United States District Court, D. Hawaii
Matthew J. Debeikes, Plaintiff,
Hawaiian Airlines, Inc. and Association of Flight Attendants-CWA, AFL-CIO, Defendants
[Copyrighted Material Omitted]
Matthew J. Debeikes, Plaintiff: Shawn A. Luiz, LEAD ATTORNEY,
Hawaiian Airlines, Inc., Defendant: Louise K.Y. Ing, LEAD
ATTORNEY, John S. Rhee, Alston Hunt Floyd & Ing, Honolulu,
Association of Flight Attendants, Defendant: Ashley K Ikeda,
Stephanie L. Marn, LEAD ATTORNEYS, Weinberg Roger &
Rosenfeld, Honolulu, HI; John H. Morse, LEAD ATTORNEY, PRO
HAC VICE, Association of Flight Attendants-CWA, AFL-CIO,
GRANTING SUMMARY JUDGMENT AS TO THE MOTIONS TO DISMISS OR IN
THE ALTERNATIVE FOR SUMMARY JUDGMENT OF DEFENDANTS HAWAIIAN
AIRLINES, INC. AND ASSOCIATION OF FLIGHT ATTENDANTS-CWA,
Kay, Senior United States District Judge.
reasons set forth below, the Court GRANTS summary judgment in
response to Defendant Hawaiian Airlines, Inc.'s Motion to
Dismiss, or in the Alternative, Grant Summary Judgment, ECF
No. 85, the Joinder thereto of Defendant Association of
Flight Attendants-CWA, AFL-CIO, ECF No. 90, Defendant
Association of Flight Attendants-CWA, AFL-CIO's Motion to
Dismiss or, in the Alternative, for Summary Judgment, ECF No.
94, and the Joinder thereto of Defendant Hawaiian Airlines,
Inc., ECF No. 99.
October 3, 2013, Plaintiff Matthew J. Debeikes ("
Debeikes" or " Plaintiff" ) filed a complaint
against Defendant Hawaiian Airlines, Inc. (" Hawaiian
Airlines" ) and Defendant Association of Flight
Attendants-CWA, AFL-CIO (" AFA" ) (collectively,
" Defendants" ). Compl., ECF No. 1. The Complaint
alleged that Defendants forced Plaintiff into early
retirement on May 29, 2013. Id. ¶ ¶ 9, 14,
ECF No. 1. Specifically, the Complaint contended that
Hawaiian Airlines violated the collective bargaining
agreement (" CBA" ) governing the terms and
conditions of Debeikes' employment with the company, and
that AFA breached its duty to fairly represent Plaintiff as
one of its bargaining unit members. Id. ¶ ¶ 11,
October 30, 2014, both Defendants moved for summary judgment.
AFA filed a Motion for Summary Judgment (" MSJ" )
as to Plaintiff's claim that it breached the union's
DFR, ECF No. 51, and Hawaiian Airlines filed a MSJ as to all
of Plaintiff's claims, ECF No. 54.
February 17, 2015, the Court granted Defendants' MSJs as
to all of Plaintiff's claims. ECF No. 75. In the Order,
the Court concluded that none of Plaintiff's claims, as
presented in the Complaint, was viable. First, the Court
found that Plaintiff's allegations of " constructive
discharge, " related to Hawaiian Airlines' "
refus[al] to abide by the CBA, " were preempted by his
breach of CBA claim. In addition, the Court found that the
claim of constructive discharge was unsupported on the
merits. See Order at 26-30, ECF No. 75. Second, the Court
concluded that it lacked jurisdiction to hear Plaintiff's
breach of CBA claim against Hawaiian Airlines, given that
Debeikes had retired and filed suit without exhausting the
CBA's grievance procedures. See id. at 39. Third, the
Court concluded that it must dismiss Plaintiff's breach
of DFR claim against AFA because his breach of CBA claim was
not viable, consistent with Bliesner v. Commc'n
Workers of Am., 464 F.3d 910, 913 (9th Cir. 2006). See
id. In the alternative, the Court also concluded that none of
Plaintiff's factual allegations stated a viable breach of
DFR claim. See id. at 40-63.
Order dismissed Plaintiff's claims without prejudice and
granted Debeikes 30-days' leave to file an Amended
Complaint. Id. at 64. On March 11, 2015, Debeikes
filed his First Amended Complaint (" Am. Compl." ),
again purporting to bring a hybrid § 301/fair
representation claim against AFA and Hawaiian Airlines while
also claiming " constructive discharge."
Am. Compl. ¶ ¶ 8-14, ECF No. 80.
March 25, 2015, Hawaiian Airlines filed its Motion to
Dismiss, or in the Alternative, Grant Summary Judgment
(" Hawaiian Airlines' MTD/MSJ" ), ECF No. 85,
accompanied by a Concise Statement of Facts (" Hawaiian
Airlines' CSF" ), ECF No. 86. AFA filed a Joinder
to Hawaiian Airlines' MTD/MSJ on March 31, 2015. ECF No.
90. On March 31, 2015, the parties also attended a Final
Pretrial Conference with Magistrate Judge Puglisi. As
memorialized in the conference minutes, the Court set a
continued trial date, and Plaintiff requested to re-open
discovery. He was expressly " advised to file [a] Motion
for Additional Discovery." Minutes of Conf. of Mar. 31,
2015, ECF No. 91. Plaintiff
did not, however, proceed to file such a motion.
April 14, 2015, AFA also filed its own Motion to Dismiss or,
in the Alternative, for Summary Judgment (" AFA's
MTD/MSJ" ), ECF No. 94, accompanied by a Concise
Statement of Facts (" AFA's CSF" ), ECF No. 95.
Hawaiian Airlines filed a Joinder to AFA's MTD/MSJ on May
7, 2015. ECF No. 99.
7, 2015, Plaintiff filed an Opposition to AFA's MTD/MSJ,
ECF No. 103, and a Concise Statement in Opposition to
AFA's MTD/MSJ (" Plf.'s CSF - AFA" ), ECF
No. 105. On the same day, Plaintiff also filed an Opposition
to Hawaiian Airlines' MTD/MSJ, ECF No. 102, and a Concise
Statement in Opposition to Hawaiian Airlines' MTD/MSJ
(" Plf.'s CSF - Hawaiian Airlines" ), ECF No.
104. Neither of Plaintiff's Oppositions raised any issue
related to discovery. On May 14, 2015, AFA filed a Reply
Memorandum in Support of MTD/MSJ (" AFA Reply" ),
ECF No. 108, and Hawaiian Airlines filed a Reply Memorandum
in Support of MTD/MSJ, ECF No. 110 (" Hawaiian Airlines
Reply" ), ECF No. 110. Hawaiian Airlines' MTD/MSJ
and AFA's MTD/MSJ were set for a consolidated hearing on
May 28, 2015. See Notices of Hearing on Motions, ECF Nos. 93,
11, 2015, the Court issued a Minute Order observing that
Defendants' MTD/MSJs were filed after the dispositive
motions deadline had passed. The parties were
therefore " encouraged to stipulate to an extension of
the dispositive motions deadline." If such an agreement
was not possible, the parties were " directed to seek a
conference regarding such extension with Judge Puglisi prior
to the hearing scheduled for May 28, 2015 on Defendants'
motions." ECF No. 107.
parties did not reach an agreement as to a stipulation to
extend the dispositive motions deadline. Instead, the parties
attended a telephonic status conference with Magistrate Judge
Puglisi on May 27, 2015, after which the Court issued an
order extending the dispositive motions deadline, nunc
pro tunc, to April 15, 2015. This allowed
Defendants' motions to be considered timely. Minutes of
Conf. of May 27, 2015, ECF No. 116. The Court's Minutes
also reflect that Plaintiff's counsel raised at the May
27, 2015 status conference that " he would like to
depose the declarants who submitted declarations in support
of the Motion to Dismiss or, in the Alternative, for Summary
counsel raised the same request the next day at the
Court's scheduled hearing on Defendants' summary
judgment motions. He made an oral motion to continue the
hearing and read the minutes of the May 27, 2015 conference
into the record. The Court granted Plaintiff's oral
motion to continue the hearing, in order to allow Plaintiff
time to file a written motion to reopen discovery. See
Minutes of Hearing of May 28, 2015, ECF No. 117.
filed his Motion to Reopen Discovery on June 16, 2015. ECF
No. 121. Magistrate Judge Puglisi denied Plaintiff's
motion in its entirety on July 17, 2015, for the reasons
explained in his Order Denying Plaintiff Matthew J.
Debeikes' Motion to Reopen Discovery. ECF No. 126.
Plaintiff appealed Magistrate Judge Puglisi's order on
July 27, 2015, ECF No. 127, and the Court set a hearing on
Plaintiff's appeal for September 3, 2015, ECF No.
Court denied Plaintiff's appeal on October 9, 2015, for
the reasons set forth at length in its Order Affirming the
Magistrate Judge's Order Denying Plaintiff Matthew J.
Debeikes' Motion to Reopen Discovery. ECF No. 139. The
Court subsequently heard oral arguments on Defendants'
MTD/MSJs on October 22, 2015.
preliminary matter, the Court will consider documents outside
the pleadings in resolving the instant motions. If matters
outside the pleadings are presented to and not excluded by
the Court on a motion to dismiss under Federal Rule of Civil
Procedure (" Rule" ) 12(b)(6), the motion is
treated as one for summary judgment under Rule 56, and "
[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the
motion." Fed.R.Civ.P. 12(d). Where, as here, a movant
expressly styles a motion as requesting dismissal or summary
judgment in the alternative, a nonmovant is considered to
have been " fairly apprised that the district court may
look beyond the pleadings." Morrow v. City of
Glendale, No. 92-56286, *2 (9th Cir. Mar. 17, 1994).
the Court will incorporate below the relevant factual
findings set forth in its prior Order. See, e.g.,
Illinois Nat'l Ins. Co., Inc. v. Nordic PLC Constr.,
Inc., Civ. No. 11-00515 SOM-KSC, 2013 WL 3975668 * 1 n.1
(D. Haw. July 31, 2013) (resolving summary judgment motion by
" incorporat[ing] the facts and procedural history set
forth in its prior orders by reference" and "
repeat[ing] only the most salient details" ); Wapato
Heritage, LLC v. U.S., No. CV-08-177-RHW, 2009 WL
3782869 * 1 (E.D. Wash. Nov. 6, 2009) (" The Court
incorporates by reference herein the facts set forth in its
prior summary judgment order." ). Facts determined on
the basis of the instant briefing are integrated below with
the Court's recitation of its relevant prior factual
was employed as a flight attendant by Hawaiian Airlines from
July 9, 1986 to May 29, 2013, during which time he was a
member of AFA. Order at 3, ECF No. 75. During the period of
Debeikes' employment, a CBA between AFA and Hawaiian
Airlines covered the terms and conditions of employment for
flight attendants. Hawaiian Airlines maintained a set of
" House Rules" during Debeikes' employment.
They provide that sexual harassment is unacceptable and may
result in discipline, including discharge. Id. The
company also maintained a Discrimination and Harassment-Free
Work Place Policy (the " Policy" ), a violation of
which could result in discipline, including discharge.
Id. at 3-4. The Policy prohibits sexual harassment
and provides specific examples of sexual harassment,
including: verbal harassment, verbal abuse, physical
harassment, visual harassment, and unwanted
sexual advances or threats of reprisal. Id. at 4.
about January 14, 2013, Plaintiff served as a flight
attendant on a flight from Maui to Seattle with Jane Doe 1
(" Doe 1" ). During that flight, Plaintiff engaged
her in what his declaration testimony describes as "
off-color banter." He also discussed with her certain
" graphic" online content. During the return flight
the next day, it is undisputed that Plaintiff attempted to
massage Doe 1's shoulder. Id. Plaintiff also
admits that he " may" have touched her again later
in the flight. Id. at 5. A few days later, flight
attendant Cindy Burt (" Burt" ), who was also on
the January 14, 2013 flight, told Plaintiff she was
displeased with his actions and statements toward Doe 1.
wrote an apology letter to Doe 1 and had it delivered to her
by another flight attendant. Plaintiff later met with his
supervisor, Susan Moss (" Moss" ), to describe his
conduct toward Doe 1, without disclosing names or dates. Moss
received further reports regarding the incident from Burt and
the In-Flight Manager for Hawaiian Airlines to whom Doe 1 had
recounted the incident in detail. Id.
about January 30, 2013, Hawaiian Airlines informed Debeikes
that it was holding him out of service with pay, pending an
investigation into whether Debeikes had violated the
company's House Rules and Policy. Id. The letter
informing Plaintiff of the investigation stated broadly that
the company had " received reports of potentially
improper conduct on a recent flight." Id. at 6.
Debeikes received a call from AFA representative Scott Henton
(" Henton" ) a few days later and discussed the
situation with him. Id.
March 8, 2013, Hawaiian Airlines personnel met with Plaintiff
for a fact-finding interview. Debeikes was accompanied by AFA
representatives Scott Akau (" Akau" ) and Henton,
who also met with Debeikes to discuss the investigation
during the hour prior to the meeting. At the beginning of the
meeting, Henton and Akau requested to examine all documents
pertaining to the investigation, citing the CBA's §
23.E.10.c. Id. CBA § 23.E.10.c states:
When a Flight Attendant attends a meeting that may result in
disciplinary action, the Flight Attendant and Association
member will be allowed adequate time during the meeting to
privately review all documents or reports relating to such
Id. at 7.
Airlines refused to turn over any investigatory documents. It
was the company's position that CBA § 23.E.10.c
applied only to disciplinary proceedings, and not to
fact-finding interviews. AFA disagreed, and Henton and Akau
instructed Debeikes not to answer questions. Having reached
an impasse over their conflicting interpretations of CBA
§ 23.E.10.c, the parties terminated the meeting.
March 29, 2013, by letter, Hawaiian Airlines indicated that
it wanted to complete its investigation and asked Debeikes if
he wanted to be interviewed again. The letter indicated that
if he did not participate, the investigation would be
concluded without his input. It also stated that Hawaiian
Airlines still refused to provide " all documents
related to and generated from this investigation, " and
it described the subject of the investigation broadly as
" allegations that you may have engaged in conduct
violating Company House Rules and the Discrimination and
Harassment-Free Work Place policy." Id. at 8.
April 4, 2013, Henton sent Debeikes a letter on behalf of
AFA, advising him of his rights and pointing out that the
company could not penalize him for choosing not to attend the
interview. The letter noted that AFA continued to disagree
with Hawaiian Airlines regarding whether its refusal
to produce documents violated the CBA terms. Id.
Henton's letter also stated:
" The decision to participate, or not, in the Company
'EEOC' investigation is yours, however I would advise
you that in my experience, in the vast majority of cases,
statements made by the accused, are used as evidence against
Id. at 8-9.
Debeikes agreed to meet with Hawaiian Airlines personnel
again on April 5, 2013. Debeikes was accompanied to the
interview by Henton and Akau, who also met with him before
the meeting. Id. It is the declaration testimony of
AFA's attorney, Jay Trumble (" Trumble" ), that
he also met with Debeikes before the meeting and repeatedly
told Debeikes not to attend. He indicates that he
told Plaintiff that AFA continued to disagree with Hawaiian
Airlines' position regarding whether CBA § 23.E.10.c
obligated the company to produce investigation documents at
that time, but that Plaintiff and AFA would be able to review
the documents if he waited for the disciplinary hearing.
declaration adds that Plaintiff asked him no questions
regarding AFA's position. Id. Instead, Plaintiff
stated that he wanted to " get it over with, "
because his anxiety was high and he had been held out of
service for weeks. Id. at 10-11. Plaintiff's own
declaration testimony confirms that Trumble warned him that
Hawaiian Airlines may have had another complainant come
forward, and that could be why the company did not want to
share its documents. Id. at 11.
course of the April 5, 2013 interview, Plaintiff made a
variety of admissions regarding the conduct that was the
subject of the company's investigation. He stated,
inter alia, that he attempted to give Doe 1 a
shoulder rub, may have touched her again thereafter, and made
sexually explicit comments to her. Plaintiff was also
interviewed at the meeting about conduct related to another
flight attendant, Jane Doe 2 (" Doe 2" ). Debeikes
was asked about allegations that he, inter alia,
rubbed her shoulders and made several specific comments of a
highly graphic sexual nature. Id. Debeikes did not
deny the accusations regarding Doe 2 and instead indicated
that he may have done it, but did not remember. Id.
at 12. Following the meeting, Hawaiian Airlines formally
concluded that Debeikes had made unwanted sexual comments to
and unwanted physical contact with Does 1 and 2. Id.
AFA and Hawaiian Airlines had continued to discuss their
disagreement regarding CBA § 23.E.10.c and the
company's obligation to provide investigatory documents.
Id. at 13. On April 3, 2013, AFA representatives
including Henton, Akau, and Trumble had met with Hawaiian
Airlines representatives to discuss the dispute. Even
earlier, on March 25, 2013, Trumble had sent an email to
Sharon Soper, AFA's Master Executive Council ("
MEC" ) President, regarding the disagreement.
April 12, 2013, one week after Debeikes' interview with
the company, AFA filed Grievance No. 46-99-02-07-13, entitled
" Grievance: MEC: EEOC Investigation Documents"
(the " Grievance" ). It challenged Hawaiian
Airlines' refusal to provide documents in what AFA
considered a violation of the CBA, specifically §
23.E.10.c. See Grievance, ECF No. 135. Trumble and
Henton's declarations explain that the Grievance was what
the union refers to as a " MEC grievance, " a form
of prospective class action grievance filed under CBA §
23.D on behalf of all members to challenge Hawaiian
Airlines' misinterpretation or misapplication of the CBA
terms. Order at 14, ECF No. 75.
declaration testimony submitted by AFA explains that a MEC
differs from a Local Executive Committee (" LEC" )
grievance under CBA § 23.C, which AFA could have filed
had Debeikes actually been disciplined. LEC grievances
challenge discipline issued to individuals and seek
retroactive remedies, including reinstatement and
backpay. Id. at 14 n.8; see also Decl.
of Scott Henton (" Henton Decl." ) ¶ ¶ 5,
7, 9-11, ECF No. 95-1 (discussing grievance form
declaration testimony is that, had Plaintiff gone through
with the disciplinary hearing, AFA would have filed an
individual LEC grievance on his behalf regarding the
company's denial of documents and any discipline he was
issued. Order at 15, ECF No. 75. Henton and Akau have also
attested that AFA would have filed such a grievance and taken
it to arbitration, had Debeikes gone to the hearing and been
disciplined. Henton Decl. ¶ 32, ECF No. 95-1; Decl. of
Scott Akau (" Akau Decl." ) ¶ 4, ECF No. 95-2.
also Henton's declaration testimony that AFA chose to
file a MEC grievance, rather than an individual LEC
grievance, in order to attain relief for both Honolulu and
Los Angeles-based flight attendants. Henton Decl. ¶
¶ 5-10, ECF No. 95-1. Specifically, the Grievance
requested that Hawaiian Airlines " [c]ease and desist
refusal to provide documentation in any and all Company
investigations" and " [r]everse the discipline and
reinstate and make whole any and all affected flight
attendants that were disciplined or discharged based upon the
investigations." Grievance, ECF No. 135.
attests that it is AFA's normal practice to file MEC
grievances, rather than individual LEC grievances, "
where a whole class of Flight Attendants are affected, both
in Honolulu, and in Los Angeles, " as a result of a CBA
dispute with Hawaiian Airlines. Henton Decl. ¶ 10, ECF
No. 95-1. This is evidently because filing an individual
" Non-Disciplinary Grievance" under CBA § 23.C
" would do nothing for the Los-Angeles based Flight
Attendants who could be adversely affected by Hawaiian
Airlines' interpretation" of its CBA obligations.
Id. ¶ ¶ 7-8. In addition, had it not filed
a MEC grievance, AFA may have had to file individualized LEC
grievances " for Mr. Debeikes . . . and then every other
Flight Attendant who could be denied  documents at the
investigatory interview stage." Id. ¶
of the Grievance was never provided to Plaintiff. Order at
15, ECF No. 75. Declarations submitted by AFA indicate that
it is not the union's policy or practice to provide
individual members with copies of MEC grievances or "
disclose files related to open, pending issues."
Id. at 14-15.
21, 2013, Hawaiian Airlines informed Debeikes by letter that
it had concluded its investigation and believed he had
violated the company's Policy and House Rules related to
sexual harassment and unprofessional conduct. A disciplinary
hearing was set for May 30, 2013. Id. at 15.
23, 2013, Plaintiff spoke by telephone with Akau and asked
him whether he could retire from Hawaiian Airlines before the
disciplinary hearing. Id. at 15-16. Akau did not
know but said he would find out. Id. at 16. The next
day, having had an AFA representative check with the company,
Akau told Plaintiff that retirement would be an option. Akau
also referred Plaintiff to Trumble, who advised Debeikes that
he probably would be terminated by Hawaiian Airlines. Trumble
further suggested that by retiring before the hearing,
Plaintiff could retain the benefits of continued flight
privileges with the company and an employment record free of
a harassment-related termination. Id.
29, 2013, Debeikes tendered a retirement letter to Hawaiian
Airlines. He also signed formal retirement paperwork with the
company, for an effective retirement date of May 30, 2013.
Id. During the meeting at which he signed the
paperwork, Debeikes expressed some vacillation regarding
retirement and asked whether there were alternative remedies
besides termination. Id. at 17.
declaration testimony is that a Hawaiian Airlines employee,
Gail Kim-Moe (" Kim-Moe" ),  said " I
would be terminated if I attended the May 30, 2013
disciplinary hearing." His declaration testimony is that
Kim-Moe's statement was made in the presence of
Debeikes' direct supervisor, Cheryl Price ("
Price" ), Senior Manager, In-Services, who " never
corrected Gail Kim-Moe that termination was imminent."
Declaration of Plaintiff Matthew J. Debeikes (" Debeikes
Decl." ) ¶ ¶ 1-2, ECF Nos. 104-1,
105-1. Plaintiff contends for
the first time in his Opposition declarations that he shared
Kim-Moe's comment with Henton. See Debeikes Decl. ¶
13, ECF Nos. 104-1, 105-1.
has not disputed that he was also reminded by Kim-Moe that he
did not have to retire and could instead proceed with the
hearing. Order at 17, ECF No. 75. He contends, however, that
" the company put me in a situation where if I chose to
attend the hearing and lost (as I was told I would before any
witness testified or document was received), I would [be]
unemployed with a sexual harassment on my record." He
also cites concerns that he would have had " no way to
visit my daughter" if he were terminated, because flight
benefits were not guaranteed to terminated (versus retired)
employees. Debeikes Decl. ¶ ¶ 7-8, ECF No. 105-1.
Plaintiff retired, he was no longer a member of AFA. Because
AFA may only file grievances on behalf of members, it could
not file grievances on Debeikes' behalf from his
retirement date forward. Order at 16 n.10, ECF No. 75.
Debeikes' declaration testimony is that he was "
unaware that signing the paperwork released AFA from any
obligation to represent me." Id. (citing
Debeikes Decl. ¶ 19, ECF No. 70-1). Regardless,
uncontroverted declaration testimony submitted by AFA
confirms that, to the recollection of AFA's employees and
based upon a review of the union's voicemail and email
records, Debeikes never communicated to AFA any " desire
to have a grievance filed" related to " Hawaiian
Airlines having 'predetermined' prior to the
disciplinary hearing that it would terminate his
employment." Henton Decl. ¶ ¶ 27-29, ECF No.
95-1; Akau Decl. ¶ 3, ECF No. 95-2.
about May 30, 2013, Plaintiff asked Hawaiian Airlines whether
he could rescind his retirement. Order at 18, ECF No. 75.
Plaintiff initially was told by a Hawaiian Airlines employee
that he could " un-retire, " although the company
would move forward with his disciplinary hearing. However,
Hawaiian Airlines ultimately conveyed to AFA that it was
unwilling to rescind Plaintiff's retirement, which in
turn was conveyed to Debeikes. Id.
noted above, AFA's class-based MEC grievance regarding
Hawaiian Airlines' production of investigation documents
had been filed on April 12, 2015, and it remained pending at
the time of Plaintiff's retirement. See Grievance, ECF
No. 135. Henton's declaration testimony is that Hawaiian
Airlines and AFA routinely extend deadlines applicable to
grievance and arbitration
proceedings, which take varying amounts of time to reach
resolution. Henton Decl. ¶ ¶ 19-21, ECF No. 95-1.
In this instance, the SBA issued its written Opinion and
Award on July 15, 2015, over two years after the Grievance
initially was filed. See Opinion and Award, ECF No. 132.
forth in that Opinion and Award, the SBA concluded that
" the Company violated Section 23.E.10.c with regard to
the cases of Doe I and Doe II" (Doe I evidently being
Plaintiff). However, the Opinion and Award limited its remedy
to ordering that " [t]he Company shall cease and desist
from such violations in future cases." Id. at
20. It observed that neither " Doe I" nor "
Doe II" filed disciplinary grievances and that "
Doe I" (Plaintiff) had already retired. Id. at
noted above, the Court will resolve the instant motions by
considering documents outside the pleadings. The standard of
review applicable to summary judgment motions under Rule 56
therefore applies. Fed.R.Civ.P. 12(d).
party is entitled to summary judgment on any claim or defense
if it can be shown " that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.'" Maxwell v. Cnty. of San
Diego, 697 F.3d 941, 947 (9th Cir. 2012) (quoting
Fed.R.Civ.P. 56(a)). A party asserting that a fact cannot be
or is genuinely disputed must support the assertion by either
" citing to particular parts of materials in the
record" or " showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact." Fed.R.Civ.P. 56(c)(1).
genuine issue of material fact exists if " a reasonable
jury could return a verdict for the nonmoving party."
United States v. Arango, 670 F.3d 988, 992 (9th Cir.
2012) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
Conversely, " [w]here 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." Scott
v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007). Summary judgment will be granted against
a party that fails to demonstrate facts sufficient to
establish " an element essential to that party's
case and on which that party will bear the burden of proof at
trial." Parth v. Pomona Valley Hosp. Med. Ctr.,
630 F.3d 794, 798-99 (9th Cir. 2010) (citation omitted).
movant has the burden of persuading the court as to the
absence of a genuine issue of material fact. Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010). If the movant
satisfies its burden, the nonmovant must present evidence of
a " genuine issue for trial, " Fed.R.Civ.P. 56(e),
that is " significantly probative or more than merely
colorable, "  LVRC Holdings LLC v.
Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation
evaluating a motion for summary judgment, the court must
" view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary
judgment motion." Scott, 550
U.S. at 378. The court may not, however, weigh conflicting
evidence or assess credibility. In re Barboza, 545
F.3d 702, 707 (9th Cir. 2008). If " reasonable minds
could differ as to the ...