Summary
dismissing a cause of action under Section 12948 based on alleged racial discrimination based on the finding that the "Unruh Civil Rights Act. . . does not encompass allegations of employment discrimination"
Summary of this case from Allford v. BartonOpinion
NO. CIV. 06-1216 LKK/EFB.
August 15, 2008
ORDER
The plaintiff is a former employee of the Solano County Health and Social Services Department. She has brought suit against the County, the Department, and two individual defendants for their alleged illegal actions during her employment and termination.
Pending before the court is a motion for summary judgment on all claims brought by all defendants. For the reasons stated herein, the court grants the motion in part and denies the motion in part.
I. FACTS
Plaintiff and defendants each have lodged objections to several items of evidence relied on by the other. Some of this evidence is not necessary to the resolution of the instant motion. To the extent that they are relevant and the court has relied on them herein, those objections are OVERRULED. Moreover, the court disregards those objections raised by the plaintiff that were filed beyond the filing deadline ordered by the court in its July 1, 2008 Order to Show Cause.
Defendants have also moved that the court take judicial notice of a California State Bar case. A court may take judicial notice of a fact not subject to reasonable dispute pursuant to Federal Rules of Evidence 201(b) and 201(d). Here, the defendants have made no showing that the State Bar case is relevant to the summary judgment motion. Accordingly, the request is DENIED.
Finally, the plaintiff has sought in her opposition memorandum and in separate filings (Doc. Nos. 89, 91) to withdraw or amend admissions under Federal Rule of Civil Procedure 36(b). Plaintiff had failed to timely respond to defendants' requests for admission, resulting in those matters being deemed admitted. Here, withdrawl of the admissions promotes presentation of the merits of the action and would not unduly prejudice the defendant, as the trial is not set to begin until January 2009. Accordingly, plaintiff's request to withdraw those admissions is GRANTED.
A. Plaintiff's Application to Temporary Positions
In January 2004, plaintiff applied for the following temporary positions: Employment/Eligibility Services Manager; Employment Resources Specialist Supervisor; and an Employment Resources Specialist III (Lead Worker). SUF ¶ 10. The selection process for these temporary positions was informal, but each candidate had to meet the minimum qualifications for the position to be selected. Declaration of Peggy Silva In Support of Defendants' Motion for Summary Judgment ("Silva Decl.") ¶¶ 4-5. Sheri Toy and Peggy Silva were responsible for filling temporary supervisory positions. SUF ¶ 93. A memorandum was sent to County employees informing them of the positions and instructing interested employees to submit a letter of interest. Silva Decl. ¶ 5. Employees who expressed interest in the positions were interviewed by both Toy and Silva. Id. It is asserted by defendant that employees were selected based on how well they performed in their interview and whether they met the minimum qualifications for the position. Id. Silva decided which employees were selected. Id. She has declared that she believed that plaintiff did not meet the minimum eligibility requirements for the positions and did not recommend that she be selected. Id. ¶¶ 7-8.
After plaintiff was not selected for any of these positions, she contacted Rosemary Lewis, the Deputy Director, and inquired as to why she was not selected. Scott Decl. ¶ 15. She has declared that also spoke with Susan Kosar, her supervisor, who promised plaintiff that she would inquire about the status of the positions. Id. Plaintiff has testified that from this inquiry she expected these individuals to understand that she was saying that they were discriminating against her because of her race. SUF ¶ 123. According to plaintiff, Kosar advised plaintiff not to speak to either Peggy Silva or Rosemary Lewis directly because it would be considered insubordination and failure to follow the proper chain of command. Scott Decl. ¶ 15. Plaintiff has testified that she did not know the race or the qualifications of the individuals chosen for any of the promotions. Declaration of Laurence Angelo in Support of Defendants' Motion for Summary Judgment ("Angelo Decl.") ¶¶ 1-5, Ex. D (Scott Depo. at 57:7-60:23).
B. Plaintiff's Application to Permanent Positions
In April and May 2004, Scott applied for the following permanent positions: Employment/Eligibility Services Manager, Employment Resources Specialist Supervisor, and an Employment Resources Specialist III (Lead Worker). SUF ¶ 12. Silva was on the interview panel responsible for selecting applicants for a permanent Employment Resource Specialist Supervisor and Employment Resource Specialist III position. Silva Decl ¶ 9. Based on plaintiff's May 2004 application, Silva believed that plaintiff did not have the necessary experience for the ERS Supervisor position, and did not meet the minimum required experience for the ERS III (Lead Worker) position. Id. ¶¶ 10-11. Silva has declared that she did not recommend plaintiff for these permanent positions because she believed plaintiff did not have the requisite experience, and other candidates for the position were better qualified based on their experience and skills exhibited during their interview. Id. ¶ 12.
In April 2004, plaintiff also applied for a Contract and Program Specialist position. SUF ¶ 14. According to County records, Scott was disqualified from this position because her application did not indicate that she had the requisite experience or a degree with major course work in the preferred fields. SUF ¶ 91.
The County records indicate that plaintiff also applied for the Social Worker III position in April 2004. SUF ¶ 14. Plaintiff claims that she did not apply for a Social Worker III position, and that the County tampered with her application to make it appear that she had. Scott Decl. ¶ 14. It is not clear why this issue is relevant to the issue before the court.
Scott likewise participated in the Future Leaders Program in May 2004. Declaration of Marylon Boyd In Opposition to Defendants' Motion for Summary Judgment ("Boyd Decl.") ¶ 10, Ex. 11. This program is designed to provide non-supervisory employees opportunities to attend training and learn leadership and communication skills. Silva Decl. ¶ 14. Participants in the program were not guaranteed a promotion to a supervisory position. Id. Plaintiff declared that she was told that her participation would qualify her for supervisory and managerial positions. Scott Decl ¶ 12. Plaintiff also declares that Lewis, Silva, and Toy "led her to believe that participation in the program was for the purpose of filling the temporary positions."Id.
C. Basis of Plaintiff's Retaliation Claims
According to plaintiff she became a target of retaliation around August 2004. Scott Decl. ¶ 40. Plaintiff declared that Susan Kosar began complaining about her work and claiming that plaintiff was not completing her case load fast enough. Id. Based on her supervision of plaintiff, Kosar declared that plaintiff "had trouble meeting the regulatory guidelines due to the amount of time she took to complete intake interviews with applicants." Kosar Decl. ¶ 3. Plaintiff also declared that she complained about the manner in which Susan Kosar, Trish Edie, Dave Madden and Karen Glover selected cases for federal funding purposes. Scott Decl. ¶ 42. In May, 2004 plaintiff likewise complained about her Spanish-speaking clients who could not read and did not understand their rights and responsibilities before signing a document containing them. Id. Plaintiff complained to the lead worker Dave Madden that signing the document carried the possibility of felony convictions for their violation. Id. Plaintiff believes that because of these complaints she was harassed and retaliated against. Id. ¶ 17.
D. Plaintiff's Own Receipt of Benefits
Plaintiff has been the Legal Guardian of her nephew Ershell Franklin since he was four months old. Scott Decl. ¶ 21 Her nephew qualified for Public Assistance benefits, and plaintiff declares that defendants knew that she was a CALWORKS benefits recipient before they hired her. Id. According to plaintiff, in January, 2004, new procedures were instituted for Public Assistance cases including Quarterly Reporting. Id. ¶ 22. Plaintiff's understanding was that the Quarterly cycle for reporting changes would run from August 5, 2004 through November 5, 2004. Id. ¶ 23. On August 5, 2004, plaintiff signed and submitted a Quarterly Eligible/Status Report to renew her CALWORKS benefits. SUF ¶ 29. In this Report, plaintiff stated that she and Franklin moved to Vacaville on July 4, 2004. SUF ¶ 30. It was plaintiff's understanding that she could indicate changes to the permanent residence of the eligible child any time during the Quarterly cycle. Scott Decl. ¶ 23.
On August 9, 2004, plaintiff sent Franklin to reside with plaintiff's son, Jesse Jerome Scott, III, in Baton Rouge, Louisiana. SUF ¶ 34. According to plaintiff, at that time, she had not decided whether her nephew was going to live in Louisiana or in Vacaville. Scott Decl. ¶ 23. On August 16, 2004, she executed a "Custody Arrangement" whereby she gave "care, custody and control to my son, Jesse Jerome Scott III, of my nephew and legal charge, Ershell Lajuan Franklin . . . for the purpose of meeting any of his personal, education and emotional needs." SUF ¶ 36. The Custody Arrangement also provides that Franklin resided in Louisiana with plaintiff's son with her consent and permission. Declaration of Patrick Duterte In Support of Defendants' Motion for Summary Judgment ("Duterte Decl.") ¶ 7, Ex: B. The Custody Arrangement was notarized on August 17, 2004. SUF ¶ 38. Plaintiff claims that this document was only for the purpose of enrolling Franklin in school. Id. Franklin registered for school in Louisiana around August 23, 2007 and never returned to California as a resident. Id. ¶ 40.
On August 23, 2004, plaintiff met with Myrtle Boggan, an Employment Resource Specialist Supervisor with H SS, regarding her Cash Aid benefits for Franklin. SUF ¶ 41. According to plaintiff there was nothing new to report at this time since Franklin was not out of her home for more than 30 days, and she did not need to report his stay in Louisiana because she had not decided whether he would remain there. Scott Decl. ¶¶ 21-26. During the meeting plaintiff submitted a Statement of Facts for Cash Aid and signed it under penalty of perjury that the information she provided in the Statement was true, correct, and complete. SUF ¶ 42. Plaintiff also declared on this Statement under penalty of perjury that she understood her rights and responsibilities in the CALWORKS Cash Aid program. Id. ¶ 43. Plaintiff did not inform Boggan during the August 23, 2004 interview that Franklin was in Louisiana and was not currently physically living with her. SUF ¶ 48.
On September 9, 2004, Boggan requested the County Special Investigation Bureau to conduct an investigation into plaintiff's receipt of Cash Aid Benefits. SUF ¶ 50. In the course of the investigation, the County's Special Investigation Bureau contacted the school where Franklin was enrolled in Louisiana.Id. ¶ 53. Among the documents found in Franklin's school file was a notarized "custody arrangement" which stated that plaintiff's son, Jesse Scott III, had custody and control of Ershell Franklin. Id. ¶ 51.
Defendant Duterte, the Director of H SS, declared that based on these findings, he believed that Scott knowingly and willfully failed to report that the only child eligible for whom she was receiving CALWORKS Cash Aid was no longer living with her. Duterte Decl. ¶ 8. On September 22, 2004, Duterte sent Plaintiff a Notice of Proposed Termination. SUF ¶ 60. She requested an oral response, and a Skelly hearing was conducted by Defendant Duterte on October 4, 2004. Duterte Decl. ¶ 14. Taking into consideration Plaintiff's responses at the hearing and the information provided by the County Special Investigation Unit, Duterte decided to terminate plaintiff's employment as an ERS II. Id. ¶ 16. Duterte believed that plaintiff violated Solano County Civil Service Rule Section IX, 9.02(g) (dishonesty) and Civil Service Rule IX, 9.02(m) (willful violation of any of the provisions of the Civil Service Ordinance, Civil Service Rules, or of the Personnel and Salary Resolution). Id.
II. STANDARD FOR MOTION FOR SUMMARY JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 56
Summary judgment is appropriate when there exists no genuine issue as to any material fact. Such circumstances entitle the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995). Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Ltd., 51 F.3d at 853. In doing so, the opposing party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); see also First Nat'l Bank, 391 U.S. at 289. In evaluating the evidence, the court draws all reasonable inferences from the facts before it in favor of the opposing party. Matsushita, 475 U.S. at 587-88 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); County of Tuolumme v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). Nevertheless, it is the opposing party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 586-87 (citations omitted).
III. ANALYSIS
The defendants have moved for summary judgment on all of plaintiff's causes of action. For the reasons stated herein, the court grants the motion in part and denies it in part.
Unfortunately, plaintiff's memorandum in opposition to defendants' motion is disorganized, and frequently lacking in substance. By virtue thereof the court has found it difficult to discern what evidence the plaintiff has tendered in support of her claims or even, in some instances, what plaintiff's arguments are. The analysis contained herein is based on the court's best understanding of plaintiff's arguments, after reviewing her memorandum and all evidence she has tendered in its support.
A. Plaintiff's First Cause of Action
Plaintiff's first cause of action alleges unlawful discrimination under Title VII and California's Fair Employment and Housing Act (FEHA) relative to defendants' failure to promote her and the termination of her employment. Defendants' motion on this claim is granted in part.
1. Termination of Plaintiff's Employment
Plaintiff alleges wrongful termination based on her race in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e, et seq. and California's Fair Employment and Housing Act. Under Title VII it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privilege of employment, because of such individual's race." 42 U.S.C. 2000e-2(a)(1) (2005). "An individual suffers `disparate treatment' in . . . employment when [s]he is `singled out and treated less favorably than others similarly situated on account of race or any other criterion impermissible under [Title VII].'" Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988) (citing Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982)). Similarly, under the FEHA, an employer may not discriminate against an individual seeking, obtaining, or holding employment, based on that employee's race. Cal. Gov't Code § 12920. Claims of employment discrimination under the FEHA are analyzed under the same framework as those brought under Title VII. Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000); Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 517 (1998).
Title VII claims are analyzed in a three-part, burden shifting framework. First, "the plaintiff must establish a prima facie case of discrimination. If the plaintiff succeeds in doing so, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct. If the defendant provides such a reason, the burden shifts back to the plaintiff to show that the employer's reason is a pretext for discrimination." Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). Evidence of pretext raises an issue of fact which can only be resolved at trial. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993).
The burden-shifting framework is not necessary where the plaintiff tenders direct evidence of the defendant's discriminatory intent. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); Trans World Airlines v. Thurston, 469 U.S. 111, 121 (1985). That alternative is not relevant here, where the plaintiff's evidence tendered of discrimination is circumstantial.
Plaintiff can establish the prima facie case of disparate treatment through the framework set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973). "To establish a prima facie case of wrongful termination under McDonnell Douglas, plaintiff must offer proof that: (1) [s]he was a member of a protected class; (2) [s]he was performing [her] job in a satisfactory manner; (3) [s]he suffered an adverse employment action; and (4) other similarly-situated employees who were not members of the protected class were treated more favorably." Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir. 2002). These factors, of course apply to cases presenting such circumstances, and remain flexible to accommodate the diverse factual circumstances confronted in Title VII cases. McDonnell Douglas, 411 U.S. at 802 n. 13.
The burden on the plaintiff in making the prima facie case is not great. As the Supreme Court has explained, the purpose of this stage of the inquiry is to "eliminate the most common nondiscriminatory reasons" for defendant's actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Consequently, "summary judgment would only be appropriate at this stage of the litigation if plaintiff had failed to proffer sufficient evidence to permit a trier of fact to conclude that each of the required elements have been satisfied." United States v. California Dept. of Corrections, 1990 WL 145599 (E.D. Cal. Feb. 7, 1990).
Here, defendants do not dispute plaintiff is African-American, a class protected under Title VII or that they terminated plaintiff's employment. The County, however, contends plaintiff has not proffered sufficient evidence that she was treated differently than similarly situated employees who are not African-American. To establish the fourth element of the prima facie case, Plaintiff must demonstrate that similarly situated employees of any race were treated better than her. See Vazquez v. County of Los Angeles, 349, 349 F.3d 634, 641 (9th Cir. 2003). As is explained below, despite plaintiff's minimal burden in making a prima facie case, she has not made a showing sufficient to meet defendants' motion.
I do not explore the contours of "similar" because it is not an issue in this case. I pause only long enough to note that "similar" is not the same as identical.
The crux of plaintiff's argument appears to be that defendants terminated her employment based on her continued receipt of CALWORKS benefits when she was no longer eligible to receive them. She appears to argue that defendants improperly investigated her receipt of CALWORKS benefits because of racial animus, and then used the results of this investigation to justify her termination. Plaintiff, however, has not tendered any evidence from which a reasonable jury could conclude that defendants' investigation was conducted differently than it would be for an individual of another race. Plaintiff has failed to point to evidence establishing that any non African-American employee who had been suspected of improperly receiving benefits for which she was no longer eligible was disciplined in a more favorable way. Plaintiff has declared that she knows of "other similarly situated Caucasian employees who have violated work rules and policies" and were treated more favorably than her. Scott Decl. ¶ 29. She does not offer any factual evidence to support this assertion. On the other hand, the defendants point out that according to Georgia Cochran, County records indicate that in the late 1980s a female Caucasian employee was terminated for welfare fraud for collecting welfare benefits when she was not eligible. Declaration of Georgia Cochran In Support of Defendants' Motion for Summary Judgment ("Cochran Decl.") ¶ 23. This portion of the declaration, without the records themselves, is hearsay and thus cannot support a motion for summary judgment. See Bieghler v. Kleppe, 633 F.2d 531, 522 (9th Cir. 1980); Rossi v. Trans World Airlines, Inc., 507 F.2d 404, 406 (9th Cir. 1974); S S Logging Co. v. Barker, 366 F.2d 617, 624 n. 7 (9th Cir. 1966). Thus, under the present record, it is not at all clear that plaintiff has failed to establish a prima facie case.
Plaintiff cannot be faulted for failing to produce evidence of unequal treatment if there is no evidence of any discipline of similarly situated employees.
Nonetheless, even if plaintiff had established a prima facie case of discrimination under the McDonnell Douglas framework, the motion would still have to be granted. The County has offered evidence of a legitimate, nondiscriminatory reason for terminating plaintiff. Defendants have tendered evidence that defendant Duterte reviewed the findings of the investigation into plaintiff's continued receipt of benefits for her nephew and concluded that plaintiff's actions were, at best, unethical. Duterte Decl. ¶ 8. He also declared that plaintiff's responses at the Skelly hearing were not convincing, leading to his decision to terminate her employment. Id. ¶ 16. In reaching that conclusion Duterte identified the County civil service rules that he believed the plaintiff violated. Id. All the above tenders a legitimate non-discriminatory reason for plaintiff's termination. See, e.g.,Vasquez, 349 F.3d at 641 (plaintiff's failure to follow supervisor's directives satisfied this prong on the McDonnell Douglas test).
To meet the defendants' showing plaintiff must tender evidence raising a question as to whether defendants reasons were pretextual, requiring trial. Plaintiff can show pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."Texas Dep't of Cmty. Affairs, 450 U.S. at 256. In doing so, plaintiff may, of course, rely on circumstantial evidence and may rely on the same evidence used to establish the prima facie case.Burdine, 450 U.S. at 256 n. 10; Domingo v. New England Fish Co., 727 F.2d. 1429, 1435 (9th Cir. 1984), modified, 742 F.2d 520 (9th Cir. 1984). At the summary judgment stage, the plaintiff need only "produce very little evidence of discriminatory motive to raise a genuine issue of fact as to pretext. In fact, any indication of discriminatory motive may suffice to raise a question that can only be resolved by a factfinder." Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (internal quotations omitted); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000). In fact, a plaintiff may survive the defendant's summary judgment motion simply with "quite persuasive" circumstantial evidence that the defendants' proffered legitimate reason for the employment action is not credible. Reeves, 530 U.S. at 146-49.
Here, the plaintiff has not produced even this minimal evidence required to show that a resolution of the question of pretext is proper by a factfinder. Plaintiff asserts as evidence of pretext her own conclusion that the reasons provided for her termination were a pretext. Scott Decl. ¶¶ 30, 38, 52. Without more, such as an evidentiary basis for such a belief, this is insufficient.Collings v. Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995).
Additionally, plaintiff has, perhaps, tendered as evidence in support of her assertion, the decision of the California Unemployment Insurance Appeals Board, affirming that the plaintiff was eligible for unemployment benefits because she was not terminated for "misconduct." Scott Decl. ¶ 50, Ex.8. The Board based its decision on it conclusion that there was no evidence that the plaintiff had engaged in criminal activity or that she had processed her own benefit application. Id.
Given the circumstances, the Board's rational is difficult to credit; however, as I explain above, other reasons undermine the plaintiff's contention that the Board's decision is evidence sufficient to defeat defendants' motion.
The question is whether that decision of the Board suffices to create a question for the trier of fact. California law establishes that decisions of the Board are not res judicata. Pratt v. Local 683, Film Technicians etc., 260 Cal. App. 2d 545 (1968); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986). Thus, the Appeals Board's decision it is not a prior factual determination concerning the circumstances of the plaintiff's discharge but rather is another fact finder's determination upon application of criteria not relevant to the issue before this court. Here the issue is not the right to unemployment benefits but whether defendants' purported reason for terminating the plaintiff was pretextual. The court concludes that the plaintiff's personal belief coupled with the Board's determination is insufficient to raise a question of fact that would permit a reasonable jury to find in her favor on this issue. Accordingly, summary judgement must be granted to the defendants' on the first cause of action, to the extent that it alleges that they violated Title VII or the FEHA in her termination.
2. Defendants' Failure to Promote Plaintiff
Plaintiff's allegation that defendants' failure to promote her violates Title VII and the FEHA is also governed by the burden-shifting framework established in McDonnel Douglas. In order to prove a claim of failure to promote, in violation of Title VII, "[u]nder McDonnell Douglas plaintiff has the initial burden to establish a prima facie case of racial discrimination by showing: (1) that plaintiff belongs to a racial minority; (2) that plaintiff applied and was qualified for a job for which the employer was seeking applications; (3) that, despite plaintiff's qualifications, plaintiff was rejected; and (4) that the job remained open" or was filled by a person who was not a member of a protected class. McDonnell Douglas, 411 U.S. at 802; Hagans v. Andrus, 651 F.2d 622, 625 (9th Cir. 1981). As stated above, the plaintiff's burden in establishing a prima facie case is "not onerous." Texas Dep't of Community Affairs, 450 U.S. at 253. "The function of theMcDonnell Douglas prima facie case is to eliminate the two most common reasons why an applicant may be rejected: an absolute or relative lack of qualifications, or lack of an open position."Barefield, 500 F. Supp. 2d at 1261 (citing Int'l Broth. of Teamsters, 431 U.S. at 358 n. 44).
Once again if plaintiff establishes the prima facie case, the burden shifts to the employer "to articulate a legitimate, nondisciminatory reason for the plaintiff's rejection."Barefield, 500 F. Supp. 2d 1244 at 1260 (citing Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995)). The employer can accomplish this by introducing evidence of nondiscriminatory reasons for the plaintiff's rejection. Texas Dep't of Cmty. Affairs, 450 U.S. at 255. "If the employer sustains this burden, the plaintiff must then demonstrate that the proffered nondiscriminatory reason is merely a pretext for discrimination" Id. Again, the immediate issue is whether plaintiff has produced evidence requiring a trial of the issue of pretext.
The plaintiff applied for the following positions: Employment Eligibility Service Manager, Contract and Program Specialist, Employment Resources Specialist III, Employment Resource Specialist Supervisor. SUF ¶ 76. Plaintiff was not promoted to any of these positions and alleges that she was discriminated against on the basis of race.
a. Employment Eligibility Services Manager
Plaintiff applied for the position of Employment Eligibility Services Manager in April 2004. SUF ¶ 12. At that time she was a ERS II with Solano County. The minimum qualification for the position were three years of increasingly responsible experience in a Public Assistance program of which one year was in a supervisory capacity; a bachelors degree in social work, public administration, business administration or a related field; and knowledge of budget expenditure monitoring and the principles and practices of public administration and program management, including planning, implementation, and evaluation. Cochran Decl. ¶ 6, Ex. A.
Even given the minimal nature of plaintiff's burden in establishing her prima facie case, Texas Dep't of Community Affairs, 450 U.S. at 253, plaintiff has not met her burden because she has not shown that she was qualified for the position. Plaintiff's application does not indicate that she had experience in budget monitoring, evaluating program effectiveness, developing goals and objectives for assigned work units, or preparing narrative and statistical reports. Id. ¶ 7, Ex. B. The plaintiff's application indicates that she had experience in caseload management only. Id. She did not indicate having been in supervisory capacity at any of her previous positions. Id. Thus plaintiff has not met her prima facie burden to show that she was qualified for this position.
Even if Scott had met her prima facie case, the County has presented a legitimate nondiscriminatory reason for not promoting plaintiff: she was not the most qualified applicant. See Barefield, 500 F. Supp. 2d 1244, 1261 (that a more qualified applicant was offered the position in question is a legitimate, non-discriminatory reason). The first applicant who was hired for the position had a bachelors degree in business administration and worked for seven years as an Eligibility Program Supervisor for H SS Employment and Eligibility Services Department. Cochran Decl. ¶ 20, Ex. O. She also had more than five years of experience managing contracts and writing budgets. Id. The second successful applicant had a bachelors degree in business administration and over nine years of experience with the H SS Department as an Eligibility Benefits Specialist Supervisor. Id. ¶ 20, Ex. P. Plaintiff has presented no countervailing evidence that this legitimate reason was pretextual.
Accordingly defendants' motion must be granted to the extent that plaintiff alleges that defendants violated Title VII and the FEHA by failing to promote her to the Employment Eligibility Services Manager position.
b. Contract and Program Specialist
In April 2004, plaintiff applied for the Contract and Program Specialist position. Cochran Decl. ¶¶ 20-21. The Contract and Program Specialist position required two years of progressively responsible business or contract administration experience and a degree from an accredited university with major upper division course work preferably in business, public administration, finance or accounting. Id. ¶ 10, Ex. E. The position also required knowledge of principles and practices of contract law and administration and the ability to research and analyze contract terms and conditions. Id.
Again, plaintiff has not met her prima facie burden because she has not shown that her application demonstrated that she met the minimum qualifications for this position. Her application did not indicate that she had two years of progressively responsible business administration experience. See Duterte Decl. ¶ 8, Ex. D. As a Case Manager II for the State of Tennessee Department of Child Services, she negotiated agency adoption contracts, a position she held for only a year. Id. Ex. F. The description for her other two jobs indicates that she was primarily responsible for caseload management and not business or contract administration. Id. Plaintiff has declared that she was employed as a Judicial Assistant to the Chief Judge of the East Baton Rouge Parish Juvenile Court Division between August 1998 to April 2000. Scott Decl. ¶ 6. She also has declared that she was a practicing attorney providing legal representation to clients in the areas of juvenile dependency from February 1989 until June 1995. Id. Plaintiff, however, did not list either of these previous experiences on her employment application for the Contract and Program Specialist Position. Duterte Decl. ¶ 8, Ex. F. The application specifically indicated that omitted information would not be considered or assumed. Id. Accordingly, plaintiff is unable to meet her prima facie burden.
Furthermore, the successful applicant for the position had extensive experience in contract management and monitoring, including developing budgets to conform to State and Federal requirements. Cochran Decl. ¶ 22. Ex. Q. Even if the plaintiff had met her prima facie burden, she has tendered no evidence to rebut this legitimate, non-discriminatory reason for defendants' failure to promote her to the Contracts and Program Specialist position. Summary judgment is granted for defendants on plaintiff's first cause of action, to the extent that it alleges that defendants acted unlawfully in failing to promote her to that position.
c. Employment Resources Specialist III (Lead Worker)
Plaintiff applied for the ERS III position sometime between April and May 2004. SUF ¶ 12. The position required two years of experience performing duties equivalent to an Employment Resource Specialist II or an Eligibility Benefits Specialist II in a California County Department of Social Services or three years of professional casework experience performing public funded vocation guidance services, employment placement or counseling and course work in sociology. Silva Decl. ¶ 7, Ex. B. A bachelor degree could count as a substitute for one year of experience. Ex. B. Plaintiff had a Bachelor's degree in Sociology at the time of her application. Scott Decl. ¶ 7.
The parties dispute the date of plaintiff's promotion to ERS II. Plaintiff alleges that she had been promoted to ERS II on January 5, 2003. Scott Decl ¶ 11. Plaintiff's supervisor claims she was promoted in February 2003. Kosar Decl. ¶ 3. As is explained beow, this disputed issue is not dispositive. If a fact finder were to credit defendants' date, plaintiff had as required over one year of experience as an ERS II at the time of her application. Silva Decl. ¶ 8. Therefore, under such circumstances plaintiff met the minimum qualifications for the position and established a prima facie case of discrimination.
It is, to say the least, difficult to know why defendant tenders a declaration in support of its contention, because there must be records that demonstrate when plaintiff was promoted.
As explained above, once plaintiff establishes the prima facie case, the burden shifts to the employer "to articulate a legitimate, nondiscriminatory reason for the plaintiff's rejection." Barefield, 500 F. Supp. 2d 1244 at 1260. Ms. Silva, the manager responsible for overseeing supervisors and interviewing employees, has declared that she did not recommend plaintiff because she believed that plaintiff did not have the requisite experience and "other candidates were better qualified for the position based on their experience and skills exhibited during their interview." Silva Decl. ¶ 12. The declarations presented by the County do not indicate the qualifications of individuals eventually hired for the position. See id. This leads to the question of whether there exists a triable issue of fact. While it is certainly true that the burden is on the plaintiff to demonstrate discrimination, the plaintiff need not prove discrimination at the summary judgment stage. Instead, the court need only ask whether there is a material issue of fact permitting a factfinder to find in plaintiff's favor. While a defendant's legitimate reason may be a subjective one, "the defendant's explanation of its legitimate reasons must be clear and reasonably specific". Burdine, 450 U.S. at 257; see also EEOC v. Ins. Co. of N. Am., 49 F.3d 1418, 1420-21 (9th Cir. 1995) (under ADEA, defendants' legitimate, age-neutral reason for failing to interview plaintiff for being "overqualified" was adequate; although "overqualification" was a subjective term, defendants had indicated what objective concerns it encompassed). Nonetheless, subjective reasons require close examination as to whether they mask discrimination. Here, the plaintiff asserts that she was qualified and defendants assert, with no evidentiary support, that the hiree was more qualified. Under the circumstances the defendants' motion must be denied as to plaintiff's first cause of action to the extent that the claim is based on defendants' failure to promote her to Employment Resource Specialist III. See Reeves, 530 U.S. at 148 ("[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation").
d. Employment Resource Specialist Supervisor
Plaintiff applied for the Employment Resource Specialist Supervisor position in May 2004. Silva Decl. ¶ 9. The Employment Resources Specialist Supervisor position required two years of experience as an Employment Resources Specialist III, with at least one year as a supervisor; or one year of experience as an Eligibility Benefits Specialist Supervisor; or three years of professional casework experience performing vocational guidance services, employment placement or counseling work, with at least one year of supervisory experience; or any equivalent combination of education, training and experience that would provide the required knowledge. Silva Decl. ¶ 6; Ex. A. A bachelor's degree could substitute for one year of experience, except for supervisory experience. Id.
Plaintiff has not met her prima facie burden here to show that she possessed the requisite qualifications for the position she sought. Texas Dep't of Community Affairs, 450 U.S. at 253. There is no evidence before the court that would permit a fact finder to conclude that at the time she applied for the position, plaintiff possessed two years of experience as an Employment Resources Specialist III or one year as an Eligibility Benefits Specialist Supervisor. See Scott Decl. ¶¶ 4-5 (describing the dates she held her positions). There is also no evidence that she had three years of professional casework experience performing vocational guidance services, employment placement or counseling work, with at least one year of supervisory experience. Id. Consequently, she has failed to make a prima facie case with respect to this position. Defendants' motion is granted to the extent that plaintiff's first cause of action is premised on defendants' failure to promote her to this position.
e. Social Worker III
County records indicate that plaintiff applied for the Social Worker III position in April 2004. Duterte Decl. ¶ 8, Ex. C. Plaintiff alleges that she did not apply for the position and that the County falsified the application and submitted the application on her behalf. Scott Decl. ¶ 14. In effect, plaintiff has abandoned this claim and the court will not consider it further.
f. Temporary Positions
In January 2004, non-supervisory employees were given the opportunity to temporarily hold a supervisory position to gain experience while a recruitment to permanently fill the position was conducted. Declaration of Sheri Toy In Support of Defendants' Motion for Summary Judgment ("Toy Decl.") ¶ 3. Plaintiff applied for the following temporary positions: Employment/Eligibility Services Manager, Employment Resources Specialist Supervisor, and Employment Resources Specialist III. SUF ¶ 10. Employees who were selected for the temporary supervisory positions had to meet the minimum qualifications for the position to be selected. Toy Decl. ¶ 3. Defendants have tendered evidence that the plaintiff was not selected for any of these positions because she did not possess the minimum qualifications for these temporary positions. Silva Decl. ¶¶ 4-8.
Plaintiff applied for these positions again in April and May 2004, as discussed above.
i. Employment Resources Specialist Supervisor
Plaintiff applied for the Employment Resources Specialist Supervisor position in January 2004. SUF ¶ 10. The position required: two years of experience as an Employment Resources Specialist III, with at least one year as a supervisor; or one year of experience as an Eligibility Benefits Specialist Supervisor; or three years of professional casework experience performing vocational guidance services, employment placement or counseling work, with at least one year of supervisory experience; or any equivalent combination of education, training and experience that would provide the required knowledge. Silva Decl. ¶ 6, Ex. A. A bachelor's degree could substitute for one year of experience, except for supervisory experience. Id.
Plaintiff has not met her prima facie burden to show that she was qualified for these positions. See Texas Dep't of Community Affairs, 450 U.S. at 253. Plaintiff has tendered no evidence to show that at the time she applied for the position, she had two years of experience as an Employment Resources Specialist III or one year as an Eligibility Benefits Specialist Supervisor. See Scott Decl. ¶¶ 3-16 (describing her experience). She also did not have three years of professional casework experience performing vocational guidance services, employment placement or counseling work, with at least one year of supervisory experience. Id. Plaintiff has failed to state a prima facie case with respect to this position.
ii. Employment Resources Specialist III (Lead Worker)
Plaintiff applied for the Employment Resources Specialist III position in January 2004. SUF ¶ 10. The position required: two years of experience performing duties equivalent to an Employment Resource Specialist II or an Eligibility Benefits Specialist II in a California County Department of Social Services or three years of professional casework experience performing public funded vocation guidance services, employment placement or counseling and course work in sociology. Silva Decl. ¶ 7; Ex. B. A bachelor degree could count as a substitute for one year of experience. Id.
Plaintiff had a Bachelor's degree in Sociology to compensate for one year of experience. Scott Decl. ¶ 7. The parties dispute the date of plaintiff's promotion to ERS II. The plaintiff has declared that she was promoted to ERS II on January 5, 2003. If this is the case, she had a year of experience as an ERS II at the time of the application and would qualify for the position. Scott Decl. ¶ 11. Scott's supervisor, Susan Kosar, has declared that she promoted Scott to ERS II in February 2003. Kosar Decl. ¶ 3. If that were the case, plaintiff would not meet the qualifications. If a fact finder were to credit the plaintiff's recollection, she has made her prima facie case.
The defendants have not met their burden to produce evidence of a ligitimate, non-discriminatory reasons for plaintiff not being selected for this temporary position. The only evidence defendants tendered on this issue is Ms. Silva's and Ms. Toy's declarations that they believed plaintiff was not qualified for the position. See Silva Decl. ¶¶ 8, 11. Obviously, if the jury were to credit the plaintiff in her prima facie case, they could similarly discredit Ms. Silva's and Ms. Toy's veracity in the sincerity of their proffered reason. See Reeves, 530 U.S. at 146-49. This suffices to create a genuine issue for trial. Summary judgment is therefore denied on this claim to the extent that it is based on the plaintiff's application for the temporary position of Employment Resources Specialist III (Lead Worker).
iii. Employment Eligibility Services Manager
Plaintiff applied for the temporary position of Employment Eligibility Services Manager in January 2004. SUF ¶ 10. At that time she was a ERS II with Solano County. Minimum qualification for the Employment Eligibility Service Manager were: three years of increasingly responsible experience in a Public Assistance program of which one year was in a supervisory capacity; a bachelors degree in social work, public administration, business administration or a related field; and knowledge of budget expenditure monitoring and the principles and practices of public administration and program management. Cochran Decl. ¶ 6, Ex. A.
The plaintiff has not made a prima facie case that she was qualified for this position. See Texas Dep't of Community Affairs, 450 U.S. at 253. Her application does not indicate that she had experience in budget monitoring, evaluating program effectiveness, developing goals and objectives for assigned work units, or preparing narrative and statistical reports. Scott Decl. ¶¶ 5-7, Ex. 2. Her application also indicated that she was also not in supervisory capacity at any of her previous positions. Id. Accordingly, summary judgement is granted for the defendants on plaintiff's first cause of action to the extent that it is based on defendants' failure to promote her to this position.
g. Plaintiff's Participation In the Future Leaders Program
Plaintiff alleges that Lewis, Silva and Toy led her to believe that participation in the Future Leaders Program for the Solano County Health and Social Services Department would qualify her for the supervisory and managerial positions. Scott Decl. ¶ 34. Plaintiff further alleges that she relied on their representations that participation in the program was for the purpose of filling the temporary supervisory positions. Both Peggy Silva and Sheri Toy have declared that participants in the Future Leaders Program were not guaranteed a promotion to a supervisory position. Silva Decl. ¶ 14; Toy Decl. ¶ 9.
The evidence tendered by both parties shows that on May 14, 2004, the plaintiff received an e-mail inviting her to learn more about the Future Leadership Program on May 26, 2004. Boyd Decl. ¶ 10, Ex. 11. On May 26, 2004, she was added to the Future Leaders Program Commitment List. Id. Open enrollment for the group of Future Leaders was due to close on June 1, 2004, and the Introduction to Supervision training began on June 9, 2004. Id.
Based on the evidence before the court, a fact finder could not reasonably conclude that plaintiff reasonably believed that her participation in the Future Leaders Program would substitute for certain qualifications for the positions for which she applied. Plaintiff applied for the three temporary positions in January 2004, before she found out about the Future Leadership program on May 26, 2004. The program did not begin until June 2004, after she had applied for the permanent positions in April and May 2004. Furthermore, the Future Leadership program had training scheduled through March 2005. Boyd Decl. Ex. 11. Based on this chronology, a factfinder could not find reasonable the plaintiff's alleged belief that her participation in the program would qualify her for certain positions.
B. Plaintiff's Second Cause of Action
In her second cause of action, plaintiff alleges the defendants harassed her, in violation of the FEHA. In order to establish the prima facie hostile work environment claim, plaintiff must raise a triable issue of fact as to whether "(1) she was subject to verbal or physical conduct because of her race, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the condition of plaintiff's employment and create an abusive work environment." Manatt v. Bank of America, 339 F.3d 792, 798 (9th Cir. 2003). "The hostile work environment must both subjectively and objectively be perceived as abusive."Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000).
As stated above, this claim under the FEHA is analyzed under the framework for comparable Title VII claims. Brooks, 229 F.3d at 917; Beyda, 65 Cal. App. 4th at 517.
With respect to defendant Duterte, there is no evidence before the court that would permit a reasonable jury to conclude that he subjected plaintiff to harassment. The only evidence tendered is that relating to plaintiff's termination. Defendants have presented evidence that Duterte, the Director of the County's H SS Department, relied on the evidence presented by the Solano County Special Investigation Unit and determined that Scott was involved in welfare fraud or in any event that her conduct was unethical. Duterte Decl. ¶¶ 8-11. He directed Rose Mary Lewis to notify Ms. Scott of the proposed termination and that she could respond to the notice or in writing by contacting him within ten calendar days. Id. ¶ 12, Ex. C. The plaintiff responded and requested a Skelly hearing, which was conducted on October 4, 2004. Id. ¶ 14. After considering Scott's written and oral responses to her proposed termination, Duterte elected to proceed with the termination on October 14, 2004. Id. ¶ 16.
This evidence does not suffice to show Duterte engaged in harassment. "Unlike other forms of discrimination, harassment or hostile work environment claims under California's FEHA concern actions outside the scope of job duties which are not of a type necessary to business and personnel management." Velente-Hook v. Eastern Plumas Health Care, 368 F. Supp. 2d 1084, 1102 (E.D. Cal. 2005). "[P]ersonnel management actions commonly necessary to carry out the duties of business and personnel management, and thus outside the purview of harassment, include hiring and firing, job or project assignment . . . promotion or demotion, performance evaluations, . . . the assignment or non-assignment of supervisory functions, and decisions regarding meetings." Id. Plaintiff has presented no evidence from which a reasonable factfinder could infer that Mr. Duterte had improper motives or engaged in any harassment because of plaintiff's race. Plaintiff's conclusory statements that Defendant's action was motivated by her race do not suffice to withstand summary judgement. Nat'l Steel Corp.v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).
There is also insufficient evidence to permit a fact finder to conclude that defendant Patricia Edie engaged in unlawful harassment against the plaintiff. The plaintiff asserts that Edie took adverse personnel actions against her which constituted a hostile work environment. Scott Decl. ¶ 20. According to plaintiff, Edie assigned her Spanish speaking clients even though plaintiff does not speak Spanish. Id. ¶¶ 19-20, 43; see also SUF ¶ 120. She asserts that defendant overloaded plaintiff with a case load that she knew plaintiff could not complete, and complained about the length of time plaintiff took to interview her clients. Id.
Edie has declared that she was rarely at the Vacaville office, and only spoke with plaintiff on two occasions. Declaration of Patricia Edie In Support of Defendants' Motion for Summary Judgment ("Edie Decl.") ¶ 8. One of the conversations was initiated by Scott and not work related. Id. The second conversation was regarding Scott's time record. Id. According to Edie, plaintiff never complained to her that she was being assigned Spanish speaking clients or that she felt Solano County employees were harassing or retaliating against her. Id. ¶ 6. Edie further alleged that she never told plaintiff to speed up her client intake interviews. Id. ¶ 7.
Even though the facts are in dispute, Ms. Scott has failed to established a prima facie case because defendant Edie's actions on which the plaintiff bases her claim are not outside of Edie's duties as a supervisor. See Reno v. Baird, 76 Cal. Rptr. 2d 499, 502 (1998) (holding that "harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives").
Finally, the plaintiff has tendered no evidence that would permit a factfinder to hold the County liable for harassment. The FEHA prohibits an employer from failing to take steps that prevent discriminatory harassment from occurring. Cal. Gov't Code § 12940(k). Here, plaintiff has made no showing that Duterte, Edie, or any other County employee harassed her. As such, the County cannot be liable as a matter of law. Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280, 289 (1998).
Accordingly, defendants' motion for summary judgement is granted on the plaintiff's second cause of action.
C. Plaintiff's Third Cause of Action
In her third cause of action, the plaintiff alleges that the defendants unlawfully retaliated against her in violation of the FEHA. Under the FEHA anti-retaliation provision it is unlawful for "any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov. Code 12940(h). "The law protects an employee from discrimination `because' the employee has opposed what he reasonably believes to be an unlawful practice." La Strape v. E J Gallo Winery, No. 1-08-784, 2008 WL 2509203 (E.D. Cal., Jun. 23, 2008); Manatt v. Bank of America, 339 F.3d 792 (9th Cir. 2003) (construing Title VII). To survive a motion for summary judgment, plaintiff must first show (1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two. McAlindin v. County of San Diego, 192 F.3d 1226, 1238 (9th Cir. 1999). "Thereafter, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. Once the employer carries this burden, plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext." Id. Only then does the case proceed beyond the summary judgment stage. Id.
As stated above, the test for determining whether there is discrimination under FEHA is the same as that utilized in analyzing Title VII claims. Tarin, 123 F.3d at 1263 n. 2.
The California Supreme Court has held that employers may be liable for retaliation under the FEHA, but non-employer individuals working for the employer, including supervisors, may not be held personally liable. Jones v. Lodge at Torrey Pines P'ship, 42 Cal. 4th 1158 (2008). Accordingly, plaintiff does not have a retaliation cause of action against Defendants Edie and Duterte, and summary judgement is granted in their favor.
Furthermore, plaintiff has failed to state a prima facie case for retaliation by the County or the H SS because she has tendered no evidence that she engaged in a protected activity under FEHA. There is no evidence before the court from which a factfinder could conclude that the plaintiff opposed any practices forbidden under FEHA such as discrimination and harassment on the basis of sex, race, religion, and other enumerated characteristics.
Plaintiff's only evidence in support of this claim appears to be that relating to the County's failure to promote her. After applying for the temporary positions in January 2004, plaintiff "inquired about the reason why [she] was not selected for any of these positions." Scott Decl. ¶ 15. Plaintiff has testified that she believed she contacted Rose Mary Lewis, Susan Kosar and Peggy Silva to ask about the status of her application. SUF ¶ 121. Plaintiff also has testified that she asked these individuals, "why didn't you make the assignments like you said you were going to make the assignments to people in the department, namely to myself." SUF ¶ 122. Plaintiff posits that from these inquiries she expected these individuals to understand that she was saying that they were discriminating against her because of her race. SUF ¶ 123. Plaintiff declares that following these inquiries she became a target of unfair discipline. Scott Decl. ¶ 16.
An employee cannot survive summary judgement absent evidence demonstrating that she "gave the employer enough information to make a reasonable employer think there was some probability" that she was being subject to unlawful conduct because of a protected characteristic. Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1187 (9th Cir. 2005) (quoting Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 1019 (7th Cir. 1996)). Here, a reasonable jury could not find that plaintiff's inquiries regarding who got promoted to the positions would put defendants on notice that plaintiff was complaining of discrimination because of her race. Indeed, from all that appears, no County employee was aware of any complaints by plaintiff about discriminatory treatment. Silva Decl. ¶ 20; Declaration of Myrtle Boggan In Support of Defendants' Motion for Summary Judgment ("Boggan Decl.") ¶ 14; Kosar Decl. ¶ 14; Declaration of Carol Saint-Louis In Support of Defendants' Motion for Summary Judgment ("Saint-Louis Decl.") ¶ 16; Edie Decl. ¶ 9; Duterte Decl. ¶ 21; Toy Decl. ¶ 11.
Even if plaintiff had made her prima facie case, she must also demonstrate that she opposed the practice because she reasonably believed it to be discriminatory. See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (granting defendant summary judgement on the retaliation claim because plaintiff had not shown that he ever opposed the employment practice as discriminatory and merely opposed it for personal reasons). At the time plaintiff made inquiries regarding the promotions, plaintiff could not have reasonably believe that she was making a complaint about discrimination because she did not know who received the promotions, and she did not know the race or qualifications of the individuals selected. Angelo Decl. ¶¶ 1-5 (Scott. Depo. 52: 16-15; 57: 7-60). Accordingly, summary judgement is granted on the plaintiff's third cause of action.
D. Plaintiff's Common Law Causes of Action
1. California Government Claims Act
Several of the plaintiff's causes of action have been brought under common law and fail as a matter of law because the plaintiff has not identified an authorizing statute. These include plaintiff's fifth (negligent infliction of emotion distress), sixth (discipline in violation of public policy), seventh (wrongful termination in violation of public policy), eighth (wrongful termination) and eleventh (negligent hiring, supervision, and training) causes of action.
The court does not include plaintiff's intentional tort claims (intentional infliction of emotional distress and defamation) in this group, as they are authorized under California Government Code § 815.3 in certain circumstances. These claims are discussed in section III.D.2, infra.
The California Government Claims Act provides that "except as otherwise provided by statute, [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Cal. Gov't. Code § 815. "Public entities" include counties, public agencies, and any other political subdivision of the state. Id. § 811.2. As the plain language of § 815 suggests, the purpose of the statute is to "abolish all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution. . . ." Id. § 815 Senate Committee Comment;see also Williams v. Horvath, 16 Cal. 3d 834, 838 (Cal. 1976) (purpose of the Government Claims Act is to limit public entity liability narrowly, to statutorily-defined circumstances); Flanagan v. Benicia Unified Sch. Dist., No. S-07-333, 2007 WL 4170632, at *4 (E.D. Cal. Nov. 19, 2007). "Public policy" cannot sustain a claim for damages under § 815, unless that public policy has been expressly codified in an authorizing statute. Ross v. San Francisco Bay Area Rapid Transit Dist., 146 Cal. App. 4th 1507 (2007) (holding a claim for wrongful termination in violation of public policy against a state agency was barred under § 815 because there was no authorizing statute).
In its September 5, 2006 order granting in part the defendants' motion to dismiss, the court held that § 815 did not bar plaintiff's claims for constructive discharge and termination because these were authorized by the FEHA. Subsequently, the California Court of Appeals considered and rejected this interpretation. Ross, 146 Cal. App. 4th at 1517 n. 9. The court therefore abjures its prior holding, to the extent that it conflicts with current state law.
With regards to plaintiff's negligence claims specifically (her fifth and eleventh causes of action), Government Code § 815.6 expressly requires an authorizing statute, which has not been identified here. A public entity or its agents can be sued for negligence only if it failed to discharge a mandatory duty. Cal. Gov't Code § 815.6. Specifically, a public entity may be liable for negligence if "an enactment" has created a mandatory, not discretionary, duty for the purpose of protecting against the risk of the type of injury of which the plaintiff complains, and that the breach of the duty has proximately caused the plaintiff's injuries. Becerra v. County of Santa Cruz, 68 Cal. App. 4th 1450, 1458 (1998); see also Flanagan v. Benicia Unified Sch. Dist., No. S-07-333, 2008 WL 435355 (E.D. Cal. Feb. 14, 2008) (Karlton, J.).
Not only does plaintiff fail to identify an authorizing statute for her eleventh cause of action (negligent hiring, supervision, and training), defendant's employment relationship with plaintiff is not a special relationship giving rise to a duty of care to her. Foley v. Interactive Date Corp., 47 Cal. 3d 654, 793-93 (1988). To the extent that this claim alleges that such a duty existed, defendants' motion must be granted.
Here, the plaintiff has identified no statute or other enactment that would authorize her fifth, sixth, seventh, eighth and eleventh causes of action. She argues that her sixth, seventh, and eighth claims — which allege wrongful discipline or termination — are authorized under the general principle that a plaintiff may bring suit for "fraudulent prevent[ion of] redress and retaliation" and "violation of an employee's right to privacy." Plaintiff's Memorandum In Opposition to Defendants' Motion for Summary Judgment at 35-36. The cases she cites for this position, however, do not stand for as broad a principle as plaintiff asserts. In Operating Eng'rs Local 3 v. Johnson, 110 Cal. App. 4th 180 (2003), the California Court of Appeals held only that an employee could bring a claim for violation of her constitutional right to privacy in court, as this claim was not under the exclusive authority of the Workers Compensation Appeals Board. See also Fretland v. County of Humboldt, 69 Cal. App. 4th 359 (1999) (holding that employee's claims for intentional and negligent infliction of emotional distress were not under the exclusive purview of the workers' compensation statute). Even if a jury were to credit the plaintiff's evidence of the defendants' conduct that the plaintiff characterizes as violative of her privacy rights, including disclosing that information about her welfare case to third parties and basing her termination on groundless welfare fraud allegations, the court is not aware of any state enactment that would authorize plaintiff's recovery notwithstanding Government Code §§ 815 and 815.6. Defendants' motion, therefore, must be granted as to plaintiff's fifth, sixth, seventh, eighth and eleventh causes of action.
2. Immunity of Defendants
The plaintiff has brought her fourth (intentional infliction of emotional distress), sixth (discipline in violation of public policy), seventh (wrongful termination in violation of public policy), eighth (wrongful termination), ninth (violation of California constitution Article I, Section 9), and twelfth (defamation) causes of action against defendants Duterte and Edie. In addition to the other deficiencies in these claims discussed herein, the individual defendants are immune from liability for the conduct identified by plaintiff as the basis of these causes of action.
Public employees are typically immune from liability for their discretionary acts. Caldwell v. Montoya, 10 Cal. 4th 972 (1995). A public employee has broad immunity for employment decisions, including decisions relating to discipline and termination of an employee. Cal. Gov't Code §§ 820, 820.2, 821.6; Caldwell, 10 Cal. 4th at 981-82 (immunity for school board "dealing with personnel problems," including the decision to fire a school superintendent); Hardy v. Val, 48 Cal.2d 577, 581 (Cal. 1957) (immunity for state defendant who maliciously initiated groundless employment termination proceedings against plaintiff); Shoemaker v. Myers, 2 Cal. App. 4th 1407 (1992) (holding that a claim of wrongful termination in violation of public policy "falls squarely within section 821.6"); Kemmerer v. Fresno, 200 Cal. App. 3d 1436-37 (1988) (official immune under § 821.6 from tort claims relating to an investigation leading to the termination of an employee). The official remains immune even if he acted with malice or without probable cause. Cal. Gov't Code § 821.6.
In contrast, a public employee may be liable for acts or omissions related to ministerial functions. Cal. Gov't Code § 820.2; Lopez v. S. Cal. Rapid Transit Dist., 40 Cal. 3d 780, 794 (1985). The distinction between a discretionary and ministerial act depends on the circumstances. Id. Generally, a policy decision is a discretionary one; the steps an employee is required to take to carry out those decisions are ministerial.Id.; see generally Johnson v. State, 69 Cal.2d 782, 796-97 (1968) (collecting cases). Nonetheless, an act may be ministerial even if the employee exercised some decision making in choosing his course of conduct. Lopez, 40 Cal. 3d at 794. For example, state statute requires a bus driver to protect his passengers from assaults from other passengers; that is a ministerial duty, even though the bus driver uses his judgment in deciding how to respond. Id. If an employee is immune from liability for his own act or omission, his employer is immune as well, unless a statute specifically allows for the liability of the employer. Cal. Gov't Code § 815.2(b); see,e.g., Cal. Gov't Code § 830 (providing that a public entity may be liable for dangerous conditions on its premises even if its agents are immune from suit).
Here, the plaintiff bases her allegations for these claims on defendants' conduct relating to her termination and to her investigation for improper receipt of welfare benefits. She has not tendered adequate evidence on either grounds, however, to show that defendants are not immune.
As stated above, plaintiff's opposition memorandum and supporting evidence is disorganized, making it difficult to fully discern what evidence she tenders in support of which claim. The court therefore has considered all of plaintiff's tendered evidence as it applies to each of her claims, regardless of whether that evidence was expressly relied on in plaintiff's opposition memorandum.
Plaintiff appears to base several of her causes of action on defendants' actions in relation to plaintiff's discipline and eventual termination. Specifically, she states that defendant Duterte knew that the plaintiff had not committed welfare fraud or done anything inappropriate in her receipt of welfare benefits, but nevertheless the defendants terminated her on those grounds. Plaintiff's Opposition to Defendants' Motion for Summary Judgment at 36-37; Scott Decl. ¶¶ 28-30, 43. Once again it may be that plaintiff has tendered as evidence in support of thus claim the written decision of the California Unemployment Insurance Appeals Board, affirming the decision that the plaintiff was eligible for unemployment benefits." Scott Decl. Ex. 8.
As stated above, Unemployment Insurance Appeals Board decisions do not have res judicata effect. Pratt v. Local 683, Film Technicians etc., 260 Cal. App. 2d 545 (1968); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986).
Aside from the issue of whether the Board's determination is evidence, it appears there is no dispute that the termination decision was based on the findings of the H SS investigation. Those findings' implicated the plaintiff's honesty and integrity in performing her job duties, which again appears to be a much broader inquiry than that which confronted the Unemployment Insurance Appeals Board. Plaintiff's evidence does not suffice to show that defendants' acts were anything aside from discretionary personnel decisions for which an individual would be immune from liability. See Duterte Decl. ¶¶ 6-11. Therefore, defendants' motion must be granted as to plaintiff's fourth, sixth, seventh, eighth, ninth, and twelfth claims to the extent that they are based on plaintiff's termination.
To the extent that these claims are based upon defendants' conduct relating to the investigation of her receipt of benefits for her nephew, plaintiff's tendered evidence is insufficient to show that the defendants are not immune from liability. The decision to investigate a benefit recipient is replete with discretionary choices. For instance, the plaintiff's case worker has declared that the referral to the county's investigation unit was based on an apparent discrepancy the case worker perceived in the plaintiff's benefit application. Boggan Decl. ¶¶ 4-10. There is no evidence tendered by either party to indicate that the case worker was required to take such action in the circumstances described, which suggests that the act was discretionary.
Similarly, the evidence tendered by defendants indicates that the County's special investigations unit conducted an investigation and concluded that the plaintiff's nephew was not residing with her, despite her representations to the contrary. Duterte Decl. Ex. A-B. The manner in which this investigation was conducted appears to be quintessentially discretionary. See Hardy, 48 Cal. 2d at 582-83 (holding that public officials' investigations were discretionary acts for which they were immune). There has been no evidence tendered that would permit a factfinder to conclude that there was a certain process the investigation was required to follow, which did not occur, or that the investigation was otherwise a ministerial function. With regard to her defamation claim specifically, Government Code section 821.6 and Civil Code 47(b) appear to grant immunity to the defendants' statements made in connection with the investigation into her receipt of benefits and the discipline and termination proceedings. Hagberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 39, 50 (2004); Kemmerer, 200 Cal. App. 3d at 1439. Consequently, defendants' motion must be granted as to plaintiff's fourth, sixth, seventh, eighth, ninth, and twelfth claims to the extent that they are based on facts relating to the investigation into plaintiff's receipt of benefits for her nephew.
E. Plaintiff's Tenth Cause of Action
In her tenth cause of action, the plaintiff alleges that all defendants violated the California Government Code section 12948. Section 12948 provides, "It is an unlawful practice under this section for a person to deny or to aid, incite, or conspire in the denial of the rights created by Section 51, 51.5, 51.7, 54, 54.1, of 54.2 of the Civil Code." Plaintiff has not tendered any evidence from which a factfinder could conclude her rights under those sections were denied.
Civil Code section 51 is the Unruh Civil Rights Act, which prohibits discrimination on, inter alia, race. The only evidence that plaintiff has tendered of racial discrimination is her own declaration describing her employment history with the County, including her belief that less-qualified Caucasian individuals were promoted instead of her and that she was disciplined and terminated because of her race. The Unruh Civil Rights Act, however, does not encompass allegations of employment discrimination. Alcorn v. Anbro Eng'g, Inc., 2 Cal. 3d 493, 499-500 (1970).
Plaintiff has tendered no evidence that Civil Code sections 54, 54.1 or 54.2 have been violated by defendants. These sections prohibit disability discrimination. Plaintiff has tendered no evidence that she has a disability.
Accordingly, ever drawing all inferences in plaintiff's favor, she has failed to show that there is a genuine issue of material fact on her tenth cause of action. Matsushita, 475 U.S. at 587-88. Defendants' motion is granted on this claim.
F. Plaintiff's Thirteenth Cause of Action
In her thirteenth cause of action, the plaintiff alleges that defendants Solano County Health and Social Services Department, Duterte, and Edie violated 28 U.S.C. § 1983 by carrying out a policy under color of state law of unlawfully denying plaintiff's equal employment opportunities, discriminating against her on the basis of race, and creating a work environment that was discriminatory and retaliatory. For the reasons noted above, Plaintiff has failed to adduce sufficient evidence to permit a factfinder to find in her favor on this claim.
Because plaintiff has failed to make an adequate showing of unlawful discrimination under Title VII or the FEHA (which employs the Title VII standard), as a matter of law she cannot show that defendants are liable under § 1983. Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir. 1991)overruled on other grounds by Dominguez-Curry v. Nevada Trans. Dist., 424 F.3d 1027 (9th Cir. 2005). On this grounds alone, defendants' motion must be granted as to plaintiff's thirteenth cause of action.
Moreover, the plaintiff has not shown a causal link between the county's acts and any harm she may have suffered. A public entity may only be liable under § 1983 if the constitutional violation occurred as a result of an official municipal policy or custom.Monell v. New York Dep't of Soc. Serv., 436 U.S. 658, 691 (1978). A custom that is not official agency policy may create § 1983 liability if it is "permanent and well-settled." Id. An agency may not be liable on a respondeat superior theory, but only if there is evidence that there is "an affirmative link between the policy and the specific constitutional violation alleged." City of Oklahoma v. Tuttle, 471 U.S. 808, 821 (1985). Here, the only evidence plaintiff has tendered of the H SS's official policy is her declaration describing her experiences in applying for county positions and her eventual termination. Scott Decl. ¶¶ 16-17, 20, 29, 33-58. She has presented no evidence that the county or its agency promulgated a policy that led to the constitutional violations she alleges. She also has presented no evidence that there was any sort of affirmative link between the acts of county policy-makers and the emergence of the custom or practice that she alleges caused a constitutional violation. See City of Oklahoma, 471 U.S. at 821.
Finally, in order to prove a claim of discrimination under § 1983, the plaintiff must show that defendants had an intent to discriminate. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n. 16; Peters v. Lieuallen, 746 F.2d 1390, 1393 (9th Cir.). Here again, without restating all the evidence, the court concludes plaintiff has tendered no evidence from which a reasonable factfinder could conclude that defendants Duterte or Edie intended to discriminate against plaintiff. See Nat'l Steel Corp., 121 F.3d at 502; see also Sischo-Nownejad, 934 F.2d at 1112. Defendants Duterte and Edie's motion is granted as to this claim.
IV. CONCLUSION
For the reasons stated herein, the defendants' motion is GRANTED, except as to plaintiff's first cause of action to the extent that the claim is based on defendants' failure to promote her to the temporary position of Employment Resource Specialist III (Lead Worker) and to the permanent position of Employment Resource Specialist III (Lead Worker).
IT IS SO ORDERED.