Schmidt et al v. Shasta County Marshal's Office et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.August 25, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE TIMOTHY G. YEUNG (SBN 186170) tyeung@rshslaw.com STEVE CIKES (SBN 235413) scikes@rshslaw.com RENNE SLOAN HOLTZMAN SAKAI LLP 555 Capitol Mall, Suite 600 Sacramento, California 95814 Telephone: (916) 258-8800 Facsimile: (916) 258-8801 Attorney for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA (erroneously sued herein as SHASTA COUNTY MARSHAL’S OFFICE), and JOEL DEAN IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JAIME SCHMIDT, DEBRA KNOWLES, ELIZABETH SAMPSON, AND RYAN HENRIOULLE, Plaintiffs, v. SHASTA COUNTY MARSHAL'S OFFICE AND JOEL DEAN, Defendants. Case No. 2:14-CV-02471-MCE DEFENDANTS SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA AND JOEL DEAN’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: October 20, 2016 Time: 2:00 p.m. Courtroom: 7 Judge: Hon. Morrison C. England, Jr. Complaint Filed: October 21, 2014 Trial Date: April 3, 2017 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on October 20, 2016, at 2:00 p.m., or as soon thereafter as counsel may be heard, before the Honorable Morrison C. England, Jr., United States District Court Judge, at the United States District Court, Courtroom 7, located at 501 I Street, Sacramento, California, 95814, Defendants Superior Court of California, County of Shasta and Joel Dean (“Defendants”) will and hereby does move for summary judgment in its favor, and against Plaintiffs Jamie Schmidt, Debra Knowles, Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 1 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 2 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE Elizabeth Sampson and Ryan Henrioulle’s claims in their Complaint for Damages (“Complaint”). This motion is made pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there are no triable issues of material fact and the Defendants are entitled to summary judgment as a matter of law. The specific grounds for the motion are more fully articulated below: A. PLAINTIFF JAMIE SCHMIDT’S FIRST CAUSE OF ACTION FOR SEX/GENDER DISCRIMINATION UNDER TITLE VII AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Plaintiff Jamie Schmidt’s (“Schmidt’”) first cause of action for sex/gender discrimination in violation of Title VII (42 U.S.C. 2000, et seq.) fails because Schmidt did not suffer any discrimination on the basis of her gender. As a threshold matter, Schmidt cannot sue Dean individually under this cause of action as Title VII does not provide a separate cause of action against supervisors or co-workers. Additionally, to state a prima facie case of discrimination under Title VII and FEHA, a plaintiff must demonstrate that she was subjected to an adverse employment action, defined as a discrete event that has a “substantial and material effect on the terms and conditions of the plaintiff’s employment.” 42 U.S.C. § 2000e-2(a)(1); Nguyen, 65 F. Supp. 3d at 891-92. During the periods at issue, Schmidt was not subjected to any tangible adverse employment action. For this reason, Schmidt cannot meet the first element required to state a claim of sex/gender discrimination. Further, Schmidt has no evidence that any of the alleged conduct or personnel actions with which she takes issue were motivated, in whole or part, on account of gender. Schmidt cannot demonstrate that any actionable conduct or personnel actions were taken against due to discriminatory animus, or that males, in similar situations, were treated more favorably. Because Schmidt lacks any evidence of intentional discrimination, she cannot proceed with a discrimination claim as a matter of law. B. PLAINTIFF JAMIE SCHMIDT’S FIRST CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF SEX/GENDER AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Schmidt’s first cause of action for harassment in violation of Title VII (42 U.S.C. 2000, et seq.) fails because Schmidt cannot show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 2 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 3 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). With respect to Dean, he may not be sued individually under Title VII as a matter of law. With respect to the Superior Court, Schmidt suffered no adverse employment actions and none of Schmidt’s allegations amount to severe and pervasive harassment under Title VII. Indeed, much of the conduct Schmidt complains of consists of day-to-day personnel management actions that fall within the scope of Schmidt’s supervisors’ job duties and cannot qualify as harassment as a matter of law. Lastly, Schmidt cannot show that any of the alleged harassing conduct was taken on account of her gender. C. PLAINTIFF JAMIE SCHMIDT’S SECOND CAUSE OF ACTION FOR SEX/GENDER DISCRIMINATION UNDER FEHA AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Schmidt’s second cause of action for sex/gender discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”) (Gov. Code § 12940(a)) fails because Schmidt did not suffer any discrimination on the basis of her gender. As a threshold matter, Schmidt cannot sue Dean individually under this cause of action as FEHA does not provide a separate cause of action against supervisors or co-workers. Additionally, to state a prima facie case of discrimination under Title VII and FEHA, a plaintiff must demonstrate that she was subjected to an adverse employment action, defined as a discrete event that has a “substantial and material effect on the terms and conditions of the plaintiff’s employment.” 42 U.S.C. § 2000e-2(a)(1); Nguyen, 65 F. Supp. 3d at 891-92. During the periods at issue, Schmidt was not subjected to any tangible adverse employment action. For this reason, Schmidt cannot meet the first element required to state a claim of sex/gender discrimination. Further, Schmidt has no evidence that any of the alleged conduct or personnel actions with which she takes issue were motivated, in whole or part, on account of gender. Schmidt cannot demonstrate that any actionable conduct or personnel actions were taken against due to discriminatory animus, or that males, in similar situations, were treated more favorably. Because Schmidt lacks any evidence of intentional discrimination, she cannot proceed with a discrimination claim as a matter of law. Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 3 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 4 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE D. PLAINTIFF JAMIE SCHMIDT’S SECOND CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF SEX/GENDER AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Schmidt’s second cause of action for harassment in violation of FEHA (Gov. Code § 12940(j)) fails because Schmidt cannot show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). With respect to Dean, while he may be sued individually under FEHA, he is entitled to absolute immunity for any alleged violations that involve exercise of supervisory discretion. With respect to the Superior Court, Schmidt suffered no adverse employment actions and none of Schmidt’s allegations amount to severe and pervasive harassment under Title VII. Indeed, much of the conduct Schmidt complains of consists of day-to-day personnel management actions that fall within the scope of Schmidt’s supervisors’ job duties and cannot qualify as harassment as a matter of law. Lastly, Schmidt cannot show that any of the alleged harassing conduct was taken on account of her gender. E. PLAINTIFF DEBRA KNOWLES THIRD CAUSE OF ACTION FOR SEX/GENDER DISCRIMINATION UNDER TITLE VII AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Plaintiff Debra Knowles (“Knowles’”) third cause of action for sex/gender discrimination in violation of Title VII (42 U.S.C. 2000, et seq.) fails because Knowles did not suffer any discrimination on the basis of her gender. As a threshold matter, Knowles cannot sue Dean individually under this cause of action as Title VII does not provide a separate cause of action against supervisors or co-workers. Additionally, to state a prima facie case of discrimination under Title VII and FEHA, a plaintiff must demonstrate that she was subjected to an adverse employment action, defined as a discrete event that has a “substantial and material effect on the terms and conditions of the plaintiff’s employment.” 42 U.S.C. § 2000e-2(a)(1); Nguyen, 65 F. Supp. 3d at 891-92. During the periods at issue, Knowles was not subjected to any tangible adverse employment action. For this reason, Knowles cannot meet the first element required to state a claim of sex/gender discrimination. Further, Knowles has no evidence that Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 4 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 5 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE any of the alleged conduct or personnel actions with which she takes issue were motivated, in whole or part, on account of gender. Knowles cannot demonstrate that any actionable conduct or personnel actions were taken against due to discriminatory animus, or that males, in similar situations, were treated more favorably. Because Knowles lacks any evidence of intentional discrimination, she cannot proceed with a discrimination claim as a matter of law. F. PLAINTIFF DEBRA KNOWLES’ THIRD CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF SEX/GENDER AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Knowles’ third cause of action for harassment in violation of Title VII (42 U.S.C. 2000, et seq.) fails because Knowles’ cannot show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). With respect to Dean, he may not be sued individually under Title VII as a matter of law. With respect to the Superior Court, Knowles suffered no adverse employment actions and none of Knowles’ allegations amount to severe and pervasive harassment under Title VII. Indeed, much of the conduct Knowles’ complains of consists of day-to-day personnel management actions that fall within the scope of Knowles’ supervisors’ job duties and cannot qualify as harassment as a matter of law. Lastly, Knowles cannot show that any of the alleged harassing conduct was taken on account of her gender. G. PLAINTIFF DEBRA KNOWLES’ FOURTH CAUSE OF ACTION FOR SEX/GENDER DISCRIMINATION UNDER FEHA AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Knowles’ fourth cause of action for sex/gender discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”) (Gov. Code § 12940(a)) fails because Knowles did not suffer any discrimination on the basis of her gender. As a threshold matter, Knowles cannot sue Dean individually under this cause of action as FEHA does not provide a separate cause of action against supervisors or co-workers. Additionally, to state a prima facie case of discrimination under Title VII and FEHA, a plaintiff must demonstrate that she was subjected to an adverse employment action, defined as a Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 5 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 6 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE discrete event that has a “substantial and material effect on the terms and conditions of the plaintiff’s employment.” 42 U.S.C. § 2000e-2(a)(1); Nguyen, 65 F. Supp. 3d at 891-92. During the periods at issue, Knowles was not subjected to any tangible adverse employment action. For this reason, Knowles cannot meet the first element required to state a claim of sex/gender discrimination. Further, Knowles has no evidence that any of the alleged conduct or personnel actions with which she takes issue were motivated, in whole or part, on account of gender. Knowles cannot demonstrate that any actionable conduct or personnel actions were taken against due to discriminatory animus, or that males, in similar situations, were treated more favorably. Because Knowles lacks any evidence of intentional discrimination, she cannot proceed with a discrimination claim as a matter of law. H. PLAINTIFF DEBRA KNOWLES’ FOURTH CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF SEX/GENDER AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Knowles’ fourth cause of action for harassment in violation of FEHA (Gov. Code § 12940(j)) fails because Knowles cannot show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). With respect to Dean, while he may be sued individually under FEHA, he is entitled to absolute immunity for any alleged violations that involve exercise of supervisory discretion. With respect to the Superior Court, Knowles suffered no adverse employment actions and none of Knowles’ allegations amount to severe and pervasive harassment under Title VII. Indeed, much of the conduct Knowles complains of consists of day-to-day personnel management actions that fall within the scope of Knowles’ supervisors’ job duties and cannot qualify as harassment as a matter of law. Lastly, Knowles cannot show that any of the alleged harassing conduct was taken on account of her gender. I. PLAINTIFF ELIZABETH SAMPSON’S FIFTH CAUSE OF ACTION FOR SEX/GENDER DISCRIMINATION UNDER TITLE VII AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Plaintiff Elizabeth Sampson (“Sampson”) fifth cause of action for sex/gender discrimination in Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 6 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 7 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE violation of Title VII (42 U.S.C. 2000, et seq.) fails because Sampson did not suffer any discrimination on the basis of her gender. As a threshold matter, Sampson cannot sue Dean individually under this cause of action as Title VII does not provide a separate cause of action against supervisors or co-workers. Additionally, to state a prima facie case of discrimination under Title VII and FEHA, a plaintiff must demonstrate that she was subjected to an adverse employment action, defined as a discrete event that has a “substantial and material effect on the terms and conditions of the plaintiff’s employment.” 42 U.S.C. § 2000e-2(a)(1); Nguyen, 65 F. Supp. 3d at 891-92. During the periods at issue, Sampson was not subjected to any tangible adverse employment action. For this reason, Sampson cannot meet the first element required to state a claim of sex/gender discrimination. Further, Sampson has no evidence that any of the alleged conduct or personnel actions with which she takes issue were motivated, in whole or part, on account of gender. Sampson cannot demonstrate that any actionable conduct or personnel actions were taken against due to discriminatory animus, or that males, in similar situations, were treated more favorably. Because Sampson lacks any evidence of intentional discrimination, she cannot proceed with a discrimination claim as a matter of law. J. PLAINTIFF ELIZABETH SAMPSON’S FIFTH CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF SEX/GENDER AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Sampson’s fifth cause of action for harassment in violation of Title VII (42 U.S.C. 2000, et seq.) fails because Sampson cannot show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). With respect to Dean, he may not be sued individually under Title VII as a matter of law. With respect to the Superior Court, Sampson suffered no adverse employment actions and none of Sampson’s allegations amount to severe and pervasive harassment under Title VII. Indeed, much of the conduct Sampson complains of consists of day-to-day personnel management actions that fall within the scope of Sampson’s supervisors’ job duties and cannot qualify as harassment as a matter of law. Lastly, Sampson cannot show that any of the alleged harassing Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 7 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 8 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE conduct was taken on account of her gender. K. PLAINTIFF ELIZABETH SAMPSON’S SIXTH CAUSE OF ACTION FOR SEX/GENDER DISCRIMINATION UNDER FEHA AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Sampson’s sixth cause of action for sex/gender discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”) (Gov. Code § 12940(a)) fails because Sampson did not suffer any discrimination on the basis of her gender. As a threshold matter, Sampson cannot sue Dean individually under this cause of action as FEHA does not provide a separate cause of action against supervisors or co-workers. Additionally, to state a prima facie case of discrimination under Title VII and FEHA, a plaintiff must demonstrate that she was subjected to an adverse employment action, defined as a discrete event that has a “substantial and material effect on the terms and conditions of the plaintiff’s employment.” 42 U.S.C. § 2000e-2(a)(1); Nguyen, 65 F. Supp. 3d at 891-92. During the periods at issue, Sampson was not subjected to any tangible adverse employment action. For this reason, Sampson cannot meet the first element required to state a claim of sex/gender discrimination. Further, Sampson has no evidence that any of the alleged conduct or personnel actions with which she takes issue were motivated, in whole or part, on account of gender. Sampson cannot demonstrate that any actionable conduct or personnel actions were taken against due to discriminatory animus, or that males, in similar situations, were treated more favorably. Because Sampson lacks any evidence of intentional discrimination, she cannot proceed with a discrimination claim as a matter of law. L. PLAINTIFF ELIZABETH SAMPSON’S SIXTH CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF SEX/GENDER AGAINST DEFENDANTS SUPERIOR COURT AND DEAN FAILS AS A MATTER OF LAW Sampson’s sixth cause of action for harassment in violation of FEHA (Gov. Code § 12940(j)) fails because Sampson cannot show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). With respect to Dean, while he may be sued individually under FEHA, he is entitled to absolute immunity for any alleged violations that involve Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 8 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 9 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE exercise of supervisory discretion. With respect to the Superior Court, Sampson suffered no adverse employment actions and none of Sampson’s allegations amount to severe and pervasive harassment under Title VII. Indeed, much of the conduct Sampson complains of consists of day-to-day personnel management actions that fall within the scope of Sampson’s supervisors’ job duties and cannot qualify as harassment as a matter of law. Lastly, Sampson cannot show that any of the alleged harassing conduct was taken on account of her gender. M. PLAINTIFF RYAN HENRIOULLE’S SEVENTH CAUSE OF ACTION FOR RETALIATION UNDER TITLE VII AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Plaintiff Ryan Henrioulle’s (“Henrioulle”) seventh cause of action for retaliation fails because he cannot demonstrate that he engaged in any “protected activity” under Title VII, most of his allegations regarding conduct and behavior did not result in any “adverse employment actions,” which is required to state a claim for retaliation, and he cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to his release from probation or not being selected for a defensive tactics instructor position while still on probation. Even if Henrioulle could establish a prima facie case of retaliation, which he cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. N. PLAINTIFF RYAN HENRIOULLE’S EIGHTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Henrioulle’s eighth cause of action for retaliation fails because he cannot demonstrate that he engaged in any “protected activity” under Title FEHA, most of his allegations regarding conduct and behavior did not result in any “adverse employment actions,” which is required to state a claim for retaliation, and he cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to his release from probation or not being selected for a defensive tactics instructor position while still on probation. Even if Henrioulle could establish a prima facie case of retaliation, which he cannot, Defendant Superior Court can establish that it had a legitimate, non-retaliatory reason for its actions. Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 9 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 10 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE O. PLAINTIFF JAMIE SCHMIDT’S NINTH CAUSE OF ACTION FOR RETALIATION UNDER TITLE VII AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Schmidt’s ninth cause of action for retaliation fails because she cannot demonstrate that she engaged in any “protected activity” under Title VII and she did not suffer any “adverse employment action,” which is required to state a claim for retaliation. Moreover, Schmidt cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to any of the conduct or personnel actions alleged in the Complaint. Even if Schmidt could establish a prima facie case of retaliation, which she cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. P. PLAINTIFF JAMIE SCHMIDT’S TENTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Schmidt’s tenth cause of action for retaliation fails because she cannot demonstrate that she engaged in any “protected activity” under FEHA and she did not suffer any “adverse employment action,” which is required to state a claim for retaliation. Moreover, Schmidt cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to any of the conduct or personnel actions alleged in the Complaint. Even if Schmidt could establish a prima facie case of retaliation, which she cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. Q. PLAINTIFF DEBRA KNOWLES’ ELEVENTH CAUSE OF ACTION FOR RETALIATION UNDER TITLE VII AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Knowles’ eleventh cause of action for retaliation fails because she cannot demonstrate that she engaged in any “protected activity” under Title VII and she did not suffer any “adverse employment action,” which is required to state a claim for retaliation. Moreover, Knowles cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to any of the conduct or personnel actions alleged in the Complaint. Even if Knowles could establish a prima facie case of retaliation, which she cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 10 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 11 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE R. PLAINTIFF DEBRA KNOWLES TWELFTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Knowles’ twelfth cause of action for retaliation fails because she cannot demonstrate that she engaged in any “protected activity” under FEHA and she did not suffer any “adverse employment action,” which is required to state a claim for retaliation. Moreover, Knowles cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to any of the conduct or personnel actions alleged in the Complaint. Even if Knowles could establish a prima facie case of retaliation, which she cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. S. PLAINTIFF ELIZABETH SAMPSON’S THIRTEENTH CAUSE OF ACTION FOR RETALIATION UNDER TITLE VII AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Sampson’s thirteenth cause of action for retaliation fails because she cannot demonstrate that she engaged in any “protected activity” under Title VII and she did not suffer any “adverse employment action,” which is required to state a claim for retaliation. Moreover, Sampson cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to any of the conduct or personnel actions alleged in the Complaint. Even if Sampson could establish a prima facie case of retaliation, which she cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. T. PLAINTIFF ELIZABETH SAMPSON’S FOURTEENTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Sampson’s fourteenth cause of action for retaliation fails because she cannot demonstrate that she engaged in any “protected activity” under FEHA and she did not suffer any “adverse employment action,” which is required to state a claim for retaliation. Moreover, Sampson cannot demonstrate any causal connection, retaliatory animus or evidence of pretext with respect to any of the conduct or personnel actions alleged in the Complaint. Even if Sampson could establish a prima facie case of retaliation, which she cannot, Defendant Superior Court can establish that it had a legitimate, non- retaliatory reason for its actions. Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 11 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 12 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE U. PLAINTIFF RYAN HENRIOULLE’S FIFTEENTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Henrioulle’s fifteenth cause of action for failure to prevent discrimination in violation of FEHA (Gov. Code § 12940(k)) fails because Henrioulle did not suffer any underlying actionable discrimination (i.e., he was not subjected to an adverse employment action because of any protected status) or harassment (i.e., he was not subjected to severe or pervasive harassing conduct due to any protected status or associating with individuals in a protected status). There can be no liability for failure to prevent discrimination or harassment where no actionable discrimination or harassment has occurred. V. PLAINTIFF JAMIE SCHMIDT’S SIXTEENTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Schmidt’s sixteenth cause of action for failure to prevent discrimination in violation of FEHA (Gov. Code § 12940(k)) fails because Schmidt did not suffer any underlying actionable discrimination (i.e., she was not subjected to an adverse employment action because of her sex/gender or other protected status) or harassment (i.e., she was not subjected to severe or pervasive harassing conduct due to her sex/gender or other protected status). There can be no liability for failure to prevent discrimination or harassment where no actionable discrimination or harassment has occurred. W. PLAINTIFF DEBRA KNOWLES’ SEVENTEENTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Knowles’ seventeenth cause of action for failure to prevent discrimination in violation of FEHA (Gov. Code § 12940(k)) fails because Knowles did not suffer any underlying actionable discrimination (i.e., she was not subjected to an adverse employment action because of her sex/gender or other protected status) or harassment (i.e., she was not subjected to severe or pervasive harassing conduct due to her sex/gender or other protected status). There can be no liability for failure to prevent discrimination or harassment where no actionable discrimination or harassment has occurred. X. PLAINTIFF ELIZABETH SAMPSON’S EIGHTEENTH CAUSE OF ACTION FOR RETALIATION UNDER FEHA AGAINST SUPERIOR COURT FAILS AS A MATTER OF LAW Sampson’s eighteenth cause of action for failure to prevent discrimination in violation of FEHA Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 12 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 13 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT - CASE NO. 2:14-CV-02471-MCE (Gov. Code § 12940(k)) fails because Sampson did not suffer any underlying actionable discrimination (i.e., she was not subjected to an adverse employment action because of her sex/gender or other protected status) or harassment (i.e., she was not subjected to severe or pervasive harassing conduct due to her sex/gender or other protected status). There can be no liability for failure to prevent discrimination or harassment where no actionable discrimination or harassment has occurred. This Motion is based on this Notice of Motion and Motion, on the accompanying brief in support of the motion, the Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment, the Declarations of Melissa Fowler-Bradley, Joel Northrup, Joel Dean, and Steve Cikes, and all other pleadings and papers on file in this action, and any oral argument adduced at the hearing. Dated: August 25, 2016 RENNE SLOAN HOLTZMAN SAKAI LLP By: TIMOTHY G. YEUNG STEVE CIKES Attorneys for Defendants Superior Court of California, County of Shasta and Joel Dean Case 2:14-cv-02471-MCE-CMK Document 25 Filed 08/25/16 Page 13 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE TIMOTHY G. YEUNG (SBN 186170) tyeung@rshslaw.com STEVE CIKES (SBN 235413) scikes@rshslaw.com RENNE SLOAN HOLTZMAN SAKAI LLP 555 Capitol Mall, Suite 600 Sacramento, California 95814 Telephone: (916) 258-8800 Facsimile: (916) 258-8801 Attorney for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA (erroneously sued herein as SHASTA COUNTY MARSHAL’S OFFICE), and JOEL DEAN UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JAIME SCHMIDT, DEBRA KNOWLES, ELIZABETH SAMPSON, AND RYAN HENRIOULLE, Plaintiffs, v. SHASTA COUNTY MARSHAL’S OFFICE AND JOEL DEAN, Defendants. Case No. 2:14-CV-02471-MCE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: October 20, 2016 Time: 2:00 p.m. Courtroom: 7 Judge: Hon. Morrison C. England, Jr. Complaint Filed: October 21, 2014 Trial Date: April 3, 2017 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 1 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -i- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE TABLE OF CONTENTS Page I. INTRODUCTION ...........................................................................................................................1 II. STATEMENT OF FACTS ..............................................................................................................3 A. FACTS COMMON TO ALL PLAINTIFFS .......................................................................3 B. PLAINTIFF JAIME SCHMIDT ..........................................................................................6 1. Schmidt’s Pre-Complaint Harassment Allegations .................................................6 2. Schmidt’s Internal Complaints ................................................................................8 3. Schmidt’s Post-Complaint Allegations ....................................................................8 4. Schmidt’s Post-Investigation Allegations ................................................................9 5. Schmidt Goes on Leave, Returns to Light Duty and Later Resigns ......................10 C. PLAINTIFF ELIZABETH SAMPSON .............................................................................10 1. Sampson’s Pre-Complaint Allegations ..................................................................11 2. Sampson’s Internal Complaint ...............................................................................12 3. Sampson’s Post-Complaint Allegations ................................................................13 4. Sampson Learns of Results of Superior Court’s Investigation ..............................13 5. Sampson Goes on Leave and Eventually Resigns from the Marshal’s Office .....................................................................................................................14 D. PLAINTIFF DEBRA KNOWLES ....................................................................................14 1. Knowles’ 2009 Complaint Regarding PSSO Gordon ............................................14 2. Knowles’ Pre-Complaint Allegations ....................................................................14 3. Knowles Complains to Marshal Northrup Regarding Miscellaneous Issues.........16 4. Knowles Receives Notices of Investigation, Files Internal Complaint .................17 5. Knowles’ Post-Complaint Allegations ..................................................................18 6. Knowles Goes on Leave, Returns to Full-Time Duty............................................19 E. PLAINTIFF RYAN HENRIOULLE .................................................................................19 1. Henrioulle Is Placed on Remedial Training ...........................................................20 2. Henrioulle’s Harassment Allegations ....................................................................20 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 2 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -ii- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE 3. Henrioulle Applies for Defensive Tactics Instructor Assignment .........................21 4. Henrioulle’s Incident With the SFPD and Release from Probation ......................21 III. PROCEDURAL HISTORY...........................................................................................................22 IV. ARGUMENT .................................................................................................................................23 A. SUMMARY JUDGMENT STANDARD .........................................................................23 B. DEFENDANT SUPERIOR COURT AND INDIVIDUAL DEFENDANT DEAN ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS SCHMIDT, SAMPSON AND KNOWLES’ SEX/GENDER DISCRIMINATION CLAIMS .............23 1. As a Matter of Law, Defendant Dean Cannot Be Held Individually Liable for Discrimination Under Title VII or FEHA ........................................................24 2. Plaintiffs’ Discrimination Claims Against the Superior Court Fail Given That They Were Not Subjected to Any Adverse Actions and Have No Evidence of Intentional Sex/Gender Discrimination .............................................24 a. Schmidt ......................................................................................................25 b. Sampson .....................................................................................................27 c. Knowles .....................................................................................................29 C. DEFENDANT SUPERIOR COURT AND INDIVIDUAL DEFENDANT DEAN ARE ENTITLED TO SUMMARY JUDGMENT AS TO PLAINTIFFS SCHMIDT, SAMPSON AND KNOWLES’ SEX/GENDER HARASSMENT CLAIMS ............................................................................................................................31 1. Dean’s Potential Liability for Harassment Under FEHA ......................................32 2. Plaintiffs’ Harassment Claims Fail as the Alleged Harassment Was Neither Severe Nor Pervasive and Plaintiffs Lack Evidence the Conduct Was Based on Sex/Gender .............................................................................................33 a. Schmidt ......................................................................................................33 b. Sampson .....................................................................................................36 c. Knowles .....................................................................................................37 3. Defendant Superior Court Is Not Liable for Any Unlawful Harassment Under the Ellerth/Faragher Defense .....................................................................39 D. DEFENDANT SUPERIOR COURT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS SCHMIDT AND SAMPSON’S CONSTRUCTIVE TERMINATION CLAIMS ................................................................41 E. DEFENDANT SUPERIOR COURT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ RETALIATION CLAIMS ...........................................43 1. Henrioulle ..............................................................................................................43 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 3 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -iii- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE 2. Schmidt ..................................................................................................................47 3. Sampson .................................................................................................................47 4. Knowles .................................................................................................................48 F. DEFENDANT COURT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS FOR FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT .......................................................................................................48 V. CONCLUSION ..............................................................................................................................49 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 4 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -ii- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE TABLE OF AUTHORITIES Federal Cases Adetuyi v. City and County of San Francisco, 63 F. Supp. 3d 1073 (N.D. Cal. 2014)........................24, 49 Alberter v. McDonald’s, 70 F. Supp. 2d 1138 (D. Nev. 1999) ..................................................................40 Anderson v. City and County of San Francisco, 2016 WL 946171 (N.D. Cal. Mar. 14, 2016) ........................................................................................................24, 25, 27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..............................................................................23 Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287 (11th Cir. 2007) .....................................41 Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. 2009) .........................................................................34 Bergene v. Salt River Project Agr. Imp. & Power District, 272 F.3d 1136 (9th Cir. 2001) ......................43 Black v. State of Maine, 75 F.3d 716 (1st Cir. 1996) .................................................................................26 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) .............................................................. passim Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) ................................................................39, 40 Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ..........................................44, 45 Caridad v. Metro-North, 191 F.3d 283 (3d Cir. 1999) ..............................................................................40 Carrero v. Robinson, 2007 WL 1655350, (D. Col. June 5, 2007) .............................................................25 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................................................22, 23 Clark County School Dist. v. Breeden, 532 U.S. 268 (2001) ....................................................................39 Clegg v. Ark. Dept. of Correction, 496 F.3d 922 (8th Cir. 2007) ..............................................................45 Cooper v. Cate, 2012 WL 1669353 (E.D. Cal. May 11, 2012) ...........................................................33, 37 Cordoba v. Dillard’s, Inc., 419 F.3d 1169 (11th Cir. 2005) ......................................................................39 Craig v. M&O Agencies, Inc., 496 F.3d 1047 (9th Cir. 2007) ..................................................................23 Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 555 U.S. 271 (2009) ....................44 Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir.2008) ............................................................................24 Dillard v. City and County of San Francisco, 2014 WL 491837 (N.D. Cal. Feb. 5, 2014) ......................25 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ............................................................32, 33, 39, 40 Flanagan v. City of Richmond, 2015 WL 5964881 (N.D. Cal. Oct. 13, 2015) ...................................44, 48 Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409 (9th Cir. 1988) ...........................27, 30 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 5 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -iii- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 2001) .....................................................................38, 48 Gathenji v. Autzoners, LLC, 703 F. Supp. 2d 1017 (E.D. Cal. 2010) ................................................ passim Hamilton v. St. Joseph’s Med. Cntr., 2014 WL 2624976 (E.D Cal. June 12, 2014) .................................49 Hardage v. CBS Broadcasting Inc., 427 F.3d 1177 (9th Cir. 2005) ..........................................................41 Harris v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997) .........................................................................40 Helgeson v. American Intern. Group, 44 F. Supp. 2d 1091 (S.D. Cal. 1998) .........................25, 27, 28, 29 Henry v. Fed. Home Loan Bank, 155 F.3d 1257 (10th Cir. 1998) ............................................................32 Hittle v. City of Stockton, 2016 WL 1267703 (E.D. Cal. March 31, 2016) ...........................................2, 44 Hocevar v. Purdue Frederick Co, 223 F.3d 721 (8th Cir. 2000) ...............................................................39 Holiness v. Moore-Handley, Inc., 114 F. Supp. 2d 1176 (N.D. Ala. 1991) ..............................................44 Holly D. v. Cal. Institute of Tech., 339 F.3d 1158 (9th Cir. 2003) ............................................................41 Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987) .............................................................47, 48 Kohler v. Inter-Tel Technologies, 244 F.3d 1167 (9th Cir. 2001) .............................................................39 Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000) ....................................26, 28, 33, 37 Longmire v. City of Oakland, 2011 WL 5520958 (N.D. Cal. Nov. 14, 2011)...........................................30 Ludovico v. Kaiser Permanente, 57 F. Supp. 3d 1176 (N.D. Cal. 2014) ..................................................46 Lyons v. England, 307 F.3d 1092 (9th Cir. 2002)................................................................................26, 28 Manatt v. Bank of Am., 339 F.3d 792 (9th Cir. 2003) ...................................................................33, 37, 42 Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906 (7th Cir. 2002)...........................................26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).................................................23 McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) ........................................................................24 Mendoza v. Kindred Healthcare Operating, Inc., 2012 WL 2055007 (N.D. Cal June 5, 2012) .......................................................................................................................25 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) .......................................................................31, 33 Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007) .................................................................................24 Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464 (7th Cir. 1998) .......................................................35, 36 Nix v. WLCY Radio, 783 F.2d 1181 (11th Cir. 1984) ..........................................................................35, 38 Oliver v. Microsoft Corp., 966 F. Supp. 2d 889 (N.D. Cal. 2013) ................................................23, 24, 31 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 6 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -iv- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) .....................................................24, 31 Paloni v. City of Albuquerque Police Dept., 212 Fed. Appx. 716 (10th Cir. 2006) ..................................45 Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir. 2000) ....................43 Penn. State Police v. Suders, 542 U.S. 129 (2004) ..............................................................................40, 41 Phelps v. U.S. GSA, 469 Fed. Appx. 548 (9th Cir. 2012) ..............................................................25, 27, 28 Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007) ....................................................................................42 Sanchez v. California, 90 F. Supp. 3d 1036 (E.D. Cal. 2015) .......................................................25, 27, 29 Schaffer v. GTE, Inc., 40 Fed. Appx. 552 (9th Cir. 2002) .........................................................................31 Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d 958 (9th Cir. 1999)..................................................35, 38 Seely v. Runyon, 966 F. Supp. 1060 (D. Utah 1997) .................................................................................45 Stegall v. Citadel Broadcasting Co., 350 F.3d 1061 (9th Cir. 2003).........................................................43 Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001) .........................................................................38, 40, 48 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ..................................................................24 Vance v. Ball State University, 133 S. Ct. 2434 (2013) .......................................................................39, 40 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) .............................................................46 Velente-Hook v. Eastern Plumas Health Care, 368 F. Supp. 2d 1084 (E.D. Cal. 2005) ..........................34 Walton v. Johnson and Johnson Services, Inc., 347 F.3d 1272 (11th Cir. 2003) ......................................41 Willis v. Marion County Auditor’s Office, 118 F.3d 542 (7th Cir. 1997) ..................................................47 State Cases Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) .......................................................26, 28, 31 Caldwell v. Montoya, 10 Cal. 4th 972 (1995) ............................................................................................32 Fisher v. San Pedro, 214 Cal. App. 3d 590 (1989) ...................................................................................32 Flatt v. North American Watch Corp., 3 Cal. App. 4th 467 (1992) ..........................................................43 Gibson v. Aro Corp., 32 Cal. App.4th 1628 (1995) ...................................................................................42 Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317 (2000) .......................................................................................24 Horsford v. Bd. Of Trs. of Cal. State Univ., 132 Cal.App.4th 359 (2005) ................................................24 Janken v. GM Hughes Electronics, 46 Cal.App.4th 55 (1996)............................................................25, 32 Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264 (2006) ......................................................31 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 7 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -v- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52 (2000) ..............................................................43 Reno v. Baird, 1818 Cal. 4th 640 (1988) ........................................................................................... passim Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280 (1998) ........................................................49 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1248 (1994) .................................................................41 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005) ..............................................................43, 44, 45 Statutes 42 U.S.C. § 2000e-3(a) ..............................................................................................................................44 42 U.S.C. § 2000e-2(a)(1)..........................................................................................................................23 Cal. Gov’t Code § 820.2 ............................................................................................................................32 Cal. Gov’t Code § 3304(d).........................................................................................................................18 Cal. Gov’t Code § 12940(a) .......................................................................................................................23 Cal. Gov’t Code § 12940(h).......................................................................................................................44 Cal. Gov’t Code § 12940(k).......................................................................................................................49 Rules Fed. R. Civ. P. 56 .........................................................................................................................................1 Fed. R. Civ. P. 56(a) ............................................................................................................................22, 23 Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 8 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Pursuant to Federal Rule of Civil Procedure 56, Defendants Superior Court of California, County of Shasta (“Superior Court”) and Joel Dean (“Dean”) (collectively, “Defendants”) hereby move for summary judgment or, in the alternative, partial summary judgment as to the claims in Plaintiffs Jaime Schmidt, Elizabeth Sampson, Debra Knowles and Ryan Henrioulle’s (collectively, “Plaintiffs”) Complaint for Damages. I. INTRODUCTION Plaintiffs are three former employees (Schmidt, Sampson, and Henrioulle) and one current employee (Knowles) of the Shasta County Marshal’s Office, which provides courtroom security and other law enforcement services to Defendant Superior Court. Plaintiffs Schmidt, Sampson and Knowles allege that in 2011 and 2012, supervisory staff subjected them to various personnel actions and other alleged conduct because they complained about their use of Marshal’s Office staff to conduct field operations at the expense of courthouse security. Because such alleged management decisions are not unlawful, Schmidt, Sampson and Knowles now claim that they were harassed, discriminated against, and retaliated against because of protected status or activity, but can muster no evidence to prove their claims. Similarly, Henrioulle was lawfully released from probationary employment after an incident involving his weapon after a San Francisco 49ers game, but is asserting - without evidence - retaliation for associating with the other Plaintiffs. Based on the undisputed facts, these claims are without merit. First, Schmidt, Sampson and Knowles cannot identify any adverse employment actions to support their discrimination and retaliation claims. Rather, their performance evaluations were largely favorable, they received all scheduled merit increases, and they were not disciplined. To the extent Plaintiffs contend “Supervisor’s Notes and Observations” or “N&Os” are adverse employment actions, N&Os are merely tools used within the Marshal’s Office to temporarily document employee performance, are not maintained in an employee’s official personnel file, and thus are not adverse employment actions under federal or state law. As for the negative N&Os that Schmidt, Sampson and Knowles actually received, none were placed in their respective personnel files, none were issued for discriminatory and/or retaliatory reasons, and each Plaintiff admitted engaging in the underlying conduct giving rise to the respective N&Os. Second, unable to point to any tangible adverse employment actions supporting their Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 9 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE discrimination or retaliation claims, Schmidt, Sampson and Knowles instead rely heavily on their “harassment” allegations. In this regard, Plaintiffs employ what can only be described as the “kitchen sink” approach - essentially asserting that every interaction they had with their supervisors constituted a form of harassment or intimidation. As demonstrated below, even if true, Plaintiffs’ allegations do not amount to severe or pervasive harassment. Indeed, much of what Plaintiffs complain of relate to personnel actions and other activities that do not qualify as “harassment” as a matter of law. See Gathenji v. Autzoners, LLC, 703 F. Supp. 2d 1017, 1033 (E.D. Cal. 2010); Reno v. Baird, 1818 Cal. 4th 640, 646-47 (1988). Additionally, Plaintiffs have no evidence that any of this alleged harassment was motivated, in whole or in part, because of their gender/sex or participation in any “protected activity.” To the contrary, during their depositions, Plaintiffs identified various reasons for these alleged actions - primarily, that they voiced concerns/disagreement with management’s use of Marshal’s Office staff to conduct field operations at the apparent expense of court security - none of which have anything to do with gender. Third, Henrioulle’s retaliation claim is similarly without merit because he cannot show he was released from probation because of any protected activity. Although Henrioulle claims he “opposed harassment/discrimination” by associating with certain co-workers and refusing to make “detrimental reports” about them, that does not qualify as “protected activity” under federal or state anti- discrimination laws because through these actions he did not “alert[] his employer that he believed discrimination had occurred.” Hittle v. City of Stockton, 2016 WL 1267703, *6 (E.D. Cal. March 31, 2016). Rather, Henrioulle believed management was singling out Schmidt and Sampson because they disagreed with the Office’s purported direction to conduct field operations at the expense of court security, not because of sex discrimination. Such management policy decisions are not the proper subject of a retaliation claim. Moreover, he cannot rebut the Superior Court’s legitimate, non-retaliatory reasons for his release - namely, his issues with officer safety and an incident where he was detained by members of the San Francisco Police Department after allegedly brandishing his firearm while leaving a 49ers game. Finally, as a matter of law, Dean cannot be sued for discrimination under Title VII or FEHA, as there is no individual liability under those statutes for alleged discriminatory employment actions. Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 10 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Although FEHA does allow individual liability for “harassment,” Plaintiffs’ allegations are plainly insufficient to demonstrate that his conduct was “severe and pervasive,” such as to give rise to a harassment claim either against him or the Court. Moreover, under FEHA, absolute immunity applies to any alleged violations relating to personnel actions involving the exercise of supervisory discretion, which encompasses virtually all of the allegations in this lawsuit. II. STATEMENT OF FACTS A. FACTS COMMON TO ALL PLAINTIFFS Plaintiffs Jaime Schmidt, Debra Knowles, Elizabeth Sampson and Ryan Henrioulle are or were employed as deputy marshals with the Shasta County Marshal’s Office (“Marshal’s Office”), the law enforcement division of Defendant Superior Court. (UF 1) The Marshal’s Office is overseen by the Shasta County Marshal, who is appointed by the Superior Court’s judges. (UF 2) At all relevant times, Joel Northrup (“Northrup”) has served as the Shasta County Marshal, and was directly supervised by Melissa Fowler-Bradley (“Fowler-Bradley”), the Superior Court’s executive officer. (UF 3) The Marshal’s Office provides security services for the Superior Court, which includes providing bailiffs for courtroom security, running weapon-screening stations, judicial protection, and transporting and maintaining control of in-custody defendants appearing in court. (UF 4) The office also regularly serves warrants in the field and performs other, general law enforcement functions. (UF 5) Towards this end, the Marshal’s Office employs deputy marshals, corporals, and sergeants, who are sworn peace officers. (UF 6) The Marshal’s Office also has nonsworn public safety service officers (“PSSOs”), who are assigned to operate the scanning equipment at the Superior Court’s weapon-screening stations, to staff the Marshal’s Office dispatch/control room, and to assist with clerical duties within the office. (UF 7) Sergeants oversee the day-to-day operations of the deputy marshals and the PSSOs; however, they do not have authority to take any formal personnel action absent the express approval and/or consent of the Marshal. (UF 8) This includes the issuance of Supervisor’s Notes and Observations (“N&Os”), which are tools used within the Marshal’s Office to temporarily document positive or negative employee performance. (UF 9) N&Os are not placed in the employee’s official personnel file, but instead are maintained in an employee’s “evaluation” file, which management uses to prepare an employee’s Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 11 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE performance evaluation. (UF 10) All N&Os state: “This form will be maintained in your evaluation file (not personnel file). It will be destroyed or returned to you within 24 months or may be attached to or incorporated into your next performance evaluation.” (UF 11) Thus, although negative performance may, if continued, result in disciplinary action in the future, an N&O does not qualify as a formal disciplinary action under department policy. (UF 12) Defendant Joel Dean (“Dean”) joined the Marshal’s Office as a deputy marshal on September 21, 2005, was promoted to corporal on August 5, 2007, and was promoted to sergeant on May 9, 2010. (UF 13) From the time of his promotion to sergeant up until Elainea Shotwell’s (“Shotwell”) promotion on November 6, 2012, Dean served as the only sergeant in the Marshal’s Office and oversaw the day-to- day operations of all sworn and nonsworn staff. (UF 14) Following her promotion to sergeant, Shotwell supervised personnel assigned to court security (i.e., bailiff) functions, while Dean supervised personnel assigned to administrative functions, transportation, building and perimeter security, and field operations. (UF 15) Following Dean’s promotion to sergeant, Plaintiffs felt that the Marshal’s Office began to improperly shift its focus from court security to field operations, thereby creating a divide between deputies who preferred the courtroom security/bailiff duties (whom Plaintiffs referred to as the “Old Timers”) and those who supported a greater emphasis on field operations (whom Plaintiffs referred to as Dean’s “Cronies”). (UF 16) Plaintiffs Schmidt and Sampson both contend that they complained to Dean about the changed focus of the Marshal’s Office and its impact on morale during multiple one-on-one conversations but felt Dean was not receptive to their concerns. (UF 17) For example, after Schmidt expressed her concerns, she alleges that Dean asked her if she even thought of herself as a peace officer. (UF 18) Similarly, when Sampson expressed her concerns, she asserts Dean cautioned her, “If you have questions, come to me, don’t infect the rest like Schmidt.” (UF 19) In December 2011, Plaintiffs Schmidt, Sampson and Knowles complained to their union, the Shasta County Deputy Sheriff’s Association (“DSA”) about the issues they were experiencing at work, including what they perceived as favoritism stemming from the divide between the “Old Timers” and the “Cronies.” (UF 20) On January 23, 2012, the DSA - in response to these complaints - circulated an anonymous survey asking that members “describe in general terms any behavior you believe may Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 12 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE violate” sections of the Marshal’s Office Policy Manual pertaining to the treatment of employees. (UF 21) The union asked members to turn in their completed survey responses by no later than February 17, 2012. (Ibid.) On February 15, 2012, Marshal Northrup notified deputies by email that he would be meeting with them individually in the upcoming weeks to discuss his expectations of them, solicit their thoughts on the Marshal’s Office, and “discuss any work related matters.” (UF 22) Considering the timing, Schmidt, Sampson and Knowles believe the purpose of the email was to dissuade deputies from responding to the DSA survey. (UF 23) Nevertheless, they each responded to the survey by the stated deadline. (UF 24) On March 9, 2012, the DSA presented the survey results to Fowler-Bradley in a letter listing 34 general and anonymous complaints. (UF 25) On March 12, 2012, Fowler-Bradley responded that the Superior Court could not reasonably investigate the allegations because of “the scant information that has been provided,” noting that the complaints lacked “specifics such as the name of the alleged offender, when the action occurred, the context in which it occurred, and most importantly, who made the complaints.” (UF 26) As detailed below, beginning on March 8, 2012, Plaintiffs Schmidt, Sampson and Knowles submitted individual internal complaints to Fowler-Bradley pursuant to the Superior Court’s “Harassment Prevention Policy,” alleging harassment by the supervisory staff. (UF 27) The Superior Court requested that Jason Mayo (“Mayo”), an investigator from the Administrative Office of the Courts (“AOC”), conduct an investigation encompassing all three complaints. (UF 28) Overall, Mayo conducted eleven interviews between March 28, 2012 and May 9, 2012. (UF 29) In July 2012, Mayo notified the Superior Court’s administrative staff that he had concluded his investigation and notified them of his findings. (UF 30) On August 13, 2012, Mayo submitted a 45-page investigative report, finding that complaints raised by Plaintiffs Schmidt, Sampson and Knowles were either unfounded or not sustained. (UF 31) He found that “[f]rom the records provided, there does not appear to be substantial evidence that Dean, Shotwell or Northrup have engaged in favoritism based on prohibited characteristics.” (UF 32) Both during and after the Superior Court’s investigation, Schmidt, Sampson and Knowles claim Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 13 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE that management subjected them to personnel actions and other alleged conduct that they took offense to, which prompted them to go out on leave. (UF 33) B. PLAINTIFF JAIME SCHMIDT The Superior Court hired Jaime Schmidt (“Schmidt”) as a deputy marshal on October 14, 2008. (UF 36) Schmidt had worked as a deputy sheriff for the Solano County Sheriff’s Department from about 2000 to 2004. (UF 37) As a corporal, Dean served as Schmidt’s training officer, and Schmidt described him as “a likeable guy” who had “a lot of knowledge.” (UF 38) As discussed below, Schmidt contends that after she complained to Dean about the Marshal’s Office shift in focus and its impact on morale, management subjected her to various personnel actions or other alleged conduct that she took offense to. (UF 39) During this same period, Schmidt received all scheduled merit (i.e., salary) increases as well as several positive N&Os. (UF 40) 1. Schmidt’s Pre-Complaint Harassment Allegations Schmidt alleges that beginning in 2011 - and after she complained to Dean about the Marshal’s Office’s focus on field operations and its impact on morale - Dean subjected her to personnel actions to which she took offense. (UF 41) In particular, Schmidt claims that Dean changed her work schedule without giving her prior notice, notified her that a time-off request she submitted was untimely, and instructed a PSSO to schedule Schmidt for a background investigator training without consulting with her first (although she was never scheduled for the training). (Ibid.) On November 29, 2011, Schmidt and Dean traveled to Eureka to conduct a background investigation on a job applicant. (UF 43) While waiting out traffic at a restaurant on their return trip back, Schmidt told Dean that while she was a trainee at the Solano County Sheriff’s Department, her field training officer asked her, “Is your pussy wet?” and then asked her to have sex with him at the workplace, which she declined. (UF 44) Schmidt told Dean that she did not report the matter and continued to work at the Sheriff’s Department until she resigned. (Ibid.) Schmidt claims that later, after she and Dean got back on the road, there was a lull in the conversation and Dean turned to her and asked, “Is your pussy wet?” (UF 45) Schmidt claims she responded, “That’s not a joke,” and added, “That’s off limits, don’t make me regret telling you that story.” (Ibid.) They lapsed into silence again and Dean did not repeat the comment. (Ibid.) Schmidt Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 14 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE alleges that in early December 2011, Dean repeated the comment while the two were alone in the squad room, and, in response, Schmidt told Dean that she regretted telling him the story.1 (UF 46) Schmidt testified that the alleged remarks were not intended as sexual or romantic advances, that she found them “offensive” because they concerned a matter she had related to Dean in confidence, and after these two alleged instances, Dean did not repeat the comment. (UF 47) Schmidt also claims that Shotwell routinely denied her the opportunity to work “time for time,” i.e., take a short lunch and leave early, and during a criminal jury trial, precluding her from working overtime while allowing overtime for Plaintiff Henrioulle. (UF 48) On January 17, 2012, Shotwell gave Schmidt her annual performance evaluation with a “meets expected standards” overall rating. (UF 49) Schmidt submitted a response to the performance evaluation a week later, stating that the evaluation “did not accurately represent me as an employee or show my level of dedication to representing this agency in a professional manner.” (UF 50) Of the three earlier evaluations Schmidt had received during her employment with the Marshal’s Office, two also had an overall rating of “meets expected standards,” and only one had an overall rating of “exceeds expected standards.” (UF 51) Schmidt further alleges that in February 2012, Dean critiqued her for deviating from an operational order she prepared for a three-person in-custody preliminary hearing and then later accused her of “back dooring him” by asking other deputies for assistance in preparing an operational order for an upcoming three-person in-custody trial. (UF 52) Schmidt also claims that on February 21, 2012, after she had asked another deputy for a refresher on the fueling procedures for department vehicles, Dean stated that he would have to put the issue up for training because “it’s been briefed three times already.” Schmidt felt the critique was unnecessary and that Dean’s tone was demeaning and made her feel stupid. (UF 53) 1 Dean remembers Schmidt telling him about the sexual harassment at the Solano County Sheriff’s Department, but denies ever repeating the sexually explicit comment made by her training officer. (Dean Decl., ¶ 34.) Given the breadth of Plaintiffs’ allegations, for purposes of this motion only, Defendants do not contest whether some of the alleged events at issue in this case may have in fact occurred. Defendants aver, however, that Plaintiffs cannot demonstrate that any of the alleged conduct or occurrences were motivated, in whole or in part, due to any protected characteristic or activity. Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 15 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE 2. Schmidt’s Internal Complaints On March 9, 2012, Schmidt filed an internal complaint with Fowler-Bradley, alleging “sexual harassment conduct by Sergeant Dean against myself,” regarding the sexually explicit remark that Dean allegedly made in November and December 2011. (UF 54) As noted above, the Superior Court hired AOC investigator Mayo to investigate Schmidt’s complaint, along with the complaints filed by Plaintiffs Sampson and Knowles (discussed below). On March 9, 2012, Fowler-Bradley notified Dean of the investigation and instructed him “not to take any adverse action against [Schmidt] while this investigation is pending.” (UF 55) Fowler-Bradley also advised Schmidt that “Sgt. Dean has been directed to refrain from any conduct or remarks of a sexual nature while this investigation is pending” and asked Schmidt to notify her “if you experience any additional problems with Sgt. Dean.” (UF 56) On March 23, 2012, Schmidt submitted a supplemental complaint, generally alleging “harassment, favoritism, and intimidating conduct by Sergeant Dean.” (UF 57) Mayo interviewed Schmidt concerning both complaints. (UF 58) 3. Schmidt’s Post-Complaint Allegations After filing her complaint, Schmidt took offense to other alleged occurrences and personnel actions. On March 14, 2012, deputy Sue Correll posted an article concerning state disability for peace officers in the squad room with a Post-It stating, “New Guys Read This!” and someone wrote on the Post-It, “Old Guys Retire.” (UF 59) Although Schmidt does not know who wrote on the Post-It, she felt it was directed to the “Old Timers” and was “rude.” (UF 60) On March 15, 2012, Shotwell gave Schmidt an N&O for leaving an unsecured Taser in a courtroom. (UF 61) On March 23, 2012, Schmidt received an N&O for failing to calibrate the Superior Court’s preliminary alcohol screening (“PAS”) devices (handheld devices for testing blood-alcohol levels) as she had been assigned to do. (UF 62) In both cases, Schmidt admits to engaging in the underlying misconduct, but claims she did so because she was uncomfortable being around Dean after filing her internal complaint. (UF 63) On April 19, 2012, Schmidt asked to follow the judge assigned to her courtroom to a new department. (UF 64) On April 27, 2012, Northrup notified Schmidt that she would not be permitted to follow the judge because “the Court will be using visiting Judges to fill this courtroom vacancy,” and Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 16 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE therefore “it will be especially important to have a knowledgeable bailiff in this department that is familiar with the procedures and calendars that are unique to this courtroom.” (UF 65) On May 7, 2012, Schmidt felt that Dean stared and smirked at her during morning briefing. (UF 66) On May 18, 2012, Schmidt felt Shotwell was late to relieve Schmidt for a restroom break and did not sufficiently acknowledge Schmidt when she did arrive. (UF 67) On May 23, 2012, Shotwell emailed Schmidt that she had learned that Schmidt’s courtroom had gone “dark” from the court calendar clerk and requested that “[i]n the future please keep an open dialogue with me as to the status of your courtroom.” (UF 68) Schmidt responded to Shotwell later that day apologizing for the “lack of communication,” but regrets doing so as she believes she did everything she was supposed to do. (UF 69) On June 12, 2012, Schmidt was on vacation when she realized that she had previously signed up for an extra assignment during her vacation. (UF 70) Although she did not communicate with Dean directly, Schmidt claims Dean made it difficult for her to have another deputy work the assignment, including telling another deputy that “as far as he was concerned, [Schmidt] was still working [the assignment].” (Ibid.) Ultimately, another deputy worked the assignment for Schmidt. (Ibid.) 4. Schmidt’s Post-Investigation Allegations On July 31, 2012, Fowler-Bradley and Kennedy met with Schmidt and notified her that the Superior Court had completed its investigation and “determined that your complaint of sexual harassment is not sustained and your other complaints are unfounded.” (UF 71) Subsequently, Schmidt took offense to other alleged occurrences. On or about August 14, 2012, after Dean had returned from vacation, Schmidt and Plaintiff Elizabeth Sampson complained to Fowler-Bradley that PSSO Becky Baldwin-Bassett wrote, “Happy days are here again…. It’s a good day @ SCMO,” on the bulletin board in the squad room, which Plaintiffs took to refer to Dean’s return to work and the results of the investigation. (UF 71) They also complained that they had heard from others that Dean had declared he had a “great attorney,” and had played a voicemail from his attorney reporting the results of the Superior Court’s investigation over the speakerphone in his office so that deputies in the nearby squad room could hear. (UF 74) Fowler- Bradley agreed to look into the allegations regarding Dean, but cautioned Schmidt and Sampson against Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 17 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -10- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE being “hyper-sensitive.” (UF 75) On August 22, 2012, after Marshal Northrup notified all deputies that he would be distributing an article concerning the danger of apathy in law enforcement, Schmidt claims multiple copies of this article were placed in her mailbox. (UF 76) Although Schmidt did not find anything inappropriate or offensive about the article, she believes this was another form of harassment. (UF 77) On August 23, 2012, Schmidt was working at courthouse screening with another deputy when Dean walked by them and said, “Good morning” to each, and then repeated, “Good morning, Jaime,” when Schmidt did not initially respond. (UF 78) Schmidt responded, “Good morning,” but later emailed Dean that his interaction was “inappropriate” and requested that Dean be “less ‘in [her] face.’” (Ibid.) Dean responded to Schmidt’s email later that day, stating “[t]his greeting was just that; a greeting” and that he would welcome a meeting with Schmidt “to try and resolve your perceptions of events.” (UF 79) 5. Schmidt Goes on Leave, Returns to Light Duty and Later Resigns On September 19, 2012, Schmidt heard from Plaintiff Henrioulle that he was released from probation because of his association with Schmidt and the other “Old Timers,” and that Dean had referred to Schmidt as “the ringleader, the worst one.” (UF 80) On September 25, 2012, Schmidt went on leave. (UF 81) On January 13, 2014, she returned to light duty. (UF 82) By that time, Shotwell had resigned from the Marshal’s Office and Dean had gone on leave. (UF 83) While Schmidt was on her leave, the Marshal’s Office re-located the women’s locker room, and ended up storing some of Schmidt’s belongings. (UF 84) Schmidt claims that when she returned to work, she was able to locate some of her belongings, while certain items were missing. (UF 85) Schmidt asked Sergeant Phil Smith about the status of her missing items, who advised her “not to rock the boat,” which she asserts was a suggestion not to create any further issues after returning from leave. (UF 86) On March 14, 2014, Schmidt resigned from the Marshal’s Office, and decided to pursue a career in the medical field. (UF 87) C. PLAINTIFF ELIZABETH SAMPSON The Superior Court hired Elizabeth Sampson (“Sampson”) as a deputy marshal on July 3, 2003. Sampson met Dean when he was hired as a deputy marshal in September 2005. (UF 88) Sampson described her initial relationship with Dean as “Friends. Coworkers. Someone that I would come to for Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 18 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -11- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE assistance and help.” (UF 89) Like Schmidt, Sampson contends that after she complained to Dean about the Marshal’s Office shift in focus and its impact on morale, management subjected her to various personnel actions or other alleged conduct to which she took offense. (UF 90) As with Schmidt, during this same period, Sampson received all scheduled merit increases and several positive N&Os. (UF 91) 1. Sampson’s Pre-Complaint Allegations Beginning in 2011 - after she complained to Dean about the Office’s shift in focus and its impact on morale - Sampson claims Dean subjected her to various personnel actions and other occurrences. In particular, Sampson claims that in mid-2011, Dean, on four different occasions, questioned her about her appearance, asking “What’s up with your eyes?”, “Why do you do that one finger in your head scratch thing?”, and “Why is your mouth open? I hate it when you do that.” (UF 92) Sampson also claims that in late 2011, Dean, on two separate occasions, called her into his office, placed a tape recorder on his desk and told her how she answered his next question would determine whether the recorder stayed on or not. (UF 93) She claims that when she failed to react, Dean laughed and said he was joking. (Ibid.) In August 2011, Sampson claims that Dean commented to her boyfriend at the time, a police officer for the city of Anderson, that “[a]t my department no one could be on or handle patrol[;] they are lazy.” (UF 94) When the officer asked about Sampson, Sampson claims Dean responded, “Really? Have you ever heard her call a 415 [disturbing the peace] over the radio from her courtroom?” (Ibid.) On November 16, 2011, Sampson claims she made an arrest approximately 10 to 15 minutes before the start of her shift and that Dean later had Shotwell remind Sampson that deputies needed to obtain approval before altering their work schedule. (UF 95) On January 27, 2012, Sampson claims that Dean instructed her to do a “ride along” with a member of the public and perform traffic stops. (UF 96) Sampson claims she was uncomfortable with the assignment since she had never heard of anyone within the Marshal’s Office doing a “ride along” before and because she had limited experience doing traffic stops. (Ibid.) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 19 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE On February 17, 2012, Dean gave Sampson an N&O for turning in an arrest report with errors.2 (UF 97) On February 23, 2012, Dean attempted to give Sampson another N&O for submitting a report that did not have a probable cause declaration attached. (UF 100) Sampson requested a union representative and claims Dean responded, “Really? Fine, if you want it that way. If you want to go to fists then fine.” (UF 101) After further discussion with Sampson, without a union representative present, Dean decided not to give Sampson the N&O. (UF 102) On February 23, 2012, Sampson asked Shotwell whether she should arrest or cite and release an individual with an outstanding warrant. (UF 103) Later that day, Shotwell sent Sampson an email recounting their conversation and stating, “Deputy Sampson needs to take the time out and study this procedure if she is still unsure, as this is not the first time the issue had come up.” (Ibid.) On March 1, 2012, Sampson replied to Shotwell’s email, stating, “I do not believe my performance was below standard as I did what I am supposed to, i.e., sought clarification from a superior officer.” (UF 104) Shotwell, in turn, replied, “Thank you.” (Ibid.) 2. Sampson’s Internal Complaint On March 1, 2012, Sampson sent Marshal Northrup a memo, requesting that she have a union representative present during all future meetings “wherein I have the right to have representation.” (UF 105) Later that day, Northrup and Dean explained to Sampson that she could have a representative present at any meeting that she reasonably believed could lead to discipline. (UF 106) In early March 2012, Sampson learned that the Superior Court would not be taking any action on the results of the DSA’s anonymous survey. (UF 107) Consequently, on March 23, 2012, Sampson filed an internal complaint with Fowler-Bradley, reporting “ongoing and pervasive harassment, intimidation, and favoritism in the workplace as well as retaliation against myself by Sergeant Dean.” (UF 108) Fowler-Bradley referred Sampson’s complaint to Mayo for investigation. (UF 109) As she did with Schmidt, Fowler-Bradley notified Dean of the investigation and instructed him “not to take any adverse 2 Sampson met with Marshal Northrup on February 24, 2012 to discuss the N&O. (UF 98) On February 28, 2012, Northrup sent Sampson an email, stating that since Sampson acknowledged that she had submitted the report with errors, he would not be making any changes or withdrawing the N&O, but that Sampson could submit a response. (Ibid.) Sampson submitted a response to the N&O on March 8, 2012. (UF 99) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 20 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -13- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE action against [Sampson] while this investigation is pending.” (UF 110) Mayo interviewed Sampson on April 4, 2012. (UF 111) 3. Sampson’s Post-Complaint Allegations After filing her internal complaint, Sampson took offense to other alleged occurrences and personnel actions. On April 23, 2012, Sampson claims she had to take a second set of photos of a confiscated weapon because Dean did not email her a copy of the first set before he left for the day. (UF 112) On May 3, 2012, Sampson claims Dean did not respond to Sampson when she said “sorry” after accidently bumping into him in the squad room. (UF 113) On May 21, 2012, Sampson and Henrioulle arrested an individual for an outstanding warrant. (UF 114) Later that day, Sampson claims that Dean informed Henrioulle that he had heard that Henrioulle had complained about Sampson’s performance during the arrest and requested that Henrioulle document his complaint (which Henrioulle declined to do). (Ibid.) On May 29, 2012, Shotwell gave Sampson an N&O noting that a female in Sampson’s custody was able to remove her hand from her handcuff, thereby creating a safety hazard and breach of protocol. (UF 115) Sampson submitted a response on June 22, 2012, asserting that while she may have failed to properly secure the handcuff, the deputies who subsequently had custody of the female could have re- secured it. (UF 116) 4. Sampson Learns of Results of Superior Court’s Investigation On July 31, 2012, Fowler-Bradley and Kennedy met with Sampson and notified her that the Superior Court had completed its investigation and determined that her complaint was unfounded. (UF 119) After learning of the results of the investigation, Sampson continued to take offense to other alleged occurrences. On August 29, 2012, after Shotwell provided Sampson with a draft annual performance evaluation, with a “meets expected standards” overall rating, Sampson noted a number of accomplishments she felt were not reflected in the evaluation. (UF 120) According to Sampson, Shotwell stated that she would look into those and prepare a final evaluation, but never did. (Ibid.) Ultimately, Shotwell never completed Sampson’s evaluation due to Sampson’s decision to go on leave and later resign (see below). (Ibid.) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 21 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -14- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE On September 7, 2012, Sampson, Schmidt and other deputies participated in defensive tactics training involving one of the deputies providing the training wearing a “red man suit.” The training was videotaped and later reviewed by Dean and deputies Chris Reagan (“Reagan”) and Dennis Mack. Sampson claims that video of her and Schmidt’s training was more closely scrutinized than the other deputies. (UF 124) On September 17, 2012, Sampson claims Northrup called her into his office with Dean and Shotwell present and stated: “It has come to my attention that you told individuals that sergeants manufactured lies to get Ryan Henrioulle fired. If that’s the case, it needs to stop.” (UF 125) Sampson exited the meeting without ever denying that she was making the statements. (Ibid.) 5. Sampson Goes on Leave and Eventually Resigns from the Marshal’s Office On October 3, 2012, Sampson - while on vacation - notified the Court that she would be going on leave. (UF 126) On September 4, 2013, Sampson - while still out on leave - resigned from the Marshal’s Office. (UF 127) In her resignation form, Sampson stated: “Filed complaint of hostile work environment and retaliation. Out on stress leave. Secured other employment for financial reason and the inability to return to that environment as nothing has changed.” (Ibid.) D. PLAINTIFF DEBRA KNOWLES The Court hired Debra Knowles (“Knowles”) as a PSSO on December 27, 2005. (UF 128) In March 2009, Marshal Northrup promoted Knowles to deputy marshal trainee, and to deputy marshal on January 29, 2010. (UF 129) 1. Knowles’ 2009 Complaint Regarding PSSO Gordon In December 2009, Knowles reported to the Marshal’s Office that she was being subjected to unwelcome romantic overtures from another employee (referred to herein as “PSSO Gordon” or “Gordon”). (UF 130) Northrup had the complaint investigated and ultimately took corrective action by (1) instructing Gordon to cease the offending conduct and (2) notifying Knowles that the Court would schedule work assignments in order to minimize contact between her and PSSO Gordon. (UF 131) Thereafter, Knowles did not report any difficulties for the next two years. (UF 132) 2. Knowles’ Pre-Complaint Allegations Beginning in 2011, Knowles claims that both Dean and Shotwell took certain personnel actions Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 22 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -15- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE and engaged in other conduct to which she took offense. (UF 133) At the same time, however, Knowles received all scheduled merit increases, and, on February 29, 2012, received a performance evaluation prepared by both Dean and Shotwell with an “exceeds expected standards” overall rating. (UF 134) Knowles asserts that in March 2011, Dean instructed dispatch to have Knowles report to the station so that two male deputies (including one with prior military experience) could respond to an officer involved shooting call. (UF 135) In addition, on April 5, 2011, Dean gave Knowles an N&O for failing to check if her OC (i.e., pepper spray) canister had expired, as directed in a March 7, 2011 email from Marshal Northrup to all deputies. (UF 136) Knowles acknowledges that at the time she received the N&O, her OC canister was expired and that she likely received, but simply did not review, Northrup’s email because she “miss[es] a lot of emails.” (UF 137) Knowles also alleges that during one-on-one conversations with Dean, he referred to his wife as a “bitch” and a “chonch,” stated that he did not plan on being with her “long term,” and on one occasion pointed to a female clerk and stated, “That girl wants me. What do you think of her?” (UF 138) She also claims that on two occasions, Dean came up to her while she was sitting and rubbed her earlobe while staring at her. (UF 139) In addition, on or about February 2, 2012, Knowles claims that while conducting a DUI stop, Dean stood behind her, approximately six to ten inches from Knowles and well within her “personal space.” (UF 140) When she asked Dean what he was doing, he allegedly responded, “I’m just standing here.” (Ibid.) After arresting the suspect, Knowles claims Dean instructed her to go back to the station and that two male deputies transported the suspect back to jail, thereby depriving her of a training opportunity. (Ibid.) Providing context to this stop, Dean noted in Knowles’ February 29, 2012 performance evaluation that he observed Knowles engage in a vehicle search while allowing a passenger to remain seated inside - a significant breach of officer safety procedure - and provided Knowles with verbal counseling. (UF 141) Knowles claims that just before Shotwell became sergeant in November 2011, Shotwell addressed Knowles in a demeaning manner on several occasions, including calling her “fancy pants” and making fun of the size of her feet and hair color. (UF 142) Further, on December 23, 2011, Knowles and Shotwell had a verbal disagreement in front of two other deputies regarding Knowles’ request to leave early that day. (UF 143) Shotwell issued Knowles an N&O noting that Knowles had been Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 23 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -16- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE disrespectful to her in front of the other employees. (UF 144) Knowles appealed the N&O to Northrup, who provided her with a revised N&O on January 13, 2012, stating: “I spoke to two deputies that witnessed this interaction and they confirmed that your response to Sergeant Shotwell could be perceived as disrespectful.” (UF 145) Knowles claims Northrup misrepresented the statements from the two witnesses, notwithstanding that one of the witnesses provided a written account of his conversation with Northrup wherein he noted that he told Northrup that he found the exchange between Knowles and Shotwell “to be borderline disrespectful on both parties behalf.” (UF 146) 3. Knowles Complains to Marshal Northrup Regarding Miscellaneous Issues On December 23, 2011, dispatch sent Knowles to work at a screening station with PSSO Gordon. (UF 147) On this occasion, Knowles mostly ignored Gordon and Gordon did not attempt to make any inappropriate advances or comments. (UF 148) On December 30, 2011, Knowles claims that dispatch again sent her to work at a screening station with PSSO Gordon, and that Gordon asked her about her braces and her daughter, but did not touch her or make any other comments that she could recall. (UF 149) On January 4, 2012, Knowles met with Marshal Northrup to discuss the N&O she received from Shotwell in December 2011. (UF 150) During that meeting, Knowles also raised the issue about having to work with Gordon on December 23, 2011. (Ibid.) On January 5, 2012, Northrup sent Knowles a memo, explaining that her having to work with Gordon “was a scheduling error by control and supervisory staff” and that “[a]ll supervisory and control staff have been informed” and/or reminded of the directive following her 2009 complaint. (UF 151) He further stated that he reminded Gordon “not to have any un-necessary contact with you.” (Ibid.) Dean - whom Northrup instructed to look into Knowles’ work assignment with Gordon on December 23, 2011 - reported that (1) Shotwell was not aware of the prior directive to minimize contact between Knowles and Gordon, and (2) the decision to assign Knowles to work with Gordon was the result of one of the PSSOs working in the dispatch room. (UF 153) Dean, at Northrup’s direction, gave an N&O to the PSSO who dispatched Knowles to work with Gordon. (UF 154) On February 10, 2012, Knowles met with Northrup and complained that she felt that Shotwell was continuing to single her out for heightened scrutiny and, conversely, that Shotwell was purposefully Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 24 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -17- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE ignoring her. (UF 155) Accordingly, on February 14, 2012, Northrup issued Shotwell written guidance and related materials on his expectations of an effective leader. (UF 156) On February 28, 2012, Dean diverted Knowles to a different location after hearing a radio transmission from one of the PSSOs dispatching Knowles to a weapons screening station where Gordon was present. (UF 157) Dean reported this incident to Marshal Northrup, who instructed Dean to issue an N&O to the PSSO responsible for the dispatch, which Dean did on March 16, 2012. (UF 158) On March 2, 2012, Knowles and her union representative met with Marshal Northrup regarding additional instances in which she claimed dispatch sent her to give breaks at screening stations where PSSO Gordon was present. (UF 159) Northrup conducted an initial investigation and later notified Knowles that “[t]he responsibility for these scheduling errors falls on the dispatch staff” and stated that he would “take steps with our dispatch staff to correct this issue.” (UF 160) Thereafter, on March 9 and 20, 2012, Dean, at Northrup’s direction, sent the PSSOs an email instructing them that: “Until further notice DO NOT send Deputy Knowles to ANY screening stations for breaks and/or permanent assignments. She is not to work at the screening stations. There are NO exceptions to this directive.” (UF 161) 4. Knowles Receives Notices of Investigation, Files Internal Complaint In February 2012, Knowles was involved in two incidents that raised concern among supervisory staff that she had not followed appropriate officer-safety practices. First, on February 17, 2012, Knowles was driving home from work and witnessed a vehicle spin out of control and come to a full stop facing oncoming traffic on a busy thoroughfare. (UF 162) Management heard Knowles radio for assistance from the local police department and became concerned regarding whether she gave the information necessary for other law enforcement officers to provide proper assistance in accordance with protocol. (UF 163) Then, on February 23, 2012, Knowles was involved in an altercation with a court patron. (UF 164) Marshal Northrup witnessed the altercation and believed that Knowles had situated herself in such a way that left her gun exposed. (UF 165) Consequently, on March 2, 2012, Marshal Northrup notified Knowles that she was under investigation for those two incidents. (UF 167) On March 8, 2012, Northrup provided Knowles with a supplemental notice of investigation, informing her that the Marshal’s Office was investigating her for an Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 25 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -18- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE additional allegation of possible untruthfulness concerning the underlying events giving rise to the March 2, 2012 notice of investigation.3 (UF 168) Later that day, Knowles filed an internal complaint with Fowler-Bradley on March 8, 2012, alleging “harassment/retaliation by Marshal’s Office supervisory staff.” (UF 173) The Court had Mayo investigate Knowles’ complaint, along with Schmidt and Sampson’s complaints. (UF 175) Mayo interviewed Knowles on March 28, 2012 and again on April 4, 2012. (UF 176) On July 31, 2012, Fowler-Bradley and Kennedy met with Knowles and notified her that “the evidence gathered does not establish that you have been subjected to harassment, intimidation or retaliation by Sgt. Shotwell or any other supervisor staff” and, as a result, her complaint was unfounded. (UF 177) During this time, Marshal Northrup also had an outside investigator, Diane Davis (“Davis”), conduct an internal affairs (“IA”) investigation into Knowles’ possible misconduct. (UF 178) While the investigation reached findings (both sustaining misconduct and exonerating Knowles), it was not completed within the statutory one-year time limit (Cal. Gov’t Code § 3304(d)) and thus was not maintained in Knowles’ personnel file, nor were any personnel actions taken as a result. (UF 179) 5. Knowles’ Post-Complaint Allegations Like Schmidt and Sampson, Knowles claims that both during and after the Superior Court’s investigation, supervisory staff subjected her to additional harassment. In particular, Knowles alleges that during the week of May 14, 2012, she attempted to log onto the California Law Enforcement Telecommunication System or “CLETS” (a computer database used to perform criminal records checks, accessed locally using a system called “PUBSAFE”) and was unable to do so. Knowles later asked Shotwell about the status of her access. (UF 180) On July 31, 2012, Marshal Northrup sent Knowles an email stating that because the Redding Police Department had started charging the Superior Court for 3 Following Knowles’ February 23, 2012 altercation with a court patron, Northrup instructed Dean to speak with Knowles about the incident and provide her with training on officer safety practices, which Dean did that same day. (UF 169) On February 29, 2012, Dean provided a report to Northrup, noting that Knowles had denied that any disturbance occurred, an account that was inconsistent with what Northrup personally observed. (UF 171) Based on Dean’s report, Northrup directed that the pending investigation against Knowles include an additional allegation of possible untruthfulness. He also instructed Dean to provide Knowles with written instruction on safe positioning and to sign her up for a street survival course. (UF 171) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 26 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -19- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE PUBSAFE service, the Superior Court was forced to discontinue some accounts.4 (UF 182) Knowles also claims that on several occasions, dispatch sent her to work screening stations, but later diverted her to a different location, and that this embarrassed her because other employees could hear these communications over the radio. (UF 186) Knowles further claims that Dean and Shotwell ignored her and engaged in otherwise rude behavior. (UF 187) For example, on or about September 13, 2012, Knowles asserts that she was in the squad room trying to recharge her radio when Shotwell came in and asked Knowles what she was doing. When Knowles attempted to explain, Shotwell accused Knowles of being “difficult” and “not following directions.” (UF 188) 6. Knowles Goes on Leave, Returns to Full-Time Duty On October 5, 2012, dispatch radioed Knowles to relieve Shotwell in her courtroom and when Knowles arrived, Gordon was there too. (UF 189) According to Knowles, this caused her to have a “panic attack.” (UF 190) Knowles was then instructed to escort an inmate to the holding cell so he could use the restroom. (UF 191) While on the phone asking Northrup to have Gordon removed from the courtroom, Knowles saw the inmate standing in the cell with the door open because she must have closed the wrong door. (UF 192) She immediately secured the inmate and after hearing dispatch instruct Gordon to report to a screening station, escorted the inmate back into the courtroom. (UF 193) After court had adjourned, Knowles met with Northrup, who stated that he had investigated the incident and determined that Knowles had only been in the courtroom with Gordon for a brief period of time. (UF 194) Following this meeting, Knowles went on leave. (UF 195) She remained on leave until November 15, 2013, when she returned to work in a full-time capacity. (UF 196) Knowles continues to work for the Marshal’s Office. (UF 197) E. PLAINTIFF RYAN HENRIOULLE The Court hired Ryan Henrioulle (“Henrioulle”) as a deputy marshal on November 28, 2011. (UF 198) As a deputy marshal, Henrioulle was required to serve a one-year probationary period, during 4 The Superior Court contracts with the Redding Police Department (“RPD”) to allow court personnel to use PUBSAFE to gain access to CLETS databases. (UF 183) In early 2012, it was discovered that RPD had started charging the Superior Court every time a court employee used PUBSAFE to run a CLETS search, which charges totaled in the thousands of dollars. (UF 184) Accordingly, the Superior Court took steps to limit the number of individuals with access only to essential users, including supervisory staff and dispatchers. (UF 185) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 27 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -20- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE which the Superior Court could release Henrioulle without cause and any right to appeal. (UF 199) Henrioulle was also required to participate in the Marshal’s Office field training officer program. (UF 200) Under this program, the Marshal’s Office assigns new deputies to training officers, who evaluate the new employee’s performance and provide them with one-on-one training. (UF 201) However, due to staffing issues, Marshal Northrup allowed Henrioulle to work as a “solo” deputy (i.e., without a training officer), in areas that he had been trained and signed off on even though he still had not completed the training officer program. (UF 202) 1. Henrioulle Is Placed on Remedial Training As the sergeant in charge of officer training, Dean met regularly with Henrioulle’s training officers to get a sense of Henrioulle’s performance. (UF 203) During these meetings, some of Henrioulle’s training officers indicated that Henrioulle had issues with officer safety. (UF 204) In particular, Henrioulle’s training officers noted that on a number of occasions Henrioulle exposed his firearm and/or positioned himself in a manner that rendered him susceptible to an attack. (205) Dean, in turn, related this information to Northrup, who instructed Dean to place Henrioulle on remedial training to address these issues. (UF 206) On or about June 21, 2012, Dean called Henrioulle into his office and notified Henrioulle that he was being placed on remedial training due to “officer safety concerns.” (UF 207) 2. Henrioulle’s Harassment Allegations After Dean placed Henrioulle on remedial training, Henrioulle claims that Dean instructed him to identify any staff members who spoke negatively about Dean or the Marshal’s Office, and cautioned him: “Your job depends on this. It’s time to decide if you want to work here or not.” (UF 208) Henrioulle also claims that deputy Chris Reagan (“Reagan”) - one of Dean’s “Cronies” - referred to him as “boy,” “son,” and ‘fag” on several occasions, and wrote “Got Dad,” on the dirt on his car windshield (purportedly in reference to Henrioulle’s fiancée, who was pregnant and had children from a prior relationship). (UF 209) In addition, Henrioulle claims Reagan teased him that he was not going to pass remedial training, allegedly stating that failure is spelled “H-E-N-R-I-O-U-L-L-E,” and commenting “that’s how you spell termination too.” (UF 210) Henrioulle also complains that when Dean, Reagan and deputy Dennis Mack (“Mack”) were Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 28 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -21- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE training him on felony car stops, Dean used a real firearm when assuming the role of the “suspect” that Henrioulle had to take into custody. (UF 211) Specifically, after having Reagan and Mack check his firearm to make sure it was unloaded, Dean placed it into his waistband for the role-play. (UF 212) During the practice scenario, Henrioulle took Dean into custody and placed him in the backseat of his vehicle, but failed to uncover the hidden firearm during the pat down. (UF 213) When Henrioulle opened the backdoor of the vehicle to retrieve Dean, Dean - who had managed to manipulate the firearm into his hands - pointed his firearm at Henrioulle and stated either “Bang, you’re dead” or “Bang, you’re dead mother fucker.” (UF 214) Although Henrioulle believes it was inappropriate for Dean to use a real firearm during the training, he found the training “helpful” and testified that Dean “corrected me and told me I should always do a thorough pat-down during these scenarios.” (UF 215) 3. Henrioulle Applies for Defensive Tactics Instructor Assignment On or about September 6, 2012, Henrioulle applied for a vacant defensive tactics instructor assignment. (UF 216) Northrup later informed Henrioulle that he would not be receiving the defensive tactics instructor assignment and that another deputy, who was not on probation, would receive the assignment instead. (UF 217) 4. Henrioulle’s Incident With the SFPD and Release from Probation On September 16, 2012, Dean received a call from police officers from the San Francisco Police Department (“SFPD”), notifying him that they had received an anonymous 911 call from someone reporting that Henrioulle had brandished his firearm while leaving a 49ers game, that they discovered a firearm under Henrioulle’s car seat, that Henrioulle had informed them of his peace officer status, that they had detected an odor of alcohol emanating from Henrioulle’s breath, and that they had administered a field sobriety test, which Henrioulle passed. (UF 218) The officers told Dean that they had decided to release Henrioulle because the anonymous 911 caller refused to identify himself or make a statement, and that they were calling him to make an official notification of the incident. (UF 219) They asked Dean if he wanted them to seize Henrioulle’s firearm for safekeeping. (Ibid.) Because the officers reported that Henrioulle was being cooperative and passed the field sobriety test, Dean told them to let Henrioulle travel home with his firearm, but asked them to send their police report of the incident. (UF 220) Dean immediately advised Marshal Northup of the situation, but the two decided to take no Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 29 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -22- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE action until they reviewed the police report. (UF 221) On September 17, 2012, after reviewing the SFPD police reports and hearing from Shotwell that Henrioulle had expressed concerns about being at work due to his mental state following the incident, Northrup instructed Dean to place Henrioulle on administrative leave, which Dean proceeded to do. (UF 222) Northrup and Dean then met with Fowler-Bradley and discussed Henrioulle’s incident with the SFPD as well as his performance-related issues with officer safety. (UF 223) Based on this information, Fowler-Bradley decided to release Henrioulle from probationary employment. (UF 224) On September 18, 2012, Northrup asked Henrioulle to report to work and notified him of Fowler-Bradley’s decision to release him from probation. (UF 225) III. PROCEDURAL HISTORY On October 21, 2014, Plaintiffs filed their Complaint for Damages against Defendants. (Dkt. #1.) In the Complaint, Plaintiffs assert 18 causes of action, alleging various violations of Title VII of the Civil Rights Act of 1964, as amended (“Title VII,” 42 U.S.C. § 2000e et seq.) and California’s Fair Employment and Housing Act (“FEHA,” Cal. Gov’t Code § 12940 et seq.). Specifically, the first, third, and fifth causes of action are the respective claims of Schmidt, Knowles, and Sampson against the Superior Court and Dean for gender discrimination and harassment in violation of Title VII. (Compl., ¶¶ 30-40, 44-55 & 59-70 .) The second, fourth, and sixth causes of action are the respective claims of Schmidt, Knowles, and Sampson against the Superior Court and Dean for gender discrimination and harassment in violation of FEHA. (Id., ¶¶ 41-43, 56-58 & 71-73.) The remaining claims are against the Superior Court only. The seventh, ninth, eleventh, and thirteenth causes of action are the respective claims of Henrioulle, Schmidt, Knowles, and Sampson for retaliation in violation of Title VII. (Compl., ¶¶ 74-91, 94-95, 98-99 & 102-10.) The eighth, tenth, twelfth, and fourteenth causes of action are the respective claims of Henrioulle, Schmidt, Knowles, and Sampson for retaliation in violation of FEHA. (Id., ¶¶ 92-93, 96-97, 100-101 & 104-105.) The fifteenth, sixteenth, seventeenth, and eighteenth causes of action are the respective claims of Henrioulle, Schmidt, Knowles, and Sampson for failure to prevent discrimination and harassment in violation of FEHA. (Id., ¶¶ 106-108, 109-111, 112-114 & 115-117.) On June 30, 2016, the Court allowed Defendants up to 50 pages for the instant memorandum. Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 30 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -23- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE (Dkt. #23.) The deadline for hearing dispositive motions is October 20, 2016, and trial is set for April 3, 2017. (Dkt. #16.) IV. ARGUMENT A. SUMMARY JUDGMENT STANDARD “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant may also seek summary judgment on “part of each claim.” Fed. R. Civ. P. 56(a). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A defendant moving for summary judgment meets it burden by negating an essential element of plaintiff’s claim or by establishing that “there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A plaintiff must make a sufficient showing of each essential element of the claims on which he or she has the burden of proof, or the defendant is “entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323. Here, where plaintiffs claim violations of Title VII and FEHA, “[m]ere assertions that a defendant had a discriminatory motive or intent in taking an adverse action are inadequate to defeat summary judgment unless supported by substantial factual evidence.” Oliver v. Microsoft Corp., 966 F. Supp. 2d 889, 895 (N.D. Cal. 2013). “‘A party cannot defeat a motion for summary judgment by offering ‘purely conclusory allegations of alleged discrimination, absent concrete particulars ... for to do so would necessitate a trial in all Title VII cases.’” Ibid. B. DEFENDANT SUPERIOR COURT AND INDIVIDUAL DEFENDANT DEAN ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS SCHMIDT, SAMPSON AND KNOWLES’ SEX/GENDER DISCRIMINATION CLAIMS Plaintiffs Schmidt, Sampson and Knowles assert causes of action against Defendants Superior Court and Dean, in his individual capacity, for gender discrimination in violation of Title VII and FEHA (1st through 6th causes of action). Both Title VII and FEHA prohibit discrimination by an employer “because of …sex” with respect to “terms, conditions, or privileges of employment.” 42 U.S.C. 2000e- Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 31 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -24- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE 2(a)(1); Cal. Gov’t Code §12940(a). 1. As a Matter of Law, Defendant Dean Cannot Be Held Individually Liable for Discrimination Under Title VII or FEHA “Title VII does not provide a separate cause of action against supervisors or co-workers.” Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007). Accordingly, Dean is entitled to judgment on each Title VII cause of action asserted against him - the first, third, and fifth causes of action. In addition, under FEHA, which treats discrimination and harassment differently, supervisors may not be sued individually “for discriminatory acts.” Reno v. Baird, 18 Cal. 4th 640, 643, 645, 663 (1988). Plaintiffs Schmidt, Knowles, and Sampson have each combined their discrimination and harassment claims in their respective second, fourth, and sixth causes of action. Accordingly, Dean is entitled to summary judgment on the discrimination claims against him in the second, fourth, and sixth causes of action. 2. Plaintiffs’ Discrimination Claims Against the Superior Court Fail Given That They Were Not Subjected to Any Adverse Actions and Have No Evidence of Intentional Sex/Gender Discrimination Courts use the same analytical framework for determining discrimination under both Title VII and FEHA. Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir. 2007) (citing Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000)). Under this framework, each plaintiff has the initial burden of proving a prima facie case of discrimination, and “must show that: (1) she belongs to some protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated employees outside her classification more favorably.” Oliver, 966 F.Supp.2d at 896 (citing McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973)). “For discrimination claims, an adverse employment action ‘is one that “materially affect[s] the compensation, terms, conditions, or privileges’ of employment.” Anderson v. City and County of San Francisco, 2016 WL 946171, *13 (N.D. Cal. Mar. 14, 2016) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.2008); Horsford v. Bd. Of Trs. of Cal. State Univ., 132 Cal.App.4th 359, 373 (2005)). If a plaintiff meets that burden, “‘the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason’ for the adverse action.’” Adetuyi v. City and County of San Francisco, 63 F. Supp. 3d 1073, 1084 (N.D. Cal. 2014) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 32 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -25- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE 253 (1981)). “Once the defendant has done so, the burden shifts back to the plaintiff, who must demonstrate that the employer's reason for the adverse employment decision is a pretext for a discriminatory or retaliatory motive,” and must do so with “‘specific and significantly probative evidence.’” Ibid. “Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue ... actually constituted ‘discrimina[tion]. because of... sex.”’ Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Here, Plaintiffs did not suffer any adverse employment actions, nor can they offer evidence that any of the personnel actions that they take issue with were motivated by gender. 5 a. Schmidt Given that Schmidt received all scheduled merit increases and a number of positive N&Os from her supervisors, her only assertions of “adverse employment actions” boil down to two negative N&Os she received in March 2012 and a “meets standards” performance evaluation. First, the N&Os do not amount to adverse employment actions in violation of Title VII or FEHA because N&Os are simply tools used by the Marshal’s Office to temporarily document positive or negative employee performance, are not maintained in Schmidt’s personnel file, do not constitute discipline, and thus did not “materially affect the compensation, terms, conditions, or privileges” of Schmidt’s employment.” Anderson, 2016 WL 946171, at *13; see Helgeson v. American Intern. Group, 44 F. Supp. 2d 1091, 1098 (S.D. Cal. 1998) (counseling memoranda and negative performance evaluations, standing alone, do not constitute adverse employment actions) (citing Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 80 (1996)); Sanchez v. California, 90 F. Supp. 3d 1036, 1056 (E.D. Cal. 2015) (“Written warnings and performance 5 Plaintiffs Schmidt, Knowles and Sampson may claim that after they filed their internal complaints, management instructed certain PSSOs manning the dispatch/control room to specifically monitor them on the surveillance cameras and report if they were not performing their assigned duties or otherwise engaging in misconduct. While neither Northrup, Dean nor Shotwell recall giving such an instruction (see, e.g., Northrup Decl., ¶¶ 35-39; Dean Decl., ¶¶ 21-25), any such instruction, in and of itself, would be irrelevant since it did not culminate in any tangible adverse employment action. See, e.g., Mendoza v. Kindred Healthcare Operating, Inc., 2012 WL 2055007, *12 (N.D. Cal June 5, 2012) (no adverse action where plaintiff claimed to be placed under “close scrutiny” after filing of EEOC charge); Dillard v. City and County of San Francisco, 2014 WL 491837, *1, 5 (N.D. Cal. Feb. 5, 2014) (allegations of “unwarranted, unrelenting, close and excessive scrutiny” insufficient to create adverse employment action where there is no evidence that terms and conditions of employment were materially affected); Carrero v. Robinson, 2007 WL 1655350, *11 (D. Col. June 5, 2007) (weight of authority reflects increased supervision or monitoring does not constitute adverse action). Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 33 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -26- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE improvement plans are not adverse employment actions where they do not materially affect the terms and conditions of employment”); Phelps v. U.S. GSA, 469 Fed. Appx. 548, 550 (9th Cir. 2012) (“excess scrutiny of his training request, a letter of counseling, and a memorandum putting him on notice of deficiencies in his work performance-clearly do not qualify as adverse employment actions”). Moreover, Schmidt cannot demonstrate that she received the N&Os due to discriminatory animus: Schmidt testified in her deposition that she engaged in the misconduct giving rise to the N&Os and that both N&Os were warranted and justified. (UF 63) Second, although Schmidt claims that her “meets standards” performance evaluation mischaracterized her career goals and did not capture all of her accomplishments, it does not qualify as an adverse action. See, e.g., Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) (“a performance evaluation that was mediocre (rather than ‘sub-average’) and that did not give rise to any further negative employment action did not violate Title VII”) (citing Kortan v. California Youth Authority, 217 F.3d 1104, 1112-13 (9th Cir.2000)). Likewise, Schmidt cannot demonstrate that her performance review was motivated by any discriminatory animus. Indeed, during her deposition, Schmidt conceded she has no specific facts to support that this particular evaluation was due to her gender, admitting that it is only “my belief” and that she would have received an “exceeds standards” evaluation “if I was a crony.” (Cikes Decl., Ex. S [Schmidt Depo. 140:2-141:14].) Schmidt’s remaining allegations relate mostly to personnel actions that she claims inconvenienced her or that she did not like, including having her work schedule changed, not being permitted to follow the judge from her department to a different department, and receiving oral and written criticism of her job performance. However, courts have long held that such day-to-day management decisions, which do not have a material impact on an individual’s terms and conditions of employment, do not constitute actionable adverse employment actions. See Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002) (“A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient”); Black v. State of Maine, 75 F.3d 716, 725 (1st Cir. 1996) (“Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action”); Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir. 2002) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 34 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -27- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE (“not everything that makes an employee unhappy is an actionable adverse action”). Schmidt also has no evidence that any of these personnel actions were motivated, in whole or in part, because of her gender. For example, with respect to not being permitted to follow the judge to a different department, Schmidt testified “I don’t know if [Northrup] did it because I was female or because I complained. I don’t know.” (Cikes Decl., Ex. S [Schmidt Depo. 229:7-17].) Asked if Fowler- Bradley did not grant Schmidt’s request because of her gender, Schmidt testified “I don’t - she might have been - I don’t know. I don’t know why she did it. I don’t know - I don’t even know that - for a fact that she is the one who said that I couldn’t follow him.” (Ibid. [Schmidt Depo. 232:19-233:10].) Schmidt has, however, offered non-discriminatory reasons for various personnel actions, testifying that she “believed” that they were made because of concerns she expressed regarding the use of the Marshal’s Office staff to conduct field operations at the expense of court security, and that she did not think that she would have been subjected to these actions if she would have been one of Dean’s “Cronies.” (Ibid. [Schmidt Depo.,65:16-66:14, 117:17-118:10, 123:16-124:20].) While Schmidt asserts generally that male deputies who voiced concerns regarding the Marshal’s Office change in focus were not subject to similar treatment, she could offer no information to support those assertions. (See, e.g., Cikes Decl., Ex. S [Schmidt Depo., 56:21-59:3 [suggesting Dean sent her an inappropriate email about her requests for time off “[b]ecause I’m a female” and that “males weren’t being treated like that,” but subsequently acknowledging that her request was unique and “[n]obody had the identical situation as me”]; 99:10-100:5 [suggesting Dean was not rude to male deputies and would not have responded harshly to a male deputy who requested time to check email, but acknowledging “I don’t know that. I’m saying that I believe it. Like, I believe it to be true because of the past - the past and how he was doing”].) Schmidt’s speculation that males, in similar situations, were treated more favorably is insufficient to meet her burden on summary judgment. See Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1419 (9th Cir. 1988) (“purely conclusory allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment”). b. Sampson Like Schmidt, Sampson received all scheduled merit increases as well as a number of positive N&Os from her supervisors, and her claims of adverse employment actions boil down to two N&Os for Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 35 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -28- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE misconduct on February 17, 2012 and May 29, 2012, a “draft” N&O on February 23, 2012, that was never issued, and a draft “meets expectations” performance evaluation. First, the N&Os do not qualify as “adverse employment actions” under Title VII and FEHA, given that they did not become a part of her personnel file or otherwise “materially affect the compensation, terms, conditions, or privileges” of her employment. Anderson, 2016 WL 946171, at *13; see Helgeson, 44 F. Supp. 2d at 1098; Phelps, 469 Fed. Appx. at 550; Sanchez, 90 F. Supp. 3d at 1056. Moreover, Sampson lacks any evidence that the N&Os were motivated by discriminatory animus. About the first N&O, she testified: “I don’t know if this had to do with my gender.” (Cikes Decl., Ex. F [Sampson Depo., 87:15-88:9].) With regard to the second N&O concerning her failure to secure an inmate’s handcuff, Sampson admitted that an inmate’s ability to get out of her handcuffs is a “big deal.” And Sampson actually uses sexual stereotypes to explain her female supervisor’s conduct, opining that Shotwell issued her the N&O because Shotwell “didn’t like me… [b]ecause I was another female,” that Shotwell “was intimidated by other females,” and that Shotwell “used her feminine wiles… She would use her -she would use her sex. She would use her looks - she would be flirtatious. She would giggle with the males. She - that was just part of her - that’s what she would do….” (Ibid. [Sampson Depo. 171:13-175:15].) Asked for additional facts on how gender played a role in her N&Os, Sampson testified that “I don’t know about facts, but I think we all know women can be intimidated by other women, for whatever reason, and she was intimidated by us.” (Ibid. [Sampson Depo. 176:18-177:25.) This certainly does not show that Sampson was a victim of discriminatory animus here.6 Sampson also claims that she received a “draft” performance evaluation from Shotwell with a “meets standards” overall rating. Again, a neutral performance evaluation, without more, cannot qualify as an adverse action. See, e.g., Helgeson, 44 F. Supp. 2d at 1098; Lyons, 307 F.3d at 1118; Kortan, 217 F.3d at 1112-13. Moreover, Shotwell never even finalized Sampson’s performance evaluation due to 6 Critically, when asked how her gender played into these actions, Sampson stated that the female employees “were easier targets…. I can’t be in [Dean’s] head, but the females were being treated more harsh [sic] than the males.” However, when asked if Dean took any adverse employment actions against the male deputies who voiced similar concerns, Sampson testified that “those that were expressing concern were no longer - they were relieved of duty at the marshal’s office.” (Cikes Decl., Ex. F [Sampson Depo., 54:10-57:13], emphasis added.) Thus, by Sampson’s own admission, the male deputies who purportedly complained about the shift in duties were actually treated more harshly than the females. Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 36 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -29- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Sampson’s decision to go on leave and later resign - thus defeating any claim that the evaluation had a material impact on the terms and conditions of her employment. (UF 121) Finally, Sampson identifies various personnel actions that she claims were inappropriate or unwarranted, including having to perform a “ride along” with a member of the public and her claim that Dean and others overly scrutinized video of her defensive tactics training. Once again, because none of these decisions had a material impact on Sampson’s terms and conditions of employment, they do not qualify as adverse employment actions as a matter of law. Akers, 95 Cal. App. 4th at 1455; Phelps, 469 Fed. Appx. at 550. Furthermore, like Schmidt, Sampson also offered non-discriminatory reasons for various personnel actions, testifying that she believed these employment decisions were made because she expressed concerns about the use of the Marshal’s Office staff to conduct field operations at the expense of court security and because of her membership in the group of “Old Timers” as opposed to Dean’s “Cronies.” Sampson stated: “I’m one of those old guys, whether it be male or female. It was the old guys. …I mean, no one seemed to be exempt from or - poor treatment. We were treated harsher, so I kind of went off on that answer, but I fell into this group. I fell into this circle.” (Cikes Decl., Ex. F [Sampson Depo. 116:16-117:23].) Sampson clarified that “the circle” was “the circle versus the favorites, the cronies, versus those that are - are pushing back with or being vocal about the direction of the department. Those who were happy doing their job that applied for.” (Ibid. [Sampson Depo. 117:24- 118:14].) Because Sampson cannot establish a prima facie case or produce evidence of any discriminatory animus, the Superior Court is entitled to judgment on her Title VII and FEHA discrimination claims in the fifth and sixth causes of action. c. Knowles Like Schmidt and Sampson, Knowles did not suffer any adverse employment action, and received all scheduled merit increases as well as an “exceed standards” rating in her February 29, 2012, performance evaluation. While her allegations relating to being dispatched to work screening stations with PSSO Gordon and conduct by Dean and Shotwell that she found offensive are addressed in the harassment section below, her claims of adverse employment action relate to two negative N&Os and two notices of investigation. These, however, do not amount to adverse employment actions under Title Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 37 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -30- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE VII or FEHA, nor were they motivated by her gender. First, the two negative N&Os dated April 5, 2011 and December 26, 2011 (later replaced with a different N&O on January 13, 2012) were neither placed in Knowles’ personnel file nor even referenced in her February 29, 2012 performance evaluation - they do not qualify as “adverse employment actions” under either Title VII or FEHA. See Helgeson, 44 F. Supp. 2d at 1098; Sanchez, 90 F. Supp. 3d at 1056, at *14. Moreover, Knowles received the N&Os for legitimate, non-discriminatory reasons: the April 5, 2011 N&O refers to Knowles’s failure to check her can of OC (i.e., pepper spray) for the expiration date, pursuant to the directives in Marshal Northrup’s March 7, 2011 email to all deputies, and Knowles admitted that she did not check the expiration date on her OC can; while the January 13, 2012 N&O stemmed from Knowles’ December 23, 2011 verbal exchange with Shotwell that was witnessed by other deputies that could be perceived as being discourteous towards a supervisor in front other deputies. Knowles testified that Northrup issued the second N&O “[b]ecause it originated from Shotwell, and she does not like other women,” notwithstanding her subsequent admission that Northrup conducted his own internal investigation and had spoken to other witnesses who had directly observed Knowles’ behavior. (Cikes Decl., Ex. EE [Knowles Depo. 127:5-130:25].) Knowles then offered that Northrup “doesn’t have much respect for women” and treated her differently than male deputies, but the only “fact” she offered is “[t]he way he approaches me. The way he talks to me. Like he’ll clap his hands and say, ‘How’s Debra today?’ I don’t see him doing that to the male deputies. And that’s not normal….” (Ibid. [Knowles Depo., 131:13-133:5].) These conclusory allegations cannot support even a prima facie case of intentional discrimination, let alone pretext. Forsberg, 840 F.2d at 1419. Second, Knowles notes that in March 2012, she received two notices that she was under investigation for possible misconduct, and admitted that she was never subjected to any discipline stemming from the investigation. Neither the notice or the actual investigation constitute an adverse employment action. Longmire v. City of Oakland, 2011 WL 5520958, *5 (N.D. Cal. Nov. 14, 2011) (“Mere investigation, paid administrative leave and a recommendation for termination without actual termination are not considered adverse employment actions”). Furthermore, the undisputed evidence in this case establishes that the decision to investigate Knowles was for legitimate, non-discriminatory reasons - specifically, concern that Knowles had not followed appropriate officer-safety practices Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 38 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -31- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE following two incidents in February 2012 and that she was later untruthful in recounting one of those instances during a conversation with Dean. Asked why she believed the notices of investigation were tied to her gender, Knowles claimed it was because she was a “complaining female” and Northrup “wanted to get rid of me” and “wanted to shut me up,” yet she offered no facts to support those allegations. (Cikes Decl., Ex. EE [Knowles Depo. 216:16-217:3].) Like Schmidt and Sampson, Knowles also takes issue with various personnel actions, including being denied the opportunity to respond to an officer-involved shooting call so that two male deputies could respond, being dispatched to work screening stations, and having her PUBSAFE/CLETS access removed. But again, such day-to-day management decisions, which do not have a material impact on an individual’s terms and conditions of employment, do not qualify as actionable adverse employment actions. Akers, 95 Cal. App. 4th at 1455; Schaffer v. GTE, Inc., 40 Fed. Appx. 552, 555 (9th Cir. 2002) (“complaints about her cubicle, lack of Internet access, lack of access to a company vehicle, and denial of training fail because the conduct complained of does not constitute adverse employment action”). And as was the case with Schmidt and Sampson, Knowles has no evidence that any of these personnel actions were because of her gender. She speculates, for example, that Dean targeted those deputies who did not like performing field operations (i.e., the “Old Timers”), and that Shotwell simply did not like the other female employees at the Marshal’s Office because they detracted from the male employees’ attention towards her. (See, e.g., Cikes Decl., Ex. EE [Knowles Depo. 63:21-66:24, 302:15- 303:20].) She cannot proffer the “specific and significantly probative evidence” needed to proceed with a discrimination claim. Oliver, 966 F.Supp.2d at 896; Oncale, 523 U.S. at 80-81 (“plaintiff … must always prove that the conduct at issue ... actually constituted ‘discrimina[tion] because of... sex”’). Because Knowles cannot establish a prima facie case or produce evidence of any discriminatory animus, the Superior Court is entitled to judgment on her Title VII and FEHA discrimination claims in the third and fourth causes of action. C. DEFENDANT SUPERIOR COURT AND INDIVIDUAL DEFENDANT DEAN ARE ENTITLED TO SUMMARY JUDGMENT AS TO PLAINTIFFS SCHMIDT, SAMPSON AND KNOWLES’ SEX/GENDER HARASSMENT CLAIMS Plaintiffs Schmidt, Sampson and Knowles also assert claims for sex/gender harassment under Title VII and FEHA (1st through 6th causes of action). To state a prima facie case for sexual harassment Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 39 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -32- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE under Title VII and FEHA, a plaintiff must show that she was subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “sufficiently severe or pervasive” as to “alter the condition of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 279 (2006). “[I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); see also Brooks v. City of San Mateo, 229 F.3d 917, 923-24 (9th Cir. 2000). Significantly, neither Title VII nor FEHA establishes a “general civility code,” nor encompass “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788. “[C]onduct must be extreme to amount to a change in the terms and conditions of employment.” Ibid. This standard is “commensurately higher” where, as here, plaintiffs suffered no tangible job loss. Fisher v. San Pedro, 214 Cal. App. 3d 590, 610 (1989). Indeed, “[f]or a hostile environment claim to survive a summary judgment motion, ‘a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Henry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998). Plaintiffs cannot make this showing here. 1. Dean’s Potential Liability for Harassment Under FEHA As stated above, Dean cannot be held personally liable under Title VII, and he is therefore entitled to judgment on each Title VII cause of action asserted against him - the first, third, and fifth causes of action. Craig, 496 F.3d at 1058. Under FEHA, an individual may be personally liable for harassment that “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. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” Reno, 18 Cal. 4th at 645-46 (citing Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 63-65 (1996)). Dean, however, cannot be “liable for an injury Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 40 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -33- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov’t. Code § 820.2. “FEHA does not abrogate section 820.2’s specific grant of immunity to public employees for their discretionary acts.” Caldwell v. Montoya, 10 Cal. 4th 972, 986 (1995). 2. Plaintiffs’ Harassment Claims Fail as the Alleged Harassment Was Neither Severe Nor Pervasive and Plaintiffs Lack Evidence the Conduct Was Based on Sex/Gender Plaintiffs Schmidt, Sampson and Knowles identify numerous discrete acts they believe to be discriminatory and/or harassing. However, as demonstrated below, even if true, none of Plaintiffs’ allegations amount to severe or pervasive harassment under Title VII or FEHA. Indeed, much of the conduct Plaintiffs complain of cannot qualify harassment as a matter of law. Additionally, Plaintiffs have no evidence whatsoever that any of this alleged harassment was motivated, in whole or in part, on account of gender/sex. Critically, in their respective depositions, Plaintiffs identified various reasons for these alleged actions, none of which have anything to do with gender. a. Schmidt Schmidt’s harassment allegations fall into the following categories: (1) Dean repeating a sexually explicit comment on two separate occasions; (2) personnel management actions; (3) statements or actions by Dean made to other employees outside of Schmidt’s presence; and (4) comments or actions by Dean and Shotwell that Schmidt believed to be rude or discourteous. First: Schmidt’s only allegation of harassment based on sex is her assertion that Dean repeated a sexually-explicit remark (“Is your pussy wet?”) on two separate occasions, after she allegedly told him that a training officer in her former job posed that question to her. (See Compl., ¶ 33(a)-(b).) Schmidt testified that Dean’s alleged remarks were not intended as sexual or romantic advances and that she only found his repeating them to be “offensive” because they concerned a matter she related to Dean in confidence (namely, the sexual harassment she endured while a trainee with the Solano County Sheriff’s Department). (UF 47) She further testified that the alleged remarks were not repeated after she objected. (Ibid.) Given these admissions, Schmidt cannot establish a subjectively or objectively hostile work environment claim as a matter of law. Faragher, 524 U.S. at 787; Cooper v. Cate, 2012 WL 1669353, *5-8 (E.D. Cal. May 11, 2012) (finding corrections officer failed to show objectively hostile work Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 41 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -34- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE environment on race or gender where alleged conduct could “be characterized as disrespectful, unfair, and unwarranted” but not based on gender and where “[t]he only events that are related to race are at best two isolated and sporadic events”); Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003) (“couple of occasions” of “insensitive humor” did not violate Title VII); Kortan v. California Youth Authority, 217 F.3d 1104, 1110 (9th Cir.2000) (“mere utterance of epithet which engenders offensive feelings would not affect conditions of employment to sufficiently significant degree necessary for violation of Title VII”) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)). Second: As noted above, Schmidt takes issue with various personnel actions by her supervisors, including having her work schedule changed without receiving prior notice, not being permitted to follow the judge assigned to her department to a different department, being denied the opportunity to work “time for time,” and receiving oral and written criticism regarding her job performance. (See, e.g., Compl, ¶ 33(d)-(f), (h)-(i), (l)-(k) & (m)-(o).) But, as discussed above, Schmidt has no evidence demonstrating that any of the alleged actions were taken on account of her gender or that the Superior Court’s proffered reasons for certain actions are pretextual. Moreover, because these day-to-day personnel management actions fall within the scope of Schmidt’s supervisors’ job duties, they cannot qualify as harassment as a matter of law. Reno, 18 Cal. 4th at 646-47 (“commonly necessary personnel management actions such as hiring and firing, … promotion or demotion, performance evaluations, the provision of support, … do not come within the meaning of harassment”); Gathenji v. Autozoners, LLC, 703 F. Supp. 2d 1017, 1033 (E.D. Cal. 2010) (plaintiff’s allegations of “demotion, staffing issues, performance evaluations, loss prevention audit scoring, and criticism about job performance” did not constitute harassment as a matter of law); Velente-Hook v. Eastern Plumas Health Care, 368 F. Supp. 2d 1084, 1103 (E.D. Cal. 2005) (“Plaintiff’s cited evidence falls short of that required to make a prima facie case of harassment, since the incidents she complains of fall within the scope of job duties of a type necessary to business and personnel management”). Third: Schmidt alleges that Dean spoke negatively about her to other employees (e.g., referring to Schmidt as “the ring leader, the worst one”). (See Compl., ¶ 33(p), (r).) She also alleges that Dean engaged in other inappropriate conduct outside of her presence (e.g., discussing the investigation with other employees while it was still ongoing, stating “I have a really good attorney,” and playing a Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 42 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -35- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE voicemail from his attorney reporting the results of the investigation over the speakerphone in his office). (See Compl., ¶ 26, ¶; UF 74.) However, since all of this alleged conduct purportedly took place outside of Schmidt’s presence, she cannot rely on these allegations to support her hostile work environment claim. See Brooks, 229 F.3d at 924 (conduct directed towards others of which plaintiff was unaware when it occurred has no bearing on whether plaintiff reasonably considered his working environment abusive); Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009) (“comments or conduct of which a plaintiff had no knowledge cannot be said to have made her work environment hostile”); Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998) (rejecting hostile work environment claim where most of the offensive comments giving rise to the claim were not directed at the plaintiff, and those that were directed at plaintiff were isolated). Fourth: Schmidt alleges that Dean and Shotwell were rude or discourteous to her on several occasions. In particular, Schmidt claims that Dean addressed her in a demeaning tone during a morning briefing session, smirked and stared at her during another briefing session, and hummed and chuckled to himself while the two were alone in the squad room. (See Compl., ¶ 33(g).) Schmidt also claims that Shotwell became unnecessarily irate when Schmidt asked her if she could check her email and, on another occasion, delayed in responding when Schmidt asked for a restroom break and then failed to make eye contact or otherwise acknowledge Schmidt when she did arrive. (See Compl., ¶ 33(j)-(k).) Such conduct, however, is not sufficiently “severe or pervasive” to support a hostile work environment claim. See Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d 958, 965-67 (9th Cir. 1999) (teasing, yelling, laughing, rudeness and use of profanity not sufficiently severe or pervasive”). And again, Schmidt has no evidence that she was subjected to this conduct on account of her gender, as opposed to some other non-discriminatory reason (including the concerns she expressed about the shift in duties).7 See Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984) (recognizing that Title VII is “not a shield against harsh treatment at the workplace. Nor does the statute require the employer to have good cause for its 7 Schmidt also testified at deposition that Dean was rude to Knowles when she requested permission to check emails and was instead routed to work the perimeter of the court on a Monday morning. Schmidt testified, “…but had any male deputy asked to go check their emails, I don’t - it would not have been an issue.” Asked how she knew that, she admitted “I don’t know that. I’m saying that I believe it. Like, I believe it to be true because of the - the past and how he was doing.” (Cikes Decl., Ex. S [Schmidt Depo., 98:10-100.5].) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 43 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -36- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE decisions. The employer may make an employment decision for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”). b. Sampson Sampson’s harassment allegations fall within the following categories: (1) personnel actions by Dean and Shotwell, including oral and written criticism of Sampson’s job performance; (2) statements and conduct by Dean directed to other employees, outside of Sampson’s presence; and (3) conduct and comments by Dean that Sampson found to be rude and/or intimidating. First: Sampson, like Schmidt, takes issue with various managerial/personnel actions that Dean and Shotwell allegedly performed. In particular, Sampson claims that both Dean and Shotwell unfairly criticized her job performance (including issuing her two N&Os and a draft “meets standards” performance evaluation that Shotwell never finalized). (See UF 120; Compl. ¶ 63(b)-(d).) She also claims that Dean ordered her to perform a “ride along,” requested that Henrioulle document Sampson’s performance issues in connection with an arrest she assisted in making (which Henrioulle declined to do), and overly scrutinized a video of Sampson’s defensive tactics training. (See UF 96; Compl., ¶ (j).) Again, Sampson lacks evidence that any of these actions were motivated, in whole or in part, on account of her gender. Moreover, because these personnel actions fall within the scope of Dean’s job duties as sergeant, they cannot constitute unlawful harassment as a matter of law. Reno, 18 Cal. 4th at 646-47; Gathenji, 703 F. Supp. 2d at 1033. Second: Sampson alleges that Dean made derogatory comments about the Marshal’s Office employees and engaged in other inappropriate conduct outside of her presence. Among other things, Sampson alleges that Dean told her boyfriend at the time (a member of the Anderson Police Department) that “no one could be or handle patrol [;] they’re lazy.” She also claims Dean, while discussing a citizen complaint that was filed against a deputy, commented, “I have a great attorney,” purportedly in reference to the attorney representing him in connection with Sampson’s and the others’ internal complaints. (See UF 71, 94; Compl., ¶ 63(a), (i) & (l).) Additionally, Sampson claims Dean played a voicemail from his attorney reporting the results of the Superior Court’s investigation over his speakerphone so others in the adjacent squad room could hear. (Compl, ¶ 26.) Again, because all this alleged conduct occurred outside Sampson’s presence, it cannot constitute unlawful harassment as a matter of law. See Brooks, Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 44 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -37- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE 229 F.3d at 924; Ngeunjuntr, 146 F.3d at 467. Third: Sampson alleges that Dean made a number of comments to Sampson that she found rude, offensive and/or inappropriate. For example, Sampson claims Dean t questioned her about her appearance, asking “What’s up with your eyes?”, “Why do you do that one finger in your head scratch thing?”, “What’s that smell?”, and “Why is your mouth open?” I hate it when you do that.” (UF 92) Sampson testified that each of these comments were made only once, on separate occasions, and never repeated. (Ibid.) She also claims that on two separate occasions, Dean placed a tape recorder on his desk and said, “How you answer this next question will determine whether the tape recorder stays on.” (UF 93) Taken together, this alleged conduct is not sufficiently severe or pervasive to support a hostile work environment claim. See Kortan 217 F.3d at 1110-11. Moreover, since none of these comments appear to be based on Sampson’s gender, she cannot demonstrate that they amount to a hostile work environment and/or sexual harassment. See Cooper v. Cate, 2012 WL 1669353, *5-8 (E.D. Cal. May 11, 2012) (corrections officer failed to show objectively hostile work environment on race/gender where alleged conduct could “be characterized as disrespectful, unfair, and unwarranted” but not based on gender and where “[t]he only events that are related to race are at best two isolated and sporadic events”); Manatt., 339 F.3d at 798 (“couple of occasions” of “insensitive humor” did not violate Title VII). c. Knowles Knowles’ harassment allegations fall within the following categories: (1) personnel actions, including receiving oral and written criticism from her supervisors and being notified that she was under investigation for possible misconduct; (2) assignments to work with or in close proximity to PSSO Gordon, the individual whom Knowles had previously filed a complaint of sexual harassment against; (3) comments and conduct by Shotwell that Knowles believed to be rude and/or inappropriate; and (4) comments and conduct by Dean that Knowles believed to be sexually-suggestive. First: As discussed above, Knowles takes issue with certain personnel actions, including receiving oral and written criticism from her supervisors, being notified that she was under investigation for possible misconduct, being assigned to work courtrooms with no screening stations, being deprived of “training opportunities,” and having her PUBSAFE access removed. (See Compl, ¶ 48(a), (c)-(g), (i)- (n), (p), (q)-(r) & (v).) Again, these personnel actions fall within the scope of her supervisors’ job duties Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 45 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -38- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE and therefore cannot constitute unlawful harassment as a matter of law. Reno, 18 Cal. 4th at 646-47; Gathenji, 703 F. Supp. 2d at 1033. Second: Knowles alleges that on various occasions, dispatch sent her to work screening stations with PSSO Gordon, the individual whom she had previously filed a complaint of sexual harassment. In particular, Knowles claims that on December 23, 2011 and December 30, 2011, dispatch sent her to work at a screening station with Gordon. (UF 148 & 149) Thereafter, Knowles claims she was repeatedly dispatched to work screening stations with Gordon, but refused to accept the assignment or was redirected to a different location before she arrived. (UF 186) But again, this alleged conduct constitutes personnel actions that, as a matter of law, cannot constitute unlawful harassment. Reno, 18 Cal. 4th at 646-47; Gathenji, 703 F. Supp. 2d at 1033. Furthermore, Knowles lacks any evidence that these assignments were the result of discriminatory animus. To the contrary, evidence in this case confirms that every time Knowles was directed to work in the same location as PSSO Gordon, it was the result of a mistake by the PSSOs staffing the dispatch room from the Marshal’s Office. (UF 150-161) And after each reported incident, management took steps of increasing severity, including issuing N&Os to the PSSOs involved, to prevent it from happening again. (Ibid.) Significantly, Knowles does not allege any harassment or other misconduct by Gordon when they were assigned to work together in 2011 and 2012 (UF 148 & 149), or at any time since her 2009 complaint. Given that the Court’s corrective action worked to prevent any harassment, these few scheduling errors cannot support a claim of harassment. See Swenson v. Potter, 271 F.3d 1184, 1195 (9th Cir. 2001) (“even if we allow for the fact that Swenson may have been particularly sensitive to contact with Feiner following his misconduct, none of their encounters, either alone or collectively, amount to sexual harassment”), Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 2001) (“None of the incidents of contact appear to have been more than routine .... Even in light of what went before, a reasonable woman would not find the incidents Fuller details sufficiently severe and pervasive to alter her working environment”). Third: Knowles alleges that in November 2011, Shotwell addressed Knowles in a demeaning manner on a number of occasions, including making fun of the size of her feet and hair color. (UF 142) Knowles further alleges that after she filed her internal complaint, Dean and Shotwell were rude and Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 46 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -39- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE discourteous on several occasions, including purposefully ignoring Knowles and not acknowledging her. (See UF 187 & 188; Compl., ¶ 48(h).) However, this conduct, even if true, does not amount to severe and pervasive harassment. Scusa, 181 F.3d at 965-67; Nix, 738 F.2d at 1187. Moreover, Knowles has no evidence that Shotwell engaged in this conduct because of her gender. Again, Knowles’ unsupported beliefs and speculation are insufficient to establish a material dispute of fact for purposes of evading summary judgment. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment”). Fourth: Knowles alleges that Dean made statements and engaged in conduct that Knowles found inappropriate. In particular, Knowles alleges that (1) Dean would discuss his relationship with his wife (UF , (2) on one occasion, Dean pointed to a female clerk and stated, “That girl wants me. What do you think of her?”; (3) on two separate occasions, Dean came up to Knowles while she was sitting and slowly started to rub her earlobes while staring at her; and (4) during a DUI stop, Dean stood behind Knowles well within “personal space.” (See UF 138-140; Compl., ¶ 48(b).) Once again, even if true, these allegations do not amount to sexual harassment. Hocevar v. Purdue Frederick Co, 223 F.3d 721, 737-38 (8th Cir. 2000); Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001) (offhand comments and isolated incidents, unless extremely serious, do not amount to discriminatory changes in the “terms and conditions” of employment). 3. Defendant Superior Court Is Not Liable for Any Unlawful Harassment Under the Ellerth/Faragher Defense As demonstrated above, Plaintiffs Schmidt, Sampson and Knowles cannot establish that they were subjected to unlawful harassment because of their sex/gender. But even if they could, Defendant Superior Court would still not be liable under the “Ellerth/Faragher” defense. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, supra, 524 U.S. 775, the United States Supreme Court recognized an affirmative defense to claims of sexual harassment against employers. Under the Ellerth/Faragher defense, where the alleged harasser is a supervisor, an employer will be strictly liable if the harassment culminates in a “tangible employment Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 47 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -40- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE action.” Vance v. Ball State University, 133 S. Ct. 2434, 2437 (2013).8 But if there is a finding that a supervisor sexually harassed a plaintiff and “no tangible employment action is taken, the employer may avoid liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Ibid. “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. As shown above, Plaintiffs Schmidt, Sampson and Knowles were not subjected to any “tangible employment action” during the periods at issue. Consequently, the Ellerth/Faragher defense is available to Defendant Superior Court as a bar to liability with regard to Plaintiffs’ harassment claims.9 Nor can there be any dispute that Defendant Superior Court has “exercised reasonable care to prevent and correct any harassment behavior.” At all relevant times, Defendant Superior Court maintained a “Harassment Prevention Policy,” which includes a comprehensive complaint procedure for any employee who believes he or she has been harassed in connection with their employment or is aware of such harassment. Pursuant to that policy, Plaintiffs Schmidt, Sampson and Knowles filed internal complaints, which the Superior Court promptly investigated. Following a lengthy investigation, the Superior Court determined Plaintiffs’ complaints were either unfounded or not sustained. Given these circumstances, the Superior Court has exercised reasonable care to prevent and correct any harassing behavior. See Harris v. L&L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997) (a prompt good-faith investigation insulates the employer from liability); Swenson v. Potter, 271 F.3d at 1193 (“The most 8 Although Ellerth and Faragher both involved Title VII claims, the Ninth Circuit has found that the same analysis applies to FEHA claims. See Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1174 (9th Cir. 2001). 9 Schmidt and Sampson may not evade this conclusion based on their decisions to resign from the Marshal’s Office constituted “constructive termination[s].” (See Compl., ¶¶ 34 & 64.) As discussed more fully in Section IV.D below, Schmidt and Sampson’s constructive termination claims are legally without merit. Moreover, a plaintiff’s alleged “constructive termination,” even if proven true, will not amount to a “tangible employment action” barring the Ellerth/Faragher defense. See Penn. State Police v. Suders, 542 U.S. 129, 148-49 (2004) (holding that that a constructive discharge, in itself, does not constitute a tangible employment action that bars the Ellerth/Faragher defense); Alberter v. McDonald’s, 70 F. Supp. 2d 1138 (D. Nev. 1999) (constructive discharge is not a tangible employment action under Ellerth); Caridad v. Metro-North, 191 F.3d 283, 294-95 (3d Cir. 1999) (same). Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 48 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -41- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE significant immediate measure an employer can take in response to a ... harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.”). Plaintiffs will likely contend that the Superior Court’s investigation regarding their internal complaints was inadequate. However, “nothing in the Faragher or Ellerth decisions require[s] a company to conduct a full-blown, due process, trial-type proceeding in response to complaints of ... harassment. All that is required is reasonableness in all of the circumstances....” Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1304 (11th Cir. 2007); Holly D. v. Cal. Institute of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003). Further, the requirement of a reasonable investigation does not include a requirement that the employer “credit uncorroborated statements the complainant makes if they are disputed by the alleged harasser.” Baldwin, 480 F.3d at 1303. As one court observed, “Nothing in the Faragher-Ellerth defense puts a thumb on either side of the scale in a he-said, she-said situation. The employer is not required to credit the statements on the she-said side absent circumstances indicating that it would be unreasonable to do so.” Id. at 1303-04. The undisputed evidence in this case further establishes that Plaintiffs “unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Here, Plaintiffs Schmidt, Sampson and Knowles each testified that the alleged harassment began in early 2011, yet they did not file their internal complaints until March 2012 - roughly a year after the harassment purportedly started. Such delay is considered unreasonable and the employer cannot be held liable for sexual harassment. See Baldwin, 480 F.3d at 1307 (employee’s delay of three months and two weeks in reporting harassment was unreasonable); Walton v. Johnson and Johnson Services, Inc., 347 F.3d 1272, 1289-91 (11th Cir. 2003) (employee’s reporting delay of two and a half months after the first incidents of harassment was too long for Faragher/Ellerth purposes); Hardage v. CBS Broadcasting Inc., 427 F.3d 1177, 1188 (9th Cir. 2005) (employee waiting six months to report sexual harassment was unreasonable). D. DEFENDANT SUPERIOR COURT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS SCHMIDT AND SAMPSON’S CONSTRUCTIVE TERMINATION CLAIMS Plaintiffs Schmidt and Sampson also assert that the alleged harassment they endured prompted them to resign from the Marshal’s Office and that their resignations amounted to “constructive termination(s).” (Compl., ¶¶ 34 & 64.) To establish a constructive termination under Title VII and Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 49 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -42- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE FEHA, a plaintiff must show “working conditions so intolerable that a reasonable person would have felt compelled to resign.” Penn. State Police, 542 U.S. at 147; see also Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251 (1994). Indeed, unless working conditions are “sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent and reasonable employee to remain on the job to earn a livelihood,” a court will not find a constructive termination. Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). Further, the intolerable working conditions must exist at the time of the employee’s resignation; an employee cannot base a constructive discharge claim on conditions that ceased as of the date of the resignation. See Manatt, 339 F.3d at 804 (employee’s constructive discharge claim “untenable” where alleged offensive environment ended before employee quit); Gibson v. Aro Corp., 32 Cal. App.4th 1628, 1637 (1995) (same). Neither Schmidt nor Sampson can make this showing. First, as demonstrated above, Schmidt and Sampson cannot demonstrate that they were subjected to any severe or pervasive harassment, nor can they show that any of the alleged harassment they claimed to have endured was motivated by discriminatory animus. Consequently, neither Schmidt nor Sampson can maintain a claim for constructive discharge as a matter of law. See Brooks, 229 F.3d at 903 (“Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge”). But even if Plaintiffs Schmidt and Sampson could demonstrate unlawful harassment, their constructive termination claims would still fail. As noted above, Schmidt went on leave from September 26, 2012 to January 13, 2014, at which time she returned on light duty. (UF 82) When she returned, Schmidt did not have any contact with either Shotwell or Dean - Shotwell had already resigned and Dean was on an extended leave. (UF 83) Furthermore, apart from one incident in which some of her items from her locker went missing (see UF 84-87; Compl., ¶33(s)), she did not suffer any additional alleged harassment. To the contrary, Schmidt testified that she resigned from the Marshal’s Office after she decided she could no longer work in law enforcement therefore elected to pursue a career in the medical field. (UF 87) Given these admissions, Schmidt cannot maintain a constructive termination claim because the intolerable working conditions had ceased at the time of her resignation. Similarly, Sampson cannot establish that she was subjected to intolerable working conditions Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 50 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -43- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE when she resigned. As discussed above, Sampson went on leave on or about October 3, 2012. (UF 126) On September 4, 2013, Sampson - while still on leave - resigned from the Marshal’s Office. (UF 127) In her signed resignation, Sampson listed stated reason as: “Filed complaint of hostile work environment and retaliation. Out on stress leave. Secured other employment for financial reasons and the inability to return to that environment as nothing has changed.” (Ibid.) While she was on leave, Sampson was not subjected to any working conditions - intolerable or otherwise. Accordingly, Sampson’s constructive termination claim should be dismissed. E. DEFENDANT SUPERIOR COURT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ RETALIATION CLAIMS In their Complaint, all four Plaintiffs assert claims for retaliation under Title VII and FEHA (8th through 14th causes of action). As with discrimination claims, courts apply the same burden-shifting framework to retaliation claims under those statutes. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir. 2003); Flatt v. North American Watch Corp., 3 Cal. App. 4th 467, 475-76 (1992). Under this framework, a plaintiff initially bears the burden of establishing a prima facie case of retaliation by proving that he or she: (1) engaged in protected activity; (2) the employer subjected him or her to an adverse employment action; and (3) that a causal link exists between the protected activity and the employer’s actions. Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 506 (9th Cir. 2000); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1044 (2005). Once a plaintiff establishes a prima facie case, the burden shifts to defendant to set forth a legitimate, non-retaliatory reason for its actions. Ibid. At that point, the plaintiff must produce “specific and substantial” evidence demonstrating the stated reasons were a pretext for retaliation. Bergene v. Salt River Project Agr. Imp. & Power District, 272 F.3d 1136, 1142 (9th Cir. 2001); Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 75 (2000). Plaintiffs’ retaliation claims fail under this framework. 1. Henrioulle Henrioulle claims that he was harassed, placed on remedial training, denied a defensive tactics instructor assignment and ultimately released from probation because he “was friendly with and associating with certain of his co-workers that supervisory staff did not want him to be friends with or even communicate with” and on account of his “refus[al] to discontinue his relationship with these Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 51 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -44- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE employees or make detrimental reports about them as management wanted.” (Compl., ¶ 21.) Legally and factually, this claim is entirely without merit. Protected Activity: As a threshold matter, Henrioulle cannot demonstrate that he engaged in any “protected activity” within the meaning of Title VII or FEHA. Under both Title VII and FEHA, “protected activity” means that the employee made a charge, testified, assisted or participated in a proceeding or hearing or opposed an act made unlawful by the statutes. 42 U.S.C. § 2000e-3(a); Cal. Gov’t Code § 12940(h). While “oppose” is broader than actively complaining, and may include reporting discrimination in an internal investigation or “refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons,” courts require that the employer at least be aware of the opposing conduct: “the plaintiff must make some showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity.” Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 555 U.S. 271, 277-78 (2009). Here, Henrioulle’s assertion that he “opposed harassment/discrimination” by associating with certain co-workers and refusing to make “detrimental reports” does not constitute protected activity under Title VII or FEHA because through these actions he did not “alert[] his employer that he believed discrimination had occurred.”10 Hittle v. City of Stockton, 2016 WL 1267703, *6 (E.D. Cal. March 31, 2016) (allegations that plaintiff protested to supervisor that it did not matter that the seminar he attended was Christian in its nature were “insufficient” to amount “to an opposition of a discriminatory practice because Plaintiff does not allege he alerted his employer that he believed discrimination had occurred”); Flanagan v. City of Richmond, 2015 WL 5964881, *19-20 (N.D. Cal. Oct. 13, 2015) (“the courts have declined to find a protected activity supporting a retaliation claim where the alleged protected activity at issue fails to state that it opposed discrimination”); Holiness v. Moore-Handley, Inc., 114 F.Supp.2d 1176, 1186 (N.D. Ala. 1991) (“The mere association with an employee of another [gender], standing alone, simply is neither opposition nor participation, and it cannot give rise to a retaliation claim under either Title VII or section 1981”). Adverse Employment Action: An “adverse employment action” occurs when an employee 10 Indeed, while working at the Marshal’s Office, Henrioulle did not even know that Plaintiffs Schmidt, Sampson or Knowles had ever complained that about discrimination or harassment. (UF 227) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 52 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -45- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE endures a “materially adverse change in the terms and conditions of employment.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); Yanowitz, 36 Cal. 4th at 1052. A materially adverse change might be indicated by a “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” Burlington, 548 U.S at 67. Neither Title VII nor FEHA, however, guard against trivial harms that “from an objective perspective, are reasonably likely to do no more than anger or upset an employee….” Yanowitz, 36 Cal.4th at 1052. As such, an action is materially adverse only if it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Ibid. Most of Henrioulle’s allegations fail to meet this standard. For example, Henrioulle’s remedial training does not amount to an adverse employment action under either Title VII or FEHA. See, e.g., Clegg v. Ark. Dept. of Correction, 496 F.3d 922, 927-28 (8th Cir. 2007) (brief remedial training to improve deficiencies noted on performance evaluation did not constitute an adverse employment action under Title VII); Paloni v. City of Albuquerque Police Dept., 212 Fed. Appx. 716, 719 n.2 (10th Cir. 2006) (remedial training provided to police officer regarding use of deadly force not an adverse employment action under Title VII); Seely v. Runyon, 966 F. Supp. 1060, 1065-66 (D. Utah 1997) (90 day training did not constitute an adverse employment action). Nor does Henrioulle’s alleged “harassment” rise to the level of an actionable adverse action. Most of Henrioulle’s harassment allegations relate to alleged conduct by Reagan, a fellow deputy who also served as one of Henrioulle’s training officers.11 In particular, Henrioulle claims that Reagan called him “boy,” “son” and “fag” on several occasions, teased him that he was not going to pass remedial training and said that failure and termination are spelled “H-E-N-R-I-O-U-L-L-E.” (See UF 209 & 210) He also alleges that Reagan wrote “Got Dad” on the dirt of the back car windshield (purportedly in reference to Henrioulle’s then-fiancée’s children from another relationship). (Ibid.) But once again, 11 Henrioulle’s harassment allegations also include Dean’s pointing an unloaded firearm at him while practicing felony car stops. However, this alleged conduct does not constitute the type that would dissuade a reasonable worker from making or supporting a charge of discrimination. Indeed, with regard to Dean’s conduct during the training, Henrioulle admitted that he found the training “helpful” and that Dean “corrected me and told me I should always do a thorough pat-down during these scenarios.” (UF 215) Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 53 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -46- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE none of this alleged harassment, even if true, would amount to an adverse employment action, particularly given that Reagan was a co-worker and not a supervisor. See Brooks, 229 F.3d at 924 (“Because only the employer can change the terms and conditions of employment, an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship”); Ludovico v. Kaiser Permanente, 57 F. Supp. 3d 1176, 1194-95 (N.D. Cal. 2014) (same) Causal Connection/Pretext: The only allegations that address actual adverse employment actions are Henrioulle’s release from probation and being passed over for the defensive tactics instruction assignment. However, Henrioulle cannot establish any “causal connection” between these employment actions and his alleged protected activity. It is undisputed that Northrup made the decision to not give Henrioulle the defensive tactics instructor position because he was still on probation, and that Fowler- Bradley - as the Superior Court’s appointing authority - decided to release Henrioulle from probation due to his incident with the SFPD and his performance issues. (UF 3, 217 & 224) Henrioulle has no evidence that either Marshal Northrup or Fowler-Bradley were aware of his “association” with Schmidt, Sampson and the other employees that Dean allegedly did not like, nor has he any evidence of Henrioulle’s alleged refusal to make “detrimental reports” regarding those employees. Indeed, during his deposition, Henrioulle admitted that he had limited interaction with Northrup and that his only negative impression of Northrup was that he did not say more than “Good day.” (Cikes Decl., Ex. A [Henrioulle Depo. 143:12-24].) Thus, while Henrioulle may claim he has evidence of retaliatory motive as to Dean, he has no evidence relating to Northrup or Fowler-Bradley, the persons responsible for the employment decisions at issue. Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) is instructive. In Vasquez, the plaintiff alleged racial discrimination, harassment and retaliation based on the comments of a supervisor, but not the facility director who ultimately decided to terminate his employment after conducting his own independent investigation. The Ninth Circuit affirmed summary judgment in favor of the employer because the employee offered no evidence of discriminatory remarks by the decision maker (the facility director), and failed to show a nexus between the supervisor’s discriminatory remarks and the facility director’s subsequent employment decisions. Id. at 640-41. The court also held, assuming the employee Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 54 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -47- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE could establish a prima facie case, the employee’s insubordination was a legitimate and nondiscriminatory reason for the termination and was not shown to be pretextual. Ibid. Similarly, because Northrup and Fowler-Bradley (and not Dean) were responsible for not giving Henrioulle the defensive tactics instructor position and releasing him from probation, Henrioulle cannot prove retaliatory animus motivated these decisions, nor present specific and substantial evidence that reasons given for these employment decisions were pretext. See Willis v. Marion County Auditor’s Office, 118 F.3d 542, 548 (7th Cir. 1997) (refusing to impute racial bias of subordinates who reported rule violation to superior because superior did her own independent investigation). 2. Schmidt As discussed above, during the periods at issue, Schmidt did not suffer any adverse employment actions, nor was she subjected to any conduct that would amount to “severe or pervasive” harassment, let alone any “intolerable conduct” prompting her to resign from the Marshals’ Office. Consequently, her retaliation claims fail for the same reason as her discrimination/harassment claims. Moreover, none of Schmidt’s complaints - including her self-described “sexual harassment” complaint - relate to activity protected or prohibited by Title VII or FEHA. As noted above, Schmidt testified that by repeating the sexually explicit comment, Dean was not attempting to make any romantic or sexual advances towards her, but instead was simply trying to “harass” her due to the concerns/disagreement she conveyed regarding the Marshal’s Office use of staff to conduct field operations at the expense of court security. (Cikes Decl., Ex. S [Schmidt Depo. 92:24-93:16, 105:4- 107:2].) The same is true with regard to the various personnel actions that Schmidt takes issue with. Opposition to such alleged management policy decisions is not protected by Title VII or FEHA. For this additional reason, Schmidt cannot proceed with a retaliation claim as a matter of law. Jurado v. Eleven- Fifty Corp., 813 F.2d 1406, 1411-12 (9th Cir. 1987) (no retaliation where opposition to employer’s action was for “personal reasons” rather than claimed discrimination). 3. Sampson As with Schmidt, Sampson did not suffer any adverse employment actions, nor was she subjected to any conduct that would amount to “severe or pervasive” harassment or “intolerable conduct” prompting her to resign from the Marshals’ Office. Consequently, her retaliation claims fail for the same Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 55 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -48- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE reason as her discrimination/harassment claims. Furthermore, by Sampson’s own admission, the alleged “harassment” she endured purportedly stemmed from disagreement with management concerning the use of Marshal’s Office staff to conduct field operations at the expense of court security. Once again, opposition to such management policy decisions is not protected under Title VII or FEHA and thus cannot support a retaliation claim as a matter of law. Jurado, 813 F.2d at 1411-12; Flanagan, 2015 WL 5964881 at *19-20. 4. Knowles As with Schmidt and Sampson, Knowles also did not suffer any adverse employment actions during the course of her employment at the Marshal’s Office. Moreover, Knowles continues to work at the Marshal’s Office to this day, and does not allege constructive termination like Schmidt and Sampson. Knowles’ retaliation claims fail for the same reason as her discrimination/harassment claims. Furthermore, Knowles does not allege any harassment or other misconduct by Gordon when they were assigned to work together in 2011 and 2012, or at any time since her 2009 complaint. (UF 147- 149) Thus, while Knowles may not have liked having to work with Gordon or being dispatched to weapons screening stations where he was present, that fact alone does not constitute protected activity under Title VII or FEHA. See Swenson v. Potter, 271 F.3d 1184, 1192-96 (2001) (“even if we allow for the fact that Swenson may have been particularly sensitive to contact with Feiner following his misconduct, none of their encounters, either alone or collectively, amount to sexual harassment”), Fuller v. City of Oakland, 47 F.3d 1522, 1525-26, 1528 (9th Cir. 2001) (“None of the incidents of contact appear to have been more than routine .... Even in light of what went before, a reasonable woman would not find the incidents Fuller details sufficiently severe and pervasive to alter her working environment”). Accordingly, the fact that dispatchers inadvertently sent Knowles to a screening station where PSSO Gordon was present cannot constitute actionable harassment. F. DEFENDANT COURT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS FOR FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT Lastly, all four Plaintiffs assert claims against Defendant Superior Court for failure to take reasonable steps to prevent discrimination and harassment from occurring in violation of FEHA (15th through 18th causes of action). FEHA provides that it is an unlawful employment practice for an Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 56 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -49- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE employer “to fail to take reasonable steps necessary to prevent discrimination and harassment from occurring.” Cal. Gov’t Code § 12940(k). To recover on a claim for failure to take reasonable steps, a plaintiff must prove that he or she was subjected to harassment, discrimination and/or retaliation in the course of their employment, that their employer failed to take all reasonable steps to prevent the harassment, discrimination, and/or retaliation from occurring, that the plaintiff was harmed and that the employer’s failure was a substantial factor in causing the harm. Adetuyi, 63 F. Supp. 3d at 1092-93; Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 289 (1998). Thus, where a plaintiff cannot prove that an underlying violation of FEHA occurred, there “can be no liability for failure to prevent.” Ibid.; see also Hamilton v. St. Joseph’s Med. Cntr., 2014 WL 2624976, at *7 (E.D Cal. June 12, 2014). As demonstrated above, Plaintiffs cannot show that they were subject to any unlawful discrimination, harassment or retaliation. Nor can they demonstrate that the Superior Court failed to take reasonable steps to prevent any discrimination, harassment or retaliation. Indeed, the Superior Court fully investigated Plaintiffs Schmidt, Sampson and Knowles’ internal complaints and concluded that they were either unfounded or not sustained. (UF 31) Furthermore, Plaintiff Henrioulle did not even file an internal complaint or otherwise bring the alleged harassment he endured to the Superior Court’s attention. (UF 226) For these reasons, Defendants are entitled to summary judgment as to Plaintiffs’ 15th through 18th causes of action for failure to prevent claims under FEHA. V. CONCLUSION As demonstrated above, Plaintiffs Schmidt, Sampson and Knowles cannot raise a genuine issue of material fact that they were subjected to disparate treatment and/or unlawful harassment on account of their gender or the fact that they complained of general discrimination or harassment. Similarly, Plaintiff Henrioulle cannot establish that he was subjected to any adverse employment action (including his release from probation) on account of any protected activity. Consequently, Defendants respectfully request that this Court grant the underlying motion for summary judgment dispute or, in the alternative, partial summary judgment with respect to the causes of action set forth in Plaintiffs’ Complaint for Damages. Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 57 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -50- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Dated: August 25, 2016 RENNE SLOAN HOLTZMAN SAKAI LLP By: TIMOTHY G. YEUNG STEVE CIKES Attorneys for Defendants Superior Court of California, County of Shasta and Joel Dean Case 2:14-cv-02471-MCE-CMK Document 25-1 Filed 08/25/16 Page 58 of 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -1- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE TIMOTHY G. YEUNG (SBN 186170) tyeung@rshslaw.com STEVE CIKES (SBN 235413) scikes@rshslaw.com RENNE SLOAN HOLTZMAN SAKAI LLP 555 Capitol Mall, Suite 600 Sacramento, California 95814 Telephone: (916) 258-8800 Facsimile: (916) 258-8801 Attorney for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA (erroneously sued herein as SHASTA COUNTY MARSHAL’S OFFICE), and JOEL DEAN UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JAIME SCHMIDT, DEBRA KNOWLES, ELIZABETH SAMPSON, AND RYAN HENRIOULLE, Plaintiffs, v. SHASTA COUNTY MARSHAL'S OFFICE AND JOEL DEAN Defendants. Case No. 2:14-CV-02471-MCE SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: October 20, 2016 Time: 2:00 p.m. Courtroom: 7 Judge: Hon. Morrison C. England, Jr. Complaint Filed: October 21, 2014 Trial Date: April 3, 2017 Defendants Superior Court of California, County of Shasta (“Superior Court”) and Joel Dean (“Dean”) (collectively, “Defendants”) hereby submit their Separate Statement of Undisputed Facts in Support of Their Motion for Summary Judgment, or, in the Alternative, Partial Summary Judgment as follows: Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 1 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -2- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT A. FACTS COMMON TO ALL PARTIES UNDISPUTED FACT SUPPORTING EVIDENCE 1. Plaintiffs Jaime Schmidt, Debra Knowles, Elizabeth Sampson and Ryan Henrioulle are or were employed as deputy marshals with the Shasta County Marshal’s Office (“Marshal’s Office”). Plaintiffs’ Complaint for Damages (“Compl.”), ¶¶ 3-6.; Declaration of Melissa-Fowler Bradley (“Fowler-Bradley Decl.”), ¶ 5. 2. The Marshal’s Office is the law enforcement division of Defendant Superior Court and is oversee by the Shasta County Marshal, who is appointed by the Superior Court’s judges. Fowler-Bradley Decl., ¶¶ 6-7. 3. At all relevant times, Joel Northrup (“Northrup”) has served as the Shasta County Marshal, and was directly supervised by Melissa Fowler-Bradley (“Fowler-Bradley”), the Superior Court’s executive officer and appointing authority. Declaration of Joel Northrup (“Northrup Decl.”), ¶¶ 2-3; Fowler-Bradley Decl., ¶ 2. 4. The Marshal’s Office provides security services for the Superior Court, which includes providing bailiffs for courtroom security, running weapon-screening stations, judicial protection, and transporting and maintaining control of in-custody defendants appearing in court. Northrup Decl., ¶ 4. 5. The office also regularly serves warrants in the field and performs other, general law enforcement functions. Northrup Decl., ¶ 4. 6. Towards this end, the Marshal’s Office employs deputy marshals, corporals, and sergeants, who are sworn peace officers and have the powers specified in California Penal Code section 830.1. Northrup Decl., ¶ 5 7. The Marshal’s Office also has nonsworn public safety service officers (“PSSOs”), who are assigned to operate the scanning equipment at the Superior Court’s weapon-screening stations, to staff the Marshal’s Office dispatch/control room, and to assist with clerical duties within the office. Northrup Decl., ¶ 6. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 2 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -3- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 8. Sergeants oversee the day-to-day operations of the deputy marshals and the PSSOs; however, they do not have the authority to take any formal personnel action absent the express approval and/or consent of the Marshal. Northrup Decl., ¶ 8. 9. This includes the issuance of Supervisor’s Notes and Observations (“N&Os”), which are tools used within the Marshal’s Office to temporarily document positive or negative employee performance. Northrup Decl., ¶¶ 9-10. 10. N&Os are not placed in the employee’s official personnel file, but instead are maintained in an employee’s “evaluation” file, which management uses to prepare an employee’s performance evaluation. Northrup Decl., ¶¶ 11-12, Exhibit (“Ex.”) A [“Marshal’s Office Policy Manual § 1026: Peace Officer Personnel Files”]. 11. All N&Os state: “This form will be maintained in your evaluation file (not personnel file). It will be destroyed or returned to you within 24 months or may be attached to or incorporated into your next performance evaluation.” Northrup Decl., ¶ 12. 12. Thus, although negative performance in an N&O may, if continued, result in disciplinary action in the future, an N&O does not qualify as a formal disciplinary action under department policy. Northrup Decl., ¶¶ 13-14., Ex. A [“Marshal’s Office Policy Manual § 1026: Peace Officer Personnel Files”]. 13. Defendant Joel Dean (“Dean”) joined the Marshal’s Office as a deputy marshal on September 21, 2005, was promoted to corporal on August 5, 2007, and was promoted to sergeant on May 9, 2010. Northrup Decl., ¶ 15. 14. From the time of his promotion to sergeant up until Elainea Shotwell’s (“Shotwell”) promotion on November 6, 2012, Dean served as the only sergeant in the Marshal’s Office and oversaw the day-to-day operations of all sworn and nonsworn staff. Northrup Decl., ¶¶ 16-17. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 3 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -4- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 15. Following her promotion to sergeant, Shotwell supervised personnel assigned to court security (i.e., bailiff) functions, while Dean supervised personnel assigned to administrative functions, transportation, building and perimeter security, and field operations. Northrup Decl., ¶ 18, Ex. B [“11/30/11 Email Re: Supervisor Responsibilities”]. 16. Following Dean’s promotion to sergeant, Plaintiffs felt that the Marshal’s Office began to improperly shift its focus from court security to field operations, thereby creating a divide between deputies who preferred the courtroom security/bailiffs duties (whom the Plaintiffs referred to as the “Old Timers”) and those who supported a greater emphasis on field operations (whom Plaintiffs referred to as Dean’s “Cronies”). Declaration of Steve Cikes (“Cikes Decl.”), Ex. F [Sampson Depo. 38:17-39:22, 58:5- 59:17], Ex. S [Schmidt Depo. 45:3-47:14, 52:23- 54:14, 76:11-16] & Ex. EE [Knowles Depo. 71:10-22, 74:24-77:22]. 17. Plaintiffs Schmidt and Sampson both contend that they complained to Dean about the changed focus of the Marshal’s Office and its impact on morale during multiple one-on-one conversations but felt Dean was not receptive to their concerns. Cikes Decl., Ex. F [Sampson Depo. 38:1-39:5] & Ex. S [Schmidt Depo. 42:23-45:7, 50:24- 52:22]. 18. For example, after Schmidt expressed her concerns, she alleges that Dean asked her if she even thought of herself as a peace officer. Cikes Decl., Ex. S [Schmidt Depo. 80:1-18]. 19. Similarly, when Sampson expressed her concerns, she asserts Dean cautioned her, “If you have questions, come to me, don’t infect the rest like Schmidt.” Cikes Decl., Ex. F [Sampson Depo. 38:2-40:18]. 20. In December 2011, Plaintiffs Schmidt, Sampson and Knowles complained to their union, the Shasta County Deputy Sheriff’s Association (“DSA”) about the issues they were experiencing at work, including what they perceived as favoritism stemming from the divide between the “Old Timers” and the “Cronies.” Compl., ¶ 16; Cikes Decl., Ex. F [Sampson Depo. 27:15-28:25], Ex. S [Schmidt Depo. 121:13-124:20], & Ex. EE [Knowles Depo. 167:9-168:17]. 21. On January 23, 2012, the DSA - in response to these complaints - circulated an anonymous survey asking that members “describe in general terms any behavior you believe may Cikes Decl., Ex. F [Sampson Depo. 28:6-25], Ex. G [“1/23/12 DSA Survey”], Ex. S [Schmidt Depo. 151:22-152:23] & Ex. EE [Knowles Depo. 168:19-169:5]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 4 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -5- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE violate” sections of the Marshal’s Office Policy Manual pertaining to the treatment of employees. The union asked members to turn in their completed survey responses by no later than February 17, 2012. 22. On February 15, 2012, Marshal Northrup notified deputies by email that he would be meeting with them individually in the upcoming weeks to discuss his expectations of them, solicit their thoughts on the Marshal’s Office, and “discuss any work related matters.” Cikes Decl., Ex. I [“2/15/12 Email Re: Meetings”]; Northrup Decl., ¶ 25. 23. Considering the timing, Plaintiffs Schmidt, Sampson and Knowles believe the purpose of the email was to dissuade deputies from responding to the DSA survey. Cikes Decl., Ex. F [Sampson Depo. 63:4-67:9], Ex. S [Schmidt Depo. 174:15-178:12] & Ex. FF [Knowles Depo. 178:1-181:1]. 24. Nevertheless, they each responded to the survey by the stated deadline. Cikes Decl. Ex. F [Sampson Depo. 30:1-25], Ex. H [“Sampson DSA Survey Response”], Ex. S [Schmidt Depo. 176:17-18] & Ex. EE [Knowles Depo. 181:2-9]. 25. On March 9, 2012, the DSA presented the survey results to Fowler-Bradley in a letter listing 34 general and anonymous complaints. Fowler-Bradley Decl., ¶¶ 42-43, Ex. M [“3/9/12 DSA Letter”]. 26. On March 12, 2012, Fowler-Bradley responded that the Superior Court could not reasonably investigate the allegations set forth in the DSA’s letter because of “the scant information that has been provided,” noting that the complaints lacked “specifics such as the name of the alleged offender, when the action occurred, the context in which it occurred, and most importantly, who made the complaints.” Fowler-Bradley Decl., ¶¶ 44-45, Ex. N [“3/12/12 Response”]. 27. Beginning on March 8, 2012, Plaintiffs Schmidt, Sampson and Knowles submitted individual internal complaints to Fowler-Bradley pursuant to the Superior Court’s “Harassment Prevention Policy,” alleging harassment by the supervisory staff. Compl., ¶¶ 21, 23; Fowler-Bradley Decl., ¶¶ 33- 36, 48 & 50. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 5 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -6- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 28. The Superior Court requested that Jason Mayo (“Mayo”), an investigator from the Administrative Office of the Courts (“AOC”), conduct an investigation encompassing Plaintiffs Schmidt, Sampson and Knowles’ complaints. Fowler-Bradley Decl., ¶ 56; Cikes Decl., Ex. TT [Mayo Depo. 10:16-19]. 29. Overall, Mayo conducted eleven interviews between March 28, 2012 and May 9, 2012. Fowler-Bradley Decl., ¶ 59; Cikes Decl., Ex. TT [Mayo Depo. 21:14-22:11, 33:3-5]. Ex. UU [“8/13/12 Investigative Report,” at Bates No. 3133-34]. 30. In July 2012, Mayo notified the Superior Court’s administrative staff that he had concluded his investigation and notified them of his findings. Fowler-Bradley Decl., ¶ 62. 31. On August 13, 2012, Mayo submitted a 45-page investigative report, finding that complaints raised by Plaintiffs Schmidt, Sampson and Knowles were either unfounded or not sustained. Fowler-Bradley, ¶ 67; Cikes Decl., Ex. TT [Mayo Depo. 21:14-22:11] & Ex. UU [“8/13/12 Investigation Report,” at Bates No. 3149-51, 3167-71 & 3173-74]. 32. Mayo found that “[f]rom the records provided, there does not appear to be substantial evidence that Dean, Shotwell or Northrup have engaged in favoritism based on prohibited characteristics.” Cikes Decl., Ex. UU [“8/13/12 Investigation Report,” at Bates No. 3173]. 33. Both during and after the Superior Court’s investigation, Plaintiffs Schmidt, Sampson and Knowles claim that management subjected them to additional personnel actions and other alleged conduct that they took offense to, which prompted them to go out on leave. Compl., ¶¶ 33, 48 & 63. 34. Prior to initiating this action, Plaintiffs filed charges of discrimination against the Superior Court with the Equal Employment Opportunity Commission (“EEOC”). In support of their charges, Plaintiffs provided the EEOC with detailed “chronologies” identifying the various experiences at the Marshal’s Office they believed to be discriminatory, harassing and/or retaliatory Compl. ¶ 28; Cikes Decl., Ex. A [Henrioulle Depo. 11:20-13:16], Ex. B [“Henrioulle’s EEOC Chronology”], Ex. F [Sampson Depo. 129:14- 130:25], Ex. M [“Sampson EEOC Chronology”], Ex. S [Schmidt Depo. 42:10- 43:24], Ex. T [“Schmidt EEOC Chronology”], Ex. EE [Knowles Depo. 35:10-37:8] & Ex. HH [“Knowles EEOC Chronology”]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 6 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -7- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 35. Although the EEOC initiated an investigation into Plaintiffs’ charges, it never concluded the investigation because Plaintiffs requested and received right to sue notices from the EEOC. Compl. ¶¶ 28, 29. B. PLAINTIFF JAIME SCHMIDT UNDISPUTED FACT SUPPORTING EVIDENCE 36. The Superior Court hired Jaime Schmidt (“Schmidt”) as a deputy marshal on October 14, 2008. Cikes Decl., Ex. S [Schmidt Depo. 26:14-24]; Fowler Bradley Decl., ¶ 73. 37. Schmidt previously worked as a deputy sheriff for the Solano County Sheriff’s Department from about 2000 to 2004. Cikes Decl., Ex. S [Schmidt Depo. 17:4-12, 20:21-23]. 38. As a corporal, Dean served as Schmidt’s training officer, and Schmidt described him as “a likeable guy” who had “a lot of knowledge.” Cikes Decl., Ex. S [Schmidt Depo. 27:6-28:4]; Declaration of Joel Dean (“Dean Decl.”), ¶ 26. 39. Schmidt contends that after she complained to Dean about the Marshal’s Office shift in focus and its impact on morale, management subjected her to various personnel actions or other alleged conduct that she took offense to. Cikes Decl., Ex. S [Schmidt Depo. 48:13-50:23] & Ex. T [“Schmidt EEOC Chronology,” at Bates Nos. 1945]. 40. During this same period, Schmidt received all scheduled merit (i.e., salary) increases as well as several positive N&Os. Fowler-Bradley Decl. ¶¶ 12, 76, Ex. B [“Superior Court’s Personnel Rules Article 2.1”]; Cikes Decl., Ex. S [Schmidt Depo. 340:19-345:20] & Ex. CC [“8/11/11 N&O,” “2/14/12 N&O,” “2/17/2 N&O” & “5/14/12 N&O”]. 41. Schmidt claims that beginning in 2011 - and after she complained to Dean about management’s use of Marshal’s Office staff to conduct field operations at the expense of court security - Dean changed her work schedule without giving her prior notice, notified her a time off request she submitted was untimely, and Cikes Decl., Ex. S [Schmidt Depo. 63:16-65:15, 83:1-85:12] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1945-47]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 7 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -8- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE instructed a PSSO to schedule Schmidt for a background investigator training without consulting with her first (although she was never scheduled for the training). 42. The PSSO who Dean allegedly gave this instruction to, Richard Nance (“Nance”), testified that Dean “never really told me not to consult with deputies or with personnel. It was more form the standpoint of - well, it was the standpoint of we schedule them. We tell them when they are going” and that this statement was not specific to Schmidt, but rather “it was directed for everyone.” Cikes Decl., Ex. ZZ [Nance Depo. 57:23-58:17]. 43. On November 29, 2011, Schmidt and Dean traveled to Eureka to conduct a background investigation on a job application. Cikes Decl., Ex. S [Schmidt Depo. 88:4-11] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1948]. 44. While at the restaurant waiting out traffic on their return trip back, Schmidt told Dean that while she was a trainee at the Solano County Sheriff’s Department, her field training officer asked her, “Is your pussy wet?” and then asked her to have sex with him at the workplace, which she declined. Schmidt told Dean that she did not report the matter and continued to work at the Sheriff’s Department until she resigned. Cikes Decl., Ex. S [Schmidt Depo. 88:12-91:4] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1948]. 45. Schmidt then claims that later, after she and Dean got back on the road, there was a lull in the conversation and Dean turned to her and asked, “Is your pussy wet?” Schmidt claims she responded, “That’s not a joke,” and added, “That’s off limits, don’t make me regret telling you that story.” They lapsed into silence again and Dean did not repeat the comment. Compl., ¶ 33(a); Cikes Decl., Ex. S [Schmidt Depo. 91:22-92:6] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1948]. 46. Schmidt alleges that in early December 2011, Dean repeated the comment while the two were alone in the squad room, and, in response, Schmidt told Dean that she regretted telling him the story. Compl., ¶ 33(b); Cikes Decl., Ex. S [Schmidt Depo. 105:4-15] & Ex. T. [“Schmidt EEOC Chronology,” at Bates No. 1948]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 8 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -9- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 47. Schmidt testified that the alleged remarks were not intended as sexual or romantic advances, that she found them “offensive” because they concerned a matter she had related to Dean in confidence, and after these two alleged instances, Dean did not repeat the comment. Cikes Decl., Ex. S [Schmidt Depo. 92:24-93:16, 105:4-107:2]. 48. Schmidt also claims that Shotwell routinely denied her the opportunity to work “time for time,” i.e., take a short lunch and leave early, and during a criminal jury trial, precluding her from working overtime while allowing overtime for Henrioulle. Compl., ¶ 33(m); Cikes Decl. Ex. S [Schmidt Depo. 115:16-116:12, 118:8-10]. 49. On January 17, 2012, Shotwell gave Schmidt her annual performance evaluation with a “meets expected standards” overall rating. Cikes Decl., Ex. S [Schmidt Depo. 130:13- 131:2] & Ex. U [“1/17/12 Performance Evaluation”]; Northrup Decl., ¶¶ 46-47. 50. Schmidt submitted a response to the performance evaluation a week later, stating that the evaluation “did not accurately represent me as an employee or show my level of dedication to representing this agency in a professional manner.” Cikes Decl., Ex. S [Schmidt Depo. 135:14- 136:3] & Ex. U [“1/24/12 Schmidt Response to Annual Evaluation”]; Northrup Decl., ¶ 48. 51. Of the three earlier evaluations Schmidt had received during her employment with the Marshal’s Office, two also had an overall rating of “meets expected standards,” and only one had an overall rating of “exceeds expected standards.” Cikes Decl., Ex. S [Schmidt Depo. 136:18- 139:13] & Ex. V [“1/14/11 Performance Evaluation,” “1/5/10 Performance Evaluation” & “7/31/09 Performance Evaluation”]. 52. Schmidt further alleges that in February 2012, Dean critiqued her for deviating from an operational order she prepared for a three-person in-custody preliminary hearing and then later accused her of “back dooring him” by asking other deputies for assistance in preparing an operational order for an upcoming three-person in- custody trial. Cikes Decl., Ex. S [Schmidt Depo. 170:10- 173:9] & Ex. T [“Schmidt EEOC Chronology,” at Bates Nos. 1954-55]. 53. Schmidt also claims on February 21, 2012, after she had asked another deputy for a refresher on the fueling procedures for department vehicles, Dean stated that he would have to put the issue up for training since “it’s been briefed three times Cikes Decl. Ex. S [Schmidt Depo. 181:12- 183:11] & Ex. T [“Schmidt’s EEOC Chronology,” at Bates No. 1954-55]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 9 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -10- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE already.” Schmidt felt the critique was unnecessary and that Deans’ tone was demeaning. 54. On March 9, 2012, Schmidt filed an internal complaint with Fowler-Bradley, alleging “sexual harassment conduct by Sergeant Dean against myself,” regarding the sexually-explicit comment that Dean allegedly made in November and December 2011. Fowler-Bradley Decl., ¶¶ 33-34, Ex. G [“3/9/12 Schmidt Complaint”]; Cikes Decl., Ex. S] [Schmidt Depo. 191:23-192:11, 192:16-193:18]; Fowler-Bradley Decl., ¶ 35; Cikes Decl., Ex. S [Schmidt Depo. 192:16-193:18]. 55. On March 9, 2012, Fowler-Bradley notified Dean that the Superior Court would be investigating Schmidt’s complaint and instructed him “not to take any adverse action against [Schmidt] while this investigation is pending.” Fowler-Bradley Decl., Ex. I [“3/9/12 Notice Re: Schmidt Complaint”]; Dean Decl., ¶ 10. 56. Fowler-Bradley advised Schmidt that “Sgt. Dean has been directed to refrain from any conduct or remarks of a sexual nature while this investigation is pending” and asked Schmidt to notify her “if you experience any additional problems with Sgt. Dean.” Fowler-Bradley Decl., Ex. [“3/9/12 Memo Re: Complaint”]; Cikes Decl., Ex. S [Schmidt Depo. 209:8-25]. 57. On March 23, 2012, Schmidt sent Fowler- Bradley a supplemental complaint, generally alleging “harassment, favoritism, and intimidating conduct by Sergeant Dean.” Fowler-Bradley Decl., Ex. P [“3/23/12 Schmidt Supplemental Complaint”]; Cikes Decl., Ex. S [Schmidt Depo. 197:6-198:3]. 58. Mayo interviewed Schmidt concerning both complaints. Fowler-Bradley Decl., ¶ 59; Cikes Decl., Ex. TT [Mayo Depo. 21:14-22:11, 33:3-5] & Ex. UU [“8/13/12 Investigative Report,” at Bates No. 3133]. 59. On March 14, 2012, deputy Sue Correll posted an article concerning state disability for peace officers in the squad room with a Post-It stating, “New Guys Read This!,” and someone wrote on the Post-It, “Old Guys Retire.” Cikes Decl., Ex. S [Schmidt Depo. 198:13- 200:8] & Ex. L [“Photo of Post-It”]. 60. Although Schmidt does not know who wrote on the Post-It, she felt it was directed to the “Old Timers” and thought the posting was “rude.” Cikes Decl., Ex. S [Schmidt Depo. 199:19- 200:23]. 61. On March 15, 2012, Shotwell, after obtaining Northrup’s approval, issued Schmidt an Cikes Decl., Ex. S [Schmidt Depo. 200:24- 202:12] & Ex. W [“3/15/12 N&O”]; Northrup Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 10 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -11- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE N&O for leaving an unsecured Taser in her courtroom. Decl., ¶¶ 49-50. 62. On March 23, 2012, Schmidt received another N&O for failing to calibrate the Superior Court’s preliminary alcohol screening (“PAS”) devices (handheld devices for testing blood- alcohol levels) as she had been assigned to do. Cikes Decl., Ex. S [Schmidt Depo. 212:6- 213:11] & Ex. X [“3/23/12 N&O”]; Northrup Decl., ¶¶ 51-52. 63. In both cases, Schmidt admits to engaging in the underlying misconduct, but claims she did so because she was uncomfortable being around Dean after filing her internal complaint. Compl., ¶ 33(h); Cikes Decl., Ex. S [Schmidt Depo. 202:24-207:1, 213:9-20]. 64. On April 19, 2012, Schmidt sent an email to Shotwell requesting that she be allowed to follow the judge assigned to her courtroom to a new department. Cikes Decl., Ex. S [Schmidt Depo. 223:19- 225:1] & Ex. Y [“4/19-27/12 Email Exchange”]. 65. On April 27, 2012, Northrup, after consulting with Fowler-Bradley, notified Schmidt that she would not be permitted to follow the judge because “the Court will be using visiting Judges to fill this courtroom vacancy,” and therefore “it will be especially important to have a knowledgeable bailiff in this department that is familiar with the procedures and calendars that are unique to this courtroom.” Cikes Decl., Ex. S [Schmidt 226:14-227:2] & Ex. Y [“4/19-27/12 Email Exchange”]; Northrup Decl., ¶¶ 53-54. 66. On May 7, 2012, Schmidt felt that Dean stared and smirked at her during morning briefing. Cikes Decl., Ex. S [Schmidt Depo. 241:14- 242:16] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1960]. 67. On May 18, 2012, Schmidt felt Shotwell was late to relieve Schmidt for a restroom break and did not sufficiently acknowledge Schmidt when she did arrive. Cikes Decl., Ex. S [Schmidt Depo. 259:7- 261:18] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1960-61]. 68. On May 23, 2012, Shotwell emailed Schmidt that she had learned that Schmidt’s courtroom had gone “dark” from the court calendar clerk and requested that “[i]n the future please keep an open dialogue with me as to the status of your courtroom.” Cikes Decl., Ex. S [Schmidt Depo. 266:1-267:8] & Ex. Z [5/23/12 Email Exchange”]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 11 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -12- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 69. Schmidt responded to Shotwell later that day apologizing for the “lack of communication,” but regrets doing so as she believes she did everything she was supposed to. Cikes Decl., Ex. S [Schmidt Depo. 268:19- 269:16]; Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1961-62] & Ex. Z [“5/23/2012 Email Exchange”]. 70. On June 12, 2012, Schmidt was on vacation when she realized that had previously signed up for an extra assignment during her vacation. Although she did not communicate with Dean directly, Schmidt nevertheless claims that Dean made it difficult for her to have another deputy work the assignment, including telling another deputy that “as far as he was concerned, [Schmidt] was still working [the assignment].” Ultimately, another deputy worked the assignment for Schmidt. Cikes Decl., Ex. S [Schmidt Depo. 272:15- 275:3] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1962]. 71. On July 31, 2012, Fowler-Bradley and Kennedy met with Schmidt and notified her that the Superior Court had completed its investigation and “determined that your complaint of sexual harassment is not sustained and your other complaints are unfounded.” Cikes Decl., Ex. S [Schmidt Depo. 302:8- 304:4]; Fowler-Bradley Decl., Ex. U [“7/31/12 Memo Re: Investigation Into Complaint”]. 72. On or about August 14, 2012, after Dean had returned from vacation, Schmidt and Plaintiff Elizabeth Sampson complained to Fowler-Bradley that PSSO Becky Baldwin-Bassett wrote, “Happy days are here again…. It’s a good day @ SCMO,” on the bulletin board in the squad room, which they took to refer to Dean’s return to work and the results of the investigation. Cikes Decl., Ex. F [Sampson Depo. 200:14- 201:5], Ex. P [“Bulletin Board Posting Picture”], Ex. S [Schmidt Depo. 315:5-319:11] & Ex. T. [“Schmidt EEOC Chronology,” at Bates No. 1966-67]. 73. During an in-person conversation and follow-up email exchange with Sampson, Baldwin-Bassett explained to Sampson that the posting was in reference to a song she heard while on a trip to San Francisco she had taken the previous weekend and had nothing to do with Dean. Baldwin-Bassett testified to the same during her deposition. Cikes Decl., Ex. F [Sampson Depo. 205:1- 208:7], Ex. P [“8/14-15/12 Email Exchange”], Ex. S [Schmidt Depo. 313:6-14]; Cikes Decl., Ex. YY [Baldwin-Bassett Depo. 70:15-72:5]. 74. During their meeting with Fowler-Bradley, Schmidt and Sampson also complained that they had heard from others that Dean had declared he Cikes Decl., Ex. F [Sampson Depo. 200:5- 203:14], Ex. M [“Sampson EEOC Chronology,” at Bates No. 1965-66], Ex. S [Schmidt Depo. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 12 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -13- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE had a “great attorney,” and had played a voicemail from his attorney reporting the results of the Superior Court’s investigation over the speakerphone in his office so that deputies in the nearby squad room could hear. 315:5-319:11] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1966-67]. 75. Accordingly to Schmidt and Sampson, Fowler-Bradley agreed to look into the allegations regarding Dean, but cautioned Schmidt and Sampson against being “hyper-sensitive.” Cikes Decl., Ex. F [Sampson Depo. 200:5- 203:14], Ex. M [“Sampson EEOC Chronology,” at Bates No. 1965-66], Ex. S [Schmidt Depo. 315:5-319:11] & Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1966-67]. 76. On August 22, 2012, after Marshal Northrup notified all deputies that he would be distributing an article concerning the danger of apathy in law enforcement, Schmidt claims multiple copies of this article were placed in her mailbox. Cikes Decl., Ex. S [Schmidt Depo. 321:4- 322:23], Ex. T [“Schmidt EEOC Chronology,” at Bates No. 1967] & Ex. AA [“8/22/12 Email & Article”]; Northrup Decl., ¶¶ 60-62. 77. Although Schmidt did not find anything inappropriate or offensive about the article, she believes this was another form of harassment. Cikes Decl., Ex. S [Schmidt Depo. 321:17- 322:3]. 78. On August 23, 2012, Schmidt was working at courthouse screening with another deputy when Dean walked by them and said, “Good morning” to each, and then repeated, “Good morning, Jaime,” when Schmidt did not initially respond. Schmidt responded, “Good morning,” but later emailed Dean that his interaction was “inappropriate” and requested that Dean be “less ‘in [her] face.’” Cikes Decl., Ex. S [Schmidt Depo. 327:10- 329:21] & Ex. BB [“8/23/12 Email Exchange”]; Dean Decl., ¶ 39. 79. Dean responded to Schmidt’s email later that day, stating that “[t]his greeting was just that; a greeting” and that he would welcome a meeting with Schmidt “to try and resolve your perceptions of events.” Cikes Decl., Ex. S [Schmidt Depo. 331:19-24] & Ex. BB [“8/23/12 Email Exchange”]; Dean Decl., ¶ 37. 80. On September 19, 2012, Schmidt heard from Plaintiff Henrioulle that he was released from probation because of his association with Schmidt and the other “Old Timers,” and that Dean had referred to Schmidt as “the ringleader, the worst one.” Cikes Decl., Ex. S [Schmidt Depo. 336:16- 338:4]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 13 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -14- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 81. On September 25, 2012, Schmidt went on leave. Cikes Decl., Ex S [Schmidt Depo. 345:21-346:4, 347:11-348:11]; Fowler-Bradley Decl., ¶ 72. 82. On January 13, 2014, nearly sixteen months later, Schmidt returned to light duty. Cikes Decl., Ex. S [Schmidt Depo. 354:23- 355:16. 357:2-14]; Fowler-Bradley Decl., ¶ 74. 83. By that time, Shotwell had resigned from the Marshal’s Office and Dean had gone on leave. Cikes Decl., Ex. S [Schmidt Depo. 354:23- 355:16, 358:18-23]; Fowler-Bradley Decl., ¶¶ 24-25. 84. While Schmidt was on her leave, the Marshal’s Office re-located the women’s locker room, and ended up storing Schmidt’s belongings that she had left in her locker. Northrup Decl., ¶ 63. 85. Schmidt claims that when she returned to work, she was able to locate some of her belongings, while certain items were missing. Compl., ¶ 33(s); Cikes Decl., Ex. S [Schmidt Depo. 357:18-358:5, 359:22-361:13, 362:4- 363:3]. 86. Schmidt asked Sergeant Phil Smith (‘Smith”) about the status of her missing items. During one of those conversations, Schmidt claims Smith advised her “not to rock the boat,” which she asserts was a suggestion not to create any further issues after returning from leave. Compl., ¶ 33(s); Cikes Decl., Ex. S [Schmidt Depo. 363:4-365:16, 370:18-371:3]. 87. On March 14, 2014, Schmidt resigned from the Marshal’s Office, and decided to pursue a career in the medial field. Cikes Decl., Ex. S [Schmidt Depo. 371:4- 372:13, 376:9-23] & Ex. DD [“3/14/12 Resignation Form”]; Fowler-Bradley Decl., ¶ 77. C. PLAINTIFF ELIZABETH SAMSPON UNDISPUTED FACT SUPPORTING EVIDENCE 88. The Superior Court hired Elizabeth Sampson (“Sampson”) as a deputy marshal on July 3, 2003. Cikes Decl., Ex. F [Sampson Depo. 21:1-3]; Fowler-Bradley Decl., ¶ 84. 89. Sampson met Dean when he was hired as a deputy marshal in September 2005. Sampson described her initial relationship with Dean as “Friends. Coworkers. Someone that I would come to for assistance and help.” Cikes Decl., Ex. F [Sampson Depo. 22:17-23:6]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 14 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -15- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 90. Like Schmidt, Sampson contends that after she complained to Dean about the Marshal’s Office shift in focus and its impact on morale, management subjected her to various personnel actions and other alleged conduct that she took offense to. Cikes Decl., Ex. F [Sampson Depo. 90:19-94:7]. 91. During this same period, Sampson received all scheduled merit increases and several positive N&Os. Fowler-Bradley Decl., ¶¶ 12, 88, Ex. B [“Superior Court’s Personnel Rules Article 2.1”]; Cikes Decl., Ex. F [Sampson Depo. 250:20-251:10] & Ex. R [“9/1/11 N&O” & “3/12/12 N&O”]. 92. Sampson claims that on four separate occasions in mid 2011, Dean questioned her about her appearance, asking “What’s up with your eyes?”, “Why do you do that one finger in your head scratch thing?”, and “Why is your mouth open?” I hate it when you do that.” Cikes Decl., Ex. F [Sampson Depo. 104:17- 105:14] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1702]. 93. Sampson also claims that on two separate occasions in late 2011, Dean called her into his office, placed a tape recorder on his desk and told her that how she answered his next question would determine whether the recorder stayed on or not. When Sampson failed to react, Sampson claims that Dean laughed and stated that he was joking. Cikes Decl., Ex F [Sampson Depo. 31:1-14] & Ex. H [“Sampson DSA Survey Response,” at Bates No. 458]. 94. In August 2011, Sampson claims that Dean commented to her boyfriend at the time, a police officer for the city of Anderson, that “[a]t my department no one could be on or handle patrol[;] they are lazy.” When the officer asked about Dean about Sampson, Sampson claims Dean responded, “Really? Have you ever heard her call a 415 [disturbing the peace] over the radio from her courtroom?” Cikes Decl., Ex F [Sampson Depo. 32:21-34:6] & Ex. H [Sampson DSA Survey Response,” at Bates No. 458]. 95. On November 16, 2011, Sampson claims she made an arrest approximately 10 to 15 minutes before the start of her shift and that Dean later had Shotwell remind Sampson that deputies needed to obtain approval before altering their work schedule. Cikes Decl., Exh. F [Sampson Depo. 42:3-43:9] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1703]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 15 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -16- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 96. On January 27, 2012, Sampson claims that Dean instructed her to do a “ride along” with a member of the public and perform traffic stops. Sampson claims she was uncomfortable with the assignment since she had never heard of anyone within the Marshal’s Office doing a “ride along” before and because she had limited experience doing traffic stops. Cikes Decl., Ex. F [Sampson Depo. 48:16- 49:19] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1705-06]. 97. On February 17, 2012, Dean gave Sampson an N&O for turning in an arrest report with errors. Cikes Decl., Ex. F [Sampson Depo. 73:22- 74:15] & Ex. J [“2/17/12 N&O”]; Dean Decl., ¶ 75. 98. Sampson met with Marshal Northrup on February 24, 2012 to discuss the N&O she received from Dean. On February 28, 2012, Northrup sent Sampson an email, stating that since Sampson acknowledged that she had submitted the report with errors, he would not be making any changes or withdrawing the N&O, but that Sampson could submit a response to the N&O. Cikes Decl., Ex. F [Sampson Depo. 79:23- 80:17, 82:25-84:2] & Ex. J [“2/24/12 Email”]; Northrup Decl., ¶ 135. 99. Sampson submitted a response to the N&O on March 8, 2012. Cikes Decl., Ex. F [Sampson Depo. 83:22- 84:10], Exhibit J [“2/28/12 Email Re: N&O”]; Northrup Decl., ¶ 136. 100. On February 23, 2012, Dean attempted to give Sampson another N&O for submitting a report that did not have probable cause declaration attached. Cikes Decl., Exhibit F [Sampson Depo. 98:24- 100:2]; Dean Decl., ¶ 77, Ex. G [“2/23/12 Draft N&O”], Northrup Decl., ¶ 137. 101. Sampson requested a union representative and claims Dean responded, “Really? Fine, if you want it that way. If you want to go to fists then fine.” Cikes Decl., Ex. F [Sampson Depo. 99:7- 100:21] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1709]. 102. Sampson then proceeded to discuss the matter further without her union representative and ultimately Dean elected to not issue Sampson the draft N&O he prepared. Cikes Decl., Ex. F [Sampson Depo. 100:22- 101:10]; Dean Decl., ¶ 77. 103. On February 23, 2012, Sampson asked Shotwell whether she should arrest or cite and release an individual with an outstanding warrant. Later that day, Shotwell sent Sampson an email Cikes Decl., Ex. F [Sampson Depo. 138:5- 139:1, 139:20-141:12, 141:17-143:5] & Ex. Z [“2/23-3/1/12 Email Exchange”]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 16 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -17- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE recounting their conversation and stating, “Deputy Sampson needs to take the time out and study this procedure if she is still unsure, as this is not the first time the issue had come up.” 104. On March 1, 2012, Sampson replied to Shotwell’s email, stating, “I do not believe my performance was below standard as I did what I am supposed to, i.e., sought clarification from a superior officer.” Shotwell, in turn, replied, “Thank you.” Cikes Decl., Ex. F [Sampson Depo. 143:6-12] & Ex. Z [“2/23-3/1/12 Email Exchange”]. 105. On March 1, 2012, Sampson sent Marshal Northrup a memo, requesting that she have a union representative present during all future meetings “wherein I have the right to have representation.” Cikes Decl., Ex. F [Sampson Depo. 107:12- 108:11] & Ex. K [“3/1/12 Memo Re: Future Representation”]; Northrup Decl., ¶ 141. 106. Northrup and Dean met with Sampson later that day, and explained to Sampson that she could have a representative present at any meeting that she reasonably believed could lead to discipline. Cikes Decl., Ex. F [Sampson Depo. 108:12- 109:6] & Ex. M [“Sampson EEOC Chronology” at Bates No. 170-1711]; Northrup Decl., ¶ 142. 107. In early March 2012, Sampson learned that the Superior Court would not be taking any action on the results of the DSA’s anonymous survey. Cikes Decl., Ex. F [Sampson Depo. 67:12- 68:13]. 108. Consequently, on March 23, 2012, Sampson filed an internal complaint with Fowler- Bradley, reporting “ongoing and pervasive harassment, intimidation, and favoritism in the workplace as well as retaliation against myself by Sergeant Dean.” Cikes Decl., Ex. F [Sampson Depo. 68:20- 69:14]; Fowler-Bradley Decl., ¶¶ 48-49, Ex. O [“3/23/12 Sampson Complaint”]. 109. Fowler-Bradley referred Sampson’s complaint to Mayo for investigation. Fowler-Bradley Decl., ¶ 56. 110. As she did with Schmidt, Fowler-Bradley notified Dean of the investigation and instructed him “not to take any adverse action against [Sampson] while this investigation is pending.” Fowler-Bradley Decl., ¶¶ 52-53, Ex. Q [“3/26/12 Notice Re: Sampson Complaint”]. 111. Mayo interviewed Sampson on April 4, 2012. Cikes Decl., Ex. F [Sampson Depo. 113:22- 114:7]; [Mayo Depo. 21:14-22:11, 33:3-5] & Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 17 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -18- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE Ex. UU [“8/13/12 Investigative Report,” at Bates No. 3133]. 112. On April 23, 2012, Sampson claims she had to take a second set of photos of a confiscated weapon because Dean did not email her a copy of the first set of photos before he left for the day. Cikes Decl., Ex. F [Sampson Depo. 152:6- 154:12] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1713]. 113. On May 3, 2012, Sampson claims that Dean did not respond to Sampson when she said “sorry” after accidently bumping into him in the squad room. Cikes Decl., Ex. F [Sampson Depo. 156:21- 157:19] & Ex/ M [“Sampson EEOC Chronology,” at Bates No. 1713]. 114. On May 21, 2012, Sampson and Henrioulle arrested an individual for an outstanding warrant. Later that day, Sampson claims that Dean informed Henrioulle that he had heard that Henrioulle had complained about Sampson’s performance during the arrest and requested that Henrioulle document his complaint (which Henrioulle declined to do). Compl., ¶ 63(f); Cikes Decl., Ex. F [Sampson Depo. 160:5-162:13] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1714]. 115. On May 29, 2012, Shotwell issued Sampson an N&O noting that a female in Sampson’s custody was able to remove her hand from her handcuff, thereby creating a safety hazard and breach of protocol. Cikes Decl., Ex. F [Sampson Depo. 165:22- 168:5], Ex. M [“Sampson EEOC Chronology,” at Bates No. 1714] & Ex. O [“5/29/12 N&O”]; Northrup Decl., ¶ . 116. Sampson submitted a response to the N&O on June 22, 2012, asserting that while she may have failed to properly secure the handcuff, the deputies who subsequently had custody of the female could have re-secured them. Cikes Decl., Ex. F [Sampson Depo. 168:2- 170:4] & Ex. O [“6/22/12 N&O Response”]. 117. On July 25, 2012, Dean informed Sampson that an individual whom Sampson had arrested a day prior had filed an informal complaint against her regarding a stolen bicycle and the Marshal’s Office would be investigating that complaint. Cikes Decl., Ex. F [Sampson Depo. 180:10- 185:6, 189:17-23] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1715-1716]. 118. The Marshal Office later informed Sampson that the complaint had been dropped and no further action was taken. Northrup Decl., ¶ 146; Cikes Decl., Ex. F. [Sampson Depo. 191:10-192:9]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 18 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -19- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 119. On July 31, 2012, Fowler-Bradley and Kennedy met with Sampson and notified her that the Superior Court had completed its investigation and determined that her complaint was unfounded. Cikes Decl., Ex. F [Sampson Depo. 119:2- 120:23]; Fowler-Bradley Decl., ¶ 63, Ex. W [“7/31/12 Memo Re: Investigation Into Complaint”]. 120. On August 29, 2012, Shotwell provided Sampson with a draft annual performance evaluation, with a “meets expected standards” overall rating. According to Sampson, Shotwell stated that she would look into those and prepare a final evaluation, but never did. Ultimately, Shotwell never completed Sampson’s evaluation due to Sampson’s decision to go on leave and later resign. Cikes Decl., Ex. F [Sampson Depo. 219:1- 222:24] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1720-21]; Northrup Decl., ¶ 148. 121. Due to Sampson’s decision to go out on leave and later resign Shotwell never completed Sampson’s evaluation. Northrup Decl., ¶ 148. 122. On September 7, 2012, Sampson, Schmidt and other deputies participated in defensive tactics training involving one of the deputies providing the training wearing a “red man suit.” Compl., ¶ 63(j); Cikes Decl., Ex. F [Sampson Depo. 224:21-225:18], Ex. VV [Dean Depo. 159:18-161:14] & Ex. XX [Reagan Depo. 189:7-20, 191:25-192:8]; Dean Decl. ¶¶ 82-83. 123. The training was videotaped and later reviewed by Dean and deputies Chris Reagan (“Reagan”) and Dennis Mack. Cikes Decl., Ex. F [Sampson Depo. 225:5-18], Ex. VV [Dean Depo. 161:15-162:9, 163:17- 164:1] & Ex XX [Reagan Depo. 194:6-195:17]; Dean Decl., ¶ 82. 124. Sampson claims that video of her and Schmidt’s training was more closely scrutinized than the other deputies. Cikes Decl., Ex. Ex VV [Dean Depo. 164:2- 166:20] Ex. XX [Reagan Depo. 195:19-196:16], Dean Decl., ¶ 82 125. On September 17, 2012, Sampson claims Northrup called her into his office with Dean and Shotwell present and instructed Sampson that if she was making such statements, it needed to stop. Sampson stated that she understood and exited the meeting without ever denying that she was making such statements. Cikes Decl., Ex. F [Sampson Depo. 236:8- 237:25] & Ex. M [“Sampson EEOC Chronology,” at Bates No. 1723]; Northrup Decl., ¶ 149. 126. On October 3, 2012, Sampson - while on vacation - notified the Superior Court that she was going on leave. Cikes Decl., Ex. F [Sampson Depo. 238:9-12, 240:13-242:3]; Fowler-Bradley Decl., ¶ 87. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 19 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -20- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 127. On September 4, 2013, Sampson - while still out on leave - resigned from the Marshal’s Office. In her resignation form, Sampson lists “stated reason” as: “Filed complaint of hostile work environment and retaliation. Out on stress leave. Secured other employment for financial reasons and the inability to return to that environment as nothing has changed.” Cikes Decl., Ex. F [Sampson Depo. 246:11- 247:21] & Ex. Q [“9/4/13 Resignation Form”]; Fowler-Bradley Decl., ¶ 87. D. PLAINTIFF DEBRA KNOWLES UNDISPUTED FACT SUPPORTING EVIDENCE 128. The Court hired Debra Knowles (“Knowles”) as a PSSO on December 27, 2005. Cikes Decl., Exhibit EE [Knowles Depo. 16:23- 17:21]; Fowler-Bradley Decl., ¶ 79. 129. In March 2009, Marshal Northrup promoted Knowles to deputy marshal trainee, and then to deputy marshal on January 29, 2010. Cikes Decl., Exhibit EE [Knowles Depo. 22:4- 23:6]; Fowler-Bradley Decl., ¶ 79. 130. In December 2009, Knowles reported to the Marshal’s Office that she was being subjected to unwelcome romantic overtures from another employee (referred to herein as “PSSO Gordon” or “Gordon”). Cikes Decl., Ex. EE [Knowles Depo. 24:13- 27:9] & Ex/ FF [“12/1/09 Knowles Complaint”]; Northrup Decl., ¶ 86. 131. Northrup had the complaint investigated and ultimately took corrective action by (1) instructing Gordon to cease the offending conduct and (2) notifying Knowles that the Court would schedule work assignments in order to minimize contact between her and PSSO Gordon. Cikes Decl., Ex. EE [Knowles Depo. 27:10- 29:18, 31:3-11] & Ex. GG [“12/7/09 Memo Re: Harassment Complaint”]; Northrup Decl., ¶ 87. 132. Thereafter, Knowles did not report any difficulties for the next two years. Cikes Decl., Ex. EE [Knowles Depo. 32:20- 33:17]; Northrup Decl., ¶ 88. 133. Beginning in 2011, Knowles claims that both Dean and Shotwell took certain personnel actions and engaged in other conduct that she took offense to. Compl. ¶ 48; Cikes Decl., Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1037-1091]. 134. At the same time, however, Knowles received all scheduled merit increases, and, on Fowler-Bradley Decl., ¶ 83; Cikes Decl., Ex. EE [Knowles Depo. 195:18-196:15, 236:6-19] & Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 20 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -21- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE February 29, 2012, received a performance evaluation prepared by both Dean and Shotwell with an “exceeds expected standards” overall rating. Ex. OO [“2/29/12 Performance Evaluation”]. 135. Knowles asserts that in March 2011, Dean instructed dispatch to have Knowles report to the station so that two male deputies (including one with prior military experience) could respond to an officer involved shooting call. Cikes Decl., Exh. EE [Knowles Depo. 41:23- 44:17], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1037], Ex. EE [Knowles Depo. 45:11-46:5] & Ex. XX [Reagan Depo. 9:20- 10:5]; Dean Decl. ¶ 47. 136. On April 5, 2011, Dean gave Knowles an N&O for failing to check and see if her OC (i.e., pepper spray) canister had expired, as directed in a March 7, 2011 email from Marshal Northrup to all deputies. Cikes Decl., Ex. EE [Knowles Depo. 54:21- 55:19] & Ex. II [“4/5/11 N&O”]; Northrup Decl., ¶¶ 69-72 ; Dean Decl., ¶ 53. 137. Knowles acknowledges that at the time she received the N&O, her OC canister was expired and that she likely received, but simply did not review, Northrup’s email since she “miss[es] a lot of emails.” Cikes Decl., Ex. EE [Knowles Depo. 56:5-57:8, 58:23-59:7]. 138. Knowles alleges that Dean had conversations with her about office morale, where he referred to his wife as a “bitch” and a “chonch,” stated that he did not plan on being with her “long term,” and on one occasion pointed to a female clerk and stated, “That girl wants me. What do you think of her?” Cikes Decl., Ex. EE [Knowles Depo. 80:5-20] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1041]. 139. Knowles also claims that on two occasions, Dean came up to her while she was sitting and would rub her earlobe while staring at her. Cikes Decl. Exhibit EE [Knowles Depo. 87:13- 88:17] & Exhibit HH [“Knowles EEOC Chronology,” at Bates No. 1041]. 140. In addition, on or about February 2, 2012, Knowles claims that while conducting a DUI stop with two other officers present, Dean stood six to ten inches behind Knowles as she was bent over. When she asked Dean what he was doing, he allegedly responded, “I’m just standing here.” After arresting the suspect, Knowles claims Dean instructed her to go back to the station and that two male deputies transported the suspect back to Cikes Decl., Exhibit EE [Knowles Depo. 90:15- 93:4] & Exhibit HH [“Knowles EEOC Chronology,” at Bates No. 1041-42]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 21 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -22- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE jail, thereby depriving her of a training opportunity. 141. Dean noted in Knowles’ February 29, 2012, performance evaluation that he observed Knowles engage in a vehicle search while allowing a passenger to remain seated inside - a significant breach of officer safety procedure - and provided Knowles with verbal counseling. Dean Decl. ¶¶ 51-52; Cikes Decl. Ex. OO [“2/29/12 Performance Evaluation,” at Bates No. 1332-33]. 142. Knowles claims that just before Shotwell became sergeant in November 2011, Shotwell addressed Knowles in a demeaning manner on several occasions, including calling her “fancy pants” and making fun of the size of her feet and her hair color. Cikes Decl., Exhibit EE [Knowles Depo. 60:17- 61:20, 63:21-64:15] & Exhibit HH [“Knowles EEOC Chronology,” at Bates No. 1041-42]. 143. On December 23, 2011, Knowles and Shotwell had a verbal exchange in front of two other deputies regarding Knowles’ request to leave early that day. Cikes Decl., Ex. EE [Knowles Depo. 107:1- 109:24], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1044-45] & Ex. WW [Shotwell Depo. 43:13-47:10]. 144. On December 27, 2011, Shotwell issued Knowles an N&O noting that Knowles had been disrespectful to her in front of the other employees. Cikes Decl., Ex. EE [Knowles Depo. 115:3-12] & Ex. JJ [“12/27/12 N&O”]; Northrup Decl., ¶ 74. 145. Knowles appealed the N&O to Northrup, who provided her with a revised N&O on January 13, 2012, stating: “I spoke to two deputies that witnessed this interaction and they confirmed that your response to Sergeant Shotwell could be perceived as disrespectful.” Cikes Decl., Exhibit EE [Knowles Depo. 119:24-121:24, 123:11-20.] 146. Knowles claims that Northrup misrepresented the statements from the two witnesses, notwithstanding the fact that one of witnesses provided a written account of his conversation with Northrup wherein he noted that he told Northrup that he found the exchange between Knowles and Shotwell “to be borderline disrespectful on both parties behalf.” Cikes Decl., Exhibit EE [Knowles Depo. 137:12-139:3], Exhibit KK [“1/13/12 N&O”], & Exhibit LL [“1/19/12 Letter”]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 22 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -23- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 147. On December 23, 2011, dispatch sent Knowles to work at a screening station with PSSO Gordon. Cikes Decl., Exhibit EE [Knowles Depo. 140:6- 19] & Exhibit HH [“Knowles EEOC Chronology,” at Bates No. 1046]. 148. On this occasion, Knowles mostly ignored Gordon and occupied herself with her cell phone. Gordon did not attempt to make any inappropriate advances or comments. Cikes Decl., Exhibit EE [Knowles Depo. 142:8- 143:20] & Exhibit HH [“EEOC Chronology” at Bates No. 1046]. 149. On December 30, 2011, Knowles claims that dispatch again sent her to work at a screening station with PSSO Gordon, and that, Gordon asked her about her braces and her daughter, but did not touch her or make any other comments that she could recall. Cikes Decl., Exhibit EE [Knowles Depo. 159:16-160:22] & Exhibit HH [“Knowles EEOC Chronology,” at Bates No. 1050]. 150. On January 4, 2012, Knowles met with Marshal Northrup to discuss the N&O she received from Shotwell. During that meeting, Knowles raised the issue about having to work with Gordon on December 23, 2011. Cikes Decl., Ex. EE [Knowles Depo. 123:11- 17]; Northrup Decl., ¶¶ 75, 89. 151. On January 5, 2012, Northrup sent Knowles a memo, explaining that her having to work with Gordon “was a scheduling error by control and supervisory staff” and that “[a]ll supervisory and control staff have been informed” and/or reminded of the directive following her 2009 complaint. Cikes Decl., Ex. EE [Knowles Depo. 161:14- 162:5] & Ex. MM [“1/5/12 Memo Re: Interaction with Gordon”]; Northrup Decl., ¶ 91. 152. He further stated that he reminded Gordon and “not to have any un-necessary contact with you.” Cikes Decl., Ex. EE [Knowles Depo. 161:14- 162:5] & Ex. MM [“1/5/12 Memo re Interaction with Gordon”]; Northrup Decl., ¶ 91. 153. Dean - whom Northrup instructed to look into Knowles’ work assignment with Gordon on December 23, 2011 - reported that (1) Shotwell was not aware of the prior directive to minimize contact between Knowles and Gordon, and (2) the decision to assign Knowles to work with Gordon was the result of the one of the PSSOs working in the dispatch room. Northrup Decl., ¶ 92, Ex. F [“1/10/12 Memo Re: Inquiry into Deputy Knowles Assignment at CHSS on 12-23-11”]; Dean Decl., ¶ 57. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 23 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -24- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 154. Dean, at Northrup’s direction, gave an N&O to the PSSO who dispatched Knowles to work with Gordon. Northrup Decl., ¶ 93, Exhibit G [“1/12/11 N&O”]; Dean Decl., ¶ 58. 155. On February 10, 2012, Knowles met with Northrup and complained that she felt that Shotwell was continuing to single her out for heightened scrutiny and, conversely, that Shotwell was purposefully ignoring her. Cikes Decl., Ex. EE [Knowles Depo. 173:4-16] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1056-57]; Northrup Decl., ¶ 83. 156. Accordingly, on February 14, 2012, Northrup issued Shotwell written materials on his expectations of an effective leader. Northrup Decl., ¶ 84, Ex. E [“Supervisors Materials”]. 157. On February 28, 2012, Dean diverted Knowles to a different location after hearing a radio transmission from one of the PSSOs dispatching Knowles to a weapons screening station where Gordon was present. Dean Decl., ¶ 63. 158. Dean reported this incident to Marshal Northrup, who instructed Dean to issue an N&O to the PSSO responsible for the radio transmission, which Dean did on March 16, 2012. Dean Decl., ¶ 63; Northrup Decl., ¶¶ 97, 100, Ex. H [“3/9/12 Memo Re: Knowles Being sent to Court House Screening”]; Ex. K [“3/16/12 N&O”]. 159. On March 2, 2012, Knowles and her union representative met with Marshal Northrup regarding additional instances in which she claimed dispatch sent her to give breaks at screening stations where PSSO Gordon was present. Northrup Decl., ¶ 94; Cikes Decl., Ex. EE [Knowles Depo. 197:8-198:5] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1068]. 160. Northrup conducted an initial investigation and later notified Knowles that “[t]he responsibility for these scheduling errors falls on the dispatch staff” and stated that he would “take steps with our dispatch staff to correct this issue.” Northrup Decl., ¶¶ 95-96; Cikes Decl., Ex. EE [Knowles Depo. 197:8-198:5], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1068] & Ex/ PP [“3/6/12 Memo Re: Meeting re Gordon”]. 161. Thereafter, on March 9 and 20, 2012, Dean, at Northrup’s direction, sent the PSSOs an email instructing them that: “Until further notice DO NOT send Deputy Knowles to ANY screening stations for breaks and/or permanent assignments. She is not to work at the screening Northrup Decl., ¶ 98, Ex. I [“3/9/12 Email”]; Dean Decl., ¶¶ 66-67. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 24 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -25- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE stations. There are NO exceptions to this directive.” 162. On February 17, 2012, Knowles was driving home from work and witnessed a vehicular accident. Northrup Decl., ¶ 108, Ex. N [“2/23/12 Memo re Case 12-0372”]; Cikes Decl., Ex. EE [Knowles Depo. 209:5-210:3], 163. Management heard Knowles radio for assistance from the local police department and became concerned regarding whether she gave the information necessary for other law enforcement officers to provide proper assistance in accordance with protocol. Northrup Decl., ¶ 108, Exhibit N [“2/23/12 Memo re Case 12-0372”]; Dean Decl., ¶ 59. 164. Then, on February 23, 2012, Knowles was involved in an altercation with a court patron. Northrup Decl., ¶ 109; Cikes Decl., Ex. EE [Knowles Depo. 185:19-187:22], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1061-64]. 165. Marshal Northrup witnessed the altercation and believed that Knowles had situated herself in such a way that left her gun exposed. Northrup Decl., ¶ 109. 166. Nance also witnessed Knowles’ altercation with the court patron and testified that he felt a need to “stick around” out of concern of “a potential of causing this thing to get further than it needed to be.” Cikes Decl., Ex. ZZ [Nance Depo. 55:14-57:4]. 167. Consequently, on March 2, 2012 - the same day that Knowles met with Marshal Northrup to air her grievances regarding her assignments - Marshal Northrup notified Knowles that she was under investigation for those two incidents. Northrup Decl., ¶¶ 106-07. 168. On March 8, 2012, Northrup provided Knowles with a supplemental notice of investigation, informing her that the Marshal’s Office was investigating her for an additional allegation of possible untruthfulness concerning the events giving rise to the March 2, 2012 notice of investigation. Northrup Decl., ¶¶ 114-15; Cikes Decl., Ex. EE [Knowles Depo. 212:7-21], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1069] & Ex. RR [“3/8/12 Memo Re: Allegation of Untruthfulness”]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 25 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -26- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 169. Following Knowles’ February 23, 2012 altercation with a court patron, Northrup instructed Dean to speak with Knowles about the incident and provide her with training on officer safety practices, which Dean did that same day. Dean Decl., ¶ 60; Northrup Decl., ¶ 112. 170. On February 29, 2012, Dean provided a report back to Northrup, noting that Knowles had denied that any disturbance occurred, an account that was inconsistent with what Northrup had personally observed. Northrup Decl., ¶ 110, Ex. O [“2/29/12 Report on Altercation”]. 171. Based on Dean’s report, Marshal Northrup directed that the pending investigation against Knowles include an additional allegation of possible untruthfulness. Northrup Decl., ¶ 111; Cikes Decl., Ex. RR [“3/8/12 Memo Re: Allegation of Untruthfulness”]. 172. He also instructed Dean to provide Knowles with written instruction on safe positioning and to sign her up for a street survival course. Northrup Decl., ¶ 112; Dean Decl., ¶¶ 60-62; Cikes Decl., Ex. EE [Knowles Depo. 190:6-25, 191:17-192:4], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1067-68] & Ex. NN [“2/29/12 Memo Re: Positional Training and Emails Re: Street Survival Course”]. 173. After receiving the supplemental notice of investigation, Knowles filed an internal complaint with Fowler-Bradley on March 8, 2012, alleging “harassment/retaliation by Marshal’s Office supervisory staff.” Cikes Decl., Ex. EE [Knowles Depo. 217:4-8] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1073-74]; Fowler-Bradley Decl., Ex. H [“3/8/12 Internal Complaint”]. 174. Knowles included with her complaint a detailed “chronology,” identifying the various instances she believed to be harassing or otherwise inappropriate. Cikes Decl., Ex. EE [Knowles Depo. 217:4-8] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1073-74]; Fowler-Bradley Decl., Ex. H [“3/8/12 Internal Complaint”]. 175. The Court had Mayo investigate Knowles’ complaint, along with Schmidt and Sampson’s complaints. Fowler-Bradley Decl., ¶ 56. 176. Mayo interviewed Knowles on March 28, 2012 and then again on April 4, 2012. Cikes Decl., Ex. TT [Mayo Depo. 21:14-22:11, 33:3-5] & Ex. UU [“8/13/12 Investigative Report,” at Bates No. 3133]. 177. On July 31, 2012, Fowler-Bradley and Kennedy met with Knowles and notified her that Cikes Decl., Ex. EE [Knowles Depo. 292:9- 293:4] & Ex. HH [“Knowles EEOC Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 26 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -27- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE “the evidence gathered does not establish that you have been subjected to harassment, intimidation or retaliation by Sgt. Shotwell or any other supervisor staff” and that, as a result, her complaint was unfounded. Chronology,” at Bates No. 1087]; Fowler- Bradley Decl., ¶ 63, Ex. V [“7/31/12 Memo Re: Complaint”]. 178. During this time, Marshal Northrup also had an outside investigator, Diane Davis (“Davis”), conduct an internal affairs (“IA”) investigation into Knowles’ possible misconduct. Northrup Decl., ¶ 111, 116. 179. While the investigation reached findings (both sustaining and exonerating Knowles), it was not completed within the statutory one-year time limit (Cal. Gov’t Code § 3304(d)) and thus was not maintained in Knowles’ personnel file, nor were any personnel actions taken as a result. Northrup Decl., ¶¶ 111, 116-18, Ex. P [“5/7/12 Investigation Report”]. 180. Knowles alleges that during the week of May 14, 2012, she attempted to log onto the California Law Enforcement Telecommunication System or “CLETS” (a computer database used to perform criminal record check, accessed locally using a system called “PUBSAFE”) and was unable to do so. Cikes Decl., Ex. EE [Knowles Depo. 226:11- 227:7] & Ex. HH [“EEOC Chronology” at Bates No. 1073-1091]. 181. Knowles later asked Shotwell about the status of her access. Cikes Decl., Ex. EE [Knowles Depo. 250:12- 251:9] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1078]. 182. On July 31, 2012, Marshal Northrup sent Knowles an email stating that because the Redding Police Department was not charging the Superior Court for access to PUBSAFE, the Superior Court was forced to discontinue some accounts. Northrup Decl., ¶¶ 122-28; Cikes Decl., Ex. EE [Knowles Depo. 251:10-25], Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1086] & Ex. SS [“7/31/2012 Email Re: CLETS Access”]. 183. The Superior Court contracts with the Redding Police Department (“RPD”) to allow court personnel to use PUBSAFE to gain access to CLETS databases. Northrup Decl., ¶ 124. 184. In early 2012, it was discovered that RPD had started charging the Superior Court an annual user fee for each person that had PUBSAFE Northrup Decl., ¶ 125. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 27 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -28- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE access. There charges totaled in the thousands of dollars. 185. Accordingly, the Superior Court took steps to limit the number of individuals with access only to essential users, including supervisory staff, dispatchers and deputies in Department 1 and 2 (felony assignment calendars). Northrup Decl., ¶ 126. 186. Knowles also claims that on several occasions, dispatch sent her to work screening stations, but later diverted her to a different location, and that this caused her great embarrassment and distress because all of these communications were made over the radio for other employees to hear. Cikes Decl., Ex. EE [Knowles Depo. 243:3- 244:11] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1077]. 187. Knowles further claims that Dean and Shotwell ignored her and engaged in otherwise rude behavior. Cikes Decl., Ex. EE [Knowles Depo. 267:3-11] & Ex. HH [“Knowles EEOC Chronology” at Bates No. 1079-91]. 188. For example, on or about September 13, 2012, Knowles claims she was in the squad room trying to recharge her radio when Shotwell came in and asked Knowles what she was doing. When Knowles attempted to explain, Shotwell accused Knowles of being “difficult” and “not following directions.” Cikes Decl., Ex. EE [Knowles Depo. 311:15- 313:8] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1088-89]. 189. On October 5, 2012, dispatch radioed Knowles to relieve Shotwell in her courtroom and when Knowles arrived, Gordon was present there too. Cikes Decl., Ex. EE [Knowles Depo. 315:18- 316:20] & Ex. HH [“Knowles EEOC Chronology” at Bates No. 1090]; Northrup Decl., ¶ 102, Ex. M [“10/3/12 Email”]. 190. According to Knowles, this caused her to have a “panic attack.” Cikes Decl., Exhibit EE [Knowles Depo. 316:21-318:2] & Exhibit HH [“EEOC Chronology” at Bates No. 1090]. 191. Knowles was then instructed to escort an inmate to the holding cell so he could use the restroom. Cikes Decl., Exhibit EE [Knowles Depo. 318:3- 14] & Exhibit HH [“EEOC Chronology” at Bates No. 1090]; Northrup Decl., ¶ 102. 192. While on the phone asking Northrup to have Gordon removed from the courtroom, Knowles saw the inmate standing in the cell with Cikes Decl., Exhibit EE [Knowles Depo. 318:12-319:7] & Exhibit HH [“EEOC Chronology” at Bates No. 1090-91]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 28 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -29- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE the door open because she must have closed the wrong door. 193. She immediately secured the inmate and after hearing dispatch instruct Gordon to report to a screening station, escorted the inmate back into the courtroom. Cikes Decl., Ex. EE [Knowles Depo. 319:1- 320:17] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1090-91]. 194. After court had adjourned, Knowles met with Northrup, who stated that he had investigated the incident and determined that Knowles had only been in the courtroom with Gordon for a brief period of time. Cikes Decl., Ex. EE [Knowles Depo. 320:18- 321:15] & Ex. HH [“Knowles EEOC Chronology” at Bates No. 1090-91]; Northrup Decl., ¶ 102. 195. Following this meeting, Knowles went on leave. Cikes Decl., Ex. EE [Knowles Depo. 322:7- 323:14] & Ex. HH [“Knowles EEOC Chronology,” at Bates No. 1091]. 196. She remained on leave for over a year, until November 15, 2013, at which point she returned to work in a full-time capacity. Fowler-Bradley Decl., ¶ 27. 197. Knowles continues to work for the Marshal’s Office to date. Fowler-Bradley Decl., ¶ 27. E. PLAINTIFF RYAN HENRIOULLE UNDISPUTED FACT SUPPORTING EVIDENCE 198. The Court hired Ryan Henrioulle (“Henrioulle”) as a deputy marshal on November 28, 2011. Cikes Decl., Ex. A [Henrioulle Depo. 37:12-18]; Fowler-Bradley Decl., ¶ 89. 199. As a deputy marshal, Henrioulle was required to serve a one-year probationary period, during which the Superior Court could release Henrioulle without “cause” and any right to appeal. Cikes Decl., Ex. A [Henrioulle Depo. 42:11-14]; Fowler-Bradley Decl., ¶¶ 14, 90. 200. Henrioulle was also required to participate in the Marshal’s Office field training officer program. Northrup Decl., ¶ 154, Exhibit S [“Policy Manual § 436 Re: Marshal’s Training Officer Program”]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 29 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -30- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 201. Under this program, the Marshal’s Office assigns new deputies to training officers, who evaluate the new employee’s performance and provide them with one-on-one training. Northrup Decl., ¶ 156 202. However, due to staffing issues, Marshal Northrup allowed Henrioulle to work as a “solo” deputy (i.e., without a training officer), in areas that he had been trained and signed off on even though he still had not completed the training officer program. Northrup Decl., ¶¶ 157-158. 203. As the sergeant in charge of officer training, Dean met regularly with Henrioulle’s training officers to get a sense of Henrioulle’s performance. Dean Decl., ¶ 87; Cikes Decl., Exhibit XX [Reagan Depo. 112:11-113:11]. 204. During these meetings, some of Henrioulle’s training officers expressed concern regarding Henrioulle’s officer safety practices. Dean Decl., ¶ 87; Cikes Decl. Ex. 205. In particular, Henrioulle’s training officers noted that on a number of occasions Henrioulle exposed his firearm and/or positioned himself in such a manner that rendered him susceptible to an attack. Dean Decl., ¶ 87. 206. Dean, in turn, related this information back to Marshal Northrup, who instructed Dean to place Henrioulle on remedial training to address these issues. Dean Decl., ¶ 87; Northrup Decl., ¶¶ 159-160. 207. On or about June 21, 2012, Dean called Henrioulle into his office and provided Henrioulle with a memo notifying Henrioulle that he was being placed on remedial training due to “officer safety” issues. Cikes Decl., Ex. A [Henrioulle Depo. 96:22-97:9] & Ex. C [“6/21/12 Memo Re: Remedial Training”]; Dean Decl., ¶ 160. 208. After Dean Henrioulle on remedial training, Henrioulle claims that Dean instructed him to identify any staff members who spoke negatively about Dean or the Marshal’s Office, and cautioned him: “Your job depends on this. It’s time to decide if you want to work here or not.” Cikes Decl., Ex. A [Henrioulle Depo. 64:16- 66:19] & Ex. B [“Henrioulle EEOC Chronology,” at Bates No. 1926]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 30 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -31- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 209. Henrioulle also claims that deputy Chris Reagan (“Reagan”) - one of Dean’s “Cronies” - referred to him as “boy,” “son,” and ‘fag” on several occasions, and wrote “Got Dad,” on the dirt on his car windshield (purportedly in reference to Henrioulle’s fiancée, who was pregnant and had children from a prior relationship). Cikes Decl., Ex. A [Henrioulle Depo. 54:22-55:7, 102:13-103:7 & 118:8-119:16]. 210. In addition, Henrioulle claims that Reagan teased him that he was not going to pass remedial training, allegedly stating that failure is spelled “H-E-N-R-I-O-U-L-L-E,” and commenting “that’s how you spell termination too.” Cikes Decl., Ex. A [Henrioulle Depo. 54:22-55:7, 112:25-113:14]. 211. Henrioulle also complains that when Dean, Reagan and Deputy Dennis Mack (“Mack”) were training him on felony car stops, Dean used a real firearm when assuming the role of the “suspect” that Henrioulle had to take into custody. Compl., ¶ 79; Cikes Decl., Ex. A [Henrioulle Depo. 126:22-128:11] & Ex. XX [Reagan Depo. 59:3-60:12]; Dean Decl., ¶ 91. 212. Specifically, after having Reagan and Mack check his firearm to make sure it was unloaded, Dean placed it into his waistband for the role-play. Cikes Decl. , Ex. VV [Dean Depo. 290:2-21]; Ex. XX [Reagan Depo. 59:23-63:3]; Dean Decl., ¶ 91. 213. During the practice scenario, Henrioulle took Dean into custody and placed him in the backseat of his vehicle, but failed to uncover the hidden firearm during the pat down. Cikes Decl., VV [Dean Depo. 290:2-21] & Ex. EE [Reagan Depo. 59:23-61:1]. 214. When Henrioulle opened the backdoor of the vehicle to retrieve Dean, Dean - who had managed to manipulate the firearm into his hands - pointed his firearm at Henrioulle and stated either “Bang, you’re dead” or “Bang, you’re dead mother fucker.” Cikes Decl., Ex. A [Henrioulle Depo. 127:19- 128:11], Ex. VV [Dean Depo. 291:12-24]. 215. Although Henrioulle believes it was inappropriate for Dean to use a real firearm during the training, he found the training “helpful” and testified that Dean “corrected me and told me I should always do a thorough pat- down during these scenarios.” Cikes Decl., Ex. A [Henrioulle Depo. 131:20-22, 132:6-18]. Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 31 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -32- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE 216. On or about September 6, 2012, Henrioulle applied for a vacant defensive tactics instructor assignment. Cikes Decl., Ex. A [Henrioulle Depo. 139:18- 140:17] & Ex. C [“9/6/12 Memo Re: Defensive Tactics Instructor”]. 217. Northrup later informed Henrioulle that he would not be receiving the defensive tactics instructor assignment and that another deputy, who was not on probation, would receive the assignment instead. Cikes Decl., Ex. A [Henrioulle Depo. 141:8- 142:9]; Northrup Decl., ¶ 164. 218. On September 16, 2012, Dean received a call from police officers from the San Francisco Police Department (“SFPD”), notifying him that that they had received an anonymous 911 call from someone reporting that Henrioulle had brandished his firearm while leaving a 49ers game, that they discovered a firearm under Henrioulle’s car seat, that Henrioulle had informed them of his peace officer status, that they had detected an odor of alcohol emanating from Henrioulle’s breath and had administered a field sobriety test, which Henrioulle passed. Dean Decl. ¶¶ 93, 96; Northrup Decl., ¶¶ 166- 167, Ex. T [9/12/12 Memo Re: Deputy Henrioulle’s Detention by S.F.P.D.”]. 219. The officers told Dean that they had decided to release Henrioulle because the anonymous 911 caller refused to identify himself or make a statement, that they were calling Dean to make an official notification of the incident, and asked Dean if he wanted them to seize Henrioulle’s firearm for safekeeping. Dean Decl. ¶¶ 93, 96; Northrup Decl., ¶¶ 166- 167, Ex. T [9/12/12 Memo Re: Deputy Henrioulle’s Detention by S.F.P.D.”]. 220. Because the officers reported that Henrioulle was being cooperative and passed the field sobriety test, Dean told them to let Henrioulle travel home with his firearm, but asked them to send him copies of police reports of the incident. Dean Decl. ¶¶ 93, 96; Northrup Decl., ¶¶ 166- 167, Ex. T [9/12/12 Memo Re: Deputy Henrioulle’s Detention by S.F.P.D.”]. 221. Dean immediately advised Marshal Northup of the situation, but the two decided to take no further action until they reviewed copies of the police reports. Dean Decl. ¶¶ 93, 96; Northrup Decl., ¶¶ 166- 167, Ex. T [9/12/12 Memo Re: Deputy Henrioulle’s Detention by S.F.P.D.”]. 222. On September 17, 2012, after reviewing the SFPD police reports and hearing from Dean Decl. ¶¶ 93, 96; Northrup Decl., ¶¶ 166- 167, Ex. T [9/12/12 Memo Re: Deputy Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 32 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -33- DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; Case No. 2:14-CV-02471-MCE UNDISPUTED FACT SUPPORTING EVIDENCE Shotwell that Henrioulle had expressed concerns about being at work due to his mental state following the incident, Northrup instructed Dean to place Henrioulle on administrative leave, which Dean proceeded to do. Henrioulle’s Detention by S.F.P.D.”]. 223. Northrup and Dean then met with Fowler- Bradley and discussed Henrioulle’s incident with the SFPD as well as his performance-related issues with officer safety. Northrup Decl., ¶ 168; Fowler-Bradley Decl., ¶ 92. 224. Based on these reports, Fowler-Bradley decided to release Henrioulle from his probationary employment. Fowler-Bradley Decl., ¶¶ 93-94; Cikes Decl., Ex. E [“9/18/12 Memo Re: Probationary Period”]. 225. On September 18, 2012, Northrup asked Henrioulle to report to work and notified him of Fowler-Bradley’s decision to release him from probation. Northrup Decl., ¶ 169; Cikes Decl., Ex. E [“9/18/12 Memo Re: Probationary Period”]. 226. While employed at the Marshal’s Office, Henrioulle was aware of the Superior Court’s anti-harassment policy but never filed a complaint under that policy. Cikes Decl., Ex. A [Henrioulle Depo. 42:21- 43:20]; Fowler-Bradley Decl., Ex. A [“Henrioulle Personnel Rules Acknowledgment Form”]. 227. While he was employed at the Marshal’s Office, Henrioulle was unaware that Plaintiffs Schmidt, Sampson or Knowles had filed internal complaints. Cikes Decl., Ex. A [Henrioulle Depo. 18:12-25, 19:7-20:4, 108:4-12, 204:20-207:4]. Dated: August 25, 2016 RENNE SLOAN HOLTZMAN SAKAI LLP By: TIMOTHY G. YEUNG STEVE CIKES Attorneys for Defendants Superior Court of California, County of Shasta and Joel Dean Case 2:14-cv-02471-MCE-CMK Document 25-2 Filed 08/25/16 Page 33 of 33 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 1 [PROPOSED] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - CASE NO.: 2:14-cv-02471-MCE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TIMOTHY G. YEUNG (SBN 186170) tyeung@rshslaw.com STEVE CIKES (SBN 235413) scikes@rshslaw.com RENNE SLOAN HOLTZMAN SAKAI LLP 555 Capitol Mall, Suite 600 Sacramento, California 95814 Telephone: (916) 258-8800 Facsimile: (916) 258-8801 Attorney for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA (erroneously sued herein as SHASTA COUNTY MARSHAL’S OFFICE), and JOEL DEAN UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JAIME SCHMIDT, DEBRA KNOWLES, ELIZABETH SAMPSON, AND RYAN HENRIOULLE, Plaintiffs, v. SHASTA COUNTY MARSHAL’S OFFICE AND JOEL DEAN, Defendants. Case No.: 2:14-cv-02471-MCE [PROPOSED] ORDER GRANTING DEFENDANTS SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA AND JOEL DEAN’S MOTION FOR SUMMARY JUDGMENT Date: October 20, 2016 Time: 2:00 p.m. Courtroom: 7 Judge: Hon. Morrison C. England, Jr. Complaint Filed: October 21, 2014 Trial Date: April 3, 2017 Defendants Superior Court of California, County of Shasta (“Superior Court”) and Joel Dean’s (“Dean”) (collectively, “Defendants”) motion for summary judgment or, in the alternative, partial summary judgment came on regularly for hearing on October 20, 2016 at 2:00 p.m. in Courtroom 7 of the above-entitled Court, the Honorable Morrison C. England, Jr., presiding. Both parties were represented by counsel at the hearing. After full consideration of the pleadings, points and authorities, Case 2:14-cv-02471-MCE-CMK Document 25-3 Filed 08/25/16 Page 1 of 5 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 2 [PROPOSED] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - CASE NO.: 2:14-cv-02471-MCE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and all other submitted materials, and after all parties had an opportunity to be heard and good cause appearing, the Court hereby RULES as follows: 1. Defendant Superior Court’s motion for summary judgment as to Plaintiff Jamie Schmidt’s (“Schmidt”) First Cause of Action for discrimination/harassment based on sex/gender under Title VII of the Civil Rights Act of 1964 (“Title VII,” 42 U.S.C. 2000e et seq.) is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 2. Defendant Dean’s motion for summary judgment as to Schmidt’s First Cause of Action for discrimination/harassment based on sex/gender under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 3. Defendant Superior Court’s motion for summary judgment as to Schmidt’s Second Cause of Action for discrimination/harassment based on sex/gender under the Fair Employment and Housing Act (“FEHA,” Cal. Gov’t Code § 12940 et seq.) is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 4. Defendant Dean’s motion for summary judgment as to Schmidt’s Second Cause of Action for discrimination/harassment based on sex/gender under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 5. Defendant Superior Court’s motion for summary judgment as to Plaintiff Debra Knowles (“Knowles”) Third Cause of Action for discrimination/harassment based on sex/gender under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 6. Defendant Dean’s motion for summary judgment as to Schmidt’s Third Cause of Action for discrimination/harassment based on sex/gender under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Case 2:14-cv-02471-MCE-CMK Document 25-3 Filed 08/25/16 Page 2 of 5 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 3 [PROPOSED] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - CASE NO.: 2:14-cv-02471-MCE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Defendant Superior Court’s motion for summary judgment as to Knowles’ Fourth Cause of Action for discrimination/harassment based on sex/gender under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 8. Defendant Dean’s motion for summary judgment as to Knowles’ Fourth Cause of Action for discrimination and harassment based on sex/gender under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 9. Defendant Superior Court’s motion for summary judgment as to Plaintiff Elizabeth Sampson’s (“Sampson”) Fifth Cause of Action for discrimination/harassment based on sex/gender under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 10. Defendant Dean’s motion for summary judgment as to Sampson’s Fifth Cause of Action for discrimination/harassment based on sex/gender under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 11. Defendant Superior Court’s motion for summary judgment as to Sampson’s Sixth Cause of Action for discrimination/harassment based on sex/gender under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 12. Defendant Dean’s motion for summary judgment as to Sampson’s Sixth Cause of Action for discrimination/harassment based on sex/gender under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 13. Defendant Superior Court’s motion for summary judgment as to Plaintiff Ryan Henrioulle’s (“Henrioulle”) Seventh Cause of Action for retaliation under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Case 2:14-cv-02471-MCE-CMK Document 25-3 Filed 08/25/16 Page 3 of 5 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 4 [PROPOSED] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - CASE NO.: 2:14-cv-02471-MCE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Defendant Superior Court’s motion for summary judgment as to Henrioulle’s Eighth Cause of Action for retaliation under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 15. Defendant Superior Court’s motion for summary judgment as to Schmidt’s Ninth Cause of Action for retaliation under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 16. Defendant Superior Court’s motion for summary judgment as to Schmidt’s Tenth Cause of Action for retaliation for opposing discrimination/harassment under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 17. Defendant Superior Court’s motion for summary judgment as to Knowles’ Eleventh Cause of Action for retaliation under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 18. Defendant Superior Court’s motion for summary judgment as to Knowles’ Twelfth Cause of Action for retaliation under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 19. Defendant Superior Court’s motion for summary judgment as to Sampson’s Thirteenth Cause of Action for retaliation under Title VII is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 20. Defendant Superior Court’s motion for summary judgment as to Sampson’s Fourteenth Cause of Action for retaliation under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 21. Defendant Superior Court’s motion for summary judgment as to Henrioulle’s Fifteenth Cause of Action for failure to prevent discrimination and harassment under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 22. Defendant Superior Court’s motion for summary judgment as to Schmidt’s Sixteenth Cause of Action for failure to prevent discrimination and harassment under FEHA is Case 2:14-cv-02471-MCE-CMK Document 25-3 Filed 08/25/16 Page 4 of 5 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw 5 [PROPOSED] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - CASE NO.: 2:14-cv-02471-MCE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 23. Defendant Superior Court’s motion for summary judgment as to Knowles’ Seventeenth Cause of Action for failure to prevent discrimination and harassment under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. 24. Defendant Superior Court’s motion for summary judgment as to Sampson’s Eighteenth Cause of Action for failure to prevent discrimination and harassment under FEHA is GRANTED as there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Dated: ______________________ By: MORRISON C. ENGLAND, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT Case 2:14-cv-02471-MCE-CMK Document 25-3 Filed 08/25/16 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE TIMOTHY G. YEUNG (SBN 186170) tyeung@rshslaw.com STEVE CIKES (SBN 235413) scikes@rshslaw.com RENNE SLOAN HOLTZMAN SAKAI LLP 555 Capitol Mall, Suite 600 Sacramento, California 95814 Telephone: (916) 258-8800 Facsimile: (916) 258-8801 Attorney for Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHASTA (erroneously sued herein as SHASTA COUNTY MARSHAL’S OFFICE), and JOEL DEAN UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JAIME SCHMIDT, DEBRA KNOWLES, ELIZABETH SAMPSON, AND RYAN HENRIOULLE, Plaintiffs, v. SHASTA COUNTY MARSHAL'S OFFICE AND JOEL DEAN Defendants. Case No. 2:14-CV-02471-MCE DECLARATION OF JOEL DEAN IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: October 20, 2016 Time: 2:00 p.m. Courtroom: 7 Judge: Hon. Morrison C. England, Jr Complaint Filed: October 21, 2014 Trial Date: April 3, 2017 Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 1 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -1- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE I, JOEL DEAN, declare as follows: 1. I have personal knowledge of the facts set forth in this declaration and, if called upon as a witness, I could and would testify competently as to these facts. EMPLOYMENT WITH SHASTA COUNTY MARSHAL’S OFFICE 2. I joined the Shasta County Marshal’s Office (“Marshal’s Office”) as a deputy marshal on September 21, 2005. Prior to that, I worked as a deputy sheriff with the Humboldt County Sheriff’s Department from about May 2001 to September 2005. 3. On August 5, 2007, Shasta County Marshal Joel Northrup (“Northrup”) promoted me to corporal. 4. On May 9, 2010, Marshal Northrup promoted me to sergeant. From the time of my promotion up until November 2011, I served as the only sergeant within the Marshal’s Office and was responsible for overseeing, under Marshal Northrup supervision, the day-to-day operations of all sworn deputies and nonsworn public safety service officers (“PSSOs”). 5. In November 2011, Marshal Northrup promoted then-deputy marshal Elainea Shotwell (“Shotwell”) to sergeant. 6. Following Shotwell’s promotion to sergeant, I supervised personnel assigned to administrative functions, transportation, building security, screening stations, perimeter and field operations. Shotwell supervised personnel assigned to court security (i.e., bailiff) functions. 7. Starting November 1, 2013, I went on leave from the Marshal’s Office due to accumulated, work-related injuries. 8. On August 22, 2014, I retired from the Marshal’s Office due to my accumulated, work- related injuries. 9. While serving as a corporal and sergeant with the Marshal’s Office, I did not have the authority to take any personnel action with regard to any sworn or nonsworn staff without the express approval or authorization of Marshal Northrup. This includes any and all decisions related to work assignments, scheduling, training and/or the issuance of Supervisor’s Notes and Observations (“N&Os”), which are tools used within the Marshal’s Office to temporarily document positive or negative employee performance. Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 2 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -2- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE PLAINTIFFS’ INTERNAL COMPLAINTS 10. On March 9, 2012, the Shasta County Superior Court’s Executive Officer Melissa Fowler- Bradley (“Fowler-Bradley”) notified me that Plaintiff Jaime Schmidt had filed an internal complaint against me and that the Superior Court would be conducting an investigation into that complaint. (A true and correct copy of that notice is attached as Exhibit I to Fowler-Bradley’s concurrently-filed declaration.) 11. Also on March 9, 2012, Fowler-Bradley notified me that Plaintiff Debra Knowles (“Knowles”) had filed an internal complaint against me and that the Superior Court would be conducting an investigation into that complaint. (A true and correct copy of that notice is attached as Exhibit J to Fowler-Bradley’s concurrently-filed declaration.) 12. On March 26, 2012, Fowler-Bradley notified me that Plaintiff Elizabeth Sampson (“Sampson”) filed an internal complaint against me and that the Superior Court would be conducting an investigation into that complaint. (A true and correct copy of that notice is attached as Exhibit Q to Fowler-Bradley’s concurrently-filed declaration.) 13. On April 18, 2012, Fowler-Bradley notified me that on April 26, 2012, I would be interviewed by the Superior Court’s investigator, Jason Mayo (“Mayo”) from the Administrative Office of the Courts, concerning Plaintiffs Schmidt, Knowles and Sampson’s internal complaints. (A true and correct copy of that notice is attached as Exhibit S to Fowler-Bradley’s concurrently-filed declaration.) 14. On May 1, 2012, Fowler-Bradley notified me that my interview with Mayo had been rescheduled for May 7, 2012. (A true and correct copy of that notice is attached as Exhibit T to Fowler- Bradley’s concurrently-filed declaration.) 15. On May 7, 2012, I was interviewed by Mayo. 16. While the Superior Court’s investigation was pending, I made efforts to limit my interactions with Schmidt, Knowles and Sampson. 17. For example, at the time Plaintiffs filed their internal complaints, I was in charge of the Marshal's Office background investigations team, which included Schmidt and Knowles. On March 11, 2012, I submitted a request to Marshal Northrup, asking that “[d]ue to these allegations of misconduct and the nature of background investigations I do not feel it’s appropriate for me to supervisor Deputy Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 3 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -3- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE Knowles or Deputy Schmidt in this area at this time.” (A true and correct copy of that memo is attached as Exhibit C to Northrup’s concurrently-filed declaration.) 18. Additionally, during this period, Schmidt was in charge of calibrating the preliminary alcohol screening (“PAS”) devices (handheld devices for testing blood-alcohol levels), which were stored in my office. In an effort to limit my one-on-one interactions with Schmidt, I had the PAS devices moved into Shotwell’s office and on March 26, 2012, sent Schmidt an email notifying her “Sergeant Shotwell is now in charge of the PAS devices. Please see her regarding any issues or questions relating to them. They will be kept in her office.” (A true and correct copy of that email is attached as Exhibit X to the concurrently-filed declaration of Steve Cikes (“Cikes”).) 19. On August 2, 2012, Fowler-Bradley notified me that the Superior Court had completed its investigation into Plaintiff Schmidt, Knowles, and Sampson’s internal complaints and determined that their allegations were either unfounded or not sustained. (A true and correct copy of that notice is attached as Exhibit X to Fowler-Bradley’s concurrently-filed declaration.) 20. On October 12, 2012, Fowler-Bradley provided me with an amended notice regarding the results of the Superior Court’s investigation. (A true and correct copy of that amended notice is attached as Exhibit Y to Fowler-Bradley’s concurrently-filed declaration.) 21. I understand that in this litigation, Plaintiffs Schmidt, Knowles and Sampson assert that after they filed their internal complaints, I instructed certain PSSOs manning the dispatch/control room to specifically monitor Schmidt, Knowles and Sampson on the surveillance cameras and to report if they were not performing their assigned duties or otherwise engaging in misconduct. 22. As I testified during my deposition in this case, I do not recall giving any such instruction, nor, to my knowledge, did any member of the Marshal’s Office supervisory staff give such an instruction. 23. It should be noted that, during this period of time, the Marshal’s Office was struggling with staffing issues. Consequently, management often relied on the PSSOs manning the surveillance cameras in the dispatch/control room to serve as our “second set of eyes,” to ensure the safety of the deputies and others in the courthouse. Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 4 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -4- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE 24. As a result, I often asked the PSSOs in dispatch/control to monitor a particular deputy on the surveillance cameras if they were assigned to a department where there was a high-profile trial or some other proceeding that may present a safety issue. Similarly, I may have asked the PSSOs to monitor a particular deputy whom we may believe may not be following proper officer-safety practices (as was the case with some of the Plaintiffs in this case). 25. However, at no time did I or, to my knowledge, any member of the Marshal’s Office supervisory staff instruct the PSSOs to monitor any of the Plaintiffs because they filed an internal complaint or for any other inappropriate or improper reason. PLAINTIFF JAIME SCHMIDT 26. I first met Plaintiff Jaime Schmidt in late 2008, when, while working as corporal, I served as Schmidt’s training officer. After my promotion to sergeant in May 2010 and up until Shotwell’s promotion to sergeant in December 2011, I served as Schmidt’s immediate supervisor. 27. In her Complaint for Damages, Schmidt alleges that beginning in 2011 and up until she went on leave in September 2012, the supervisory staff of the Marshal’s Office, including myself, subjected her to “illegal discriminatory/harassing conduct” on account of her sex/gender as well as “unlawful retaliation” due to her opposition to “sex/gender harassment/discrimination.” 28. I understand that in this litigation, Schmidt alleges that on April 11, 2011, I sent her an email stating that a time off request she submitted was not timely and that my email was inappropriate because she previously notified me that she had a medical issue that would require multiple doctor appointments. 29. I do recall an email exchange I had with Schmidt in or around that timeframe, where I requested that Schmidt provide at least one-week notice before submitting a time off request. Attached hereto as Exhibit A is a true and correct partial portion of that email exchange. 30. I do not believe my email was inappropriate. As a supervisor, it was my job to counsel and direct employees on matters of policy. Also, it is important to note that during this time frame, the Marshal’s Office was extremely short-staffed and Schmidt had submitted numerous requests for time off for scheduled doctor appointments. It should also be noted that during this time, Shotwell and I did the Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 5 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -5- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE best we could to accommodate Schmidt (including personally filling in for Schmidt when she had emergency appointments come up). 31. I understand that in this litigation Schmidt alleges that in February 2011, I instructed PSSO Richard Nance (“Nance”) to schedule Schmidt for a multi-background training and not consult with her first. 32. I recall having a conversation with Nance concerning scheduling deputies for training, but my statement to him not was specific to Schmidt. Rather, my statement was that as a general matter, we should not consult with deputies regarding their availability prior to scheduling them for training. It is my understanding that Nance testified to the same during his deposition in this case. 33. I understand that in this litigation Schmidt alleges that in November 2011, after we conducted a background investigation on a potential job applicant in Eureka, she informed me that her training officer at the Solano County Sheriff sexually harassed her, including asking her “Is your pussy wet?” Schmidt alleges that I repeated this comment on our trip back and later again a few days later, while we were alone in the squad room. 34. I do recall accompanying Schmidt to conduct a background investigation in Eureka and her telling me about the sexual harassment she endured while working at the Solano County Sheriff’s Department. However, I categorically deny ever repeating the sexually-explicit remark made by her training officer. 35. I understand that in this litigation Schmidt alleges that during a morning briefing on February 21, 2012, I addressed her in a demeaning tone after she asked another deputy for a refresher on fueling procedures for department vehicles. 36. I do not have a specific recollection of this particular alleged exchange with Schmidt, but I do recall that the issue of the department’s fueling procedures coming up during this morning briefing session. I know this because I sent an email to staff on the subject that day reminding them of the fueling procedure. Attached hereto as Exhibit B is a true and correct copy of that email. 37. I understand that in this litigation Schmidt takes issue with an N&O she received from Shotwell on March 23, 2012, for leaving her Taser in her assigned courtroom, which was later discovered by her judge. Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 6 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -6- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE 38. It should be noted that the morning after Schmidt left her Taser in her courtroom, she approached me in the squad room and told me that she received a call from her judge about finding the Taser and asked me if I knew anything about it. I told her I did not know anything about the Taser and that she should check with administration, which I then observed her do. I then sent Shotwell an email reporting the results of that conversation. Attached hereto as Exhibit C is a true and correct copy of my email. 39. I understand that in this litigation, Schmidt takes issue with an email exchange that she and I had on August 23, 2012, concerning an incident earlier that day in which Schmidt was working at courthouse screening with another deputy when I walked by them and said, “Good morning” to each, and then repeated, “Good morning, Jaime,” when Schmidt did not initially respond. (A true and correct copy of that email exchange is attached as Exhibit BB to Cikes’ concurrently-filed declaration.) 40. Before my email exchange with Schmidt, I reported the underlying incident in email to Marshal Northrup. Attached hereto as Exhibit D is a true and correct copy of that email. 41. I understand that Schmidt went on leave on or about September 25, 2012, and eventually returned to duty on or about January 13, 2014. At the time she returned, I had already gone on disability retirement and was no longer working at the Marshal’s Office. PLAINTIFF DEBRA KNOWLES 42. I first met Plaintiff Debra Knowles in December 2005, when she was hired as a PSSO. After my promotion to sergeant in May 2010 and up until Shotwell’s promotion to sergeant in December 2011, I served as Knowles’ immediate supervisor. 43. In her Complaint for Damages, Knowles alleges that beginning in 2011 and up until she went on leave in September 2012, the supervisory staff of the Marshal’s Office, including myself, subjected to her “illegal discriminatory/harassing conduct” on account of her sex/gender as well as “unlawful retaliation” due to her opposition to “sex/gender harassment/discrimination.” 44. At no time did I discriminate against or harass Knowles on account her gender, or retaliate against her for complaining about gender/sex harassment or discrimination. 45. I understand that in this litigation Knowles alleges that in March 2011, I instructed dispatch to have Knowles, who was out on patrol, report back to the station so that two male deputies Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 7 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -7- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE could respond to an officer involved shooting call involving a member of the Redding Police Department. 46. I recall giving this instruction but my instruction had nothing to do with Knowles’ gender. 47. At the time of the call, Knowles was a fairly new deputy and the deputies who ended up responding to the call had significantly more law enforcement experience than Knowles (including Chris Reagan who had prior military experience). 48. It should also be noted that during this timeframe, Knowles had issues with officer safety. 49. For example, while conducting a warrant service at a residence, Knowles showed up to the residence without her department issued firearm, which she had left in her locker. I recall discussing with Knowles the potential safety hazard of not having her gun. I also noted this particular incident in her February 29, 2012 performance evaluation. (A true and correct copy of that performance evaluation is attached as Exhibit OO to Cikes’ concurrently-filed declaration.) 50. I understand that in this litigation, Knowles alleges that I engaged in inappropriate conduct while conducting a DUI stop in February 2012. 51. I recall conducting a DUI stop with Knowles in February 2012 but deny Knowles’ claim that my conduct was inappropriate. 52. What I do recall is that during the stop, I observed Knowles conduct a search of a vehicle while allowing a female passenger to remain seated inside of the vehicle - a significant breach of officer safety procedure. I pulled Knowles aside and counseled her about how she should clear a vehicle of any and all persons before conducting a search. I also noted this particular incident in Knowles’ February 29, 2012 performance evaluation. 53. I understand that in this litigation, Knowles takes issue with an N&O I issued her on April 5, 2011 for having an expired OC (i.e., pepper spray) canister and failing to follow the directives in Marshal Northrup’s March 7, 2011 email. (A true and correct copy of that N&O is attached as Exhibit II to Cikes’ concurrently-filed declaration.) I obtained Marshal Northrup’s authorization prior to issuing this N&O to Knowles. 54. I understand that a majority of Knowles’ allegations in this lawsuit pertain to her being dispatched to work at weapon screening stations with another employees (referred to herein as “PSSO Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 8 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -8- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE Gordon” or “Gordon”), whom she had previously filed a complaint of sexual harassment against in December 2009. 55. Notably, during the summer of 2011, Knowles signed up to play on a softball team along with other members of the Marshal’s Office, including myself. Needing an extra player and knowing about Knowles’ prior complaint against PSSO Gordon, I asked Knowles if it would be an issue for Gordon to play on the team as well. Although Knowles voiced some initial hesitancy about playing on the team with Gordon, she ultimately agreed to do so, and the two played on the team together for the entire summer without incident. 56. After the summer of 2011, the Marshal’s Office informed me that they would no longer be paying softball teams’ league dues. Consequently, I decided to hand-select team members rather than issue an open invitation to all staff in an effort to make the team more “competitive.” Because Knowles was not the best softball player, I did not ask her to rejoin the team. Contrary to Knowles’ allegations, neither the concerns she previously voiced regarding having to play on the team with Gordon nor her complaints about being dispatched to work screening stations where Gordon was present played any role in my decision. 57. On December 27, 2011, it was brought to my attention that on December 23, 2011. Knowles had been sent to work at a screening station with Gordon, notwithstanding Marshal Northrup's prior directive that work schedules be arranged so to minimize contact between Knowles and Gordon. I immediately informed Marshal Northrup of this and he then instructed me to conduct an inquiry regarding the circumstances surrounding the assignment. On January 10, 2012, I submitted a memo to Marshal Northrup concerning the results of my inquiry into Knowles' assignment. (A true and correct copy of that memo is attached as Exhibit F to Northrup’s concurrently-filed declaration.) 58. On January 12, 2012, at Marshal Northrup’s direction, I gave an N&O to the PSSO responsible for assigning Knowles to work with Gordon on December 23, 2011. (A true and correct copy of that N&O (redacted to remove the employee’s identifying information) is attached as Exhibit G to Northrup’s concurrently-filed declaration.) 59. On February 17, 2012, while on duty, I overheard Knowles’ voice on the radio, in a distressed manner, asking the Redding Police Department for assistance while at a location in Redding, Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 9 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -9- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE California commonly referred to as “Miracle Mile.” Fearing for Knowles’ safety, myself and two deputies responded to the scene. On February 23, 2012, I reported my observations concerning the incident in a memo to Marshal Northrup. (A true and correct copy of that memo is attached as Exhibit N to Northrup’s concurrently-filed declaration.) 60. On February 23, 2012, Marshal Northrup requested that I provide Knowles with verbal counseling concerning an incident that occurred earlier that day involving Knowles and a court patron during which Marshal Northrup believed that Knowles did not follow proper officer safety procedures. Pursuant to Northrup’s request, I spoke with Knowles later that day about the incident. On February 23, 2012, I sent Northrup a memo concerning my verbal counseling of Knowles. (A true and correct copy of that memo is attached as Exhibit O to Northrup’s concurrently-filed declaration.) 61. On February 29, 2012, at Marshal Northrup’s direction and to address Knowles’ issues with officer safety, I provided Knowles with four pages of written instruction on positional training. Attached hereto as Exhibit E is a true and correct copy of that written instruction. 62. On that same day, I emailed PSSO Richard Nance to sign Knowles up for a street survival course. (A true and correct copy of that email is attached as Exhibit NN to Cikes’ concurrently-filed declaration.) 63. On February 28, 2012, I overheard a radio transmission from one of the PSSOs dispatching Knowles to work a screening station where Gordon was present. I was able to divert Knowles to a different location before she arrived to the screening station. On March 9, 2012, I reported the results of the incident in a memo to Marshal Northrup. (A true and correct copy of that memo is attached as Exhibit H to Northrup’s concurrently-filed declaration.) 64. On March 16, 2012, pursuant to Marshal Northrup’s directive, I gave an N&O to the PSSO who dispatched Knowles to work at a screening station with Gordon on February 28, 2012. (A true and correct copy of that N&O (redacted to remove the employee’s identifying information) is attached hereto as Exhibit K to Northrup’s concurrently-filed declaration. 65. On March 7, 2012, Marshal Northrup instructed me to conduct an inquiry into additional instances in which Knowles claimed to have been sent by dispatch to work screening stations where Gordon was present, which I proceeded to do. On March 11, 2012, I sent Northrup a memo reporting the Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 10 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -10- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE results of my inquiry. (A true and correct copy of that memo is attached as Exhibit J to Northrup’s concurrently-filed declaration.) 66. On March 9, 2012, at Marshal Northrup’s direction, I sent an email to all PSSO instructing them not to send Knowles to any screening stations to avoid any possibility of Knowles inadvertently being sent to a screening station where Gordon was assigned. (A true and correct copy of that email is attached as Exhibit I to Northrup’s concurrently-filed declaration.) 67. On March 20, 2012, I sent the PSSOs an email reminding them of my prior instructions not to send Knowles to any screening stations. (A true and correct copy of that email is attached as Exhibit L to Northrup’s concurrently-filed declaration.) 68. I understand that Knowles went on leave on or about October 4, 2012, and eventually returned on or about November 15, 2013. At the time she returned, I had already gone on leave and did not have any further contact or communication with Knowles up until I went on disability retirement. PLAINTIFF ELIZABETH SAMPSON 69. I first met Plaintiff Elizabeth Sampson when I joined the Marshal’s Office in September 2005, and Sampson was a deputy marshal. After my promotion to sergeant in May 2010 and up until Shotwell’s promotion to sergeant in December 2011, I served as Sampson’s immediate supervisor. 70. In her Complaint for Damages, Sampson alleges that beginning in 2011 and up until she went on leave in September 2012, the supervisory staff of the Marshal’s Office, including myself, subjected to her “illegal discriminatory/harassing conduct” on account of her sex/gender as well as “unlawful retaliation” due to her opposition to “sex/gender harassment/discrimination.” 71. At no time did I discriminate against or harass Sampson on account her gender, or retaliate against her for complaining about gender/sex harassment or discrimination. 72. I understand that in this litigation, Sampson alleges that on November 16, 2011, she made an arrest approximately 10 to 15 minutes before the start of her shift, and that I had Shotwell remind her that deputies needed to obtain approval. 73. I recall receiving an email from Shotwell around this timeframe informing me that she reminded Sampson to get supervisor approval prior to starting her shift early. Attached hereto as Exhibit F is a true and correct copy of that email. Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 11 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -11- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE 74. It should be noted that during this timeframe, the Marshal’s Office had a “zero overtime” policy due to the Superior Court’s ongoing financial difficulties. Consequently, it was my responsibility, as a supervisor, to ensure no employees were working overtime unless they received pre-authorization from a supervisor to do so. 75. I understand that in this litigation, Sampson takes issue with an N&O I issued her on February 17, 2012 for submitting an arrest report to me for completion with several errors on it, in violation of policy. (A true and correct copy of that N&O is attached as Exhibit J to Cikes’ concurrently- filed declaration.) I obtained Northrup’s authorization prior to issuing this N&O to Sampson. 76. Before giving Sampson the N&O on February 17, 2012, I previously counseled her for submitting arrest reports with similar errors on them. For example, on August 23, 2011, I sent Sampson an email requesting that she see me about a report she submitted that had “[a] couple of minor corrections.” Also, on January 25, 2012, I emailed Sampson asking that she see me about a report she submitted that had similar errors on it. Attached hereto as Exhibit G are true and correct copies of these emails. 77. On February 23, 2012, Sampson submitted another report to me for completion that did not have a probable cause declaration filled out, a violation of policy. I then met with Sampson and presented her with a draft N&O that I had prepared regarding the violation of policy. Attached hereto as Exhibit H is a true and correct copy of that draft N&O. I obtained Northrup’s authorization prior to presenting Sampson with this draft N&O. 78. During this meeting, Sampson requested a union representative. Contrary to Sampson’s claims, I did not respond to her request by stating, “Really? Fine, if you want it that way[;] [i]f you want to go to fists then fine.” Rather, I told Sampson she could go and get a union representative and that we would discuss the report collectively. After pausing for a minute, Sampson elected to continue talking about the report. After hearing Sampson’s reasons for not submitting a probable cause declaration, I decided not to issue Sampson the draft N&O I had prepared. 79. I understand that in this litigation, Sampson alleges that the February 17, 2012 N&O and the February 23, 2012 “draft” N&O were issued “for something which neither she nor others had been Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 12 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -12- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE written up in the past” and that male deputies did not receive N&Os for committing similar policy violations. 80. Contrary to Sampson’s claims, during my tenure as sergeant, I issued, with Marshal Northrup’s authorization, a number of N&Os to deputies, both male and female, for committing similar policy violations. (True and correct copies of examples of such N&Os (redacted to remove any identifying employee information) are attached as Exhibit Q to Northrup’s concurrently-filed declaration.) 81. I understand that in this litigation, Sampson alleges that I heavily scrutinized video of her and Schmidt participating in a defensive tactics training involving one of the deputies providing the training wearing a “red man suit” that took place on September 7, 2012. 82. I recall Sampson and Schmidt participating in this training, but deny the allegation that video of their training was heavily scrutinized. Rather, as I testified during my deposition, the other deputies and I who reviewed the training footage did spend a little more time on Sampson’s training, compared to the others; however, that was only because Sampson committed a number of mistakes during the training that raised concern regarding her officer-safety practices. 83. I understand that Sampson went on leave on or about October 5, 2012, and eventually resigned from the Marshal’s Office on or about September 13, 2013. After she went on leave, I did not have any further contact or communication with Sampson up until I went on disability retirement and left the Marshal’s Office. PLAINTIFF RYAN HENRIOULLE 84. I first met Plaintiff Ryan Henrioulle (“Henrioulle”) when he applied to work as deputy marshal with the Marshal’s Office. At that time, I was the sergeant in charge of background and actually performed Henrioulle’s background investigation. 85. In the underlying Complaint for Damages, Henrioulle alleges that he was harassed, placed on remedial training and ultimately released from probation because “he opposed harassment/discrimination and refused to denigrate the employees singled out by Dean and management.” Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 13 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -13- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE 86. At no time did I, or to my knowledge, any member of the Marshal’s Office supervisory staff retaliate against Henrioulle for complaining about gender/sex harassment or discrimination. 87. Indeed, to my knowledge, at no time during Henrioulle’s employment with the Marshal's Office did he ever complain of gender/sex harassment or discrimination or notify any member of the supervisory staff that he would not be taking any action or inaction because he thought it was discriminatory or harassing. 88. As a new deputy marshal, Henrioulle was required to serve a one-year probationary period. In addition, he was also required to complete the Marshal’s Office training officer program. 89. As the sergeant in charge of training, I would met regularly with Henrioulle’s training officers to get a sense of his performance. During these meetings, some of Henrioulle’s training officers indicated that Henrioulle had issues with officer safety. In particular, Henrioulle’s training officers noted that on a number of occasions Henrioulle exposed his firearm and/or positioned himself in such a manner that rendered him susceptible to an attack. I related this information back to Marshal Northrup, who instructed me to place Henrioulle on remedial training to address these issues. 90. On or about June 21, 2012, I notified Henrioulle that he was being placed on remedial training and provided him with a memo outlining the various concerns that had been brought to my attention. (A true and correct copy of that memo is attached as Exhibit C to Cikes’ concurrently-filed declaration.) 91. As part of Henrioulle’s remedial training, myself and deputies Chris Reagan and Dennis Mack took Henrioulle to the “Record Range,” a law enforcement training facility, and had him practice felony car stops. During the training, I noticed that Henrioulle did not properly perform “pat downs” in taking one of the deputies portraying the “suspect” into custody. Accordingly, I assumed the role of the “suspect” and placed my unloaded “Ruger LCP 380” into my waistband to see if Henrioulle would discover it during the pat down. Prior to doing so, I had Reagan and Mack check the firearm to make sure it was unloaded. 92. While practicing the felony car stop, Henrioulle took me into custody and placed me in the backseat of his vehicle, but failed to uncover the hidden firearm in my waistband during the pat down. Consequently, when Henrioulle opened the backdoor of the vehicle, I managed to manipulate the Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 14 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -14- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE firearm into my hands, and pointed my firearm at Henrioulle’s general direction. At that point, I said something to the effect of “Bang, you’re dead,” but did not state, as Henrioulle claims, “Bang, you’re dead motherfucker.” I then proceeded to provide Henrioulle with training on how to conduct a proper pat down. 93. On September 16, 2012, I received a call from police officers from the San Francisco Police Department (“SFPD”), notifying me that they had received an anonymous 911 call from someone reporting that Henrioulle had brandished his firearm in a threatening manner while leaving a 49ers game, that they discovered a firearm under Henrioulle’s seat, that Henrioulle had informed them of his peace officer status, that they had detected an odor of alcohol emanating from Henrioulle’s breath, and that they had administered a field sobriety test, which Henrioulle passed. 94. The officers told me that they had decided to release Henrioulle because the anonymous 911 caller refused to identify himself or make a statement, and asked me if I wanted them to seize Henrioulle’s firearm for safekeeping. Because the officers reported that Henrioulle was being cooperative and passed the field sobriety test, I told them to let Henrioulle travel home with his firearm, but asked them to send me copies of police reports of the incident. 95. I immediately called Marshal Northrup and advised him of the situation. We decided not to take any further action until we reviewed copies of the police reports. 96. On September 17, 2012, I received copies of the police reports from the SFPD, which I promptly provided to Marshal Northrup. After reviewing the SFPD police reports and hearing that Henrioulle had expressed concerns about being at work due to his mental state following the incident, Northrup instructed me to place Henrioulle on administrative leave, which I proceeded to do. I then prepared and submitted a memo to Northrup concerning these events, including copies of the SFPD police report. (A true and correct copy of that memo is attached as Exhibit T to Northrup’s concurrently- filed declaration.) Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 15 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R EN N E SL O A N H O LT ZM A N S A K A I L LP A tto rn ey s a t L aw -15- DECLARATION OF JOEL DEAN - Case No. 2:14-CV-02471-MCE Case 2:14-cv-02471-MCE-CMK Document 25-4 Filed 08/25/16 Page 16 of 16 EXHIBIT A Case 2:14-cv-02471-MCE-CMK Document 25-5 Filed 08/25/16 Page 1 of 2 Case 2:14-cv-02471-MCE-CMK Document 25-5 Filed 08/25/16 Page 2 of 2 EXHIBIT B Case 2:14-cv-02471-MCE-CMK Document 25-6 Filed 08/25/16 Page 1 of 3 Case 2:14-cv-02471-MCE-CMK Document 25-6 Filed 08/25/16 Page 2 of 3 Case 2:14-cv-02471-MCE-CMK Document 25-6 Filed 08/25/16 Page 3 of 3 EXHIBIT C Case 2:14-cv-02471-MCE-CMK Document 25-7 Filed 08/25/16 Page 1 of 2 Case 2:14-cv-02471-MCE-CMK Document 25-7 Filed 08/25/16 Page 2 of 2 EXHIBIT D Case 2:14-cv-02471-MCE-CMK Document 25-8 Filed 08/25/16 Page 1 of 2 Case 2:14-cv-02471-MCE-CMK Document 25-8 Filed 08/25/16 Page 2 of 2 EXHIBIT E Case 2:14-cv-02471-MCE-CMK Document 25-9 Filed 08/25/16 Page 1 of 6 Case 2:14-cv-02471-MCE-CMK Document 25-9 Filed 08/25/16 Page 2 of 6 Case 2:14-cv-02471-MCE-CMK Document 25-9 Filed 08/25/16 Page 3 of 6 Case 2:14-cv-02471-MCE-CMK Document 25-9 Filed 08/25/16 Page 4 of 6 Case 2:14-cv-02471-MCE-CMK Document 25-9 Filed 08/25/16 Page 5 of 6 Case 2:14-cv-02471-MCE-CMK Document 25-9 Filed 08/25/16 Page 6 of 6 EXHIBIT F Case 2:14-cv-02471-MCE-CMK Document 25-10 Filed 08/25/16 Page 1 of 2 Case 2:14-cv-02471-MCE-CMK Document 25-10 Filed 08/25/16 Page 2 of 2 EXHIBIT G Case 2:14-cv-02471-MCE-CMK Document 25-11 Filed 08/25/16 Page 1 of 3 DEF003369 Case 2:14-cv-02471-MCE-CMK Document 25-11 Filed 08/25/16 Page 2 of 3 DEAN00062 Case 2:14-cv-02471-MCE-CMK Document 25-11 Filed 08/25/16 Page 3 of 3 EXHIBIT H Case 2:14-cv-02471-MCE-CMK Document 25-12 Filed 08/25/16 Page 1 of 2 Case 2:14-cv-02471-MCE-CMK Document 25-12 Filed 08/25/16 Page 2 of 2