Moore v. California Department of Corrections and Rehabilitation et al

Filing 75

ORDER GRANTING 69 Defendant CDCR's Motion for Summary Judgment signed by District Judge Lawrence J. O'Neill on 10/23/2012. CASE CLOSED. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CANDY Q. MOORE,

CASE NO. CV F 10-1165 LJO SMS

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Plaintiff,

DECISION ON CDCR’S SUMMARY
JUDGMENT MOTION
(Doc. 69.)

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vs.
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CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION,

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Defendant.
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/
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INTRODUCTION

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Defendant California Department of Corrections and Rehabilitation (“CDCR”) seeks summary

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judgment on pro se plaintiff Candy Q. Moore’s (“Ms. Moore’s”) Title VII1 hostile environment and

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retaliation claims arising during her temporary nursing stint at CDCR’s Valley State Prison for Women

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(“VSPW”). Ms. Moore filed papers which offer no meaningful opposition to summary judgment for

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Ms. Moore’s claims proceed under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
sections 2000e, et seq.

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CDCR. This Court considered CDCR’s summary judgment motion on the record2 without a hearing,

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pursuant to Local Rule 230(g). For the reasons discussed below, this Court GRANTS CDCR summary

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judgment.

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BACKGROUND

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Summary

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Ms. Moore is black and during March 5, 2007 to January 4, 2008 performed Licensed Vocational

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Nursing (“LVN”) services on a temporary relief basis at VSPW through Supplemental Health Care

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Services, Inc. (“SHC”), a nursing registry which contracted with CDCR to supply temporary nurses. Ms.

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Moore claims that she was subject to a hostile work environment and retaliation for filing

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discrimination/retaliation complaints. CDCR seeks summary judgment in the absence of facts to support

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Ms. Moore’s claims.

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Ms. Moore’s SHC Employment

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SHC, not CDCR, employed Ms. Moore subject to SHC’s ability to provide Ms. Moore available

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work to satisfy requirements of SHC clients, such as CDCR. CDCR and Ms. Moore entered into no

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contract, and Ms. Moore was not guraranteed assignments to particular prison locations or shifts. VSPW

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was free to terminate the services of an SHC employee and treated temporary nurses as floaters.

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August 30, 2007 Alarm Pressing Incident

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On August 30, 2007, Charles Funch (“Mr. Funch”), a white CDCR-employed nurse, attempted

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to stop Ms. Moore’s dressing change of an inmate at the VSPW B Yard medical clinic3 because Mr.

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Funch wanted to count narcotics. Mr. Funch told Ms. Moore if she did not have the inmate leave

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immediately, he would press his alarm to which correctional officers responded (“alarm incident”). Mr.

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Funch made no racist remarks to Ms. Moore. Ms. Moore did not tell then VSPW Director of Nursing

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This Court carefully reviewed and considered the record, including all evidence, arguments, points and
authorities, declarations, testimony, statements of undisputed facts and responses thereto, objections and other papers filed
by the parties. Omission of reference to evidence, an argument, document, objection or paper is not to be construed to the
effect that this Court did not consider the evidence, argument, document, objection or paper. This Court thoroughly reviewed,
considered and applied the evidence it deemed admissible, material and appropriate for summary judgment. This Court does
not rule on evidentiary matters in a summary judgment context, unless otherwise noted.
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VSPW medical facilities are divided into A, B, C, and D Yards. LVNs work either a first (2 a.m. to 10
a.m.), second (10 a.m. to 6 p.m.), or a third (6 p.m. to 2 a.m.) shift. The second shift is referred to as the day shift and the
third shift is referred to as the pm shift.

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Judy Tucker (“Ms. Tucker”) or Ms. Moore’s supervisor Curtis Mangram (“Mr. Mangram”)4 that Ms.

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Moore believed that Ms. Funch pressed the alarm because Ms. Moore is black and that he disliked

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blacks. Ms. Moore’s type-written and signed statement of the alarm incident made no reference to race.

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Mr. Funch was transferred from his regular B Yard post to the medical records unit where he was

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ineligible to volunteer for overtime during investigation of the alarm incident, which included an

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interview of Ms. Moore. Prior to the alarm incident, Mr. Funch frequently had volunteered for overtime.

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LVN Connie Struble told Ms. Moore that Mr. Funch was angry with Ms. Moore because Mr. Funch lost

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four to six weeks of overtime.

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Mr. Funch’s Return To B Yard

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On October 16, 2007, Mr. Funch returned to his regular B Yard position and began to complain

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to Ms. Tucker and supervisors as to Ms. Moore’s inadequate job performance and harassment of Mr.

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Funch. Ms. Moore claims that on Mr. Funch’s first day back at B Yard, Mr. Funch awaited her in the

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dark at the beginning of their shift, and Ms. Moore was frightened because Mr. Funch did not do

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anything. Ms. Moore has no clue what Mr. Funch was doing in the dark before she arrived.

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During the following week, Mr. Funch telephoned supervisors to complain about Ms. Moore and

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threatened to file a union grievance. Ms. Moore attributes Mr. Funch to have said that he is a state,

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union worker and “[s]he needs to leave.” Ms. Moore claims that Mr. Funch called her a liar and lazy

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and slammed the door on her.

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Ms. Moore’s Reassignment Off B Yard

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Mr. Mangram advised Ms. Tucker that although Mr. Funch was often rude and disrespectful,

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there was an unusual level of conflict between Mr. Funch and Ms. Moore that he attributed to a

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personality conflict. Mr. Mangram and other supervisors reported to Ms. Tucker that the conflict

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disrupted B Yard medical staff. On October 21, 2007, Ms. Tucker decided to separate Ms. Moore and

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Mr. Funch to end the B Yard disruption, and Ms. Moore was reassigned to VSPW locations other than

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B Yard (“reassignment off B Yard”).

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Mr. Mangram supervised the B Yard second shift.

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Ms. Moore’s Shift Change

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In early November 2007, Marihelen Afonso (“Ms. Afonso”) became acting Scheduling Nurse

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and scheduled all LVN’s at VSPW. On November 12, 2007, Ms. Afonso switched Ms. Moore from the

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second (10 a.m. to 6 p.m) shift to the third (6 p.m. to 2 a.m.) shift (“shift reassignment”) because:

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Ms. Moore was registry nurse to perform temporary relief work;

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Staffing for the third shift was insufficient but was sufficient for the second shift;

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Ms. Moore had experience and training, unlike newer staff, and needed less supervision,

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and there were fewer supervisors on the third shift than there were on the second shift.

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Ms. Moore attributes Ms. Afonso to have switched her to the third shift because prior to Ms.

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Afonso’s becoming a scheduling nurse, Ms. Moore rejected Ms. Afonso’s request to place an inmate on

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the telephone because medications were out.

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Ms. Moore’s First Internal Discrimination Charge

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Ms. Moore submitted to CDCR a November 27, 2007 discrimination complaint (“November 27

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charge”)5 to check boxes for color, race and retaliation as the basis of her complaint. The November 27

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charge references her preclusion of B Yard assignments “without notice” and that she was “constantly

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harrassed/slander [sic] put down to other state medical workers and supervisors on a daily basis while

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working on B medical.”

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Ms. Tucker’s Telephone Call To Ms. Moore’s Residence

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On November 13, 2007 in Ms. Afonso’s office, Ms. Moore asked Ms. Afonso why Ms. Moore

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was not scheduled for B Yard, and Ms. Afonso threw Ms. Tucker’s October 22, 2007 note (“October

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22 note”), which stated: “Please do not utilize contract LVN Moore on Facility B clinic any longer. See

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me to explain.” (Underlining in original.) Ms. Tucker orally explained to the scheduling nurse her intent

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to preclude Ms. Moore and Mr. Funch to work the B Yard during the same shift.

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In late November 2007, Ms. Tucker telephoned Ms. Moore’s residence (“residence call”) in

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response to Ms. Moore’s request for the October 22 note. Ms. Tucker explained to Ms. Moore that she

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would not give a copy of the October 22 note to Ms. Moore, whom Ms. Tucker characterizes as

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CDCR characterizes the November 27 charge as an internal Equal Employment Opportunity (“EEO”)

complaint.

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becoming “very upset” and hung up the telephone. Ms. Moore attributes the residence call to upset Ms.

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Moore.

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Ms. Moore’s Second Internal Discrimination Charge

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Ms. Moore submitted to CDCR a November 30, 2007 discrimination complaint (“November 30

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charge”)6 to check boxes for color, race and retaliation as the basis of her complaint. The November 30

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charge references the residence call, preclusion of B Yard assignments, and shift changes. The

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November 30 charge claims that Mr. Funch treated her like a slave and was a racist but does not attribute

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specific racist conduct to Mr. Funch.

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Non-Written Response To Ms. Moore’s Memorandum To Request Reassignment

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Ms. Afonso received Ms. Moore’s December 11, 2007 memorandum (“December 11

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memorandum”) to request reassignment to the second shift due to child care issues. Ms. Tucker directed

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Ms. Afonso not to respond to the December 11 memorandum (“non-response to December 11

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memorandum”) in writing because her status as a temporary registry worker did not merit a response.

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Ms. Moore attributes the absence of Ms. Afonso’s response to her December 11 memorandum

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as retaliation for submitting the November 27 charge and naming Ms. Afonso in it.

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January 4, 2007 Altercation With Ms. Afonso

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On January 4, 2007, Ms. Moore called Ms. Afonso from within VSPW to advise that Ms. Moore

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was working the second shift because she did not know to which shift she was assigned. Following Ms.

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Tucker’s directive, Ms. Afonso instructed Ms. Moore to go home and return for her scheduled third shift.

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Ms. Moore went to Ms. Afonso’s office and demanded a written response to her December 11

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memorandum. Ms. Afonso told Ms. Moore that Ms. Afonso would not provide a written response and

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attributes Ms. Moore to say in an aggressive tone: “I’m going to get you and Judy Tucker’s jobs.” Ms.

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Moore rejected Ms. Afonso’s directive to leave and advanced toward Ms. Afonso, who describes herself

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as in her 60s and substantially older and smaller than Ms. Moore. In her declaration, Ms. Afonso states:

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I felt threatened by Ms. Moore’s aggressive tone of voice and behavior, as well
as her refusal to leave. I was very frightened for my safety; I was really afraid for my life.
Ms. Moore did not leave my office until I picked up my telephone – an action that sends

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CDCR characterizes the November 30 charge as an internal Equal Employment Opportunity (“EEO”)

complaint.

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a message to correctional officers to respond to an emergency.

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Ms. Afonso reported the incident with Ms. Moore (“January 4 incident”) to Ms. Tucker, who

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arranged for review of the January 4 incident by the VSPW Threat Assessment Team (“threat team”),

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which comprises VSPW management and security. The threat team decided that the January 4 incident

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met criteria for workplace violence and to terminate Ms. Moore’s services at VSPW.

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SHC did not terminate the employment of Ms. Moore, who remained eligible for placement with
other SHC clients.

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Ms. Moore’s Claims

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Ms. Moore proceeds on her second amended complaint (“SAC”) which is disorganized,

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repetitive and difficult to discern. The SAC generally alleges that Mr. Funch racially harassed Ms.

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Moore, that CDCR did not adequately investigate or remediate the harassment after Ms. Moore reported

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it, and that for filing discrimination charges, Ms. Moore was subject to retaliation, including changed

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work assignments and inability to continue to work at VSPW.

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DISCUSSION

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Summary Judgment Standards

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CDCR contends that Ms. Moore is unable to substantiate the SAC’s Title VII hostile

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environment and retaliation claims to entitle CDCR to summary judgment. Ms. Moore’s papers offer

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nothing substantive to oppose summary judgment.

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F.R.Civ.P. 56(a) permits a party to seek summary judgment “identifying each claim or defense

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– or the part of each claim or defense – on which summary judgment is sought.” “A district court may

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dispose of a particular claim or defense by summary judgment when one of the parties is entitled to

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judgment as a matter of law on that claim or defense.” Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st

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Cir. 1999).

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Summary judgment is appropriate when the movant shows “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” F.R.Civ.P. 56(a); Matsushita

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Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv.,

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Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary

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judgment is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need
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for trial.” Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers

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v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

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On summary judgment, a court must decide whether there is a “genuine issue as to any material

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fact,” not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(a), (c); Covey

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v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress & Co.,

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398 U.S. 144, 157, 90 S.Ct. 1598 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467, 82

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S.Ct. 486 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.

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1984). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate

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inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for

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summary judgment or for a directed verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106

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S.Ct. 2505 (1986)

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The evidence of the party opposing summary judgment is to be believed and all reasonable

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inferences from the facts must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106

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S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The inquiry is “whether the evidence presents

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a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must

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prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505.

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“[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the

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court that there is no genuine issue of material fact.” Nissan Fire & Marine Ins. Co. v. Fritz Companies,

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Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see High Tech Gays v. Defense Indus. Sec. Clearance Office,

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895 F.2d 563, 574 (9th Cir. 1990) High Tech Gays, 895 F.2d at 574. “As to materiality, the substantive

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law will identify which facts are material. Only disputes over facts that might affect the outcome of the

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suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477

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U.S. at 248, 106 S.Ct. 2505.

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“If the nonmoving party fails to produce enough evidence to create a genuine issue of material

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fact, the moving party wins the motion for summary judgment.” Nissan Fire, 210 F.3d at 1103; see

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Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) (F.R.Civ.P. 56 “mandates the entry

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of summary judgment, after adequate time for discovery and upon motion, against a party who fails to

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make the showing sufficient to establish the existence of an element essential to that party’s case, and
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on which that party will bear the burden of proof at trial.”) “But if the nonmoving party produces

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enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.”

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Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “The amount of evidence

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necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (quoting

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First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592 (1968)). “The mere

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existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson,

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477 U.S. at 252, 106 S.Ct. 2505.

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As discussed below, CDCR eliminates factual issues and demonstrates that it is entitled to

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judgment as a matter of law. Ms. Moore’s opposition papers present mere conclusory statements with

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no facts showing the need for trial.

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Burden Shifting Framework

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CDCR argues that the record lacks sufficient facts for Title VII retaliation and hostile

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environment claims and that Ms. Moore is unable to satisfy the burden shifting framework to support

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such claims.

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For Title VII claims at issue here, the McDonnell Douglas7 burden-shifting framework applies

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in the absence of direct evidence to support Title VII claims. Metoyer v. Chassman, 504 F.3d 919, 931

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(9th Cir. 2007); Miller v. Fairchild Industries, Inc., 797 F.2d 727, 730-731 (9th Cir. 1986) (order and

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allocation of proof for retaliation claims follow familiar scheme announced in McDonnell Douglas).

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“At the first step of McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination

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or retaliation.” Metoyer, 504 F.3d at 931, n. 6. “If the plaintiff makes out her prima facie case of either

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discrimination or retaliation, the burden then ‘shifts to the defendant to articulate a legitimate,

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nondiscriminatory reason for its allegedly discriminatory [or retaliatory] conduct.’” Metoyer, 504 F.3d

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at 931, n. 6 (quoting Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003)).

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“Finally, at the third step of McDonnell Douglas, if the employer articulates a legitimate reason

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for its action, ‘the presumption of discrimination [or retaliation] drops out of the picture, and the plaintiff

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).

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may defeat summary judgment by satisfying the ususal standard of proof required’” under F.R.Civ.P.

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56(c)(1). Metoyer, 504 F.3d at 931 (quoting Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,

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1028 (9th Cir. 2006) (citations and internal quotation marks omitted)). If the employer carries its burden,

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plaintiff must have an opportunity to prove by a preponderance of evidence that the legitimate reasons

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offered by the employer were not its true reasons but were a pretext for discrimination. Texas Dept. of

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Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089 (1981); McDonnell Douglas, 411 U.S.

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at 804; 93 S.Ct. 1817; see Brundage v. Hahn, 57 Cal.App. 4th 228, 66 Cal.Rptr.2d 830, 835 (1997). “If

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a plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the employer's stated

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motive, summary judgment is inappropriate, because it is for the trier of fact to decide which story is to

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be believed.” Washington v. Garrett, 10 F.3d 1421, 1432-1433 (9th Cir. 1993). The plaintiff is required

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to produce “specific, substantial evidence of pretext” to avoid summary judgment. Collings v. Longview

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Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995).

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Despite the burden shifting, the ultimate burden of proof remains always with the plaintiff to

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show that the employer intentionally discriminated or retaliated against plaintiff. See Burdine, 450 U.S.

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at 253, 101 S.Ct. 1089; Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000); Rose v. Wells

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Fargo & Co., 902 F.2d 1417, 1420-1421 (9th Cir. 1990), cert. denied, 533 U.S. 950, 121 S.Ct. 2592

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(2001).

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Alternative Direct Evidence

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As an alternative to the McDonnell Douglas framework, a plaintiff responding to a summary

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judgment motion “may simply produce direct or circumstantial evidence demonstrating that a

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discriminatory [or retaliatory] reason more likely than not motivated [the employer].” McGinest v. GTE

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Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (citation omitted). The “McDonnell Douglas test is

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inapplicable where the plaintiff presents direct evidence of discrimination.” Trans World Airlines, Inc.

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v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613 (1985).

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“When the plaintiff offers direct evidence of discriminatory [or retaliatory] motive, a triable issue

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as to the actual motivation of the employer is created even if the evidence is not substantial. . . . it need

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be ‘very little.’” Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (quoting Lindahl

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v. Air France, 930 F.2d 1434, 1438 (9th Cir 1991)). “Direct evidence is evidence which, if believed,
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proves the fact [of discrimination or retaliation] without inference or presumption.” Goodwin, 150 F.3d

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at 1221 (citation omitted). “Direct evidence typically consists of clearly sexist, racist, or similarly

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discriminatory statements or actions by the employer.” Coghlan v. American Seafoods Co. LLC., 413

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F.3d 1090, 1095 (9th Cir. 2005).

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With these evidentiary standards in mind, this Court turns to CDCR’s challenges to Title VII
retaliation and hostile environment claims.

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Title VII Retaliatory Hostile Enviornment

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Title VII prohibits an employer “to discriminate against any of his employees . . . to discriminate

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against any individual . . . because he has opposed any practice made an unlawful employment practice

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by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner

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in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. section 2000e-3(a). An

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“employer may be liable for a retaliation-based hostile work environment.” Ray v. Henderson, 217 F.3d

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1234, 1245 (9th Cir. 2000). As such, an employer may be liable for a hostile environment arising from

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retaliation to the same extent as a hostile environment based on plaintiff’s protected class. CDCR

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explains that since a retaliatory hostile environment claim arises under Title VII’s anti-retaliation

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provision, 42 U.S.C. section 2000e-3, protected opposition or participatory activity must be based on

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an unlawful employment practice prohibited by Title VII. That is, the complained of harassment must

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be directed toward a plaintiff’s protected status as a Title VII whistleblower.

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Next, this Court will turn to the prima facie elements of retaliatory hostile environment.

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Prima Facie Case Of Retaliatory Hostile Environment

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To make out a prima facie case of retaliation, an employee must show that:

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He/she engaged in a protected activity;

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The employer subjected him/her to an adverse employment action; and

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3.

A causal link exists between the protected activity and the adverse action.

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Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065-1066 (9th Cir. 2003); Brooks v. City of San

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Mateo, 229 F.3d 917, 928 (9th Cir. 2000); Ray, 217 F.3d at 1240.

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Protected Activity
CDCR argues that Ms. Moore lacks a retaliatory hostile environment claim based on alleged
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misconduct arising prior to her November 27 charge. CDCR reasons that prior to the November 27

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charge, Ms. Moore had engaged in no protected activity to subject her to retaliation. CDCR continues

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that Mr. Funch’s alleged misconduct during October 16-22, 2007, after he returned to B Yard, is not

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retaliation for protected activity.

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CDCR is correct. The record reflects that Ms. Moore’s first meaningful protected activity was

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her November 27 charge. Prior to November 27, 2007, she had engaged in no protected activity to

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support a retaliatory hostile environment claim.

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Adverse Action

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“The antiretaliation provision protects an individual not from all retaliation, but from retaliation

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that produces an injury or harm.” Burlington Northern and Sante Fe Ry. v. White, 548 U.S. 53, 67, 126

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S.Ct. 2405 (2006). A plaintiff’s displeasure “by an employer’s act or omission does not elevate that act

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or omission to the level of a materially adverse employment action.” Blackie v. State of Maine, 75 F.3d

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716, 725 (1st Cir. 1996).

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“[M]aterial adversity . . . is important to separate significant from trivial harms.” White, 548 U.S.

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at 68, 126 S.Ct. 2405. “An employee's decision to report discriminatory behavior cannot immunize that

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employee from those petty slights or minor annoyances that often take place at work and that all

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employees experience.” White, 548 U.S. at 68, 126 S.Ct. 2405. “[O]nly non-trivial employment actions

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that would deter reasonable employees from complaining about Title VII violations will constitute

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actionable retaliation.” Brooks, 229 F.3d at 928. A retaliation plaintiff “must show that a reasonable

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employee would have found the challenged action materially adverse, which in this context means it well

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might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

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White, 548 U.S. at 68, 126 S.Ct. 2405 (citations and internal quotations omitted). “[A]n action is

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cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging

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in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.2000).

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The materiality standard “is tied to the challenged retaliatory act, not the underlying conduct that

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forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and

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the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out

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trivial conduct while effectively capturing those acts that are likely to dissuade employees from
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complaining or assisting in complaints about discrimination.” White, 548 F.3d at 69-70, 126 S.Ct. 2405.

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Moreover, the U.S. Supreme Court refers “to reactions of a reasonable employee because we believe that

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the provision's standard for judging harm must be objective. An objective standard is judicially

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administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to

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determine a plaintiff's unusual subjective feelings.” White, 548 F.3d at 69-70, 126 S.Ct. 2405.

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CDCR argues that Ms. Moore is unable to establish the adverse employment action element

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given the temporary relief of her nursing registry and floater status to permit CDCR to move Ms. Moore

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from Yard to Yard and shift to shift. CDCR continues that the residence call was not objectively an

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adverse action given that the residence call’s purpose was for Ms. Tucker to respond to Ms. Moore’s

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request for the October 22 note. CDCR contends that the non-response to the December 11

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memorandum is not adverse action in that CDCR was not obligated to provide a written response and

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Ms. Moore lacked an objectively reasonable expectation for a written response given her status as a

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registry nurse employed by SHC, not CDCR. Lastly, CDCR notes that its decision to terminate use of

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Ms. Moore’s services at VSPW was not adverse action in the absence of Ms. Moore’s employment

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relationship with CDCR and her continuing employment with SHC.

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CDCR is correct. The record creates no inferences that Ms. Moore suffered an adverse

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employment action to retaliate against her protected activity. Ms. Moore’s status was to provide

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temporary relief nursing as CDCR deemed appropriate. Under the circumstances, none of the faults

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which Ms. Moore attributes to CDCR constitutes an adverse action.

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Causal Nexus – Proximity

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To support an inference of retaliatory motive, the adverse action must have occurred “fairly soon

22

after the employee's protected expression.” Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th

23

Cir.2000). “That an employer's actions were caused by an employee's engagement in protected activities

24

may be inferred from ‘proximity in time between the protected action and the allegedly retaliatory

25

employment decision.’” Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.2000) (quoting Yartzoff v.

26

Thomas, 809 F.2d 1371, 1371 (9th Cir.1987)). In addition, the plaintiff must make some showing

27

sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged

28

in protected activity. Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1197 (9th Cir.
12

1

2003).

2

CDCR points to the absence of Ms. Moore’s protected activity and Ms. Tucker’s knowledge of

3

protected activity prior to the reassignment off B Yard. CDCR further points to the absence of Ms.

4

Moore’s protected activity prior to the shift reassignment and Ms. Afonso’s retaliatory animus as Ms.

5

Afonso had become the Scheduling Nurse just prior to the shift reassignment and lacked a reason to

6

retaliate against Ms. Moore. Ms. Moore’s opposition papers reflect the absence of Ms. Afonso’s

7

retaliatory animus by noting that “Afonso took it upon herself to personally place the plaintiff wher [sic]

8

she wanted her . . . Plaintiff ask [sic] Afonso why the sudden change, Afonso would blame others.”

9

CDCR notes that no facts support a causal nexus as to the residence call as Ms. Tucker was not

10

named in the November 27 charge and lacks a retaliatory motive in that Ms. Tucker made the residence

11

call responded to Ms. Moore’s request for a written response to Ms. Moore’s December 11

12

memorandum.

13
14

The record lacks facts of a causal nexus between Ms. Moore’s limited protected activity and
adverse action, of which the record reveals none. The causal nexus element is unsubstantiated.

15
16
17

Retaliatory Hostile Environment – CDCR’s Legitimate Reason
CDCR notes that even if Ms. Moore were able to establish a retaliatory hostile environment
prima facie case, CDCR has established legitimate grounds for its handling of Ms. Moore.

18

If plaintiff establishes a prima facie case, the burden shifts to the employer “to articulate some

19

legitimate, nondiscriminatory reason” for adverse employment action. McDonnell Douglas Corp., 411

20

U.S. at 802, 93 S.Ct. 1817; Burdine, 450 U.S. at 252-253, 101 S.Ct. 1089; Coleman, 232 F.3d at 1281;

21

Guz v. Bechtel Nat’, Inc., 24 Cal.4th 317, 355-356, 100 Cal.Rptr. 352, 379 (2000);8 Brundage, 57

22

Cal.App.4th at 236, 66 Cal.Rptr.2d at 835. A reason is “legitimate” if it is “facially unrelated to

23

prohibited bias, and which if true, would thus preclude a finding of discrimination.” Guz, 24 Cal.4th

24

at 358, 100 Cal.Rptr.2d 352.

25

“The defendant's burden at this stage is one of production, not persuasion. The court may not

26
27
28

8

Federal and California courts rely on federal interpretations of Title VII to interpret analogous FEHA
provisions which prohibit unlawful discrimination. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9 th Cir. 1996);
Clark v. Claremont Univ. Ctr. & Graduate Sch., 6 Cal.App.4th 639, 662, 8 Cal.Rptr.2d 151 (1992).

13

1

make a credibility assessment.” Njenga v. San Mateo County Superintendent of Schools, 2010 WL

2

1261493, at *14 (N.D. Cal. 2010) (citing see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

3

142, 120 S.Ct. 2097 (2000)). “The defendant need not persuade the court that it was actually motivated

4

by the proffered reasons.” Burdine, 450 U.S. 254, 101 S.Ct. 1089.

5

CDCR argues that Ms. Tucker legitimately reassigned Ms. Moore off B Yard because of Ms.

6

Moore’s personality conflict with Mr. Funch, the absence of a known racial harassment claim, and Ms.

7

Moore’s status as a temporary registry nurse compared to Mr. Funch’s civil service status. CDCR

8

contends that Ms. Afonso legitimately switched Ms. Moore to the third shift to address a shortage of

9

experienced nurses on the third shift and adequate staffing on the second shift. CDCR notes that Ms.

10

Tucker legitimately made the residence call to respond to Ms. Moore’s request to a written response to

11

her December 11 memorandum. CDCR continues that non-response to Ms. Moore’s December 11

12

memorandum was a legitimate means to address a temporary registry worker. CDCR concludes that it

13

legitimately discontinued using Ms. Moore given the January 4 incident and threat team’s assessment

14

of the January 4 incident.

15

The record raises not doubts as to the legitimacy of CDCR’s actions and responses to Ms. Moore,

16

who manifested unrealistic expectations and demands. Under the circumstances and Ms. Moore’s

17

temporary relief status, this Court is not in a position to question the legitimacy of CDCR’s handling of

18

Ms. Moore.

19
20
21

Retaliatory Hostile Environment – Pretext
CDCR argues that no facts support that CDCR’s legitimate reasons for its decisions were a
pretext for retaliation.

22

“If the employer has met its burden by showing a legitimate reason for its conduct, the employee

23

must demonstrate a triable issue by producing substantial evidence that the employer's stated reasons

24

were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a

25

reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other

26

unlawful action.” Cucuzza v. City of Santa Clara, 104 Cal.App.4th 1031, 1038, 128 Cal.Rptr.2d 660

27

(2002). “If the defendant offers admissible evidence of a legitimate, nondiscriminatory reason for the

28

claimed adverse action, the McDonnell Douglas framework and its presumption of discrimination
14

1

disappear, and the plaintiff is left to prove by a preponderance of the evidence that the reasons offered

2

by the defendant are merely a pretext for discrimination.” Njenga, 2010 WL 1261493, at *14 (citing

3

Reeves, 530 U.S. 133, 143, 120 S.Ct. 2097 (2000)).

4

The “critical” issue at the pretext stage is whether the plaintiff produces “sufficient evidence to

5

raise a triable issue of fact as to whether the reason proffered by [employer] . . . was a pretext for

6

unlawful retaliation or discrimination. Bergene v. Salt River Project Agr. Imp. and Power Dist., 272

7

F.3d 1136, 1141 (9th Cir. 2001); see Manatt v. Bank of America, N.A., 339 F.3d 792, 801 (9th Cir. 2003)

8

(“Because [plaintiff] failed to introduce any direct or specific and substantial circumstantial evidence

9

of pretext, summary judgment for the [defendant] must be affirmed.”); Steckl v. Motorola, Inc., 703 F.2d

10

392, 393 (9th Cir. 1983) (failure to “produce any specific, substantial evidence of pretext” support

11

summary judgment for employer); Brundage, 57 Cal.App.4th at 236, 66 Cal.Rptr.2d at 835.

12

“In response to the defendant's offer of nondiscriminatory reasons, the plaintiff must produce

13

‘specific, substantial evidence of pretext.’” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994)

14

(quoting Steckl, 703 F.2d at 393). In other words, the plaintiff “must tender a genuine issue of material

15

fact as to pretext in order to avoid summary judgment.” Steckl, 703 F.2d at 393. A “plaintiff cannot

16

create a genuine issue of pretext to survive a motion for summary judgment by relying solely on

17

unsupported speculations and allegations of discriminatory intent.” Crawford v. MCI Worldcom

18

Communications, Inc., 167 F.Supp.2d 1128, 1135 (S.D. Cal. 2001); see Horn v. Cushman & Wakefield

19

Western, Inc., 72 Cal.App.4th 798, 85 Cal.Rptr.2d 459 (1999) (“conflict of evidence . . . not created by

20

speculation or conjecture”).

21

Moreover, legitimate, nondiscriminatory reasons “need not necessarily have been wise or correct”

22

but must be “facially unrelated to prohibited bias.” Guz, 24 Cal.4th at 358, 100 Cal.Rptr.2d 352 (2000);

23

see Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997) (proffered reasons, if

24

“nondiscriminatory on their face” and “honestly believed” by employer, will suffice even if “foolish or

25

trivial or baseless”).

26

CDCR points to an absence of evidence to support pretext. In her deposition, Ms. Moore

27

admitted that she was unaware of any reason why Ms. Tucker was angry with Ms. Moore to result in her

28

reassignment off B Yard. Ms. Moore speculated that Ms. Afonso assigned her the third shift because
15

1

Ms. Moore refused Ms. Afonso’s request to put an inmate on the telephone. The residence call

2

responded to Ms. Moore’s demand for a written response to her December 11 memorandum. CDCR’s

3

position was that a temporary relief worker, such as Ms. Moore, was not entitled to a written response.

4

CDCR discontinued Ms. Moore’s services due to the January 4 incident, during which Ms. Moore

5

refused to leave VSPW as instructed and threatened Ms. Afonso to require threat team action.

6
7

CDCR is correct that the record raises no inference of pretext for a retaliatory hostile
environment. SAC claims based on a retaliatory hostile environment claim fail.

8
9

Title VII Racially Hostile Environment
CDCR challenges a SAC claim based on a racially hostile work environment.

10

Title VII prohibits an employer “to fail or refuse to hire or to discharge any individual, or

11

otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or

12

privileges of employment, because of such individual's race, color . . .” 42 U.S.C. § 2000e-2(a)(1).

13

Prima Facie Case

14

To establish a prima facie hostile work environment claim under Title VII, a plaintiff “must raise

15

a triable issue of fact as to whether (1) she was ‘subjected to verbal or physical conduct’ because of her

16

race, (2) ‘the conduct was unwelcome,’ and (3) ‘the conduct was sufficiently severe or pervasive to alter

17

the conditions of [plaintiff's] employment and create an abusive work environment.’” Manatt v. Bank

18

of America, NA, 339 F.3d 792, 798 (9th Cir. 2003) (quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817

19

(9th Cir.2002)).

20

Severe And Pervasive Harassment

21

Not all workplace conduct which may be described as harassment affects a term, condition, or

22

privilege of employment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399 (1986)

23

(addressing sexual harassment claims under Title VII); Aguilar v. Avis Rent A Car System, Inc., 21

24

Cal.4th 121, 129-130, 87 Cal.Rptr.2d 132, 138 (1999), cert. denied, 529 U.S. 1138, 120 S.Ct. 2029

25

(2000). For harassment to be actionable, it must be sufficiently severe and pervasive “to alter the

26

conditions of [the victim’s] employment and create an abusive working environment.” Meritor Savings,

27

477 U.S. at 67, 106 S.Ct. 2399 (citation omitted); Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d

28

590, 608, 262 Cal.Rptr. 842 (1989). “[H]arassment consists of conduct outside the scope of necessary
16

1

job performance, conduct presumably engaged in for personal gratification, because of meanness or

2

bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management

3

of the employer's business or performance of the supervisory employee's job.” Reno v. Baird, 18 Cal.4th

4

640, 646-647, 76 Cal.Rptr.2d 499 (1998).

5

“The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable

6

employee’s work performance and would have seriously affected the psychological well-being of a

7

reasonable employee and that she was actually offended.” Fisher, 214 Cal.App.3d at 609-610, 262

8

Cal.Rptr. 842. If the victim does not subjectively perceive the environment to be abusive, the conduct

9

has not actually altered the conditions of the victim’s employment, and there is no actionable harassment.

10

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-371 (1993).

11

“Harassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show

12

a concerted pattern of harassment of a repeated, routine or a generalized nature.” Fisher, 214

13

Cal.App.3d at 610, 262 Cal.Rptr. 842. A plaintiff must prove more than a few isolated incidents of

14

racial enmity. Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1983), cert. denied, 466 U.S.

15

972, 104 S.Ct. 2347 (1984); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2nd Cir. 1986). “[S]imple

16

teasing . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to

17

discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton,

18

524 U.S. 775, 778, 118 S.Ct. 2275 (1998). “When the workplace is permeated with discriminatory

19

intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the

20

victim's employment and create an abusive working environment, the law is violated.” Kelly-Zurian v.

21

Wohl Shoe Co., 22 Cal.App.4th 397, 409, 27 Cal.Rptr.2d 457 (1994) (internal quotations and citations

22

omitted).

23

The Ninth Circuit uses “a totality of the circumstances test to determine whether a plaintiff’s

24

allegations make out a colorable claim of hostile work environment.” Brooks v. City of San Mateo, 229

25

F.3d 917, 923 (9th Cir. 2000). Factors considered include frequency, severity and level of interference

26

with work performance and whether discriminatory conduct is physically threatening or humiliating or

27

a mere offensive utterance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-788, 118 S.Ct. 2275

28

(1998); Brooks, 229 F.3d at 924 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367); Lappin v. Laidlaw
17

1

Transit, Inc., 179 F.Supp.2d 1111 (N.D. Cal. 2001).

2

The Ninth Circuit applies a “reasonableness” approach to employer remedies to stop harassment:

3

We too believe that remedies should be “reasonably calculated to end the harassment.”
Katz, 709 F.2d at 256. An employer's remedy should persuade individual harassers to
discontinue unlawful conduct. We do not think that all harassment warrants dismissal,
Barrett, 726 F.2d at 427; rather, remedies should be “assessed proportionately to the
seriousness of the offense.” Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309
(5th Cir.1987). Employers should impose sufficient penalties to assure a workplace free
from sexual [or racial] harassment. In essence, then, we think that the reasonableness of
an employer's remedy will depend on its ability to stop harassment by the person who
engaged in harassment. In evaluating the adequacy of the remedy, the court may also
take into account the remedy's ability to persuade potential harassers to refrain from
unlawful conduct.

4
5
6
7
8
9

Ellison, 924 F.2d 872, 882 (9th Cir. 1991).

10

CDCR faults the lack of evidence to support a racially hostile work environment. CDCR notes

11

the absence of evidence that the alarm incident was racially motivated. CDCR points to the record that

12

Mr. Funch was overall rude and disrespectful despite the race or color of coworkers. CDCR relies on

13

Ms. Moore’s deposition testimony of Mr. Funch’s ulterior motive to harass Ms. Moore in that she

14

reported her suspicion that he stole medication. CDCR further challenges the severity of a few, sporadic

15

and mildly racially insensitive jokes and remarks which Ms. Moore attributes to Mr. Funch.

16

The record lacks facts to raise factual issues as to a concerted pattern of harassment of a repeated,

17

routine or a generalized nature. The record reveals that Mr. Funch was difficult and made sporadic

18

racially insensitive comments. Nothing in the record suggests physically threatening or humiliating

19

conduct toward Ms. Moore. No evidence is apparent that a racially hostile environment changed Ms.

20

Moore’s terms and conditions of employment, especially given that she continued working at VSPW

21

after the shift reassignment and raised no further complaints about race.

22
23
24

Apparent F.R.Civ.P. 54(d) Request
Ms. Moore appears to request a delay to rule on summary judgment motion until CDCR provides
her access to Mr. Funch and Mr. Mangram or their declarations.

25

F.R.Civ.P. 54(d) permits delay on a summary judgment ruling:

26

If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:

27
(1) defer considering the motion or deny it;
28
18

1

(2) allow time to obtain affidavits or declarations or to take discovery; or

2

(3) issue any other appropriate order.

3

Nonmovants seeking to continue a summary judgment ruling “must show (1) that they have set

4

forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts

5

sought exist, and (3) that these sought-after facts are ‘essential’ to resist the summary judgment motion.”

6

State of California v. Campbell, 138 F.3d 772, 779 (9th Cir.), cert. denied, 525 U.S. 822, 119 S.Ct. 64

7

(1998). In seeking F.R.Civ.P. 56(d) relief, a nonmovant “must make clear what information is sought

8

and how it would preclude summary judgment.” Garrett v. City and County of San Francisco, 818 F.2d

9

1515, 1518 (9th Cir.1987). “The burden is on the party seeking to conduct additional discovery to put

10

forth sufficient facts to show that the evidence sought exists.” Volk v. D.A. Davidson & Co., 816 F.2d

11

1406, 1416 (9th Cir. 1987).

12

Ms. Moore offers no affidavit or declaration to satisfy F.R.Civ.P. 56(d). Ms. Moore appears to

13

take the position that CDCR must provide her evidence to oppose summary judgment. Ms. Moore fails

14

to specify facts she hopes to elicit, the existence of such facts, and their necessity to resist summary

15

judgment, especially considering her ample opportunity to conduct discovery and failure to explain why

16

she was unable to locate evidence to oppose summary judgment. Ms. Moore is entitled to no delay on

17

summary judgment.

18

CONCLUSION AND ORDER

19

For the reasons discussed above, this Court:

20

1.

GRANTS CDCR summary judgment;

21

2.

DIRECTS the clerk to enter judgment in favor of defendant California Department of

22

Corrections and Rehabilitation and against plaintiff Candy Q. Moore and to close this

23

action; and

24

3.

25

IT IS SO ORDERED.

26

Dated:
66h44d

VACATES the December 4, 2012 pretrial conference and the January 29, 2012 trial.

October 23, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

27
28
19