Means v. City and County of San Francisco, Department of Public Health

Filing 52

ORDER by Judge Thelton E. Henderson granting in part and denying in part 37 Motion for Summary Judgment (tehlc2, COURT STAFF) (Filed on 9/17/2010)

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Means v. City and County of San Francisco, Department of Public Health Doc. 52 1 2 3 4 5 6 7 8 9 10 v. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SHERRY LYNN MEANS, Plaintiff, NO. C09-0941 TEH ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT CITY AND COUNTY OF SAN FRANCISCO, DEPARTMENT OF PUBLIC HEALTH; and DOES 1 through 25, Defendant. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter came before the Court on August 9, 2010, on the motion for summary judgment filed by Defendant City and County of San Francisco, Department of Public Health ("City"). For the reasons set forth below, the City's motion is GRANTED IN PART and DENIED IN PART. FACTUAL BACKGROUND In April 2002, Plaintiff Sherry Lynn Means ("Means") began working as a certified nursing assistant at Laguna Honda Hospital and Rehabilitation Center ("Laguna Honda" or "Hospital"), a licensed acute-care hospital and skilled nursing facility operated by the City. She was terminated on September 17, 2008, after a period of unpaid administrative leave following allegations that Means used vulgar language with patients, initiated an unauthorized investigation of sexual assault at the Hospital, lied to supervisors investigating the incident, attempted to break in to her supervisor's office, and threatened coworkers with violence. Means challenges these allegations, and in a Complaint filed March 4, 2009, Means claims that she was unlawfully discriminated against, retaliated against, and harassed in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") as well as California's Fair 1 Employment and Housing Act ("FEHA"). Means also alleges that the City discriminated 2 against her in the making and enforcement of contracts under 42 U.S.C. section 1981 3 ("section 1981"), and that the City's actions disqualified her from her profession on the basis 4 of race in violation of Article I, section 8, of the California Constitution. The City moved for 5 summary judgment on August 9, 2010; Means opposed the motion. 6 In October 2001, nearly seven years before the City terminated Means, Means applied 7 for a certified nursing assistant position at Laguna Honda. When the City did not hire Means, 8 she filed a charge of discrimination with the Equal Employment Opportunity Commission 9 ("EEOC"), claiming that Laguna Honda denied her employment because of her race. The 10 EEOC issued a right-to-sue notice, but instead of filing a lawsuit, Means entered into a United States District Court 11 settlement agreement with the City in March 2002. As a result of the settlement agreement, For the Northern District of California 12 the City offered Means a position as a certified nursing assistant at Laguna Honda, and 13 Means released the City from all "past, present or future" claims relating to Means's denial 14 of employment with the City. Bond Decl., Ex. H, at 3. 15 Means began working at Laguna Honda in April 2002. She alleges that during her 16 employment she was "subjected to a continuing pattern of unlawful discriminatory 17 employment practices." Means Decl. ¶ 5. For example, Means alleges that she was 18 continuously referred to as "black and ugly" in Tagalog by supervisors and coworkers. Id.; 19 Means Depo. 60:5. The Tagalog phrase was "pangit itim nasyr," and Means recounted 20 hearing it from an employee named "Noda" and Charge Nurse Fely Dilag ("Dilag"). Means 21 Depo. 60:16-19; Ramirez Decl., Ex. B. Yet they were not the only ones who used the phrase. 22 Hearing "that phrase so much from men and women on just about every ward [she] went" 23 prompted Means to take Tagalog classes. Means Depo. 59:13-15; 60:7-10. 24 Means also alleges that she was (1) given "the most difficult, undesirable[,] and 25 onerous" assignments while non-black coworkers got easier assignments; (2) criticized 26 without justification while non-black employees, whose work was unsatisfactory, were not 27 criticized; (3) "addressed in an insulting manner" by supervisors and non-black coworkers, 28 while non-black employees were treated with respect; (4) "humiliated and ridiculed" by 2 1 supervisors and non-black coworkers; (5) subjected to scrutiny without justification while 2 non-black employees whose work was unsatisfactory were not scrutinized; and (6) harassed 3 by supervisors and non-black coworkers. Means Decl. ¶ 5. 4 The events that led to Means's termination began on or around May 23, 2008, when 5 Means learned that the Hospital was conducting an investigation into allegations that a 6 resident in Unit G3 had been sexually assaulted. The patients in Unit G3 are women with 7 serious psychological problems, including paranoia and schizophrenia. After learning about 8 the sexual assault investigation, Means asked at least one patient in Unit G3 whether she had 9 been sexually assaulted.1 Two residents became frightened and upset as a result of Means's 10 comments, and they complained to Dilag, the nurse in charge of Unit G3. Dilag informed United States District Court 11 Nursing Supervisor Monica Maguire of the complaints, and Maguire met with Means and her For the Northern District of California 12 union representative the same day. At that meeting, Means denied speaking to patients about 13 sexual assault. She had visited Unit G3 to get cups, she said. This was not true, but Means 14 was trying to protect Registered Nurse Cristina Santo Domingo ("Santo Domingo"), who 15 Means said told her to go to Unit G3 and find out about the sexual assault allegations. Santo 16 Domingo also told Means to lie about why she was in Unit G3, according to Means. Santo 17 Domingo is one of Means's superiors, but Means admits that Santo Domingo did not send 18 her to Unit G3 on an assignment, but to "get the gossip." Means Depo. 112:21-25. 19 Maguire told Teresita Baluyut ("Baluyut"), Means's supervisor, about the incident, 20 and Baluyut conducted an investigation. Baluyut and Senior Personnel Analyst Willie 21 Ramirez ("Ramirez") met with Means and her union representative on May 29, 2008. Means 22 again said that she had gone to Unit G3 to get cups. At this meeting, Means submitted a letter 23 denying that she had made any "inappropriate" comments to residents, and claimed that 24 Dilag, who had reported the incident, said otherwise because she was homophobic and 25 "intolerant of Afro-Americans." Ramirez Decl. ¶ 7 & Ex. B. 26 According to Means, she asked one patient, "[H]as anybody been playing between your legs in a way that's not right?" Means Depo. 112:6-9. The City contends that Means 28 spoke with at least two residents using "graphic and offensive" language. Baluyut Decl. ¶¶ 57. 3 27 1 1 Means's supervisors proposed a five-day suspension for Means, and they held a 2 meeting on July 7, 2008, to give Means an opportunity to respond. At this meeting, Means 3 accused Baluyut of being racist and attributed her suspension to the fact that she was African 4 American. In a declaration, Means further contends that Baluyut has a reputation "reflecting 5 racist attitudes and conduct against African American employees." Means Decl. ¶ 36. After 6 the meeting regarding Means's suspension, Baluyut and her supervisor, Laguna Honda's 7 Nursing Director Mercedes Devasconcellos ("Devasconcellos"), agreed to suspend Means 8 for five days. On July 16, 2008, Means met with Devasconcellos and accepted the five-day 9 suspension, which they decided she would serve on July 23 through July 27. 10 Baluyut discovered that someone had attempted to break into her office on Monday, United States District Court 11 July 21, 2008. Baluyut met with Devasconcellos and Ramirez about the incident, and through For the Northern District of California 12 an investigation they learned that Santo Domingo had observed Means tampering with 13 Baluyut's door on Friday, July 18, 2008. Santo Domingo also said that she heard Means call 14 Baluyut a "devil" and a "demon," and that Means said she was going to "piss on [Baluyut's] 15 face" and "let blood drip on [Baluyut]." Means denies damaging the door to Baluyut's office. 16 However, she admits that on other occasions she joined discussions with colleagues, 17 including Santo Domingo, in which they spoke "in a disparaging fashion" about Baluyut's 18 actions and behavior. Means Decl. ¶ 65. Means admits calling Baluyut a "devil" and a 19 "demon," but says these comments were no different from those made by her coworkers. Id. 20 at ¶ 97; Means Depo. 229:14-15. 21 Santo Domingo also told Devasconcellos, Ramirez, and Baluyut that Means had 22 offered to put a contract out on Santo Domingo's husband for $20,000. Means admits this, 23 but contends that she was kidding. Means Decl. ¶ 68. Santo Domingo said Means had 24 repeatedly asked her where Baluyut parked her car, and that Means said she was friends with 25 a former patient who was a member of the BB Notorious Gang, all of which Means denies. 26 Finally, Santo Domingo told Devasconcellos, Ramirez, and Baluyut that Means had said that 27 if she were fired, she would bring a gun to work and shoot people. In her declaration, Means 28 4 1 denies saying this, but in her deposition, she admits it and says she was joking. Means Decl. 2 ¶ 20; Means Depo. 106:23-25, 107:1-5. 3 Ramirez initiated an investigation of the damage to Baluyut's door and allegations 4 that Means had threatened violence. He spoke with Means's coworkers, who claimed that 5 Means had threatened Baluyut. They also said they had heard Means say she would bring a 6 gun to work if she were fired. On July 29, 2008, Ramirez sent Means a letter telling her of 7 the allegations that she had damaged City property, and asking that she participate in an 8 investigatory interview on July 31, 2008. At the interview, Means denied tampering with 9 Baluyut's door, but admitted saying that she would come to work with a gun if she were 10 fired. After the meeting, Ramirez put Means on unpaid administrative leave. On August 29, United States District Court 11 2008, the City notified Means of its intention to dismiss her and scheduled a meeting to give For the Northern District of California 12 Means an opportunity to respond. Means attended with her union representative and her 13 attorney, who participated in the meeting. On September 17, 2008, the City notified Means 14 that it had terminated her. 15 16 LEGAL STANDARD 17 Summary judgment is appropriate when there is no genuine dispute as to material 18 facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 19 Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, 20 Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is 21 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The 22 Court may not weigh the evidence and must view the evidence in the light most favorable to 23 the nonmoving party. Id. at 255. The Court's inquiry is "whether the evidence presents a 24 sufficient disagreement to require submission to a jury or whether it is so one-sided that one 25 party must prevail as a matter of law." Id. at 251-52. 26 A party seeking summary judgment bears the initial burden of informing the Court of 27 the basis for its motion, and of identifying those portions of the pleadings and discovery 28 responses that "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. 5 1 Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at 2 trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than 3 for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 4 However, on an issue for which its opponents will have the burden of proof at trial, the 5 moving party can prevail merely by "pointing out ... that there is an absence of evidence to 6 support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party meets its 7 initial burden, the opposing party must "set out specific facts showing a genuine issue for 8 trial" to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256. 9 10 DISCUSSION United States District Court 11 For the Northern District of California The City asks the Court to grant summary judgment on all eight claims in Means's 12 Complaint: (1) race discrimination under Title VII, (2) retaliation under Title VII, (3) 13 harassment under Title VII, (4) race discrimination in the making and enforcement of 14 contracts under section 1981, (5) race discrimination under FEHA, (6) retaliation under 15 FEHA, (7) harassment under FEHA, and (8) disqualification from a profession on the basis 16 of race under Article 1, section 8, of the California Constitution. 17 18 I. Title VII, Section 1981, and FEHA Race Discrimination Claims 19 Means brings her first, fourth, and fifth causes of action under Title VII, section 1981, 20 and FEHA, respectively, all of which proscribe disparate treatment on the basis of race. 42 21 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981; Cal. Gov't Code § 12940(a). The parties agree that 22 these discrimination claims are analyzed under the burden-shifting analysis set forth by the 23 Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Surrell v. 24 California Water Service Co., 518 F.3d 1097, 1103, 1105 (9th Cir. 2008) (applying 25 McDonnell Douglas to Title VII and section 1981 claims); Guz v. Bechtel Nat'l Inc., 24 Cal. 26 4th 317, 354 (2000) (applying McDonnell Douglas to FEHA claims). Under McDonnell 27 Douglas, Means must prove a prima facie case of discrimination by showing (1) she is a 28 member of a protected class, (2) she was performing the position she held competently, (3) 6 1 she suffered an adverse employment action, and (4) "circumstances ... give rise to an 2 inference of unlawful discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 3 253 (1981); Guz, 24 Cal. 4th at 355. If Means succeeds, the burden of production shifts to the 4 employer to present legitimate reasons for the adverse employment action. Burdine, 450 U.S. 5 at 254. An employer's reasons need not rest upon true information. Villiarimo v. Aloha 6 Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). Instead, courts "only require that an 7 employer honestly believed its reasons for its actions, even if its reason is foolish or trivial or 8 even baseless." Id. (quotations omitted). "If the employer carries this burden, and plaintiff 9 demonstrates a genuine issue of material fact as to whether the reason advanced by the 10 employer was a pretext, then the retaliation case proceeds beyond the summary judgment United States District Court 11 stage." Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004); Reeves For the Northern District of California 12 v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Evidence of a prima facie 13 case of discrimination can raise an inference of pretext. Reeves, 530 U.S. at 143. 14 Means contends that her five-day suspension, unpaid administrative leave, and 15 termination were adverse employment actions taken on account of her race. Means also 16 claims that (1) her supervisors and coworkers called her "black and ugly;" (2) she was given 17 more difficult assignments than her non-black coworkers; (3) she was unjustly criticized for 18 her performance while non-black coworkers whose work was less satisfactory were not 19 criticized; (4) her work was scrutinized more closely than non-black coworkers whose work 20 was less satisfactory; (5) supervisors and coworkers addressed her in an insulting manner, 21 while non-black colleagues were treated with respect; (6) supervisors and coworkers 22 humiliated and ridiculed her; and (7) her supervisors and non-black coworkers harassed her. 23 Means has abandoned any claim of race discrimination arising out of the City's initial refusal 24 to hire Means in 2001. Means Opp'n 19:16-20. 25 With regard to Means allegations that she was criticized and scrutinized more than 26 non-black employees, and that she was given more onerous assignments than non-black 27 colleagues, Means fails to make a prima facie case of race discrimination. See Burdine, 450 28 7 1 U.S. at 253; Guz, 24 Cal. 4th at 355. She presents no evidence of the circumstances of these 2 events, and thus the Court cannot infer that they relate to Means's race. 3 The Court assumes without deciding that Means's allegations make a prima facie case 4 of race discrimination with regard to her five-day suspension, administrative leave, and 5 termination. See Burdine, 450 U.S. at 253; Guz, 24 Cal. 4th at 355. The burden of production 6 then falls upon the City to articulate legitimate, non-discriminatory reasons for taking these 7 actions. See Burdine, 450 U.S. at 254. According to the City, it suspended Means for five 8 days because she made sexual comments to residents2 and lied to supervisors investigating 9 the incident. The City put Means on unpaid administrative leave and eventually terminated 10 her after her supervisors were told that Means had tampered with Baluyut's office door, and United States District Court 11 that Means called Baluyut a "devil" and a "demon," and said she was going to "piss on For the Northern District of California 12 [Baluyut's] face" and let her "blood drip on [Baluyut]."3 Furthermore, Means's supervisors 13 learned that Means had repeatedly asked a co-worker where Baluyut parked her car, and 14 stated that she was friends with a former patient of Laguna Honda who was a member of the 15 BB Notorious Gang. Employees also reported that Means had made threats in the past­she 16 17 Means seeks to exclude a portion of Baluyut's declaration in which Baluyut says that 18 "Ms. Means made a series of inappropriate sexual comments to patients in Unit G3 at Laguna Honda" and that residents "said Ms. Means used `disgusting' words." Means argues that 19 Baluyut's statements are inadmissible hearsay and inadmissible opinion evidence, and that Baluyut lacks personal knowledge. However, this evidence is not being offered for its truth, 20 but rather its impact upon Baluyut, the decision maker, and is therefore not hearsay. See Haddad v. Lockheed California Corp., 720 F.2d 1454, 1456 (9th Cir. 1983) (allowing 21 testimony by employer regarding third parties' complaints about working with plaintiff). Furthermore, Baluyut's testimony is based upon her personal knowledge of third parties' 22 complaints, and it is not improper opinion testimony because it is based on Baluyut's investigation, it is helpful to the determination of the City's reasons for disciplining Means, 23 and it does not involve technical, scientific, or specialized knowledge. 24 25 26 27 28 Means seeks to exclude portions of the declarations of Baluyut, Ramirez, and Devasconcellos in which they recount being told of these events, arguing that various portions are inadmissible hearsay, inadmissible opinion, irrelevant, and lack personal knowledge. While this evidence would be hearsay if it were offered for its truth, it is being offered to show that Baluyut, Ramirez, and Devasconcellos received complaints about Means. See Haddad, 720 F.2d at 1456. Therefore, it is not hearsay. Furthermore, it is not improper opinion evidence, it is highly relevant, and Baluyut, Ramirez, and Devasconcellos have personal knowledge of what they were told. Means raises dozens of similar objections with regard to the fruits of Baluyut, Ramirez, and Devasconcellos's investigations. They are meritless. 8 3 2 1 had offered to put a contract out on Santo Domingo's husband, and had said that if she were 2 fired she would bring a gun to work and shoot people. 3 Means argues that these are not legitimate reasons for the City's actions because they 4 are based on allegations she contends are untrue and unworthy of belief. However, whether 5 the underlying allegations are untrue or hard to believe is irrelevant. See Villiarimo, 281 F.3d 6 at 1063. The question is whether Means's supervisors honestly believed them in deciding 7 whether to take disciplinary action against Means. See id. Means offers no evidence to 8 suggest that Means's supervisors were doing anything other than honestly responding to 9 events at Laguna Honda. She does not allege that her supervisors' accounts of what people 10 told them about Means's conduct are untruthful. Instead, she attacks the credibility of what United States District Court 11 her supervisors were told, which does not demonstrate pretext. The Court takes Means's For the Northern District of California 12 failure to point to any evidence of pretext to be a concession that the city's justifications were 13 not pretextual. 14 Furthermore, Means's prima facie case of discrimination does not raise an inference 15 of pretext. See Reeves, 530 U.S. at 143. Means alleges that she was continuously called 16 "black and ugly" by her supervisors and non-black coworkers, but she does not allege that 17 anyone with a say in the decision to discipline her called her "black and ugly" or made other 18 offensive comments with regard to her race.4 Means did accuse Baluyut of being racist at the 19 July 7, 2008, meeting to discuss Means's proposed five-day suspension, and she alleges that 20 Baluyut has a reputation for being racist against African Americans. However, even if these 21 allegations are true, they do not support an inference that Baluyut, much less all managers 22 involved in Means's discipline, manufactured the reasons for disciplining Means. As noted 23 above, Means admits some of the conduct leading to her termination. She admits asking a 24 patient if she had been sexually assaulted and lying about it, which is the conduct that led 25 Baluyut to recommend Means's suspension. Means admits making jokes about bringing a 26 27 One of the people that Means says called her "black and ugly" is Dilag, the nurse in charge of Unit G3, where the alleged sexual assault occurred. However, Dilag merely 28 reported Means's statements to her superiors, and had no input into the decision to discipline Means. 9 4 1 gun to work and shooting people if she were fired, which contributed to her period of unpaid 2 leave and termination. While Means denies tampering with Baluyut's door, Means offers no 3 evidence to suggest that her supervisors had anything other than an honest belief that she was 4 responsible. Even if Baluyut's motivations are rendered suspect by Means's allegations, the 5 supervisor in charge of the discipline Means received as a result of the door incident was 6 Ramirez, about whose intentions Means offers no evidence. Therefore, Means has not shown 7 that any of the people involved in her discipline harbored discriminatory motives such that a 8 reasonable jury could find that their stated reasons for taking action against Means were 9 pretextual. 10 Means's prima facie case also includes the allegations that she was harassed, insulted, United States District Court 11 given undesirable ward assignments, criticized, scrutinized, and humiliated in a way that her For the Northern District of California 12 non-black colleagues were not. However, these allegations contain no reference to specific 13 events or people such that they could be weighed against the City's legitimate reasons for 14 taking adverse action against Means. They do not raise a genuine issue of material fact, and 15 summary judgment is therefore GRANTED as to Means's Title VII, section 1981, and FEHA 16 claims of race discrimination. 17 18 II. Title VII and FEHA Retaliation Claims 19 The parties agree that the McDonnell Douglas framework also applies to claims of 20 retaliation under Title VII and FEHA. Surrell, 518 F.3d at 1107-08; Addy v. Bliss & 21 Glennon, 44 Cal. App. 4th 205, 217 (1996). Here, a prima facie case is made by showing that 22 (1) Means engaged in a protected activity; (2) she was thereafter subjected to an adverse 23 employment action; and (3) that there exists a causal link between the protected activity and 24 the adverse employment action. Surrell, 518 F.3d at 1108; Guthrey v. State of California, 63 25 Cal. App. 4th 1108, 1125 (1998). 26 For the reason stated above, Means fails to make a prima facie case of retaliation with 27 regard to her allegations of criticism, scrutiny, and onerous assignments. The Court assumes 28 without deciding that Means makes a prima facie case of retaliation with regard to her 10 1 suspension, administrative leave, and termination. However, as above, Means does not 2 provide any evidence that the City's reasons for disciplining Means are mere pretext. See 3 Coons, 383 F.3d at 887. Furthermore, for the reasons stated above, Means's prima facie case 4 does not raise an inference of pretext. See Reeves, 530 U.S. at 143. The Court again takes 5 Means's failure to point to specific evidence in the record showing pretext to be a concession 6 that none exists. Therefore, summary judgment is GRANTED as to Means's Title VII and 7 FEHA claims of retaliation. 8 9 III. Title VII and FEHA Harassment Claims 10 To prevail on a racial harassment claim under Title VII and FEHA, Means must show: United States District Court 11 (1) that she was subjected to verbal or physical conduct of a racial nature; (2) that the For the Northern District of California 12 conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to 13 alter the conditions of Means's employment and create an abusive work environment. 14 Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003); Aguilar v. Avis Rent A 15 Car System, Inc., 21 Cal. 4th 121, 130 (1999) (using Title VII law to interpret FEHA). 16 Unless extremely serious, "[s]imple teasing, offhand comments, and isolated incidents" do 17 not alter the conditions of employment. Manatt v. Bank of America, NA, 339 F.3d 792, 798 18 (9th Cir. 2003) (quotations omitted). 19 In Manatt, the Ninth Circuit found that plaintiff's conditions of employment were not 20 altered where coworkers ridiculed plaintiff's pronunciation and pulled their eyes back with 21 their fingers in an attempt to mock the appearance of Asians. 339 F.3d at 798. These events 22 took place on two occasions, and as isolated incidents they did not amount to actionable 23 discrimination, the court held. Id. However, in El-Hakem v. BJY Inc., the Ninth Circuit held 24 that conduct toward an Arab employee, which in isolation might not rise to the level of 25 discrimination, over time could lead a reasonable jury to conclude that the conduct was 26 sufficiently pervasive to alter the conditions of plaintiff's employment. 415 F.3d 1068, 1073 27 (9th Cir. 2005). Plaintiff's boss refused to use plaintiff's real name, instead developing 28 11 1 nicknames such as "Manny" for "Mamdouh," and "Hank" for "Hakem." Id. at 1073-74. 2 Plaintiff's boss used these names on a regular basis for almost a year. Id. 3 Means contends that she was continuously called "black and ugly" in Tagalog during 4 her employment as a certified nursing assistant at Laguna Honda. This is verbal conduct of a 5 racial nature, and it is uncontested that if the comments were made, they were unwelcome. 6 The question is whether the conduct was sufficiently severe or pervasive to alter the 7 conditions of Means's employment. See Vasquez, 349 F.3d at 642; Aguilar, 21 Cal. 4th at 8 130. The City argues that Means "could only identify" two employees who referred to Means 9 as "black and ugly." City Mot. Summ. J. 20:4. However, while Means recounted incidents of 10 being referred to in this way by an employee named "Noda" and Charge Nurse Dilag, they United States District Court 11 were not isolated. Means said she "heard that phrase so much from men and women on just For the Northern District of California 12 about every ward [she] went." Means Depo. 59:13-15. 13 While being called "black and ugly" is comparable to the non-discriminatory racial 14 comments in Manatt, unlike in Manatt, where only two instances of unwelcome racial 15 conduct toward plaintiff were at issue, Means contends that the phrase, "black and ugly," was 16 directed at her continuously throughout her employment at Laguna Honda. See 339 F.3d at 17 798. Given that Means worked at Laguna Honda for more than six years, the racial conduct 18 towards her was more pervasive than the conduct in El-Hakem, which lasted less than one 19 year. See 415 F.3d at 1073-74. As in El-Hakem, a reasonable jury could conclude that Means 20 was subjected to harassment so pervasive as to alter the conditions of her employment. 21 Means also alleges that she was given the most onerous work assignments, insulted, 22 humiliated, and harassed because of her race. She says she was criticized and scrutinized 23 more than her non-black colleagues. However, Means presents no evidence explaining these 24 events, nor does she provide evidence giving rise to an inference that the events had to do 25 with her race. Therefore, while Means's harassment claim survives, it is limited to Means's 26 claim that she was continuously called "black and ugly." Therefore, summary judgment as to 27 Means's Title VII and FEHA harassment claims is DENIED. 28 12 1 IV. Constitutional Claim 2 The City argues that because Means has not met her burden with respect to her Title 3 VII, section 1981, and FEHA race discrimination claims, the Court should grant summary 4 judgment with respect to her claim under Article I, section 8, of the California Constitution, 5 which provides that "[a] person may not be disqualified from entering or pursuing a business, 6 profession, vocation, or employment because of sex, race, creed, color, or national or ethnic 7 origin." Means responds by arguing that she has presented substantial evidence of race 8 discrimination. Because Means has not met her burden under her Title VII, section 1981, and 9 FEHA race discrimination claims, her claim under the California Constitution also fails, and 10 summary judgment is GRANTED. United States District Court 11 For the Northern District of California 12 CONCLUSION 13 The City's motion for summary judgment is GRANTED IN PART and DENIED IN 14 PART. Summary judgment is granted to the City as to the first cause of action for violation 15 of Title VII's race discrimination provisions, second cause of action for violation of Title 16 VII's retaliation provisions, fourth cause of action for discrimination under section 1981, 17 fifth cause of action for violation of FEHA's race discrimination provisions, sixth cause of 18 action for violation of FEHA's retaliation provisions, and eighth cause of action for violation 19 of Article I, section 8, of the California Constitution. Summary judgment is denied, however, 20 as to Means's third and seventh causes of action, for harassment in violation of Title VII and 21 FEHA. 22 23 IT IS SO ORDERED. 24 25 26 Dated: 9/17/10 27 28 13 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

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