Full opinion text
GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT JESUS G. BERNAL, District Judge. Before the Court are two motions, a Motion for Summary Judgment (“Defs Mot.,” Doc. No. 61) filed by Defendant Orange County Sheriffs Department (“Defendant” or “OCSD”) and a Motion for Partial Summary Judgment (“Pi’s Mot.,” Doc. No. 56) filed by Plaintiff Scott Montoya (“Plaintiff’ or “Montoya”). After considering the papers timely fled and the arguments presented at the June 24, 2013 hearing, the Court GRANTS IN PART Defendant’s Motion and DENIES Plaintiffs Motion. I. BACKGROUND A. Procedural History On December 13, 2011, Plaintiff filed a Complaint against OCSD and an individual, Sandra Hutchens, alleging they discriminated against him on the basis of his service in the United States Marine Corp. and intentionally inflicted emotional distress. (Compl., Doc. No. 1.) On January 4, 2012, OCSD filed a motion to dismiss and a motion to strike. (Doc. Nos. 5, 6.) Instead of opposing the motions, Plaintiff filed a First Amended Complaint. (“FAC,” Doc. No. 8.) The FAC asserts a single claim against Defendant OCSD for violation of the Uniform Servieemembers Employment and Reemployment Rights Act (“USER-RA”) pursuant to 38 U.S.C. § 4311. (FAC ¶¶ 18-20.) Plaintiff contends OCSD initiated and manipulated multiple personnel investigations against him and eventually terminated him due to a pervasive animus against him due to his service in the Marine Corps and his receipt of the Navy Cross, a medal for his service in Iraq. (FAC ¶ 17.) Plaintiff also alleges that he was the target of service-related harassment from other OCSD deputies and that OCSD failed to investigate or discipline any of the personnel involved. (FAC ¶¶ 12-13.) The FAC also claims that OCSD denied Plaintiff benefits of employment including extending his patrol training, refusing to award him points for military service on his Sergeants’ Examination, and refusing to consider his application for the SWAT team. (FAC ¶ 14.) Defendant answered the FAC on January 27, 2012. (Doc. No. 13.) 1. Defendant’s Motion for Summary Judgment On March 1, 2013, Defendant filed its Motion for Summary Judgment. (“Defs Mot.,” Doc. Nos. 61, 63.) Defendant’s Motion and all supporting declarations and exhibits were filed under seal pursuant to two Protective Orders by Magistrate Judge Block (Doc. Nos. 18, 32) and an Order of this Court (Doc. No. 59). In support of its Motion, Defendant attached: • Defendant’s Statement of Uncontroverted Facts and Conclusions of Law (“Defs SUF,” Doc. No. 62); • Request for Judicial Notice (“Defs RJN,” Doc. No. 59); » Declaration of John P. Donovan (“Donovan Decl.,” Doc. No. 64); © Declaration of Michael J. Rossiter (“Rossiter Decl.,” Doc. No. 65); • Declaration of Richard Himmel (“Himmel Decl.,” Doc. No. 66); • Declaration of Alan Phillips (“Phillips Decl.,” Doc. No. 67); ® Declaration of Assistant Sheriff Librado Trujillo (“Trujillo Decl.,” Doc. No. 68); • Declaration of Janet Hayes (“Hayes Decl.,” Doc. No. 69); ® Declaration of Sheriffs Investigator Lavinia Vega (‘Vega Decl.,” Doc. No. 70); and • Index of Exhibits attaching forty-four numbered exhibits authenticated by the above declarations (“Defs Exhs.,” Doc. No. 71) On March 11, 2013, Plaintiff filed his Opposition to Defendant’s Motion. (“Pi’s Opp’n,” Doc. No. 79.) As noted below, several of the documents filed in support of his opposition were filed under seal. Plaintiff attached: • Plaintiffs Statement of Genuine Issues (“Pi’s SGI,” Doc. No. 89)(under seal); • Plaintiffs Evidentiary Objections (“Pi’s Opp’n Obj.,” Doc. No. 89) (under seal); ® Declaration of John S. Kyle (“Kyle Decl.,” Doc. No. 79-1); • Declaration of Crag S. Newton (“Newton Opp’n Decl.,” Doc. No. 79-2); • Declaration of Scott Montoya (“Montoya Opp’n Decl.,” Doc. No. 79-3); • Declaration of Willy Aguilar (“Aguilar Decl.,” Doc. No. 79-4); and • Lodgment of Exhibits attaching twenty-eight numbered exhibits (“Pi’s Opp’n Exhs.,” Doc. No. 79-5), twelve of which were filed under seal (Exhs. 1, 9-11, 13, 15, 19-24, Doc. No. 89) (under seal). On March 18, 2013, Defendant filed its Reply (“Defs Reply,” Doc. No. 80) attaching the following publicly filed documents: • Declaration of Michael J. Rossiter (“Rossiter Reply Decl.,” Doc. No. 80-i); • Declaration of Robert Taft (“Taft Decl.,” Doc. No. 80-2); • Declaration of Douglas Blackburn (“Blackburn Deck,” Doc. No. 80-3); and • Declaration of Janet Hayes (“Hayes Reply Deck” Doc. No. 80-4). 2. Plaintiffs Motion for Partial Summary Judgment On March 4, 2013, Plaintiff filed his Motion for Partial Summary Judgment. (“Pi’s Mot.,” Doc. Nos. 56 (public version), 90 (sealed version).) As indicated below, Plaintiff filed sealed and/or public redacted versions of the documents in support of his Motion: • Plaintiffs Statement of Undisputed Material Facts and Conclusions of Law (“Pi’s SUF,” Doc. Nos. 57 (public version), 87 (sealed version)); • Declaration of Scótt Montoya (“Montoya Decl.,” Doc. No'. 56-2); • Declaration of Craig S. Newton (“Newton Decl.,” Doc. No. 56-3); and • Lodgment of Exhibits attaching thirty-one lettered exhibits (“Pi’s Exhs.,” Doc. No. 56-4) (public version), thirteen of which were filed under seal (Exhs. E, I, M, N, O, X, Y, Z, AA, BB, DD, EE, Doc. No. 90) (under seal). On March 11, 2013, Defendant filed its Opposition to Plaintiffs Motion. (“Defs Opp’n,” Doc. Nos. 78 (public version), 94 (sealed version).) In support of its Opposition, Defendant filed public and redacted versions of several supporting documents: • Defendant’s Statement of Genuine Disputes of Material Fact (“Defs SGI,” Doc. Nos. 78-1 (public version), 95 (sealed version)); • Defendant’s Objections to Evidence (“Defs Obj.,” Doc. No. 78-2); • Declaration of Michael J. Rossiter (“Rossiter Opp’n Decl.,” Doc. Nos. 78-3 (public version), 93 (sealed version)) attaching fourteen numbered exhibits; and • Declaration of Richard Himmel (“Himmel Opp’n Decl.,” Doc. No. 78-4). On March 18, 2013, Plaintiff filed his Reply. (“Pi’s Reply,” Doc. Nos. 82.) Plaintiff included several documents in support of his Reply. The noted attachments were filed under seal: • Plaintiffs Evidentiary Objections (“Pi’s Reply Obj.,” Doc. No. 102) (under seal); • Declaration of Craig S. Newton (“Newton Reply Decl.,” Doc. No. 82-i); • Declaration of Willy Aguilar (“Aguilar Reply Decl.,” Doc. No. 82-2); and • Lodgment of Exhibits (“Pi’s Reply Exhs.,” Doc. No 82-3) attaching four numbered exhibits, one of which was filed under seal (Exh. 1, Doc. No. 102) (under seal). 3. Sealed Documents As outlined above, the parties filed numerous documents in support of an in opposition to the Motions under seal. On April 23, 2012, the Court noted the strong presumption in favor of access to court records, particularly those filed as part of a summary judgment motion. (See “Order 1” at 2, Doc. No. 104) (citing Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.2006).) Pursuant to this high bar, the Court ordered that the parties submit supplemental briefing stating why the documents filed under seal met the “compelling reasons” standard necessary for non-disclosure of documents filed in conjunction with dispositive motions. (Order 1 at 2.) In the alternative, the Court permitted the parties to resubmit the sealed documents as public filings, redacting only nonmaterial, confidential information. (Id.) On May 6, 2013, Plaintiff refiled redacted versions of Exhibits M, N, O, and EE submitted in support of his Motion, and Exhibit 1 submitted in opposition to Defendant’s Motion. (Doc. No. 105.) Plaintiff did not take any position as to whether his remaining documents met the compelling reasons test, and he deferred to OCSD to justify their continued sealing. (Id.) OCSD also filed a response to the Court’s April 23, 2013 Order on May 6, 2013. (Doc. No. 106.) OCSD did not present any compelling reasons to justify keeping the records sealed and refused to resubmit the sealed documents as redacted public filings. (Id. at 2.) On May 23, 2013, the Court found that the parties failed to meet their burden of providing the Court with “articulable facts identifying the interests favoring continued secrecy” and ordered the unsealing of all documents submitted in support of and in opposition to the Motions. (“Order 2” at 3, Doc. No. 107.) The Court required the parties to publicly refile all of the remaining sealed documents, redacting only non-material, confidential information such as social security numbers and non-party names. (Id. at 3.) In compliance with the Court’s May 23, 2013 Order, Plaintiff refiled all of his remaining sealed documents in support of an in opposition to the Motions as redacted public filings on May 24, 2013. (Doc. No. 109.) On May 29, 2013, Defendant did the same. (Doc. Nos. 110-114.) In this order, the Court relies only on the public filings submitted by both parties pursuant to their Motions. B. Preliminary Matters Defendant states that Plaintiff did not meet and confer with Defendant’s counsel prior to filing his Motion. (Rossiter Opp’n Deck, ¶ 2.) Plaintiffs failure to meet and confer violates Local Rule 7-3, which requires counsel to contact opposing counsel and meet, preferably in person, to discuss the substance of the contemplated motion ten days prior to its filing. L.R. 7-3. The Court may deny Plaintiffs motion on this basis alone. See Cucci v. Edwards, 510 F.Supp.2d 479, 486 (C.D.Cal.2007). The necessity of the meet and confer process is paramount in this case. Cross motions for summary judgment are unnecessary and duplicative since the Court may enter summary judgment for the nonmoving party based on the undisputed facts. See Fed.R.Civ.P. 56®. If Plaintiff properly met and conferred as required by the local rules, his unnecessary cross motion for summary judgment could have been avoided. Nevertheless, the Court will address the merits of Plaintiffs Motion to the extent it differs from Defendant’s Motion. The Court also notes that the papers filed by the parties do not comply with the Local Rules. The mandatory chambers copies submitted to the Court failed to comply with Local Rules 5-4.5 and 11-5.4 in that the exhibits were not sequentially tabbed. II. FACTS A. Evidentiary Objections Plaintiff and Defendant submitted objections to evidence submitted by the opposing party in support of and in opposition to the Motions. (See Pi’s Opp’n Obj., Pi’s Reply Obj., Defs Obj.) The Court addresses objections that are relevant to the resolution of the Motions. 1. Plaintiffs Objections a. Personnel Investigations Plaintiff objects to Defendant’s reliance on multiple OCSD personnel investigations of Montoya dated April 2000, 2001, 2002, March 2006, May 2009, August 2009, and December 2009, and a Notice of Pending Dismissal summarizing a subset of the investigations. (Pi’s Opp’n Obj. ¶¶ 5, 7-8, 11, 27, 44-46, 48; Pi’s Reply Obj. at 1-2.) Plaintiff makes several evidentiary arguments in an effort to exclude the investigations. i. Hearsay First, Plaintiff argues that these investigations are inadmissible hearsay and do not meet the exception for public records under Federal Rule of Evidence 803(8). Defendant argues that the investigations are not offered to prove the truth of the matter asserted and therefore are not hearsay for the purposes of disputing Plaintiffs claims. Fed.R.Evid. 801(c). Plaintiff does not identify the objected — to portions of the investigations, and instead objects to the introduction of the investigations in their entirety. The Court notes that “objections based on hearsay are particularly context-specific, and the Court is not inclined to comb through these documents, identify potential hearsay, and determine if any exception applies — all without guidance from the parties.” De Contreras v. City of Rialto, 894 F.Supp.2d 1238, 1245 (C.D.Cal.2012) (internal citation and quotation omitted). Nevertheless, the Court examines the nature and form of the investigations to determine if they could be considered hearsay. The Court does not examine any specific statements within the documents. Plaintiff makes three claims in the FAC, that (a) he was subject to a hostile work environment on account of his military service, (b) OCSD denied him promotions and desired assignments based on his military service, and (c) OCSD initiated personnel investigations and eventually terminated him due to its pervasive animus against Montoya’s military service and military accolades. Each of these claims requires Plaintiff to prove .that OCSD’s conduct was motivated by Montoya’s military service. OCSD offers the investigations to demonstrate that its actions were not motivated by anti-military animus, but by the personnel investigations. Statements do not qualify as hearsay when they “are not offered for the truth of the matter asserted, but [a]re admitted to establish that the statement was made or to demonstrate the effect the statement had' on the hearer.” United States v. Kirk, 844 F.2d 660, 663 (9th Cir.1988). As such, the personnel investigations are not hearsay because they are not offered to prove the truth of the matter asserted, but rather are offered to demonstrate the effect the investigations had on OCSD and as evidence of OCSD’s motive. See Hernandez v. City of Vancouver, 277 Fed.Appx. 666, 672 n. 2 (9th Cir.2008) (citing Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir.2001)). As Defendant correctly notes, whether Montoya actually committed the acts alleged in the investigations or whether the witnesses’ statements were true is irrelevant to the issues in this case, and the investigations are not considered for those purposes. Instead, the investigations go to whether OCSD denied Montoya benefits of employment or initiated personnel actions for reasons other than Montoya’s military service. See Means v. City & Cnty. of San Francisco, Dep’t of Pub. Health, 749 F.Supp.2d 998, 1006 (N.D.Cal.2010) (allowing evidence of statements made in an employer’s investigation into employee’s inappropriate conduct to show that the employer had a non-discriminatory motive for taking disciplinary action); Turner v. Univ. of WA, C05-1575RSL, 2007 WL 2984685, at *2 (W.D.Wash. Oct. 10, 2007) (denying plaintiffs motion to exclude employment investigation files and witness statements to the extent they were being offered to demonstrate that defendants had a non-discriminatory basis for their actions). Moreover, Plaintiff cannot on the one hand request that the Court exclude the investigations as inadmissible hearsay and on the - other use the investigations to prove that OCSD discriminated against him due to his military service. (Compare FAC ¶ 17 with Pl’s Opp’n at 15-17.) For the purposes of these Motions, the Court OVERRULES Plaintiffs hearsay objections to the personnel investigations to the extent the investigations are used to demonstrate OCSD’s motive. The Court does not rely on the investigations or the witness statements therein to prove the truth of the matter asserted. ii. Relevance and Prejudice Plaintiff also argues that the investigations are irrelevant to Plaintiffs claims under Federal Rule of Evidence 401 and cause unfair prejudice, confuse the issues, and mislead the jury under Rule 403. These objections are inapplicable at the summary judgment stage. Summary judgment can be granted “only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant.” Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D.Cal.2006). While the Court may consider Plaintiffs views on whether Defendant’s evidence is relevant, it need not exclude evidence at the summary judgment stage for danger of unfair prejudice, confusion of the issues, or any other grounds outlined in Rule 403. See Bafford v. Travelers Cas. Ins. Co. of Am., CIV. S-l1-2474 LKK, 2012 WL 5465851, at *8 (E.D.Cal. Nov. 8, 2012). These objections are more properly raised before trial, R.B. Matthews, Inc. v. Transamerica Transport Servs., Inc., 945 F.2d 269, 272 (9th Cir.1991), and Plaintiff may re-raise these objections at that time. Although the Court declines to exclude the investigations in their entirety, the Court recognizes that portions of the investigations are irrelevant and unduly prejudicial to Plaintiff. Those portions of the investigations which do not pertain to Montoya’s job performance, on-duty conduct, or violations of OCSD rules or regulations are irrelevant to Plaintiffs claims and outside the scope of this case. Fed. R.Evid. 401. Specifically, the Court does not rely on any evidence in the investigations pertaining to Montoya’s off-duty romantic relationships or sexual practices. (See, e.g., “Personnel Inv. 09-176,” Defs Exhs., Exh. 36 at 355-57.) Evidence of Montoya’s personal relationships, nonpublic communications, and off-duty whereabouts which raise no legal or ethical concerns has no tendency to make it more or less probable that OCSD’s personnel actions toward Montoya were legitimate and non-discriminatory. Id. (See, e.g., Personnel Inv. 09-176 at 373-78.) The Court does not consider those portions of the investigations. Even if this evidence were relevant to a fact of consequence, any potential probative value is substantially outweighed by its prejudicial effect. Fed.R.Evid. 403. Details of Montoya’s romantic relationships, sexual preferences, and intimate conversations confuse the issues and have an undue tendency to suggest a decision on an improper basis, namely Montoya’s legal conduct outside of his employment. See Fed.R.Evid. 403 adv. comm, note (“ ‘Unfair prejudice’ ... means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”). Beyond the impertinent portions described above, Montoya seeks to exclude all OCSD investigations prior to 2009 as irrelevant and unduly prejudicial. (Pi’s Evid. Obj. ¶¶ 5, 7, 8, 11, 27; Pi’s Opp’n at 24.) Insofar as these investigations concern Montoya’s on-duty conduct or violations of OCSD’s rules and regulations, the Court finds that they are highly probative and relevant to OCSD’s reasons for denying Montoya promotions and assignments and clearly relevant to why OCSD initiated the investigations and the related “Threat Assessment”—both issues raised in Plaintiffs complaint. iii. Character Evidence Finally, Montoya objects to the pre-2009 investigations as improper character evidence under Federal Rule of Evidence 404 which states that “[evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1) (emphasis added). Montoya argues that OCSD introduces the old personnel investigations solely to show that Montoya was a bad person who “more likely than not misbehaved in 2009,” thereby justifying his later termination. (PI Opp’n at 24.) ■ Montoya’s reliance on Rule 404(b) fails for two reasons. First, evidence of other wrongs or acts may be admissible for other purposes such as to show intent or motive. Fed. Rule Evid. 404(b)(2). As discussed above, OCSD relies on the investigations, including those prior to 2009, to show that OCSD’s actions, including the initiation of the investigations themselves, were not motivated by military animus. Second, even if this evidence were inadmissible under Rule 404(b), the “introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission.” United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.1988). In this case, Montoya relies on a presentation an OCSD investigator made to command staff in December 2009. (“OCSD Presentation,” Pi’s Exhs., Exh. X.) The presentation includes fifteen slides: slides one through three are introductory and background information on Montoya, slides four through twelve summarize all of Montoya’s personnel investigations, and the next two slides are labeled “Deputy Montoya Threat Assessment.” (Id.) Montoya argues that his Threat Assessment was “based solely on his military service and laudable accomplishments” and led OCSD to “treat[] him like a dangerous psychopath during the rest of his tenure at OCSD.” (Pi’s Mot. at 20.) Montoya thus placed the basis for the Threat Assessment at issue. OCSD must be allowed to offer slides four through eight, which describe the essential findings of the pre2009 investigations, to rebut Montoya’s argument that the Threat Assessment was based on Montoya’s military service. For these reasons, the Court OVERRULES Plaintiffs objections to the pre2009 investigations on the basis that they aré improper character evidence. However, Plaintiff may re-raise these objections at trial. b. Plaintiffs Remaining Objections Plaintiffs remaining objections are improper. Plaintiff makes two additional objections on the basis of relevance. (Pi’s Opp’n Obj. ¶¶ 6, 52.) For the reasons discussed above, these objections are inapplicable at the summary judgment stage and the Court does not rule on them here. See Burch, 433 F.Supp.2d at 1119. The remainder of Plaintiffs objections are improperly directed at portions of OCSD’s opposition brief, not at the evidence cited therein. (Pi’s Reply Obj. at 1-2.) Cf. Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F.Supp.2d 1122, 1126 n. 1 (E.D.Cal.2008) (“Plaintiffs ‘evidentiary objections’ to Defendants’ separate statements of undisputed facts are not considered because such objections should be directed at the evidence supporting those statements.”). Moreover, these objections all appear to be aimed at the portions of OCSD’s opposition which refer to Montoya’s personnel investigations. The Court addressed identical objections to the personnel investigations above, and need not do so again here. 2. Defendant’s Objections Defendant raises hearsay objections to six exhibits which were offered in support of Plaintiffs Motion. (Defs Obj. at 2-3.) All six exhibits are memoranda from Montoya to one of his superiors reporting specific incidents of “harassment” or “hostile work environment” he experienced as a deputy. (Pi’s Exhs., Exhs. PU.) OCSD argues that these memos should be excluded in their entirety because they are out-of-court statements used to prove that the conducted alleged therein actually occurred. (Defs Obj. at 2-3.) At the summary judgment stage, the Court does “not focus on the admissibility of the evidence’s form,” but rather on the admissibility of its contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.2003). Thus, if the contents of the memoranda could be presented in an admissible form at trial, the Court may consider them in deciding the summary judgment motions. Id. at 1037; Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010) (“[T]he evidence presented at the summary judgment stage does not yet need to be in a form that would be admissible at trial.”). In Fraser, plaintiff relied upon her diary, which detailed the effects of her diabetes on her daily life, in opposing her employer’s motion for summary judgment on her disability claim. Defendant argued the diary was hearsay, and could not be considered by the court. The Ninth Circuit disagreed, reasoning that: “The contents of the diary are mere recitations of events within Fraser’s personal knowledge and, depending on the circumstances, could be admitted into evidence at trial in a variety of ways. Fraser could testify to all the relevant portions of the diary from her personal knowledge. Fed.R.Evid. 602. If she forgets the exact dates or the details of the events, she may be able to use the diary to refresh her recollection. Fed. R.Evid. 612____ If the diary fails to refresh her recollection, she might still be able to read the diary into evidence as a recorded recollection under Fed. R.Evid. 803(5).” Id. at 1037. Similarly, Montoya’s memoranda are recitations of events within Montoya’s personal knowledge and could be admitted into evidence at trial via any combination of the methods suggested by the Fraser court. As such, the Court may consider the memoranda at the summary judgment stage, and therefore OVERRULES Defendant’s hearsay objections to Montoya’s memoranda. B. Disputed and Undisputed Facts These facts pertain to the issues presented in both Plaintiffs and Defendant’s Motions. Unless specifically noted, the following material facts are supported adequately by admissible evidence and are uncontroverted; they are “admitted to exist without controversy” for purposes of the Motion. L.R. 56-3. All disputed facts are explicitly designated as such. 1. Plaintiffs Background and Military Service In 1989, Plaintiff Scott Montoya joined OCSD as a Sheriffs Special Officer. (Pi’s SUF ¶ 1; Defs SGI ¶ 1.) Montoya enlisted in the Marine Corps in 1995, and took a leave of absence from OCSD to attend boot camp. (Defs SUF ¶ 2; Pi’s SGI ¶ 2.) After boot camp, Montoya served in the Marine Corps Reserve while he worked at OCSD. (Defs SUF ¶ 3; Pi’s SGI ¶ 3.) In 1997, Montoya was promoted to Deputy Sheriff I (Defs SUF ¶ 4; Pi’s SGI ¶ 4), and was initially placed in the Central Jail. (Deposition of Scott Montoya (“Montoya Depo.”) 84:1-4, Defs Exhs., Exh. 33, Pi’s Exhs., Exh. B.) In July 2001, Montoya was promoted to Deputy Sheriff II. (Defs Exhs., Exh. 11.) In 2002, the Marines called Montoya to active duty. (Defs SUF If 9; Pi’s SGI ¶ 9.) Montoya served as a Scout Sniper in Iraq from 2002 to 2003. (Defs SUF ¶ 10; Pi’s SGI ¶ 10.) Due to his mastery of the Marine Corps Martial Arts Program, Montoya also served as the battalion’s martial arts instructor. (Pi’s Exhs., Exh. EE at 3442.) Montoya received high marks and manifest praise from his commanding officers while he was on active duty. (Id. at 3437-3448.) Upon his return from Iraq, Montoya resumed his position with OCSD while remaining in the Reserves. (Defs SUF ¶ 10; Pi’s SGI ¶ 10.) Montoya’s obligation to the Marine Corps Reserves ended in September 2004. (Defs SUF ¶ 13; Pi’s SGI ¶ 13.) At the time of his discharge, Montoya achieved the rank of Sergeant. (Montoya Depo. 102:6-7.) In October 2004, pursuant to Montoya’s request, OCSD transferred Montoya to the station in Stanton, California to, begin patrol training. (Defs SUF ¶¶ 12, 14; Pi’s SGI ¶¶ 12, 14.) On February 6, 2005, Montoya passed patrol training. (Defs SUF ¶ 21; Pi’s SGI ¶ 21.) For his “leadership,” “courage,” and “devotion to duty” as a Scout Sniper during the Battle of Baghdad on April 8, 2003, Montoya was awarded the Navy Cross by the Secretary of the Navy. (Pi’s Exhs.,. Exh. C.) A formal ceremony commemorating Montoya’s receipt of the medal was held in January 2005, and was attended by many public figures and OCSD representatives. (Defs SUF ¶ 20; Pi’s SGI ¶ 20.) In May 2009, Montoya was transferred from Stanton to South Operations. (Defs SUF ¶ 42; Pi’s SGI ¶42.) On October 8, 2010, OCSD terminated Montoya’s employment. (Defs SUF ¶ 49; Pi’s SGI ¶ 49.) 2. Applications for Advancement Montoya applied to be a Deputy Sheriff four times between 1989 and 1994, but he was denied each time. (Defs Exhs., Exh. 1 at -8.). The reasons for his denial included “lack of maturity,” “poor driving record,” “deceptions with another police agency,” and failing the psychological evaluation. (Id.) In 1997, Montoya was finally promoted to Deputy Sheriff I. (Defs Exhs., Exh. 2.) In 2001, Montoya was again promoted, this time to Deputy Sheriff II. (Defs Exhs., Exh. 11.) Montoya also twice applied for the SWAT team in 2000 and 2005. (Deposition of Michael Peters (“Peters Depo.”) 31:11-14, Defs Exhs., Exh. 5.) For his 2000 application, Montoya passed the physical test and oral board interview, but he did not get through the evaluation of his personnel jacket or the peer evaluation process. (Defs SUF ¶6; Pi’s SGI ¶6; Peters Depo. 62:10-13.) On November 5, 2005, Montoya again applied for SWAT, but was unable to pass the physical fitness test, receiving 3 points below the required 80 percent, and therefore did not move on in the application process. (Peters Depo. 66:7-19.) Military service is a consideration in the SWAT application process and gives an applicant a “leg up.” (Peters Depo. 59:2-12.) When Montoya passed patrol training in February 2005, he was promoted to Deputy Sheriff II. (Montoya Depo. 90:H.) From 2006 through the end of 2008, Montoya met expectations on each of three performance evaluations and was ranked competent in most categories. (Pi’s Exhs., Exhs. M-O.) In mid-2008, Montoya applied to the transit police. (Montoya Depo. 290:2-4.) He submitted a memorandum of interest, but he was not granted an interview which Montoya states is “very uncommon.” (Montoya Depo. 290:5-25.) In late 2008, Montoya was assigned to be Stanton’s first Gang Reduction and Intervention Program (“GRIP”) officer. (Deposition of Librado Trujillo (“Trujillo Depo.”) 96:3-7, Defs Exhs., Exh. 28, Pi’s Exhs., Exh. L, Pi’s Opp’n Exhs., Exh. 6.) The GRIP was a collaborative effort with other police departments and the District Attorney’s office designed to address the issue of truancy in elementary schools. (Trujillo Depo. 91:15-24.) Stanton’s Chief of Police at the time, Librado Trujillo, chose Montoya for this “important” position because of a recommendation from fellow Deputy Dave Rios, his work with the city to develop a Veterans Memorial Park, and his status as a “war hero.” (Trujillo Depo. 91:10-11; 96:8-25.) Because the GRIP funding was limited, Montoya’s GRIP duties were collateral to his primary duty as a patrol deputy. (Trujillo Depo. 97:9-98:13.) The following year, in January 2009, Montoya applied to be a Terrorist Liaison Officer (“TLO”). (Defs SUF ¶ 36; Pi’s SGI ¶ 36.) After submitting a memorandum of interest and participating in an interview, Montoya was not selected for the position because his memo “was a mess” and he did not have any prior knowledge of an identified terrorist organization. (Id.) Out of the ten interviewed applicants, the selected individual was a deputy and a former Marine who submitted a “neat,” “concise” memo and spoke well at the interview. (Deposition of Timothy Rainwater (“Rainwater Depo.”) 26:23-27:7, Defs Exhs., Exh. 32.; Montoya Depo. 295:1-10.) Around the same time, Montoya also applied to be a Tactical Training Officer (“TTO”), but he was not granted an interview. (Montoya Depo. 297:11-298:8.) Montoya believes that the academy commander in charge of interviewing for the TTO position had military animus toward him because he was overqualified for the position such that he should have at least received an interview. (Montoya Depo. 298:12-21.) In February 2009, Sergeant Dexter and Lieutenant Passalaqua decided to rotate Montoya out of his responsibilities as a GRIP officer. (Deposition of Steve Dexter (“Dexter Depo.”) 158:19-23, Pi’s Exhs., Exh. V, Pi’s Opp’n Exhs., Exh. 28.) Finally, in April 2009, Montoya applied to become a Sergeant, but he was not selected for the position. (Defs SUF ¶ 39; Pi’s SGI ¶ 39.) Of the 24 OCSD employees promoted to Sergeant at the time of Montoya’s application, eight served in the military, five specifically in the Marine Corps. (Defs SUF ¶40; Pi’s SGI ¶ 40.) Montoya believes that animus toward his military service prompted his failure to obtain interviews and promotions throughout his careers with the OCSD. (Montoya Depo. 299:2-20.) OCSD disputes this allegation and notes that numerous OCSD employees at all ranks, including those stationed at Stanton, have served in the military, and many have combat experience. (Deposition of Timothy Cullen (“Cullen Depo.”) 121:3-17, Pi’s Exhs., Exh. J, Pi’s Opp’n Exhs., Exh. 5) (identifying four OCSD employees who worked at Stanton who have military combat experience). 3. Personnel Investigations During the course of Montoya’s employment, OCSD initiated seven personnel investigations of Montoya’s conduct. The first investigation, in April 2000, commenced after a female nurse at the Intake Release Center reported that Montoya allegedly engaged in inappropriate physical contact. (“2000 Investigation,” Defs Exhs., Exh. 4.) The investigation was not sustained due to a lack of evidence. (Defs Exhs., Exh. 3.) In 2001, cooks working at the Central Jail complained that Montoya purportedly asked female inmates personal questions and pressured them to pass notes to other inmates while they were working on the serving line. (“2001 Investigation” at 1, Defs Exhs., Exh. 6.) Montoya denied all of the allegations and stated he did not know any of the inmates who participated in the investigation. (2001 Investigation at 4.) The final disposition of this investigation is unknown. (Defs Exhs., Exh. 7.) OCSD sustained allegations of sexual misconduct by Montoya in 2002 and issued a forty-hour suspension without pay. (“2002 Investigation,” Defs Exhs., Exh. 8.) Shortly thereafter, Montoya left for Iraq, and when he returned he appealed OCSD’s decision to suspend him and the disposition was reduced to a written reprimand. (Defs Exhs., Exh. 9.) In 2006, OCSD investigated Montoya’s alleged personal association with a wanted felony suspect. (“2006 Investigation,” Defs Exhs., Exh. 21-23.) The investigation was sustained and Montoya received a 240-hour suspension. (Defs Exhs;, Exh. 23.) Finally, in 2009, OCSD initiated three separate investigations into Montoya’s conduct. Investigation 09-176 began on May 20, 2009 when supervisors reported that Montoya was using his GRIP position as a means to avoid his patrol duties and visa versa. (“09-176 Investigation,” Defs Exhs., Exh. 36.) The investigation revealed that Montoya was frequently untruthful about his whereabouts and had engaged in “excessive log falsification.” (“Not. of Dismissal” at 4-5, Defs Exhs., Exh. 39.) In addition, the investigator found that Montoya frequently made advances toward women while on duty. (Id.) This investigation was cited as a basis for Montoya’s dismissal. (Id.) In the summer of 2009, OCSD initiated investigation number 09-244 into an inappropriate, explicit comment Montoya allegedly made while questioning juveniles who were stopped for loitering. (“09-244 Investigation,” Defs Exhs., Exh. 37.) Montoya denied making the comment. (09-244 Investigation at 2.) The investigation was sustained and was a predicate for Montoya’s dismissal. (Deposition of Roland Chacon (“Chacon Depo.”) 215:14-16, Pi’s Exhs., Exh. Y, Pi’s Opp’n Exhs., Exh. 11; Not. of Dismissal at 10-13.) OCSD conducted its final investigation of Montoya, number 09-399, for inappropriately and inadequately handling a domestic violence incident. (“09-399 Investigation,” Defs Exhs., Exh. 38.) Montoya was not interviewed as a part of this investigation. (Id.) Just as with the two other 2009 investigations, number 09-399 was sustained and cited as a basis for Montoya’s dismissal. (Not. of Dismissal at 13-19; Chacon Depo. 108:9-109:2.) 4. Training Plaintiff began his patrol training in Stanton in October 2004. (Defs SUF ¶ 14; Pi’s SGI ¶ 14.) Deputy Tim Keller was assigned to be Montoya’s Field Training Officer (“FTO”). (Defs SUF ¶ 16; Pi’s SGI ¶ 16.) After approximately six weeks of training, Keller wrote a memo to Sergeant Moreno requesting that he no longer serve as Montoya’s FTO. (“Keller Memo.,” Defs Exhs., Exh. 15.) Keller states that Montoya “should not be allowed to pass training,” and he “was going to fail” him. (Keller Memo, at 1-2.) Keller bases his conclusion on Montoya’s “emotional state,” specifically his temper and the fact that he was quick to cry as a result of criticism. (Id.) In addition, Keller cites Montoya’s inability to perform basic patrol tasks such as log completion, car stops, and radio calls. (Id.) Keller states that “because Dep. Montoya just got back from Iraq and did not have time to prepare for patrol and the stress he went through during the war he may need to seek counseling.” (Id. at 2.) In his deposition, Keller states that once he was no longer Montoya’s FTO, he “wanted to get as far away from him as possible.” (Deposition of Timothy John Keller (“Keller Depo.”) 56:9-12, Defs Exhs., Exh. 14, Pi’s Exhs., Exh. F, Defs Opp’n Exhs., Exh. 2.) He recounts several encounters during training where Montoya threatened violence, including holding a pen inches from Keller’s eye. (Keller Depo. 30:6-33:2.) Keller also expressed his dissatisfaction with Montoya’s training to other OCSD employees, noting that many other deputies are military “heros [ ] that have fought in wars.” (Keller Depo. 63:4-19.) Deputy Rios replaced Keller as Montoya’s FTO on or about November 12, 2004. (Keller Depo. 48:3-8.) Captain Eason, Stanton’s Chief of Police at the time, selected Rios to be Montoya’s FTO because the two shared a military background and Rios could convince Montoya to “see somebody” if he needed to. (Deposition of Robert Eason (“Eason Depo.”) 49:22-51:16, Defs Exhs., Exh. 13, Pi’s Exhs., Exh. D, Pi’s Opp’n Exhs., Exh. 7.) On February 5, 2005, Dr. Ray William London completed a preliminary psychological evaluation of Montoya at the request of the Orange County Deputy Sheriffs Association (“Union”) and found that Montoya showed “no objective or professional indications of a PTSD diagnosis.” (Pi’s Opp’n Exhs., Exh. 2 at 6.) On February 6, 2005, Captain Eason made the decision that Montoya satisfactorily completed patrol training. (Defs Exhs., Exh. 16; Eason Depo. 72:25-73:6.) Several OCSD officers felt that Montoya was allowed to pass patrol training because of his “military record” and/or preferential treatment Montoya received from Sheriff Mike Corona. (Keller Depo. 58:17-59:18; Cullen Depo. 74:7-13; Deposition of Tim Board (“Board Depo.”) 104:2-105:6, Pi’s Exhs., Exh. K, Pi’s Opp’n Exhs. 8.) 5. Incidents at Stanton While Montoya was stationed in Stanton from 2004 to 2009, there were several incidents between him and his OCSD coworkers. Many of the incidents involved Deputies Tim Cullen and/or Tim Keller, who were also stationed in Stanton. Montoya wrote reports addressed to his superiors describing several of these incidents. In general, Montoya states that Keller frequently made comparisons between his military service and his police work with statements such as you “got by over there, but here in police work, this is the way we do it.” (Montoya Depo. 325:6-19, 28:11-14.) Deputy Sprague testifies that practically any time he saw Keller and Cullen “they were talking about how Scott Montoya had been in the military and ... the Navy Cross” and that “he’s a liar and he didn’t deserve it.” (Deposition of John Sprague (“Sprague Depo.”) 27:1-8, Pi’s Exhs., Exh. G, Pi’s Opp’n Exhs., Exh. 3.) OCSD disputes Montoya’s and Sprague’s contentions; instead, it cites evidence to show that any incidents which occurred were not done to demean Plaintiffs service. (Defs SGI ¶ 10) (citing Cullen Depo. 123:11-124:10; Keller Depo. 88:6-21). Both Sprague and Montoya testify that incidents such as those described below happened “numerous times every day” “whenever [Montoya] was working.” (Sprague Depo. 50:1-9; see Montoya Depo. 30:7-9.) OCSD disputes this fact on the basis that it is hyperbolic thereby putting the affiants’ credibility at issue and that several witnesses, never saw any of the incidents. (Defs SGI ¶ 9.) Keller admits he had several encounters with Montoya because Montoya was not in his area and everyone else was handling his calls “while he was either flirting with a girl or off doing Scotty things.” (Keller Depo. 87:16-21.) Keller states he has no respect for Montoya. (Keller Depo. 86:19-25.) Captain Eason recognizes that some OCSD deputies “disliked Scott” in part because Montoya would be relieved of duty for his military obligations and the “continuous national recognition” he received for his service. (Eason Depo. 84:7-85:17.) Sergeant Dexter specifically identifies that Keller and Cullen did not get along with Montoya. (Dexter Depo. 172:7-20; see also Deposition of Dave Rios (“Rios Depo.”) 98:19-20, Defs Opp’n Exhs., Exh. 8.) Finally, several OCSD employees heard rumors that Montoya had not actually earned the Navy Cross. (Keller Depo. 63:24-64:19; Board Depo. 106:14-24; Deposition of Davis W. Nighswonger (“Nighswonger Depo.”) 110:5-111:24, Pi’s Opp’n Exhs., Exh. 12, Defs Opp’n Exhs., Exh. 3.) a.Dispatch Call with Keller On February 6, 2005, Montoya arrived as backup to a dispatch call, and Keller was already at the scene. (“Dispatch Call Memo,” Pi’s Exhs., Exh. P.) Montoya contends that Keller started to hit his hands together while staring at Montoya. (Id.) Keller disputes this fact. (Keller Depo. 85:19-21.) Next, Keller approached Montoya and, using profanity, stated that he did not want Montoya coming to his dispatch calls. (Dispatch Call Memo; Keller Depo. 85:10-17.) Montoya spoke with Sergeant Honea about this matter, and he promised to contact Keller. (Dispatch Call Memo.) Sergeant Honea did contact Keller regarding the incident. (Keller Depo. 86:19-25.) A day after the incident Montoya drafted a memo directed to Captain Eason summarizing the events entitled “Harassment by Deputy Keller.” (Dispatch Call Memo.) b.Cullen Complaint On November 1, 2005, Montoya sent a memo to Captain Eason and Sergeant Amon describing incidents in which Cullen allegedly made false statements about Montoya to citizens. (“Cullen Complaint,” Defs Exhs., Exh. 18.) Those statements purportedly included Cullen telling a citizen to file a complaint against Montoya for flirting and that Montoya was incarcerated for rape. (Id.) Pursuant to this memorandum, OCSD officials ordered a personnel investigation into Cullen’s conduct. (“Cullen Investigation,” Defs Exhs., Exh. 20.) Cullen received a written reprimand for violating the spirit of the department. (Cullen Depo. 81:11-14.) c.Locked Plaque In July 2006, deputies took a plaque Montoya received, placed it inside a clear locked case where the schedules are posted, and drew a star around it and the words “golden boy.” (Montoya Depo. 313:25-314:6.) Montoya believes either Keller or Cullen and Keller together were responsible. (Id.) Keller disputes having any involvement. (Keller Depo. 92:13-23.) Montoya also drafted a memo addressed to “Myself’ describing the incident. (“Plaque Memo,” Pi’s Exhs., Exh. T.) d.Navy Cross Hats for Sale On August 24, 2006, Montoya arrived for his briefing and on the white board was written “Navy Cross Recipient Hats for Sale; You must pay for them up front,” and stated that the price was $10.00. (“Hats Memo,” Pi’s Exhs., Exh. R.) Montoya believes this is directed at him because he is the only recipient of the Navy Cross in the Stanton station. (Id.) The origin of the writing on the board is disputed. Montoya states he saw Cullen or Keller writing on the whiteboard around the time of the incident. (Montoya Depo. 330:20-331:2.) Sprague also saw the writing on the board and witnessed Cullen laughing and bragging about it. (Cullen Depo. 36:1-37:11.) However, Keller states that never saw or heard about the writing on the whiteboard, “nor did [he] ever make fun of his Navy Cross in any disrespectful way.” (Keller Depo. 88:6-15; 92:1-7.) Cullen similarly testifies that he had no personal knowledge of the incident, but he believed it occurred, noting “it comes with the territory.” (Cullen Depo. 122:2-25.) On the day of the incident, Montoya drafted a report addressed to Captain Ea-son wherein he describes this as “a direct attack on his military service as with incidents in the past” and “request[s] you look into this matter.” (Hats Memo.) Montoya also states that he notified Sergeant Amon of the incident. (Id.) e.“Handle Your Area” Montoya made a written record of an incident on November 6, 2006 where Keller approached him hi the report writing room and, using obscene language, told Montoya several times to “handle [his] area,” implying that he was not patrolling his assigned territory. (“Area Memo,” Pi’s Exhs., Exh. Q.) Montoya addressed his memo to Captain Eason. (Id.) f.1-800-NVY-CROS Business Card In a memoranda labeled “continued hostal [sic] work environment” addressed to Captain Eason on March 6, 2007, Montoya describes an incident which occurred when he entered the station’s report writing room and saw a business card lying on the desk. (“Business Card Memo,” Pi’s Exhs., Exh. S.) The card said “Private Instructor” and the name “S. Montoya” was handwritten on it. (Id. at 2.) At the bottom of the card, the phone number was crossed out and was rewritten as “1-800-NVY-CROS.” (Id.) Again, the source of the business card is disputed. Montoya says he saw Cullen place the business card in the report writing room. (Montoya Depo. 318:12-319:3; Business Card Memo.) Sprague testifies that he saw the card and afterward saw Cullen excitedly encouraging others to go look at it. (Sprague Depo. 37:16-40:7.) On the other hand, Keller states that he never saw the card, and describes it as a “stroke” or “teasing.” (Keller Depo. 89:20-90:13.) Cullen also has no knowledge of the incident, but believes that it occurred. (Cullen Depo. 123:3-15.) In the memo, Montoya states he advised Sergeant Amon, who forwarded the issue to Captain Eason, and then onto personnel, but they denied that it was harassment. (Business Card Memo; see Montoya Depo. 319:6-320:8.) Montoya does not believe anyone was disciplined as a result of this incident. (Montoya Depo. 320:4-10; Business Card Memo.) g.Sex Toy As explained by Montoya, he and Cullen were in the gear locker at the station preparing for patrol in September 2007. (Montoya Depo. 328:5-22.) When Montoya opened his bag, he found a phallic sex toy inside. (Id.) There was also a box with lubricant in a clear bottle. (“Sex Toy Memo,” Pi’s Exhs., Exh. U.) Cullen laughed and joked about it and told Montoya to “wear gloves” and “not to get lubrication” on his gear. (Montoya Depo. 328:5-22.) In November 2007, Montoya wrote a report regarding the incident to Assistant Sheriff Trujillo and states that he took the sex toy and the lubrication to Trujillo’s office. (Montoya Depo. 329:2-11.) Trujillo states that although Montoya discussed the incident with him, he disputes that he received any memo documenting it or the items mentioned therein. (Trujillo Depo. 23:17-25:6.) After hearing about the incident from Montoya, Trujillo believed it was a case of found property, but he did not investigate further. (Trujillo Depo. 28:11-17, 31:5-10.) Montoya does not believe Cullen was disciplined for his actions. (Montoya Depo. 329:15-330:16.) h.MDC Chat After completing a call on October 28, 2007, Montoya returned to his patrol car and noticed a chat on the Mobile Data Computer (“MDC”) — a communications system available in all OCSD patrol cars. (“MDC Memo,” Defs Exhs., Exh. 29.) In reference to Montoya’s failure to use the correct radio code, Keller typed into the chat “How did this guy pass training ... only the best in Stanton ... This guy is danderous [sic] ... He is the worst I have ever seen ... I failed him on training but he is the Sheriffs boy.” (“Keller Investigation” at 1669-70, Pi’s Exhs., Exh. I.) Pursuant to Montoya’s complaint and follow up memo, OCSD initiated a personnel investigation into Keller’s conduct on the MDC. (Keller Investigation at 1656.) The investigation was sustained and Keller received a written and verbal reprimand. (Keller Investigation at 1646; Keller Depo. 99:23-100:7.) i.Taped Locker Montoya and Sprague describe another incident wherein a fellow deputy took tape and wrapped it around Montoya’s locker so he was unable to enter the combination and then slid the locker into the restroom, thereby making him late for briefing. (Montoya Depo. 313:14-23; Sprague Depo. 34:7-13.) Montoya believes Deputy Cullen was responsible for the taping. (Montoya Depo. 313:14-23.) Montoya addressed the incident verbally with Sergeant Amon. (Montoya Depo. 332:7-24.) j.“Real Heroes” Article Keller posted an article on a bulletin board in the Stanton Station describing two Marines who died preventing a truck wired with explosives from entering an American military compound. (Sprague Depo. 29:18-30:9; Keller Depo. 96:5-25.) On the copy of the article, Keller wrote “these two are real heros.” (Montoya Depo. 320:12-17; Sprague Depo. 29:25-30:9; Keller Depo. 96:5-25.) Sprague believes the comment was written as a derogatory slur toward Montoya’s service, implying the pictured service members were heroes, but Montoya was not. (Sprague Depo. 30:1-9, 32:5-15.) Keller disputed this notion stating he posted the article because he was proud of the Marines, and that it had nothing to do with Montoya. (Keller Depo. 96:5-25.) Montoya complained about the article to his supervisor, Lieutenant Passalaqua, handed him the article, and was told Passalaqua “would handle it.” (Montoya Depo. 320:24-321:19.) Montoya does not believe Keller was disciplined because the “unprofessional” behavior continued. (Id. 321:20-322:18.) k.Bullet Sponge According to Montoya, Cullen made a comment that he was a “bullet sponge,” which Montoya interpreted as an insult to the Marine Corps implying that Marines absorb bullets and are disposable. (Montoya Depo. 325:20-328:1.) Although Cullen served in the Army, Montoya explained that he found such a comment from a non-Marine to be offensive. (Id.) 6. Removal of GRIP Duties & Transfer to South Operations In late February 2009, Sergeant Dexter and Lieutenant Passalaqua removed Montoya’s GRIP responsibilities and transferred them to another deputy. (Dexter Depo. 128:19-23.) The parties dispute why OCSD removed Montoya’s GRIP duties. OCSD asserts Montoya misrepresented the amount of time he was dedicating to GRIP activities. (Dexter Depo. 160:14-23, 161:3-5; see 09-399 Investigation at 1-2.) Montoya contends that after a change in leadership, Sergeant Dexter now expected Montoya to be available to answer patrol calls while he was completing GRIP duties. (Pi’s SUF ¶ 24.) In May 2009, Montoya was transferred from Stanton to South Operations. (Def s SUF ¶ 42; Pi’s SGI ¶ 42.) 7. Internal Affairs Presentation and Threat Assessment When Internal Affairs (“IA”) received a memo from Sergeant Dexter regarding allegations of log falsification, they initiated Personnel Investigation 09-196, as described above. (See 09-176 Investigation at 2.) Two other investigations followed, 09-244 and 09-389, initiated on August 25, 2009 and December 1, 2009, respectively. (09-244 Investigation at 1; 09-339 Investigation at 1.) Investigator Lavinia Vega conducted all three investigations. (Vega Decl. ¶ 2.) On December 7, 2009, Vega presented a 15-slide PowerPoint regarding Montoya’s history, personnel file, and “Threat Assessment” to OCSD’s executive staff. (“OCSD Presentation,” Pi’s Exhs., Exh. X.) The executive briefing occurred because Montoya was a “termination case.” (Nighswonger Depo. 52:8-11.) The second slide, entitled “Executive Summary,” states “Deputy Montoya exhibits a dangerous pattern of misconduct.” (OCSD Presentation at 3071.) Slide three includes a photo of Montoya, his vital information, and a history of his departmental assignments. (Id. at 3072.) Slides four through twelve are a summary of all seven of OCSD’s personnel investigations of Montoya’s conduct. (Id. at 3073-81.) Each investigation slide includes a summary of the complaint received, usually some information obtained from witnesses interviewed pursuant to the investigation, and the disposition and punishment, if any. (Id.) As to the three ongoing 2009 investigations, the slides include the information received in the investigation thus far. (Id. at 3078-81.) Slides thirteen and fourteen are entitled “Deputy Montoya Threat Assessment.” (Id: at 3082-83.) Vega prepared the assessment which was conducted by OCSD’s Dignitary Protection Team (“DPI”), a unit charged with assessing any potential threats to personnel in the department. (Chacon Depo. 164:13-21.) Several OCSD witnesses state thát the Threat Assessment was created due to concerns raised by witnesses pursuant to the personnel investigations, Montoya’s reaction to past incidents with fellow employees, his military training, and concerns about post-traumatic stress which “led to a concern that if ... he was going to be severely disciplined and perhaps terminated, that he could react in an unstable violent way.” (Nighswonger Depo. 52:25-53:15, 107:16-21; Chacon Depo. 162:20-25; Board Depo. 117:4-18.) Slide thirteen includes a photo of Montoya holding a sniper rifle with an image of the Navy Cross in the corner. (Id. at 3082.) The accompanying text describes that Montoya is a Scout Sniper with combat experience in Iraq, a winner of the Navy Cross, and defines the mission of a sniper as “reconnaissance, surveillance, and killing enemy leaders and other key personnel with single, well-aimed shots.” (Id.) The next bullet states Montoya is a 6th Degree Black Belt in Kenpo Karate and a championship winner. (Id.) Finally, the slide describes the make, model, and serial number of Montoya’s registered assault rifle. (Id) Slide fourteen includes five bullet points, four of which are based on statements made by witnesses pursuant to the personnel investigations. The first states Montoya is known to boast of his sniper and karate skills, including in the media. (Id. at 8083) (quoting witness statement in 09-176 Investigation at 43). Bullets two and three state that department employees, respected professionals, and individuals who know Montoya “have expressed grave concern for anyone who crosses him” and that he is “unstable often blowing up with anger when he gets upset.” (Id.) (paraphrasing witness statements in 09-176 Investigation at 39, 45, 73.) Bullet four describes that it is accepted IA banter that investigators should “wear vests” and “be on guard” when investigating Montoya. (Id.) Chacon confirmed that the investigators expressed this concern among themselves. (Chacon Depo. 159:10-160:24.) The final bullet point states that due to intimidation, superiors had to force a Deputy District Attorney to cooperate with IA’s investigation of Montoya. (Id.) (citing witness statement in 09-176 Investigation at 39.) The final slide labeled “Course of Action” describes OCSD’s next steps, including completing open investigations and issuing discipline, engaging in presurveillance of Montoya before his Administrative Leave in order to “[a]ttempt to discover additional misconduct,” conducting surveillance with covert video while Montoya is on leave, and canvassing Montoya’s past on-duty dispatch history. (Id. at 3084.) 8. Administrative Leave and Surveillance The day after OCSD’s Presentation, on December 8, 2009, Montoya was placed on administrative leave. (Pi’s Exhs., Exh. W; Chacon Depo. 165:1-11.) Pursuant to the next steps described in OCSD’s Presentation, OCSD installed a camera outside Montoya’s residence so that the investigators would know when he was leaving his residence. (Pi’s Exhs., Exh. W, Chacon Depo. 164:4-165:6.) On December 9, 2009, OCSD also pulled the vehicle registration data for Montoya. (Pi’s Exhs., Exh. Z; Chacon Depo. 168:4-169:19.) OCSD utilized a GPS transmitter to track the location of Montoya’s car from at least December 12, 2009 to December 25, 2009. (Chacon Depo. 174:23-177:9; Pi’s Exhs., Exh. BB.) On December 10, 2009, OCSD distributed a memorandum to all Division Commanders and Captains including Montoya’s photo and a notice that he was on Administrative Leave and was not allowed to enter OCSD facilities. (Sprague Depo. 89:6-13; Pi’s Exhs., Exh. AA.) If he was seen at a department facility, the memo instructed personnel to contact their immediate supervisor or Internal Affairs. (Id.) Sprague testifies this was the first time he saw this type of briefing in 22 years. (Sprague Depo. 89:11-12.) OCSD disputes this testimony, as Chacon states that ordering an individual to stay away from department facilities was “standard when anybody is placed on administrative leave.” (Chacon Depo. 171:1-20.) The other conditions of Montoya’s leave were that he had to remain home during working hours, and could only leave if he advised Internal Affairs. (Chacon Depo. 171:6-13.) An employee on administrative leave might have to use leave time for any period he was away from his residence. (Id. at 172:3-21.) When Montoya left his home to visit his fíancé’s grave, OCSD charged him leave time. (Pi’s Exhs., Exh. CC.) Montoya was also ordered not to contact OCSD personnel in regard to his case, nor to contact potential witnesses. (Chacon Depo. 171:14-21.) While Montoya was on administrative leave, OCSD continued to investigate and track Montoya to determine if he was a threat. Pursuant to the rumors that Montoya had not been awarded the Navy Cross, Investigator Robert Taft sent a January 6, 2010 email to a Marine Corps address investigating whether these unconfirmed allegations could be substantiated. (“Taft Email,” Pi’s Exhs., Exh. DD.) Taft stated he was responsible for assessing the “possibility of Montoya committing an act of “workplace violence’ should he be terminated.” (Id.) 9. Notice of Pending Dismissal and Termination On September 2, 2010, Montoya signed his Notice of Pending Dismissal. (“Not. Pending Dis.,” Def s Exhs., Exh. 30.) The Notice states he was being dismissed for violating numerous Department rules and regulations pursuant to the conduct uncovered in the 2009 Investigations. (Id.) On October 8, 2010, Montoya was officially terminated, citing the same rules violations listed in the Notice. (“Term. Not.,” Defs Exhs., Exh. 40.) III. LEGAL STANDARD A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party’s case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Instead, the moving party’s burden is met by pointing out there is an absence of evidence supporting the non-moving party’s case. Id. The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505. “This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). “The non-moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” In re Oracle, 627 F.3d at 387 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,