Flaviano v. Department of State Hospitals, Napa et al

Filing 59

ORDER GRANTING DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT by Judge Alsup granting 48 Motion for Summary Judgment; finding as moot 58 Stipulation. (whalc1, COURT STAFF) (Filed on 1/25/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAOUL FLAVIANO,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 14-05671 WHA

v.

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CALIFORNIA DEPARTMENT OF
STATE HOSPITALS, NAPA, DENISE
DALY, JASON GOODING, and DOES 1
through 50, inclusive,

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Defendants.

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ORDER GRANTING
DEFENDANTS’ SECOND
MOTION FOR SUMMARY
JUDGMENT
/

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INTRODUCTION

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In this employment-discrimination action, defendants move for summary judgment,

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after an earlier summary judgment motion addressing the scope of a release in a settlement

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agreement dismissed several claims. For the reasons stated below, defendants’ motion is

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GRANTED.
STATEMENT

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Plaintiff Raoul Flaviano is a native Filipino man who worked for defendant Department

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of State Hospitals, Napa (“DSH”), from November 2001 to June 2013. DSH hired him as a

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sworn police officer at Napa State Hospital after he completed a search and seizure class. He

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did not attend a police academy prior to starting work at DSH. At all relevant times, Flaviano

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was married to Raquel Maisonet, with whom he had a daughter, but they are now divorced
(Flaviano Dep. at 11–12, 14, 16, 18).

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Flaviano received a promotion to the position of acting sergeant, which position he held

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for two or three years and then received a second promotion to full-time sergeant, which

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position he held for two or three years prior to the start of our dispute (Flaviano Dep. at 24–25).

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(The precise dates are not specified in our record, except that Flaviano became a full-time

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sergeant by October 2007.)

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The position of Hospital Police Sergeant primarily required supervision of the hospital

work on one of three eight-hour watches, which provided continuous coverage twenty-four

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hours a day. First watch ran from 10:00 p.m. to 6:00 a.m., second watch ran from 6:00 a.m. to

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2:00 p.m., and third watch ran from 2:00 p.m. to 10:00 p.m. As each shift ended and the next

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For the Northern District of California

police officers assigned to a particular shift. DSH generally scheduled its police officers to

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United States District Court

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began, the sergeants assigned to the consecutive shifts held a “turnover” meeting at which the

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outgoing sergeant would brief the incoming sergeant about any noteworthy occurrences on the

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previous shift.

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The responsibilities of Hospital Police Sergeants also included managing schedules for

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the officers, assigning, coordinating, and reviewing work, and recommending commendations

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and adverse actions. Secondary responsibilities included compliance with mandates governing

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the hospital’s operations, training officers, ensuring a shift maintained adequate coverage, and

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maintaining morale. As a sergeant, Flaviano reported directly to the lieutenant for his shift.

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Sergeants were “required to work any shift and schedule in a variety of settings throughout the

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hospital and [might] be required to work overtime and float to other work locations as

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determined by the operational needs of the hospital” (Gooding Decl., Exh. A).

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At some point, unclear from the record, Flaviano came to be assigned to the second

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watch (6:00 a.m. to 2:00 p.m.), on which shift his wife also worked as an officer at Napa State

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Hospital. Lieutenant Florentino Malasan supervised Flaviano in that assignment. At some

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point thereafter, Flaviano began working on an alternate work schedule, “0700 to 1500 hours on

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Tuesday, Wednesday and Thursday” and “regular shift” on other work days, which gave him

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time to drop his daughter off at day care at 6:15 a.m., the earliest he could arrange (Flaviano

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Dep. at 24, 26, 44–45).
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After approximately two years on the alternate work schedule, Flaviano transferred to

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another department, where he orally requested the same schedule accommodation from his new

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supervisor, Lieutenant Todd Kyle. He continued to follow his alternate work schedule (id. at

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36; Gooding Decl. ¶ 8). At some time not specified in the record but several months prior to

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June 2012, Lieutenant Jeffrey Coleman became Flaviano’s supervisor in place of Lieutenant

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Kyle and defendant Denise Daly became chief of the department (Flaviano Dep. at 38–39).

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Lieutenant Coleman initially allowed Flaviano to continue his alternate work schedule but

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informed Flaviano that he (Lieutenant Coleman) would need to seek approval from Chief Daly

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to continue Flaviano’s alternate work schedule, because Chief Daly “had problems” with
Flaviano’s alternate work schedule (Flaviano Dep. at 38–39; Flaviano Decl. ¶ 8).1

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So began the instant dispute.

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Flaviano discussed his request for an alternate work schedule in a meeting with both

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Chief Daly and Lieutenant Coleman in June 2012. (It is unclear, but immaterial, whether

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Lieutenant Coleman ever sought approval on Flaviano’s behalf prior to the meeting.) At that

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meeting, Chief Daly told Flaviano, “You’re lucky you’ve gotten away with it this long,”

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referring to the alternate work schedule. She also informed him that the department could not

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continue to allow Flaviano to maintain an alternate work schedule because he needed to attend

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the turnover meetings with the outgoing sergeant at 6:00 a.m. Flaviano stated that he had not,

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in fact, been needed at turnover meetings for “the entire year of 2012” (this meeting occurred in

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early July). He observed Chief Daly become “openly hostile” and shift her position to concerns

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about unauthorized absences and that he was setting his own schedule. Chief Daly gave

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Flaviano until the end of the month to resolve his childcare scheduling so that he could work a

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regular schedule (id. at 40–43; Flaviano Decl. ¶ 10).

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The actual history of how Flaviano’s alternate work schedule developed before June 2012 is
muddled, particularly when considering only admissible evidence. The interpretation of the details of
Flaviano’s work schedule prior to June 2012 as described in this order are presented only for background
purposes. The true facts about his work schedule prior to June 2012 are immaterial inasmuch as all agree this
action addresses conduct from June 2012 and beyond.

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On July 9, 2012, Flaviano submitted a written memorandum with the subject “Hardship

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Consideration for Childcare” to Chief Daly formally requesting an alternate work schedule, as

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follows (Flaviano Decl., Exh. 2 at *431):

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This letter is a formal request for accommodation regarding the
childcare of my 3 year old daughter.

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Currently, I work from 0700 to 1500 hours on Tuesday,
Wednesday, and Thursday. This allows me to take my daughter to
childcare. I work a regular shift on my other work days. This
arrangement has worked successfully for my professional and
personal responsibilities.

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My wife is unable to take our daughter to daycare as she is
currently assigned a 0600–1400 hours shift. Our daughter is
enrolled in KinderCare. The earliest arrival time there is 0615 a.m.

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I am also requesting that this schedule continues for when my
daughter starts Kindergarten.

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We don’t have family in the area so daycare is our only option.

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Please continue to allow me to work 0700–1500 hours for these
reasons.

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Both Chief Daly and Lieutenant Coleman denied the request. Chief Daly wrote her
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denial by hand in the “Explanation” section of the request form and signed it on July 9. It read
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as follows (id. at *432):
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An AWS [alternate work schedule] does not meet the needs of this
Dept. operational expected standards.

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Request is denied.

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However, I would be willing to move you to a 3rd watch position
to accommodate your needs. Please advise if you are interested.

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On July 10, Lieutenant Coleman sent a memorandum to Flaviano, explaining his denial,
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as follows (id. at *433):
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Sergeant Flaviano, I’m denying your request for an alternate work
schedule as you need to be at work from 0600 to 1400 hours for
the operational needs of the department as the 2nd Watch Sergeant.
The 2nd Watch Sergeant must be available at morning briefings
and have contact with the 1st and 2nd Watch Officers. There is
already coverage for the 3rd Watch Sergeant position and your
overlap is not warranted at this time. As a sergeant you are
expected to be available and assessable [sic] to the officers on a
daily basis.

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However, I will forward your request to the Chief of Police for her
review.

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On July 11, Flaviano responded to Chief Daly by letter, explaining the scheduling
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problems he initially faced when he and his wife worked consecutive shifts and that he would
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not be able to continue his training schedule if he shifted to a third watch position (though the
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record is unclear on why he could not continue that role from the third watch) (id. at *434).
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On July 12, Chief Daly responded that Flaviano’s letter failed to address his current
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challenges or to provide a workable solution. She stated that “[t]here are typically no alternate
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work schedules for sergeants, as this department is a 24 hour facility and operational needs
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outweigh the personal needs of the employees.” She further stated that she would seek other
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Flaviano complained to Chief Daly that two other sergeants were provided accommodation
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options if Flaviano could no longer be available in a training capacity (id. at *435–36).
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schedules of 0800 to 1700. Chief Daly did not respond to that complaint (Flaviano Decl. ¶ 11).
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On July 13, Flaviano filed a written discrimination complaint with the Equal
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Employment Opportunity office of DSH, alleging that he had been discriminated against on the
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basis of his race inasmuch as Chief Daly had denied his request while certain Caucasian
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sergeants received that accommodation. Flaviano identified Sergeants Arnhold (first name
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unknown), Harley Detwiler, and Adam Tharp, as well as officers Taylor (first name unknown)
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and Aqul (first name unknown) as similarly situated individuals that had received a comparable
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accommodation to what he requested (Flaviano Decl., Exh. 2 at *437–38). Flaviano also filed a
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formal discrimination complaint with the executive director of Napa State Hospital, Dolly
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Matteuci (id. at *440–41).
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Immediately after he filed his complaints, Flaviano observed Chief Daly declining to
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speak to him in the hallway and staring him down “on a daily basis.” Several days later, Chief
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Daly transferred Flaviano to third watch (2:00 p.m. to 10:00 p.m.), which was consecutive to his
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wife’s shift. Defendant Lieutenant Jason Gooding became Flaviano’s supervisor on that shift.
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As a result of the new schedule, Flaviano and Maisonet began conducting a “baby exchange” on
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the premises of the hospital, exchanging care of their daughter at the start of Flaviano’s shift
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(just after the end of Maisonet’s shift) (Flaviano Decl. ¶ 15).
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Flaviano submitted a new request for an accommodation, seeking an extra five or ten

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minutes at the start of a shift to facilitate the baby exchange and seeking permission to perform

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the exchange on hospital premises. Chief Daly denied this request, stating no other sergeants or

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officers were permitted similar accommodations (id. ¶ 17). Flaviano filed another internal

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workplace complaint, this time alleging he had been the subject of retaliation when he was

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transferred to third watch (id., Exh. 4).

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In October 2012, Flaviano’s wife, Raquel Maisonet, “had to submit [a Family and

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Medical Leave Act] form for a serious medical condition” (Maisonet Decl. ¶ 5). (She does not

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specify whose medical condition required her attention.) The request was apparently granted
(although the record is unclear who approved the request). Flaviano elected to take concurrent

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leave (for a period of nine or ten days), so he “submitted an FMLA packet to assist his wife for

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[sic] a serious medical condition,” and took paid vacation concurrent with that leave.

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Lieutenant Gooding approved the request (Flaviano Decl. ¶ 20; Gooding Decl. ¶ 10). (Again,

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there is no indication of whose medical condition led to Maisonet’s request for leave.)

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Flaviano learned that Maisonet needed to extend her leave by several days, so he called

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Lieutenant Gooding on the telephone requesting to extend his leave and vacation by three days

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(id. ¶ 21). The parties dispute whether Lieutenant Gooding approved Flaviano’s request over

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the phone, but all agree that Lieutenant Gooding eventually deemed Flaviano AWOL for the

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three days for which he requested an extension (compare Gooding Decl. ¶ 10 with Flaviano

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Decl. ¶ 21). Lieutenant Gooding planned to dock Flaviano’s pay due to his AWOL status

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(Gooding Decl. ¶ 10).

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On October 30, after the three-day period of requested extended leave ended, Flaviano

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brought his daughter to work with him while on duty. Flaviano met with Lieutenant Gooding

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and Chief Daly that day. Lieutenant Gooding became hostile and yelled, “I’m tired of getting

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caught in the middle of your childcare issues with the chief” and “you are the only one in this

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department with a problem.” Lieutenant Gooding also complained about the serial requests for

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FMLA leave from Flaviano and his wife and aggressively stated he was “tired of [Flaviano]

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trying to find different angles for childcare” (Flaviano Decl. ¶¶ 23–24).
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Lieutenant Gooding prepared a written counseling record to memorialize the events of

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that day, which, assuming no further incidents, was to remain in Flaviano’s personnel file for

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one year. The counseling record described the events of October 30, noting that Flaviano’s

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conduct “revealed exceedingly poor judgment on [his] part, nullified [his] ability to respond to

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any type of exigent situation and set an example of unacceptable and unprofessional behavior to

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those [he] supervise[d]” and also recounted that Flaviano had “been repeatedly advised that

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[his] unwillingness or inability to resolve [his] childcare issues [were] detrimental to the

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department and severely impair[ed his] effectiveness as a supervisor” (Gooding Decl., Exh. D).

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The same month, the Equal Employment Opportunity office of DSH concluded its
investigation into Flaviano’s initial complaint, finding that Sergeants Tharp and Detwiler had

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never requested a childcare accommodation and that Flaviano’s request was “more likely than

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not” due to “business reasons and not due to discrimination based on his race, Filipino”

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(Gooding Reply Decl., Exh. B).2

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In early November, Lieutenant Gooding told Flaviano that his FMLA form (from the

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prior month) could not be accepted because he could not read the physician’s signature on the

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form, which signature “appeared to be no more than a straight line,” and that there was no

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printed version of the physician’s name (Gooding Decl. ¶¶ 16–17). Flaviano submitted a

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follow-up form, on which Gooding “took no action” (Flaviano Decl. ¶ 24). Lieutenant Gooding

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did not process the follow-up form because it appeared to request a “continuous ten-year future

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period” of leave (Gooding Decl. ¶ 19). By that time, Flaviano had been placed on leave (for

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reasons not related to the claims still at issue), so Lieutenant Gooding mailed his request for

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further information to Flaviano by certified mail, for which he received a return receipt signed

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by Flaviano (id. ¶¶ 22–23, Exhs. E–F).

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In November, after Flaviano had received no response from his internal retaliation
complaint, he filed a second retaliation complaint with the department’s Equal Employment

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Exhibit A to Lieutenant Gooding’s reply declaration is a cover letter from October 2012 stating that
the department’s Equal Employment Opportunity office had concluded an investigation from Flaviano’s “July
13, 2001,” complaint. The year 2001 is circled, and 2012 is handwritten next to it. Lieutenant Gooding’s
declaration does not discuss this discrepancy. Nevertheless, Exhibit B is a report concluding the investigation
of the complaint with the Equal Employment Opportunity office dated July 13, 2012.

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Opportunity office regarding Lieutenant Gooding’s plan to dock his pay and the denial of his

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extra leave days (Flaviano Decl., Exh. 5).

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In March 2013, an email from Sergeant Jessica Heine to the whole department regarding

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fund-raising for a special olympics event stated that her hours were 0700–1500 (the same hours

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requested by Flaviano as an accommodation for his childcare needs). Counsel for Flaviano

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forwarded that email to the department’s EEO investigator to be considered in the then-ongoing

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investigation into Flaviano’s second complaint (Flaviano Decl., Exh. 6).

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In November 2013, the department’s EEO office concluded the investigation of

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Flaviano’s second complaint. It “did not reveal sufficient evidence to prove a violation of the

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Department’s Equal Employment Opportunity policies” (id., Exh. 7).
In May 2013, Napa State Hospital terminated Flaviano’s employment following a series

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of disciplinary actions unrelated Flaviano’s childcare accommodations (though considered in

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light of his counseling record from October 2012). Flaviano commenced an action before the

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California State Personnel Board relating to his termination. He agreed to dismiss that action

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and release all claims giving rise to his termination in exchange for the department’s agreement

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to remove the disciplinary records relating to the incident that led to his termination from his

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personnel file and to accept Flaviano’s resignation for retirement purposes (see Dkt. No. 29).

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In May 2014, Flaviano filed a complaint with the California Department of Fair

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Employment and Housing alleging harassment and retaliation (Flaviano Dep., Exh. 7).

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Flaviano commenced this action in federal court here in San Francisco in December

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2014. Defendants brought an early summary judgment motion contending that Flaviano’s

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complaint, which raised claims of discrimination pertaining to his termination as well as other

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conduct, was entirely barred by the release in the agreement settling his challenge to his

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dismissal. The order on that motion granted in part and denied in part defendants motion,

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limiting the scope of his release to claims that culminated in his termination and dismissing

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claims based thereon. The remaining claims could not be held subject to the release on

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summary judgment (though the order left open the possibility that defendants would prevail on

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that issue at trial) (Dkt. No. 29).
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Flaviano’s remaining claims assert (i) race, national origin, and marital status

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discrimination under the California Fair Employment and Housing Act, (ii) retaliation under

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FEHA, (iii) harassment under FEHA, (iv) violations of CFRA, (v) violations of FMLA, and

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(vi) violations of FLSA.

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Defendants now move for summary judgment on all remaining claims on the merits of
the claim (rather than on the release). This order follows full briefing and oral argument.

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ANALYSIS

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Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FRCP 56(a). Only admissible evidence can create a triable issue of fact on summary judgment.

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FRCP 56(e); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

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Our defendants raised several evidentiary objections in their reply brief, all discussed

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below. Flaviano made no evidentiary objections in his opposition or in supplemental filing

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following defendants’ reply brief pursuant to Civil L.R. 7-3(d)(1). Nevertheless, for the

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avoidance of doubt that summary judgment is proper, this order does not consider evidence

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proffered by defendants that would have been excluded if Flaviano had properly objected.

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The admissible evidence in our record, drawing all reasonable inferences in Flaviano’s

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favor, does not reveal any genuine dispute of material fact, and defendants are entitled to

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judgment as a matter of law on all claims.3
DISCRIMINATION CLAIMS.

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1.

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Flaviano contends that he was subject to discrimination on the basis of race and national

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origin when Chief Daly and Lieutenant Gooding denied his request for an alternate work

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schedule that spanned parts of second and third watches to accommodate his childcare needs

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and again when he requested to arrive five minutes late to his shift on third watch to conduct a

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“baby exchange” with Maisonet. To state a claim for discrimination under FEHA, Flaviano

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must show, inter alia, some circumstance that suggests a discriminatory motive. Guz v. Bechtel

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This order does not address defendants’ arguments that Flaviano’s claims are barred by the
applicable statutes of limitations or by the requirement to exhaust administrative remedies.

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National, Inc., 24 Cal. 4th 317, 355 (2000). Flaviano contends he has shown that defendants

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harbored a discriminatory motive via circumstantial evidence shown by the alleged fact that

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similarly-situated Caucasian or white officers and sergeants at Napa State Hospital received the

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childcare accommodations that he was denied (namely, working a shift of 0700 to 1500, rather

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than the scheduled second watch shift of 0600 to 1400, and, later, being allowed to exchange

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care of his child with his wife on premises in the first few minutes of his shift). Defendants

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respond that Flaviano is incorrect on the facts and that he offers no admissible evidence as

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support.

Harley Detwiler, Arnhold (first name unknown), and Adam Tharp, as well as Officer Taylor

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In his declaration in opposition to defendants’ motion, Flaviano discussed Sergeants

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(first name unknown) (Flaviano Decl. ¶ 12):

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These employees are all Caucasian, or white, and they have all
been provided with schedule accommodations for childcare needs,
or they have been allowed to conduct “baby exchanges” in the
building or parking lot. I have personally observed these
accommodations prior to July 2012.

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Defendants object to Flaviano’s assertions that these purported comparators received

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schedule accommodations “for childcare needs” or that they were “allowed” to conduct baby

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exchanges inasmuch as they lack foundation and Flaviano lacks personal knowledge of the

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formalities or justifications for any such accommodation. That objection is SUSTAINED.

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Nevertheless, Flaviano’s testimony as to his personal observations of alternate work schedules

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(but not their reasons) and of baby exchanges (whether or not sanctioned), remains admissible.

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Flaviano also offers the declaration of his ex-wife Raquel Maisonet, in which she avers

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(Maisonet Decl. ¶ 3):
I have personally observed other Hospital Police Officers and
Sergeants engage in Alternative Work Schedules (“AWS”). My
supervisor, Sgt Detwiler, had an AWS back in 2011 and 2012, to
assist him with his childcare needs. I personally observed Sgt
Detwiler bring his daughter to work as part of a childcare
exchange, and I personally observed him arriving at work at 0700
as well as 0800 in the morning. Additionally, Sgt Tharp had a
childcare accommodation work schedule for his two children,
which I personally observed on many occasions. Additionally,
Officer Green and his partner, Psychology Technician Dawn, have
been permitted to conduct childcare exchanges in the Police
Department parking lot.
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Defendants also object to Maisonet’s declaration as lacking foundation and personal

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knowledge. As with Flaviano, Maisonet has not established that she has personal knowledge of

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the reason for Sergeants Detwiler’s or Tharp’s alternate work schedules or whether the police

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department permitted Officer Green to pass supervision of his child to his partner in the parking

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lot. To that extent, defendants’ objections are SUSTAINED. Nevertheless, Maisonet’s personal

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observations, namely, that Sergeants Detwiler and Tharp had some alternate work assignment

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(but not their reasons) and that Officer Green in fact exchanged his child in the parking lot

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(whether or not sanctioned) remain admissible. Counsel for Flaviano failed to submit

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deposition testimony (or records) that could competently address the reasons for these

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accommodations.
Flaviano also offers the written schedule for sergeants and officers in effect in July

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2012, which he presented to Chief Daly and Lieutenant Gooding when they met to discuss his

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request for an alternate work schedule. At that meeting, Chief Daly initially informed Flaviano

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that the department could not continue to allow him to maintain an alternate work schedule

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because he needed to attend the turnover meetings with the outgoing sergeant from the first

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watch at 6:00 a.m. Flaviano replied that he had not, in fact, been needed at turnover meetings

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for “the entire year of 2012” (this meeting occurred in early July). Chief Daly then shifted her

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position to concerns about Flaviano’s unauthorized absences and that he was setting his own

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schedule (Flaviano Decl. ¶ 10).

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Flaviano denied both accusations. He now avers that Chief Daly then “took the position

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that no Sergeants are allowed childcare accommodations at Napa State Hospital,” which, he

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asserts, “is not true” (id. ¶ 11). Flaviano then pointed Chief Daly to a written work schedule.

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The proffered schedule indicated that Sergeant Arnhold had been assigned a schedule of

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0800–1700 and that Sergeant Detwiler had been assigned a temporary schedule from

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0800–1600, though he would later return to a regular schedule of 1000–1800 (Flaviano Decl.,

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Exh. 2 at *437). In his declaration, Flaviano states that Sergeants Arnhold and Detwiler had

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been given these alternate schedules as childcare accommodations (Flaviano Decl. ¶ 11).

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Contrary to Flaviano, there is no indication that Sergeants Arnhold and Detwiler received
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alternate work schedules “as the result of childcare.” Rather, the document simply stated each

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employee’s assigned schedules.

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Defendants object to Flaviano’s reliance on this exhibit and his description thereof as

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lacking foundation or personal knowledge and as speculation regarding the reasons that

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Sergeants Arhnhold and Detwiler received the alternate schedules reflected thereon. To that

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extent, defendants’ objection is SUSTAINED inasmuch as Flaviano has no basis for the

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conclusion that Sergeants Arnhold and Detwiler received an accommodation “for childcare

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purposes” or that Chief Daly’s statement was untrue.

appears as one page of Exhibit 2 appended to Flaviano’s declaration. Exhibit 2 is the complaint

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For the Northern District of California

Defendants also object to consideration of the schedule as hearsay. The schedule

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United States District Court

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Flaviano submitted to the department’s Equal Employment Opportunity office following the

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denial of his request for an alternate work schedule. Defendants are correct that statements in

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the EEO complaint are, themselves, hearsay, and that the complaint cannot authenticate

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documents appended thereto. Defendants’ hearsay objection, however, is OVERRULED,

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because Flaviano independently authenticated the work schedule that he showed to Chief Daly

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(Flaviano Decl. ¶ 11). Defendants do not rebut Flaviano’s description of the document, which,

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as a statement by the department, is not hearsay when offered by Flaviano. FRE 801(d)(2).

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At his deposition, as in his declaration, Flaviano also identified Officer Donald Green

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and Sergeant Doug Smithson as individuals who brought their babies onto the premises to

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exchange care with their partners and arrived late after that exchange. He admitted, however,

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that he had no knowledge about whether Lieutenant Gooding knew of or approved Officer

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Green’s and Sergeant Smithson’s conduct (Flaviano Dep. at 68–72). He further admitted that

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he never discussed why Officer Green or Sergeants Smithson or Detwiler worked according to

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alternate schedules, because it was “not [his] business” (id. at 112). (When asked at his

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deposition to identify other officers and sergeants who received childcare accommodations at

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his deposition, Flaviano failed to identify Sergeants Arnhold or Tharp.)4

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Flaviano also offers the an email from Sergeant Jessica Heine sent in March 2013 to the

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whole department regarding fund raising for a special olympics event in which she stated that

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her hours were 0700–1500 (the same hours requested by Flaviano as an accommodation)

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(Flaviano Decl., Exh. 6). This email does not demonstrate that Sergeant Heine worked that

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schedule as a childcare accommodation.

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Flaviano repeatedly cites Chief Daly’s and Lieutenant Gooding’s statements in the EEO
investigation of Flaviano’s second complaint as admissions contrary to their position that
sergeants could be assigned alternate work schedules (Pl.’s Opp. at 2, 9, 18–19). But those

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United States District Court

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“admissions” are not contrary to defendants’ positions or to the earlier statements by Chief Daly

12

or Lieutenant Gooding. As stated, at the July 2012 meeting with Flaviano, Chief Daly “took the

13

position that no Sergeants are allowed childcare accommodations at Napa State Hospital”

14

(Flaviano Decl. ¶ 11). Similarly, in a memo sent to Flaviano after the July 2012 meeting,

15

Lieutenant Gooding stated, “[t]here are typically no alternate work schedules for sergeants” (id.,

16

Exh. 2 at *435). Neither statement precluded the possibility that an alternate work schedule

17

might atypically be available for some purpose other than childcare. The statements offered by

18

Flaviano as “admissions” to the contrary in fact confirm that interpretation.

19

Specifically, Chief Daly stated that “alternate work schedules are for the department

20

need only and not for personal need,” and identified “bike patrol” and “educational purposes”

21

that are “for the benefit of the department” as the only bases for granting an alternate work

22

schedule (Poore Decl., Exh. 2 at *581). Similarly, Lieutenant Gooding stated he had approved

23

an alternate work schedule “to attend training for a day” or for an employee “who wants to

24

work on getting their degree” (id., Exh. 3 at *588). Neither statement indicated that personal

25

needs such as childcare had ever served as a basis for granting an alternate work schedule.

26
27
28

4
This order notes that defendants’ opening brief confusingly restated Flaviano’s theories of
discrimination as if they were defendants’ own positions, stating, inter alia, “Sgt. Detwiler (‘Detwiler’) was also
an AWS [alternate work schedule] for his childcare issues” (Defs.’ Mtn. at 9). Notwithstanding that confusing
phrasing, there is no evidence that Sergeant Detwiler received an alternate work schedule to accommodate
childcare issues.

13

1

Defendants object to Chief Daly’s and Lieutenant Gooding’s statements as part of the

2

EEO investigation, which are appended to the declaration of Attorney David Poore, counsel for

3

Flaviano. As to Chief Daly’s and Lieutenant Gooding’s statements, Attorney Poore avers that

4

he appended “true and correct cop[ies] of the EEO statment[s] that [the respective defendants]

5

provided, which [were] produced” by defendants in discovery (Poore Decl. ¶¶ 3–4). Attorney

6

Poore has not shown that he can competently authenticate the statements given by Chief Daly or

7

Lieutenant Gooding, and the bare fact that they were produced in discovery is insufficient.

8

Moreover, the statements are unsigned and appear to be written records of interviews with Chief

9

Daly and Lieutenant Gooding, not writings by those defendants or adopted by them. That is, the
statements are not before us, but rather the summaries written by the department’s EEO

11
For the Northern District of California

United States District Court

10

investigator of statements made in connection with the investigation. The EEO investigator’s

12

summaries (even if purportedly verbatim) are hearsay. (If a newspaper or police report reported

13

that a party opponent had admitted the light was red, it would still be hearsay.) Defendants’

14

authentication and hearsay objections are, therefore, SUSTAINED. In any case, even assuming

15

those statements could be elicited in an admissible form, they would not raise any material

16

dispute of fact. Rather, they support defendants’ case.

17

In ploughing through this record, the Court has asked itself why plaintiff’s counsel

18

failed to depose the managers to connect the dots on these gaps. At all events, such testimony is

19

missing.

20

Ultimately, although Flaviano has offered evidence to show that certain sergeants and

21

officers received some schedule accommodation for unknown reasons and that others brought

22

their children onto the premises to exchange care with their partners, there is absolutely no

23

admissible evidence that anyone ever received a schedule accommodation for childcare

24

purposes or that anyone ever received permission to conduct a “baby exchange” on premises

25

(and to be late for a shift following said exchange).5

26
27
28

5
This order does not consider Lieutenant Gooding’s description of his “investigation” into Napa State
Hospital’s records inasmuch as he does not describe the investigation at all, much less demonstrate that his
review was comprehensive. This order also does not consider Lieutenant Gooding’s recitation of Sergeants
Detwiler’s and Tharp’s assurances that they had never sought nor received schedule accommodations for

14

1

Furthermore, in his reply declaration, Lieutenant Gooding avers that Flaviano worked as

2

an operations sergeant and had responsibilities involving briefing and supervising his patrol

3

staff at the start of his watch, while Sergeants Detwiler, Arnhold, and Tharp worked in different

4

assignments “and had different hours, duties and responsibilities than Plaintiff, and, unlike an

5

Operations Sergeant like Flaviano, were not required to conduct shift briefings of oncoming

6

shift officers” (Gooding Reply Decl. ¶ 5). Thus, not only has Flaviano failed to show with

7

admissible evidence that any officer or sergeant in the history of Napa State Hospital other than

8

himself ever received the accommodation he sought (much less an officer of a different race,

9

national origin, or marital status), he has also failed to show that the sergeants he named who
received some alternate work schedule were similarly situated to himself. On the contrary, their

11
For the Northern District of California

United States District Court

10

assignments differed materially with respect to the importance of their shift schedules.6

12

Accordingly, Flaviano has failed to show discrimination on the basis of race or national

13

origin by circumstantial evidence, and defendants are entitled to summary judgment on claims

14

relating to the denial of Flaviano’s request for an alternate work schedule and his subsequent

15

request for an accommodation to perform a “baby exchange” on the premises (and during his

16

shift).

17

B.

18

Marital Status.

Flaviano alternatively contends that Lieutenant Gooding’s and Chief Daly’s angry

19

comments about Flaviano’s failure to make childcare arrangements that would allow him to

20

come to work on time constitutes direct evidence of discrimination on the basis of marital

21

status. He contends they “engaged in an attack” on his marriage (Pl.’s Opp. at 8). But, as

22

stated, Flaviano has offered no evidence that his requested schedule accommodation would

23
24
25
26
27
28

childcare needs, which recitation is inadmissible hearsay (Gooding Decl. ¶ 14; Gooding Reply Decl. ¶ 5).
Nevertheless, Flaviano has failed to offer any admissible evidence to support a reasonable inference that
anyone, much less a similarly situated employee, received the accommodations he sought, except for himself
when he orally requested the accommodation from prior supervisors.
6

Defendants provide an extensive explanation of the problems posed by Flaviano’s proposed
accommodation to arrive late for one shift and work through the start of the next shift, namely, that he would
miss turnover briefings, fail to provide supervision for subordinates at the start of his first shift, and provide
unneeded supervision at the start of the next shift (i.e., the end of his altered schedule). But this description is
unsworn attorney argument contained in a footnote of defendants’ reply brief (Defs.’ Reply at 2 n.2).
Accordingly, this description is not considered.

15

1

have been granted for any personal need, regardless of marital status. Moreover, Chief Daly’s

2

and Lieutenant Gooding’s comments simply show animus against Flaviano due to his failure to

3

arrange his personal life to accommodate the duties of his job. That does not indicate animus

4

relating to his marital status (or due to his membership in any protected class, for that matter).

5

Flaviano’s claims based thereon fail.7

6

2.

RETALIATION CLAIMS.

7

Flaviano contends that defendants retaliated against him for filing his two EEO

8

complaints and internal complaints. To state a claim for retaliation under FEHA, Flaviano must

9

show: (i) he engaged in protected activity, (ii) defendants subjected him to an adverse
employment action, and (iii) there was a causal link between the protected activity and the

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For the Northern District of California

United States District Court

10

adverse employment action. Passantino v. Johnson & Johnson Consumer Products, Inc., 212

12

F.3d 493, 506 (9th Cir. 2000). This order assumes, solely for the sake of argument, that

13

Flaviano’s EEO and internal complaints constituted “protected activities,” although, as

14

discussed above, his allegations of discrimination, which also formed the basis for those

15

complaints, fail. We turn instead to the purported adverse employment actions that Flaviano

16

suffered.

17

“Not every employment decision amounts to an adverse employment action.” Strother

18

v. Southern Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir. 1996). For the purposes

19

of a retaliation claim under FEHA, an adverse employment action is one that “materially

20

affect[s] the terms, conditions, and privileges of employment . . . .” Yanowitz v. L’Oreal USA,

21

Inc., 36 Cal. 4th 1028, 1054 (2005); see also Hardin v. Wal Mart Stores, Inc., 604 Fed. Appx.

22

545, 547 (9th Cir. 2015) (unpublished) (citing Yanowitz), cert. denied, 136 S. Ct. 331 (2015).

23

Flaviano contends he suffered the following adverse employment actions: his

24

assignment to third watch, his supervisors’ change in demeanor, the disciplinary record after he

25
26
27
28

7
Flaviano cites Maisonet’s declaration as evidence of a concerted attack on their marriage by our
defendants. He appears to refer to Maisonet’s complaint about the frustrated demeanor of her supervisors when
she requested FMLA leave (Maisonet Decl. ¶ 5). Maisonet’s anecdote is simply irrelevant and does nothing to
show discrimination against Flaviano on the basis of his marital status.

16

1

brought his child in to work, the denial of his vacation request, and the docking of his pay.

2

Each purported adverse employment action is addressed in turn.

3
4

A.

Assignment to Third Watch.

Flaviano contends that defendants retaliated against him by reassigning him from second

first EEO complaint. Defendants contend this reassignment could not have materially affected

7

the terms and conditions of Flaviano’s employment, because by the express terms and

8

conditions of his employment, Flaviano was “required to work any shift and schedule in a

9

variety of settings throughout the hospital and may be required to work overtime and float to

10

other work locations as determined by the operational needs of the hospital” (Gooding Decl.,

11
For the Northern District of California

watch (6:00 a.m to 2:00 p.m.) to third watch (2:00 p.m. to 10:00 p.m.) shortly after he filed his

6

United States District Court

5

Exh. A). A mere transfer does not constitute an adverse employment action. Akers v. County of

12

San Diego, 95 Cal. App. 4th 1441, 1455 (2002).

13

Flaviano responds that his reassignment constituted an adverse employment action

14

because it interfered with his family life. Specifically, he contends that the reassignment

15

required him to perform a “baby exchange” with Maisonet at the close of her shift and the start

16

of his shift. Flaviano cites Patten v. Grant Joint High School District for the proposition that an

17

involuntary transfer could constitute an adverse action if it has an adverse action on the subject

18

employee’s family life. 134 Cal. App. 4th 1378, 1390 (2005). Patten does not support that

19

proposition.

20

In Patten, a school principal alleged she suffered retaliation after she reported budgetary

21

legal violations to the state legislature. After the principal’s whistleblowing occurred, the

22

school board reassigned her to a different school, which eventually led her to quit (allegedly

23

constituting constructive discharge). The transfer involved many changed circumstances: the

24

new assignment was at a smaller school with high-achieving students where the principal (who

25

had just started her career) lacked opportunities for growth or to “make her mark,” which the

26

disputed evidence showed could be viewed as a demotion. Moreover, the board planned to

27

close the new school at the end of the year of the principal’s new assignment. The disputed

28

evidence also showed that prior to the transfer, the school board gave the principal inadequate
17

1

administrative support. Critically for Flaviano, the decision Patten noted, among other “smaller

2

problems with the . . . transfer,” the new school remained in session year-round, which

3

interfered with the principal’s family life inasmuch as her children attended a school that

4

followed a traditional schedule.

5

The court in Patten noted “many of these actions and problems . . . [did] not rise to

6

material adverse actions on their own” but that the aggregate of the actions could, at least

7

enough to survive summary judgment. Ibid. Contrary to Flaviano, Patten did not conclude that

8

a mandatory transfer could constitute an adverse employment action simply because it

9

interfered with the employee’s family life. Thus, his attempt to analogize to Patten fails.
Moreover, Flaviano presents absolutely no evidence that his reassignment to third watch

11
For the Northern District of California

United States District Court

10

in fact required him to perform a “baby exchange.” Nor would such an inference be reasonable.

12

On the contrary, while Flaviano and Maisonet both worked on second watch, they faced the

13

challenge that the were unable or unwilling to arrange for care of their daughter for the full

14

duration of that shift. (Thus, Flaviano requested an alternate work schedule.) Flaviano’s

15

reassignment to third watch largely alleviated that problem by requiring Flaviano to arrange for

16

care of his daughter only for the last few minutes of Maisonet’s shift on second watch (and

17

before his shift) through the first few minutes of his shift on third wach (and after Maisonet’s

18

shift). Any impact on Flaviano’s family life stemmed from his refusal to arrange for care of his

19

daughter while he worked regardless of the assigned shift, not from his reassignment to third

20

watch. Flaviano has completely failed to show that his reassignment “materially affected the

21

terms and conditions of [his] employment.” Yanowitz, 36 Cal. 4th at 1054.

22

Flaviano also asserts that his reassignment to third watch affected his family life because

23

Maisonet would not be able to work overtime during third watch while he supervised that watch

24

(Flaviano Decl. ¶ 15). This assertion is inadmissible speculation about how defendants would

25

arrange Maisonet’s schedule, and it cannot be reconciled with the fact that up until that

26

reassignment, Flaviano and Maisonet worked on the very same shift, though Flaviano did not

27

supervise her (see Flaviano Dep. at 27). Defendants’ evidentiary objection on that ground is

28

SUSTAINED. Moreover, even if true, limiting Maisonet’s opportunities for overtime would have
18

1

been a change to the terms of Maisonet’s employment (if at all), not Flaviano’s. Maisonet is not

2

our plaintiff.

3

As to the holding in Patten, that a combination of actions could constitute retaliation

4

even if no single alleged action could, Flaviano’s remaining allegations did not constitute

5

adverse actions alone or in the aggregate, as now discussed.

6
7

B.

Change in Demeanor.

Flaviano contends he faced retaliation when Chief Daly’s and Lieutenant Gooding’s

8

demeanors became cold and harsh towards him after he filed his first EEO complaint (regarding

9

the denial of his request for an alternate work schedule) and when Lieutenant Gooding yelled at
him for continuing to seek “different angles” for his childcare needs when both Flaviano and

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For the Northern District of California

United States District Court

10

Maisonet sought FMLA leave. Flaviano offers no evidence whatsoever to suggest that this

12

change in tone “materially affect[ed] the terms, conditions, and privileges of [his] employment.”

13

Yanowitz, 36 Cal. 4th at 1054. Indeed, Yanowitz expressly stated that “a mere offensive

14

utterance or even a pattern of social slights by either the employer or co-employees cannot be

15

properly viewed as materially affecting the terms, conditions, or privileges of employment . . .”

16

Ibid. Accordingly, Flaviano has failed to raise any dispute of material fact supporting his claim

17

of retaliation under FEHA based on defendants’ change of demeanor following his EEO

18

complaints and FMLA requests.8

19

C.

20

Counseling Record.

Flaviano contends he suffered an adverse employment action when defendants issued a

21

disciplinary counseling memorandum after he brought his daughter in to work for the entirety of

22

his shift. (The counseling memorandum addressed Flaviano’s continued failure to make

23

childcare accommodations, which came to a head that day.) Flaviano concedes that it was not

24

“acceptable or appropriate” to bring his child to work (Flaviano Dep. at 79).

25
26
27
28

8
Flaviano cites defendants’ statements in connection with the EEO investigation as further evidence
of their changed demeanor. As discussed above, those statements have not been offered in an admissible form.
In any case, the statements themselves cannot constitute adverse employment actions (they were provided as
part of the investigation), and they simply show defendants’ frustration with Flaviano’s persistent refusal to
resolve the interference with his job duties presented by his childcare issues.

19

1

Flaviano cites several decisions identifying “undeserved” negative performance

2

evaluations or disciplinary actions as adverse employment actions, but he offers no evidence or

3

argument suggesting that his counseling record was undeserved. See, e.g., Yanowitz, 36 Cal.

4

4th at 1055; Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Nor could a reasonable

5

jury infer that Flaviano received unwarranted discipline for failing to arrange childcare in a

6

manner that enabled him to come to work on time or for keeping his daughter in tow while on

7

duty as a police officer.9

8
9

Flaviano has failed to show his counseling record constituted an adverse employment
action for the purposes of his claims herein.
D.

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For the Northern District of California

United States District Court

10

FMLA/CFRA Request.

Flaviano contends he suffered retaliation when Lieutenant Gooding denied his request

12

for a three-day extension of his leave (which resulted in Flaviano using vacation time to account

13

for his three absences). (To be clear, neither side contends that the FMLA or CFRA entitled

14

Flaviano to the schedule accommodations he sought.)

15

All agree that (whether or not Lieutenant Gooding approved the request over the phone)

16

Lieutenant Gooding rejected Flaviano’s first written FMLA application because a physician’s

17

signature appeared to be no more than a straight line, and the physician’s name was not

18

otherwise hand-printed anywhere. Flaviano adds that Lieutenant Gooding also rejected the

19

application because it was “not specific enough” without explaining the deficiency (Flaviano

20

Decl. ¶ 24). All further agree that Flaviano submitted a follow-up application, which was never

21

formally approved. This order assumes, solely for the sake of argument, that Flaviano

22

requested leave for a proper purpose, namely, that his wife was ill with a serious health

23

condition (although the record is unclear on that point).

24

In his declaration, Flaviano purports to dispute Lieutenant Gooding’s description of

25

those events, stating that “[Flaviano] submitted [his] initial FMLA form to Defendant Gooding

26

in October 2012, and, at [Lieutenant Gooding’s] request, [Flaviano] submitted a new FMLA

27
9

28

To the extent the counseling memorandum played a role in Flaviano’s termination, Flaviano released
any claim based on his termination, as discussed in the order on defendants’ prior motion for summary judgment
(Dkt. No. 29).

20

1

form in November 2012, which [Lieutenant Gooding] took no action on” (Flaviano Decl. ¶ 30).

2

Flaviano makes no mention of Lieutenant Gooding’s concern that the second application

3

apparently sought ten years of continuous leave. Flaviano’s narrative aligns with Lieutenant

4

Gooding’s account of the events.

5

Lieutenant Gooding rejected Flaviano’s first application due to issues with the signature

6

and sought clarification of Flaviano’s second application because it appeared to request ten

7

years of continuous leave (Gooding Decl. ¶ 18, Exh. E). Lieutenant Gooding never processed

8

the second application for that reason, and Flaviano never responded to Lieutenant Gooding’s

9

request for clarification. Flaviano does not dispute the authenticity of his signature on the

11
For the Northern District of California

United States District Court

10

return receipt for that second application (Gooding Decl., Exh. F).
Because Flaviano failed to show that he ever perfected his request for leave under the

12

FMLA or CFRA, his claim that his requests were denied in retaliation for his EEO complaints

13

fails. (Flaviano’s claim that Lieutenant Gooding unlawfully interfered with those requests, or

14

that Flaviano suffered retaliation as a result of making those requests also fail.)

15
16

E.

Docked Pay.

All agree that Lieutenant Gooding’s initial decision to deem Flaviano AWOL for the three

17

days of his requested extended leave was ultimately overruled. Further, all agree that Flaviano

18

was allowed to use paid vacation time to account for his absence on those three days. Flaviano

19

contends that he suffered an adverse employment action because his pay was docked

20

notwithstanding the reversal of Lieutenant Gooding’s decision.

21

While defendants offer Lieutenant Gooding’s declaration that “Flaviano’s salary was

22

never actually docked” (Gooding Decl. ¶ 10), Flaviano offers no admissible evidence to the

23

contrary. Indeed, Flaviano’s failure to aver in his own sworn statement that his pay was

24

actually docked is stark. Flaviano states that he “made a complaint about [his] wages being

25

docked” but never actually swears behind that allegation.

26

The only documents concerning Flaviano’s alleged docked pay are his EEO complaint

27

and supporting documents (the cited exhibit, Exhibit 5, appears to include Flaviano’s internal

28

complaint and union grievance as well, though Flaviano does not explain that discrepancy).
21

1

The proffered documents include the allegations of Flaviano’s various complaints (which never

2

directly state that his pay was docked), an email from Flaviano’s counsel to a representative of

3

the Department of State Hospitals stating that Flaviano had “not received any indication that he

4

had been paid,” and a letter from the personnel office at Napa State Hospital indicating that

5

Flaviano had received a “Salary Overpayment” (Flaviano Decl., Exh. 5). The entirety of

6

Exhibit 5 is inadmissible hearsay, which cannot be relied upon to dispute Lieutenant Gooding’s

7

unequivocal statement that Flaviano’s pay was never actually docked.

8
9

the purported “docking” of his pay. Thus, his retaliation claim under FEHA (and the claim
under the FLSA based on the same conduct), must fail.
HARASSMENT CLAIMS.

11
For the Northern District of California

United States District Court

10

Accordingly, Flaviano has offered no evidence of an adverse employment action based on

3.

12

For the same reasons Flaviano failed to establish an adverse employment action to support

13

his retaliation claim, he has also failed to establish a “severe or pervasive” pattern of conduct

14

that “altered the conditions of his . . . employment . . . .” See Vasquez v. Cty. of Los Angeles,

15

349 F.3d 634, 642–43 (9th Cir. 2003). Moreover, for the same reasons he failed to establish his

16

discrimination claims, Flaviano has failed to show that any alleged conduct was “because of”

17

his race, national origin, or marital status, as opposed to due to his failure to arrange for care of

18

his daughter in a manner that enabled him to fulfill his job duties. Cal. Gov’t Code 12940(j).

19

4.

CFRA AND FMLA CLAIMS.

20

Flaviano’s contention that Lieutenant Gooding unlawfully interfered with his exercise of

21

rights under the FMLA and CFRA (by denying his requests for leave) fails for the same reason

22

that Lieutenant Gooding’s conduct did not constitute retaliation. Namely, Lieutenant

23

Gooding’s showing that Flaviano never completed the formalities of requesting leave pursuant

24

to those acts remains unrebutted. Nor has Flaviano showed that Lieutenant Gooding’s requests

25

for proper documentation were unjustified. (The FMLA requests were never placed in the

26

summary judgment record by counsel.)

27
28
22

1
2
3

CONCLUSION
For the reasons stated above, defendants’ motion for summary judgment is GRANTED.
Judgment will follow.

4
5

IT IS SO ORDERED.

6
7

Dated: January 25, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

8
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For the Northern District of California

United States District Court

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