NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. RG13667254/RG13667258)
Plaintiff Sabrina R. Newton appeals from a judgment in favor of defendant Alameda-Contra Costa Transit District (District) following the superior court's grant of summary judgment in favor of the District on Newton's employment discrimination action. Newton alleged the District wrongfully terminated her from her position as a Senior Claims Representative in the District's Risk Management Department, because of her disability and on other prohibited bases, in violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) (FEHA). We affirm the judgment.
In 2007, the District hired Newton as a Senior Claims Representative in its Risk Management Department. Her duties included investigating, documenting and settling claims against the District, including responding to accidents involving the District's vehicles and personnel.
During her employment with the District, Newton took many leaves, some quite lengthy, for various medical reasons. Between January and October 22, 2010, Newton exhausted her leave benefits under the Family Medical Leave Act and the California Family Rights Act, as well as her accrued sick, vacation and other compensatory time. Nonetheless, the District permitted her to take 21 additional days off for health reasons in 2010 and additional medical leaves from January 5, 2011, to March 2011 and April 18 to July 19, 2011. She returned to work in July 2011, but after having worked only five days again sought to extend her leave and continued to seek extensions through August 19, 2011.
By August 23, 2011, Newton had been on discretionary leave from work for 128 out of 163 work days in 2011. On August 23, the District denied her request for an additional month's leave until September 18, 2011, citing the operational needs of the Risk Management Department. On August 24, 2011, Newton advised the District that she was unable to work and wanted to apply for long term disability (LTD) benefits. The District notified her on September 2, 2011, that it intended to terminate her employment; in November, a Skelly hearing was held at her request; and following the hearing and further negotiations with Newton's union, the District agreed to hold her termination in abeyance until her application for LTD was processed.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
The application for LTD benefits, which Newton signed on September 15, 2011, asked when she expected to return to work. Newton wrote, "never." Her personal physician, Dr. Rong Huang, concurred, verifying in the LTD application that Newton had been unable to work since April 2011, would be unable to return to work, and that there was no accommodation that would enable her to do so. Dr. Huang certified that Newton's impairment was "long term," that there were no reasonable modifications that could assist her, that Dr. Huang "never" expected "a fundamental or marked change in her condition," and that Newton did "not think she [would] be able to go back to work ever."
On December 2, 2011, the LTD insurer notified the District that it had approved Newton's LTD application and she was deemed fully disabled retroactive to April 17, 2011. She became eligible to receive benefits on October 14, 2011, following the 180-day waiting period. On March 5, 2012, the District terminated Newton's employment retroactive to December 2, 2011, the date it learned she was eligible for LTD benefits.
On June 29, 2012, and again on July 27, 2012, Newton presented a government claim to the District (Gov. Code, § 910), which the District rejected by letter dated August 7, 2012.
On January 23, 2013, Newton filed a charge with the Department of Fair Employment and Housing (DFEH) alleging discrimination on the basis of "Age—40 and over; Disability—including HIV and AIDS, Family Care or Medical Leave; Medical Condition-including Cancer." She alleged the District wrongfully terminated her employment based on her "breast cancer and cancer of the appendix"; that a less experienced, younger, male co-worker was promoted over her; and that she was harassed and retaliated against for complaining to the District's Equal Employment Opportunity (EEO) administrators, who did not investigate her allegations. She also alleged she was denied extended medical leave, and despite the District advising her to file for reasonable accommodations "no interactive communication transpired between myself and management." She received her right to sue letter the same day.
On February 13, 2013, acting in propria persona, Newton filed two form complaints against the District, alleging numerous causes of action, including negligence, intentional tort (wrongful termination), breach of contract, fraud, harassment, "violations of Title VII, the ADA, ADEA, and the ADAA acts, wrongful termination, wrongful denial of claim." The court consolidated these complaints. On September 9, 2014, following a hearing, the superior court granted the District's motion for summary judgment. Judgment was entered on September 23, 2014, and this timely appeal followed.
Sustained Evidentiary Objections
As a threshold matter, we address Newton's contention that the court's order sustaining the District's objections to her evidence was "too vague" to comply with the standards set by Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid) because the court failed to rule individually on each evidentiary objection.
In opposition to the District's summary judgment motion, Newton included hundreds of pages of documents, including notes and documents containing notes apparently handwritten by her and others, and myriad other documents. These materials were attached to her memorandum in opposition to the motion, with no declaration or other evidence authenticating them. The District filed 63 objections, some to exhibits and others to Newton's assertions that some of the District's undisputed material facts (UMFs) were "disputed" without supplying or citing to any supporting evidence. Each of the District's objections was specific, thoroughly explained and supported by legal authority. Most of its objections to the documents concerned the lack of authentication. In its order granting summary judgment, the court ruled on the objections stating, "Defendant's evidentiary Objections are SUSTAINED on the grounds asserted." Newton does not identify any specific objection that she contends was improperly sustained.
In Reid, supra, 50 Cal.4th 515, on which Newton relies, the defendant had submitted 31 pages of objections, raising more than 175 separate objections to the plaintiff's evidence. The Supreme Court held that the trial court could not avoid ruling on evidentiary objections by stating simply that it had " 'relied on competent and admissible evidence.' " (Id. at p. 533.) Rather, "[a]fter a party objects to evidence, the trial court must then rule on those objections. If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal." (Id. at p. 517.)
Here the trial court did not avoid ruling on the objections by simply stating it was only relying on admissible evidence. It in fact ruled on the objections, stating it was doing so on the grounds asserted by the District. It would have been preferable for the court to have ruled on the objections individually, particularly since the District provided it a proposed form of order on which it could have easily done so. Nonetheless it did rule, and it stated the basis for its ruling. Particularly given that none of Newton's purported "dispute[s]" of fact was supported by admissible evidence showing such a dispute and that she failed to authenticate any of the documents she proffered, the trial court did not abuse its discretion by sustaining the District's objections on those grounds en masse, rather than ruling on each individually.
Newton does not cite our opinion Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir) on this point. In Nazir we held the trial court abused its discretion by making a blanket ruling sustaining all but one of the defendant's 764 objections to plaintiff's evidence, set forth in 324 pages. (Id. at pp. 249, 254.) We concluded, " 'a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections.' " (Id. at p. 255.) We also reviewed the objections and concluded many were either unsupported by any rule or were frivolous. (Id. at pp. 255-257.) The objections reviewed in Nazir were patently different in quality and quantity from those we face here. Moreover, unlike Nazir, here there is "a meaningful basis for review" (id. at p. 255), since the court stated it sustained the objections "on the grounds asserted," and those grounds are thoroughly set forth in the detailed objections themselves.
Even if we were to conclude the trial court erred in not ruling on the objections individually, that would not require us to hold that the District waived its objections or that we would have to consider plaintiff's evidence in determining whether there was a triable issue of fact precluding summary judgment. Rather, as Reid holds, evidentiary objections, properly presented below, are not waived, even where the court entirely fails to rule on them. (Reid, supra, 50 Cal.4th at p. 517.) A fortiori, they are not waived in this case, where the court ruled on, and indeed sustained, the objections and where the District made every effort to obtain a ruling on them.
And, finally, the trial court's ruling sustaining the objections was correct on the merits. It is well established that the party opposing summary judgment must produce admissible evidence raising a triable issue of fact. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 ["Only admissible evidence is liberally construed in deciding whether there is a triable issue"]; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017, Edmon & Karnow eds.) ¶¶ 10:253.1, p. 10-114, 10:205.1, p. 10-84 (Weil & Brown).) Evidence, whether or not obtained in discovery, must be presented in admissible form. "This means the evidence must be (1) properly identified and authenticated, (2) admissible under the secondary evidence rule, (3) nonhearsay or admissible under some exception to the hearsay rule, and (4) a complete record, not selected portions of the document. [Citation.] Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other 'evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.' (Evid. Code, § 1400; see Evid. Code, §§ 1410 et seq. for methods of authenticating documents.)" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855 (Serri).) Here, Newton did not authenticate a single one of the mass of documents she attached to her summary judgment brief in the court below; thus, none of this evidence was admissible.
Although the parties both state the standard for review of evidentiary rulings on summary judgment is "abuse of discretion," we note the standard is unsettled. (See Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 978; Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451.) Even applying the more rigorous de novo standard, we conclude the trial court properly sustained the District's objections.
A. Standard of Review
The standards for review of a summary judgment are well-established and were recently reiterated by Division Five of this Court in Johnson v. Arvinmeritor (2017) 9 Cal.App.5th 234: "Summary judgment is appropriate 'if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c, subd. (c).) [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fns. omitted.) In ruling on the motion, the court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party. (Id. at p. 843.) An order granting summary judgment is reviewed de novo. (Id. at p. 860.)" (Id. at p. 239.)
"In cases alleging employment discrimination, we analyze the trial court's decision on a motion for summary judgment using a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [(McDonnell Douglas)]" (Serri, supra, 226 Cal.App.4th 830, 860.) Although the specific elements of a prima facie case may vary depending on the particular facts, typically, under the McDonnell Douglas framework, the plaintiff may raise a presumption of discrimination by presenting evidence that plaintiff (1) was a member of a protected class, (2) was qualified for the position sought or was performing competently in the position she held, (3) suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; Serri, at p. 860.) Where an employer moves for summary judgment, however, as the moving party it has "the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors." (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003; accord Serri, supra, 226 Cal.App.4th at p. 861.) As will be discussed further below, the District sought to do both.
B. FEHA Claim Alleging Termination Based on Disability
"The FEHA prohibits discrimination against any person with a disability but [also] provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. ([(Gov. Code,] § 12940, subd. (a)(1); 42 U.S.C. § 12112(a).)" (Green v. State of California (2007) 42 Cal.4th 254, 257.) "[T]he FEHA requires employees to prove that they are qualified individuals under the statute . . . ." (Id. at p. 258.) "[D]rawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job, at least not with reasonable accommodation. Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation." (Id. at p. 262.)
In its summary judgment motion, the District sought to establish that an element of Newton's prima facie case was lacking and that it had a legitimate nondiscriminatory reason for terminating her employment. It did so by presenting evidence that Newton could not do the job with or without reasonable accommodations because she was completely disabled at the time of termination and that it terminated her employment because her continued, lengthy and indefinite absence was posing a hardship to the District and its other employees. The material evidence presented by the District on the question of Newton's inability to do the job with or without reasonable accommodation was undisputed. The District stated that when Newton was released from her employment with the District, effective December 2, 2011, she was unable to work in any capacity and was receiving long term disability benefits. Its evidence in support of this proposition consisted of Newton's LTD application, dated September 15, 2011, containing Newton's own certification that she expected return to work "never," Dr. Huang's certification diagnosing her with a variety of serious conditions, which in the interest of her privacy we do not recount here, recommending that she not return to work because she could not tolerate work given her many medical issues, and stating these limitations would be "long term," and that, as to job site modifications the employer could make that would assist her to return to work, there were "none" and "pt can't tolerate & won't be able to work," answered the question when he expected a fundamental or marked change in her condition, "never," and finally, stated "Patient does not think she will be able to go back to work ever." The District also offered excerpts from Dr. Huang's deposition testimony confirming his earlier opinion that her medical conditions and the associated pain they caused her precluded her from returning to work, as well as a declaration from its human resources analyst, who worked with Newton in November and December 2011, on Newton's application for LTD. The District also presented a declaration by its former human resources manager stating that on August 24, 2011, she participated in a telephone meeting with Newton at which time Newton advised that she was unable to work and wished to apply for benefits under the District's LTD policy and Newton's deposition testimony, in which she could not identify a time between August 23, 2011, and March 5, 2012, when she could have returned to work.
Newton purported to dispute below and again on appeal that she was released from her employment with the District on December 2, 2011. She asserted that she was terminated three times—on August 23, 2011, when the District denied her request for further leave; on September 2, 2011, when the District notified her of its intent to terminate her; and on March 5, 2012, when the District terminated Newton's employment retroactive to December 2, 2011. The evidence presented by Newton in support of her assertion is inadmissible and does not support her claim to have been terminated before December 2, 2011, in any event. Nor is there evidence to support her dispute of the District's UMF stating that "[a]t no time before March 5, 2012, did Newton advise the District that she was able to return to work." She contends that she sought to return to work on September 19, 2011. Her Exhibit 8, consists of unauthenticated handwritten notes by an unidentified person and a letter by Newton requesting a Skelly conference about the District's denial of her medical leave. (This letter was also introduced by the District as Exhibit No. 16 in support of the District's motion for summary judgment.) Neither shows her able to work or asserting she would be able to return to work at any particular time. This evidence fails to raise a triable issue of fact regarding her ability to work.
Newton contends the District improperly relied on medical evidence in the form of the LTD application and Dr. Huang's statements in the application, because it acquired these after its decision to terminate. She invokes the after-acquired evidence doctrine. "The doctrine of after-acquired evidence refers to an employer's discovery, after an allegedly wrongful termination of employment . . . of information that would have justified a lawful termination or refusal to hire." (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 428; accord, Horne v. District Council 16 Internat. Union of Painters & Allied Trades (2015) 234 Cal.App.4th 524, 539-540.) Relying upon McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, the California Supreme Court in Salas held that after-acquired evidence does not provide a complete defense to an unlawful termination in violation of FEHA. (Salas, at p. 430.) However, the available remedies do not require reinstatement, but "should compensate the employee for loss of employment from the date of wrongful discharge or refusal to hire to the date on which the employer acquired information of the employee's wrongdoing or ineligibility for employment." (Salas, at p. 431.)
The "after-acquired evidence" doctrine does not compel reversal here for several reasons. First, Newton suggests the relevant date for the decision to terminate her was when she sought and was denied another extension of her medical leave in August 2011, and argues that the LTD application was prepared and the information it contains was acquired in September or October 2011. The unrebutted evidence proffered by the District, however, shows it first notified her of its intent to terminate her employment on September 2, 2011, after she had informed it (on August 24, 2011) of her inability to return to work. And it did not actually terminate her employment until March 5, 2012, although it made the termination retroactive to December 2, 2011. By that time, not only had it been told by Newton that she could not return to work, assisted Newton in applying for LTD and received the application showing Newton's and Dr. Huang's certifications that she could never return to work, it had been informed that she had been found eligible for LTD benefits. Second, even if we were to accept her argument that the District effectively terminated her employment when it denied her leave on August 23, 2011, there was ample other unrebutted evidence that the District was aware, even in August 2011 that Newton was unable to work: she had certified her inability to work repeatedly throughout that calendar year, had been on medical leave for 128 out of 163 work days that year, had returned in July and then left again after only five days, and had just submitted another certificate stating she would be totally incapacitated for yet another month. Moreover, she had been out on medical leaves for substantial periods in the three years preceding 2011 and had exhausted all of her statutory leave and accrued vacation, sick and compensatory time. This evidence strongly supports the inference that the District reasonably could have concluded, even in August 2011, that Newton was unable to perform her job as a senior risk representative, and she offered no evidence to the contrary.
Third, while the after-acquired evidence rule would bar use of the LTD application to prove there were legitimate reasons for terminating her if her termination had occurred in August 2011, as she contends, it would not in any event bar expert medical testimony offered to rebut the essential element of her FEHA termination claim that she was qualified to perform her job. (Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 8-13.) In Finegan, the court held that while an employer may not rely on after-acquired evidence to justify the decision to terminate, "it may use medical evidence obtained after the fact in order to show that the plaintiff was not qualified for the job." (Id. at p. 10.)
Here, the District presented undisputed material evidence that Newton was unable to do her job with or without reasonable accommodations. Summary judgment was therefore proper as to Newton's disability-based wrongful termination claims.
Because we have determined that Newton failed to raise a triable issue of fact regarding her ability to perform her job with or without reasonable accommodations, thus demonstrating she cannot prove that essential element of her claim, we need not reach the adequacy of the District's showing of its legitimate, non-discriminatory business reasons for discharging Newton. We note, however, that Newton produced no admissible evidence countering the District's showing, and offered only her own opinion and speculation.
C. Other Causes of Action
The trial court granted summary judgment and dismissed all of Newton's claims, including, in addition to the disability discrimination claim, various FEHA claims not based on the termination of her employment and several common law claims. The District challenged these claims on numerous grounds in its summary judgment motion, including that her non-termination FEHA claims were time-barred and failed on the merits, that her common-law claims were also time-barred for her noncompliance with the California Government Claims Act (Gov. Code, § 900, et seq.) and that they could not be brought against a public agency such as the District. The District presented supporting evidence in its separate statement of undisputed material facts. Newton failed to address the District's arguments in her opposing memorandum of points and authorities. In response to the District's separate statement, Newton purported to dispute some of the District's facts, but relied on inadmissible exhibits or statements that were irrelevant to the facts she claimed were disputed.
1. Non-FEHA Claims
Newton makes no cogent argument in her opening brief that summary judgment was not properly granted as to her non-FEHA claims. She has therefore waived any such argument on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 9:21, pp. 9-6 to 9-7 and cases cited therein.) Nor did her brief in the trial court address the District's arguments that it was entitled to summary judgment on her claims for fraud, negligence, breach of contract or punitive damages because such common law claims are prohibited by statute, or provide any contrary authority. Accordingly, she has waived any challenge here. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800.)
As a leading treatise recognizes: "A defendant's motion for summary judgment or summary adjudication 'necessarily includes a test of the sufficiency of the complaint' and its legal effect is the same as a demurrer or motion for judgment on the pleadings." (Weil & Brown, supra, ¶ 10:52, p. 10-26.) --------
Further, the undisputed evidence establishes that Newton filed her lawsuit on February 13, 2013, 190 days after the claims rejection notice was mailed by the District on August 7, 2012—more than six months or 182 days after that date. Consequently, her fraud, negligence and breach of contract claims were not timely filed. (Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 605-606; Gov. Code, § 945.6(a)(1).)
2. Non-termination FEHA Claims
As to her non-termination FEHA claims, Newton made no legal argument regarding these claims in the trial court. Nor did she respond with admissible evidence to the District's contention that her non-termination FEHA claims failed as a matter of law because she failed to timely exhaust her administrative remedies on such claims.
In her opening brief on appeal, the only mention Newton makes to specific non-termination FEHA claims is her assertion that she was retaliated against and harassed, that she timely filed her non-termination FEHA claims with DFEH, and that her non-termination FEHA claims came within the "continuing violation" doctrine tying them to her wrongful termination claim.
However, Newton did not allege a FEHA harassment cause of action in either of her two complaints in this case. Her other FEHA discrimination claims did not encompass harassment. "Because the FEHA treats harassment in a separate provision, there is no reason to construe the FEHA's prohibition against discrimination broadly to include harassment. Hence, our case law makes clear that the FEHA's discrimination provision addresses only explicit changes in the 'terms, conditions, or privileges of employment' [citation] . . . ." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, fn. omitted.) Her failure to plead such a claim is fatal on summary judgment, where the pleadings " 'delimit the scope of the issues' " and serve as "the outer measure of materiality." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381; Liebert v. Transworld Sys., Inc. (1995) 32 Cal.App.4th 1693, 1699, abrogated on other grounds by Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, as stated in Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832-833.)
As to the retaliation claim, the District asserted that this claim failed as a matter of law because Newton could neither establish either of two essential elements of such a claim: an adverse employment action taken by the District and a causal connection between her protected activity and any adverse employment action taken by the District. (See Gov. Code, § 12940, subd. (h).) The District identified Newton's exercise of the right to take FMLA and CFRA leave in 2010 and a complaint she made with the District's internal EEO office asserting she had been harassed as the only two possible instances of protected activity to which her cause of action could pertain. In each instance, the District pointed out, it had long afterward continued to accommodate Newton by permitting additional medical leaves, thus refuting any causal link between these protected activities and any adverse action.
Newton failed to respond to these arguments at all in her opposition brief and has thus waived the issue. Even if we considered it, based on her purported dispute regarding the District's UMF stating that no discipline was imposed on her based on her performance she could not avoid summary judgment. She relied on inadmissible materials and a February 28, 2011 memorandum from her supervisor warning her about excessive absenteeism and unsatisfactory work performance. This "warning letter" did not impose discipline or raise a triable issue as to whether an adverse employment action was taken against her because, as the District's evidence showed, there was no material change in her employment. (See Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 646 ["an employer's intermediate decision or action 'constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment' "].)
Because Newton did not plead a harassment claim and because the District demonstrated that Newton could not establish essential elements of her retaliation claim, the District was entitled to summary judgment on those claims.
3. Federal Discrimination Claims
Regarding Newton's federal discrimination claims, Newton attempted to "dispute" the District's UMF and evidence that she did not file a charge with the EEOC as required for exhaustion purposes. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325.) The District's evidence included Newton's own deposition testimony admitting as much. Newton nonetheless claimed to have filed such a charge at the District's internal EEO office, but the supporting evidence she cited to was inadmissible, consisting of unauthenticated handwritten notes (presumably her own) and various unauthenticated compliance review materials not referencing her or any such charge at all. Although it is undisputed she complained to the District's EEO department in March 2011, that her supervisor had been improperly assigned a Risk Administrator position over her and that he was harassing her due to her "age, medical condition and disability," there is no evidence she filed a charge with the EEOC. The District thus was entitled to summary judgment on all of Newton's Title VII claims based on her failure to exhaust administrative remedies.
The judgment is affirmed.
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________