Bales v. County of El Dorado ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH BALES, an No. 2:18-cv-01714-JAM-DB individual, 12 Plaintiff, 13 ORDER GRANTING DEFENDANT’S v. MOTION FOR SUMMARY JUDGMENT 14 COUNTY OF EL DORADO; TERI 15 MONTEROSSO; and DOES 1-50, inclusive, 16 Defendants. 17 18 On June 13, 2018, Elizabeth Bales (“Plaintiff”) filed suit 19 against El Dorado County (“Defendant”) and Teri Monterosso. 20 Compl., ECF No. 1. Monterosso was dismissed as a defendant on 21 September 20, 2018. Order, ECF No. 22. Plaintiff alleges 22 Defendant retaliated against her in violation of Title VII, 42 23 U.S.C. § 2000e et seq., the California Fair Employment and 24 Housing Act (“FEHA”), Cal. Gov’t Code § 12940(h) et seq., and 25 the California Whistleblower Protection Act, Cal. Lab. Code 26 § 1102.5. See generally Compl. Plaintiff also alleges 27 Defendant violated FEHA in failing to prevent discrimination and 28 retaliation against her. Id. Defendant now moves for summary 1 judgment on all four of Plaintiff’s claims. Mot. Summ. J. 2 (“Mot.”), ECF No. 51. Plaintiff filed an opposition, Opp’n, ECF 3 Nos. 55, 56, to which Defendant replied, Reply, ECF No. 60. 4 For the reasons set forth below, the Court GRANTS 5 Defendant’s Motion for Summary Judgment.1 6 7 I. BACKGROUND 8 Plaintiff was employed by El Dorado County as a Deputy 9 Public Defender II from November 12, 2016, until June 21, 2017. 10 Plaintiff’s Response to Defendant’s Undisputed Facts (“SUF”), 11 ECF No. 55, Issue No. 1, ¶ 1. Plaintiff’s first year of 12 employment with Defendant was considered a probationary period. 13 Id. ¶ 2. During this probationary period, Plaintiff was an at- 14 will employee. Id. ¶ 4. This meant that Defendant could 15 dismiss Plaintiff for any reason, so long as the reason was not 16 illegal. Id. Teri Monterosso was the Chief Public Defender, 17 hiring authority, and final decision maker in the office. Id. 18 ¶ 5. Tim Pappas was the Assistant Public Defendant and general 19 supervisor of the office. Id. 20 What occurred during Plaintiff’s employment with Defendant 21 is largely disputed. Defendant claims that Monterosso began to 22 have concerns about Plaintiff’s job performance in late January 23 2017. SUF, Issue No. 1, ¶ 6. And that Monterosso and Pappas 24 observed several additional issues with Plaintiff’s job 25 performance and judgment over the next four months. Id. ¶¶ 7, 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 15, 2020. 1 8; see Mot. at 2–4. Plaintiff disputes the extent to which 2 Monterosso observed incidents wherein she exhibited poor 3 judgment. Id. ¶ 7. Plaintiff further argues that several of 4 the alleged incidents are untrue. Id. Moreover, Plaintiff 5 claims Monterosso and Pappas never expressed concerns about her 6 job performance. Id. ¶¶ 7, 8, 10. 7 During roughly this same time period, an internal County 8 investigation commenced involving two of Plaintiff’s coworkers— 9 Todd Jones and Susan Gellman. SUF, Issue No. 1, ¶ 16. On March 10 8, 2017, Plaintiff was interviewed by an outside investigator as 11 part of the County Human Resource Department’s internal 12 workplace investigation concerning Jones. Id. ¶ 22. On May 17, 13 2017, Plaintiff was interviewed by the same outside investigator 14 as part of the Gellman investigation. Id. ¶ 37. Defendant 15 alleges neither Monterosso nor Pappas knew that Plaintiff had 16 participated in either the Jones or Gellman investigation prior 17 to terminating her employment with the County. Id. ¶¶ 12, 31, 18 39; SUF, Issue No. 2, ¶¶ 12, 25, 31, 39. Plaintiff disputes 19 this. Id. During each of these interviews, the investigator 20 told Plaintiff to keep the interview process confidential. SUF, 21 Issue No. 1, ¶ 30; SUF, Issue No. 2, ¶ 30; SUF, Issue No. 3, 22 ¶ 24, 30. 23 Ultimately, Plaintiff was terminated from her job as Deputy 24 Public Defender II on June 21, 2017, while still in her 25 probationary period. SUF, Issue No. 1, ¶¶ 10, 12. Defendant 26 alleges that Monterosso made the decision to release Plaintiff 27 from probation after observing Plaintiff’s performance in a 28 preliminary hearing. Id. ¶ 40. Monterosso believed Plaintiff 1 would not be able to meet the office’s standards for deputy 2 public defenders. Id. Plaintiff, on the other hand, believes 3 she was released in retaliation for having participated in the 4 internal investigations concerning Jones and Gellman. Id. 5 During her employment with the County, Plaintiff never made a 6 complaint of discrimination, harassment, or retaliation under 7 the County’s equal employment opportunity policy. SUF, Issue 8 No. 2, ¶ 13. Nor did she file a complaint with the California 9 Department of Fair Employment and Housing (“DFEH”) or the United 10 States Equal Employment Opportunity Commission (“EEOC”). Id. 11 Plaintiff received her right to sue notice from DFEH on March 12 28, 2018, and filed her complaint on June 13, 2018. Compl. ¶ 4. 13 14 II. OPINION 15 A. Evidentiary Objections 16 Plaintiff raised several evidentiary objections in her 17 responses to Defendant’s statement of undisputed facts. See 18 generally SUF; see also Pl.’s Obj. to Def.’s Evid., ECF No. 56- 19 1. Defendant responded to these objections and filed its own 20 set of objections to Plaintiff’s evidence. See Def.’s Response 21 to Pl.’s Obj., ECF No. 60-2; Def.’s Obj. to Pl.’s Evid., ECF No. 22 60-1. The Court has reviewed these evidentiary objections but 23 declines to rule on them as courts self-police evidentiary 24 issues on motions for summary judgment and a formal ruling is 25 unnecessary to the determination of this motion. See Burch v. 26 Regents of the University of California, 433 F.Supp.2d 1110, 27 1118–1122 (E.D. Cal. 2006) (objections challenging the 28 characterization of the evidence are improper on a motion for 1 summary judgment). 2 B. Summary Judgment 3 A Court must grant a party’s motion for summary judgment 4 “if the movant shows that there is no genuine dispute as to any 5 material fact and the movant is entitled to a judgment as a 6 matter of law.” Fed. R. Civ. Proc. 56(a). The movant bears the 7 initial burden of “informing the district court of the basis for 8 its motion and identifying [the documents] which it believes 9 demonstrate the absence of a genuine issue of a material fact.” 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is 11 material if it “might affect the outcome of the suit under the 12 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 13 248 (1986). Once the movant makes this initial showing, the 14 burden rests upon the nonmoving party to “set forth specific 15 facts showing that there is a genuine issue for trial.” Id. An 16 issue of fact is genuine if “the evidence is such that a 17 reasonable jury could return a verdict for the nonmoving party.” 18 Id. 19 C. Title VII Retaliation 20 1. Legal Standard 21 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 22 § 2000e et seq., forbids retaliation by employers against 23 employees who have “opposed any practice made an unlawful 24 employment practice” under Title VII. Retaliation claims under 25 Title VII are evaluated under the McDonnell Douglas Corp. v. 26 Green, 411 U.S. 782 (1973) burden shifting framework. Yartzoff 27 v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). Under this 28 framework, a plaintiff must first establish a prima facie case 1 of retaliation. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796–97 2 (9th Cir. 1982). To establish retaliation, a plaintiff must 3 demonstrate: (1) a protected activity; (2) an adverse employment 4 action; and (3) a causal link between the protected activity and 5 the adverse employment action. Villiarimo v. Aloha Island Air, 6 Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). 7 Title VII’s anti-retaliation provision makes it unlawful 8 for an employer to discriminate against an employee because she 9 has either: (1) opposed any unlawful employment practice; or 10 (2) made a charge, testified, assisted, or participated in any 11 manner in an investigation, proceeding or hearing related to an 12 unlawful employment practice. See 42 U.S.C. § 2000e-3(a). The 13 former is known as the “opposition clause” and the latter as the 14 “participation clause.” Crawford v. Metropolitan Gov’t of 15 Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 274 (2009). 16 Unlawful employment practices, as that term is defined by Title 17 VII, generally extends only to adverse employment decisions made 18 on the basis of race, color, religion, sex, or national origin. 19 42 U.S.C. § 2000e-2. The employee need only reasonably believe 20 that the employer has engaged in an unlawful employment 21 practice. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 22 (9th Cir. 1987) (citation omitted). 23 If the plaintiff succeeds in demonstrating a prima facie 24 case of retaliation, the burden then shifts to the defendant to 25 articulate a legitimate, non-retaliatory reason for its 26 employment decision. Cohen, 686 F.2d at 796–97. “If the 27 defendant meets this requirement, the burden then shifts back to 28 the plaintiff to raise a triable issue of fact that the 1 defendant’s proffered reason was a pretext for retaliation.” 2 Id. Thus, the ultimate burden of persuasion rests with the 3 plaintiff. Id. 4 2. Analysis 5 As an initial matter, Plaintiff did not file any complaints 6 under the County’s equal employment opportunity policy. SUF, 7 Issue No. 2, ¶ 13. Nor did she file a complaint with the EEOC 8 or DFEH. Id. Moreover, Plaintiff did not participate in any 9 investigatory proceeding before the EEOC or DFEH during the time 10 she was employed with the County. Id. ¶ 14. Plaintiff does not 11 dispute any of this and, notably, does not argue that the 12 participation clause applies. Therefore, Plaintiff has conceded 13 the inapplicability of the participation clause by silence. See 14 Ardente, Inc. v. Shanley, Case No. 07-CV-4479-MHP, 2010 WL 15 546485 at *6 (N.D. Cal. 2010) (“Plaintiff fails to respond to 16 this argument and therefore concedes it through silence.”); see 17 also E.D. Cal. L.R. 230(c). Thus, the Court’s analysis is 18 limited to whether Plaintiff opposed an unlawful employment 19 practice. 20 Plaintiff alleges that she opposed unlawful employment 21 practices by supporting Jones and Gellman’s allegations of 22 harassment and discrimination when she was interviewed by the 23 outside investigator. See Opp’n at 21–22. Plaintiff alleges 24 that she told the outside investigator what she had heard from 25 her colleagues and witnessed herself. SUF, Issue No. 1, ¶¶ 13, 26 17–18, 20–23. Defendant argues that neither the Jones nor 27 Gellman investigations involved any allegations of 28 discrimination or harassment based on a protected trait or 1 retaliation for a protected activity. Id. ¶ 17. Instead, the 2 investigations had to do with County Personnel Rule 111, which 3 prohibits disrespectful treatment of fellow employees. Id. 4 ¶ 27. And that Plaintiff had no information to suggest the 5 interviews involved allegations of discrimination, harassment, 6 or retaliation. Id. ¶ 36. Plaintiff relies on various emails, 7 meetings, and deposition statements to dispute Defendant’s 8 position on the nature of the internal investigations. See id. 9 ¶¶ 12, 17, 27, 36, 39. Much of the evidence that Plaintiff 10 presents in opposition requires the Court to engage in a game of 11 “he said, she said.” The Court declines to do so and instead 12 relies on the facts to determine whether Plaintiff has 13 established a prima facie case of Title VII retaliation. 14 During the month of February 2017, Jones sent a series 15 office-wide emails that took issue with the way the office was 16 being run. See Exs. A, B, C, D, F to Jones Decl., ECF Nos. 55- 17 21, 55-22, 55-23, 55-24, 55-26. Jones’ various complaints are 18 well-documented throughout the emails. However, absent from 19 them is any allegation that Defendant was engaging in unlawful 20 employment practices, as that term is defined by Title VII. At 21 most, Jones perceived Pappas’ presence in one of the court rooms 22 while Jones was working as an “illegal attempt to intimidate 23 [him].” See Ex. D to Jones Decl. As a result of this slew of 24 emails, Defendant commenced an internal workplace investigation. 25 On March 6, 2017, Plaintiff received a letter about the 26 investigation. See Ex. E to Bales Dep., ECF No. 51-3. The 27 letter made clear that its purpose was to “investigate 28 allegations of a potential violation of the Personnel Rule 111: 1 Respectful Workplace.” Id. Plaintiff was interviewed as part 2 of the Jones investigation on March 8, 2017. SUF, Issue No. 1, 3 ¶ 22. She understood the interview to be about Jones’ office- 4 wide emails. Bales Dep. 124:14–18; 125:10–11, ECF No. 51-3. 5 Plaintiff was not under the impression that the investigation 6 had to do with allegations of gender discrimination. Id. 7 127:10, 15–17, 21; 128:2, 7–11, 17, 20; 185:24; 247:13–24. It 8 was not until after Plaintiff’s interview that Monterosso and 9 Pappas were informed that Jones filed a DFEH/EEOC complaint. 10 Watts Decl. ¶ 5, ECF NO. 55-12. 11 On March 12, 2017, Plaintiff received a letter about the 12 Gellman workplace investigation. See Ex. F. to Bales, Dep., ECF 13 No. 51-3. Plaintiff was interviewed as part of the Gellman 14 investigation on May 17, 2017. SUF, Issue No. 1, ¶ 37. 15 Plaintiff understood the investigation to be about workplace 16 relations between Gellman and Monterosso. Bales Dep. 153:2–4; 17 158:19–22. And that Gellman felt retaliated against by 18 Monterosso for the situation involving Jones. Id. 153: 9–14. 19 However, Plaintiff presents no evidence to support the 20 contention that Gellman had complained of retaliation for 21 opposing a Title VII unlawful employment practice, and that she 22 knew of any such complaint, at the time she was interviewed. 23 Plaintiff was merely asked questions about retaliation against 24 Gellman “generally” and “what the motive for that would have 25 been.” Id. 157:19–23. Plaintiff did not tell the investigator 26 that Gellman felt she was retaliated against for supporting 27 Jones’ claims of gender discrimination. Plaintiff did not 28 ascribe any motive to the situation. Instead she simply 1 explained that relations between the two women had deteriorated. 2 Id. 159:5–9. 3 Jurado is informative here. See 813 F.2d 1406. Jurado, a 4 disc jockey, alleged he was retaliated against when he was fired 5 by a radio station because he refused to comply with 6 instructions to cease broadcasting in Spanish. Id. at 1408–09. 7 However, noting that an employee need only reasonably believe 8 that the employer has engaged in an unlawful employment 9 practice, see EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 10 1013 (9th Cir.1983), the Ninth Circuit, nonetheless, held that 11 Jurado failed to produce evidence that he engaged in any 12 activity protected by Title VII. Id. at 1411; Cf. Crown 13 Zellerbach, 720 F.2d at 1012–13 (letter protesting unspecified 14 “racism” and “discrimination” in employer’s practices is 15 protected opposition activity); Sias v. City Demonstration 16 Agency, 588 F.2d 692, 695 (9th Cir. 1978) (employee’s letter to 17 HUD complaining of employment discrimination against him and 18 other Latinos is protected). The court found that Jurado had 19 not shown that he opposed the format change as discriminatory 20 before he was fired. Id. Instead, he merely opposed the change 21 for personal reasons. Id. 22 As with Jurado, at the time Plaintiff was interviewed as 23 part of the respective investigations, neither Jones nor Gellman 24 had alleged a Title VII unlawful employment practice. They had 25 merely complained of non-discriminatory workplace policies, 26 practices, and disciplinary actions. Each was unhappy with the 27 work environment for personal reasons. Thus, Plaintiff, in her 28 interviews, was not opposing an unlawful employment practice as 1 defined by Title VII. See 42 U.S.C. § 2000e-3(a). Jones’ 2 solitary mention of “illegality” in one of his many emails 3 circulated around the office was far too vague for Plaintiff to 4 have reasonably believed that Defendant was engaging in unlawful 5 employment practices toward him. See Crown Zellerbach, 720 F.2d 6 at 1013. As a result, Plaintiff has failed to present a genuine 7 issue of material fact that might establish she engaged in a 8 protected activity when she spoke to the investigator. Absent 9 this first element, Plaintiff cannot establish a prima facie 10 case of retaliation and, under the McDonnell Douglas burden 11 shifting framework, the burden does not shift to Defendant. See 12 Cohen, 686 F.2d at 796–97. 13 Accordingly, Defendant is entitled to judgment as a matter 14 of law on Plaintiff’s Title VII retaliation claim. 15 D. FEHA Retaliation 16 Much like Title VII, FEHA prohibits retaliation against an 17 employee for opposing any practice forbidden by it, or for 18 filing a complaint, testifying, or assisting in a FEHA 19 proceeding. See Cal. Gov’t. Code § 12940(h). In evaluating a 20 FEHA claim, California courts look to federal precedent 21 governing analogous federal discrimination laws. See Guz v. 22 Bechtel National, Inc., 24 Cal.4th 317, 354 (2000) (“Because of 23 the similarity between state and federal employment 24 discrimination laws, California courts look to pertinent federal 25 precedent when applying our own statutes . . . . ). 26 In particular, California has adopted the three-stage 27 McDonnell Douglas burden-shifting test for analyzing FEHA 28 claims. Id. Thus, under FEHA, a plaintiff must establish the 1 same prima facie case of retaliation as under Title VII and, 2 once the defendant has articulated a legitimate, non- 3 discriminatory reason for its action, raise triable issues of 4 fact as to whether the articulated reason is pretextual. See 5 Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476 6 (1992); see also Nidds v. Schindler Elevator Corp., 113 F.3d 7 912, 917–918 (9th Cir.1997). 8 Because the FEHA retaliation analysis is identical to the 9 Title VII retaliation analysis, Plaintiff’s FEHA claim fails for 10 the same reasons her Title VII retaliation claim fails. 11 Plaintiff did not engage in a protected activity, thus she 12 cannot establish a prima facie case of retaliation and the 13 burden does not shift to Defendant. Accordingly, Defendant is 14 entitled to judgment as a matter of law on Plaintiff’s FEHA 15 retaliation claim. 16 E. FEHA Failure to Prevent Retaliation 17 FEHA also makes it unlawful for an employer “to fail to 18 take all reasonable steps necessary to prevent discrimination 19 and harassment from occurring.” Cal. Gov’t Code § 12940(k). 20 However, because Plaintiff is unable to establish FEHA 21 retaliation, she cannot fulfill the requirements for a “failure 22 to prevent” claim. A failure to prevent claim requires a 23 finding of unlawful discrimination or retaliation as a 24 prerequisite to liability. See 2 Cal. Code Regs. § 11023; see 25 also Trujillo v. North Cnty Transit Dist., 63 Cal.App.4th 280, 26 289 (1998). Accordingly, Defendant is entitled to judgment as a 27 matter of law on Plaintiff’s FEHA failure to prevent retaliation 28 claim. 1 F. California Labor Code Section 1102.5 2 1. Legal Standard 3 California Labor Code § 1102.5 prohibits employers from 4 retaliating against employees for engaging in a protected 5 activity, such as disclosing information concerning illegal 6 activity or refusing to participate in illegal activity. See 7 Cal. Lab. Code § 1102.5(b)-(c). Here, too, the McDonnell 8 Douglas burden-shifting framework applies. Bowen v. M. Caratan, 9 Inc., 142 F.Supp.3d 1007, 1031 (E.D. Cal. 2015) (citation 10 omitted). And the three elements of a prima facie retaliation 11 claim are the same. Id. at 1030–31 (citing Mokler v. Cnty of 12 Orange, 157 Cal.App.4th 121, 138 (2007)). To warrant summary 13 judgment on a § 1102.5 claim, a defendant must satisfy his 14 initial burden of showing (1) the plaintiff cannot establish one 15 or more of the elements of her prima facie case or (2) there was 16 a legitimate, non-retaliatory reason for terminating her 17 employment. Id. at 1031 (internal quotation marks and citations 18 omitted). 19 2. Analysis 20 Plaintiff advances her § 1102.5 claim under two different 21 theories. First, in her complaint, she alleges Defendant 22 violated § 1102.5(a) and (b) by terminating her employment after 23 she disclosed to her supervisors that El Dorado County jail 24 staff was sexually assaulting female inmates. Compl. ¶¶ 58–61. 25 Then, in her opposition, she alleges Defendant also violated 26 § 1102.5(a) and (b) by terminating her employment after she was 27 interviewed as a part of the Jones and Gellman investigations. 28 Opp’n at 30. As an initial matter, the second theory fails for 1 the reasons set forth above. Plaintiff cannot establish a prima 2 facie case of retaliation for supporting Jones and Gellman when 3 she was interviewed by the investigator. On neither occasion 4 did she engage in a protected activity. 5 As for the first theory, it is undisputed that Plaintiff 6 was reporting illegal conduct when she informed her supervisors 7 that one of her clients had witnessed jail staff sexually 8 assaulting other inmates. Mot. at 7. Thus, Plaintiff’s 9 disclosure was a protected activity. See Cal. Lab. Code 10 § 1102.5(b). It is similarly undisputed that Plaintiff’s 11 termination is considered an adverse employment action. Mot. at 12 13–14. However, Plaintiff cannot establish a causal link 13 between the two. Monterosso made the decision to release 14 Plaintiff from probation on June 1, 2017. SUF, Issue No. 1, 15 ¶ 40. Plaintiff does not dispute this. Id. She merely 16 disputes the reason cited for the termination. Id. It is also 17 undisputed that, by June 16, 2017, Monterosso had decided she 18 would terminate Plaintiff on either June 21, 2017, or June 22, 19 2017. SUF, Issue No. 3, ¶ 44. Plaintiff did not report the 20 situation at the jail until June 21, 2017, which, 21 coincidentally, was the day Monterosso had previously decided on 22 for Plaintiff’s release from probation. Id. ¶ 45. Moreover, 23 Plaintiff does not disagree that Monterosso took the sexual 24 assault allegations seriously and contacted the El Dorado County 25 Sheriff’s Department to report Plaintiff’s client’s complaint 26 that same day. Id. ¶¶ 46, 47. 27 As a result, Plaintiff has failed to present a genuine 28 issue of material fact that might establish a causal connection ee RO EIEIO IEE OS ISI II OED 1 | between the protected activity and her termination. Absent this 2 third element, Plaintiff cannot establish a prima facie case of 3 retaliation and, yet again, the burden does not shift to 4 Defendant. See Cohen, 686 F.2d at 796-97. 5 Accordingly, Defendant is entitled to judgment as a matter 6 | of law on Plaintiff’s § 1102.5 claim. 7 8 TILT. ORDER 9 For the reasons set forth above, the Court GRANTS 10 Defendant’s Motion for Summary Judgment in its entirety. The 11 Clerk of the Court is ordered to close the case. 12 IT IS SO ORDERED. 13 Dated: November 10, 2020 14 kA 18 teiren staves odermacr 7008 16 17 18 19 20 21 22 23 24 25 26 27 28 15