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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SUSAN A. PRICE, No. CIV.S-04-1235 GEB DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF

CORRECTIONS, CORRECTIONAL

TRAINING FACILITY, SOLEDAD,

Defendant.

___________________________/

This matter is before the court on defendant California

Department of Corrections and Rehabilitation’s (“CDC”) motion for

summary judgment, or in the alternative, summary adjudication. 

Barton R. Jenks appeared on behalf of defendant at the hearing on the

motion on February 17, 2006. Plaintiff, proceeding pro se, appeared

on her own behalf. Having considered all written materials submitted

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

the reasons set forth below the undersigned will recommend that the

motion for summary judgment be granted and this action be dismissed.

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LEGAL STANDARDS

Summary judgment is appropriate when it is demonstrated

that there exists 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); 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 

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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

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), cert. denied, 455 U.S. 951 (1980). 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

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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) (per curiam)); 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 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. A. 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’s second amended complaint (“complaint”) is

brought under Title VII of the Civil Rights Act of 1964 and alleges

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that she was discriminated against in her employment on the basis of

race. The following facts are undisputed unless otherwise noted.

Plaintiff began her employment with CDC in December of

2002, as an office assistant/typist in the file room of the Records

Department of the Correctional Training Facility at Soledad (“CTF”). 

On March 17, 2003, plaintiff injured her hand while working. 

Plaintiff took leave until April 10, 2003, whereupon she returned to

work and was assigned to light duty clerical work. 

During a staff meeting in April of 2003, plaintiff had a

disagreement with her supervisor regarding assigning lunch times to

employees pursuant to state policy. Following that exchange

plaintiff was issued an “Employee Counseling Record” on May 7, 2003,

warning her of insubordination. Plaintiff alleges that following

this incident she was subjected to ongoing harassment by her

supervisor, who is Caucasian, and other employees and management

staff, who are Caucasian and Hispanic. Plaintiff is AfricanAmerican. Plaintiff was issued at least one more Employee Counseling

Record on May 23, 2003, for insubordinate conduct during another

meeting. As a result of the alleged harassment, plaintiff left work

on May 23, 2003, and did not return for several months as explained

below.

On June 13, 2003, plaintiff sent a letter to the warden

which referenced “abusive supervision” as well as a desire to “move

on” and put the matter behind her. Plaintiff asked for wages owed. 

In a letter to plaintiff dated June 18, 2003, the warden accepted

plaintiff’s apparent letter of resignation. Plaintiff responded to

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that letter, clarifying that she did not wish to resign, but instead

desired a transfer. In response, defendant notified plaintiff that

she was being reinstated plaintiff’s employment to her former

position at CTF, effective July 30, 2003.

However, plaintiff did not return to work as scheduled. As

a result, pursuant to state statute, defendant terminated plaintiff

as absent without leave (“AWOL”) as of August 8, 2003. Plaintiff

administratively appealed that termination and as part of a

settlement of the appeal she was again reinstated to her prior

position effective November 3, 2003.

Plaintiff returned to work on November 3, 2003, but

continued to complain of harassment. For example, plaintiff alleges

that defendant intentionally failed to process her health insurance

paperwork upon returning to work and maliciously required her to

complete a new six-month period of probation. Plaintiff again left

work in December of 2003, complaining of a hostile work environment. 

She was again terminated as AWOL as of December 18, 2003. Plaintiff

administratively appealed that decision as well but the appeal was

dismissed for lack of jurisdiction. This lawsuit followed.

A liberal construction of plaintiff’s complaint reveals

causes of action for (1) hostile work environment due to racial

harassment; (2) discrimination (disparate treatment) based on race;

and (3) retaliation for engaging in protected activity. For the

reasons set forth below, defendant is entitled to summary judgment in

its favor on all of plaintiff’s claims.

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With respect to her first claim, plaintiff has pointed to

no evidence in support of a claim for hostile work environment due to

racially-based harassment as alleged in her unverified second amended

complaint. Plaintiff has presented no evidence, as she must to

prevail, that (1) she was subjected to verbal or physical conduct

directed at her because of her race; (2) this conduct was unwelcome;

and (3) the conduct was severe or pervasive enough to alter the

conditions of employment and create an abusive working environment. 

Meritor v. Sav. Bank v. Vinson, 477 U.S. 57, 64-68 (1986); Manatt v.

Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003). Rather, at her

deposition plaintiff referred merely to instances which she

characterized as harassment (being assigned light duty in a different

office location upon her return from a thumb injury in April 2003,

reprimanded for failing to carry out job assignments, having a

specific lunch time assigned to her, cited for insubordination and

placed on probation). (Def.’s Notice of Mot. & Mot. for Summ. J.,

Attachment 1.) Indeed, plaintiff provided several possible

explanations for the motivation behind these actions, one of which

was based on speculation that perhaps her supervisors did not like

her and did not like “Black people, particularly.” (Id.) Such

speculation does not constitute evidence from which a reasonable

trier of fact could find in plaintiff’s favor on this claim. 

Because of this complete failure of proof, defendant’s

motion for summary judgment should be granted as to the hostile work

environment cause of action.

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 Retaliation claims brought under Title VII are analyzed under 1

the McDonnell-Douglas burden shifting framework. McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); Yartzoff v. Thomas, 809 F.2d

1371, 1375 (9th Cir. 1987). The plaintiff must first present a prima

facie case of retaliation. Yartzoff, 809 F.2d at 1375. The evidence

required at this stage is minimal and need not meet the preponderance

of the evidence standard. Aragon v. Republic Silver State Disposal

Inc., 292 F.3d 654, 659 (9th Cir. 2002). If she succeeds in

establishing a prima facie case, there is a rebuttable presumption

that the defendant committed unlawful discrimination. DominguezCurry 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. Id. at 1037.

8

With respect to the retaliation claim, in order to

establish a prima facie case of retaliation, plaintiff must produce 1

specific evidence that she (1) engaged in statutorily protected

activity; (2) thereafter suffered an adverse employment action at the

hands of her supervisors and (3) a causal link exists between her

protected activity and the adverse employment action. Ray v.

Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); Steiner v. Showboat

Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). With respect to

the last aspect of this showing, plaintiff must present evidence

sufficient to raise an inference that her protected activity was the

“likely reason” for the adverse action. Cohen v. Fred Meyer, Inc.,

686 F.2d 793, 796 (9th Cir. 1982).

Here, defendant concedes for the purposes of its motion

that plaintiff engaged in a protected activity, plaintiff having

filed an internal complaint with the equal employment officer as well

as a claim with the state Department of Fair Employment and Housing

in the summer of 2003. However, defendant persuasively argues that

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there was no adverse employment action taken against plaintiff much

less any evidence supporting a causal link between the protected

activity and an adverse employment action. 

 Plaintiff’s only attempt to challenge defendant’s arguments 

is her citation to the June 18, 2003, letter from the warden

accepting her apparent resignation. That letter advised, in relevant

part: “Should the Department be contacted by your prospective

employers for information regarding your resignation, the

circumstances surrounding your resignation will be disclosed.” 

(Def.’s Notice of Mot. & Mot. for Summ. J., Attachment 1, Ex. L.) 

However, once plaintiff clarified that she did not wish to resign,

but instead desired a transfer, defendant reinstated plaintiff’s

employment to her former position at CTF. Thus, the warden’s letter

does not amount to an adverse employment action. See Ray, 217 F.3d

at 1242-43 (9th Cir. 2000)(adverse employment action is "any adverse

treatment that is based on a retaliatory motive and is reasonably

likely to deter the charging party or others from engaging in

protected activity”).

Nor do the terminations of plaintiff’s employment for being

AWOL constitute adverse employment actions. See Cal. Gov’t Code §

19996.2(a)(“Absence without leave, whether voluntary or involuntary,

for five consecutive working days is an automatic resignation from

state service, as of the last date on which the employee worked.”);

Coleman v. Department of Personnel Administration, 52 Cal. 3d 1102,

1115 (1991)(“Under the AWOL statute, when an employee is absent 

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without leave for five consecutive working days, it is the employee

who severs the employment relationship, not the state.”). 

Additionally, plaintiff simply has offered no evidence of

the required causal link between her protected activity and any

adverse employment action. For these reasons, defendant’s motion

should be granted as to plaintiff’s retaliation claim.

Finally, the McDonnell-Douglas burden shifting framework

also applies to the disparate treatment claim. Coghlan v. American

Seafoods Co. LLC., 413 F.3d 1090, 1093-94 (9th Cir. 2005). To

establish a prima face case of discrimination based on race plaintiff

must show that she (1) belongs to a protected class, (2) was

performing according to her employer's legitimate expectations, (3)

was subject to an adverse employment action, and (4) similarly

situated individuals outside of her protected class were treated more

favorably. See Reeves v. Sanderson Plumbing, 530 U.S. 133, 142

(2000); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.

1998).

Plaintiff’s discrimination claim fails for the same reasons

as her retaliation claim. As discussed above, neither the letter

from the warden nor the AWOL notices constitute adverse employment

actions. Moreover, plaintiff has failed to present any evidence

suggesting that similarly situated individuals outside of plaintiff’s

protected class were treated more favorably than she. Therefore,

summary judgment in defendant’s favor should be granted as to

plaintiff’s discrimination claim as well due to plaintiff’s complete

failure of proof.

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CONCLUSION

As noted at the hearing on this motion, the undersigned is

mindful of the difficulties faced by pro per litigants in responding

to summary judgment motions in particular. Nonetheless, in this case

there is a complete absence of evidence suggesting that plaintiff was

unlawfully discriminated against in any fashion. There being no

genuine issue as to any material fact with respect to any of

plaintiff’s claims, defendant is entitled to judgment in its favor as

a matter of law. 

 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s

motion for summary judgment be granted and this action be dismissed.

These findings and recommendations are submitted to the

United States District Judge assigned to the case, pursuant to the

provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after

being served with these findings and recommendations, any party may

file written objections with the court and serve a copy on all

parties. Such a document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The parties are

advised that failure to file objections within the specified time may

waive the right to appeal the District Court’s order. See Martinez

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: March 20, 2006.

DAD:th

Ddad1/orders.prose/price1235.msj.f&r

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