Davenport v. State Center Community College Dist.
| Citation | 654 F.Supp.2d 1073 |
| Decision Date | 25 August 2009 |
| Docket Number | No. 1:07-cv-00494 OWW SMS.,1:07-cv-00494 OWW SMS. |
| Court | U.S. District Court — Eastern District of California |
| Parties | David Paul DAVENPORT, Plaintiff, v. BOARD OF TRUSTEES OF the STATE CENTER COMMUNITY COLLEGE DISTRICT, Defendant. |
David Paul Davenport, Fresno, CA, pro se.
Jesse Jeremy Maddox, Shelline K. Bennett, Liebert Cassidy Whitmore, Fresno, CA, for Defendant.
Plaintiff David Paul Davenport ("Davenport") brings this pro se action under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e-3 (a), based on a claim of unlawful retaliation by Plaintiff's former employer, Defendant State Center Community College District ("District"). Davenport alleges the District suspended him in May 2002 and fired him in January 2003 in retaliation for a sexual harassment and discrimination complaint he submitted to the District against his supervisor, Dr. Margaret E. Mericle.
Before the court for decision is Defendant's Motion for Summary Judgment. Defendant moves for summary judgment on the grounds that Plaintiff's retaliation claim under Title VII is barred by the applicable statutes of limitations. Specifically, Defendant argues that any claim for retaliation based on alleged acts prior to and including the date of the Board of Trustees' decision to terminate Plaintiff, which was January 7, 2003, is barred because Plaintiff did not submit his claim to the Equal Employment Opportunity Commission ("EEOC") within the Title VII filing limitations period as required by 42 U.S.C. § 2000e-5(e)(1).
In the alternative, Defendant seeks summary judgment on the following grounds: 1) Plaintiff cannot prove a prima facie of retaliation because there is no evidence that he engaged in protected activity; 2) Defendant had a legitimate, nondiscriminatory reason for terminating Plaintiff's employment, namely that Plaintiff was dishonest, unfit for service, and refused to obey laws and regulations, and Plaintiff has not presented evidence giving rise to a triable issue as to any pretext; and 3) because Plaintiff failed to diligently pursue his Title VII retaliation action for three years, opting to focus on his unsuccessful state court appeal, Plaintiff's Title VII action is barred by the doctrine of laches.
In August 1990, the District hired Plaintiff as a history professor on its Fresno City College campus. (DSUF 1.) On May 1, 2002, Mr. Randy Rowe, Associate Vice Chancellor of Human Resources for the District, received a memo from the Interim-President of Fresno City College indicating concerns over Plaintiff's potential sexual harassment of students. (Rowe Decl. ¶ 5.) On May 6, 2002, the District, via Mr. Rowe, placed Plaintiff on administrative leave with pay, pending an investigation into allegations of misconduct against Plaintiff by Fresno City College students and District staff members. (DSUF 2.) Mr. Rowe personally delivered the letter on May 6, 2002, which set forth the reasons for placing Plaintiff on administrative leave.
On November 8,2002, following the investigation, Mr. Rowe sent Plaintiff a letter notifying him of the District's intent to initiate termination proceedings against him. (DSUF 3.) On December 3, 2002, the District provided Plaintiff with a pre-termination Skelly hearing, during which Plaintiff and his representative, Zwi Reznik, had the opportunity to rebut the charges against Plaintiff. (DSUF 4.) On January 7, 2003, the Board of Trustees voted to terminate Plaintiff's employment based on dishonesty, evident unfitness for service, and persistent violation of, or refusal to obey, the school laws of the state or District regulations.2 (DSUF 5-6.)
Following the Board's January 7, 2003 decision to terminate his employment Plaintiff filed an appeal with the Office of Administrative Hearings. (DSUF 29.) Administrative Law Judge Stephen J. Smith provided a full evidentiary hearing, where Plaintiff was represented by legal counsel.3 (DSUF 29, 30.) On January 21, 2004, ALJ Smith issued a 43-page written order upholding the District's decision. (DSUF 31.)
Plaintiff appealed ALJ Smith's decision to the Fresno County Superior Court, which denied Plaintiff's request on June 22, 2004. (DSUF 32.) Plaintiff then appealed the Superior Court's decision to the Fifth District Court of Appeal. On October 21, 2005, the Fifth District Court of Appeal issued a 37-page opinion affirming the judgement in the District's favor. (DSUF 34.) Following the Fifth District's ruling, Plaintiff petitioned the California Supreme Court to review the Fifth District's decision regarding his termination. (DSUF 36.) The California Supreme Court denied Plaintiff's petition in December 2005. (DSUF 36.)
Initially, a complainant meets with a DFEH consultant for an intake interview and completes a pre-complaint questionnaire. (DSUF 10.) Based on the information the individual provides, the DFEH consultant determines whether the DFEH will accept or reject the charge. (DSUF 11.) If the DFEH accepts the charge, a complaint is typed, the complainant signs the complaint, and DFEH serves it on the alleged offending entity. (DSUF 11.) If the DFEH rejects the charge, it sends the complainant a cover letter notifying the complainant that he or she must complete and return an enclosed "verified complaint." (DSUF 12.) The DFEH refers to the verified complaint as a "B Complaint." (DSUF 12.) The verified or "B Complaint" is partially completed by the DFEH before it is mailed to the complainant, but in order to receive a Right to Sue notice, the complainant must sign and date the B Complaint, and submit it to the DFEH. (DSUF 13-14.) The DFEH does not consider a complaint "filed" until it receives a signed and dated B Complaint. (DSUF 15.)
When the DFEH receives a signed and dated B Complaint, it stamps the complaint as filed that day. (DSUF 16.) The DFEH then issues a Right to Sue notice to the complainant and a notice to the employer that the complaint has been filed and closed. (UMF 17.) Even if a complainant files an untimely B Complaint beyond the statute of limitations period, the DFEH will stamp it received and issue a Right to Sue notice. (DSUF 18.) If a complainant does not immediately return a B Complaint, the DFEH does not actively require the complainant to follow-up.5 (DSUF 19.)
On November 19, 2002, during his suspension but prior to his dismissal, Plaintiff met with California Department of Fair Employment and Housing ("DFEH") consultant Rafael Gonzalez and completed a pre-complaint questionnaire. (DSUF 7, 21.) Plaintiff discussed the circumstances of his dismissal with Mr. Gonzalez, who told Plaintiff he would review the material and get back to him. (DSUF 21.)
On November 25, 2002, Mr. Gonzalez issued a letter to Plaintiff explaining that the DFEH would not pursue a complaint on his behalf. (DSUF 22.) The letter was signed by Mr. Gonzalez and contained two enclosures, a "Notice of Discrimination Complaint Accepted for Filing Purposes" and a partially completed "Complaint of Discrimination" or "B Complaint." (Doc. 79, Exh C.) The November 25 DFEH letter explained that Plaintiff needed to submit a completed B Complaint in order to obtain a "Right to Sue" notice and file a lawsuit:
I apologize for taking longer than expected in getting back to you regarding your wish to file a complaint with this agency ... Therefore, based on this Consultant's review of your situation and a review of the documentation provided, a complaint for investigation will not be taken on your behalf. As I indicated to you, I will be including in this letter a "B" Complaint for filing purposes, which will be served on the Respondent once you provide the form back. You will also be issued a "Right To Sue" shortly thereafter, which will authorize you to file a private law suit on your own behalf if you so desire.
(Doc. 79, Exh. C.)
The enclosed "Notice of Discrimination Complaint Accepted for Filing Purposes" reads in part:6
Your allegation of discrimination against Fresno City College has been considered. The Department of Fair Employment and Housing will file your complaint. Analysis of the facts and circumstances which you allege indicates that further investigation is not warranted. As the Department has determined that it will not be issuing an accusation of discrimination, you will be advised by mail of your right to file a private lawsuit.
(Doc. 79, Exh. C.)
The parties dispute what happened next. According to Defendant, after Mr. Gonzalez sent Plaintiff the November 25, 2002 letter and B Complaint, the DFEH did not receive any other communications from Plaintiff until June 2, 2006. (DSUF 26.) Defendant states that had the DFEH received written communication from Plaintiff, it would have been included in the DFEH's file. (DSUF 27.) The DFEH's file concerning Plaintiff's allegations does not contain any communication from Plaintiff, including the signed B Complaint, until June 2, 2006. (DSUF 28.)
Plaintiff maintains he completed the B Complaint form included with the letter and notice and returned it by mail on November 30, 2002. According to Plaintiff, he "corrected, completed, signed, dated, and mailed it to Mr. Gonzalez on November 30, 2002." (Opp page 6)
It is undisputed that the only signed complaint in the DFEH file was a file-stamped complaint received on June 2, 2006.7 The form shows Plaintiff's handwritten signature and a corresponding handwritten date of November 30, 2002. The form also contains fax information printed across the top of the document indicating that it was faxed to the DFEH on June 2, 2006 from the fax number 559-227-9355.
On June 6, 2006...
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