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Debeikes v. Hawaiian Airlines, Inc.

United States District Court, D. Hawaii

October 28, 2015

Matthew J. Debeikes, Plaintiff,
Hawaiian Airlines, Inc. and Association of Flight Attendants-CWA, AFL-CIO, Defendants

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[Copyrighted Material Omitted]

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          For Matthew J. Debeikes, Plaintiff: Shawn A. Luiz, LEAD ATTORNEY, Honolulu, HI.

         For Hawaiian Airlines, Inc., Defendant: Louise K.Y. Ing, LEAD ATTORNEY, John S. Rhee, Alston Hunt Floyd & Ing, Honolulu, HI.

         For 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, Washington, DC.

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         Alan C. Kay, Senior United States District Judge.

         For the 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.


         On 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.[1] Id. ¶ ¶ 11,

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         On 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.

         On 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.

         The 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." [2] Am. Compl. ¶ ¶ 8-14, ECF No. 80.

         On 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.[3] 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

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did not, however, proceed to file such a motion.

         On 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.

         On May 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, 96.

         On May 11, 2015, the Court issued a Minute Order observing that Defendants' MTD/MSJs were filed after the dispositive motions deadline had passed.[4] 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.

         The 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 Judgment." Id.

         Plaintiff's 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.

         Plaintiff 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. 130.[5]

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          The 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.


         As a 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).

         Additionally, 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 findings.[6]

         Plaintiff 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

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sexual advances or threats of reprisal. Id. at 4.

         On or 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. Id.

         Debeikes 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.

         On or 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.

         On 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 action.

Id. at 7.

         Hawaiian 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. Id.

         On 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.

         On 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

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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 the accused."

Id. at 8-9.

         Nonetheless, 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. Id.

         Trumble's 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.

         In the 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.

         Meanwhile, 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. Id.

         On 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.

         Additional declaration testimony submitted by AFA explains that a MEC grievance

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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.[7] Id. at 14 n.8; see also Decl. of Scott Henton (" Henton Decl." ) ¶ ¶ 5, 7, 9-11, ECF No. 95-1 (discussing grievance form differences).

         Trumble's 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.

         It is 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.

         Henton 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. ¶ 9.[8]

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          Notice 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.

         On May 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.

         On May 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.[9]

         On May 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[10] at which he signed the paperwork, Debeikes expressed some vacillation regarding retirement and asked whether there were alternative remedies besides termination. Id. at 17.

         Debeikes' declaration testimony is that a Hawaiian Airlines employee, Gail Kim-Moe (" Kim-Moe" ), [11] 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.[12] Plaintiff contends for

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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.

         Plaintiff 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.

         After 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.[13]

         On or 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.

         As 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

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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.

         As set 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 6.


         As 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).

          A 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).

          A 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).

          The 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, " [14] LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).

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          When 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 ...

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