McNamee v. Roman Catholic Diocese of Sacramento et al

Filing 62

MEMORANDUM and ORDER signed by Chief Judge Morrison C. England, Jr. on 3/27/2015 DENYING defendants' 40 41 Motions for Summary Judgment. (Marciel, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KOLLEEN MCNAMEE,

12
13
14
15
16
17
18

No. 2:12-cv-03101-MCE-AC

Plaintiff,
v.

MEMORANDUM AND ORDER

THE ROMAN CATHOLIC DIOCESE
OF SACRAMENTO, ST. FRANCIS
HIGH SCHOOL, MARION BISHOP,
PATRICK O’NEILL, ANN MARIE
FAIRES, DOES 1 through 20,
inclusive,
Defendants.

19
20

Through the present employment discrimination lawsuit, Plaintiff Kolleen

21

McNamee (“Plaintiff”) seeks to recover damages from Defendants Roman Catholic

22

Diocese of Sacramento (“Diocese”), St. Francis High School (“St. Francis”), Marion

23

Bishop (“Bishop”), Patrick O’Neill (“O’Neill”), and Ann Marie Faires (“Faires”) (collectively

24

“Defendants”). ECF No. 24. In her First Amended Complaint (“FAC”), Plaintiff asserts

25

two claims against Defendants Diocese and St. Francis alone: (1) Title VII retaliation;

26

and (2) gender discrimination. Plaintiff asserts an additional claim for defamation against

27

all Defendants. Presently before the Court are Defendants’ motions for summary

28

judgment pursuant to Federal Rule of Civil Procedure 56, or in the alternative, for partial
1

1

summary judgment. ECF Nos. 40-41. For the following reasons, both motions are

2

DENIED.1

3
4

BACKGROUND

5
6

Plaintiff worked as athletic director of St. Francis from 2001 until her employment

7

was terminated on August 3, 2012. Pl.’s Resp. to Def. Diocese’s Statement of

8

Undisputed Facts (“SUF”), ECF No. 55-1, at ¶ 1, 38. St. Francis is an all-girls Catholic

9

high school that, at all times relevant to this action, was owned and operated by the

10

Diocese. SUF ¶ 2. In 2004, Plaintiff was part of a panel that hired Vic Pitton (“Pitton”) as

11

head coach of the St. Francis varsity basketball team. Id. at ¶¶ 7, 8. Pitton had

12

previously been terminated by a prior St. Francis principal for alleged unsportsmanlike

13

conduct. Id. at ¶ 89. Plaintiff supervised Pitton as part of her role as athletic director. Id.

14

at ¶ 7. This action arises from Plaintiff’s claims she was retaliated and discriminated

15

against in connection with her subsequent attempts to discipline and terminate Pitton

16

from his coaching position. She further alleges that her colleagues made defamatory

17

statements about her abilities as athletic director and her relationships with St. Francis

18

staff.

19

Starting in early 2009, Plaintiff noted deficiencies in Pitton’s performance and

20

determined that he should be terminated. SUF ¶ 10. Plaintiff wrote a memorandum

21

detailing her concerns about Pitton and expressing her belief that he should not return

22

as a basketball coach. Id. at ¶ 11. She sent the memorandum to her supervisors at the

23

time, Principal Andrea Agos (“Agos”) and Assistant Principal Trisha Uhrhammer

24

(“Uhrhammer”). Id. at ¶ 11. Plaintiff alleges that Agos and Uhrhammer agreed with her

25

proposed course of action. Id. at ¶ 10. According to Plaintiff, Agos tried to convince

26

Pitton to resign, but when he would not, Agos, Uhrhammer, and Plaintiff decided

27
1

28

Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefing. E.D. Cal. Local Rule 230(g).
2
In the SUF, Defendants allege, and Plaintiff does not dispute, that Plaintiff was presented with
2

1

together to put him on probation. Id. at ¶ 12. Defendants, on the other hand, allege that

2

Plaintiff acted alone in taking steps to put Pitton on probation. Id. at ¶ 13. Regardless,

3

according to Defendants, administrators monitored Pitton at every basketball game

4

during the 2009-2010 season, and, at the end of the season, Pitton received passing

5

marks on his evaluation from all of the administrators, including Plaintiff’s assistant

6

athletic director. Id. at ¶¶ 15, 16.

7

Then, on September 17, 2010, Plaintiff submitted a complaint to her then

8

supervisors, President Bishop, Principal O’Neill, and Assistant Principal Faires (who had

9

succeeded Uhrhammer), alleging that she had been subjected to workplace bullying,

10

defamation, and a hostile work environment, and that she was not receiving “sufficient

11

support” from her supervisors in addressing and/or correcting this alleged behavior.

12

SUF ¶ 20; McNamee Sept. 17, 2010 Letter, Ex. 20, ECF No. 51, at 35-41. Specifically,

13

Plaintiff states that she had experienced insubordination and harassment from Pitton

14

and other male basketball coaching staff. ECF No. 51 at 38. Plaintiff goes on to allege

15

that Pitton’s “actions, reactions and course of conduct show a pattern of behavior over a

16

number of years that have created a hostile work environment for her” and that she

17

failed to receive support from St. Francis administration. Id.

18

In the meantime, Pitton continued as head coach, and at the end of the 2010-

19

2011 season, Plaintiff claims she continued to find deficiencies with his conduct and job

20

performance. At O’Neill’s request, Plaintiff prepared a document specifically identifying

21

how Plaintiff believed Pitton had failed to comply with the “Victory with Honor” code of

22

St. Francis. SUF ¶¶ 23-24. From Plaintiff’s account, the administrators indicated to her

23

that they agreed with her assessment of Pitton’s performance and that he would not be

24

rehired for the following season. Diocese Defs.’ Resp. to Pl.’s Disputed Facts

25

(“DF Diocese”), ECF No. 55-1, at ¶ 100. However, on May 26, 2011,2 while Plaintiff was

26
2

27
28

In the SUF, Defendants allege, and Plaintiff does not dispute, that Plaintiff was presented with
the restructure plan on March 26, 2011. SUF ¶ 25. However, the Court recognizes that this is an
inadvertent mistake by both parties, since multiple documents refer to “May” 26, 2011, as the date Plaintiff
was notified of the restructure plan. ECF No. 51, Exs. 30, 31, at 45, 48-49.

3

1

on maternity leave, the administration announced that Pitton would continue in his

2

position as coach, and that he and the basketball program would now report to Assistant

3

Principal Ivan Hrga, who had no experience in athletics, instead of to Plaintiff or to

4

Plaintiff’s direct supervisor (who was also female). Id. at ¶ 25; Individual Defs.’ Resp. to

5

Pl.’s Disputed Facts (“DF Individuals”), ECF No. 54-1, at ¶ 75.

6

On June 9, 2011, Plaintiff sent a letter to the superintendent of Catholic Schools

7

and the chancellor for the Diocese expressing her concerns with the restructuring plan

8

and with Pitton. SUF at ¶ 26. She indicated that she was concerned that Pitton had

9

been retained at St. Francis despite a prior decision not to rehire him, and that she had

10

not been provided with an explanation of why they decided to retain him. McNamee

11

June 9, 2011 Letter, Ex. 31, ECF No. 51, at 48-49. Plaintiff also stated that Pitton had

12

bullied her and referenced the formal complaint letter she sent Bishop, O’Neill, and

13

Faires on September 17, 2010, detailing this alleged mistreatment. Id. at 50. Based on

14

the record before the Court, these upper level St. Francis administrators never met with

15

Plaintiff to discuss her concerns with the alleged harassment, the restructuring plan, or

16

her supervisors’ failure to correct Pitton’s behavior.

17

Plaintiff contends that her concerns about retaliation grew in the spring of 2012,

18

when she received a written warning from Faires regarding two incidents: (1) her failure

19

to let a parent into the male coaches’ room to obtain water and Gatorade; and (2) her

20

failure to have an injured basketball player’s hand taped. McNamee Decl., Ex. K, ECF

21

No. 49, at ¶ 43. After receiving this warning, Plaintiff avers that she complained of

22

retaliatory and discriminatory treatment to O’Neill, but she received no response.

23

DF Diocese ¶ 112.

24

On July 1, 2012, Brown succeeded Bishop as the President of St. Francis. Over

25

the month of July, Brown met several times with Plaintiff to discuss her workplace

26

complaints. SUF ¶ 32. Plaintiff alleges that at a meeting on July 3, 2012, she expressed

27

concern to Brown with the discrimination and retaliation at St. Francis in hopes that

28

corrective action would be taken. Id. Additionally, at these meetings, Defendants allege
4

1

that Plaintiff and Brown discussed Plaintiff’s voluntary resignation. Plaintiff, on the other

2

hand, claims only that Brown suggested she leave St. Francis for a short period of time.

3

Id. at ¶ 34. It is undisputed that on August 3, 2012, Brown terminated Plaintiff’s

4

employment. Id. at ¶ 38.

5

After a national search to fill the athletic director position, a pool of 18 applicants

6

was selected and interviewed by a search committee that had been created and

7

appointed by O’Neill. SUF at ¶ 41. From the 18 applicants, the field of candidates was

8

narrowed to two potential candidates: one male and one female. Id. at ¶ 42. The

9

position was ultimately offered to the male candidate, Mark McGreevy. Id. at ¶ 44.

10

Unbeknownst to Plaintiff, during this time, her colleagues Bishop, O’Neill and

11

Faires purportedly made several defamatory statements about her performance as

12

athletic director as well.3 First, on June 16, 2011, Bishop and O’Neill sent a letter to the

13

superintendent of Catholic Schools and the chancellor for the Diocese containing the

14

following statements about Plaintiff: “McNamee’s letter4 contains many inaccuracies”;

15

she “continues to be difficult to manage”; she is “divisive”; she “does not follow through”;

16

she has “difficult relationships with parents”; and “voices a lack of support for her

17

immediate supervisor and administration in general.” Pl.’s Reply to Individual Defs.’

18

Statement of Undisputed Facts (“SUF Individuals”), ECF No. 54-1, at ¶ 16. Second, on

19

September 20, 2011, Faires wrote an “Incident Report” with the following comments

20

about Plaintiff: her “behavior was unprecedented and extremely unprofessional”; she “is

21
22
23
24
25
26

3

To the extent Plaintiff alleges new defamatory statements in her Opposition that are not included
in her FAC, those claims are disregarded because they are not properly before the Court. See Gilbert v.
Sykes, 147 Cal. App. 4th 13, 31 (2007) (“The general rule is that the words constituting an alleged libel
must be specifically identified, if not pleaded verbatim, in the complaint.”); see also Qualls v. Regents of
the Univ. of Cal., No. 1:13-cv-00649, 2013 WL 4822587, at *8 (E.D. Cal. 2013) (dismissing plaintiff’s
defamation claim because, among other things, he failed to identify the allegedly defamatory statements
with sufficient detail). Specifically, Plaintiff failed to identify the following communications in her FAC: the
new verbal statements from Faires; and the statements from the June 8, 2012 memorandum and the
July 30, 2012 memorandum. ECF No. 44 at 16-17.
4

27
28

Plaintiff contends, and Defendants do not dispute, that the referenced “letter” refers to
McNamee’s June 9, 2011, complaint letter to the superintendent of Catholic Schools and the chancellor of
the Diocese. ECF No. 44 at 3.

5

1

notorious for manipulating a situation until she gets what she wants despite who she

2

harasses along the way”; and the incident proved her “inability to be a team player, to

3

work collaborative, [sic] and to be professional.” Id. at ¶ 22. Finally, on June 13, 2012,

4

Faires wrote the following notes about what she claimed Plaintiff’s actions demonstrated:

5

“a lack of responsiveness to direction”; “unwillingness to take direction”; “a pattern of

6

unresponsiveness”; “an inability to separate personal feelings from business decisions”;

7

“an unwillingness to be held accountable”; “a lack of collegiality”; “insubordination”; and

8

“lack of director level work ethics.” Id. at ¶ 28.

9

Eventually, in October 2012, Plaintiff filed an administrative complaint with the

10

Employment Equal Employment Opportunity Council (“EEOC”). SUF ¶ 50. She filed the

11

present action after receiving a right-to-sue notice. Id. at ¶ 51. In November 2013, she

12

filed her operative First Amended Complaint (“FAC”). 5 ECF No. 24.

13
14

STANDARD

15
16

The Federal Rules of Civil Procedure provide for summary judgment when “the

17

pleadings, depositions, answers to interrogatories, and admissions on file, together with

18

affidavits, if any, show that there is no genuine issue as to any material fact and that the

19

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex

20

Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is

21

to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.

22

Rule 56 also allows a court to grant summary judgment on part of a claim or

23

defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may

24

move for summary judgment, identifying each claim or defense—or the part of each

25

claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v.

26

Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a

27
5

28

Defendants make numerous objections to Plaintiff’s evidence. ECF Nos. 54-3, 55-4. Because
the Court does not rely upon any of the objected evidence in this order, those objections are moot.

6

1

motion for partial summary judgment is the same as that which applies to a motion for

2

summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep't of Toxic

3

Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir.1998) (applying summary

4

judgment standard to motion for summary adjudication).

5

In a summary judgment motion, the moving party always bears the initial

6

responsibility of informing the court of the basis for the motion and identifying the

7

portions in the record “which it believes demonstrate the absence of a genuine issue of

8

material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial

9

responsibility, the burden then shifts to the opposing party to establish that a genuine

10

issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith

11

Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S.

12

253, 288–89 (1968).

13

In attempting to establish the existence or non-existence of a genuine factual

14

dispute, the party must support its assertion by “citing to particular parts of materials in

15

the record, including depositions, documents, electronically stored information,

16

affidavits[,] or declarations ... or other materials; or showing that the materials cited do

17

not establish the absence or presence of a genuine dispute, or that an adverse party

18

cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The

19

opposing party must demonstrate that the fact in contention is material, i.e., a fact that

20

might affect the outcome of the suit under the governing law. Anderson v. Liberty

21

Lobby, Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of

22

W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party

23

must also demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the

24

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

25

Anderson, 477 U.S. at 248. In other words, the judge needs to answer the preliminary

26

question before the evidence is left to the jury of “not whether there is literally no

27

evidence, but whether there is any upon which a jury could properly proceed to find a

28

verdict for the party producing it, upon whom the onus of proof is imposed.” Id. at 251
7

1

(quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). As the Supreme Court

2

explained, “[w]hen the moving party has carried its burden under Rule [56(a)], its

3

opponent must do more than simply show that there is some metaphysical doubt as to

4

the material facts.” Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as

5

a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

6

‘genuine issue for trial.’” Id.

7

In resolving a summary judgment motion, the evidence of the opposing party is to

8

be believed, and all reasonable inferences that may be drawn from the facts placed

9

before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at

10

255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's

11

obligation to produce a factual predicate from which the inference may be drawn.

12

Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff'd,

13

810 F.2d 898 (9th Cir. 1987).

14
15

ANALYSIS

16
17

A.

18

Plaintiff asserts a retaliation claim against Defendants St. Francis and Diocese

First Claim for Relief: Title VII - Retaliation

19

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. FAC ¶ 22-30.

20

To make out a prima facie case of retaliation, Plaintiff must show that: (1) she engaged

21

in a protected activity; (2) her employer subjected her to an adverse employment action;

22

and (3) a causal link exists between the protected activity and the adverse action. See

23

Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). In the

24

termination context, the employee must show “by a preponderance of the evidence that

25

engaging in the protected activity was one of the reasons for the firing and that but for

26

such activity the plaintiff would not have been fired.” Ruggles v. Cal. Polytechnic State

27

Univ., 797 F.2d 782, 785 n.4 (9th Cir. 1986) (quoting Kauffman v. Sidereal Corp., 695

28

F.2d 343, 345 (9th Cir. 1982)). Once a prima facie retaliation claim is established, the
8

1

burden shifts to Defendants to articulate a legitimate nondiscriminatory reason for the

2

decision. Steiner, 25 F.3d at 1464-65. If the Defendants articulate such a reason,

3

Plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext

4

for a discriminatory motive. Id. at 1465.

5

Defendants do not dispute that Plaintiff’s discharge would qualify as an adverse

6

employment action. Rather, they contend that she cannot show that she engaged in a

7

protected activity or that there is a causal link between the alleged protected activity and

8

her discharge. ECF No. 41-1 at 8-11. At this stage, the Court disagrees.

9

First, Plaintiff need only show that she engaged in some form of protected activity.

10

Protected activity is defined by statute as “oppos[ing] any practice made an unlawful

11

employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). However, the opposed

12

employment practice need not itself be unlawful, as long as the employee had a

13

reasonable belief that the practice violated Title VII. Under Title VII, it is unlawful for an

14

employer to discriminate against any individual based on their gender. Id. § 2000e–

15

2(a)(1). “[A] complaint by an employee that a supervisor has violated Title VII may

16

constitute protected activity for which the employer cannot lawfully retaliate.” E.E.O.C. v.

17

Go Daddy Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009) (citing Trent v. Valley Elec.

18

Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994).

19

Here, Plaintiff alleges that she complained about gender discrimination and

20

harassment on at least four separate occasions. In September 2010, Plaintiff claims that

21

she complained to the Diocese about St. Francis administrators failing to take corrective

22

action against harassment from male basketball coaches against her and others. Then,

23

in June 2011, Plaintiff claims that she complained to the superintendent and chancellor

24

about having the basketball program removed from her responsibilities, which she

25

perceived as gender discrimination. In the spring of 2012, Plaintiff complained to

26

Principal O’Neill that her supervisor Faires was discriminating against her by

27

reprimanding her unjustly. Finally, in July 2012, Plaintiff made the same complaints of

28

discriminatory treatment to Brown, the new St. Francis president. These allegations are
9

1
2

enough to meet her burden in showing that she engaged in protected activity.
Defendants nonetheless argue that the primary focus of Plaintiff’s complaints was

3

on Pitton, his staff, and parents of girls on the basketball team. ECF No. 41-1 at 13.

4

Defendants contend that since none of these individuals had supervisory responsibility

5

over Plaintiff, they could not unlawfully discriminate against her under Title VII. ECF

6

No. 41-1 at 14. Defendants misinterpret Plaintiff’s allegations. Each of the four alleged

7

complaints pertained to discriminatory treatment Plaintiff believed she was receiving

8

from her supervisors, and she alleges that the complaints were made to staff that had

9

oversight of those supervisors. Notwithstanding the fact that the underlying dispute

10

stemmed from Plaintiff’s interactions with her subordinates (the male basketball

11

coaches), the ultimate complaints related to her supervisors’ failure to prevent the

12

harassment, as well as their allegedly discriminatory response to Plaintiff’s complaints.

13

They therefore fall under the protection of Title VII.

14

Moreover, Plaintiff presents sufficient evidence for a jury to determine that she

15

had a reasonable belief that her supervisors’ conduct violated Title VII. From Plaintiff’s

16

account, she was subjected to discriminatory treatment at the hands of her supervisors

17

by way of their failure to take action against the harassment from the male basketball

18

coaches and by taking punitive measures against her for reporting that harassment.

19

Plaintiff then reported that discrimination to the supervisors in the chain of command at

20

St. Francis and specifically stated that she was subjected to discriminatory treatment by

21

her supervisors. The undisputed fact that Plaintiff’s supervisory duties over the

22

basketball program were taken away from her while she was on maternity leave only

23

bolsters the gender discrimination argument. In contrast, Defendants assert that her

24

complaints were about administrative and personnel concerns, rather than gender

25

discrimination. ECF 41-1 at 14. However, viewed in the light most favorable to Plaintiff,

26

there is enough evidence here for a jury to conclude that Plaintiff was reporting gender

27

discrimination and therefore participated in a protected activity.

28

Plaintiff must still show a causal link between her protected activity and the
10

1

adverse employment action ultimately taken against her. For purposes of a prima facie

2

case, in the absence of direct evidence, the causal link is frequently inferred from two

3

elements of circumstantial evidence: first, that the defendant knew of the plaintiff's

4

protected activity at the time the adverse action was taken, and second, that there was

5

closeness in time between the protected action and the allegedly retaliatory employment

6

decision. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (finding sufficient

7

proximity where the gap was less than three months); Miller v. Fairchild Indus., Inc., 797

8

F.2d 727, 731-32 (9th Cir. 1986) (proximity sufficient where less than two months

9

passed).

10

The record before the Court contains evidence that Brown was aware of Plaintiff’s

11

Title VII complaints, since Plaintiff states that she specifically related her complaint of

12

discriminatory treatment in a meeting with Brown on July 3, 2012. McNamee Decl.,

13

Ex. K, ECF No. 49, at ¶ 47. Only a month passed between that meeting with Brown on

14

July 3, 2012, and Plaintiff’s discharge on August 3, 2012. The close temporal proximity

15

and the evidence that Brown was aware of the protected activity are sufficient

16

circumstantial evidence to show a causal link between the protected activity and the

17

adverse action. Accordingly, Plaintiff sets forth sufficient evidence to establish a prima

18

facie case on this claim, and the burden shifts to the Defendants to articulate a

19

legitimate, nonretaliatory explanation for its decision. Steiner, 25 F.3d at 1464-65.

20

Defendants, on the other hand, claim that Brown terminated Plaintiff’s

21

employment because she determined that Plaintiff was “not the person that could lead

22

the athletic department consistent with Brown’s vision for the school.” SUF ¶ 37. They

23

claim that this constituted a legitimate ground for terminating Plaintiff. Assuming

24

arguendo that Defendants’ proffered reason is a sufficient legal explanation for Plaintiff’s

25

discharge, the burden shifts to Plaintiff to show that the reason is merely pretextual.

26

To show pretext, Plaintiff must point to evidence that the Defendants’

27

nonretaliatory explanation for her discharge is mere pretext to conceal a retaliatory

28

motive. Steiner, 25 F.3d at 1465. Here, citing her qualifications, work performance, and
11

1

skills, Plaintiff contends that it would not have made business sense to discharge her

2

without a discriminatory motive. ECF No. 48 at 15; DF Diocese ¶ 126. She further

3

states Brown failed to inform her of any particular performance deficiencies before her

4

discharge (aside from the 2012 warning), allegedly in violation of the St. Francis

5

discipline policy. DF Diocese ¶ 125. In contrast, Defendant claims that Plaintiff failed to

6

mention discrimination or harassment in multiple written complaints, memos, and notes

7

that she wrote during the time period in question. ECF No. 41-1 at 20-21. However,

8

Defendants’ argument overlooks documents written by Plaintiff where she specifically

9

states that she was being subjected to “harassment,” “bullying,” and “defamation,” and

10

where she further claims that the St. Francis administration was not providing her

11

“sufficient support” in countering this negative treatment. McNamee Sept. 17, 2010

12

Letter, Ex. 20, ECF No. 51, at 35-39; McNamee June 9, 2011 Letter, Ex. 31, ECF

13

No. 51, at 48-50. In addition, while Defendants claim that Plaintiff never directly

14

complained to Brown about discriminatory treatment, and only referenced workplace

15

concerns about Pitton and school administrators, this is directly in contrast to Plaintiff’s

16

assertion that she told Brown in July 2012 that she had experienced “discrimination and

17

retaliation” at St. Francis. ECF No. 41-1 at 22; McNamee Decl., Ex. K, ECF No. 49, at ¶

18

47. Based on this conflicting evidence, there is a genuine issue of material fact as to

19

whether Brown’s proffered reason for discharging Plaintiff is merely pretextual.

20

Accordingly, Defendant’s Motion for Summary Judgment for the Title VII retaliation claim

21

is DENIED.

22

B.

23

Similar to her retaliation claim, Plaintiff’s gender discrimination claim under Title

Second Claim for Relief: Title VII - Gender Discrimination

24

VII requires her to first establish a prima facie case of discrimination. McDonnell

25

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case, the

26

plaintiff must show that: (1) she belongs to a protected class; (2) she was qualified for

27

the position; (3) she was subject to an adverse employment action; and (4) similarly

28

situated individuals outside her protected class were treated more favorably. Chuang v.
12

1

Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000) (citing McDonnell

2

Douglas, 411 U.S. at 802). Once a plaintiff establishes such a prima facie case, “[t]he

3

burden then must shift to the employer to articulate some legitimate, nondiscriminatory

4

reason for the employee's rejection.” McDonnell Douglas, 411 U.S. at 802. If the

5

employer does so, the plaintiff must show that the articulated reason is pretextual.

6

Chuang, 225 F.3d at 1124. Pretext may be shown in one of two ways: “(1) indirectly, by

7

showing that the employer's proffered explanation is ‘unworthy of credence’ because it is

8

internally inconsistent or otherwise not believable, or (2) directly, by showing that

9

unlawful discrimination more likely motivated the employer.” Id. at 1127 (quoting Godwin

10

v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir. 1998)).

11

Defendants do not argue that Plaintiff fails to make a prima facie case of gender

12

discrimination. Rather, they claim that there is no evidence that Brown’s stated reason

13

for discharging Plaintiff is pretextual. Additionally, Defendants claim that there can be no

14

gender discrimination at St. Francis because it is an all-girls school with a majority of

15

female staff and a fairly-balanced division of female and male athletic department

16

personnel. ECF No. 55 at 11. The Court disagrees. Contrary to Defendants’

17

assertions, Plaintiff’s claim does not relate to the treatment of women as a whole at

18

St. Francis, but rather how she in particular was discriminated against as a female

19

athletic director. As such, the gender composition of the school staff does not preclude

20

Plaintiff’s discrimination claim.

21

In any event, Defendants contend that Brown terminated Plaintiff’s employment

22

because Plaintiff did not have an “adequate vision for the future of the athletic

23

department” and also contends that Brown was under the impression that Plaintiff

24

planned to voluntarily resign. Brown Decl., ECF No. 40-5, at ¶¶ 4-5. Plaintiff, on the

25

other hand, alleges that she presented Brown with ideas on how the athletic department

26

could grow in a positive direction, and claims she told Brown that she wanted to continue

27

in her role as athletic director. McNamee Decl. at ¶¶ 47-48. Plaintiff also avers that she

28

had an exemplary employment record (ECF No. 48 at 15; DF Diocese ¶ 126) and that
13

1

far from agreeing to resign, was instead “devastated” when she found out her job was

2

terminated. McNamee Decl. at ¶ 52. Based on this indirect evidence of pretext, a

3

reasonable jury could infer that Brown’s proffered reason was merely a pretext for a

4

discriminatory motive. See Munoz v. Mabus, 630 F.3d 856, 865 (9th Cir. 2010) (holding

5

that “specific and substantial” circumstantial evidence of a retaliatory or discriminatory

6

motive satisfies a plaintiff's burden of showing pretext). Accordingly, Defendants’

7

Motion for Summary Judgment is DENIED for Plaintiff’s gender discrimination claim.

8

C.

9

Plaintiff asserts a claim of defamation and alleges that the individual Defendants

Third Claim for Relief: Defamation

10

Bishop, O’Neill, and Faires made written or oral defamatory statements on at least three

11

different occasions. ECF No. 44 at 8-9. To succeed in her defamation claim under

12

California law, Plaintiff must establish the “intentional publication of a statement of fact

13

that is false, unprivileged, and has a natural tendency to injure or which causes special

14

damage.” Scott v. Solano Cnty. Health and Soc. Servs. Dep’t, 459 F. Supp. 2d 959, 973

15

(E.D. Cal. 2006) (quoting Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999)).

16

Publication means “communication to a third person who understands the defamatory

17

meaning of the statement and its application to the person to whom reference is made.”

18

Id.

19

Defendants make four arguments as to why Plaintiff’s claim must fail, and further

20

contend that one allegedly defamatory statement was never published. Additionally,

21

Defendants claim that Plaintiff cannot recover punitive damages as to her defamation

22

claim because there is not sufficient evidence that Defendants acted with malice. For

23

the following reasons, the Court disagrees.

24
25
26

1.

A jury could find that Defendants’ statements were not made in
the context of performance evaluations.

First, Defendants claim the allegedly defamatory statements were made in the

27

context of performance evaluations, and therefore cannot form the basis of a defamation

28

claim under California case law. ECF No. 40-1 at 9-11. In support of this proposition,
14

1

Defendants rely heavily on Jensen v. Hewlett-Packard Co., 14 Cal. App. 4th 958 (1993).

2

The Jensen court held that in the context of performance evaluations, defamation claims

3

are only actionable if the evaluations include false accusations of “criminal conduct, lack

4

of integrity, dishonesty, incompetence or reprehensible personal characteristics or

5

behavior.” Id. at 965. Here, Plaintiff contends that the statements were not made as

6

part of performance evaluations but, rather, are comments between St. Francis staff and

7

the Diocese regarding Plaintiff’s complaints of discrimination and retaliation. ECF No. 44

8

at 13. In Jensen, the court noted that “the primary recipient and beneficiary” of a

9

performance review “is the employee” herself, and that performance evaluations serve

10

as a “vehicle for informing the employee of what management expects.”

11

14 Cal. App. 4th at 964 (emphasis added). Here, unlike the facts in Jensen, it is

12

undisputed that Plaintiff’s supervisors never presented her with the allegedly defamatory

13

documents (SUF Individuals at ¶¶ 14-31), which undercuts Defendants’ argument that

14

the written and oral statements formed part of Plaintiff’s performance evaluation. As

15

such, Plaintiff’s defamation claim is not proper for summary judgment on that basis.

16
17
18

2.

A jury could find that Defendants’ statements are provably
false.

Next, Defendants argue that Defendants’ allegedly defamatory remarks are

19

statements of opinion which cannot be “provably false.” To be defamatory, a statement

20

must convey a false factual implication that is “provably false.” See Milkovich v. Lorain

21

Journal Co. 497 U.S. 1, 20, (1990). The “totality of the circumstances” test is applied in

22

determining whether a statement is a factual assertion, and the test takes into account

23

“the subject of the statements, the setting, and the format of the work.” Rodriguez v.

24

Panayiotou, 314 F.3d 979, 986 (9th Cir. 2002) (quoting Underwager v. Channel 9

25

Australia, 69 F.3d 361, 366 (9th Cir. 1995)). Additionally, the “court must place itself in

26

the position of the . . . reader, and determine the sense of meaning of the statement

27

according to its natural and popular construction and the natural and probable effect [it

28

would have] upon the mind of the average reader.” Id. (quoting Winter v. DC Comics,
15

1
2

121 Cal. Rptr. 2d 431, 437 (2002)) (internal quotations omitted).
In the employment context, statements pertaining to an employee’s incompetence

3

have been found to be “reasonably susceptible of a provably false meaning” when they

4

are “asserted as an ‘actual’ condition, a matter-of-fact.” Kahn v. Bower, 232 Cal. App. 3d

5

1599, 1609 (1991). In contrast, mere “speculation or rumination” on the existence of a

6

fact or condition do not have the requisite factual content. Id. (finding defendant’s

7

statement that she “wonder[ed]” about plaintiff’s hostility to children was mere opinion,

8

while direct statements about plaintiff’s incompetence in her job were capable of being

9

“provably false”).

10

Here, the statements at issue contend that Plaintiff was “divisive,”

11

“insubordinat[e],” “does not follow through,” fails to be “professional” and “a team player,”

12

and shows an “unwillingness to be held accountable.” ECF No. 44 at 3-4. These

13

statements go beyond mere “speculation or rumination” since they relate to behavior the

14

declarants contend to be true based on their direct experiences with Plaintiff. Further,

15

the statements are allegations made to Plaintiff’s superiors about her work performance

16

and relationships. In that context, the listener would have expected the information to be

17

factual since such statements about Plaintiff’s workplace behavior and capabilities could

18

affect her employer’s hiring and firing decisions. As in Kahn, the statements about

19

Plaintiff’s unsatisfactory work performance and relationships are reasonably susceptible

20

of a factual interpretation, and whether those assertions are “true or false” is a triable

21

issue of fact. 232 Cal. App. 3d at 1609.

22

Moreover, the cases cited by Defendants are factually inapposite to the present

23

matter. For example, to support their argument, Defendants cite Nygard, Inc. v. Timo

24

Uusi-Kertulla, 159 Cal. App. 4th 1027, 1052-1053 (2008). ECF No. 40-1 at 13. In

25

Nygard, the court held that defendant employee’s statements that he was forced to

26

“work around the clock” and was treated like a “slave” were merely rhetorical hyperbole

27

that did not amount to factual assertions. Id. Here, Defendants’ statements are readily

28

distinguishable from the exaggerated and hyperbolic assertions in Nygard. As stated
16

1

above, Defendants’ statements convey their observations of Plaintiff’s work, and, unlike

2

Nygard, the statements do not include assertions that could not possibly be true.

3

Accordingly, the statements may be understood as assertions of fact and a reasonable

4

jury could determine them to be false.

5
6
7

3.

A jury could find actual malice sufficient to overcome the
common interest privilege.

Third, Defendants contend that the allegedly defamatory communications are

8

privileged under the “common interest privilege” pursuant to section 47(c) of the

9

California Civil Code and that Plaintiff cannot show actual malice to overcome that

10

privilege. ECF No. 40-1 at 14-16. Plaintiff does not dispute that the communications

11

meet the prima facie case for the common interest privilege, but she argues that the

12

statements are rendered unprivileged because they were made with actual malice. ECF

13

No. 44 at 18. The Court finds there are triable issues of fact regarding malice.

14

Once the defendant has demonstrated that the allegedly defamatory

15

communication was made upon a privileged occasion, then the burden shifts to the

16

plaintiff to prove that the defendant made the statement with malice. Lundquist v.

17

Reusser, 7 Cal. 4th 1193, 1208 (1994). Malice in defamation cases means actual or

18

express malice, including a state of mind arising from “hatred or ill will towards the

19

plaintiff, or by a showing that the defendant lacked reasonable grounds for belief in the

20

truth of the publication and therefore acted in reckless disregard of the plaintiff's rights.”

21

Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1370 (2003) (quoting Sanborn

22

v. Chronicle Pub. Co., 18 Cal. 3d 406, 413 (1976)). Mere negligence is not enough to

23

constitute malice. Id. at 1371. “It is only when the negligence amounts to a reckless or

24

wanton disregard for the truth, so as to reasonably imply a willful disregard for or

25

avoidance of accuracy, that malice is shown.” Id. (quoting Roemer v. Retail Credit Co.,

26

3 Cal. App. 3d 368, 371–372 (1970).

27

Here, there is sufficient evidence that Defendants spoke with actual malice when

28

they made the statements concerning Plaintiff’s work performance and her relationships
17

1

with staff and parents. Viewed in the light most favorable to Plaintiff, the evidence

2

suggests that Defendants made these statements because they wanted to see Plaintiff

3

disciplined or fired for engaging in protected activity, or that they made the statements

4

at issue despite lacking reasonable grounds for believing they were true. Plaintiff

5

supports this interpretation of the evidence by pointing out that she was never notified of

6

any the alleged performance and behavioral issues made in the communications. ECF

7

No. 44 at 14.

8
9

In their Reply, Defendants do not dispute that they never informed Plaintiff of
these alleged performance deficiencies. Instead, they interpret the evidence as showing

10

that they attempted to act reasonably and charitably towards Plaintiff because of the

11

prior positive employee reviews she had been given. ECF No. 54 at 10. Defendants go

12

on to argue that the allegedly defamatory statements were made merely to convey

13

information about Plaintiff’s workplace conduct and performance. Id. at 11. In making

14

that argument, however, Defendants sidestep the issue of why Plaintiff was not provided

15

with a copy of the written communications, or why she was never informed of her alleged

16

work deficiencies if Defendants felt that her work behavior needed to be corrected.

17

Without any constructive purpose behind the communications, a jury could determine

18

that the statements were made with hatred or ill will toward Plaintiff in response to her

19

allegations of discrimination and retaliation. Given all of this evidence, the Court

20

concludes there is a question of fact with regard to whether Defendants acted with

21

malice.

22
23

4.

Workers’ Compensation Act

Defendants also maintain that Plaintiff’s defamation claim is barred in any event

24

by workers compensation exclusivity. ECF No. 40-1 at 16. The Workers Compensation

25

Act (“WCA”) provides that worker's compensation liability “in lieu of any other liability

26

whatsoever to any person . . . shall, without regard to negligence, exist against an

27

employer for any injury sustained by his or her employees arising out of and in the

28

course of the employment.” Cal. Lab. Code § 3600. The WCA is generally the
18

1

“exclusive” remedy for claims against co-employees, and the “sole and exclusive

2

remedy” for claims against employers. See Cal. Lab. Code §§ 3601-3602.

3

Citing Miklosy v. Regents of University of California, 44 Cal. 4th 876, 902 (2008),

4

Defendants contend that the WCA bars defamation claims arising out of and in the

5

course of employment. The Court disagrees. Miklosy held that the WCA was the

6

exclusive remedy for an intentional infliction of emotional distress claim based on

7

emotional injuries sustained during the course of employment; it does not address

8

whether the WCA precludes defamation claims. Id. (concluding that employee’s

9

emotional distress claim was preempted by the worker's compensation scheme).

10

Defendants also contend, however, that the individual Defendants are insulated from

11

Plaintiff’s defamation claims based on the California Supreme Court’s ruling in Cole v.

12

Fair Oaks Fire Protection Dist., 43 Cal. 3d 148, 160-61 (1987). Like Miklosy, Cole is

13

similarly inapposite to the present action since it also dealt with a claim for intentional

14

infliction of emotional distress rather than defamation. Id.

15

Contrary to Defendants’ contention, the California Supreme Court’s “opinions to

16

date and decisions of the Courts of Appeal all indicate that the Workers' Compensation

17

Act does not preclude a civil action for defamation against one's employer.” See

18

Operating Eng'rs Local 3 v. Johnson, 110 Cal. App. 4th 180, 186–87 (2003). In Vacanti

19

v. State Comp. Ins. Fund, the California Supreme Court observed that “courts have

20

exempted defamation claims from exclusivity because an injury to reputation does not

21

depend on a personal injury.” 24 Cal. 4th 800, 814 (2001). Federal courts applying

22

California law have reached the same conclusion. See Washington v. Cal. City

23

Correction Ctr., No. 10–CV–02031, 2011 WL 336461, at *6 (E.D. Cal. 2011) (“The WCA

24

does not bar Plaintiff's claim for defamation.”); Johnson v. Wells Fargo & Co., Inc., No.

25

CV 14-06708, 2014 WL 6475128, at *11 (C.D. Cal. 2014). Accordingly, Plaintiff’s

26

defamation claim is not barred by the WCA.

27
28

5.

A jury could find the Faires Letter was published.

Finally, Defendants argue that Plaintiff cannot show the “Incident Report” written
19

1

by Faires on September 20, 2011, was ever published. ECF No. 40-1 at 14.

2

“Publication, which may be written or oral, is defined as a communication to some third

3

person who understands both the defamatory meaning of the statement and its

4

application to the person to whom reference is made.” Ringler Assoc., Inc. v. Md. Cas.

5

Co., 80 Cal. App. 4th 1165, 1179 (2000); see also Restatement (2d) Torts, § 577. Here,

6

the letter in question was provided to Plaintiff during discovery, and she does not have

7

any direct evidence that Faires ever provided the document to Brown or another third

8

party. However, there is enough evidence in the record from which a reasonable jury

9

could infer that Faires either provided the document to Brown or orally communicated

10

the information to her. Brown stated in her deposition that she was “flooded with

11

information” and documents from people at the school after becoming President at St.

12

Francis. Brown Dep., Ex. B., ECF No. 49, at 187:11-19. Brown also states that Faires

13

provided her with input on Plaintiff’s work during several conversations in the month prior

14

to Plaintiff’s termination. Id. at 182:16-184:4;186:20-22. Faires herself states that she

15

was told by former President O’Neill to draft incident reports, like the September 20,

16

2011 report, to memorialize problematic situations. Faires Dep., Exh. F, ECF No. 49, at

17

259:1-10. Further, Faires acknowledges that she writes incident reports in order “to jog

18

[her] memory.” Id. at 311:21-312:2. The deposition testimony of Faires and Brown is

19

enough evidence for a reasonable jury to infer that Faires conveyed the information in

20

the September 20, 2011 incident report to Brown, either verbally or in written form,

21

during one of their several conversations. Accordingly, Defendants’ motion for summary

22

judgment is DENIED as to the defamation claim.

23
24

6.

Punitive Damages for Defamation Claim

Finally, Defendants move the Court for summary judgment on Plaintiff’s claim for

25

punitive damages, arguing that Plaintiff cannot show by clear and convincing evidence

26

that Defendants acted with malice. ECF No. 40-1 at 17. Pursuant to section 3294 of the

27

California Civil Code, Plaintiff can recover punitive damages in the defamation claim only

28

if “it is proven by clear and convincing evidence that the defendant[s] ha[ve] been guilty
20

1

of oppression, fraud, or malice.” “Determinations related to assessment of punitive

2

damages have traditionally been left to the discretion of the jury.” Egan v. Mutual of

3

Omaha Ins. Co., 24 Cal. 3d 809, 821 (1979). As discussed above, there is sufficient

4

evidence that the allegedly defamatory statements, particularly those made to Brown,

5

were not merely made out of carelessness or frustration, but were rather deliberate acts

6

to have Plaintiff fired or disciplined. Further, a jury might find that the evidence proffered

7

by Plaintiff constitutes clear and convincing evidence of such malice to support an award

8

of punitive damages. Thus, Defendants’ motion for summary judgment on Plaintiff’s

9

claim for punitive damages is DENIED.

10
11

CONCLUSION

12
13
14
15
16

As set forth above, Defendants’ Motions for Summary Judgment (ECF No. 40,
ECF. No. 41) are DENIED.
IT IS SO ORDERED.
Dated: March 27, 2015

17
18
19
20
21
22
23
24
25
26
27
28
21