Carmen v. San Francisco Unified School Dist., LEMON-THOMAS

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtKLEINFELD
Citation237 F.3d 1026
Parties(9th Cir. 2001) GWENDOLYN CARMEN, Plaintiff-Appellant, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT; JONES WONG; DELORES; MARY TWEGBY;RODERICK HONG; CYNTHIA LEBLANC; DIANNE LUCAS; LARRY ROWELL; UNITED EDUCATORS OF SAN FRANCISCO; MARIE GEHLEN; MARY AHYTE; KENT MITCHELL, Defendants-Appellees
Decision Date16 January 2001
Docket NumberLEMON-THOMAS,No. 98-16555

Page 1026

237 F.3d 1026 (9th Cir. 2001)
GWENDOLYN CARMEN, Plaintiff-Appellant,
v.
SAN FRANCISCO UNIFIED SCHOOL DISTRICT; JONES WONG; DELORES LEMON-THOMAS; MARY TWEGBY;RODERICK HONG; CYNTHIA LEBLANC; DIANNE LUCAS; LARRY ROWELL; UNITED EDUCATORS OF SAN FRANCISCO; MARIE GEHLEN; MARY AHYTE; KENT MITCHELL, Defendants-Appellees.
No. 98-16555
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted May 4, 2000
Filed January 16, 2001

Page 1027

Gary Michael Coutin, San Francisco, California, for the plaintiff-appellant.

April Madison-Ramsey, Deputy City Attorney, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California Maria-Elena James, Magistrate Judge, Presiding. D.C. No.CV-93-01551-MEJ

Before: Harlington Wood, Jr.,1 Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

KLEINFELD, Circuit Judge:

This case turns on summary judgment procedure. The issue is whether a judge must consider materials outside the motion papers and things referred to therein.

Facts

Plaintiff Gwendolyn Carmen holds state certification to teach elementary school. For many years, she worked as a day to day substitute teacher in San Francisco. Though she does not speak, read or write Chinese, she worked as a long-term substitute teacher in a fifth grade Chinese bilingual class during the 1991-92 school year. She had a Chinese-speaking teacher's aide.

Carmen lost the long-term substitute Chinese bilingual job for the 1992-93 school year to Eleanor Chan. Both Chan and Carmen lacked bilingual education certificates, but Chan spoke Chinese. Carmen sued the school district, claiming that she was discriminated against in this appointment because she is Black.2 The

Page 1028

district court granted summary judgment against her.

Carmen made another claim--one of more substance than her claim that the school district discriminated against her because she was Black by hiring someone who could speak Chinese to teach a Chinese bilingual class. The more substantive claim is that the school district retaliated against her for filing her lawsuit. An employer may not retaliate against someone for filing a civil rights claim, whether the claim is meritorious or not.3 Carmen claims that because she sued, the school board refused to hire her for any more long-term substitute teaching assignments, and gave her only day to day substitute assignments for a year and a half. This arrangement denied her the probationary status that goes with a long-term assignment, and that places a non-tenured teacher closer to tenure.

The school district moved for summary judgment on all claims, including the retaliation claim. The district court granted the motion, because Carmen had failed to produce any evidence showing that the school district's actions were in retaliation for filing her civil rights claims.

Analysis

Carmen's memorandum in opposition to the school district's motion for summary judgment did not point to any competent evidence of retaliation whatsoever. The only evidence supporting a retaliation claim, in all of the papers submitted or even mentioned in the summary judgment proceedings, was a statement by Carmen in her deposition that she believed she was denied a position because of her lawsuit: "I believe it's because of this court case." She did not testify to any admission by a representative of defendant or any other evidence, direct or circumstantial, to support this subjective statement.

On this evidence, the district court was correct in determining that there was no genuine issue of material fact. A plaintiff's belief that a defendant acted from an unlawful motive, without evidence supporting that belief, is no more than speculation or unfounded accusation about whether the defendant really did act from an unlawful motive. To be cognizable on summary judgment, evidence must be competent.4 Carmen failed to show personal knowledge. It is not enough for a witness to tell all she knows; she must know all she tells. As the district court correctly concluded, there was no evidence in the deposition or anywhere else in the summary judgment papers of any basis in personal knowledge for the plaintiff's subjective belief about the defendant's motive. Federal Rule of Civil Procedure 32(a) makes deposition testimony usable in motion proceedings "so far as admissible under the rules of evidence," and Federal Rule of Evidence 602 prevents a witness from testifying on a matter "unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."

The difficulty in this case arises because there was other evidence, not in the summary judgment papers, that would have made Carmen's retaliation case much stronger, andwould have furnished a basis in personal knowledge for her belief. In her brief on appeal to this court, Carmen quotes from a declaration she made where she said that a vice president of the school board told her that "as long as I continue to maintain legal proceedings against the District, I will be unable to obtain employment with the district." The school board official filed a declaration that he had never made any such statement. On summary

Page 1029

judgment, however, Carmen's declaration that the vice president of the school board did make the statement would be enough to establish a genuine issue of fact. Unfortunately, Carmen did not quote this statement, mention it, advert to the declaration where it is made, or do anything else to alert the magistrate judge working on the school district's summary judgment motion that the statement was in the record. Her lawyer provided the court with an itemized statement of 38 undisputed and disputed facts in opposition to the motion for summary judgment, but did not refer to this statement. Though defendants raise evidentiary objections to use of this statement, we assume for purposes of discussion that it would be cognizable in opposition to summary judgement and would establish a genuine issue of fact as to whether the district retaliated against Carmen for filing her civil rights lawsuit.

Understandably, when the magistrate judge wrote her decision, she was unaware of this statement. The record in this case consists of six heavily stuffed folders of papers, eight or nine inches thick when pressed together. The declaration with this retaliation admission was filed two years before the summary judgment motion at issue. Carmen had sued her union as well as the school board and others. The declaration alleging the retaliation admission was filed in opposition to the union's motion for summary judgment (not the school board's motion that is before us on this appeal). That motion had been decided (the union prevailed) a year and a half, and many hundreds of pages of record, before the decision on the motion at issue on this appeal. As a practical matter, there was no reason why the magistrate judge would remember or look for Carmen's by-then ancient declaration.

We review summary judgment de novo.5 Does that mean that, even though a declaration in...

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2357 practice notes
  • Equal Emp't Opportunity Comm'n v. Swissport Fueling, Inc., No. CV–10–02101–PHX–GMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • January 7, 2013
    ...record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028–29 (9th Cir.2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417–18 (9th Cir.1988).B. Hostile Work Environment Title VII o......
  • Keslosky v. Borough of Old Forge, No. 3:08–CV–1240.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 11, 2014
    ...purposes of summary judgment and those parts of the record specifically referenced therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030–1031 (9th Cir.2001) ; see also Forsyth v. Barr, 19 F.3d 1527 1527, 1537 (5th Cir.1994). “Inferences should be drawn in the light most ......
  • Altman v. HO Sports Co., No. 1:09–cv–1000 AWI JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 18, 2011
    ...(9th Cir.2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving pa......
  • Barnes-Wallace v. Boy Scouts of America, No. 00-CV-1726-J(AJB).
    • United States
    • U.S. District Court — Southern District of California
    • July 31, 2003
    ...purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. A......
  • Request a trial to view additional results
2346 cases
  • Equal Emp't Opportunity Comm'n v. Swissport Fueling, Inc., No. CV–10–02101–PHX–GMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • January 7, 2013
    ...record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028–29 (9th Cir.2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417–18 (9th Cir.1988).B. Hostile Work Environment Title VII o......
  • Keslosky v. Borough of Old Forge, No. 3:08–CV–1240.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 11, 2014
    ...purposes of summary judgment and those parts of the record specifically referenced therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030–1031 (9th Cir.2001) ; see also Forsyth v. Barr, 19 F.3d 1527 1527, 1537 (5th Cir.1994). “Inferences should be drawn in the light most ......
  • Altman v. HO Sports Co., No. 1:09–cv–1000 AWI JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 18, 2011
    ...(9th Cir.2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving pa......
  • Barnes-Wallace v. Boy Scouts of America, No. 00-CV-1726-J(AJB).
    • United States
    • U.S. District Court — Southern District of California
    • July 31, 2003
    ...purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. A......
  • Request a trial to view additional results

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