete when

defendants made the decision not to renew plaintiff’s coaching

contract; however, it was certainly well underway in the spring

of 2001.

In addition to pointing the court to these specific

disputes, defendants allege that plaintiff was generally an

unpleasant person to work with. “Throughout his employment with

UCD, [plaintiff] had always complained about his pay.” (Defs.’

SUF Ex. A (Warzecka Decl. ¶ 20).) Additionally, “[plaintiff]

often complained of being overworked.” (Id. ¶ 22.) Gill-Fisher

further described plaintiff as “confrontational.” (Id. Ex. II

(Gill-Fisher Decl. ¶ 16).) Associate Athletic Director Robert

Bullis described plaintiff as “bullying” and unable to

“understand the word no” when it came to budget discussions. 

(Id. Ex. R (Bullis Dep. 116-17).) Mary Schenk, the Management

Services Officer for the Exercise Biology and Athletic Department

at UCD from 1998 to 2002, stated that, during disputes about his

pay, plaintiff would raise his voice at her and use profanity. 

(Id. Ex. CCCC (Schenk Decl. ¶ 2).) “Overall, [Schenk] found

[plaintiff] to be rude and a difficult person to work with.” 

(Id. ¶ 4.) Schenk complained about plaintiff to Bullis, among

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Plaintiff argues that because the books did not close 6

until June, 2001, defendants cannot claim to have legitimately

fired him for running over budget during the 2000-01 season. 

(Pl.’s Opp’n to Defs.’ Mot. for Summ. J. 40; see also (Defs.’

SUF Ex. LLL (Bullis Decl. ¶ 5 (stating that plaintiff went over

budget in the 1998-99, 1999-2000, and 2000-01 seasons)).) 

However, the team’s season ended in March and defendant does not

point to any sources of income that could have made up for any

existing deficits. Moreover, plaintiff fails to cite to any

support for his naked denial of defendants’ facts regarding

budget overruns and further admits to exceeding his budget in

some years. (Pl.’s SUF Nos. 169, 170.) 

10

others. (Id.) 

Finally, defendants also generally argue that plaintiff

was unorganized. (See id. Ex. FFFF (Boyle Dep. at 126 (travel

coordinator noting that plaintiff’s submission of travel

documents was late)); id. Ex. II (Gill-Fisher Decl. ¶ 17

(declaring that plaintiff violated policy concerning submission

of receipts more often than other coaches)).) In three of

plaintiff’s six years with UCD, he ran budget deficits between

$1,000 and $4,000. (Defs.’ SUF Ex. R. (Bullis Dep. 53:4-54:21); 6

id. Ex. LLL (Bullis Decl. ¶ 5).)

In light of these disputes, defendants testified that

Warzecka decided not to renew plaintiff’s contract in a meeting

with Gill-Fisher and Swanson on April 24, 2001. (Defs.’ SUF No.

124.) Specifically, defendants provide the following reasons for

the decision not to renew: 

(1) his inability to work effectively with senior

administrators and Athletic Department staff members;

(2) his long history exhibiting an unwillingness to

abide by Athletic Department rules; 

(3) his continual and unreasonable demands for more

pay, better facilities, and exceptions to Athletic

Department policies; 

(4) his multiple years of carrying an unapproved

deficit in his budget; and 

(5) his failure to cooperate during a pending

investigation regarding possible NCAA violations. 

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Women’s wrestling was not a varsity sport at UCD 7

between 1995 and 2001. (Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶

3).) Instead, women were permitted to practice with the men’s

team if they filled out the same paperwork as the male wrestlers. 

(Id.; see also Pl.’s SUF Exs. 20, 24 (UCD Wrestling Media

Guides).)

11

(Id. No. 132.) Plaintiff, citing discrepancies in defendants’

testimony that will be addressed in further detail below, argues

in response that these were not the real reasons for his

termination and further that the decision was not actually made

on April 24, 2001. It is sufficient for now to note that

plaintiff was not informed of the decision until May 29, 2001

and, according to his deposition testimony, defendants did not

cite any of the reasons above in defense of their decision at

that meeting. (Pl.’s SUF No. 206; id. Ex. 13 (Burch Dep. 714:1-

715:14).) Additionally, defendants appear to have continued to

actively negotiate the terms of plaintiff’s contract for the

2001-02 season throughout the month of May, despite allegedly

having already decided not to renew his employment. (Defs.’ SUF

Nos. 180-182; id. Ex. A (Warzecka Decl. ¶¶ 26, 28-29).)

B. Plaintiff’s Advocacy on Behalf of Female Wrestlers 

Plaintiff submits that the real reason for the decision

not to renew his contract was his self-styled “positive advocacy”

on behalf of female wrestlers who practiced with his team.7

(Defs.’ SUF Ex. HH (Pl.’s Resps. to Interrogs. of UCD–2d Set, No.

39.) Although women had “unofficially” participated in the

wrestling program before and during plaintiff’s tenure, in the

year leading up to plaintiff’s dismissal, the opportunities for

women wrestlers declined as a result of roster caps that were

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The parties vigorously dispute who is responsible for 8

the removal of the women from the roster. (Pl.’s SUF No. 66.) 

As suggested above, plaintiff stated that he was explicitly told

to remove the female wrestlers from the roster while defendants

declared that the 30, and later 34, available slots were given to

plaintiff to fill as he saw fit, regardless of an athlete’s

gender. (Id. Ex. 13 (Burch Dep. 320:12-321:4); id. Ex. 17 (GillFisher Dep. 407:14-411:9).) Defendants add that decisions

regarding who to put on a roster are entirely within the

discretion of the coach, not the Athletic Department supervisors. 

(Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶ 7).) Moreover, plaintiff

testified that only one of the women wrestlers, Lauren Mancuso,

had even a chance of beating one of the men on the team for a

spot on the roster. (Pl.’s SUF Ex. 13 (Burch Dep. 218:16-

220:16).)

12

implemented to reduce costs and to balance the number of male and

female varsity athletes at UCD. (Id. Ex. A (Warzecka Decl. ¶ 7);

Pl.’s SUF Exs. 20, 24 (UCD Wrestling Media Guides).) The

wrestling team was officially capped at 30 and, either because

the women could not beat any of the men for a spot or because

defendants instructed plaintiff to remove women from the men’s

team, the female wrestlers were not included on the 2000-01 8

roster. 

Plaintiff asserts that he found this situation

distressing and that he repeatedly challenged UCD’s efforts to

phase out women’s wrestling. Specifically, plaintiff “tried to

argue the point” when Warzecka “ordered the removal of the women

from the wrestling program in October 2000.” (Defs.’ SUF Ex. HH

(Pl.’s Resps. to Interrogs. of UCD–2d Set, No. 39).) When

Warzecka threatened to terminate plaintiff in response, plaintiff

“complied with the order under protest and wrote a memo to

Defendants indicating that the women were removed from the

program at [defendants’] request.” (Id.) Plaintiff also insists

that he participated in the female wrestlers’ efforts to be

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reinstated. In January 2001, he “reminded . . . Warzecka that

the women wanted to be varsity” and further communicated that

they wanted access to varsity benefits, including medical care. 

(Id. No. 40.) Plaintiff also states that he told Warzecka at

this time that the women were “offended by Mr. Warzecka’s

treatment of them . . . .” (Id. (Pl.’s Resps. to Interrogs. of

UCD–2d Set, No. 40).) Finally, plaintiff also spoke to Swanson

“about these problems” around the same time. (Id.) 

On April 24, 2001, three female wrestlers filed a

complaint with the Office for Civil Rights of the United States

Department of Education (“OCR”) in which they alleged genderbased discrimination in violation of Title IX. (Pl.’s SUF No.

175, 175.) They also sent letters to Warzecka, Gill-Fisher, and

Swanson on April 30, 2001 to inform them of the complaint. (Id.

No. 175.) Within the first week of May, these defendants and

Franks had all received notice of the OCR complaint in some form. 

(Id. Nos. 177-179.)

In their complaint, the women credited plaintiff with

having made them aware that the “athletic administration’s

orders” to remove them from the wrestling team might constitute

illegal sex discrimination. (Defs.’ SUF Ex. QQQQ (Apr. 24, 2001

OCR Compl. ¶¶ 7-8).) Additionally, in the weeks that followed,

plaintiff played an active part in the women’s efforts to draw

attention to their plight and their complaint. Through protests,

newspaper articles, television broadcasts, and even a meeting

with State Assembly Member Helen Thomson, plaintiff visibly

supported the female wrestler’s allegations of sex discrimination

throughout the month of May. (Defs.’ SUF Ex. HH (Pl.’s Resps. to

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Rather than responding with affidavits or pointing to 9

existing evidence in this case, as required by Federal Rules of

Civil Procedure 56(c) & (e), plaintiff merely provides the

unsworn arguments of his lawyers to refute the logical conclusion

to be drawn from defendants’ presentation of the evidence: that

“the women’s issue” was not initially part of plaintiff’s

contract discussions and did not come up in these negotiations

until after the women filed their OCR complaint. (Pl.’s SUF No.

188.)

14

Interrogs. of UCD–2d Set, No. 40).) He also started bringing up

the reinstatement of women’s wrestling as part of his ongoing

contract negotiations, also in May. (Pl.’s SUF Nos. 183, 186-

188, 222 (noting that the women’s wrestling team issue was not a

part of plaintiff’s contract negotiations until May 14, 2001).)9

C. The Claims at Issue

At an oral hearing on March 8, 2004, addressing

defendants’ motion to dismiss, the parties clarified the scope of

this litigation and the defendants targeted by each claim. 

Plaintiff’s first claim, for retaliation in violation of Title

IX, is asserted only against defendant UCD. Meanwhile, claim two

is asserted against all defendants except UCD and alleges that

these actors violated § 1983 by firing plaintiff for exercising

his First Amendment right to speak freely on a matter of public

concern. Defendants in claim two are sued in both their official

and individual capacities, thus making it possible for plaintiff

to seek both prospective injunctive relief (his reinstatement as

head coach of the wrestling team) and money damages from these

individuals. (See Mar. 16, 2004 Order 4 n.4.)

///

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II. Discussion

In this motion for summary judgment, defendants do not

contend that they were unaware of plaintiff’s activities in

support of the women’s complaint as of May, 2001. (See Defs.’ SUF

Ex. A (Warzecka Decl. ¶ 23); Answer ¶ 77 (admitting that

plaintiff cooperated with the OCR investigation into the women’s

complaint).) They do, however, argue that prior to May 2001,

plaintiff had never complained of discrimination per se. (Id.) 

Accordingly, because the decision not to renew plaintiff’s

contract was made in late April, defendants postulate that

summary judgment is appropriate, given that they could not

possibly have retaliated against plaintiff in April for his

conduct in May. In the event that the court denies the requested

relief, Chancellor Vanderhoef moves for dismissal of plaintiff’s

§ 1983 claim as to him, arguing that as a remote supervisor, he

did not have any direct involvement in any deprivation of

plaintiff’s constitutional rights, which is required for

supervisory liability. The court will address these separate

motions for summary judgment in turn.

However, the court must first address nearly 250

evidentiary objections raised by defendants on April 24, 2006. 

Defendants specifically target statements in the declarations of

Michael Burch, Richard Seyman, Michael Maben, Charlie Hong, David

Amato, and Earl Walker, Jr. (submitted in opposition to

defendants’ motions) and move to strike portions of these

declarations. They also object to a substantial number of

plaintiff’s 176 exhibits submitted in opposition to their

motions, arguing generally that because these items were not

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introduced via a valid affidavit, “all of Plaintiffs’ Exhibits

that are not self authenticating” should be stricken. (Defs.’

Evid. Objs. to Pl.’s Evid. 2.)

A. Evidentiary Objections

In recent months, every motion for summary judgment on

this court’s calendar has been held up by “evidentiary

objections” that have required the court to conduct hearings on

the admissibility of evidence prior to addressing the merits of

the motion. It appears to have become the “standard of practice”

on summary judgment motions for attorneys to comb through the

materials submitted by their opponents in search of any

statement, phrase, or document which might in any way run afoul

of the Federal Rules of Evidence, and to file objections on all

conceivable grounds. In some of the larger law firms, newer

attorneys are assigned to the case simply for that purpose. Only

the attorneys and their clients know how many billable hours are

spent on such endeavors.

Through these proceedings, the court has learned that

the fount of this practice may be language contained in William

W. Schwarzer et al., California Practice Guide: Federal Civil

Procedure Before Trial § 14:107-111 (2005) (Rutter Group Practice

Guide), wherein the authors counsel litigators to object to

inadmissible evidence, “either orally or in writing, at or before

the hearing,” to preserve the objection for appeal, id. § 14:111. 

This advice seems to ignore the practice under the Local Rules of

this court, similar to most others, which require the non-moving

party to file its opposition to the motion fourteen days before,

and the moving party’s reply seven days before, the date of the

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hearing on the motion. See Local Rules 78-230 and 56-260. 

Inundating the court with detailed evidentiary objections by the

moving party less than two weeks before the hearing, and by the

non-moving party less than one week before the hearing, can

hardly lead to a meaningful hearing on the merits of the motion.

The court is mindful of the language in Ninth Circuit

cases that “[d]efects in evidence submitted in opposition to a

motion for a summary judgment are waived ‘absent a motion to

strike or other objection.’” FDIC v. N.H. Ins. Co., 953 F.2d

478, 484 (9th Cir. 1991) (quoting Scharf v. U.S. Att’y Gen., 597

F.2d 1240, 1243 (9th Cir. 1979)). However, the court cannot

believe that the Court of Appeals would allow a summary judgment

to stand which was based on evidence completely lacking indicia

of admissibility simply because the opposing party failed to make

an evidentiary objection. Regardless of whether a party objects,

the Court of Appeals will always recognize plain error. Fed. R.

Evid. 103(d); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 357

(9th Cir. 1996). If consideration of the evidence would be so

obviously improper and substantial, such that “failure to notice

and correct it would affect the fairness, integrity, or public

reputation of judicial proceedings[,]” a party could still

challenge its consideration on appeal even if it initially failed

to object to its admission. Permian Petroleum Co. v. Petroleos

Mexicanos, 934 F.2d 635, 647-48 (5th Cir. 1991); see also United

States v. Sua, 307 F.3d 1150, 1154 (9th Cir. 2002). 

Nevertheless, attorneys routinely raise every objection

imaginable without regard to whether the objections are

necessary, or even useful, given the nature of summary judgment

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motions in general, and the facts of their cases in particular. 

For example, objections to evidence on the ground that it is

irrelevant, speculative, and/or argumentative, or that it

constitutes an improper legal conclusion are all duplicative of

the summary judgment standard itself; yet attorneys insist on

using evidentiary objections as a vehicle for raising this point. 

A court can award summary judgment only when there is no genuine

dispute of material fact. It cannot rely on irrelevant facts,

and thus relevance objections are redundant. 

Instead of objecting, parties should simply argue that

the facts are not material. Similarly, statements in

declarations based on speculation or improper legal conclusions,

or argumentative statements, are not facts and likewise will not

be considered on a motion for summary judgment. Objections on

any of these grounds are simply superfluous in this context. 

See, e.g., Smith v. County of Humboldt, 240 F. Supp. 2d 1109

(2003), 1115-16 (N.D. Cal. 2003) (refusing to rule on the

evidentiary objections in defendant’s reply because “even if the

evidence submitted by plaintiff is considered by this Court,

plaintiff fails to state a colorable claim”). Again, instead of

challenging the admissibility of the evidence, lawyers should

challenge its sufficiency.

Additionally, objections to the form in which the

evidence is presented are particularly misguided where, as here,

they target the non-moving party’s evidence. See Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean that the

nonmoving party must produce evidence in a form that would be

admissible at trial in order to avoid summary judgment. . . .

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Rule 56(e) permits a proper summary judgment motion to be opposed

by any of the kinds of evidentiary materials listed in Rule 56(c)

. . . .”); Cox v. Amerigas Propane, Inc., No. CV-04-101, 2005 WL

2886022, at *2 (D. Ariz. Oct. 28, 2005) (“At the summary judgment

stage, the court focuses on the admissibility of the evidence’s

contents, not the admissibility of its form.”). Federal Rule of

Civil Procedure 56(e), not the Federal Rules of Evidence,

specifies the required format and significantly demands only that

“[s]upporting and opposing affidavits . . . set forth such facts

as would be admissible in evidence . . . .” Fed. R. Civ. P.

56(e) (emphasis added). 

As the Ninth Circuit has held, “to survive summary

judgment, a party does not necessarily have to produce evidence

in a form that would be admissible at trial, as long as the party

satisfies the requirements of Federal Rules of Civil Procedure

56.” Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003)

(citing Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir.

2001)). In other words, when evidence is not presented in an

admissible form in the context of a motion for summary judgment,

but it may be presented in an admissible form at trial, a court

may still consider that evidence. Id. at 1037 (considering

evidence from a diary, notwithstanding the defendant’s hearsay

objections, in the context of a motion for summary judgment

because the contents of the diary were “mere recitations of

events within the [plaintiff/appellant’s] personal knowledge and,

depending on the circumstances, could be admitted into evidence

at trial in a variety of ways”). Summary judgment is not a game

of “Gotcha!” in which missteps by the non-movant’s counsel,

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rather the merits of the case, can dictate the outcome.

Notwithstanding the foregoing, the court cannot

overlook binding precedent where the Ninth Circuit has declared

that at least some forms of evidentiary objections are

appropriate in the context of summary judgment. Specifically,

the Court of Appeals has “repeatedly held that ‘documents which

have not had a proper foundation laid to authenticate them cannot

support [or defend against] a motion for summary judgment.’” 

Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th

Cir. 1988) (quoting Canada v. Blain’s Helicopters, Inc., 831 F.2d

920, 925 (9th Cir. 1987)). Consequently, objections predicated

upon Federal Rule of Evidence 901 are appropriate in the context

of a motion for summary judgment. This rule is consistent with

the text of Rule 56, which indirectly allows courts to consider

evidence other than pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits by permitting

affiants to attach or serve “therewith” “sworn or certified

copies of all papers or parts thereof referred to in [the]

affidavit.” Fed. R. Civ. P. 56(e).

Whether the authentication requirement should be

applied to bar evidence when its authenticity is not actually

disputed, is, however, questionable. Significantly, and as a

matter of common sense, the Ninth Circuit has held that a

district court’s consideration of unauthenticated evidence in

conjunction with a motion for summary judgment is harmless error

when a competent witness with personal knowledge could have

authenticated the document. Hal Roach Studios, Inc. v. Feiner &

Co., 896 F.2d 1542, 1552 (9th Cir. 1990). Again, Rule 56(e)

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The court cannot stress enough that it does not behoove 10

anyone to make objections simply for the sake of making

objections.

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requires only that evidence “would be admissible”, not that it

presently be admissible. Such an exception to the authentication

requirement is particularly warranted in cases such as this where

the objecting party does not contest the authenticity of the

evidence submitted but nevertheless makes an evidentiary

objection based on purely procedural grounds. See Fenje v. 10

Feld, 301 F. Supp. 2d 781, 789 (N.D. Ill. 2003) (“Even if a party

fails to authenticate a document properly or to lay a proper

foundation, the opposing party is not acting in good faith in

raising such an objection if the party nevertheless knows that

the document is authentic.”).

Similarly uncertain is how the court should approach

hearsay objections to evidence submitted in opposition to a

motion for summary judgment. Because “[v]erdicts cannot rest on

inadmissible evidence” and a grant of summary judgment is a

determination on the merits of the case, it follows that the

moving party’s affidavits must be free of hearsay. Gleklen v.

Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C.

Cir. 2000); City of Tenakee Springs v. Clough, 750 F. Supp. 1406,

1416 (D. Alaska), rev’d on other grounds, 915 F.2d 1308 (9th Cir.

1990) (“Since summary judgment is a substitute for a trial on the

merits, it is vital that the party opposing the motion be

accorded the same evidentiary safeguards that would be applicable

at trial . . . .”). Moreover, to some extent, the same rule

would seem to apply to affidavits submitted by the non-movant,

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Significantly, the practice guide that has apparently 11

spawned the flurry of evidentiary objections that have besieged

the court’s law and motion calendar speaks only of “Objections to

Moving Party’s Evidence”. Schwarzer et al., California Practice

Guide: Federal Civil Procedure Before Trial § 14:107 (emphasis

added). 

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because if the non-movant is unable to cure the hearsay prior to

trial, “the objective of summary judgment--to prevent unnecessary

trials--would be undermined.” Gleklen, 199 F.3d at 1369. 

Yet the court cannot ignore the fact that a non-movant

in a summary judgment setting is not attempting to prove its

case, but instead seeks only to demonstrate that a question of

fact remains for trial. Recognizing the significance of this

difference, the Ninth Circuit long ago adopted “a general

principle” whereby it “treat[s] the opposing party’s papers more

indulgently than the moving party’s papers.” Lew v. Kona 11

Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985); Scharf, 597 F.2d at

1243 (“[C]ourts generally are much more lenient with the

affidavits of a party opposing a summary judgment motion.”); see

also Tetra Techs. Inc. v. Harter, 823 F. Supp. 1116, 1120

(S.D.N.Y. 1993) (“Material in a form not admissible in evidence

may be used to avoid, but not to obtain summary judgment . . .

.”); 10B Charles Alan Wright et al., Federal Practice and

Procedure § 2738 (3d ed. 1998 & Supp. 2005) (noting that some

courts, including the Ninth Circuit, have applied a “double

standard” to the admissibility of affidavits on summary

judgment)).

In practice, however, the Ninth Circuit has not

consistently applied this principle. For example, in Carmen v.

San Francisco Unified School District, the court noted that “on

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summary judgment, the non-movant’s hearsay-laden declaration

“would be enough to establish a genuine issue of fact.” 237 F.3d

1026, 1028-29 (9th Cir. 2001). But a year later, in Orr v. Bank

of America, NT & SA, the court upheld the exclusion of

depositions submitted in opposition to a motion for summary

judgment because these exhibits contained inadmissible hearsay. 

285 F.3d 764, 778-80 (9th Cir. 2002); see also Beyene, 854 F.2d

at 1182-83 (same). 

In this court’s opinion, the approach taken in Carmen

was more sound, given that “[a]dmissibility of testimony

sometimes depends upon the form in which it is offered, the

background which is laid for it, and perhaps on other factors as

well. It is therefore possible, and perhaps probable, that . . .

out of court [statements from an affidavit or deposition] will be

admissible [through testimony at trial].” Corley v. Life & Cas.

Ins. Co. of Tenn., 296 F.2d 449, 450 (D.C. Cir. 1961). 

Nevertheless, because Beyene predates Carmen, the current law in

the Ninth Circuit is arguably that the rule against hearsay, Fed.

R. Evid. 802, applies to evidence submitted in support of and in

opposition to a motion for summary judgment. See In re Watts,

298 F.3d 1077, 1083-84 (9th Cir. 2002) (“It is a bedrock

principle of our court that the published decision of one

three-judge panel binds every other panel from that day

forward.”).

As a practical matter, the court finds this entire

exercise of considering evidentiary objections on a motion for

summary judgment to be futile and counter-productive. If a court

must hear up to hundreds of objections during one civil calendar

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in addition to the motion itself, then this procedure begins to

defeat the objectives of modern summary judgment

practice--namely, promoting judicial efficiency and avoiding

costly litigation. See Roberts v. Browning, 610 F.2d 528, 531

(8th Cir. 1979). More importantly, even seemingly appropriate

objections based on hearsay and failures to authenticate/lay a

foundation are difficult to address away from the dynamics of a

trial. During trial, when a party raises valid evidentiary

objections, the opposing party will have an opportunity to

present the evidence in an alternative and admissible form. At

trial, a question can always be rephrased if an objection to it

is sustained. Not so in the context of summary judgment

practice. 

As a further example, if one witness attempts

unsuccessfully to testify about matters regarding which that

witness lacks personal knowledge, another witness may later be

able to testify to the same evidence based upon her firsthand

knowledge. In the context of a motion for summary judgment,

however, the court must often delay a hearing on the merits for

several weeks to offer parties a chance to cure the defects

raised by the objections. The alternative is to throw litigants

out of court on what may be deemed a curable technicality without

a meaningful opportunity to respond--an approach that the court

highly doubts the Ninth Circuit would condone. Again, this

practice runs counter to summary judgment’s assumed time-saving

properties. 

Under such circumstances it is tempting to throw up

one’s hands and simply say, as one court already has, that

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The device of summary judgment was conceived as a

method of saving the time of the Court and litigants

where the case is demonstrably spurious. Where, as

here, the time and effort required for a satisfactory

definitive resolution of the issues on the basis of the

paper record presented on this motion might well exceed

that required at a full-dress trial, the Court will not

utilize the summary judgment procedure.

Koleinimport ‘Rotterdam’ N.V. v. Foreston Coal Export Corp., 283

F. Supp. 184, 188 (S.D.N.Y. 1968). Surely, if the moving party

has to resort to 250 evidentiary objections to succeed on its

motion, there must be a question of fact lurking in the 127

exhibits filed by defendants and 176 exhibits filed by plaintiff

that defendants are attempting to hide from the court. 

Unfortunately, the court cannot “grant or withhold summary

judgment merely because it would save time or expense.” Am.

Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 388

F.2d 272, 285 (2d Cir. 1967). Consequently, the court will

proceed with any necessary rulings on defendants’ evidentiary

objections and then address the merits of the motions for summary

judgment. 

1. Objections to Plaintiff’s Affidavits

As previously noted, defendants filed a 41 page brief

attacking six declarations submitted by plaintiff in opposition

to defendants’ motions for summary judgment. Significantly,

however, plaintiff failed to cite to any of these affidavits with

the required specificity in his opposition brief. On three

occasions, plaintiff provided incomplete citations to the Burch

declarations that failed to specify which of the two declarations

plaintiff intended to refer to or which paragraph supported

counsel’s argument. Plaintiff’s papers also cited the Seyman and

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Amato declarations once, again failing to specify which

paragraphs supported his argument. Consequently, until

defendants raised their objections, the court had not even read,

and thus did not intend to rely on, any of the objectionable

affidavits. See Carmen, 237 F.3d at 1031 (holding that whether

or not evidence is attached to a brief in opposition to a motion

for summary judgment, “Rule 56(e) requires that the adverse

party’s ‘response,’ not just the adverse party’s various other

papers, ‘set forth specific facts’ establishing a genuine

issue”).

Because defendants have thrown these affidavits into

the spotlight however, the court doubts that it can rely on

Carmen for the proposition that it need not consider their

contents. The outcome in that case was driven by the fact that

it would be “absurdly difficult for a judge to perform a search,

unassisted by counsel, through the entire record, to look for”

any and all “evidence that the lawyer wants the judge to read.” 

Id. at 1030. Thanks to defendants, however, plaintiffs

affidavits are no longer buried among the thousands of pages of

evidence submitted in support of and opposition to the instant

motions. 

Nevertheless, defendants will ultimately prevail

because plaintiff failed to take advantage of the court’s

allowance for briefing on the evidentiary objections. In

response to the court’s instruction that plaintiff “file a

response to defendants’ objections and/or amended declarations

that cure the objections”, plaintiff simply re-filed nearly

identical affidavits and a very general brief in which he

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contended that defendants’ hearsay objections should be overruled

because plaintiff’s statements describe his “protected activity”

and the discriminatory statements of others, which constitute an

exception to hearsay. While this may be true, this broad

argument does not help the court resolve defendants’ 120 specific

objections, which was the purpose of providing plaintiff with a

chance to respond. Moreover, the court is unmoved by plaintiff’s

claims that he did not have enough time to prepare a more

detailed response, given that plaintiff somehow managed to

prepare, in addition to his “response” to defendants’ objections,

another 18 page brief on the merits of the summary judgment

motions. (See Pl.’s Gen. Resp. to Def.’s Objs.) The court

cannot be held responsible for plaintiff’s lack of focus nor can

it be expected to serve as plaintiff’s lawyer and draft a legally

supported rebuttal to defendants’ objections. Consequently,

because plaintiff has largely failed to respond to defendants’

evidentiary objections to the Burch, Seyman, Maben, Hong, Amato,

and Walker, Jr. declarations, these objections are sustained.

2. Objections to Plaintiff’s Exhibits

In another 26 page brief, defendants separately raise

an equal, if not greater, number of objections to plaintiff’s

exhibits. According to defendants, plaintiff only attempted to

authenticate 20 of his 176 exhibits and based on this oversight,

defendants generally move “to strike all of Plaintiffs’ Exhibits

that are not self authenticating.” (Defs.’ Evid. Objs. to Pl.’s

Evid. 2.) Because defendants only generally raise this objection

without specifying which of the numerous exhibits (some of which

consist of several separate documents that might individually be

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self authenticating) are actually not self authenticating, the

court overrules this objection. The burden is on defendants to

state their objections with specificity. Cf. Wright et al., 10B

Federal Practice and Procedure § 2738 (“It follows that a motion

to strike should specify the objectionable portions of the

affidavit and the grounds for each objection. A motion asserting

only a general challenge to an affidavit will be ineffective.”). 

Moreover, because defendants do not actually dispute the

authenticity of these documents, the court is confident plaintiff

would be able to authenticate them at trial, which is all that

Rule 56(e) demands.

Regarding defendants’ specific objections to particular

exhibits, the court largely declines to rule on admissibility

because, in a serendipitous turn of events, it found it

unnecessary to rely on most of the objectionable exhibits, with a

few exceptions. First, the court overrules defendants’

objections to exhibits 3-8 (plaintiff’s responses to the

interrogatories of various named defendants) because again,

defendants have only very generally objected to these documents

in their entirety based on the argument that they “contain”

hearsay. The court is not inclined to comb through these

documents, identify potential hearsay, and determine if an

exception applies–-all without guidance from the parties. Cf.

Wright et al., 10B Federal Practice and Procedure § 2738 (“[A]

motion to strike should specify the objectionable portions of the

affidavit and the grounds for each objection.” (emphasis added)).

Second, the court overrules defendants’ objections to

pages 714:11-715:14 of the Burch Deposition in exhibit 13. 

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Additionally, the portions of plaintiff’s deposition 12

that defendants raise these hearsay objections to were solicited

by defendants’ attorney. It seems absurd to permit counsel the

opportunity to object to her own line of questioning. 

The court also relies on the UCD Wrestling Media 13

Guides, (Pl.’s SUF Exs. 20-24), simply to describe the team and

the wrestling program. Nothing in these guides actually impacts

the court’s analysis here. 

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Therein, plaintiff testified that defendants refused to disclose

the reasons for his termination at the May 29, 2001 meeting. The

statements and communicative acts attributed to defendants are

not offered for their truth (in other words to show that

defendants had no reason for firing plaintiff). Instead, they

are offered to prove conduct from which the court can infer a

discriminatory intent. Such statements are not hearsay. See 

Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1124 (9th Cir.

2004) (“If the significance of an out-of-court statement lies in

the fact that the statement was made and not in the truth of the

matter asserted, then the statement is not hearsay.”).12

Having addressed defendants’ evidentiary objections,13

the court is finally ready to proceed with the merits of these

motions for summary judgment--nearly ten months after they were

first filed.

B. Summary Judgment

Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A material fact is one that could affect the outcome of

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the suit, and a genuine issue is one that could permit a

reasonable jury to enter a verdict in the non-moving party’s

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The party moving for summary judgment bears the initial

burden of establishing the absence of a genuine issue of material

fact and can satisfy this burden by presenting evidence that

negates an essential element of the non-moving party’s case. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

Alternatively, the movant can demonstrate that the non-moving

party cannot provide evidence to support an essential element

upon which it will bear the burden of proof at trial. Id. 

Once the moving party meets its initial burden, the

non-moving party must “go beyond the pleadings and by her 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.’” Id. at 324 (quoting Fed.

R. Civ. P. 56(e)). The non-movant “may not rest upon . . . mere

allegations or denials of the adverse party’s pleading . . . .” 

Fed. R. Civ. P. 56(e); Valandingham v. Bojorquez, 866 F.2d 1135,

1137 (9th Cir. 1989). However, any inferences drawn from the

underlying facts must be viewed in a light most favorable to the

party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the

court must not engage in credibility determinations or weigh the

evidence, for these are jury functions. Anderson, 477 U.S. at

255.

1. Claim One: Retaliatory Discharge in Violation of

Title IX

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Title IX states only that “[n]o person in the United 14

States shall, on the basis of sex, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination

under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681.

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Although not explicitly provided for in the text of

statute, the Supreme Court has held that an implied cause of 14

action exists under Title IX for retaliation based on an

individual’s complaints of sex discrimination. Jackson v.

Birmingham Bd. of Educ., 125 S. Ct. 1497, 1504 (2005); see also

id. at 1506 (reasoning that retaliation for advocacy of the

rights of female athletes is “‘discrimination’ ‘on the basis of

sex.’”). In establishing this right, the Court observed that

while Title VII, 42 U.S.C. §§ 2000e to 2000e-17, another

discrimination law, explicitly provides for a detailed

retaliation cause of action, Title IX very generally prohibits

discrimination--so much so that its broad language encompasses an

implicit claim for retaliation. Id. at 1501; see also 42 U.S.C.

§ 2000e-3(a) (Title VII retaliation provisions). The Court did

not, however, provide guidance on how to evaluate a Title IX

retaliation claim. In the absence of such guidance, the court

will assess plaintiff’s claim according to Title VII’s well

developed standards. Ray v. Henderson, 217 F.3d 1234, 1240 (9th

Cir. 2000) (applying the burden-shifting proof scheme from

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), in

a Title VII retaliation case); see also Johnson v. Baptist Med.

Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996) (“[T]he method of

evaluating Title IX gender discrimination claims is the same as

those in a Title VII case.”); Preston v. Virginia ex rel New

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Although the framework addresses burdens of “proof”, 15

the Ninth Circuit has made clear that “[a]t the summary judgment

stage, the prima facie case need not be proved by a preponderance

of the evidence.” Yartzoff, 809 F.2d at 1375.

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River Comm. College, 31 F.3d 203, 207, 208 (4th Cir. 1994)

(holding that a Title IX discrimination claim can be evaluated in

accordance with principles governing Title VII claims); Weaver,

71 F. Supp. 2d at 793.

Accordingly, to survive this motion for summary

judgment on his Title IX claim, plaintiff must first “prov[e] a 15

prima facie case of discrimination based on opposition to [a

discriminatory] practice.” EEOC v. Crown Zellerbach Corp., 720

F.2d 1008, 1012 (9th Cir. 1983); see also McDonnell Douglas, 411

U.S. at 802. If he survives this hurdle, the burden of

production shifts to the defendants “‘to articulate some

legitimate, nondiscriminatory reason’ for the adverse employment

action.” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981)). Finally, if the defendants meet their

burden, the plaintiff has an opportunity to demonstrate that “the

stated reason was not the defendant’s true reason for acting, but

a pretext for discrimination.” Id. 

A plaintiff establishes a prima facie case of

retaliation by showing “that: 1) he engaged in a protected

activity; 2) he [subsequently] suffered an adverse employment

decision; and 3) there was a causal link between the protected

activity and the adverse employment decision.” Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). 

Significantly, complaining informally to a supervisor is a

protected activity, as is complaining about the discriminatory

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treatment of others. Ray, 217 F.3d at 1240 n.3. Additionally,

“[c]ausation sufficient to establish the third element of the

prima facie case may be inferred from . . . the proximity in

time between the protected action and the allegedly retaliatory

employment decision.” Yartzoff v. Thomas, 809 F.2d 1371, 1376

(9th Cir. 1987). However, if a plaintiff’s causation arguments

rest on the relative timing of his protected activity and his

dismissal, the plaintiff must also clearly show that the

defendant was aware of the protected activity when the adverse

employment decision was made. Id. at 1375 (citing Miller v.

Fairchild Indus., Inc., 797 F.2d 727, 731 n.1 (9th Cir. 1986),

for the proposition that “an employer’s decision on a course of

action made prior to learning of the employee’s protected

activity does not give rise to an inference of causation”).

The parties do not appear to dispute that shortly after

April 24, 2001, when the women wrestlers filed their

discrimination complaint, defendants were aware of plaintiff’s

belief that sex discrimination in violation of Title IX had

transpired. Plaintiff undeniably influenced the athletes’

decision to file a complaint and he visibly supported their

cause. Starting in May, and perhaps in late April, plaintiff

actively “complain[ed] about the discriminatory treatment of

others,” which is a protected activity. Ray, 217 F.3d at 1240

n.3.

Whether plaintiff was engaged in protected activity

prior to April 24, 2001 is not as clear. Although informal

complaints to a supervisor are protected, see id., plaintiff’s

limited citations to interrogatories and deposition testimony in

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Plaintiff contends in his opposition brief that in 16

March, 2001, he sought to “use the clout of his success [during

the 2000-01 season] to push harder for the reinstatement of the

women wrestlers.” (Pl.’s Opp’n to Defs.’ Mot. for Summ. J. 26-

27.) The brief states, without citing any depositions, answers

to interrogatories, or affidavits, that at this time, plaintiff

“asked Defendants Warzecka and Swanson to reinstate the women and

reiterated his belief that Defendants had discriminated against

them.” (Id. at 27.) In general, the entire section of

plaintiff’s brief describing his “Extensive Protected Activity”

is almost completely devoid of supporting citations that might

direct the court to evidence that plaintiff accused his

supervisors of discrimination, as opposed to merely pressuring

them for a women’s wrestling team, prior to May, 2001. (Id. at

19-33.) Perhaps recognizing this hole in his presentation,

plaintiff relies on comments made to his co-workers that could

have been heard by “anyone walking by” his office to support his

allegations that his supervisors knew that he believed the women

wrestlers were the victims of sex discrimination. (Id. at 37.) 

Plaintiff cannot successfully oppose defendants’ motion for

summary judgment with mere suspicions and undocumented arguments. 

See S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde &

Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982) (holding that “a

party cannot manufacture a genuine issue of material fact merely

by making assertions in its legal memoranda”). He must instead

identify portions of the record that call into question the

material facts of this case. In the absence of evidentiary

support, the court is not obligated to “search the entire record

to establish that it is bereft of a genuine issue of material

fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th

Cir. 1989); see also Newman v. Checkrite Cal., Inc., 912 F. Supp.

1354, 1377 n.34 (E.D. Cal. 1995) (“On summary judgment, where our

Local Rule 260 requires the parties to cite to evidentiary

record, it is not the court’s job to go sifting through

depositions looking for evidence.”).

34

support of his motion do not establish that plaintiff complained

of discrimination against the female wrestlers prior to May,

2001. Instead, plaintiff’s evidence appears to show only that he

appealed to his supervisors to recognize a women’s varsity

wrestling team. 

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This advocacy is not equivalent to a complaint of

discrimination. Cf. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406

(9th Cir. 1987) (holding that plaintiff failed to establish that

he engaged in protected activity when he complained about the

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The Ninth Circuit has noted, in a discussion of 17

retaliation for protected speech, that “an employee need not

expressly accuse her supervisor or employer of illegal activity. 

Rather, [he] may convey an implicit message of disapproval of the

illegality of the activity through her conduct by refusing to

facilitate or participate in it.” Thomas v. City of Beaverton,

379 F.3d 802, 809 (9th Cir. 2004). Under this theory, plaintiff

could assert that he refused to apply the roster caps to women as

a means of protesting their discriminatory treatment. However,

the court again notes that plaintiff has failed to identify

portions of the record that would support such an inference.

35

impact that an English-only rule would have on his reputation as

a radio personality and only alleged that this same conduct was

discriminatory after he was fired). Moreover, because

establishing a women’s wrestling team, as opposed to more varsity

opportunities for women in general, was not required to comply

with Title IX, the court cannot say that defendants should have

interpreted plaintiff’s inexact complaints as complaints of

discrimination. Cf. Barber v. CSX Distrib. Servs., 68 F.3d 694,

702 (3d Cir. 1995) (“A general complaint of unfair treatment does

not translate into a charge of illegal . . . discrimination.”).

(See also Pl.’s SUF No. 39 (recognizing that “Title IX compares

actual participation opportunities for males and females, not the

number of sports”)). Plaintiff may not be required to use “magic

words” to engage in protected activity, but he did have an

obligation to “at least say something to indicate [that gender

was] an issue.” Miller v. Am. Family Mut. Ins. Co., 203 F.3d 17

997, 1008 (7th Cir. 2000); Mayfield v. Sara Lee Corp., No. C

04-1588, 2005 WL 88965, at *8 (N.D. Cal. Jan. 13, 2005)

(recognizing plaintiff’s duty to “alert[] his employer to his

belief that discrimination, not merely unfair . . . treatment,

had occurred”). Significantly, plaintiff has failed to point the

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court to any declarations or testimony where he described under

oath how he objected to gender discrimination prior to May, 2001. 

Meanwhile, Warzecka has declared that prior to May, 2001, he did

not construe any of plaintiff’s opinions on the plight of the

female wrestlers as allegations of gender discrimination. 

(Defs.’ SUF Ex. A (Warzecka Decl. ¶ 16).)

Consequently, the court will only consider plaintiff’s

actions after April 24, 2001 as evidence that he engaged in

protected activity. Based solely on these undertakings, however,

plaintiff can still establish his prima facie case, given that

they occurred throughout the month of May, defendants were aware

of them, and plaintiff was notified that his contract would not

be renewed on May 29, 2001, shortly after these events. See

Miller, 797 F.2d at 731 (holding that proximity of known

protected activity and an adverse employment action can establish

causation and, relatedly, plaintiff’s prima facie case).

Plaintiff’s evidentiary proof is thus sufficient to

shift the burden to defendants and require them to provide a

legitimate explanation for the decision not to renew plaintiff’s

contract. Accordingly, in their defense, defendants offer two

explanations: (1) the decision was made on April 24, 2001, before

they were informed of plaintiff’s protected activities, and (2)

the decision was made based on plaintiff’s conflicts with other

staff members, his disregard for Department rules, his

unreasonable demands for more money, his repeated budget

deficits, and his failure to cooperate during an investigation

into possible NCAA violations. (Defs.’ SUF No. 132.) Because

defendants need only rebut plaintiff’s prima facie showing, these

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simple arguments, supported by deposition testimony and other

documentation, are sufficient to shift the burden of proof back

to plaintiff. Lynn v. Regents of Univ. of Cal., 656 F.2d 1337,

1344 n.7 (9th Cir. 1981).

To create a genuine issue of material fact sufficient

to defeat summary judgment, plaintiff must now show “that the

employer’s articulated reasons are a mere pretext for what, in

fact, is a discriminatory purpose.” Ferguson v. Wal-Mart Stores,

Inc., 114 F. Supp. 2d 1057, 1063 (E.D. Wash. 2000). In response

to this obligation, plaintiff identifies several inconsistences

in defendants’ presentation that cast doubt on the reliability of

their proffered reasons. Regarding the timing of the decision

not to renew plaintiff’s contract, plaintiff points out that

there are discrepancies in Warzecka, Gill-Fisher, and Swanson’s

testimony regarding who attended the April 24, 2001 meeting where

the decision to terminate his employment was allegedly made. 

There are also disputes over the input that each attendee

provided. For example, Warzecka testified that Bullis

contributed heavily, at the meeting, to the decision and further

opined that “[Swanson] had less input than [Bullis] and [GillFisher] and myself[] [beacuse] he . . . supervised [plaintiff]

the least amount of time and had the least amount of interraction

with [him] . . . .” (See Pl.’s SUF Ex. 16 (Warzecka Dep. 636:11-

642:9).) In contrast, Swanson testified that Bullis was not

present at the meeting, that Bullis was out of town that day, and

that, based on his extensive relationship with plaintiff

throughout his employment, he (Swanson) provided a long list of

reasons not to renew plaintiff’s contract. (Id. Ex. 18 (Swanson

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Dep. 11:16-12:21, 83:13-15, 111:10-12).)

Additionally, plaintiff notes that defendants continued

to actively negotiate his contract for the 2001-02 season,

despite allegedly having already decided not to renew plaintiff’s

employment. Defendants attempt to justify this conduct by

explaining that, pursuant to Department policy, the decision not

to renew a contract was not released until one month before the

existing contract was set to expire. (Defs.’ SUF No. 180.) 

However, plaintiff identified other instances where contracts

were not renewed and the coaches were notified well in advance of

the expiration of their existing contracts. (See Pl.’s SUF Ex.

16 (Warzecka Dep. 668:11-669:4).) Furthermore, internal

communications show that defendants were discussing in detail

plaintiff’s future employment and salary over a week after they

had allegedly decided to terminate him. (Pl.’s SUF Ex. 101 (May

3, 2001 Email from Greg Warzecka to Dennis Shimek (specifying

possible 2001-02 salaries that “we [UCD Athletics] would

consider” for Mike Burch, depending on the results of an

impending performance evaluation)).)

Cumulatively, plaintiff argues that this evidence

supports his theory that the decision not to renew his contract

was not made on April 24, 2001. Furthermore, based on

defendants’ seemingly inconsistent testimony, a reasonable fact

finder could likewise conclude that the meeting did not take

place when defendants allege it did and that the decision was

actually made at some later date, when defendants were

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The court recognizes that the Supreme Court has 18

observed that “[e]mployers need not suspend previously planned

transfers upon discovering that a Title VII suit has been filed,

and their proceeding along lines previously contemplated, though

not yet definitively determined, is no evidence whatever of

causality.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

272 (2001). However, even assuming that this Title VII doctrine

applies in a Title IX analysis, the evidence presented here

suggests that the decision not to renew plaintiff’s contract may

not have been “along lines previously contemplated.”

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undisputably aware of plaintiff’s protected activity.18

Plaintiff has also unearthed evidence that some of the

reasons given by Warzecka for his termination were pretext. He

identifies other coaches who ran over their budgets and

defendants even admit that up to 30% of coaches run deficits

“from as little as $100 to a maximum of approximately $5,000.” 

(Defs.’ SUF No. 172.) He also presents testimony from the UCD

Assistant Athletic Director for Compliance, which revealed that

UCD conducts about ten investigations into potential NCAA rule

violations each year and that during plaintiff’s six year tenure,

he was the focus of these investigations on only two or three

occasions. (Pl.’s SUF Ex. 126 (Cardone Dep. 124:18-125:9, 128:7-

15).) Additionally, plaintiff points out that Lennie Zalesky,

plaintiff’s replacement, testified that he has not been held to

the same paperwork deadlines that plaintiff allegedly ignored. 

(Id. Ex. 133 (Zalesky Dep. 123:19-124:2, 126:11-13).) Most

suspicious, however, was defendants’ apparent failure to

articulate any of these reasons, despite plaintiff’s request for

some explanation, at the May 29, 2001 meeting where plaintiff

learned of his dismissal. (See Pl.’s SUF Ex. 13 (Burch Dep.

714:1-715:14 (testifying that defendants simply responded, “We

don’t have to tell you” and implied that plaintiff should “know

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by now . . . what the reasons are.”)).)

Defendants contend that it was not one thing in

particular, but rather plaintiff’s cumulative record of

infractions, that justified his dismissal. Significantly,

plaintiff has not identified another similarly situated

individual who butted heads with his superiors on the same volume

of issues. (Cf. Defs.’ P. & A. in Supp. of Mot. for Summ. J. 70

(“[N]o other coaches have presented as many problems as Plaintiff

did.”).) However, a “plaintiff may show pretext either (1) by

showing that unlawful discrimination more likely motivated the

employer, or (2) by showing that the employer’s proffered

explanation is unworthy of credence because it is inconsistent or

otherwise not believable.” Dominguez-Curry v. Nev. Transp.

Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (emphasis added). The

repeated instances where plaintiff has identified weaknesses and

contradictions in defendants’ proffered reasons satisfy the

“unworthy of credence” prong of the pretext analysis and cast

sufficient doubt on defendants’ explanation to permit a

reasonable factfinder to infer that defendants did not act for

the asserted reasons. See Fuentes v. Perskie, 32 F.3d 759, 764

n.7 (3d Cir. 1994) (“If the defendant proffers a bagful of

legitimate reasons, and the plaintiff manages to cast substantial

doubt on a fair number of them, the plaintiff may not need to

discredit the remainder.”); Combs v. Plantation Patterns, 106

F.3d 1519, 1538 (11th Cir. 1997). Consequently, genuine issues

of material fact preclude summary judgment on plaintiff’s

retaliation claim against UCD.

2. Claim Two: § 1983 Liability for Infringing on

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Plaintiff’s First Amendment Rights

In addition to his Title IX claim against UCD,

plaintiff is also suing his supervisors under § 1983 for

retaliating against him for exercising his constitutionally

protected right of free speech. “[T]o establish a prima facie

case of retaliation under the First Amendment, [plaintiff] must

show that (1) [he] engaged in protected speech on a matter of

public concern; (2) . . . defendants took an ‘adverse employment

action’ against [him]; and (3) [his] speech was a ‘substantial or

motivating’ factor for the adverse employment action.” Thomas,

379 F.3d at 808; see also Connick v. Myers, 461 U.S. 138, 147

(1983). If plaintiff makes a prima facie showing, the burden

shifts to defendants to demonstrate either that (1) their

“legitimate administrative interests outweigh the [plaintiff’s]

First Amendment rights” or (2) that they “‘would have reached the

same decision even in the absence of [plaintiff’s] protected

conduct.’” Thomas, 379 F.3d at 808 (quoting Ulrich v. City &

County of San Francisco, 308 F.3d 968, 976-77 (9th Cir. 2002)).

a. Summary Judgment for All Defendants

In the analysis in Part II.B.1, the court concluded

that plaintiff has sufficiently demonstrated for purposes of

summary judgment that he engaged in protected activity and that

he suffered an adverse employment action shortly thereafter. 

Similarly, plaintiff has already satisfied the “substantial or

motivating factor” prong of the prima facie analysis by

identifying a question of fact as to whether at least some of

defendants’ “explanations for the adverse employment action were

false and pre-textual.” Coszalter v. City of Salem, 320 F.3d

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Defendants perhaps implicitly make this argument in 19

their discussion of Lewis v. Smith, 255 F. Supp. 2d 1054 (D.

Ariz. 2003), however, that case is factually distinguishable. To

shore up its primary holding that plaintiff had not spoken on a

matter of public concern, the court in Lewis held that the

defendants “had a legitimate interest in maintaining the

effective functioning of [a] small coaching staff” and this

interest outweighed the plaintiff’s “limited First Amendment

interest.” 255 F. Supp. 2d at 1071. In contrast, Burch’s First

Amendment interest in publicly supporting the women wrestlers’

discrimination complaint is not a “limited” one. Moreover, he

did speak on a matter of public concern. See also Bernasconi v.

Tempe Elementary Sch. Dist. No. 3, 548 F.2d 857, 862 (9th Cir.

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968, 977 (9th Cir. 2003) (identifying “three ways in which a

plaintiff can show that retaliation was a substantial or

motivating factor behind a defendant’s adverse employment

actions”). 

The remaining questions are therefore (1) whether

plaintiff spoke on a matter of public concern; (2) whether

defendants’ legitimate administrative interests outweigh the

plaintiff’s First Amendment rights; and (3) whether defendants

would, in the absence of plaintiff’s protected conduct, still

have elected not to renew his contract. The first question can

be quickly disposed of, as the Supreme Court has recognized that

speech protesting discrimination involves “a matter inherently of

public concern.” Connick v. Myers, 461 U.S. 138, 148 n.8 (1983);

Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 412-13, 417

(1979) (implicitly holding that complaints of discrimination are

matters of public concern). The second question, regarding

defendants’ legitimate administrative interests, is also easily

dispatched because defendants bear the burden of establishing

such an interest and they failed to explicitly make this argument

in their moving papers.19

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1977) (“[Where] public statements made by the plaintiff were

directed primarily at a general practice rather than at named

individuals, the court finds the balance to tip in favor of the

[plaintiff’s] right to speak.” (quoting the underlying District

Court order)).

The “philosophical differences” refer, in part, to 20

plaintiff’s arguably unique perspective on Title IX. (Defs.’ SUF

Ex. A (Warzecka Decl. ¶ 29).) As previously explained,

defendants implemented a roster management plan for the purposes

of reducing costs and achieving greater proportionality between

the number of male and female varsity athletes. (Id. (Warzecka

Decl. ¶ 7).) Pursuant to the plan, the number of spots for males

on the varsity team rosters at UCD were capped. In response to

this change, plaintiff sent a memorandum to Vice Chancellor of

Student Affairs Carol Wall and defendants Warzecka, Franks, and

Gill-Fisher in which he thoughtfully analyzed the issue. (See

id. Ex. FF (June 22, 1999 Burch Mem.).) Plaintiff started his

memo by stating that “I am in the minority among my wrestling

coach colleagues in believing that Title IX is a fair piece of

legislation” and “[i]n fact I believe that Title IX doesn’t go

far enough toward equity for women in sport.” (Id.) However,

the purpose of plaintiff’s memo was not to extol the virtues of

Title IX but to lobby against the roster caps and for the male

recruits of marginal potential who consequently would not have an

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The third and final question is decidedly more

difficult. Defendants can still prevail on their motion for

summary judgment if they can “demonstrat[e] that [they] would

have made the same decision absent the forbidden consideration.” 

Texas v. Lesage, 528 U.S. 18, 20-21 (1999) (citing Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). 

To demonstrate this, defendants discuss at length the

deteriorating relationship between plaintiff and his supervisors. 

In particular, defendants cite to their depositions, where they

testified that as early as February, 2001, they started having

discussions about not renewing plaintiff’s contract because he

was “always confrontational”, failed to follow policies and

procedures, and had philosophical differences with administrators

over how to achieve Title IX compliance. (Pl.’s SUF Ex. 16 20

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(Warzecka Dep. 574:14-25, 576:1-12, 578:14-19, 567:24-568:24,

572:25-574:11).) Plaintiff does not dispute that the decision

not to renew his contract “had been contemplated since early

2001.” (Id. No. 130.)

Nevertheless, the fact that defendants were

contemplating a decision not to renew plaintiff’s contract does

not show that they would have taken the same action in the

absence of any protected activity. See Allen v. Scribner, 812

F.2d 426, 435 (9th Cir. 1987) (noting that even though

“insubordinate conduct might have justified an adverse employment

decision, [this] does not suffice” to show that the plaintiff

would have received the same treatment (emphasis added)). 

Particularly troubling is plaintiff’s evidence which suggests

that his participation in public protests accusing UCD of Title

IX discrimination might have been the event that actually secured

his termination. (Pl.’s SUF Ex. 5 (Pl.’s Resps. to Interrogs. of

Robert Franks, No. 6 (answering that on May 25, 2001, when

plaintiff asked why his contract had been delayed, “Mr. Franks

told [plaintiff] that his public support for the women wrestlers

‘was making it very difficult for us to love you.’”)).) In light

of this evidence, and without making credibility judgments, it is

difficult for the court to say defendants would have terminated

plaintiff regardless of his speech activities.

Moreover, the court notes that this portion of the

analysis of a free speech/retaliation claim generally presents a

question of fact for the jury. Soranno’s Gasco, Inc. v. Morgan,

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Williams v. Day, 553 F.2d 1160 (8th Cir. 1977), 21

highlighted by defendants at oral argument, is not to the

contrary. In that case, the Eighth Circuit affirmed the District

Court’s finding, after a trial, that “[t]he decision was not in

any way based upon the plaintiff’s exercise of his First

Amendment rights.” Id. at 1163; Williams v. Day, 412 F. Supp.

336, 339-40 (E.D. Ark. 1976).

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874 F.2d 1310, 1315 (9th Cir. 1989). Summary judgment might be

warranted in cases where the plaintiff has conceded that he would

have been terminated regardless, where the defendants can point

to similarly situated individuals who were fired for comparable

reasons, or where a more qualified applicant was hired in lieu of

the plaintiff. See, e.g., Harris v. Shelby County Bd. of Educ.,

99 F.3d 1078, 1085 (11th Cir. 1996) (more qualified applicant). 

Presented with such facts, courts can say with confidence that

defendants would have made the same decision. However, these

circumstances are not present in this case and consequently,

plaintiff’s § 1983 claim must be heard by a jury.21

b. Summary Judgment for Defendant Vanderhoef

As noted above, defendant Vanderhoef’s individual

motion for summary judgment is also before the court. Plaintiff

has sued Vanderhoef based on allegations that Vanderhoef “has

overall authority and control over the day-to-day operations of

UC-Davis, including the athletic department, the wrestling

program, and its coaches” and thus is responsible in part for

failing to prevent plaintiff’s alleged retaliatory discharge at

the direction of Warzecka. (Compl. ¶ 12.) 

However, a supervisor cannot be held liable under §

1983 on a respondeat superior basis, absent a statute stating

otherwise. Redman v. County of San Diego, 942 F.2d 1435, 1446

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(9th Cir. 1991); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

1989). “A supervisor may be liable under § 1983 only if there

exists either ‘(1) his or her personal involvement in the

constitutional deprivation, or (2) a sufficient causal connection

between the supervisor’s wrongful conduct and the constitutional

violation.’” Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001)

(quoting Redman, 942 F.2d at 1446 (emphasis added)). Under the

second pathway to liability, a sufficient causal connection

exists when the supervisor was the “moving force” behind the

alleged violation, as evidenced by the fact that (1) his “own

culpable action or inaction in the training, supervision, or

control of his subordinates” resulted in injury, (2) he

acquiesced in the constitutional injuries complained of, or (3)

his conduct shows “a reckless or callous indifference to the

rights of others.” Larez v. City of Los Angeles, 946 F.2d 630,

646 (9th Cir. 1991) (citations omitted).

Vanderheof denies any involvement in the decision not

to renew plaintiff’s contract and testified that he never

discussed plaintiff’s employment with Warzecka, Gill-Fisher,

Swanson, or Franks. (Vanderhoef’s SUF Ex. Y (Vanderhoef Decl. ¶

3), Ex. BB (Warzecka Decl. ¶ 4).) Significantly, Warzecka (who

was several levels removed from Vanderheof in the UCD

organization charts) and Eleanor Sandoval (Human Resources), not

Vanderhoef, were the signatories to plaintiff’s most recent

employment contracts on behalf of UCD. (Defs.’ SUF Exs. L-M

(contracts).) Additionally, the person with admitted authority

to overrule plaintiff’s termination, Associate Vice Chancellor

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As an aside, it is not clear that authority to overrule 22

Warzecka’s decision will open the door to § 1983 liability

because “mere refusal [or failure] to overrule a subordinate’s

completed act does not constitute approval.” Christie v. Iopa,

176 F.3d 1231, 1239 (9th Cir. 1999); cf. Ortez v. Wash. County,

Or., 88 F.3d 804, 809 (9th Cir. 1996) (observing that

“supervisors are liable for the constitutional violations of

their subordinates ‘if the supervisor participated in or directed

the violations, or knew of the violations and failed to act to

prevent them’” (quoting Taylor, 880 F.2d at 1045) (emphasis

added)).

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Franks, was a subordinate of Vanderhoef’s subordinate. (Pl.’s 22

SUF Ex. 15 (Franks Dep. 118:18-120:23).)

To challenge Vanderhoef’s claimed lack of involvement,

plaintiff contends that because Vanderhoef and Warzecka were

friends and saw each other socially in work-related settings,

Vanderhoef must have discussed the matter of plaintiff’s

employment with Warzecka. (Id. Ex. 14 (Vanderhoef Dep. 59:19-

60:12, 64:18-19).) However, plaintiff’s mere suspicions cannot

refute Vanderhoef’s evidence that he was not involved in the

alleged deprivation of plaintiff’s constitutional rights and that

Vanderhoef and Warzecka did not discuss the matter. See Karam v.

City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003) (noting that

“speculation . . . does not rise to the level of evidence

sufficient to survive summary judgment”). 

Based on the actual evidence before the court, a

factfinder could not reasonably infer that Vanderhoef was

directly involved in the decision not to renew plaintiff’s

contract or that he was the moving force behind the decision. It

is simply unreasonable to expect that a person who oversees an

organization that employs over 27,000 people would have any

involvement in employment decisions for positions that are

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In passing, defendants note that “[s]ince § 1983 does 23

not provide for vicarious liability, . . . FRANKS . . . can [not]

be liable for the contract decision absent evidence that [he]

somehow caused the alleged constitutional violation.” (Defs.’

Mem. of P. & A. in Supp. of Mot. for Summ. J. 83.) Defendants

attempt to further develop this argument in their reply, but

these newly emphasized contentions are untimely. Moreover,

because Vanderhoef’s role in this case is sufficiently

distinguishable from Franks’ role, given that Franks was involved

almost immediately after the women filed their OCR complaint and

admittedly had discussions with Warzecka about the propriety of

plaintiff’s dismissal in light of that event, (Pl.’s Ex. 15

(Franks Dep. 87:20-90:21)), the court cannot say that the

analysis applicable to Vanderhoef would automatically extend to

Franks. Consequently, because defendants have not fully

developed a supervisory liability argument with respect to

Franks, the court declines to consider it. 

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several levels below him, especially when he had no reason, based

on past behavior, to suspect that the involved subordinates were

prone to abusing their power to effectuate constitutional

violations. (Vanderhoef’s SUF Ex. Z (Shimek Decl. ¶ 2), Ex. Y

(Vanderhoef Decl. ¶ 6).) Moreover, as the Ninth Circuit has

noted, to hold managers liable for “fail[ure] to overrule the

unconstitutional discretionary acts of subordinates would simply

smuggle respondeat superior liability into section 1983 law.” 

Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992)

(addressing municipal liability). Summary judgment as to

Vanderhoef is therefore warranted, as he cannot be held

vicariously liable for Warzecka’s and others’ decision to

terminate plaintiff.23

IT IS THEREFORE ORDERED that 

(1) defendants’ motion for summary judgment as to UCD

be, and the same hereby is, DENIED. 

(2) defendants’ motion for summary judgment as to

defendants Warzecka, Gill-Fisher, Franks, and Swanson be, and the

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same hereby is, DENIED. 

(3) defendants’ motion for summary judgment as to

defendant Vanderhoef be, and the same hereby is, GRANTED. 

DATED: June 2, 2006

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