Farid Shahrivar v. City of San Jose ( 2018 )

FILED
NOT FOR PUBLICATION
OCT 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FARID SHAHRIVAR, No. 15-17516
Plaintiff-Appellant, D.C. No. 5:10-cv-01029-PSG
v.
MEMORANDUM*
CITY OF SAN JOSE, a municipality; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Argued and Submitted August 17, 2018
San Francisco, California
Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN,** District
Judge.
Farid Shahrivar, proceeding pro se, appeals the district court’s dismissal of
his Sixth Amended Complaint (“SAC”) for failure to state a claim upon which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
relief can be granted. We have jurisdiction under 28 U.S.C. § 1291 and affirm in
part and reverse in part.
Because the parties are familiar with the facts and procedural posture of this
case, we recite only those allegations from the SAC which are necessary to resolve
Shahrivar’s appeal. We review a dismissal for failure to state a claim de novo,
accepting all of Shahrivar’s well-pleaded factual allegations as true and construing
them in the light most favorable to him. Williams v. Gerber Prods. Co., 552 F.3d
934, 937 (9th Cir. 2008).
1. § 1983 Retaliation Claim. “‘To prevail under 42 U.S.C. § 1983, a
plaintiff must prove that he was ‘deprived of a right secured by the Constitution or
laws of the United States, and that the alleged deprivation was committed under
color of state law.’” Marsh v. Cty. of San Diego, 680 F.3d 1148, 1152 (9th Cir.
2012) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)).
The SAC does not contain sufficient material to determine what, if any, federal
constitutional provision or statute serves as the foundation for Shahrivar’s
retaliation claim under § 1983. This omission is fatal and dismissal was
appropriate.
2. § 1983 Procedural Due Process Claim. To state a claim for a due
process violation, Shahrivar must allege “that he has a protected property interest
2
under the Due Process Clause and that he was deprived of the property without
receiving the process that he was constitutionally due.” Levine v. City of Alameda,
525 F.3d 903, 905 (9th Cir. 2008). The parties do not dispute that Shahrivar had a
protected property interest in his continued employment as a public employee. See
Skelly v. State Personnel Bd., 539 P.2d 774, 783 (Cal. 1975). Accordingly, he was
entitled to notice and a pre-termination hearing. See Walls v. Cent. Contra Costa
Transit Auth., 653 F.3d 963, 965 (9th Cir. 2011).
We credit, as we must, Shahrivar’s allegation that the pre-termination
hearing officer was not impartial. However, “the decisionmaker in a pre-
termination hearing need not be impartial, so long as an impartial decisionmaker is
provided at the post-termination hearing.” Clements v. Airport Auth. of Washoe
Cty., 69 F.3d 321, 333 n.15 (9th Cir. 1995) (citing Walker v. City of Berkeley, 951
F.2d 182, 184 (9th Cir. 1991)) (emphasis in original). Because the SAC does not
allege that the post-termination hearing officer was biased, Shahrivar failed to state
a claim for a procedural due process violation and dismissal of that count was also
warranted.1
3. California Fair Housing and Employment Act Claims. Shahrivar alleges
1
The City’s request that we judicially notice certain portions of its
charter and municipal code that pertain to pre-termination procedures (Docket No.
27) is GRANTED.
3
that the City of San Jose violated the California Fair Housing and Employment Act
(“FEHA”) by failing to provide him with a reasonable accommodation. “The
statute of limitations for FEHA actions states, in pertinent part: ‘No complaint may
be filed after the expiration of one year from the date upon which the alleged
unlawful practice or refusal to cooperate occurred[.]’” Richards v. CH2M Hill,
Inc., 29 P.3d 175, 182 (Cal. 2001) (quoting Cal. Gov’t Code § 12960 (West 2000)).
Although the California Supreme Court has adopted a broadly inclusive approach
to the “continuing violation doctrine” under FEHA where an employee persists in
seeking a reasonable accommodation for a disabling condition, it has also
recognized that “[w]hen the hope that conditions will improve or that informal
conciliation may succeed is unreasonable, as when an employer makes clear that it
will not further accommodate an employee, justification for delay in taking formal
legal action no longer exists.” Id. at 823 (internal citation omitted).
Viewing the SAC in its entirety, we conclude that Shahrivar’s own
allegations establish that his employer “ma[de] clear that it [would] not further
accommodate” him by December 2006. Id. Shahrivar alleges that he requested
transfers or other accommodations on at least four occasions in 2006, all of which
were summarily denied by his employer. Because this alleged failure to
accommodate “acquired a degree of permanence” which should have made clear to
4
a reasonable employee that “any further efforts at informal conciliation to obtain
reasonable accommodation or end harassment [would] be futile,” the statute of
limitations began running on all of Shahrivar’s FEHA claims no later than the end
of 2006. Id.
Although Shahrivar filed a timely complaint with the California Department
of Fair Employment and Housing (“DFEH”), which issued him a right-to-sue
notice on June 19, 2006, he elected not to initiate a civil action.2 Because the
original complaint in this lawsuit was filed on March 10, 2010, all of Shahrivar’s
FEHA claims are time-barred.
4. § 1981 Claim Against the City of San Jose. “[C]laimants suing state
actors [under § 1981] must establish that their alleged injury was the result of a
‘policy or custom’ of that state actor.” Fed’n of African Am. Contractors v. City of
Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) (quoting Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658, 694 (1978)). Shahrivar’s allegations
do not plausibly allege that the City of San Jose maintained a discriminatory policy
or custom and his claim against the municipality was properly dismissed.
5. § 1981 Claim Against Individual Defendants. To state a retaliation claim
2
In light of our conclusion that Shahrivar’s FEHA claims accrued in
2006, Shahrivar’s further claims filed with DFEH after January 1, 2008 were also
untimely because they were not filed within one year of December 31, 2006.
5
under 42 U.S.C. § 1981, a plaintiff must show he (1) engaged in protected conduct;
(2) his employer took an adverse action against him; and (3) there was a causal
connection between his protected activity and the adverse employment action.
Surrell v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).
The parties do not appear to dispute that Shahrivar’s Equal Employment
Opportunity Commission (“EEOC”) and DFEH complaints constitute protected
activity for the purposes of § 1981. Following his first EEOC complaint, filed in
June 2006, Shahrivar alleges that Defendant Tsao, together with three other
individuals, acted to mislead civil rights investigators who then closed their
investigation.3 He further contends that Tsao and Defendant Sykes placed a letter
of reprimand in his file and completed a negative performance evaluation
approximately one month after EEOC issued its first right-to-sue letter. Shahrivar
also alleges that he was effectively demoted to a different department following a
meeting with Defendant White to report Sykes’s and Tsao’s alleged retaliation.
3
Shahrivar’s § 1981 claims are subject to the four-year catch-all statute
of limitations established by 28 U.S.C. § 1658(a). See Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 382-83 (2004); see also Johnson v. Lucent Techs. Inc., 653
F.3d 1000, 1003 (9th Cir. 2011) (“Because they arise under a post-December 1,
1990 Act of Congress, section 1981 retaliation claims are governed by the
four-year statute of limitations under § 1658.”). Shahrivar’s initial complaint in
this action was filed on March 10, 2010. Accordingly, we consider only those
allegations in the SAC dating from March 10, 2006.
6
Following his demotion, Shahrivar alleges that Sykes and Allen, together with two
other defendants, orchestrated his firing by refusing to let his supervisors perform
reviews, ignoring requests for objective performance measures, and interfering
with his application to a more desirable position for which he asserts he was
qualified. Allen, Sykes, and Tsao cited the letter of reprimand issued after the
EEOC issued its right-to-sue letter as a justification for Shahrivar’s later
termination.
“[C]ausation may be established based on the timing of the relevant actions.
Specifically, when adverse employment decisions are taken within a reasonable
period of time after complaints of discrimination have been made, retaliatory intent
may be inferred.” Passantino v. Johnson & Johnson Consumer Prods., Inc., 212
F.3d 493, 507 (9th Cir. 2000) (citing Yartzoff v. Thomas, 809 F.2d 1371, 1375–76
(9th Cir. 1987)).4 We have previously held that adverse employment actions which
occurred between two and three months after protected activity were sufficient to
establish at least a prima facie case of causation. Miller v. Fairchild Indus., Inc.,
4
The dissent suggests that the SAC “failed to allege that Sykes, Allen,
and Tsao knew that Shahrivar had filed EEOC and DFEH complaints.” Post, at 2.
Admittedly, the SAC is not a model of clarity, but it does allege that: “Defendants
knew Plaintiff had filed prior complaints with the EEOC and/or DFEH.” And, as
we explain, Shahrivar alleges that all the remaining Defendants took specific
adverse actions against him in the wake of the EEOC’s first right-to-sue letter.
7
885 F.2d 498, 505 (9th Cir. 1989) (59 days and 42 days); Yartzoff, 809 F.2d at
1376 (three months); cf. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th
Cir. 2004) (holding that causation was not established where there was a one-and-
a-half year gap between protected activity and adverse action). Here, Shahrivar
has sufficiently pled facts which, if true, support an inference that Tsao, Sykes, and
Allen took adverse employment actions against him because of his protected
activity. As a result, the district court’s order dismissing Shahrivar’s § 1981
retaliation claims arising after March 10, 2006 against Tsao, Sykes, and Allen was
improper. The order is vacated as to those claims and the case is remanded for
further proceedings.
Each party to bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
8
FILED
Shahrivar v. City of San Jose, No. 15-17516 OCT 22 2018
BEA, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that Shahrivar has failed to state a claim under
§ 1983 and FEHA, and with the dismissal of Shahrivar’s § 1981 claim against the
City. I dissent in part only because I would also dismiss Shahrivar’s § 1981 claim
against individual defendants Tsao, Sykes, and Allen.
The majority is correct that under § 1981, a plaintiff may establish a causal
connection between his protected activity and an adverse employment action
through circumstantial evidence. As every case cited by the majority illustrates,
however, when a plaintiff alleges causation “based on the proximity in time
between the protected action and the allegedly retaliatory employment decision,”
he must also allege that his employer was aware of his protected activities. See
Yartzoff v. Thomas, 885 F.2d 1371, 1376 (9th Cir. 1987) (“[A]n employer’s
awareness is essential to showing a causal link.” (quoting Cohen v. Fred Meyer,
Inc., 686 F.2d 793, 796 (9th Cir. 1982))); Miller v. Fairchild Industries, Inc., 885
F.2d 498, 505 (9th Cir. 1989) (upholding jury’s inference of retaliation based on
timing because the defendants “who participated in the decisions to lay off [the
plaintiffs] were aware that the appellants had filed EEOC charges”); Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507, 502 (9th Cir. 2000)
(upholding jury’s finding of causation, but only after noting that the plaintiff had
“informed [human resources] of her intentions to seek private legal counsel”).
1
Shahrivar’s Sixth Amended Complaint failed to allege that Sykes, Allen, and
Tsao knew that Shahrivar had filed EEOC and DFEH complaints. Shahrivar makes
his closest pass when he alleges that “Jensen, Rapson, Tsao, and Gurza [engaged]
in a cover-up to mislead the agency investigators about Plaintiff’s discrimination
complaint to obtain case closure.” Sixth Amended Complaint ¶ 21. But Shahrivar’s
conclusory allegation that Tsao was part of a “cover-up” does not plausibly allege
that Tsao was aware of his protected conduct. Shahrivar never alleges what the
defendants did to effect the “cover-up.” And although Shahrivar thrice repeats his
allegation of a cover-up, he points the finger at a slightly different group of
defendants each time. First, it is “Jensen, Rapson, Tsao, and Gurza”; then, he
alleges that “Gurza and Tsao” alone “induced the agencies to close their files
without findings,” id. ¶ 25; and finally, he suggests, with no mention of Tsao, that
“Gurza obtained case closure by misleading and evasive statements to EEOC
investigators,” id. ¶ 28. Shahrivar’s conclusory and inconsistent allegations do not
plausibly allege that Tsao—much less Sykes or Allen, who are never mentioned in
Shahrivar’s cover-up allegations—knew of Shahrivar’s protected activities.1
1
The majority concludes that Shahrivar has alleged sufficient facts to infer the
required causal connection because Shahrivar alleged that “Defendants knew
Plaintiff had filed prior complaints with the EEOC and/or DFEH.” See Op. 7 n.3.
But this allegation exemplifies the type of “[t]hreadbare recital[] of the elements of
a cause of action” that Iqbal forbids. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Shahrivar’s conclusory statement, devoid of any facts upon which he so concluded,
does not suffice.
2
Accordingly, I would dismiss Shahrivar’s § 1981 claim against Tsao, Sykes,
and Allen, and I respectfully dissent from that portion of the majority’s opinion. I
would, however, grant Shahrivar leave to amend his complaint to clarify what acts
or omissions the individual defendants undertook to effect the claimed cover-up.
3