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In Holm v. CalEnergy Co., 229 F.3d 1157, 2000 WL 975177 (9th Cir. 2000), plaintiff had a non-qualified option to purchase Calenergy common stock.
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CV-91-01017-KN
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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 6, 2000.
Appeal from the United States District Court for the Central District of California David V. Kenyon, District Judge, Presiding.
Before WALLACE, PREGERSON, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Brenda Grinston appeals the district court's orders granting partial summary judgment in favor of defendant Southern California Rapid Transit District ("RTD") with regard to all of Grinston's 42 U.S.C. § 1983 claims, and defendant Sharon Papa, former Chief of RTD, with regard to part of Grinston's 42 U.S.C. § 1983 claims. This appeal follows a 20 day jury trial that resulted in a verdict in favor of Papa with regard to all of the remaining claims including: (1) retaliation in violation of the First Amendment; (2) inadequate post-termination hearing in violation of the Due Process Clause; and (3) constructive discharge. We have jurisdiction pursuant to 29 U.S.C. § 1291, and we affirm.
Because the parties are familiar with the factual and procedural background of this case, we will not restate it here.
The district court did not err in granting defendants partial summary judgment with respect to Grinston's racial and sexual harassment claims. A cause of action under 42 U.S.C. § 1983 brought in California must be filed within one year of the date of the alleged incident. See McMillian v. Goleta Water Dist., 792 F.2d 1453, 1456 (9th Cir.1986). Grinston did not file the present lawsuit within the one year period nor did she demonstrate that a "continuing violation" had occurred. Accordingly, the district court correctly determined that Grinston's racial and sexual harassment claims were statutorily barred.
We also hold that the district court did not err in granting defendants partial summary judgment with respect to Grinston's "equal protection" claims. Grinston failed to demonstrate that the alleged racial and sexual harassment by two of her fellow officers deprived her of a constitutional right as required by Balistreri v.. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). Moreover, Grinston did not demonstrate that supervisory liability existed because Chief Papa was not "personally involved" in the alleged harassment and there was no "causal connection" between Papa and the alleged harassment. See MacKinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir.1995) (noting that a supervisor may be liable under § 1983 if there exists either personal involvement in the constitutional deprivation or a causal connection between the supervisor's wrongful conduct and the constitutional violation).
Additionally, the district court did not err in concluding that Chief Papa was entitled to qualified immunity. Chief Papa's conduct was "objectively reasonable as measured by reference to law clearly established at the time of the incident in question." Maraziti v. First Interstate Bank of California, 953 F.2d 520, 523 (9th Cir.1992). Chief Papa allowed an investigation of Grinston's allegations to continue. Chief Papa also called a meeting where she verbally reprimanded the officers that were accused of harassing Grinston. Later, Chief Papa issued written reprimands to these officers. Indeed, Grinston did not allege that her fellow officers ever harassed her after Chief Papa reprimanded them. Accordingly, Chief Papa was entitled to qualified immunity as determined by the district court. See id.
We also hold that the district court correctly granted RTD summary judgment with respect to all of Grinston's § 1983 claims. Grinston did not produce sufficient evidence to create a genuine issue of material fact that the alleged harassment she suffered was the product of an official policy, custom, or act by a final decisionmaker. Consequently, we agree with the district court's determination that holding RTD liable would be tantamount to respondeat superior liability, which is not permissible under § 1983.
Finally, reversal is not warranted of the district court's partial summary judgment on Grinston's pre-termination due process claim. The district court erred in applying Walker v. City of Berkeley, 951 F.2d 182, 183-84 (9th Cir.1991), to this claim. A post-termination hearing cannot cure a non-existent pre-termination hearing. Clements v. Airport Auth., 69 F.3d 321, 331-32 (9th Cir.1995). However, we conclude that the court's error in dismissing Grinston's pre-termination due process claim was harmless. See Fed.R.Civ.P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."). Grinston waived her right to a pre-termination hearing in a letter dater October 2, 1990. While there was a question of material fact at the time of summary judgment as to whether that waiver was valid in light of Grinston's perception that Chief Papa was biased, see Bignall v. North Idaho College, 538 F.2d 243, 247 (9th Cir.1976) (holding one can only waive an adequate hearing, which requires a non-biased decisionmaker), at trial the jury found Chief Papa to be an impartial hearing officer. Therefore, we hold that Grinston's waiver was valid and that the district court's error in entering the partial summary judgment was harmless.
AFFIRMED.