Ronald Curtis v. City of Oakland , 571 F. App'x 616 ( 2014 )

FILED
NOT FOR PUBLICATION APR 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD EL-MALIK CURTIS, No. 12-15831
Plaintiff - Appellant, D.C. No. 3:10-cv-00358-SI
v.
MEMORANDUM*
CITY OF OAKLAND; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted April 11, 2014
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and PRATT, Senior
District Judge.**
Ronald El-Malik Curtis appeals the district court’s decision granting
summary judgment to the City of Oakland, Jennifer Ray, Joseph G. Torres, John
Farrell, and Gerald A. Simon (the “Defendants”) on his hostile work environment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.
and retaliation claims.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse.
I
To survive summary judgment on his hostile work environment claims,
Curtis had to show that he was subjected to unwelcome verbal or physical conduct
because of his race and that the conduct was sufficiently severe or pervasive to
alter the conditions of his employment and create an abusive work environment.
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 & n.3 (9th Cir.
2008). As the district court recognized, much of the abusive conduct was facially-
neutral, there was no known perpetrator for some of the incidents, and much of the
conduct was directed at the Curtis’s shift, generally.
Nonetheless, there was evidence in the record from which a reasonable jury
could infer that the responsible parties were firefighters of other races and that they
were targeting Curtis’s shift because it was predominantly African-American. See
Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir. 2012) (stating
that “facially neutral abusive conduct can support a finding of racial animus
sufficient to sustain a hostile work environment claim when that conduct is viewed
1
Curtis does not challenge the district court’s decision granting summary
judgment on his failure to prevent claim.
2
in the context of other, overtly racially-discriminatory conduct.” (alteration and
quotation marks omitted)). Several firefighters made comments that could be
construed as offensive to African-Americans. Other African-American firefighters
joined Curtis’s initial administrative complaint and stated in affidavits that the
abusive conduct at the station was racially-motivated.2 Some also stated that
African-Americans were referred to as “the brothers.” Cf. Johnson, 534 F.3d at
1123 (noting that the use of a “‘code word or phrase’ can, under certain
circumstances, contribute to a hostile work environment.”). Additionally,
Caucasian firefighters were overheard joking about Curtis’s missing keys and a
dead bird found under his bed, implying that they were responsible for the
incidents or otherwise knew who was responsible. Furthermore, although some of
the conduct appeared to be directed at Curtis’s shift, in general—as opposed to
African-Americans, specifically— the circumstances suggest that Curtis’s shift
may have served as a proxy for the animus particularly given that it was
predominantly made up of African-Americans and there were no other African-
Americans on the other shifts during the relevant time period.
2
The Defendants submitted evidence casting doubt on the knowledge of
some of these witnesses, however, such factual disputes cannot be resolved on
summary judgment. See Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012)
(noting “the principle that the court is not to make credibility determinations when
granting or denying summary judgment”).
3
Furthermore, tampering with an employee’s food, stealing personal items,
leaving dead animals in an employee’s workspace, placing a clown picture over a
picture of a prominent African-American, demeaning an employee’s work unit,
and repeatedly shunning a group of employees may constitute threatening and
humiliating actions that could unreasonably interfere with an employee’s work
performance. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir.
2004). Accordingly, Curtis established the existence of a genuine dispute of fact as
to whether a reasonable African-American man would find the workplace so
objectively and subjectively racially hostile as to create an abusive working
environment. Id. at 1112.
II
In order to survive summary judgment on his retaliation claims, Curtis had
to show that he engaged in protected activity which caused adverse employment
actions and that any legitimate reasons offered by the Defendants for the adverse
employment actions were pretextual. Surrell v. Cal. Water Serv. Co., 518 F.3d
1097, 1108 (9th Cir. 2008). Curtis engaged in protected activity by filing
complaints, filing reports, making informal complaints to his supervisors, and
raising his concerns informally in employer-sponsored group mediation and
counseling sessions. Curtis suffered adverse employment actions including
4
allegedly false reports filed by supervisors, a written reprimand, and a suspension.
Some of the protected activities were close enough in time to the adverse
employment actions to establish a prima facie causal link. See Davis v. Team Elec.
Co., 520 F.3d 1080, 1094 (9th Cir. 2008) (indicating that causation could be
inferred based on timing alone despite a gap that exceeded two months between the
protected activity and adverse action). Although the Defendants offered legitimate
reasons for the actions, Curtis also offered competing evidence suggesting that he
was improperly disciplined and that the Defendants failed to follow some of their
own procedures. Consequently, Curtis presented sufficient evidence to create a
genuine dispute of material fact on the retaliation claims.
III
The Defendants further contend that even if we reverse, we should
nonetheless affirm summary judgment for the individual defendants. The Record,
however, shows that Curtis provided evidence of personal participation in the
alleged rights deprivations sufficient to hold the individual defendants liable. See
Bell v. Clackamas Cnty., 341 F.3d 858, 867 & n.3 (9th Cir. 2003). Accordingly,
we also reverse the summary judgment decision in favor of the individual
defendants on the hostile work environment and retaliation claims.
5
REVERSED and REMANDED.3
3
The Defendants’ motion to dismiss the appeal pursuant to the doctrine of
judicial estoppel is denied.
6