Sizemore v. City of Dallas, Civil No. 04-1114 AS.

Citation443 F.Supp.2d 1201
Decision Date09 August 2006
Docket NumberCivil No. 04-1114 AS.
PartiesRaymond SIZEMORE, Plaintiff, v. CITY OF DALLAS, a municipality, Dallas Police Department, and Chief James Harper, Sergeant John Wallace, and Lieutenant Tom Simpson, individually and in their official capacity, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)

Craig A. Crispin, Crispin Employment Lawyers, Portland, OR, Shelley D. Russell, Crispin Employment Lawyers, Portland, OR, for Plaintiff.

Karen M. O'Kasey, Hoffman Hart & Wagner, LLP, Robert S. Wagner, Stan Legore, Miller & Wagner, LLP, Portland, OR, for Defendants.

OPINION AND ORDER

HAGGERTY, Chief Judge.

In a Findings and Recommendation dated May 22, 2006, Magistrate Judge Ashmanskas recommended granting in part a Motion for Summary Judgment filed by the City of Dallas (City), the Dallas Police Department (Department), Chief James Harper (Harper), and Lieutenant Tom Simpson (Simpson). The Findings and Recommendation concludes that the Motion should be granted, with the exception of plaintiff's claim for retaliation against the City and Harper and punitive damages on that claim. The Findings and Recommendation also recommended granting a Motion for Summary Judgment filed by Sergeant John Wallace (Wallace). Plaintiff and defendants filed objections to the Findings and Recommendation.

When a party objects to any portion of a Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Business Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981).

Both plaintiff's and defendants' objections were filed in a timely manner. The court has given the file of this case a de novo review, and has also carefully evaluated the Magistrate's Findings and Recommendation, the objections, and the entire record. For the reasons below, the court sustains plaintiffs' objections in part and denies defendants' objections.

ANALYSIS

The Magistrate Judge's presentation of the facts and issues in this matter is comprehensive and the relevant facts need be recited only briefly. Plaintiff is a former police officer for the City. Plaintiff brings claims under state law, 42 U.S.C. §§ 1981 & 1983, and 42 U.S.C. § 2000e, et. seq. (Title VII), for racial harassment, racial discrimination, retaliation, violations of the First Amendment, violations of Equal Protection, intentional infliction of emotional distress, and punitive damages. The Findings and Recommendation concluded that summary judgment should be granted against plaintiff's claims of discrimination, First Amendment retaliation, constructive discharge, intentional infliction of emotional distress, and the retaliation claim against defendant Wallace. The Findings and Recommendation preserved for trial plaintiff's claim of retaliation against the City and Harper, and plaintiff's punitive damages claim against Harper.

Defendants' Objections

The City and Harper object to the recommendation that plaintiff be allowed to proceed on his claim of racial discrimination for retaliatory acts against them. Defendants Harper and the City argue that plaintiff failed to present substantial and specific evidence establishing a causal connection between his complaints and the alleged adverse actions.

"Very little" direct evidence is required to raise an issue of material fact and survive summary judgment. Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.2005).

In concluding that plaintiff met his burden of establishing a prima facie case of retaliation, the Findings and Recommendation relied on the direct evidence that Harper threatened to make plaintiff's life complicated and uncomfortable and to greatly diminish plaintiff's career opportunities if plaintiff pursued his complaints. Findings and Recommendation at 15-16. As noted by the Findings and Recommendation, shortly after these threats, the adverse employment actions commenced. Id. at 16.

This court finds the Findings and Recommendation's analysis to be sound and concurs that plaintiff met his burden in establishing a prima facie case for retaliation. Defendants' objections are overruled.

As a point of clarification, this court notes that plaintiff cannot maintain a retaliation claim under 42 U.S.C. § 1983 based upon an alleged Equal Protection violation. Although the Ninth Circuit has not addressed this issue directly, it has noted in dicta that if a plaintiff's claims under Title VII were viable, that plaintiff "probably could not have pursued Section 1983 claims based on the same discriminatory and retaliatory acts." Learned v. City of Bellevue, 860 F.2d 928, 933 (9th Cir.1988).

Many other circuits have drawn similar conclusions more directly. Pagan v. Calderon, 448 F.3d 16, 36 (1st Cir.2006) (a plaintiff challenging a discretionary decision to deny a benefit claims and seeking redress based on allegations of unconstitutional political discrimination or retaliation cannot rely on the Equal Protection Clause but must bring a claim under the First Amendment); Maldonado v. City of Altus, 433 F.3d 1294, 1308 (10th Cir.2006) (citations omitted) (to the extent the plaintiffs raise a retaliation claim under 42 U.S.C. § 1983 asserting violations of Equal Protection, the Tenth Circuit has long held that such a theory of liability for retaliatory conduct falls outside of § 1983); Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir.2004) ("the right to be free from retaliation may be vindicated under the First Amendment or Title VII, but not the Equal Protection Clause"); Rosenfeld v. Egy, 346 F.3d 11, 15 (1st Cir.2003) (rejecting Equal Protection claim premised on allegations of retaliatory refusal to grant a license because the claim substantially overlapped with the plaintiff's First Amendment claim); Bernheim v. Litt, 79 F.3d 318, 323 (2nd Cir.1996) ("we know of no court that has recognized a claim under the Equal Protection Clause for retaliation following complaints of racial discrimination"); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir.1984) (the defendants'"only wrongful act was their retaliation for the plaintiff's actions, a violation of Title VII. We conclude that Congress did not intend this violation to be the basis of a § 1983 claim").

Based upon the reasoning provided in these decisions, this court concludes that plaintiff is precluded from bringing a retaliation claim under 42 U.S.C. § 1983 based on alleged violations of his Equal Protection rights. Plaintiff's retaliation claims under Title VII, § 1981, and Oregon law remain.

As to plaintiff's retaliation claims against the individual defendants, this court concurs with the Findings and Recommendation that plaintiff failed to demonstrate a prima facie case of retaliation by defendants Wallace and Simpson but met his burden of demonstrating retaliation by Harper.

Plaintiffs Objections
1. Racial Discrimination

Plaintiff objects to the Findings and Recommendation's conclusion that no issue of material fact exists in regards to plaintiff's claim of racial discrimination.

[3] The Findings and Recommendation found that there was direct evidence that Wallace made a number of racist comments to plaintiff and that Harper threatened to retaliate against plaintiff if he continued to complain. Findings and Recommendation at 10. However, the Findings and Recommendation concluded that a prima facie case of discrimination was not presented in light of the length of time that passed from the cessation of the racist comments until the constructive discharge, the fact that Wallace was not a decision maker with regards to plaintiff, and the nature of the retaliatory acts. Findings and Recommendation at 10.

The Findings and Recommendation then analyzed whether plaintiff established a prima facie case of discrimination based on circumstantial evidence. Id. at 10. The Findings and Recommendation found that plaintiff was subject to adverse employment actions, but that "the court is not convinced that any of these acts occurred solely because of plaintiff's race." Id. at 11. The Findings and Recommendation concluded that the adverse employment actions were not based on plaintiff's race, but rather on plaintiff's complaints of racial harassment. Id. at 12.

Plaintiff argues that the Findings and Recommendation erred in considering the direct and circumstantial evidence separately in deciding whether plaintiff established a prima facie case of discrimination based on race. This argument is welltaken.

A prima facie case can be demonstrated from circumstantial or direct evidence, and the amount evidence that must be produced is very little. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). In determining whether sufficient evidence has been produced to survive summary judgment, circumstantial and direct evidence should be treated alike. See Desert Palace v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1030 (9th Cir.2006). As noted in the Findings and Recommendation, plaintiff has produced ample evidence that he was subjected to racial discrimination. Findings and Recommendation at 10.

Plaintiff also objects to the Findings and Recommendation's conclusion that a prima facie case was not established because plaintiff failed to prove that the adverse employment actions occurred "solely" because of racial discrimination. Id. at 11.

Title VII provides that an unlawful employment practice is established when discrimination is "a motivating factor" for any employment practice. 42 U.S.C. § 2000e-2(m). It also states that is an unlawful employment practice to take an adverse employment action "because of' race, color, religion, sex, or national origin. § 2000e-2(a). There is no requirement that a plaintiff must demonstrate that discrimination is the sole motivation for an adverse employment...

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    ..."Section 1983 retaliation claims based on Equal Protection are prohibited by law." Def. Mot. at 32 (citing Sizemore v. City of Dallas, 443 F. Supp. 2d 1201, 1204 (D. Or. 2006)). Swanberg insists that such a claim is available to him because, although he is not a member of protected class, h......
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