Bales v. County of El Dorado

Opinion

ELIZABETH BALES, an No. 2:18-cv-01714-JAM-DB individual, Plaintiff, ORDER GRANTING DEFENDANT’S v. MOTION FOR SUMMARY JUDGMENT COUNTY OF EL DORADO; TERI MONTEROSSO; and DOES 1-50, inclusive, Defendants. On June 13, 2018, Elizabeth Bales (“Plaintiff”) filed suit against El Dorado County (“Defendant”) and Teri Monterosso. Compl., ECF No. 1. Monterosso was dismissed as a defendant on September 20, 2018. Order, ECF No. 22. Plaintiff alleges Defendant retaliated against her in violation of Title VII, 42 U.S.C. § 2000e et seq., the California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940(h) et seq., and the California Whistleblower Protection Act, Cal. Lab. Code § 1102.5. See generally Compl. Plaintiff also alleges Defendant violated FEHA in failing to prevent discrimination and retaliation against her. Id. Defendant now moves for summary judgment on all four of Plaintiff’s claims. Mot. Summ. J. (“Mot.”), ECF No. 51. Plaintiff filed an opposition, Opp’n, ECF Nos. 55, 56, to which Defendant replied, Reply, ECF No. 60. For the reasons set forth below, the Court GRANTS Defendant’s Motion for Summary Judgment.1 Plaintiff was employed by El Dorado County as a Deputy Public Defender II from November 12, 2016, until June 21, 2017. Plaintiff’s Response to Defendant’s Undisputed Facts (“SUF”), ECF No. 55, Issue No. 1, ¶ 1. Plaintiff’s first year of employment with Defendant was considered a probationary period. Id. ¶ 2. During this probationary period, Plaintiff was an at- will employee. Id. ¶ 4. This meant that Defendant could dismiss Plaintiff for any reason, so long as the reason was not illegal. Id. Teri Monterosso was the Chief Public Defender, hiring authority, and final decision maker in the office. Id. ¶ 5. Tim Pappas was the Assistant Public Defendant and general supervisor of the office. Id. What occurred during Plaintiff’s employment with Defendant is largely disputed. Defendant claims that Monterosso began to have concerns about Plaintiff’s job performance in late January 2017. SUF, Issue No. 1, ¶ 6. And that Monterosso and Pappas observed several additional issues with Plaintiff’s job performance and judgment over the next four months. Id. ¶¶ 7,

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

between the protected activity and her termination. Absent this third element, Plaintiff cannot establish a prima facie case of retaliation and, yet again, the burden does not shift to Defendant. See Cohen, 686 F.2d at 796-97. Accordingly, Defendant is entitled to judgment as a matter of law on Plaintiff’s § 1102.5 claim. For the reasons set forth above, the Court GRANTS Defendant’s Motion for Summary Judgment in its entirety. The Clerk of the Court is ordered to close the case. Dated: November 10, 2020 kA teiren staves odermacr 7008 15