Frank Morrow, Jr. v. City of Oakland , 690 F. App'x 517 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK MORROW, Jr., No. 13-17658
Plaintiff-Appellant, D.C. No. 3:11-cv-02351-LB
v.
MEMORANDUM* AND ORDER
CITY OF OAKLAND; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Submitted April 24, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Oakland police officer Frank Morrow, Jr. appeals pro se the district court’s
partial dismissal and partial summary judgment in his employment discrimination
action against the City of Oakland and individual defendants. We review de novo.
Lacey v. Maricopa Cty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc) (dismissal for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
failure to state a claim); Davis v. Team Elec. Co., 520 F.3d 1080, 1088 (9th Cir.
2008) (summary judgment). We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
The district court did not abuse its discretion in deciding that this case was
not related to another case, Allen v. City of Oakland, No. C-00-4599-TEH, and
would not be reassigned to the judge in Allen. See Pierce v. Cty. of Orange, 526
F.3d 1190, 1203 (9th Cir. 2008) (standard of review for decision whether to
consolidate cases).
The district court properly dismissed Morrow’s Title VII claims for damages
against the individual defendants because Title VII does not provide a cause of
action against supervisors or co-workers. See Craig v. M & O Agencies, Inc., 496
F.3d 1047, 1058 (9th Cir. 2007).
The district court properly dismissed Morrow’s race discrimination and
retaliation claims under Title VII and 42 U.S.C. § 1981 because Morrow failed
sufficiently to plead the element of an adverse employment action by alleging that
defendants mishandled his employment grievances and police review board
complaint. See Davis, 520 F.3d at 1089 (an adverse employment action is an
action that materially affects the compensation, terms, conditions, or privileges of
employment); Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1126
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(9th Cir. 2000) (failure to respond to grievances did not amount to an adverse
employment action).
The district court properly dismissed Morrow’s claim that he was subjected
to harassment and a hostile work environment in violation of Title VII and the
California Fair Employment and Housing Act (“FEHA”) because Morrow did not
allege that the conduct was sufficiently severe or pervasive. See Ariz. ex rel. Horne
v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (Title VII claim requires
plaintiff to establish conduct that was “sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working environment”);
Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013) (FEHA
claim requires harassment so severe that it creates a hostile work environment).
The district court properly dismissed Morrow’s claims that defendants
denied him due process in the handling of grievances and complaints because
Morrow failed to allege a constitutionally protected liberty interest. The settlement
agreement in Allen v. City of Oakland does not set forth “substantive predicates to
govern official decision making” or contain “explicit mandatory language that
mandates a particular outcome.” United States v. Juvenile Male, 670 F.3d 999,
1013 (9th Cir. 2012) (explaining how constitutionally protected liberty interests
can be created) (citation and internal quotation marks omitted).
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The district court properly granted summary judgment for defendant Deputy
Chief of Police Jeffrey Israel on Morrow’s claim of race discrimination and
retaliation under 42 U.S.C. § 1981 because Israel’s declaration and other evidence
submitted by defendants showed that he was not involved in job transfer decisions
involving Morrow in 2007, and therefore did not act against Morrow with
discriminatory or retaliatory intent. See Stones v. L.A. Cmty. Coll. Dist., 796 F.2d
270, 272 (9th Cir. 1986) (describing intent required under § 1981).
Appellees’ motion requesting judicial notice (Docket Entry No. 22) is
denied.
AFFIRMED.
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