Opinion
No. CV-02-1531-PHX-SRB.
August 22, 2006
ORDER
At issue is Defendant Maricopa County Community College District's ("Defendant" or "MCCCD") Motion for Summary Judgment (Doc. 114), Defendant's Motion to Strike Plaintiff's Untimely Objection to Defendant's Proffer of Undisputed Facts and Exhibits and Documents in Support of Response to Motion for Summary Judgment (Doc. 122) and Plaintiff Rebecca E. Kastl's Motion to Extend Filing Deadline (Doc. 126).
The following facts are undisputed except where noted.
Plaintiff was hired by Defendant as an adjunct faculty member in May 2000 to teach a computer course beginning in August 2000. At the time she was hired, Plaintiff identified herself as Steven Robert Kastl and indicated on an employee data form that she was a male. In August 2000, Plaintiff was diagnosed with gender dysphoria, or Gender Identity Disorder ("GID"). That summer Plaintiff began the process of "gender transition" from a male identity to a female identity. The transition process included taking female hormones to develop a female physical appearance and Androcur, which blocks the production of testosterone.
GID is defined as "the desire to be, or the insistence that one is, of the other sex," combined with "persistent discomfort about one's assigned sex or a sense of inappropriateness in the gender role of that sex." (Def.'s Separate Statement of Undisputed Facts ("DSOF") ¶ 4 (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision § 302.9 (2000).)
Plaintiff was re-hired in the Fall of 2000 to teach three courses during the Spring 2001 semester. "From approximately August 2000 until the spring [semester] of 2001, Plaintiff presented as a male at MCCCD" and "dressed as a male, went by the name 'Steven,' and used the men's restroom." (DSOF ¶ 23, Ex. 1, Deposition of Rebecca Kastl ("Kastl Dep.") at 172:4-14, 200:25-201:1, 253:12-16.)
On March 1, 2001, Plaintiff legally changed her name from Steven Robert Kastl to Rebecca Elizabeth Kastl and began presenting herself full time as a female named "Rebecca." Also in March 2001, Plaintiff changed the sex designation on her Arizona driver's license from male to female. To change her license, Plaintiff filled out a form indicating the changes she wanted to make to her name and sex designation and provided the Arizona Motor Vehicle Division ("MVD") with a letter from her physician stating that Plaintiff had been "functionally living as a female." (DSOF ¶¶ 11-12, Ex. 6.) In April 2001 Plaintiff filled out a second employee data form changing her name to Rebecca E. Kastl and indicating that she was a female.
Plaintiff was not required to present any proof of biological sex or sex reassignment to legally change her name.
"Between March 2001 and July 2002, Plaintiff underwent several surgical procedures to develop a more feminine appearance, including breast augmentation, rhinoplasty, brow reconstruction, and genioplasty (chin augmentation)." (DSOF ¶ 15, Kastl Dep. at 25:19-24, 177:6-24.) In July 2003, Plaintiff had sex reassignment surgery, including a vaginoplasty and labiaplasty to develop the appearance of female genitalia. In March 2005, Plaintiff legally changed her birth certificate to reflect her new name and female sex.
Plaintiff was hired again by Defendant to teach one course in the Summer and Fall 2001 semesters. In October 2001, Defendant received complaints from some students that a man was using the women's restroom. The Division Chair of the Instructional Computing Department, Betty Vickrey, told Plaintiff "that she could not use the women's restroom until she provided proof that she had completed sex reassignment surgery." (DSOF ¶ 36.) Plaintiff "offered her driver's license as proof of her gender" but "did not provide proof that she had completed sex reassignment surgery" because it had not yet occurred. (DSOF ¶ 37.) Defendant contends that "Plaintiff was not asked to provide any information about or proof of her genitalia" and that "MCCCD did not specify any kind or form of proof that Plaintiff had completed sex reassignment surgery." (DSOF ¶ 36; Kastl Dep. at 212:6-11, 213:9-16, 234:3-12, 237:2-4.) Vickrey informed Plaintiff on December 5, 2001 that her contract with Defendant would not be renewed for the following semester because Defendant's full-time faculty had filled the schedule.
Plaintiff filed suit against Defendant in August 2002. Her amended Complaint alleges that Defendant's requirement "that she use men's restroom facilities, and its subsequent termination of her employment for failing to work under such conditions, amounts to a constructive discharge on the basis of sex. . . ." (Second Am. Compl. ("SAC") ¶ 32.) Plaintiff alleged that she is "biologically female, determined in accordance with the portion of her brain that determines gender identity, her overall physiology, and as confirmed by two (2) PhD psychologists and at least one medical doctor." (SAC ¶ 54(A).) The Court dismissed one count of the Amended Complaint brought under the Americans with Disabilities Act and portions of Plaintiff's 42 U.S.C. § 1983 claim. The three remaining claims allege violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), Title IX of the Civil Rights Act of 1991, 20 U.S.C. §§ 1681 et seq. ("Title IX"), and § 1983 for alleged violations of Plaintiff's right to privacy, equal protection and freedom of speech.
The Title IX claim apparently derives from Plaintiff's allegation that she was also taking classes at MCCCD in addition to teaching.
Defendant filed the instant Motion for Summary Judgment and Statement of Undisputed Facts on February 21, 2006. The Court granted the parties' stipulation to extend the deadline for Plaintiff to file her Response to the motion. Plaintiff filed her Response on the April 24, 2006 deadline, but two days later she filed two additional pleadings including objections to six of Defendant's forty-four statements of fact and a notice of filing six exhibits in support of her Response to Defendant's Motion for Summary Judgment.
On May 12, 2006, Defendant filed a Motion to Strike the two additional pleadings and attached exhibits as untimely. Plaintiff then filed a Motion to Extend the Filing Deadline and a Response to the Motion to Strike on May 26, 2006, claiming that her untimeliness was due to excusable neglect. The Court has previously issued a warning to Plaintiff that "untimely filings will not be considered in the future." (Order dated Jan. 7, 2004 (Doc. 37).)
II. LEGAL STANDARDS AND ANALYSIS
A. Motion to Strike and Motion for Extension of Time
Federal Rule of Civil Procedure 6(b)(2) provides that the court may enlarge the specified time period for an act "upon motion made after the expiration of the specified period . . . where the failure to act was the result of excusable neglect." Since it is a rule of general application, courts are given broad discretion in granting or denying extensions. See, e.g., Rutledge v. Elec. Hose Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975).
The determination of excusable neglect "is an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). Generally, the court will consider several factors, including "the danger of prejudice to the [other party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 (9th Cir. 1996) (quoting Pioneer, 507 U.S. at 395).
Plaintiff contends that her untimely filings were due to excusable neglect, specifically, that her lawyer's spouse required an emergency appendectomy on April 3, 2006 and because the lawyer was also "recuperating from her own extended illness." (Pl.'s Resp. in Opp'n to Def.'s Mot. to Strike ("Pl.'s Opp'n") at 2-3.) Plaintiff says the "gravity" and "unforeseeable" nature of the situation created a reasonable basis for missing the deadline. (Pl.'s Opp'n at 3.) The Court notes that, although the surgery may have been unexpected, it took place twenty-one days before the April 24, 2006 deadline for filing a Response, leaving time for Plaintiff to seek leave of the Court or a stipulation from Defendant to extend the deadline. In fact, Plaintiff admits that she considered requesting a stipulated extension but chose not to. (Pl.'s Opp'n at 2, n. 2.) Instead, Plaintiff decided to file the pleadings late, and only filed a motion for an extension after Defendant moved to strike the pleadings, nearly a month later.
There is also a question about whether Plaintiff's omission was in good faith given that Plaintiff has missed other deadlines in the course of this litigation and the fact that the Court told Plaintiff in 2004 that it will not consider any more untimely submissions from her. In the first motion for extension, granted by the Court, Plaintiff's lawyer claimed that the missed deadline was due to excusable neglect because of her spouse's developing health conditions and because she misread the rules for when her pleading was due. (Pl.'s Mot. for Ext. of Time to Resp. to Def.'s Mot. for a More Definite Statement (March 11, 2003) (Doc. 10).) In the second motion for extension, Counsel claimed that her increased workload prevented her from filing her Amended Complaint on time. (Pl.'s Mot. for Ext. of Time to File her Amended Compl. (July 26, 2003) (Doc. 19).)
The Court denied the Motion as moot because Plaintiff's amended Complaint was stricken for not complying with the Court's Order and Federal Rule of Civil Procedure 8 (Doc. 24).
Although Counsel may be going through a rough time in both her personal and professional life, that is no excuse for not taking care of her professional responsibilities in a timely manner. Most attorneys face great pressure from "extenuating" circumstances but are forced to meet the deadlines set by the courts or the rules of procedure. See Pioneer, 507 U.S. at 398 ("In assessing the culpability of respondents' counsel, we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date."). It is unfair to require Defendant to comply with the rules but not hold Plaintiff to the same standard.
Plaintiff contends that Defendant's Reply Memorandum and Supplemental Statement of Undisputed Facts were filed three days late and should likewise be stricken. (Pl.'s Opp'n. at 3.) Plaintiff is mistaken because Federal Rule of Civil Procedure 6(e) provides three days mailing time when service is delivered through electronic means, as it was in this case. Therefore, Defendant filed its Reply Memorandum in a timely fashion.
Finally, the Court's January 7, 2004 Order warned Plaintiff that no more untimely filings would be accepted. Therefore, Defendant's Motion to Strike Plaintiff's late-filed pleadings is granted and Plaintiff's Motion for Extension of Time is denied.
B. Motion for Summary Judgment
Summary judgment is appropriately granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to show an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the Court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255.
1. Title VII and Title IX
Title VII prohibits employment discrimination based on any of its enumerated grounds: race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a)(1). Title IX prohibits discrimination on the basis of sex under any educational program receiving federal financial assistance. 20 U.S.C. § 1681. The same standards apply to discrimination claims brought under Title IX as to those brought under Title VII. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000).
A plaintiff alleging discrimination under Title VII may proceed either under a theory of disparate treatment or disparate impact. See, e.g., Gerdom v. Cont'l Airlines, 692 F.2d 602, 604-05 n. 2 (9th Cir. 1982). The disparate treatment theory is appropriately employed, in cases such as this one, where an aggrieved employee claims that he or she was intentionally treated less favorably than others because of race, color, religion, sex, or national origin. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977) ; Gerdom, 692 F.2d at 612-13.
Two methods of establishing a prima facie case of disparate treatment under Title VII are recognized in the Ninth Circuit. First, a plaintiff may establish her case by submitting direct evidence of discriminatory intent. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citations omitted). Second, a plaintiff may establish a prima facie case by showing she is entitled to a presumption of discrimination arising from factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (discussing factors leading to establishment of prima facie case and presumption of discrimination). The Ninth Circuit has held that a Plaintiff alleging disparate treatment based on sex establishes a prima facie case under McDonnell Douglas by showing: "(1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) similarly situated men were treated more favorably, or her position was filled by a man." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998); McDonnell Douglas, 411 U.S. at 802.
A plaintiff proceeding under McDonnell Douglas is subject to a burden shifting analysis. McDonnell Douglas, 411 U.S. at 802-04. First, the plaintiff must establish a prima facie case of discrimination. Id. at 802. If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant, who must articulate some legitimate, non-discriminatory reasons for the adverse action. Id. If the defendant bears its burden, the production burden then shifts back to the plaintiff to show the reasons offered by the defendant were not the true reasons but were a pretext for discrimination. Id. at 803; Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); DeHorney v. Bank of Am. Natl. Trust Sav. Assoc., 879 F.2d 459, 467 (9th Cir. 1989). The plaintiff retains the burden of persuasion at all times. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Burdine, 450 U.S. at 253.
When the nonmoving party has the burden of proof, "the moving party need only point out 'that there is an absence of evidence to support the nonmoving party's case.'" Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex, 477 U.S. at 325). Under Rule 56(e), once the moving party carries its initial burden and has supported its motion by affidavit or otherwise, the adverse party "may not rest upon the mere allegations or denials of the adverse party's pleading," but must provide affidavits or other sources of evidence that "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 323-24 ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . ."); Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1103 (9th Cir. 2000) ("If . . . a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense."). "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e).
Defendant argues that Plaintiff's claims under Title VII and Title IX fail because she cannot "prove her allegation that she is a biological female" i.e., a member of a protected class, the first element of a prima facie case. (Def.'s Mot. for Summ. J. ("Def.'s MSJ") at 9.) Defendant contends that "[b]ased on the standards of commonly accepted medical science, an individual's biological sex is determined by three criteria: (1) phenotypic characteristics; (2) endogenous hormonal characteristics; and (3) chromosomal characteristics." (DSOF ¶ 44; Ex. 4, Declaration of Christopher Cunniff, M.D. ("Cunniff Decl."), ¶ 5; Ex. 2, Deposition of Christine Petrous Grubb, PhD ("Grubb Dep.") at 67:22-68:13.) Defendant argues that "[a]t all times relevant to her Second Amended Complaint, Plaintiff did not possess the phenotypic characteristics, or internal and external genitalia, of a biological female," that she was "designated as a male at birth based upon a genital exam" and that prior to her sex reassignment surgery in March 2003, Plaintiff had "normal adult male genitalia, including a penis and testicles." (Def.'s MSJ at 9; DSOF ¶¶ 1, 17.)
As evidence, Defendant cites to the deposition of Plaintiff's physician, Dr. Kenneth Fisher, who examined Plaintiff in August 2000, and who testified that his examination notes indicate that "Steven had male genitalia, that his testicles were bilaterally descended and there was no abnormality. . . . Rebecca had every indication of being a biological genetic male." (DSOF ¶ 17, Ex. 3, Deposition of Kenneth Mark Fisher, M.D. ("Fisher Dep.") at 21:16-22:4.) Dr. Fisher testified further that Plaintiff "will never make her own female hormones" because "she doesn't have any ovaries." (Fisher Dep. at 32:19-33:10.) Defendant's expert, Dr. Cunniff, stated in his declaration that Plaintiff's chromosomal analysis establishes that her "chromosomal complement is 46, XY, and her chromosomal sex is male." (DSOF ¶ 8, Cunniff Decl., ¶ 6.)
Defendant also points to Plaintiff's own deposition testimony in which she stated that prior to her sex reassignment surgery in 2003 she had a penis and testicles and that her body does not naturally produce female hormones. (DSOF ¶¶ 17, 7; Kastl Dep. at 104:6-10, 135:17-19.) Plaintiff also testified that chromosomes are indicative of biological sex, although she does not have the specialized medical training to determine her own biological sex. (DSOF ¶¶ 8, 9; Kastl Dep. at 273:18-274:1, 44:17-45:11.) Defendant also points to the fact that, although Plaintiff alleged in her Complaint that in February 2001 she was "determined to be biologically female by her personal physician" (SAC ¶ 14), Dr. Fisher's letter to the MVD in March 2001 "did not identify Plaintiff as a biological female, but indicated only that she had been 'functionally living as a female.' Moreover, Dr. Fisher's letter referred to Plaintiff in the masculine pronoun and indicated that her 'gender change' would occur in the future." (DSOF ¶ 12, Ex. 6 ("Fisher Letter"); Kastl Dep. at 185:24-187:15.)
Plaintiff disputes the opinion of Dr. Cuniff that there are three commonly-accepted factors for determining one's biological sex and argues that Dr. Cuniff's opinion "is not the opinion of the medical community at large." (Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Resp.") at 3.) However, Plaintiff has failed to properly present evidence supporting her theory that there are other determinants of biological sex or which, if any, of those determinants applies to Plaintiff. Plaintiff argues over several pages what she says is "the accepted theory of the scientific community regarding factors to be considered in determining one's sex." (Pl.'s Resp. at 6-10.) The only supporting documentation of that theory, though, are the exhibits that Plaintiff filed late and the Court will not consider.
Even if Plaintiff had filed the exhibits on time and the Court did consider them, they are inadmissible as hearsay. If Plaintiff were attempting to admit these exhibits as exceptions to the hearsay prohibition, say, for example, as learned treatises under Federal Rule of Evidence 803(18), then those publications could only be admitted if they are "established as a reliable authority by the testimony or admission of the [expert] witness or by other expert testimony or by judicial notice." Plaintiff submitted nothing establishing these exhibits as reliable authority.
Even if the Court did not strike Plaintiff's exhibits, and even if she did establish they are reliable authority, she never states how any of the information in the exhibits applies to her, thereby creating a genuine issue of material fact about whether Plaintiff was a biological female and a member of protected class when she was employed by Defendant. Moreover, Plaintiff failed to disclose any experts by the close of discovery and she has not offered any expert testimony that would assist the trier of fact in determining whether Plaintiff was a biological female during the relevant time, an issue that could not be resolved in this case without expert testimony.
Finally, while Plaintiff argues that "Defendant has failed to show that Plaintiff is not biologically female," (Pl.'s Resp. at 8) it is Plaintiff who has the burden of establishing a prima facie of discrimination, Reeves, 530 U.S. at 143, and producing evidence to rebut Defendant's evidence. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 323-24. Plaintiff is not challenging Defendant's policy of segregating its restrooms on the basis of sex. (DSOF ¶ 43; Kastl Dep. at 154:18-23.) Plaintiff does not dispute that she initially presented as a male when she began working for Defendant. (DSOF ¶ 20; Kastl Dep. at 168:7-170:6; Ex. 7.) Plaintiff is the one alleging that she was diagnosed a biological female in February 2001; yet Plaintiff has presented no evidence of this diagnosis. Plaintiff has failed to meet her burden of establishing a prima facie case of discrimination because she has provided no evidence that she was a biological female and member of a protected class while she was employed by Defendant. Therefore, Defendant's Motion for Summary Judgment as to Plaintiff's Title VII and Title IX claims is granted.
2. 42 U.S.C. § 1983 42 U.S.C. § 1983 provides a private right of action against a person who: (1) acts "under color of state law"; and (2) "deprives another of rights guaranteed by the Constitution" or a federal statute. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no dispute in this case that Defendant acted under color of state law. The disputes concerns whether Plaintiff's constitutional or statutory rights were violated.
a. Right to Privacy
A person's right to privacy guaranteed by the Constitution is "limited to those [rights] which are 'fundamental' or 'implicit in the concept of ordered liberty'. . . ." Paul v. Davis, 424 U.S. 693, 713 (1976) (citation omitted). "Individuals have a constitutionally protected interest in avoiding 'disclosure of personal matters,' including medical information." Tucson Woman's Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) (citing Whalen v. Roe, 429 U.S. 589, 599 (1977)). However, the right to informational privacy "'is a conditional right which may be infringed upon a showing of proper governmental interest.'" Eden, 379 F.3d at 551 (quoting Planned Parenthood of So. Ariz. v. Lawall, 307 F.3d 783, 790 (9th Cir. 2002)).
Plaintiff claims that her right to privacy was violated when Defendant required she "provide information and certification that Defendant arguably had no right to demand." (Pl.'s Resp. at 14.) Defendant argues that it had a legitimate interest in obtaining the information sought because Plaintiff "put her sex at issue by changing her sex designation and restroom use." (Def.'s Reply at 11; DSOF ¶¶ 20, 23, 27, 29; Kastl Dep. at 168:7-170:6, 172:4-14, 200:24-201:1, 253:12-16, 170:15-171:14; Ex. 9; Ex. 10.) Plaintiff does not dispute the fact that in October 2001 "MCCCD received complaints from minor students regarding a man using the women's restroom in the student halls" and that the "students expressed concerns regarding their privacy and/or safety." (DSOF ¶ 34; Ex. 13, ¶ 4; Kastl Dep. at 157:24-158:9, 226:7-17.) Nor is Plaintiff "challenging MCCCD's right to segregate its restrooms on the basis of sex." (DSOF ¶ 43; Kastl Dep. at 154:18-23.) Defendant argues that it has "a compelling interest in protecting the privacy rights of other individuals who use Defendant's restrooms by maintaining the sex-segregation of the restrooms" and that it "chose a minimally intrusive means of obtaining accurate information regarding Plaintiff's biological sex." (Def.'s MSJ at 13-14.)
Defendant also argues that Plaintiff has a diminished expectation of privacy because she "agreed to allow MCCCD to investigate the information she provided on her Employee Data Form (including her sex)." (Def.'s Reply at 11; DSOF ¶ 20; Ex. 7.) Plaintiff says she "does not contest Defendant's right to investigate" but argues that there are limits on that right. (Pl.'s Resp. at 14.) That is all Plaintiff argues, aside from asserting that she has a "significant interest in maintaining her privacy with regard to her genitals and general medical condition." (Pl.'s Resp. at 15.) Plaintiff has presented no evidence creating an issue of fact related to her privacy rights.
Plaintiff's citation to the Court's earlier Order denying Defendant's Motion to Dismiss is inapposite because, on a motion to dismiss, the Court assumes all of the plaintiff's facts as true and construes them in the light most favorable to the plaintiff. Clegg, 18 F.3d at 754. At that time, the Court accepted as true Plaintiff's assertion that she was a biological female whom Defendant required to use the men's restroom facilities. (SAC ¶ 32.) Here, at the summary judgment stage, Plaintiff must present evidence creating a genuine issue of material fact. Plaintiff has not presented any evidence (or even much argument) establishing a genuine issue of material fact regarding her privacy rights. Accordingly, Defendant's motion is granted as to Plaintiff's privacy claim.
b. Equal Protection
A plaintiff alleging an Equal Protection violation arising under § 1983 "must prove that the defendant acted in a discriminatory manner and that the discrimination was intentional." Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (citations omitted). "A plaintiff who fails to establish intentional discrimination for purposes of Title VII . . . also fails to establish intentional discrimination for purposes of § 1983." Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112-1113 (9th Cir. 1991) (citations omitted). Because Plaintiff's Title VII claim of sex discrimination failed, Plaintiff's equal protection claim fails as a matter of law.
c. Freedom of Speech
To establish a prima facie case that Plaintiff's free speech rights were violated, Plaintiff must show: "(1) that he or she engaged in protected speech; (2) that the employer took adverse employment action; and (3) that his or her speech was a substantial or motivating factor for the adverse employment action." Roe v. City of San Diego, 356 F.3d 1108, 1112 (9th Cir. 2004) (internal quotations and citations omitted), judgment rev'd on other grounds, 543 U.S. 77 (2004).
Plaintiff has again failed to present any evidence or even argument addressing the showing she must make. At most, Plaintiff argues that because "the evidence proffered by both parties indicates that there is, as a minimum, a genuine issue of material fact as to what factor or factors determine human sexuality, Defendant cannot prevail on the core issue of Plaintiff's biological sex." (Pl.'s Resp. at 15-16.) Even if it were true that the evidence created an issue of fact about what determines human sexuality, that is not an element of the showing Plaintiff needs to make. The Court declines to create an issue of fact when Plaintiff has utterly failed to even argue the elements of a prima facie case. And, once again, Plaintiff mistakenly relies on the Court's Order denying Defendant's motion to dismiss in order to create an issue of fact at the summary judgment stage.
IT IS ORDERED granting Defendant's Motion for Summary Judgment (Doc. 114).
IT IS FURTHER ORDERED granting Defendant's Motion to Strike Plaintiff's Untimely Objection to Defendant's Proffer of Undisputed Facts and Exhibits and Documents in Support of Response to Motion for Summary Judgment (Doc. 122).
IT IS FURTHER ORDERED denying Plaintiff's Motion to Extend Filing Deadline (Doc. 126).
IT IS FURTHER ORDERED directing the Clerk to enter Judgment in favor of Defendant dismissing Plaintiff's Complaint.