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“Serious social unrest is coming in the next 5-10 years in this country as the police state gets dialed down.”

Customs & Border Protection Undercover Border Patrol Thugs Terrorize California Neighborhood Killing Valeria Monique Alvarado

Discussion in 'Incidents of Police Abuse, Misconduct, Negligence' started by M, Sep 30, 2012.

  1. M

    M Muckraker

    upload_2014-11-29_1-7-10.png
    Border Patrol Agent Justin Tackett

    upload_2014-11-29_14-26-25.png
    Border Patrol Agent Justin Tackett (KGTV)

    upload_2014-11-29_14-26-41.png
    Border Patrol Agent Justin Tackett (KFMB)​

    Update 29 Nov 2014: Some images (uppermost above) that appear to include Justin Craig Tackett have finally surfaced. These were taken by Roadblock Revelations blogger Terry Bressi on 30 April 2014 in the course of illegally harassing Mr. Bressi (a U.S. citizen) at a roadblock near near milepost 146.5 on SR86 in southern Arizona ... (more details here)

    ____________________​

    Fed Cops: Undercover Border Patrol Thugs Terrorize California Neighborhood, Killing Female Motorist Valeria Monique Alvarado, Mother of Five

    Valeria-Monique-Alvarado.jpg
    Valeria Monique Alvarado
    Mother of Five
    Border Patrol's Latest Murder Victim​

    When this story first broke on Friday, all the media outlets seemed to be holding to the Border Patrol’s line — that a woman had deliberately run down a Border Patrol agent and carried him for several hundred yards on the hood of his car before he drew his weapon and killed her in self-defense. Reports like Border Patrol officer kills woman who dragged him with her car (L.A. Times) and Border agent fatally shoots woman after alleged vehicular assault (KUSI) were typical.

    Like so many other escapades involving an agency which has generated an incredible 138 cases of corruption and over 2,000 cases of criminal misconduct in recent years, some cracks have quickly developed in the facade.
    Last edited: Nov 29, 2014
  2. nachtnebel

    nachtnebel Original Member

    nothing about this squares up yet. It'll be interesting to find out more.
  3. M

    M Muckraker

    If I try to assimilate a real picture from everything I've read, what quite possibly happened is that she saw a bunch of armed hoods (they were all undercover/no uniforms & didn't start pulling out their badges until after the shooting) in the street & hit the gas to get away before she was robbed or raped. Presented with that reality, I'd probably do the exact same thing.

    When police officers are operating out in the community, they should dress, look and act like police officers so that citizens have no doubt as to who they are. When they fail to properly look their part and start killing innocent citizens as a result, these pigs are no better than the (expletive deleted) they are trying to apprehend.

    Look at the riots/almost revolution that happened in Anaheim a couple months ago. People are reaching a breaking point with regard to the amount of wanton police violence that they will put with. We have a Second Amendment for a reason, and it isn't pheasant hunting.

    Opposing Views: Video: Border Patrol's Version of Valeria Alvarado Shooting is Contradicted by Witnesses

    On Saturday, Valeria's husband, Gilbert Alvarado, issued an angry call for justice: Whoever shot my wife, that guy whoever that is, that guy needs to get shot."

    ^ Anything that reduces the levels of DHS pond scum in our communities will be an improvement. Between CBP & TSA there are hundreds of cases of corruption and thousands of cases of criminal misconduct since DHS was organized.
    jtodd and Elizabeth Conley like this.
  4. Elizabeth Conley

    Elizabeth Conley Original Member

    I've got to admit that I have no idea what happened, but the official story does not make sense.
  5. nachtnebel

    nachtnebel Original Member

    I agree. no weapon no drugs no warrant, no reason for this woman to act like this (IF she did) other than fear for her life. the scum who shot her had no reason to walk toward her like that and execute her coup de grace.
  6. M

    M Muckraker

  7. M

    M Muckraker

  8. RB

    RB Founding Member

    The link in post #6 shows the front of the car. Sure looks to me as if something large impacted the hood/winshield area but I still think the event is unclear. I am not ready to accept CBP statements on face value given the recent history of the agency.

    I hope a fair investigation is carried out.
  9. M

    M Muckraker

    "something" = 9 bullets

    "fair" in California = CBP's tale is rubber stamped and the murderer's name is kept secret

    It's a corrupt, abusive system that covers its mistakes and abuses very well.
  10. M

    M Muckraker

    More information on the murder of Valeria Monique Alvarado ...

    She wasn't quite the saint her family painted her to be (on probation for a drug conviction last year). She was in the home where they went to look for the person they wanted to arrest, who wasn't there. They claim to have identified themselves as cops, but we've often seen how that works -- they don't and say they did. They also claim that the badges were visible on their belts. Sorry, but I don't look at belts for badges, and witness accounts outside seem to indicate that the badges were not visible until they pulled them out after the shooting.

    They had no cause to search, detain or harass her, yet they tried to do just that -- thugs in civvies -- apparently stepping in front of her moving car and then smashing her window to reach inside. Any intelligent person would want to get out of there.

    They should have these arrests performed by better trained police officers who know how to dress in uniforms.

    San Diego Union Tribune: Police: Woman shot by border agent tried to flee (Oct 2 2012)

    Alvarado was one of several people inside the apartment when the agents approached and identified themselves as law enforcement, Wedge said. They wore badges on their belts. At that point, Alvarado left the unit and walked toward her car. Agents guarding the perimeter of the apartment contacted her as she got into her Honda, and she struck one of them as she pulled away, police said. The agent told her she was under arrest for vehicular assault, while a second agent smashed the driver’s side window and tried to remove the keys.

    CBS 8: New details in Border Patrol shooting investigation (Oct 2 2012)

    Authorities disclosed Tuesday that a woman fatally shot by a Border Patrol agent last week was on probation for a 2011 narcotics conviction at the time of her death on a residential street in southwestern Chula Vista.


    There's a quite a more more in each article. I've barely scratched the surface with what I've quoted.
    Elizabeth Conley likes this.
  11. M

    M Muckraker

    Good article that's not just sucking up to the cops ...

    L.A. Times: Border Patrol agent's shooting of woman in car brings protests

    But others have provided a conflicting version of events.

    Ayanna Evans, 19, said the agent was standing in the middle of the street and fired when the car was backing up slowly away from him. Tachiquin looked frightened, Evans said, perhaps because she thought the plainclothes agent was an assailant.

    "She looked confused," Evans said. "She was backing up and he was going toward her, then he pulled out his gun and shot five times."
  12. M

    M Muckraker

    The Border Patrol's spin on this just raises more questions.

    They had an arrest warrant for someone who was not her and was not there. They apparently did not have a search warrant for the premises, which might or might not apply to anyone present.

    So why were they harassing and detaining her as she left? That seems to be to be an attempt at an unlawful arrest/detention, by thugs in civvies who probably didn't look like cops at all. She was a U.S. citizen who wanted to leave and go about her business, as was her right, and ended up dead.
    Elizabeth Conley and jtodd like this.
  13. Elizabeth Conley

    Elizabeth Conley Original Member



    Hmm. Sounds like she left because she was well within her rights to leave. It also sounds like these officers deliberately placed their bodies close to the car to make it hard for her to exercise her right to leave.

    Remember, these border thugs aren't police officers. Harassing this lady was uncalled for.
    jtodd likes this.
  14. jtodd

    jtodd Original Member

    The more I hear about this case, the more I am convinced that this is murder, and should be prosecuted as such.
  15. M

    M Muckraker

    Looks like this event was the catalyst that got the ACLU to post a significant piece on Border Patrol abuses this morning:

    CBP’s credibility is on the line: while the agency stays the course of silence its questionable use-of-force cases keep accumulating. Last weekend, in San Diego, an American citizen mother of five was shot dead by a plainclothes Border Patrol agent. The Border Patrol’s public reaction is that the agent “was carried several hundred yards [on the hood of the car] before he discharged his weapon through the windshield of the vehicle.” Multiple published witness accounts contradict this version of events; for example, “[w]itness Ashley Guilbeau told KMFB-TV that the plainclothes agent walked toward the front of the car shooting ‘about 12 times’ without identifying himself: ‘Without her even able to say a word, I didn’t hear anything, [he] just came across and just shot at the windshield many times.’”
  16. M

    M Muckraker

    Looks like things are about to go south in a major way for the Border Patrol in this case. The shooter has been fingered to a local human rights group (Alliance San Diego) and had a history of abusive & mendacious behavior for the Imperial County Sheriff's Dept., which had the good sense to fire him.

    Of course, when a thug with that background shows up at the Border Patrol, he fits right in. Those 138 cases of corruption and 2000+ cases of criminal misconduct haven't just materialized out of thin air.

    760 KFMB: Border agent accused in fatal shooting has history of misconduct

    An anonymous tipster revealed the name of the plain clothes agent this week to Alliance San Diego, a local human rights group. Court records show the agent has a history of serious misconduct in his previous job as an Imperial County deputy sheriff. News 8 tried to speak with the agent at his home in Chula Vista but no one answered the door. News 8 is not identifying him because he works as a plain clothes agent and publishing his name could put him and his job at risk. The 34-year-old, married agent is accused of opening fire on a vehicle in Chula Vista on September 28 during a U.S. Border Patrol sweep of an apartment in the 600 block of Moss St.​

    ...​

    The lawyer for Tachiquin-Alvarado's family told News 8 that the agent identified as the shooter had a history of misconduct when he worked as a deputy ten years ago. "If this person is the shooter, he has a history of insubordination, a history of writing false reports, a history of improperly seizing, arresting and detaining people," said attorney Eugene Iredale.​

    ...​

    News 8 has confirmed the person in question is, in fact, a federal agent. "(The name) came from an anonymous phone call and it came from an analysis of the appearance of a person in photographs taken by bystanders after the event," Iredale said.​

    Court records show the agent received several suspension and termination notices between 2001 and 2003, when he worked as a deputy in Imperial County. He resigned in 2003 and then filed a wrongful-termination lawsuit in Federal court.​

    The termination notices accused the then deputy of "unprofessional conduct, dishonesty, violation of or refusal to obey reasonable regulations, insubordination, violation of rules, incompetence, and failure to follow proper procedures of arrest, search, and seizure and treatment of persons in custody," the court records state.​

    On December 28, 2001, the then deputy arrested a Brawley resident and an altercation resulted. An investigation found that the deputy's "own actions instigated the incident" and that his actions "unnecessarily exposed himself and the Sheriff's Department to a citizen complaint or civil suit," the records said.

    On June 16, 2003, a man arrested a month earlier by the deputy filed a complaint alleging the deputy "‘acted inhumanely and endangered (his) life' by conducting an illegal search and placing him in a patrol vehicle with no air conditioning causing (him) to suffer from heat exposure," according to the records.

    On July 27, 2003, "Plaintiff conducted a traffic stop on (a man), searched his hotel room, and arrested him. The district attorney to whom the case was referred rejected the charges, citing that the '[Fourth Amendment] violations [are] almost too numerous to list,'" the court record continues.

    "This is a person who should never have been hired in the first place for a law enforcement job," said attorney Iredale, who plans to file civil action on behalf of Tachiquin-Alvarado's family.​

    ...​

    "Why won't they tell us the previous law enforcement record of the man who shot and killed her?" Iredale asked. "Instead of trying to find the truth, they're trying to make one side look bad, when you defame a dead person who can't even speak for themselves; and then hiding the identity, and the background of possible serious misconduct," he said.
    Elizabeth Conley likes this.
  17. M

    M Muckraker

    & the cops continue to protect the scum -- if this pig weren't a cop, they absolutely would not hesitate to publish his name. Of coure, if he weren't a cop, he'd be in jail.

    NBC San Diego: Alvarado Family Demands Name of Shooter, Police Deny Request

    A family’s mournful plea for the name of the U.S. Border Patrol agent who fatally shot a woman in South Bay on Sept. 28 was met with a statement from the Chula Vista Police Department that the investigating agency fears for the officer’s life and will not release his name at this time.

    “While we recognize that the names of law enforcement personnel involved in shootings are generally subject to disclosure, the law does provide an exception when there is concern for the officer's safety,” the statement read.

    The police department also asked that the media not release the agent’s name unless it is disclosed by the District Attorney’s office as part of a mandatory review, or as part of any civil action.

    “By putting his name out there, you are putting his life in danger,” Chula Vista Police Department Capt. Gary Wedge said Friday.

    Dude, I could care less what you think -- the public has a right to know this information.
    Last edited: Dec 25, 2013
    Elizabeth Conley and jtodd like this.
  18. M

    M Muckraker

    Took all of 5 minutes to find & another 5 to corroborate. The name of the killer-cop alluded to in the above 760 KFMB & NBC San Diego is:

    Justin Craig Tackett

    Just start reading his disciplinary record in this court decision -- it's just unbelievable that another police agency would hire this guy & put him back on the streets with another badge & gun.
    Tackett v. County of Imperial

    UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


    November 14, 2006

    JUSTIN TACKETT, PLAINTIFF,
    v.
    COUNTY OF IMPERIAL AND IMPERIAL COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS.



    The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
    ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
    Before the Court is Defendants County of Imperial and Imperial County Sheriff's Department's ("Defendants") Motion for Summary Judgment ("Motion") as to all claims in Plaintiff Justin Tackett's ("Plaintiff") Complaint. [Doc. No. 46.] Plaintiff has filed an Opposition to the Motion for Summary Judgment ("Opposition"), and Defendants have filed a Reply to the Opposition ("Reply"). [Doc. Nos. 60, 66.] Pursuant to Civil Local Rule 7.1(d)(1), the Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1) (2006). For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment as to all of Plaintiff's claims.
    Background
    The following facts are either stipulated, supported by affidavit or deposition testimony, uncontroverted or viewed in the light most favorable to Mr. Tackett, the nonmoving party. The Court excludes factual assertions that are immaterial or that are conclusions of law rather than statements of fact.
    In August of 1999, Defendant County of Imperial ("County") hired Plaintiff Justin Tackett as a corrections officer in the county jail. (See Tackett UMF at ¶ 1; Ex. 2, Tackett Dep. 10:1-7.) On January 24, 2000, Plaintiff was hired by Defendant Imperial County Sheriff's Department ("Department") as a Deputy Sheriff Recruit. (See Tackett UMF at ¶ 2; Defs.' Mem. Supp. Mot. Summ. J. at 2.) County and Department are governmental agencies doing business and employing agents and employees in the County of Imperial, California. (First Am. Compl. ("FAC") at 1-2.) Plaintiff graduated from the police academy in June of 2000. (See FAC at 5; Defs.' Mem. Supp. Mot. Summ. J. at 2.) Plaintiff then completed Department's field training program in September of 2000 and served as a bailiff in Court Services. (See Pl.'s Opp'n at 5; Tackett Dep. 10:1-7.) In December of 2000, Plaintiff was assigned to patrol duty. (See Tackett UMF at ¶ 4.)
    While under the supervision of Sgt. Manuel Avila, Plaintiff alleges that he first became aware of racial preferences within the workforce. (See Pl.'s Opp'n at 5.) Plaintiff, a Caucasian male, alleges that Hispanic candidates were "invariably selected" for special assignments to which he applied. (See Pl.'s Opp'n at 5.) During his training and patrol duty, Plaintiff was involved in four vehicle accidents. (See Pl.'s Opp'n at 5-6; Defs.' Mem. Supp. Mot. Summ. J. at 3-4.) Following the third incident, Plaintiff was suspended for two days on November 16, 2001. (See Pl.'s Opp'n at 6; Defs.' Mem. Supp. Mot. Summ. J. at 3; Ex. 7.) Plaintiff alleges that Chief Sharon Housouer changed her mind and reinstated the suspension after receiving a call from Plaintiff's attorney. (See Pl.'s Opp'n at 6.) On November 1, 2001, Plaintiff rolled his vehicle over while responding to a call, causing substantial damage to the vehicle. (See id.) Following a review by the Significant Events Review and a pre-disciplinary meeting, Plaintiff was suspended on October 18, 2002 for five days. (See Pl.'s Opp'n at 6; Exs. 8, 12, 13.)
    Plaintiff alleges that he was reprimanded harsher than Hispanic peers who have been involved in similar incidents. (See Pl.'s Opp'n at 6.)
    Plaintiff also alleges that in October of 2001 Defendants retaliated against him after making "the largest drug bust in the inland valley" because an individual connected to the drug bust was personal friends with and a "high profile, campaign contributor" to both the Sheriff and the District Attorney. (See FAC at 3.) Plaintiff states that the "questionable relationship of Sgt. [Joe] Nava and D.A. Gilbert Otero with Niaz Mohammed led to [a] failure to properly investigate the 'biggest' marijuana grow found in Imperial County. . . ." (See Pl.'s Opp'n at 11.) Plaintiff further states that the "only thanks Plaintiff got for this important lead was criticism and an ominous warning to keep quiet and 'leave it alone.' " (See id.)

    Plaintiff again faced disciplinary action following his arrest of Randall Lackey on December 28, 2001. Plaintiff responded to a request by the Brawley Police Department to investigate whether a vehicle parked at a residence was involved in an earlier hit and run. (See Pl.'s Opp'n at 6; Defs.' Mem. Supp. Mot. Summ. J. at 5.) Plaintiff's investigation resulted in an altercation with Mr. Lackey, the owner of the residence. Mr. Lackey was handcuffed and subsequently released pursuant to an order by Plaintiff's supervisor, Sgt. Myron King. In a Memorandum to Chief Housouer, Sgt. King stated that the incident was avoidable, that Plaintiff failed to follow orders to wait for Brawley Police to arrive, that Plaintiffs "own actions instigated the incident," and that "Deputy Tackett's actions unnecessarily exposed himself and the Sheriff's Department to a citizen complaint or civil suit." (See Ex. 14 at 363-64). An Internal Affairs investigation found that Plaintiff had "insufficient evidence to detain Mr. Lackey" and violated several of the Department's Rules of Conduct, including incompetence, unbecoming conduct, and failure to make an arrest in accordance with the law and department procedures. (Ex. 17 at 388-90.) Following a departmental investigation and pre-disciplinary hearing (see Ex. 19), Sheriff Harold Carter suspended Plaintiff for two days on April 5, 2003 (see Ex. 21 at 1). Plaintiff alleges that his actions were criticized because Mr. Lackey was "the brother-in-law of Sgt. King's dear friend and best man at his wedding, Tony Rohoutas, a well connected individual in Imperial County." (Pl.'s Opp'n at 7.) Plaintiff states that he "refused to look the other way on this matter and pressed the case to the District Attorney's office," and was "labeled as a deputy who would not go along with the corrupt program engaged in by County officials."
    Id. at 8.)
    In January of 2002, Plaintiff faced disciplinary action for his involvement in a probation search. (See Pl.'s Opp'n at 8.) An investigation found that Plaintiff had "willfully disobeyed a direct order from Sgt. Manuel Avila, and provided false information to Sgt. Delfino O. Matus during the course of Deputy Tackett's interview." (Ex. 24 at 841.) The investigation further found that "Sgt. Avila had ordered Deputy Tackett during the latter part of 2001, and January 2002, not to be conducting probation or parol searches." (Id.) The investigation ultimately found that Plaintiff violated several of the Department's Rules of Conduct, including insubordination and unbecoming conduct. (Id. at 843.) As a result, Plaintiff was issued two Notices of Intent to Terminate, but was later suspended for thirty days in lieu of termination.
    Exs. 25-27.)
    Plaintiff alleges that "t became clear that [he] was being targeted for refusing to go along with the corruption in the county." (Pl.'s Opp'n at 8.) Plaintiff states that, in February of 2002, he verbally complained of Sgt. Avila's continued favoritism toward the Hispanic deputies. See id.) Plaintiff states that on February 11, 2002, Sgt. Avila issued a memorandum to only him, forbidding him from making tracking stops in the Brawley area and from placing people in the back of his patrol car. (See id.) On March 4, 2002, Plaintiff filed a grievance for "continued harassment, discrimination, and retaliation for filing a previous grievance." (Ex. E.) In the grievance, Plaintiff also requested a transfer to "court division." (Id.) In March of 2002, Plaintiff was transferred back to court services. (See Pl.'s Opp'n at 9; Defs.' Mem. Supp. Mot. Summ. J. at 2.) However, Plaintiff alleges that Chief Housouer failed to investigate his grievance. (See Pl.'s Opp'n at 9.) The Department transferred Plaintiff back to patrol duty in March of 2003. (See Pl.'s Opp'n at 10; Defs.' Mem. Supp. Mot. Summ. J. at 2.)
    On May 22, 2003, Plaintiff was involved in the arrest of Reno Bertussi, a private citizen suspected of assault and theft of property. (See Pl.'s Opp'n at 11; Defs.' Mem. Supp. Mot. Summ. J. at 8.) On June 16, 2003, Mr. Bertussi filed a complaint against Plaintiff alleging that Plaintiff and Officer Bostic "acted inhumanely and endangered [his] life" by conducting an illegal search and placing him in a patrol vehicle with no air conditioning causing Mr. Bertussi to suffer from heat exposure. (Ex. 31 at 1-2.) Plaintiff alleges that the following day he learned that Mr. Bertussi was the brother-in-law of Hank Kuiper, a member of the Board of Supervisors, and that Mr. Kuiper asked that the charges against Mr. Bertussi be dropped. (See Pl.'s Opp'n at 11-12.) Plaintiff also alleges that, in a break from departmental policy, an Internal Affairs investigation was commenced while the charges against Mr. Bertussi were still pending. (Id.)
    On July 27, 2003, Plaintiff conducted a traffic stop on Ernesto Macias, searched his hotel room, and arrested him. (See Pl.'s Opp'n at 12.) The district attorney to whom the case was referred rejected the charges, citing that the "[Fourth Amendment] violations [are] almost too numerous to list." (Ex. 28.) Independent investigations were commenced into both the Bertussi and Macias incidents. (See Exs. 29, 33.) As a result of the two incidents, Plaintiff was issued two Notices of Termination, citing as causes for the proposed discipline: unprofessional conduct, dishonesty, violation of or refusal to obey reasonable regulations, insubordination, violation of rules, incompetence, and failure to follow proper procedures for arrest, search, and seizure and treatment of persons in custody. (See Exs. 30, 34.)
    Plaintiff alleges that after the Macias incident, he "realized that his life was in serious jeopardy." (Pl.'s Opp'n at 13.) Plaintiff further alleges that "deputies were advised not to provide Plaintiff with backup and were afraid to associate with him because they were on notice that they should avoid contact with Plaintiff or suffer from County's further animosity." (Id.) Plaintiff states that "[g]iven the statements made to him by other deputies and the clear perception within the Department, Plaintiff came to the unavoidable conclusion that he had to resign or else risk dying on the job." (Id.) On December 19, 2003, Plaintiff submitted a letter of resignation to Sheriff Harold Carter. (See Ex. J.)
    On December 9, 2004, Plaintiff served Defendants with a Complaint, and Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Doc. Nos. 1, 6.] The Court denied Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) and granted in part Defendants' Motion pursuant to Rule 12(b)(6). (See generally Order Re: Mot. Dismiss.) On March 22, 2005, Plaintiff served Defendants with a First Amended Complaint ("FAC"), alleging six causes of action: (1) race discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) violation of 42 U.S.C. Section 1983; (3) wrongful termination in violation of California Labor Code Section 1102.5; (4) retaliation in violation of public policy; (5) race discrimination in violation of the California Fair Employment and Housing Act ("FEHA"); and (6) intentional infliction of emotional distress ("IIED"). (FAC ¶ 45-91.)
    Legal Standard
    Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure on "all or any part" of a claim where there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See Celetox, 477 U.S. at 323-24. A fact is material when, under the governing substantive law, the fact might affect the outcome of the See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. When making its determination, the Court must view all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
    The party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. See id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60 (1970).
  19. M

    M Muckraker

    (continued)
    If the moving party meets the initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing there is a genuine issue for trial." Anderson, 477 U.S. at 256. "The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient." Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252); see also Matsushita, 475 U.S. at 586 (if the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment by merely demonstrating "that there is some metaphysical doubt as to the material facts"). It is insufficient for the party opposing summary judgment to "rest upon the mere allegations or denials of [his or her] pleading." Fed. R. Civ. P. 56(e). Rather, the party opposing summary judgment must "by [his or her] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P 56(e)). "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors , 809 F.2d 626, 630 (9th Cir. 1987). In addition, the Court is not obligated "to scour the records in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). "[T]he district court may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).
    "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita, 475 U.S. at 587 (citing First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)). Moreover, "[a] district court must enter summary judgment against a party who fails to make a showing sufficient to establish an essential element of a claim, even if genuine factual disputes exist regarding other elements of the claim." Cunningham v. City of Wenatchee, 214 F. Supp. 2d 1103, 1110 (E.D. Wash. 2002) (citing Celotex, 477 U.S. at 323-24.)
    Discussion

    Defendants assert that Plaintiff's claims under FEHA, Title VII, California Labor Code Section 1102.5, retaliation in violation of public policy, and IIED are time-barred under the relevant statute of limitations. (See Defs.' Mem. Supp. Mot. Summ. J. at 12-14.) Defendants further argue that Plaintiff has failed to include factual allegations in his tort claim that correspond with the facts alleged in Plaintiff's FAC with respect to the alleged infliction of emotional distress. (See id. at 13.) Additionally, Defendants also move for summary judgment as to all of Plaintiff's claims. (See id. at 14-25.) For the reasons set forth below, the Court FINDS that Plaintiff's claims under FEHA and Title VII are time-barred and GRANTS Defendants' Motion for Summary Judgment as to all of Plaintiff's claims.
    Procedural Bars to Plaintiff's Claims
    A. Timeliness of Claims under the California Torts Claims Act
    Defendants assert that Plaintiff's first cause of action (violation of California Labor Code Section 1102.5), second cause of action (retaliation in violation of public policy), and sixth cause of action (intentional infliction of emotional distress) are time barred under the California Torts Claims Act ("CTCA") for claims against a local government entity. (See Defs.' Mem. Supp. Mot. Summ. J. at 12.) According to the CTCA, a "claim [against a public entity] relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action." Cal. Gov't Code § 911.2 (West 2006). Furthermore, "nder . . . section 945.4, presentation of a timely claim is a condition precedent to the commencement of suit against the public entity." Munoz v. State of California, 39 Cal. Rptr. 2d 860, 864 (Cal. Ct. App. 1995); see also Cal. Gov't Code § 945.4 (West 2006). Here, Plaintiff filed a tort claim against the County of Imperial on June 16, 2004. (Ex. 36.) Accordingly, causes of action that accrued prior to December 16, 2003 would be time barred under Section 911.2.
    In Plaintiff's FAC, Plaintiff alleges that he was constructively terminated on December 15, 2003. (FAC at 6.) However, Plaintiff, in his Opposition, states that the December 15th date "is simply a typographical error in a pleading." (Pl.'s Opp'n at 14.) Plaintiff has also shown that his resignation letter was file stamped, signed, and dated on December 19, 2003. (Ex. 35.) Furthermore, Plaintiff, in his tort claim against the County, states that he was constructively terminated on December 19, 2003. (See Ex. 36.)
    While Plaintiff has not specifically alleged that any tortious actions occurred after December 16, 2003, it is "the actual termination of employment that starts the statute of limitations period running, not when the alleged intolerable conditions occurr[ed]" or "the date on which an employee is unequivocally informed his employment will be terminated." Colores v. Bd. of Trs., 105 Cal. App. 4th 1293, 1320 (2003) (citing Mullins v. Rockwell Int'l Corp., 936 P.2d 1246, 734 (Cal. 1997); Romano v. Rockwell Int'l, Inc., 926 P.2d 1114, 1116 (Cal. 1996)). Thus, "for the purposes of filing a tort claim for wrongful termination, the cause of action accrues when the employment is actually terminated, whether by the employer or the employee."
    . Therefore, Plaintiff's claim will have accrued on December 19, 2003, the date on which he resigned from the Department. However, the Court's decision only determines when the claim the arose, not whether the claim has any merit. For purposes of determining only whether a claim is time barred, the Court does not address the merits of the claim.
    Accordingly, the Court FINDS that Plaintiff's claims for violation of California Labor Code Section 1102.5, retaliation in violation of public policy, and IIED are not time-barred under the CTCA.
    B. Consistency of Pleadings with Tort Claim
    Defendants argue that Plaintiff has failed to include factual allegations in his tort claim that correspond with the facts alleged in Plaintiff's FAC dealing with emotional distress. (See Defs.' Mem. Supp. Mot. Summ. J. at 13.) Specifically, Defendants argue that "Plaintiff's sixth claim for relief for emotional distress is based entirely upon the allegation that Defendants instructed other deputies not to provide backup to Plaintiff and 'to stay away from him,' " and that Plaintiff's tort claim does not include such allegations. (Id.) According to Government Code Section 910, a claim shall include "the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted" and a "general description of the . . . injury, damage or loss incurred." Cal. Gov't Code § 910 (West 2006). If a suit against a public entity is ultimately filed, "[e]ach theory of recovery against the public entity must have been reflected in a timely claim" and "the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint." Munoz v. State of California, 33 Cal. App. 4th 1767, 1776 (1995) (citing Brownell v. Los Angeles Unified School Dist., 4 Cal. App. 4th 787, 793-94 (1992)). However, a claim "need not contain the detail and specificity required of a pleading, but need only fairly describe what the entity is alleged to have done." Stockett v. (expletive deleted)'n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004).

    Here, Plaintiff alleged in his tort claim that he was "subjected to false accusations, . . . numerous instances of discrimination, harassment, retaliation, [and] disparate treatment." (Ex. 36 at 1.) In addition, Plaintiff alleged that he "suffered past, present and future emotional distress." (Id. at 2.) Plaintiff did not specifically claim he was subjected to "intentional infliction of emotional distress." However, as previously stated by this Court, Plaintiff's Complaint merely elaborates or adds further detail to "a claim . . . predicated on the same fundamental actions or failures to act by the defendants." (See Order Denying Mot. Dismiss at 14 (quoting Stockett, 34 Cal. 4th at 447).)
    Accordingly, the Court FINDS that Plaintiff substantially complied with the requirements of the CTCA.
    C. Timeliness of Claims Under the California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964
    Defendants argue that Plaintiff's fourth cause of action (violation of FEHA) and fifth cause of action (violation of Title VII) are time barred pursuant to FEHA and Title VII, respectively. (See Defs.' Mem. Supp. Mot. Summ. J. at 13.) Defendants claim that Plaintiff cannot show that he was discriminated against within the allowed time to file a claim under FEHA or Title VII. (See id.) Pursuant to FEHA, "[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred. . . ." Cal. Gov't Code § 12960 (West 2006). Furthermore, "n a State having an entity authorized to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the [Equal Employment Opportunity Commission ("EEOC")] within 300 days of the [unlawful] employment practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (citing 42 U.S.C. § 2000e-5(e)(1) (2006)).
    Here, Plaintiff filed a claim with the California Department of Fair Employment and Housing ("DFEH") on or about September 13, 2004.*fn1 (See Ex. 37.) Presumably, Plaintiff did not receive administrative redress. Thus, pursuant to FEHA, unlawful employment practices occurring prior to September 13, 2003, would be time barred. In his DFEH claim, Plaintiff claims that the most recent discrimination took place on December 15, 2003. (See id.) Plaintiff stated that from December of 1999 and continuing he was harassed, forced to quit, denied promotion, and discriminated against. (See id.) However, Plaintiff does not list specific instances or acts of discrimination on the claim.
    Plaintiff also filed a Charge of Discrimination with the EEOC on September 20, 2004. Ex. 38.) Presumably, Plaintiff also did not receive redress from this charge. Pursuant to the timeliness requirements for filing an EEOC charge, unlawful employment practices occurring prior to November 25, 2003 would be time barred. In his EEOC charge, Plaintiff states that the earliest discrimination took place on December 26, 2003 and the latest on the same day. (See .) Plaintiff alleges that he "was discriminated against because of [his] race (White) and in retaliation for [his] participation as a witness for an individual opposing discrimination." (See .) Specifically, Plaintiff alleged the following discriminatory acts: on or about January 2000, his "terms and conditions of employment were different than for others"; on or about November 16, 2001, and on a continuing basis he was issued "six disciplinary actions that non-Whites were not subjected to the same adverse employment actions"; and on or about December 26, 2003, he "felt forced to resign [his] position because of discriminatory actions taken against [him]." (Id.)
    In his Opposition, Plaintiff argues that his claims survive under the Continuing Violation Doctrine. (See Pl.'s Opp'n at 13.) Plaintiff alleges that his "first verbal concerns were expressed back in 2001 after he noticed Sgt. Avila demonstrated preference for the Hispanic deputies."
    .) Plaintiff further alleges that he was unable to resolve the matter with Sgt. Avila and, as a result, filed formal written grievances in March of 2002 "along with several written memoranda to Chief Housouer throughout 2002." (Id.) Plaintiff alleges that "t was not until his safety was jeopardized that Plaintiff felt he had to resign on December 29, 2003, and then file with DFEH and EEOC." (Id.)
    In Nat'l R.R. Passenger Corp. v. Morgan, the Supreme Court invalidated the Court of Appeals for the Ninth Circuit's 'continuing violation' approach and held that "the statute precludes recovery for discrete acts of discrimination that occur outside the statutory time period." Morgan, 536 U.S. at 105. Before Morgan, the Ninth Circuit had permitted plaintiffs to sue on otherwise time-barred claims "so long as they either [were] 'sufficiently related' to incidents that [fell] within the statutory period or [were] part of a systematic policy or practice of discrimination that took place, at least in part, within the limitations period." Id. With respect to hostile work environment claims, the Court held that "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period." Id. Therefore, the Supreme Court limited its invalidation of the continuing violation approach to discrete actions of discrimination and retaliation, but allowed consideration of actions outside the statutory period that constitute a continuing hostile work environment. See id.
    Although Plaintiff has not made a specific hostile work environment claim under Title VII or FEHA, such a claim would also be time-barred. "In determining whether an actionable hostile work environment claim exists, [a court should] look to 'all the circumstances,' including 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' " Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Furthermore, in order to survive a motion for summary judgment, a plaintiff "must demonstrate that a genuine issue exists as to whether the violation continued into the relevant period of limitations." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998) (citing Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (indicating that the continuing violation doctrine "will render a complaint timely as to a course of conduct only if the complaint is timely as to the most recent occurrence").

    Here, Plaintiff has not provided factual allegations in his Complaint or Opposition that any discriminatory, retaliatory, or hostile acts occurred after September 13, 2003, or November 25, 2003-the respective statutory limitations date for Plaintiff's FEHA and Title VII claims. In fact, Defendants assert that Plaintiff was on administrative leave during this time, and Plaintiff has provided no evidence to the contrary. (See Defs.' Reply at 4 (citing Devoy Decl. ¶ 6).) Plaintiff also states that "Defendants' failure to provide backup with increasing regularity served as the final straw for Plaintiff." (Pl.'s Opp'n at 19.) Yet, Plaintiff fails to allege that he was ever threatened with the denial of backup or actually denied backup within the statutory time period. In sum, Plaintiff has failed to establish that any act contributing to a hostile environment occurred within the statutory time frame.
    Accordingly, the Court FINDS that Plaintiff's claims under FEHA and Title VII are time-barred under the relevant statutes of limitations.
    Race Discrimination Claim in Violation of Title VII and FEHA
    Defendants also move for summary judgment on Plaintiff's race discrimination claims in violation of FEHA and Title VII. (See Defs.' Mem. Supp. Mot. Summ. J. at 22.) Plaintiff's Complaint alleges that Plaintiff "noticed that he, as well as other Caucasian and Black deputies, were not provided preferential assignments given to Hispanic [d]eputies" and that "County approached several [d]eputies and requested that they falsify reports regarding Caucasian
    [d]eputies including [Plaintiff]." (FAC at 5.) Specifically, Plaintiff claims that "Manuel Avila, Ralph Cardova, Josie Heath, Charles Jernigan, Delfino Matus and Jesse Obeso as managing agents for County, and in carrying out their managerial duties, discriminated against [Plaintiff] on the basis of his race." (Id. at 12.) For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claims under both Title VII and FEHA.
    Title VII of the Civil Rights Act of 1964 provides a federal remedy against race-based employment discrimination.*fn2 See 42 U.S.C. § 2000e (2006). The California Fair Employment and Housing Act provides a similar remedy at the state level.*fn3 See Cal. Gov't Code § 12940 (West 2006). Federal and California courts alike have utilized the same framework for evaluating race discrimination claims under Title VII and FEHA. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (stating that courts may rely on federal Title VII decision in interpreting analogous parts of FEHA).
    In order to defeat a motion for summary judgment, a plaintiff in a Title VII case must first make out a prima facie case of race discrimination. See Washington v. Garrett,10 F.3d 1421, 1432 (9th Cir. 1993). To establish a prima facie case under Title VII, a plaintiff must show that "(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004); see also McDonnell Douglas v. Green, 411 U.S. 732, 802 (1973). If the plaintiff is able to establish a prima facie case, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the employer carries this burden, the plaintiff is afforded the opportunity to prove that the articulated reasons offered by the employer are pretextual. See id. at 253.
    Accordingly, in order to show a prima facie case of discrimination, "a plaintiff must offer evidence that 'give rise to an inference of unlawful discrimination.' " Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985), as amended, 784 F.2d 1407 (1986) (quoting Burdine, 450 U.S. at 253). The evidence may be either direct or circumstantial, and the amount that must be produced in order to create a prima facie case is "very little." Id. at 1009. Furthermore, "when a plaintiff has established a prima facie inference of disparate treatment through direct or circumstantial evidence of discriminatory intent, he will necessarily have raised a genuine issue of material fact with respect to the legitimacy or bona fides of the employer's articulated reason for its employment decision." Id.
    A. Prima Facie Case
  20. M

    M Muckraker

    (continued)
    Defendants seek summary judgment as to Plaintiff's Title VII and the FEHA race discrimination claims on the grounds that Plaintiff has not made out a prima facie case of discrimination. (See Defs.' Mem. Supp. Mot. Summ. J. at 23.) In his Opposition, Plaintiff states that he "reported his concerns to his supervisors regarding the preferential assignments given to the Hispanic deputies and the disparate disfavor afforded to deputies of Caucasian lineage, such as [Plaintiff]." (See Pl.'s Opp'n at 23 (citing Tackett UMF ¶¶ 11, 12, 18, 20-22).)

    Plaintiff has failed to establish, or dispute with material facts, that "similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Fonseca, 374 F.3d at 847. In support of his discrimination claim, Plaintiff asserts that he "began to notice race played a factor in Sgt. Avila's decisions, such as vacation requests or promotional opportunity, in that Hispanic deputies were shown preference." (Tackett UMF ¶ 12 (citing Tackett Dep. 358:12--359:2).) However, as Defendants correctly point out, the portion of the deposition cited by Plaintiff regards a dispute over denial of vacation time based on the seniority of another officer and fails to even mention race discrimination or a preference for Hispanic deputies. (See Tackett Dep. 358:12--359:14.) Plaintiff also asserts that "[f]ellow deputies informed Plaintiff that Avila [was] coming after him because he was a 'white deputy.' " (Tackett UMF ¶ 13 (citing Tackett Dep. 503:7-10).) Even assuming such statement does not constitute inadmissible hearsay, Plaintiff still fails to specify the manner in which Sgt. Avila was allegedly "coming after" him or an instance in which such action occurred.

    Plaintiff also asserts that "Sgt. Pompeyo Tabarez believes it is common knowledge at [the] Sheriff's department that people are treated differently because of their 'face.' No one actually told Sgt. Tabarez that Plaintiff Tackett was disciplined because of his race, but it was common knowledge. He believes that deputies are being treated differently because, in part, of their race." (Tackett UMF ¶¶ 14-15 (citing Stratton Decl. ¶¶ 17, 18, 30).) Although the Court FINDS Plaintiff's assertions to be inadmissible*fn4, even assuming Sgt. Tabarez actually made such statements, the statements are, nevertheless, conclusory and fail to provide any basis for how it is "common knowledge."

    Plaintiff also asserts that "similar situated employees were treated more favorably" and "t was a known fact that Hispanic officers were not subject to the same scrutiny." (See Pl.'s Opp'n at 24 (citing Tackett UMF ¶¶ 28, 29, 30, 32, 42, 52-56, 63, 64-69).) However, Plaintiff's support for his assertions almost uniformly fail to address the issue of discrimination on the basis of race.*fn5 Plaintiff asserts that he "communicated to others [that] he felt he was being retaliated against, harassed[, and] discriminated for some time." (Tackett UMF ¶ 32 (citing Tackett Dep. 272:19-22).) Yet, Plaintiff fails to specify how or why he "felt" he was being discriminated against. In addition, Plaintiff on several occasions either admitted or was uncertain whether race played a factor in the Department's hiring decisions towards Plaintiff, or failed to provide any factual foundation to support his claims.*fn6 (See Tackett Dep. 620:5-8, 635:2-5, 639:21-23, 644:1-3, 658:10-13.)

    Under the section of Plaintiff's Opposition regarding the intentional infliction of emotional distress claim, Plaintiff also asserts that "County applied an entirely different set of rules to Plaintiff as compared to his Hispanic peers." (Pl.'s Opp'n at 24 (citing Tackett UMF ¶¶ 27, 33-38, 47-51, 63).) Plaintiff asserts that discipline was issued disparately because Officers Matuse and Fannin were not disciplined for rolling their vehicles and Officers Toledano, Jernigan, De Leon, Avila, and Lowenthal were not disciplined for damage to their patrol cars, while Plaintiff received discipline for rolling his vehicle. (See Tackett UMF ¶¶ 27, 33.) However, Plaintiff fails to provide any evidence demonstrating whether or not the other officers were punished or the circumstances surrounding the alleged similar incidents, making it impossible to deduce whether Plaintiff was treated less favorably under similar circumstances. In support of his assertion, Plaintiff cites to his deposition where he states that he "believes Justine Matuse didn't get [disciplined] for crashing into a vehicle and totaling his vehicle." (See 644:1-3; 658:10-13.)

    Tackett UMF ¶ 27 (citing Tackett Dep. 496:14-25; Tackett Decl. ¶¶ 7-10*fn7 ).) However, Plaintiff has laid no factual foundation for this belief and has failed to demonstrate that the conditions of Officer Matuse's accident were similar to the conditions under which he was disciplined. Plaintiff also stated that he is "not sure if [Officer Fannin] ever did [receive discipline]." (Tackett Dep. 262:22-23.)

    In support for his disparate treatment claim, Plaintiff states that Mary Tackett, through her job as a payroll processor, was "aware that those deputies that got stuck in the sand and had to be towed out, did not suffer discipline" and that "deputies rolling cars as they reached for candy off the floorboard . . . never suffered discipline." (See UMF ¶¶ 36-37 (citing Mary Tackett Dep. 22:23-23:5, 23:15-22).) When asked how she knows that there was an incident where somebody rolled a car because they were trying to get candy and they were not disciplined, Ms. Tackett replied that she learned this through "casual conversations" with the Sheriff and others and could not remember when such conversations occurred. (See Mary Tackett Dep. 22:23-23:5.) Even assuming that Plaintiff's cited evidence does not constitute inadmissible hearsay, Plaintiff has still failed to demonstrate that other similarly situated employees were not disciplined for conduct occurring under conditions similar to the incidents for which Plaintiff was disciplined.

    Plaintiff has failed to establish, or dispute with material facts, that he was qualified for each position or that similarly situated individuals outside his protected class were treated more favorably. Plaintiff has also failed to show that the circumstances surrounding the alleged adverse employment actions suggest a discriminatory motive. Thus, Plaintiff has not met even his initial burden of proving a prima facie case of discrimination.

    Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's discrimination claim under both Title VII and FEHA.

    B. Retaliation

    While not specified in his complaint, Plaintiff alleges in his Opposition to Summary Judgment that "County's repercussions against Plaintiff following the expression of his concerns . . . constituted a violation of [FEHA and Title VII]." (See Pl.'s Opp'n at 23.) Similar to disparate treatment claims, the burden shifting analysis provided by McDonnell Douglas, as outlined above, also governs retaliation claims. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). In order to establish a prima facie case of retaliation, a plaintiff must show that

    (1) she engaged or was engaging in protected activity, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer's action. Id.; see also Brooks, 229 F.3d at 928. Additionally, "[c]ausation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decisions." Id. at 1376.

    Plaintiff has met the first prong of a prima facie case of retaliation by showing that he, in at least one instance, engaged in protected activity. Plaintiff alleges that he "verbally complained of Sgt. Avila's continued favoritism toward the Hispanic deputies." (See Pl.'s Opp'n at 8.) In support of this assertion, Plaintiff cites to his entire deposition. (See UMF ¶ 20 (citing Tackett Dep., vol. 1).) However, "when a party relies on deposition testimony in a summary judgment motion without citing to page and line numbers, the trial court may in its discretion exclude the evidence." Orr, 285 F.3d at 775. Since Plaintiff has relied on deposition testimony without citing to page and line numbers, the Court excludes this evidence. Additionally, as indicated above, several of Plaintiff's purported complaints attached as exhibits are unauthenticated and therefore inadmissible.*fn8 (See Exs. D, F, H, I.) However, on March 4, 2002, Plaintiff filed a grievance for "continued harassment, discrimination, and retaliation" with County. (See Ex. E.) The Court FINDS that this grievance report filed by Plaintiff with County constitutes protected activity. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000) (finding employee's complaints to employer concerning alleged sex discrimination to be protected activity).

    However, Plaintiff has failed to demonstrate that he was subjected to an adverse employment action. Plaintiff alleges that Sgt. Avila forbade him from making traffic stops within incorporated city limits and from placing individuals in the back of his patrol car. (See Pl.'s Opp'n at 8.) However, Plaintiff misstates the counseling memo that he cites as support for his assertion. In the counseling memo, Sgt. Avila states that he told Plaintiff "not to make[] traffic stops in the City of Brawley," because "Brawley has its own [p]olice [d]department" and Plaintiffs "primary duties are in the unincorporated areas of Imperial County." (See Ex. L; Ex. 1 to Avila Dep.) Sgt. Avila also indicated that Plaintiff was "not to place anyone in the back of your unit, unless they were under arrest." (See id.) Plaintiff was not forbidden to place individuals in the back of his patrol vehicle under all circumstances.

    Even assuming that the above action take by Sgt. Avila constitutes an adverse employment action, Plaintiff has still failed to satisfy the third prong--establishing a causal link. Plaintiff has not provided evidence indicating that Sgt. Avila knew of his grievance prior to the date on which the counseling memo was issued. In fact, Plaintiff states that "no one . . . ever talked to Sgt. Avila regarding Plaintiff's discrimination complaint." (See Pl.'s Opp'n at 23.) Therefore, Plaintiff is unable to establish a causal link through circumstantial evidence of Sgt. Avila's knowledge of the complaint. Plaintiff has also failed to provide a temporal connection indicating a retaliatory motive. In fact, Plaintiff's March 4, 2002, grievance was filed after the counseling memo was issued by Sgt. Avila. (See Exs. E, L.)

    Accordingly, the Court GRANTS summary judgment on Plaintiff's retaliation claim under both Title VII and FEHA.

    C. Failure to Take Remedial Measures

    Plaintiff also alleges that "County's failure to remediate these concerns . . . constituted a violation of [FEHA and Title VII]." (See Pl.'s Opp'n at 23.) However, a claim for failure to take remedial or preventative measures is dependent on a finding of discrimination. See Tritchler v. County of Lake, 358 F.3d 1150, 1154-55 (9th Cir. 2004); Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 289 (1998). Since Plaintiff has failed to set forth a genuine issue of material fact as to the alleged race discrimination claim, a claim of failure to prevent such discrimination cannot survive summary judgment. Therefore, Plaintiff's claim for failure to prevent discrimination meets a similar fate.

    Accordingly, the Court GRANTS summary judgment on Plaintiff's claim for failure to prevent discrimination under both Title VII and FEHA.

    Wrongful Termination in Violation of California Labor Code Section 1102.5 and Retaliation in Violation of Public Policy Defendants also move for summary judgment as to Plaintiff's claims alleging wrongful termination and retaliation in violation of California Labor Code Section 1102.5 and public policy. (See Defs.' Mem. Supp. Mot. Summ. J. at 14-19.) Defendants argue that Plaintiff has failed to set forth a prima facie case of wrongful termination or retaliation, and that Defendants have established legitimate, non-retaliatory reasons for disciplining Plaintiff. (See id.) Plaintiff, however, states that he engaged in several instances of protected activity and claims that the "retaliatory backlash which followed shortly after [Plaintiff's] reports included groundless suspensions, denied merit increases, unfounded write-ups, and false internal audits." (See id. at 8.) Plaintiff's claim for retaliation in violation of public policy is premised on the same allegations. (See id. at 8-10.) For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claim of wrongful termination and retaliation in violation of California Labor Code Section 1102.5 and public policy.

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