Summary
holding plaintiff's filing of administrative claim with DFEH "does not satisfy the Tort Claims Act" as to non-FEHA claims
Summary of this case from Olson v. Palm Drive Hosp.Opinion
No. C 03-2333 MJJ.
September 8, 2004
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Before the Court is a motion for summary judgment brought by Defendants County of Marin ("County"), Board of Supervisors of the County of Marin ("Board) and Laura Armor (collectively, "Defendants") in this employment discrimination case. Plaintiff Danita Williams opposes the motion. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.
FACTUAL BACKGROUND
Plaintiff, who is African-American, was hired by the County as a part-time intermediate clerk/typist in the Library Administration Department in January 2001. Deposition of Danita Williams ("Williams Dep.") at 25:2-9; 51:21-22 (Ex. A). In August 2001, she interviewed for a full-time senior clerk/typist position in the Human Resources ("HR") Department. Id. at 44:20-22. Plaintiff participated in three different interviews. Id. at 45:18-46:23; 47:24-48:7, 50:6-11. Two of the individuals who interviewed Plaintiff were her soon-to-be immediate supervisor, Florence Pattison, and HR director Laura Armor. Deposition of Laura Armor ("Armor Dep.") at 8:15-17 (Ex. B); Deposition of Florence Pattison ("Pattison Dep.") at 9:1-8 (Ex. C). Ultimately, Armor made the decision to hire Plaintiff. Armor Dep. at 12:10-12. Plaintiff began working on August 20, 2001 as a probationary employee under the direct supervision of Pattison. Williams Dep. at 44:20-24; 52:14-16; Armor Dep. at 111:18-20.
All references to exhibits are to those submitted in support of Defendants' summary judgment motion unless otherwise indicated. References to Plaintiff's exhibits are to those attached to the Declaration of Charles Bonner.
County employees are required to serve a probationary period of employment in order for supervisors to evaluate the employee and determine whether he or she is able to perform the job duties of the position into which the employee was hired. Declaration of Laura Armor ("Armor Decl.") ¶ 2 (Ex. D). Probation is considered the last step in the examination and testing period; it is a work test period. Id. As the Director of HR, Armor has the discretion to release employees at any time during their probationary period if she does not believe the employee will be able to perform his or her job duties adequately. Id.
Plaintiff's case rests on a number of alleged incidents that occurred during her probationary period, to wit:
• During her first week of work, Pattison abruptly pushed a printed copy of an e-mail towards her. The email related to an audition for a play calling for African-American actors, but the dates for the audition had passed. Plaintiff felt uncomfortable, confused and puzzled by the "abruptness" of the gesture, coupled with the fact that the gesture focused on Plaintiff's race and the fact that the audition had already passed. Williams Dep. at 82:16-25; 116:4-25.
• As part of her job duties, Plaintiff had to enter Armor's office to give her messages, and to receive and return assignments. A few weeks after she started to work in HR, Plaintiff noticed that Armor had Norman Rockwell's painting "The Problem We All Live With" mounted on her wall, which depicted a young African-American girl being escorted to school following the decision in Brown v. Board of Education. Plaintiff was offended by the print because the girl in the painting is walking past a tomato-strewn wall that has the word "nigger" painted on it. Plaintiff felt hurt by this picture, which reminded her of growing up in Chicago and being called that word by her caucasion neighbors. Id. at 57:19-60:2; 174:2-12.
• Early on in her employment, Plaintiff asserts that Pattison instructed her to place employee checks face up, without envelopes, in each employee's mail slot. Concerned about privacy issues, Plaintiff asked Pattison about this practice. Pattison allegedly insisted that Plaintiff carry out the instruction in the way previously indicated. Plaintiff claims to have heard later that some employees had complained about their checks being face up. Williams Dep. at 94:16-25; 120:5-20. Plaintiff infers from this incident, as well as others described herein, that Pattison "was uncomfortable working with an African-American co-worker, because she exhibited some behavior towards her she did not exhibit towards non-African-Americans. Id. at 115:13-25.
• Pattison allegedly asked Plaintiff to e-mail a message to Mike Hurley, the Human Resources Safety Officer. After Plaintiff had e-mailed the message, Pattison walked over to Plaintiff, opened the message and pressed the "send" botton several times, e-mailing the document again and again. Mr. Hurley stated that he had received the same message seven or eight times. When Plaintiff informed Mr. Hurley that Pattison had sent the extra messages, Plaintiff attests that Pattison allegedly sat at her desk with a "smirk" on her face. Williams Dep. at 132:6-133:17.
• On October 17, 2001, Armor called a meeting with Plaintiff and Pattison. When Armor passed Pattison on the way to the meeting, she allegedly said to Pattison, "Come on, Florence, let's do this." Armor told Plaintiff that Pattison had called Armor at home to tell her that she had been "attacked" by Plaintiff. Armor suggested that Plaintiff, Armor and Pattison attend a diversity training session, which they did that day. After the session, Pattison allegedly told Plaintiff that "[t]hey can tell me not to discriminate on the job, but what I do when I'm away from the job is my business." Williams Dep. at 127:16-25; 128:1.
Plaintiff maintains that it is the practice and policy of the County for supervisors to provide an evaluation to probationary employees after three months of employment and at the end of the probationary period. Plaintiff's Opposition to Motion for Summary Judgment ("Opp.") at 4. She asserts that in light of "Pattison's attitude towards her," she had concerns about her new position and wanted some feedback about her performance. Id.; Williams Dep. at 77:5-8. She claims to have repeatedly asked for a written performance evaluation from Pattison. Williams Dep. at 96:13-97:24. No evaluation, written or oral, was forthcoming, save for a comment made by Pattison at the October 17, 2001 meeing in which Pattison stated that "it did not seem to be a great amount of work produced at the end of the work day." Pattison Dep. at 54:21-56:10; 66:11-67:1. Pattison also noted that Plaintiff's tasks sometimes were completed late. Id. at 70:11-24.
Armor did not provide a written or verbal performance evaluation of Plaintiff. She testified that she prepared an evaluation between December and January, but decided not to provide it to Plaintiff because she felt it would be "kinder" not to, given that Plaintiff was not going to be hired on for permanent employment. Armor Dep. at 34:7-13; 37:19-39:10. Plaintiff claims that Pattison and/or Armor was required to provide a written evaluation pursuant to County policy. Plaintiff points to County guidelines that require that written evaluations be provided to probationary employees and state that employee deficiencies affecting job performance cannot be used as a basis for dismissal if they are not recorded in a written evaluation. Opp. at 4; Plaintiff's Ex. G.
On February 4, 2002, one week before her probation period was to expire, Armor called Plaintiff to her office along with Pattison. Armor allegedly told Plaintiff that she would not be hired as a permanent employee due to misuse of the computers, personal use of the telephone, and operating a personal business from the office. Pattison allegedly stated that "the fit just isn't right." Plaintiff claims that Armor then nodded her head and repeated, "yes, the fit isn't right." Williams Decl. ¶ 13.
Defendants' perspective of Plaintiff's probationary period is markedly different. They note that they initially thought Plaintiff would "fill the position well." Reply at 3. Indeed, during the first few weeks of her employment, Plaintiff appeared to be focused on her work and working hard. Armor Decl. ¶ 3. They claim that shortly thereafter, however, Plaintiff seemed distracted. Armor noticed that Plaintiff was on the phone frequently and often wrote in shorthand on a white pad of paper. Id. Approximately a month after Plaintiff began her employment, Armor asked her what she was writing on her pad of paper. Plaintiff responded that she wrote on the pad when she "talked to God." Id.
Defendants further maintain that, despite the fact that employees on probation should be motivated to perform at their highest level, Plaintiff demonstrated hostility and a refusal to follow the directions of her supervisor shortly after she started. On one occasion, Plaintiff was given the task of scheduling a managers' meeting. Pattison Dep. at 71:6-18. Pattison instructed Plaintiff to use the computer calendar in order to ascertain the managers' availability. Declaration of Florence Pattison ("Pattison Decl.") ¶ 2. Rather than doing as she was told, Defendants assert that Plaintiff argued with Pattison that it would be easier to contact the managers and have them provide Plaintiff with their availability. Pattison explained that since she and Pattison were secretaries, it was their responsibility to save the managers time by performing such tasks. Id. Plaintiff allegedly continued to argue with Pattison and ultimately Pattison had to order Plaintiff to perform the task as instructed. Id.
Pattison was surprised when during the first few weeks of Plaintiff's employment in the HR Department, Plaintiff informed her that she intended to apply for a position with the Board. Id. at 3. Pattison believed this comment indicated that Plaintiff was not really interested in her position with the HR Department. Id. Williams also made Pattison uncomfortable by asking personal questions about Pattison's family, her relationship with her daughter, her religious beliefs and her upbringing in Scotland. Id. In light of the fact that they had just started working together, Pattison believed these questions were inappropriate. Id.
Defendants state that on October 15, 2001, Plaintiff and Pattison were sitting at their side-by-side desks when Plaintiff began to make comments that made Pattison uncomfortable. Pattison Decl. ¶ 4. Plaintiff was typing a chart from a staff meeting that referenced respect and courtesy for others. Id. Plaintiff read out the phrase "respect and courtesy for others" and then said sarcastically, "that would be nice." Id. When Pattison printed out the calendar for the day and commented that she could not believe it was October already, Plaintiff allegedly said, "yes, and Jesus is coming soon and those who are not ready will turn to dirt!" Id. Pattison did not respond to these comments, although she was personally offended and felt attacked because Pattison told Plaintiff that she did not belong to an organized religion. Id. Plaintiff also commented, "the people in [Marin] county are wicked, wicked, wicked." Id.
With respect to the incident when Pattison gave Plaintiff the out-of-date audition flyer, Pattison testified that she learned of Plaintiff's interest in singing and dancing during the first few weeks of Plaintiff's employment. Pattison Dep. at 36:23-38:15. When Pattison received an e-mail from the instructor of a film class that she had attended in the past for a casting call for the play that called for an all African-American cast, she asked Plaintiff if she knew of anyone who would be interested in auditioning. Id. Pattison did not read the flyer thoroughly and did not realize that the auditions had already taken place when she provided Plaintiff with the flyer. Id. When Plaintiff told Pattison that she was upset that Pattison had given her the out-of-date flyer, Pattison explained that she did not think she had done anything wrong. Plaintiff allegedly responded, "Bin Laden didn't think he did anything wrong either." Pattison Decl. ¶ 4.
Regarding the Norman Rockwell print in Armor's office, Defendants contend that Plaintiff asked Pattison, "What's the story with the picture with the word `nigger' in [Armor's] office?" Pattison Decl. ¶ 5. Pattison explained that there was no story; it was a print of the famous Norman Rockwell painting "The Problem We All Live With." Id. When Pattison was unable to recall the name of the girl depicted in the painting, Plaintiff allegedly told Pattison this did not surprise her and said that Pattison should learn her history if she was going to live in the United States. Id. Although Pattison was offended by this attack on her national origin (Pattison hails from Scotland), she ignored it and told Plaintiff it was not Armor's intention to offend anyone. Id. Pattison also advised Plaintiff to talk to Armor about the print. Id. Plaintiff then asked Pattison when she was going to take diversity training. Id. Pattison questioned Plaintiff as to the implication of her question. Id. At that point, Pattison noticed that other employees could hear this discussion. She told Plaintiff to go with her to Armor's office in order to finish the coversation. Id. Williams refused and told Pattison that she could say what she wanted to say from where she was. Id.
Defendants also add detail as to what transpired at the October 17, 2001 meeting involving Armor, Pattison and Plaintiff. They claim that during the meeting, Pattison stated that she was offended by the comments Plaintiff had made on October 15 as well as her repeated religious questions and comments. Armor Dep. at 48:2-49:4; Pattison Dep. at 45:7-24. Plaintiff denied making any of the comments Pattison mentioned; however, she did apologize to Pattison. Williams Dep. at 76:10-13. Armor advised Plaintiff that although she was entitled to her own religious beliefs, she could not force them on others at work. Armor Decl. ¶ 4. As Armor had learned from Pattison that Plaintiff was arguing with Pattison about work assignments, Armor also informed Plaintiff that Pattison is the senior secretary and has the authority to assign and prioritize work and to advise Plaintiff about proper work etiquette and form. Id.
Defendants state that the meeting occurred on October 18, 2001 rather than October 17. See, e.g., Defendants' Motion for Summary Judgment ("Mot.") at 4. For ease of reference and because the date is immaterial to the resolution of this motion, the Court will use the October 17 date.
For example, Plaintiff allegedly refused to open Pattison's mail for her. Pattison Dep. at 102:2-12.
At the end of the October 17 meeting, Armor dismissed Pattison from the meeting and discussed the Rockwell print with Plaintiff. Williams Dep. at 63:21-64:25. Armor explained that she understood the print had offended Plaintiff and apologized to her. Id. Armor told Plaintiff that she did not intend to offend anyone by the print. Armor Dep. at 20:10-18. In her eyes, the Rockwell print was a piece of art from the civil rights movement that represented the absolute determination that people were to be treated with dignity and respect and all races and colors were to be protected. Id.
After the October 17 meeting, Plaintiff believed her relationships in the office were improving. She sent an e-mail to Armor on November 28, 2001 indicating, "although I have not spoken it, I like working here in H.R. This really is a great team." Williams Dep. at 84:2-22. She also told Armor, "you are a great person." Id. Armor responded to this email by stating, "I appreciate you. You're really contributing to our department with your high standards and dedication." Williams Dep. at 87:16-89:22. As a result of this exchange and the fact that she had not received any performance reviews, "Plaintiff assumed that she had performed her job satisfactorily." Williams Decl. ¶¶ 33-34.
All was not satisfactory from Defendants' perspective. Although Plaintiff's work ethic and demeanor improved somewhat after the October 17 meeting, they contend that by January Pattison noticed that Plaintiff had difficulty completing tasks and was engaging in further inappropriate conduct. Armor Decl. ¶ 6; Pattison Decl. ¶ 7. Armor also experienced what she felt was inappropriate conduct by Plaintiff. Armor attests that one morning Plaintiff called Armor at home at 7:00 am and spoke in a strange, child-like voice. Armor Decl. ¶ 6. She asked Armor if she was going on vacation. Id. When Armor responded in the affirmative, Plaintiff allegedly questioned whether Armor was taking a vacation from her as well. Id. Armor was surprised and concerned by this call. Id.
By the fifth month of Plaintiff's probationary period, Armor attests that it became clear to her that Plaintiff was not going to pass probation. Armor Decl. ¶ 8. Armor states that she took steps to prepare an evaluation before releasing Plaintiff from probation, but decided it would be kinder to verbally inform Plaintiff of her failure to pass the probationary period rather than "to provide her a written evaluation which would permanently be placed in her personnel file." Id.
Defendants deny that Armor was required to provide a written evaluation to Plaintiff. Armor attests that there is no County policy requiring her to provide one and that, in any event, the fact that Plaintiff was not given an evaluation during her probationary period was not unique to Plaintiff. Id. at ¶¶ 7-8. She notes that between 1999 and 2003, there were seven probationary employees in the HR Department (aside from Plaintiff) who, like Plaintiff, were required to serve six-month probationary periods. Id. at 8. Of those seven, five did not receive performance evaluations during the six-month probationary period. Id. Of those five, four were caucasian and one was Asian. Id.
In reaching the decision to release Plaintiff, Armor claims to have considered the information provided to her by Pattison, who directly supervised Plaintiff, as well as the interactions Armor personally had with Plaintiff and that others reported having with her. Armor Decl. ¶ 7. Armor attests to have considered the following factors in making her decision. Plaintiff was regularly late and spent a great deal of time on what appeared to be personal calls and writing in her "talking to God" notebook. Id. Armor was informed by Pattison that Plaintiff was having difficulty performing her work and made inappropriate comments. Id.; Pattison Decl. ¶ 6. Pattison informed Armor that on several occasions when she gave Plaintiff a project to complete and then reassigned her another, more urgent project, Plaintiff complained about having to stop the task at hand and complete the more urgent task. Id. This was of concern to Armor, because all of the secretarial work of the division is channeled through Senior Secretary Pattison, who in turn delegated to senior clerk/typists such as Plaintiff. Id. It is vital that the senior clerk/typist in the division be able to deal with a fast paced environment, including constant interruptions and changing of priorities. Id.
Armor also considered in making her decision her view that Plaintiff was not a very efficient employee and did not prioritize well, which resulted in Pattison having to complete her own work as well as any work Plaintiff did not complete. Id. Pattison also informed Armor of an occasion in which Plaintiff asked Pattison three times, "who is that `butch' woman?" in reference to a female County employee who was in the HR Department for a meeting. Id. Armor further noted that Plaintiff had called her at home regarding her vacation plans, which demonstrated to Armor a poor sense of boundaries. Armor Decl. ¶ 6. Armor believes that new employees try to excel during their probationary period but that she did not experience this from Plaintiff. Id.
Plaintiff was released from her probationary employment on February 4, 2002. Williams Dep. at 148:20-23. On August 28, 2002 she filed a charge of discrimination with the EEOC alleging she was discriminated against on the basis of her race and national origin and retaliated against for engaging in protected activity. EEOC Complaint, Ex. F. On May 19, 2003, she filed the present action.
After her EEOC complaint and prior to the institution of these proceedings, Plaintiff claims that Defendants blocked her from serving on a Marin County Grand Jury, the Marin Women's Commission and the Marin Affirmative Action Advisory Committee. Williams Decl. ¶¶ 44-46.
This commission is under the umbrella of the County Human Resources Department, but is comprised primarily of private citizens and not County employees. See Defendant's Ex. N; Williams Decl. ¶ 44 (Plaintiff's Ex. D).
LEGAL STANDARD
Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). Nor is it sufficient for the opposing party simply to raise issues as to the credibility of the moving party's evidence. National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983). If the nonmoving party fails to show that there is a genuine issue for trial, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
ANALYSIS
A. Board of Supervisors as Defendant
Defendants argue that the Board of Supervisors cannot be sued as an independent entity separate and apart from the County. California Government Code § 945 provides that "[a] public entity may sue or be sued." "[P]ublic entity" is defined by the Code to include "the State, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or political incorporation in the State." Plaintiff contends that the Board of Supervisors is a "public authority, public agency, [or] a political subdivision of Marin County." Opp. at 7. There is some authority for this proposition. In Phillips v. Seely, 43 Cal. App. 3d 104, 109 (1974), the California Court of Appeals noted, in the context of a taxpayer suit against Butte County, that California Government Code § 53510 defined "local agency" as encompassing a "public agency or public authority." The court indicated that the Butte County Board of Supervisors was a "public agency" under § 53510. Id.
The Court sees no reason why "public agency" should have a different meaning in two different sections of the Government Code. As such, the Marin County Board of Supervisors is a "public agency" within the meaning of Government Code § 811.2 and may sue or be sued. It is, therefore, a proper defendant in this case.
The Court also takes judicial notice of the hundreds of published cases in California in which a county board of supervisors is either a plaintiff or defendant. See, e.g., Personal Watercraft Coalition v. Marin County Board of Supervisors, 100 Cal. App. 4th 129 (2002).
B. First Claim for Relief — Racial Discrimination and Harassment on the Basis of Race Under Title VII and FEHA
Defendants made a statute of limitations argument in their motion but conceded that the FEHA claims would not be time-barred. At oral argument on the motion they also conceded that the Title VII discrimination and harassment claims were timely.
1. Racial Discrimination Under Title VII and FEHA
a. Supervisor Armor's Individual Liability
Defendants, pointing to Miller v. Maxwell's International, 991 F.2d 583, 587 (9th Cir. 1993), and Reno v. Baird, 18 Cal. 4th 640 (1998), contend that an individual, as opposed to an employer, cannot be liable under Title VII or California's Fair Employment and Housing Act ("FEHA") for race discrimination. Plaintiff does not address the issue with respect to Title VII in her Opposition, but concedes that under FEHA race discrimination claims are indeed barred against individuals. Under Miller, the same is true with respect to Title VII race discrimination claims. Accordingly, the Court finds as a matter of law that Armor cannot be individually liable for race discrimination under Title VII or FEHA.
42 U.S.C. § 2000 et seq.
Reno held only that race discrimination (as opposed to racial harassment) claims were unavailable against individuals under FEHA. See 18 Cal. 4th at 645 n. 2 ("[t]his case involves a claim for discrimination, not harassment. We express no opinion regarding individuals' liability for harassment"). Defendants do not contend that Plaintiff's harassment claim is also barred on these grounds.
b. Prima Facie Case
In order to evaluate a race discrimination claim in violation of Title VII or FEHA, courts utilize the framework established in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The shifting burden of proof under McDonnell-Douglas requires a plaintiff to establish a prima facie case of discrimination. If a plaintiff succeeds, the defendant must articulate a legitimate, non-discriminatory reason for the challenged acts. If the defendant meets its burden of production, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the proffered reason is pretext.
Actions under FEHA are assessed using the same guiding principles that apply to Title VII claims. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000); Okoli v. Lockheed Technical Operations Company, 36 Cal. App. 4th 1607, 1614 n3 (1995).
To establish a prima facie case of race discrimination, Plaintiff must prove: (1) she is a member of a protected class; (2) she performed her job to the legitimate expectations of her employer; (3) she sustained an adverse employment action; and (4) the employer treated similarly situated employees who were not in her protected class more favorably. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). Plaintiff must "offer evidence that `give[s] rise to an inference of unlawful discrimination." Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1409 (9th Cir. 1987).
Viewing the record in its totality and casting all inferences in Plaintiff's favor, Plaintiff has met her burden of establishing the existence of a prima facie case of race discrimination.
c. Legitimate, Non-Discriminatory Reasons
Defendants contend that Plaintiff was released for legitimate, non-discriminatory reasons. Specifically, they provide evidence that in reaching the decision to release Plaintiff, Armor considered that (1) Plaintiff was regularly late and spent a great deal of time on what appeared to be personal calls and writing in her "talking to God" notebook; (2) Plaintiff made inappropriate comments to Pattison; (3) when Pattison gave Plaintiff a project to complete and then reassigned her another, more urgent project, Plaintiff complained about having to stop the task at hand and complete the more urgent task; (4) Plaintiff was not a very efficient employee and did not prioritize well, which resulted in Pattison having to complete her own work as well as any work Plaintiff did not complete; (5) Plaintiff asked Pattison three times, "who is that `butch' woman?" in reference to a female County employee who was in the HR Department for a meeting; (6) Plaintiff called Armor at home regarding her vacation plans, which demonstrated to Armor a poor sense of boundaries; (7) new employees try to excel during their probationary period but Armor did not experience this from Plaintiff; (8) Plaintiff did not exude the qualities of an employee who was capable of diplomatically working with all County employees, heeding the directions of her supervisor and adjusting to a fast-paced work environment. See, e.g., Armor Decl. ¶ 6; Pattison Decl. ¶ 7.
Defendants have met their burden of providing legitimate, non-discriminatory reasons for Plaintiff's release from probation.
d. Pretext
Plaintiff responds to Defendants' proffered justifications for her release from probation by denying their truth. For example, she denies that she was regularly late, made personal calls from the office, wrote in a "talking to God" notebook, made inappropriate comments to Pattison, referred to anyone as "butch," or called Armor at home in the way described by Defendants. Opp. at 10-12 (citing to Williams Dep.). These denials (under oath), viewed together with the record with respect to the lack of a written evaluation of Plaintiff and the colorable claim of a "shifting" explanation as to the true reasons for Plaintiff's dismissal, present a genuine issue of material fact on Plaintiff's Title VII and FEHA race discrimination claims.
3. Harassment on the Basis of Race (Hostile Work Environment)
Plaintiff contends that she was racially harassed by Armor and Pattison, thereby creating a hostile work environment. Complaint ¶ 39. Racial harassment in the form of a hostile work environment constitutes unlawful discrimination under Title VII and FEHA. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).
To prevail on her hostile work environment claim, Plaintiff must show that her workplace was "permeated with discriminatory intimidation, ridicule and insult that [was] sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To satisfy this requirement, Plaintiff needs to prove that her working environment was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that [she] in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). In addition, Plaintiff is required to prove that any harassment took place "because of" her race. Oncale, 523 U.S. at 79.
Not all workplace conduct that may be described as harassment is actionable under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see Faragher, 524 U.S. at 787 ("simple teasing, offhand comments, and isolated incidences (unless they are extremely serious) will not amount to discriminatory changes in the terms and conditions of employment."). The Court reviews "the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Three cases guide this Court's review. In Vasquez v. County of Los Angeles, 349 F.3d 634, 643 (9th Cir. 2001), the Ninth Circuit affirmed dismissal of a hostile work environment claim where defendant said plaintiff had a "typical Hispanic macho attitude" and that "Hispanics do good in the field." Further, plaintiff alleged that defendant yelled at him in front of others and that defendant made continual, false complaints about plaintiff to his supervisor. Id. Similarly, in Sanchez v. City of Santa Ana, 936 F.2d 1027, 1031, 1037 (9th Cir. 1990), the Ninth Circuit affirmed the dismissal of a hostile work environment claim where defendant posted an offensive cartoon, made offensive slurs, unfairly enforced rules by race, provided unsafe vehicles and inadequate police backup to Hispanic officers, and maintained secret personnel files. And, in Salter v. Washington Tp. Health Care Dist., 260 F. Supp. 2d 919, 926-28 (N.D. Cal. 2003), the court dismissed a hostile work environment claim where hospital coworkers stated that the plaintiff's work area "stank" and held their noses when they passed by her desk, said that they "couldn't understand how the New Guinea people were as dark as she was," made "horse-like `neighing' sounds . . . immediately after telling [plaintiff] that [they] liked her hair extensions," and forced plaintiff's daughter to wait twenty-five minutes during a visit to the emergency room while they immediately served caucasian employees' family members. Id. at 922-23.
Here, as in the cases above, no reasonable jury could find that Plaintiff's allegations illustrate conduct so extreme as to alter the conditions of her employment. Viewed in the light most favorable to Plaintiff, the alleged harassing conduct may have been ill-advised or bothersome, but it was not physically threatening or humiliating. Plaintiff's allegations are akin to mere offensive utterances that, under Vasquez's objective standard, should not have unreasonably interfered with Plaintiff's work performance. Therefore, the Court finds that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law regarding Plaintiff's racial harassment claims.
Plaintiff conceded at oral argument that the conduct supporting the harassment claim was limited to Armor's display of the Rockwell print.
C. Second Claim for Relief — Failure to Prevent Racial Discrimination and Harassment
Title VII requires an employer to take remedial action reasonably calculated to prevent a hostile working environment. Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991). FEHA imposes a duty on employers to take reasonable steps necessary to prevent discrimination and harassment from occurring. California Government Code § 12940(i). Because the Court has found that Defendants' conduct did not create a hostile working environment as a matter of law, the Title VII failure to prevent claim fails entirely and the harassment aspect of Plaintiff's failure to prevent claim under FEHA also fails. Because, however, the Court finds that there are triable issues of fact with respect to whether Plaintiff was discriminated against on the basis of race, Plaintiff's claim for failure to prevent racial discrimination under FEHA survives summary judgment.
Claims under Title VII for failure to prevent have been recognized as to hostile environment claims, but not to discrimination claims more broadly. See e.g., Brady, 924 F.2d at 881.
Moreover, this claim does not lie against Armor individually. See Reno, supra section B.1.
D. Third Claim for Relief — Retaliation
To establish a prima facie case of retaliation pursuant to Title VII and or FEHA, Plaintiff must demonstrate the following: (1) she engaged in an act protected by Title VII and/or FEHA (2) her employer subjected her to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997); Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002).
Here, it is undisputed that Plaintiff engaged in protected conduct when she expressed her views to Pattison and Armor about the Rockwell print. With respect to adverse employment action, Plaintiff claims in her Opposition that three incidents apply: (1) following her discussion with Pattison and Armor about the Rockwell print, Pattison began "keeping a written record of casual `chit chat' [about] conversations of [Plaintiff]"; (2) holding a meeting on October 17, 2001 "designed to criticize [Plaintiff's] work performance, and personal attacks and false accusations rather than address [Plaintiff's] the [sic] valid concern regarding the painting . . ."; and (3) Plaintiff's dismissal in February 2002.
Defendants point out in their Reply that Pattison's alleged act of keeping a book on Plaintiff was not addressed during discovery. See Ex. H, Interrogatory No. 9. The Court agrees this cannot now be sprung on Defendants as an adverse employment action, especially as it was not alleged in the Complaint to be an aspect of the retaliation claim. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291-92 (9th Cir. 2000). Plaintiff also claims that the October 17, 2001 meeting involving Plaintiff, Pattison and Armor was an adverse employment action. According to Plaintiff, the October 17 meeting was called by Armor. At the meeting, (1) Armor discussed Pattison's claim that she had been "attacked" by Plaintiff; (2) Plaintiff explained to Armor that she thought the Rockwell print was offensive; (3) Armor suggested that the three attend a "valuing diversity training session;" and (4) "work performance was not discussed." Opp. at 3-4. Even taking all of this as true, the October 17 meeting was not an "adverse employment action" as a matter of law. See Akers, 95 Cal. App. 4th at 1445 (adverse employment action requires showing of a "substantial adverse change in the terms and conditions of the plaintiff's employment"); Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003) (adverse employment action is one "reasonably likely to deter employees from engaging in protected activity").
The Akers court noted that, absent this threshold showing, "courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction." 95 Cal App. 4th at 1445.
To the extent that Plaintiff claims adverse employment actions took place after she was dismissed — for example, that she was prevented by Defendants from serving on a Grand Jury, the Marin County Women's Commission and the Affirmative Action Advisory Committee — the Court finds that these actions cannot be adverse employment actions as they all occurred after Plaintiff was no longer employed by the County. By definition, these actions did not "substantially or materially change the terms and conditions of Plaintiff's employment." Akers, 95 Cal. App. 4th at 1441 (emphasis added).
What remains is the February 2002 dismissal, which Defendants do not deny constitutes an adverse employment action. Defendants argue, instead, that there is no causal link between Plaintiff's complaint about the Rockwell print in October 2001 and her dismissal in February 2002. To establish causation between a protected act and an adverse employment action, Plaintiff must demonstrate by a preponderance of the evidence that engaging in the protected activity was one of the reasons for the adverse employment action. Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1064-65 (9th Cir. 2002). To demonstrate retaliation was a motivating factor behind her release from probation, Plaintiff must proffer evidence of: (1) proximity in time between the protected action and her release from probation from which a fact finder could logically infer Plaintiff was released because she engaged in the protected activity; (2) Defendants expressed opposition to the protected activity; or (3) Defendants' proffered explanations were false and pretextual. Keyser v. Sacramento City Unified School District, 265 F.3d 741, 752 (9th Cir. 2001).
Here, because the Court has found triable issues exist regarding whether Defendants' stated reasons for Plaintiff's dismissal were pretextual, Plaintiff's claim for retaliation is not amenable to summary judgment.
E. Fourth Claim for Relief — Wrongful Discipline in Violation of Public Policy
Defendant argues that Plaintiff's claim for wrongful discipline is barred because she failed to present a written claim to the County prior to filing this lawsuit as required by the California Government Tort Claims Act. California Government Code § 945.4 states that "no suit for money or damages may be brought against a public entity . . . until a written claim . . . has been presented to the public entity and has been acted upon by the board . . . or has been deemed rejected by the board. . . ." The phrase "suit for money or damages" includes tort claims such the one at issue here, and Plaintiff does not argue otherwise. Opp. at 20. Instead, Plaintiff claims to have (1) filed a claim with the EEOC and the FEHA, (2) "contacted James Evans, the County's Affirmative Action Officer, to discuss her termination;" and (3) raised her claim at a meeting of the Marin County Employee Multicultural Workers Forum which was attended by two members of the Marin County Board of Supervisors.
The Court notes that, first, the EEOC and the FEHA, of course, are not the County of Marin or the Board of Supervisors, the proper "public entit[ies]" to have addressed here. Engaging the EEOC and the FEHA therefore does not satisfy the Tort Claims Act. Second, "[c]ontact[ing]" a County employee "to discuss" Plaintiff's termination is clearly deficient under section 945.4, which requires, among others things, the presentation of a " written claim . . . to the public entity." (Emphasis added.)
Plaintiff conceded in her deposition that her "contact" with Mr. Evans was oral, not written. Williams Dep. at 150:12-151:8.
Finally, Plaintiff claims to have attended a meeting where her claim was discussed. Williams Decl. ¶ 47. According to a declaration submitted by Plaintiff, the meeting was under the auspices of the Marin County Employee Multicultural Workers Forum and was attended by two members of the Marin County Board of Supervisors. Declaration of Cesar Lagleva, Plaintiff's Ex. F ¶ 5. Mr. Lagleva attests that "the purpose of the meeting was to air some issues regarding race discrimination, some minorities employees [sic] feeling a lack of support from the County. [Plaintiff's] termination was given as an example of race discrimination." Id. at ¶¶ 5-6.
Plaintiff has failed to put sufficient evidence in the record to support the proposition that she has complied with the Tort Claims Act. She concededly has failed to literally comply with it as no written claim was filed with the requisite public entity. Williams Dep. at 150:12-17. Plaintiff vigorously argued at oral argument that Plaintiff had substantially complied. Plaintiff's argument was framed in terms of Defendants' notice of Plaintiff's claim. However,
It is not the purpose of the claims statutes to prevent surprise. The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. . . . It is well-settled that claims statutes must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge — standing alone — constitutes neither substantial compliance nor basis for estoppel.City of San Jose v. Superior Court, 12 Cal. 3d 447, 455 (1974).
Having failed to comply with the Tort Claims Act, Plaintiff's wrongful discipline claim is barred as a matter of law against the County and the Board.
Plaintiff's wrongful discipline claim is also brought against Defendant Armor. Armor is sued in her individual as well as her official capacity. Complaint at ¶ 14. Insofar as Armor is personally sued for wrongful discipline, the California Government Tort Claims Act would be no bar to Plaintiff's maintenance of this claim. As Defendants do not argue any grounds other than failure to comply with the Tort Claims Act as a basis to dismiss the wrongful discipline claim, the claim survives as to Armor individually.
F. Fifth Claim for Relief — Intentional Infliction of Emotional Distress ("IIED")
For the reasons set forth supra at Section E, this tort claim, as against the County and the Board, also fails as a matter of law for failure to comply with the California Government Tort Claims Act. To the extent Plaintiff alleges that Armor is individually liable for IIED, the Court finds that there are issues of material fact that render the granting of summary judgment inappropriate.
In their briefs, Defendants contend that the IIED claim is barred by the exclusive remedy provisions of the California Labor Code. Such exclusivity, however, does not extend to claims arising from conduct that "contravenes fundamental public policyor exceeds the inherent risks of the employment." Livitsanos v. Superior Court, 2 Cal. 4th 744, 755 (1992). Racial discrimination is not an inherent risk of the employment relationship. Id. at 755 n. 7. Accord, Fretland v. County of Humboldt, 1478, 1492 (1999) (holding that "work-related injury discrimination is not a normal risk of the compensation bargain"). The Court also notes that Defendants have not argued that Plaintiff cannot satisfy the elements of IIED as a matter of law.
G. Sixth Claim for Relief — Wrongful Termination in Violation of Public Policy
For the reasons set forth supra at Section E, this tort claim also fails as a matter of law for failure to comply with the California Government Tort Claims Act.
H. Sixth Claim for Relief — Violation of Civil Rights Laws Under 42 U.S.C. § 1981
Plaintiff has voluntarily dismissed this claim.
I. Seventh Claim for Relief — Violation of Civil Rights Laws Under 42 U.S.C. §§ 1983 and 1985
1. Statute of Limitations
Section 1983 (and section 1985) does not contain its own limitations period. Rather, the applicable statute of limitations is that of the forum state's personal injury torts. Wilson v. Garcia, 471 U.S. 261, 276 (1985). In California, the applicable statute of limitations is one year from the date the cause of action accrues. McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir. 1991). It is undisputed that the limitations period in this case runs from May 19, 2002 to May 19, 2003, the date this action was filed.
For actions accruing after January 1, 2003, the limitations period has been extended to two years. See California Code of Civil Procedure § 335.1.
2. Preliminary Considerations
Plaintiff contends that Defendants blocked her from serving on a Marin County Grand Jury, the Marin Women's Commission and the Marin County Affirmative Action Advisory Committee, actions that occurred after her dismissal and within the limitations period. Williams Decl. ¶¶ 41-46. Defendants counter that there is no evidence connecting the County with these matters. Reply at 13. The Court agrees that with respect to the Grand Jury and Women's Commission, no reasonable trier of fact could find that Defendants played a role in blocking Plaintiff's service on those entities; there is an utter lack of evidentiary support for Plaintiff's arguments. See Nilsson v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988) ("[i]n the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion should be granted").
With regard to the Affirmative Action Advisory Committee, the record reflects that on September 24, 2002, Marcia McLean, Chair of the Marin Women's Commission, sent a letter to Don Casey, Chair of the Personnel Commission of the Marin County Human Resources Department. Plaintiff's Ex. N. In the letter, Ms. McLean stated that the Women's Commission had nominated Plaintiff (who sat on the Women's Commission at the time) to be the Women's Commission's liaison to the Affirmative Action Advisory Committee. Kathy Broderick, Acting Deputy Director of Human Resources, then sent a letter on October 2, 2002 to Mr. Casey recommending that the Personnel Commission delay consideration of Plaintiff's appointment to the Affirmative Action Advisory Committee "for reasons that are known to Ms. Williams and th[e Human Resources] Department." Plaintiff's Ex. O. Plaintiff's appointment was then, in fact, delayed. See Plaintiff's Ex. P. Given that Ms. Broderick's letter itself references extant issues involving the HR Department and Plaintiff, Defendants' connection to this episode is sufficient, as a threshold matter, to survive summary judgment as to the County and Board Defendants.
As to Armor, however, there is little in the record tying Armor to the Affirmative Action Advisory Committee issue. The record reflects that she was on leave from August 2002 to May 2003, the period during which the October 2 letter was sent by Ms. Broderick. Reply at 13, Plaintiff's Ex. O; Armor Dep. at 121:18-122:2; 123::25-124:3 (Supp. Ex. 2). Armor also testified that she had not even seen the letter until her deposition in this case. Id. Plaintiff points to no evidence to the contrary. Accordingly, Armor is entitled to summary judgment as to the section 1983 claim.
For the above reasons, the incident regarding the Affirmative Action Advisory Committee can be the sole surviving source of Plaintiff's constitutional claims. Moreover, this claim is viable only against the County and the Board.
3. Section 1983
Plaintiff alleges violations of her rights to free speech and freedom of religion under the First Amendment, as well as due process violations under the Fourteenth Amendment. The Court finds that there are triable issues of material fact as to whether Plaintiff's rights were violated by Defendants' alleged conduct with respect to the Affirmative Action Advisory Committee issue. Plaintiff's section 1983 claim therefore survives summary judgment.
4. Section 1985
Plaintiff's section 1985 claim revolves around the Grand Jury and Women's Commission issues. As explained above, there is a dearth of evidence (admissible or otherwise) supporting the proposition that Defendants played any role in those affairs. Because no reasonable jury could find to the contrary, summary judgment lies in Defendants' favor on this claim.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. The sole remaining claims are:
• First Claim for Relief — Racial Discrimination Under Title VII and FEHA, against County and Board
• Second Claim for Relief — Failure to Prevent Racial Discrimination Under FEHA, against County and Board
• Third Claim for Relief — Retaliation Under Title VII and FEHA, against County, Board and Armor
• Fourth Claim for Wrongful Discipline in Violation of Public Policy, against Armor
• Fifth Claim for Relief — Intentional Infliction of Emotional Distress, against Armor
• Seventh Claim for Relief — Violation of Civil Rights Laws Under 42 U.S.C. § 1983, against County and Board