Burrell et al v. County of Santa Clara et al

Filing 178

ORDER Granting in Part and Denying in Part 32 MOTION for Summary Judgment filed by Rae Wedel, Dan Peddycord, Marty Fenstersheib, County of Santa Clara, Denying as Moot 31 MOTION to Sever filed by Rae Wedel, Dan Peddycord, Marty Fenstersheib, County of Santa Clara. Signed by Judge Lucy H. Koh on May 17, 2013. (lhklc2, COURT STAFF) (Filed on 5/17/2013)

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UNITED STATES DISTRICT COURT

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United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ALMA BURRELL, VICKYE HAYTER,
MARGARET HEADD,
Plaintiffs,

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v.
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COUNTY OF SANTA CLARA, DAN
PEDDYCORD, RAE WEDEL, MARTY
FENSTERSHEIB AND DOES 1 THROUGH
50, INCLUSIVE,
Defendants.

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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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Plaintiffs Alma Burrell (“Burrell”), Vickye Hayter (“Hayter”), and Margaret Headd

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(“Headd”) (collectively, “Plaintiffs”), bring suit against their employer, County of Santa Clara

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(“the County”), and three County employees, Dan Peddycord, Rae Wedel, and Marty Fenstersheib,

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alleging: (1) retaliation in violation of California’s Fair Employment and Housing Act (“FEHA”),

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California Government Code § 12940(h); 1 (2) failure to protect from discrimination under FEHA,

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Although the caption of Plaintiffs’ Amended Complaint indicates that the first cause of action for
retaliation alleges violation of both “Title VII and FEHA,” the body of the Amended Complaint
contains only a reference to “Retaliation Under FEHA,” citing to California Government Code §
12940(h). ECF No. 6, ¶¶ 79-83. At the April 4, 2013 summary judgment hearing, Plaintiffs’
counsel confirmed that Plaintiffs were not pursuing any Title VII causes of action.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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California Government Code § 12940(k); (3) discrimination based on disparate treatment in

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violation of California Government Code § 12940(a) (claims 3, 4, and 5); (4) discrimination based

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on disparate impact in violation of California Government Code § 12900 et seq. (claims 6, 7, and

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8); and (5) retaliation for exercising free speech rights, as well as negligent hiring, training, and

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supervision, in violation of 42 U.S.C. § 1983 (claims 9 and 10). 2

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Presently before the Court are Defendants’ Motion for Summary Judgment and Defendants’

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Motion to Sever Plaintiff Headd. 3 The Court held a hearing on these motions on April 4, 2013

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(“April 4 hearing”). Having considered the parties’ submissions, the parties’ oral arguments, and

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the relevant law, the Court GRANTS in part and DENIES in part Defendants’ Motion for

United States District Court
For the Northern District of California

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Summary Judgment. The Court DENIES Defendants’ Motion to Sever as moot.

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I.

PROCEDURAL HISTORY

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Plaintiffs filed their first Complaint on September 14, 2011, ECF No. 1, which they then

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amended on December 15, 2011, ECF No. 6 (“Amended Complaint” or “AC”). On February 3,

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2012, Defendants answered the Amended Complaint. ECF No. 13 (“Answer”).

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On January 24, 2013, Defendants filed the instant Motion for Summary Judgment, ECF No.

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32 (“Mot.”), and a Motion to Sever Plaintiff Headd, ECF No. 31 (“Mot. to Sever”). On January

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30, 2013, Plaintiffs filed an Ex Parte Motion to Extend Time from February 7, 2013, to February

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Plaintiffs’ Amended Complaint lists the tenth cause of action as “Retaliation for Exercising Free
Speech - 42 U.S.C. § 1983,” but the body of this section references Retaliation under FEHA,
specifically California Government Code § 12940(h). See AC ¶¶ 116-17. Because Section
12940(h) is addressed under the first cause of action, the Court construes the tenth cause of action
for retaliation as stating a claim under 42 U.S.C. § 1983.
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Defendants also filed a Motion to Exclude Amy Oppenheimer’s Expert Reports and Testimony
(“Mot. to Exclude”), ECF No. 48. At the pre-trial conference on May 2, 2013, the Court DENIED
Defendants’ motion with respect to Oppenheimer’s “preliminary report.” Mot. to Exclude, Ex. F.
Oppenheimer’s preliminary report was timely served on Defendants on December 28, 2013, the
last day of the extended period to disclose opening reports. See Mot. to Exclude at 3-4. However,
the Court GRANTED Defendants’ motion with respect to Oppenheimer’s “amended report.” The
Court found the amended report untimely because it was served on Defendants on January 28,
2013, one month after the deadline for opening reports, and four days after Defendants’ Motion for
Summary Judgment was filed on January 23, 2013. See Mot. to Exclude at 4-5; Decl. of Charles
Bonner, ECF No. 52, Ex. 6. The Court further ruled that Oppenheimer’s testimony at trial would
be limited to the contents of the preliminary report. See ECF No. 132 (Tr. of May 2, 2013 PreTrial Conference), at 79:2-90:27.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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14, 2013, to file oppositions to the Motion for Summary Judgment and Motion to Sever. ECF No.

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42. The Court denied Plaintiffs’ Ex Parte Motion to Extend Time. ECF No. 46. 4 On February 7,

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2013, Plaintiffs filed an Opposition to Defendants’ Motion for Summary Judgment. ECF No. 50

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(“Opp’n”). On February 11, 2013, Plaintiffs filed an “Amended Opposition,” without an

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accompanying motion or any form of explanation. See ECF No. 57. On February 14, 2013,

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Defendants filed their Reply, in which they also moved to strike Plaintiffs’ Amended Opposition as

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untimely. ECF No. 59 (“Reply”), at n.1. Due to the Court’s prior denial of an extension of time,

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and the lack of any explanation accompanying Plaintiffs’ Amended Opposition, the Court

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GRANTS Defendants’ Motion to Strike Plaintiffs’ Amended Opposition.

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For the Northern District of California

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After the April 4 hearing on these motions, on April 16, 2013, Plaintiffs submitted a

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declaration and attached document that Plaintiffs stated was erroneously excluded from the exhibits

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accompanying their Opposition to Defendants’ Motion for Summary Judgment. ECF No. 75.

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The Court issued an Order stating its rulings on Defendants’ Motion for Summary

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Judgment and Motion to Sever on April 30, 2013, ECF No. 98. The Court stated its reasons for its

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rulings as to Plaintiff Burrell at the pre-trial conference on May 2, 2013, ECF No. 132.

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II.

EVIDENTIARY OBJECTIONS

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Both parties filed objections to the evidence submitted in relation to the Motion for

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Summary Judgment. However, Plaintiffs’ evidentiary objections fail to comply with Civil Local

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Rule 7-3(a), as Plaintiffs did not include the evidentiary objections within their 30-page

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Opposition. Instead, Plaintiffs raised their evidentiary objections in a separate two-page document.

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But see Civil L. R. 7-3(a) (“Any evidentiary and procedural objections to the motion must be

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contained within the brief or memorandum.”). Accordingly, the Court OVERRULES Plaintiffs’

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evidentiary objections for failure to comply with Civil Local Rule 7-3(a).

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The Court denied Plaintiffs’ ex parte request because, among other reasons, Plaintiffs provided
no justification for needing the extension of time other than the volume of work involved, and the
Court’s schedule could not accommodate an extension of time as it would interfere with
preparation for the upcoming trial.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

Defendants properly submitted evidentiary objections in their Reply. See ECF No. 59.

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Defendants object to significant portions of the declarations of Plaintiffs Alma Burrell, Vickye

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Hayter, and Margaret Headd, as well as four other accompanying declarations submitted as

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exhibits supporting Plaintiffs’ Opposition. To the extent that the Court relies on this disputed

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evidence, the Court addresses the evidentiary objections below. The Court does not rely on the

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remaining evidence and thus need not reach the remaining objections. However, the Court

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SUSTAINS Defendants’ objections under Fed. R. Evid. 402 and 602 to the repeated statements in

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Plaintiffs’ declarations that make legal conclusions regarding which issues are “triable.” See, e.g.,

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Decl. of Alma Burrell (“Burrell Decl.”), ECF No. 53, ¶ 11 (“There is a triable issue of fact as to

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United States District Court
For the Northern District of California

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whether I was discriminated against on the basis of race and gender[.]”); Decl. of Vickye Hayter

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(“Hayter Decl.”), ECF No. 54, ¶ 9 (“There is a triable issue of fact as to whether my race was a

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motivating factor in the County’s decision to pay me for only seventy (70) day [sic] . . .”); Decl. of

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Margaret Headd (“Headd Decl.”), ECF No. 55, ¶ 19 (“There is a triable issue of fact as to whether

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the County’s business reason for denying me a promotion, reinstatement to my former position, or

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hiring me into a new position is false.”).

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III.

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FACTUAL BACKGROUND
Plaintiffs Alma Burrell, Vickye Hayter, and Margaret Headd are three female, African

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American employees in the Santa Clara County Public Health Department (“PHD”). Each Plaintiff

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alleges employment discrimination by the County, though based on different factual circumstances.

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A.

Alma Burrell

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Alma Burrell, who holds a Bachelors of Science degree in Health Science and a Masters

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degree in Public Health, started working for the County approximately fifteen years ago. See

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Burrell Decl. ¶ 4; see also Decl. of Melissa Kiniyalocts (“MK Decl.”), ECF No. 33, Ex. A, Dep. of

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Alma Burrell (“Burrell Dep.”), at 16:20-22. Burrell’s current position is Health Care Program

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Manager II (“HCPM II”). Burrell Decl. ¶ 2. Prior to working as HCPM II, Burrell worked as a

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Health Education Specialist at the Black Infant Health Program (“BIH”), and then as a Program

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Manager I. See Burrell Dep. 21:1-8.

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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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2002 Reassignment

In 2002, Burrell’s job title changed from Program Manager I to HCPM II following a study

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that resulted in the reclassification of many employees. Burrell Dep. at 27:6-19; Decl. of Joanne

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Cox (“Cox Decl.”), ECF No. 36, ¶ 5. At that time, the County reclassified other, non-African

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American employees as Senior Health Care Program Managers (“SrHCPM”), a higher level than

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HCPM II. See Burrell Decl. ¶ 4; Burrell Dep. 30:23-31:11.

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Burrell asked her manager, Dolores Alvarado, about the criteria that were used to determine

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the reclassifications. See Burrell Dep. at 30:6-31:11; 34:11-17. Alvarado explained that the

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classification “was based on complexity of your job, span of control, and . . . the number of staff or

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For the Northern District of California

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type of staff.” Burrell Dep. at 30:16-20. Burrell did not think that the reclassification was fair,

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however, because there were other employees promoted to SrHCPM positions who “had less span

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of control and managed fewer or no employees” than Burrell. Burrell Decl. ¶ 4; Burrell Dep.

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30:23-31:11.

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At some point thereafter, Burrell asked Alvarado about the prospects for getting promoted

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to a SrHCPM position. Burrell Dep. 57:15-16. According to Burrell, Alvarado responded by

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telling Burrell that she “needed to be patient” and that “other people [we]re involved in making

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those decisions as well.” Id. at 57:18-20. Specifically, PHD Administrative Services Manager,

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Rae Wedel, allegedly said that Burrell “had not paid [her] dues” and that she was “moving up too

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fast.” Id. at 58:1-9. Burrell asked Alvarado if the reason that she was not getting promoted to

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SrHCPM was because of her race. Alvarado responded by saying, “on [Alvarado’s] part, no.” Id.

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at 59:9-10. Burrell then asked, “What about Rae? . . . D[oes] Rae have a problem with my race?”

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Id. at 59:10-11. Alvarado allegedly responded by saying, “I hope not. I hope that is not . . . it.”

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Id. at 59:12-13.

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Burrell complained about the results of the reclassification study to her union, but her union

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representative said that he was not going to file a grievance because of a promise he made to the

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Board of Supervisors. Id. at 36:22-39:23. Burrell’s union representative did, however, organize a

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meeting with Burrell and her supervisors to discuss the subject. Id. at 36:22-39:23. According to

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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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Burrell, the meeting ended without resolution. Id. at 39:23. Burrell subsequently formed the

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opinion that her reclassification was due to her race. Id. at 34:11-35:10. 5

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2.

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2008 Appointment

Around 2006, Burrell contends that she and Alvarado discussed Burrell’s interest in a

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SrHCPM position that included responsibility over the HIV/AIDS Program. Alvarado allegedly

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started preparing Burrell for this position, which included sending Burrell to two conferences about

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HIV/AIDS and having Burrell tell her staff about the upcoming transfer. See Burrell Dep. at 74:3-

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77:1. However, on January 28, 2008, PHD employee “J.M.,” a European-American, was

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administratively transferred into the position when his SrHCPM position was deleted due to budget

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For the Northern District of California

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cuts. Id. at 71:9-20; 72:9-19; Cox Decl. ¶ 6. According to Defendants, J.M. was entitled to the

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administrative transfer under the County’s labor agreement with the union and its Merit System

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Rules. Cox Decl. ¶ 6.

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3.

2008 Application for Reclassification

In July of 2008, at Alvarado’s suggestion, Burrell submitted a “Classification Review” 6

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request to Alvarado, asking that Burrell’s position of HCPM II be reviewed to determine if the

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appropriate classification for her responsibilities was a SrHCPM. Cox. Decl. ¶ 7. Alvarado

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reviewed and signed the form and forwarded it to the County’s Employee Services Agency

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(“ESA”) for processing. See Burrell Dep. at 93:6-7; MK Decl., Ex. E, Dep. of Dolores Alvarado

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(“Alvarado Dep.”) at 116:12-17; Cox. Decl. ¶ 7. After Burrell’s request was denied, she and her

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union representative met with Senior Human Resources Analyst, Christine Goodson, to discuss the

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denial on October 16, 2008. Burrell Dep. at 94:21-95:6; 97:14-98:11; Decl. of Christine Goodson

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(“Goodson Decl.”), ECF No. 38, ¶¶ 3-4. Following the meeting, Burrell asked Goodson to provide

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a written explanation of the reclassification denial. Goodson Decl. ¶ 5. On November 3, 2008,

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Burrell has also expressed her belief that the “only distinction between me and the others who
were classified to the SrHCPM position is that I am African-American.” Burrell Decl. ¶ 4; Burrell
Dep. 31:4-32:05. Defendants have moved to strike this statement due to lack of personal
knowledge. Reply at 1. The Court OVERRULES this objection.
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A Classification Review is a process by which employees who are represented by Burrell’s
union, the County Employees Management Association (CEMA), may ensure that their positions
are properly classified. See Mot. at 3.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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Goodson provided Burrell a written response in which Goodson stated that Burrell was properly

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classified based on her breadth of responsibility, independent judgment, program knowledge,

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supervision exercised, and supervision received. Id. ¶ 6.

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Burrell believes that the denial of her reclassification was based on her race. See Burrell

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Dep. at 103:2-11. She alleges that Goodson did not conduct any investigation into the position

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before denying Burrell’s request, and that Goodson’s stated reasons for the denial were erroneous.

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Specifically, Burrell states that Goodson based her Classification Report on the false assertions that

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Burrell did not supervise other managers, and that a SrHCPM would necessarily serve on an

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Executive team. See Opp’n at 4 (citing MK Decl., Ex. D, Dep. of Rae Wedel (“Wedel Dep.”) at

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For the Northern District of California

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146:1-147:25); Burrell Decl. ¶¶ 25, 31.

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4.

Burrell’s Support of Hayter’s Application for Reallocation

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In 2007 and 2008, Burrell supported Hayter, one of the women Burrell supervised in BIH,

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in applying for “reallocation” 7 from a Public Health Nurse (“PHN”) II to a PHN III. Burrell Dep.

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at 211:10-15; MK Decl., Ex. B, Dep. of Vickye Hayter (“Hayter Dep.”) at 115:22-25. Burrell

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alleges that Alvarado warned Burrell that she would be looked upon unfavorably if she continued

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to support Hayter’s request for reclassification. Burrell Dep. at 219:14-220:3.

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According to Burrell, Alvarado then removed Burrell’s responsibility over the Maternal

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Child and Adolescent Health (“MCAH”) program, as well as another program, in retaliation for

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Burrell’s support of Hayter’s application for reclassification. Burrell is inconsistent as to whether

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the removal of responsibility occurred in 2008 or 2009. Compare Burrell Dep. at 126:7-8; 128:15-

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130:3 (citing 2009 as the year that Alvarado removed these programs), with Burrell Decl. at ¶38

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(declaring that Alvarado removed these programs on July 16, 2008, while Burrell’s own

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The County explains that reallocation is a procedure guaranteed by the collective bargaining
agreement of Hayter’s union, Service Employees International Union (“SEIU”), by which
employees can request to have their positions studied to see if they qualify for a higher-level
classification and seek review of any such decision. See Mot. at 6 n.5 (discussing the procedural
and substantive requirements of reallocation, and noting factors that support classification
including a change in training and experience required to perform the work, an increase in the
complexity of decision making required for the position, and a change in management
responsibility).
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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application for reclassification was pending). Burrell also alleges that the removal of these

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programs interfered with her request to be reclassified as a SrHCPM. Burrell Decl. ¶ 38.

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2010 Denial of Promotion

In October of 2009, “C.M.,” another PHD employee also classified as a HCPM II, began

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working “out of class” in a SrHCPM position held by “D.F.,” who was out of the office on medical

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leave. See Cox Decl. ¶ 8.

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In February of 2010, Burrell met with her new manager, Charis Subil, to discuss a plan

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created by Burrell to get promoted to SrHCPM. Burrell Dep. at 137:9-20. Subil allegedly thought

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Burrell’s proposal was “a good idea,” and that she would take it to the new PHD Director, Dan

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For the Northern District of California

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Peddycord. Burrell Dep. 138:6-9. Subil allegedly told Burrell that she thought Burrell should be

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promoted. Burrell Dep. 147:2-3. In March of 2010, Burrell met with Peddycord to discuss

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Burrell’s promotion into a SrHCPM “code.” Burrell Decl. ¶ 45. Burrell alleges that Peddycord

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was initially enthusiastic about Burrell’s proposal during the March 2010 meeting, and said that he

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would support any decision made by Subil. Id.; Burrell Dep. at 146:11-17.

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On April 5, 2010, as part of the PHD Fiscal Year 2011 Budget, the County permanently

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transferred C.M. into D.F.’s SrHCPM position, and deleted C.M.’s former HCPM II position. See

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Cox Decl. ¶ 6.

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In September of 2010, Burrell met with Peddycord and Subil to discuss Burrell’s request to

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be made a SrHCPM. Burrell Dep. at 147:17-149:12. Burrell contends that Peddycord told her she

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would not be promoted because Burrell had not participated in H1N1 activities. Id. at 148:15-19.

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Burrell says that she told Peddycord that she was on medical leave for three or four weeks and,

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when she returned, Alvarado prohibited her from participating in different H1N1 outreach groups.

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Id. at 149:6-12; 152:5-18. Burrell further alleges that she expressed interest at that meeting in a

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SrHCPM code that was previously held by PHD employee, D.F. Id. at 158:15-21. Burrell

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contends that Peddycord said he would get back to her in two weeks, but never did. Id. at 160:23-

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161:19.

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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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In October of 2010, Burrell learned that C.M. had been promoted from HCPM II to the

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SrHCPM position previously held by D.F. Burrell Dep. at 166:2-167:13; Cox. Decl. ¶ 8. The

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County alleges that there was no requirement that the County post the SrHCPM position, accept

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applications for the position, or interview candidates. Cox. Decl. ¶ 8.

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6.

2010 Department of Fair Employment and Housing Complaint

Burrell filed a complaint alleging discrimination based on race with the Department of Fair

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Employment and Housing (“DFEH”) on October 26, 2010, based on the September 2010 denial of

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her request for a promotion. MK Decl. Ex. G. On May 27, 2011, the DFEH issued Burrell a right-

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to-sue notice. Id.

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For the Northern District of California

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B.

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Vickie Hayter is an African American woman who holds a Bachelors of Nursing degree

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and a Masters of Science degree in Health Science. Hayter Decl. at ¶ 2, p .1, 8 ¶ 17. She began

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working for the County in 2001, and transferred to the PHD in 2004, where she worked in the BIH

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program. Hayter Dep. at 18:6-19:1, 22:23-23:15. Hayter was classified as a PHN II beginning in

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March of 2005. Cox Decl. ¶ 9.

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1.

Vickye Hayter

December 2005 Application for Reallocation

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In December of 2005, Hayter applied for reallocation of her position from PHN II to PHN

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III. Cox Decl. ¶ 10. On February 21, 2006, Hayter’s application was denied, purportedly because

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she failed to meet the PHN III position’s general requirement of working as a PHN for at least

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three years. Hayter Dep. at 42:14-43:9; Cox Decl. ¶ 12. Hayter was on maternity leave at that

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point, and she alleges that she was told that she could not have the decision reviewed because the

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dates for review could not be adjusted. Hayter Dep. at 51:3-53:16. Defendants note that Hayter

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did not request an allocation review hearing. Cox Decl. ¶ 12.

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Hayter’s Declaration contains numbered paragraphs 1 through 9 on pages 1 through 4, followed
by numbered paragraphs 1 through 25 on pages 5 through 14.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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2.

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January 2007 Application for Reclassification

In January of 2007, Hayter applied for reclassification from PHN II to PHN III. Hayter

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Dep. at 55:14-19; 57:12-17; Cox Decl. ¶ 13. 9 On April 6, 2007, the application was denied on the

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ground that she was performing duties consistent with a PHN II. Hayter Dep. at 59:12-61:25; Cox

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Decl. ¶ 15. Hayter did not appeal this decision. Cox Decl. ¶ 15.

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3.

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December 2007 Application for Reallocation

In December of 2007, Hayter applied again for reallocation from PHN II to PHN III.

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Hayter Dep. at 65:5-11; Cox Decl. ¶ 16. Human Resources Analyst Kathy Buchanan

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recommended that Hayter’s application for reallocation be granted, Cox Decl. ¶ 16, but PHD

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For the Northern District of California

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administration believed that Hayter was performing PHN II level duties and should not be

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reclassified. Wedel Dep. at 413:17-23; 414:22-415:3; Alvarado Dep. at 315:18-23; 324: 11-22.

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Human Resources Director Joanne Cox states that she determined that Hayter may have been

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performing some duties that were not PHN II duties, including researching and preparing grants for

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her department, and therefore was performing her job in a manner inconsistent with County Policy.

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Cox Decl. ¶ 17. On April 9, 2008, these duties were removed. Id. Cox alleges that she did not

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know Hayter’s race at the time that Cox recommended the removal of Hayter’s extra duties. Id.

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On April 10, 2008, Hayter was notified that her position would not be reallocated, but that

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she would be paid for 70 days of working out of class, the number of work days from when Hayter

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first submitted her Position Classification Questionnaire to her supervisor to the date of the

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County’s response. Cox Decl. ¶ 18.

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4.

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Hayter’s Grievance of the Third Denial of Reclassification

On May 6, 2008, Hayter filed a grievance with the County Labor Relations department,

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alleging that the County denied her the right to arbitrate her request for reallocation. Hayter Dep.

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81:12-13; Decl. of Pablo Pineda (“Pineda Decl.”), ECF No. 35, ¶ 3-4. The County’s Labor

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Relations Department responded that she was not entitled to arbitration. Pineda Decl. ¶ 5.

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The County defines reclassification as a process by which SEIU employees can request that their
positions be studied to determine whether they are performing duties appropriate for their
classification, and have any such decision reviewed by an appeals officer. The County notes that
“[r]eclassification is not intended . . to reward high performance.” Mot. at 7 n.6.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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On April 21, 2008, Hayter met with Kacy Snodgrass, SEIU Local 715 Contracts

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Enforcement Specialist, and Alvarado. Hayter Decl. ¶ 12. At this meeting, Alvarado purportedly

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accused Hayter of smirking, and subsequently told Burrell that Hayter had been rude and

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unprofessional. Id.

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In April of 2010, Hayter and her union representative met with Wedel, Burrell, Pineda, and
a labor relations representative to discuss Hayter’s grievance regarding the denial of her

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reallocation, the amount of her compensation for working out of class, and the appropriate scope of

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her work at BIH. Hayter Dep. at 102:3-15; Burrell Dep. at 218:13-19. Hayter states that Wedel

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made a comment to the effect of: “the African-American population is only about 2.9 percent in

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For the Northern District of California

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Santa Clara County, and that’s pretty insignificant, and I was only serving a small percentage of

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those.” Hayter Dep. 46:7-46:25. 10 See also Burrell Dep. 267: 1-23. Burrell also alleges that, after

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this meeting, Wedel made a comment about “these people.” Burrell Dep. at 241:4-241:5.

13
14

Hayter was on maternity leave with her third child followed by a medical leave from
September of 2010 until January of 2012. Hayter Dep. at 41:16-18.

15

5.

16

Hayter’s Two Applications to be A Public Health Nurse Manager
(PHNM)

Hayter applied twice to work as a Public Health Nurse Manager (“PHNM positions”).

17
18

Hayter Dep. at 30:3-13; Decl. of Sherae Moresco (“Moresco Decl.”), ECF No. 37, ¶ 12; Decl. of

19

Laura Brunetto (“Brunetto Decl.”), ECF No. 40, ¶ 4. Defendants allege that Hayter was denied the

20

first position because she lacked supervisory experience, and the second because another person,

21

“G.A.,” was selected who scored higher than Hayter on various selection criteria. Moresco Decl. ¶

22

12; Brunetto Decl. ¶ 4.
6.

23

Hayter’s Promotion to PHN III

24

In June of 2011, the County notified Hayter that her PHN II code in the BIH program was

25

deleted as the State changed the focus of the program to a more psychosocial model, and that she

26

would be reassigned to a PHN II in Regional Services. Hayter Dep. at 147:15-19; Cox Decl. ¶ 19.

27
28

10

In another recounting, Hayter states that Wedel said the African American population was only
2.9% “and could not be considered a community.” Hayter Decl. ¶ 15.
11

Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

Hayter does not claim that this reassignment was discriminatory in nature. Hayter Dep. at 147:23-

2

149:11. Hayter began working at Regional Services when she returned from her maternity and

3

medical leave in January of 2012. Id. at 41:16-18.

4
5

On April 30, 2012, Hayter was promoted to PHN III after applying and interviewing for a
vacant position. Hayter Dep. at 146:20-147:6; Moresco Decl. ¶ 13; Cox Decl. ¶ 20.

6

7.

2010 DFEH Complaint

On November 18, 2010, Hayter filed a complaint with the DFEH alleging discrimination

8

based on race due to an alleged denial of a promotion on April 29, 2010. MK Decl., Ex. H. On

9

July 14, 2011, the DFEH issued a right-to-sue notice. Id. On August 23, 2011, Hayter filed a

10
United States District Court
For the Northern District of California

7

complaint with the DFEH alleging denial of promotion, retaliation, and denial of a pregnancy

11

accommodation, on the basis of sex, race/color, and retaliation for engaging in protected activity or

12

requesting a protected leave of accommodation. Id. This complaint referred to the denials of

13

Hayter’s 2007 and 2008 applications for reallocation/reclassification. Id. On August 23, 2011, the

14

DFEH issued a right-to-sue notice. Id.

15

C.

Margaret Headd

16

Margaret Headd is an African American woman who holds a Bachelors of Science in

17

Health Science degree and a Masters degree in Public Health. Headd Decl. ¶ 2. She began

18

working at the County of Santa Clara Public Health Department in 2003. MK Decl., Ex. C, Dep.

19

of Margaret Headd (“Headd Dep.”) at 19:16-23. From 2003 until January of 2006, Headd held

20

various non-permanent statuses. Cox Decl. ¶ 21. In May of 2006, Headd obtained permanent

21

status in a position with the County, when she was hired as a Health Education Specialist (“HES”).

22

Headd Dep. at 32:2-7; Cox Decl. ¶ 25. Headd began treatment for cancer in December of 2008,

23

and remained on medical leave until October of 2009. Headd Dep. at 34:9-14; 37:13-15. On May

24

18, 2009, while on leave, Headd learned that she was being laid off due to budget reductions.

25

Headd Dep. at 56:15-57:3; 174:2-9.

26
27
28

12
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

1.

2

Inplacement While on Medical Leave on July 1, 2009

Also in May of 2009, after learning that she would be laid off, Headd indicated her interest

3

in being assigned to a new position through the County’s in-placement process, by which the

4

County can transfer laid-off employees to suitable vacant positions if the employee has no right to

5

claim another position. Headd Dep. 172:24-178:25; Cox Decl. ¶ 29. On or about July 1, 2009,

6

Headd was in-placed in a vacant part-time Management Aid (“MA”) position, and added to the

7

County’s reemployment list. 11 Cox Decl. ¶ 32; Headd Dep. at 56:15-21. Headd remained on

8

medical leave for the duration of her appointment in that position. Headd Dep. at 56:15-57:3.

9

Headd alleges that “L.I.,” a non-African American who was also on medical leave at that time, was

United States District Court
For the Northern District of California

10

inplaced in a more desirable position. Headd Dep. at 90:24-91:22.

11

2.

12

Administrative Transfer of October 15, 2009

While Headd was still on medical leave, the MA position to which she was reassigned was

13

deleted due to program restructuring. Headd Dep. at 95:15-96:25 & Ex. 7; Cox. Decl. ¶ 35.

14

Headd was then administratively transferred to another part-time MA position in the PHD Women,

15

Infants, and Children (“WIC”) Program, effective October 15, 2009. Id. Headd alleges that two

16

other employees, “R.G.” and “C.V.,” were laid off around the same time that she was

17

administratively transferred, but were subsequently transferred into higher-level positions than

18

Headd. Headd Dep. at 97:7-15, 98:5-9; Headd Decl. ¶ 4. Unlike Headd, R.G. and C.V. had

19

permanent underlying statuses in the positions to which they were transferred. Cox Decl. ¶¶ 25,

20

36.

21

3.

22

Headd’s Return to Work

In October of 2009, Headd returned from medical leave and remained in her MA position in

23

the WIC program until December of 2011. See Headd Dep. at 178:7-12: 59:17-60:24. She alleges

24

that the County did not engage in any interactive process with her to determine any limitations

25
26
11

27
28

A reemployment list is a list of employees in a given classification who have been laid off from
permanent positions. The individuals are ranked according to seniority, and are entitled to receive
no more than two offers of employment for vacancies in that classification. See Cox Decl. ¶30.
13
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

when she returned to work, and that the County did not inform her of their reasonable

2

accommodation policy, of which she learned in January of 2012. Headd Decl. ¶ 5.

3
4

3.

Headd’s Applications for Other Positions

From late 2009 until early 2011, Headd applied to several job openings in the PHD. First,

5

on December 26, 2009, she applied for a Health Program Specialist (“HPS”) position and

6

interviewed for the position on January 21, 2010. Headd Dep. at 182:12-19; Moresco Decl. ¶ 14.

7

The job was given to R.G. Headd Dep. at 192:10-20; Moresco Decl. ¶ 14; Decl. of James

8

McPherson (“McPherson Decl.”), ECF No. 41, ¶ 4. Although Headd disputes Defendants’ stated

9

reasons for finding that Headd was insufficiently qualified for the position, she acknowledges that

United States District Court
For the Northern District of California

10

R.G. was qualified for the position. Id.

11

On April 29, 2010, Headd applied to transfer into an HPS Position, but was informed that

12

she was not eligible for the transfer. Headd Dep. at 109:1-3; Moresco Decl. ¶ 15. Headd admits

13

that she was not in fact eligible to transfer into this position because the salary differential between

14

her original position and the new position was too great to qualify as a “transfer.” Headd Dep. at

15

213:25-214:14.

16

In August of 2010, Headd applied for an HPS position with PHD Administration, for which

17

she interviewed on August 27, 2010. Headd Dep. at 109:9-11; 220:9-11; Moresco Decl. ¶ 16.

18

Defendants allege that Headd was not selected for the position because she “lack[ed] experience in

19

both program management and administrative processes,” and lacked knowledge of County

20

government processes. Moresco Decl. ¶ 16; Wedel Dep. 284:23-285:15; 288:15-18. Defendants

21

further allege that Headd did not submit a writing sample as requested, and that her application

22

materials contained multiple spelling, grammatical, and formatting errors. Moresco Decl. ¶ 16;

23

Wedel Dep. 290:20-291:8. Headd alleges that she had sufficient experience in management and

24

administrative processes, and that Wedel never requested a writing sample. Headd Decl. ¶¶ 8-9.

25

In November or December of 2010, Headd applied for a Senior Health Care Program

26

Analyst transfer position but was not referred for an interview, allegedly for lack of sufficient

27

experience. Moresco Decl. ¶ 17; Headd Decl. ¶ 12.

28

14
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

On January 4, 2011, Headd applied for an HPS promotional position. Moresco Decl. ¶ 18.

2

Headd interviewed for the position, but was not selected to advance to a second round of

3

interviews. Headd Dep. at 184:23-185:17; Moresco Decl. ¶ 18; Decl. of Barbara Broderick

4

(“Broderick Decl.”), ECF No. 39, ¶ 4. Another PHD employee, “J.P.,” was ultimately chosen for

5

the job, allegedly based on specific components of his past work experience. Moresco Decl. ¶ 18;

6

Broderick Decl. ¶ 6.

7

On July 27, 2011, Headd applied for a Health Planning Specialist II position and a Health

8

Care Program Analyst (“HCPA”) II position. Moresco Decl. ¶ 19. The first position was deleted

9

before interviews were conducted, and Headd was told she lacked the depth and scope of analytical

United States District Court
For the Northern District of California

10

and administrative experience required for the classification of the second position. Id. On

11

September 19, 2011, Headd interviewed for an HPS position, but another PHD employee, “L.C.,”

12

was selected, allegedly because she better matched the criteria for the job. Moresco Decl. ¶ 20;

13

Broderick Decl. ¶¶ 8, 10.

14
15

On December 30, 2011, Headd accepted an offer from the County reemployment list for an
HES position. Headd Dep. at 169:21-170:20; 247:18-248:1; Moresco Decl. ¶ 21.

16

5.

17

2011 DFEH Complaint

On June 7, 2011, Headd filed a DFEH complaint alleging discrimination based on race, sex,

18

age, and medical condition (cancer) based on her denial of promotions in August of 2010 and

19

February of 2011. Headd Dep. at 348:6-349:21 & Ex. 4. The DFEH issued a right-to-sue notice

20

on the same date. MK Decl., Ex. I. On June 28, 2011, Headd filed an amended complaint alleging

21

discrimination based on race, sex, age, disability, and medical condition and alleged the same

22

particulars as her June 7, 2011 complaint. Headd Dep. at 348:6-349:21 & Ex. 4. On August 29,

23

2011, the DFEH issued a second right-to-sue notice. MK Decl., Ex. I.

24

IV.

LEGAL STANDARD

25

A court shall grant summary judgment when it is demonstrated that there exists no genuine

26

dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law.

27

See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The party

28

15
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

seeking summary judgment bears the initial burden of informing a court of the basis for its motion

2

and of identifying the portions of the declarations, pleadings, and discovery that demonstrate an

3

absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

4

(1986). A fact is “material” if it might affect the outcome of the suit under the governing law. See

5

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute is “genuine” as to a

6

material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-

7

moving party. See Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

8

Where the moving party will have the burden of proof on an issue at trial, the movant must

9

affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. See

United States District Court
For the Northern District of California

10

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving

11

party will have the burden of proof on an issue at trial, the movant may prevail by presenting

12

evidence that negates an essential element of the non-moving party’s claim or by merely pointing

13

out that there is an absence of evidence to support an essential element of the non-moving party’s

14

claim. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir.

15

2000). If a moving party fails to carry its burden of production, then “the non-moving party has no

16

obligation to produce anything, even if the non-moving party would have the ultimate burden of

17

persuasion.” Id. If the moving party meets its initial burden, the burden then shifts to the opposing

18

party to establish that a genuine dispute as to any material fact actually exists. See Matsushita

19

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot “rest

20

upon the mere allegations or denials of [its] pleading but must instead produce evidence that sets

21

forth specific facts showing that there is a genuine issue for trial.” See Estate of Tucker, 515 F.3d

22

1019, 1030 (9th Cir. 2008) (internal quotation marks and citation omitted).

23

The evidence of the opposing party is to be believed, and all reasonable inferences that may

24

be drawn from the facts placed before a court must be drawn in favor of the opposing party. See

25

Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). However, “[b]ald assertions

26

that genuine issues of material fact exist are insufficient.” See Galen v. County of Los Angeles, 477

27

F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears Holdings Corp., No.11-09068, 2013 WL

28

16
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

1010547, *4 (C.D. Cal. Mar. 13, 2013) (“Conclusory, speculative testimony in affidavits and

2

moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.”).

3

Further, a “motion for summary judgment may not be defeated . . . by evidence that is ‘merely

4

colorable’ or ‘is not significantly probative.’” See Anderson, 477 U.S. at 249-50; see also Hardage

5

v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006) (same). If the nonmoving party fails to

6

produce evidence sufficient to create a genuine dispute of material fact, the moving party is entitled

7

to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.

8

V.

DISCUSSION
Plaintiffs’ ten causes of action can be grouped into two distinct categories. Plaintiffs’ first

10
United States District Court
For the Northern District of California

9

set of claims arise from California’s Fair Employment and Housing Act (“FEHA”), are subject to

11

the procedural requirements of that statute, and are brought only against Defendant County. These

12

claims consist of: (1) retaliation in violation of FEHA (first cause of action); (2) failure to protect

13

from discrimination under FEHA (second cause of action); (3) disparate treatment discrimination

14

in violation of FEHA (third, fourth, and fifth causes of action); and (4) disparate impact

15

discrimination in violation of FEHA (sixth, seventh, and eight causes of action). Plaintiffs’ second

16

distinct category of claims allege violations of 42 U.S.C. § 1983 and are brought against all

17

Defendants for (1) negligent hiring, training, supervision and retention (ninth cause of action); and

18

(2) retaliation for exercising free speech (tenth cause of action).

19

Plaintiffs’ Opposition to the Motion for Summary Judgment alleges numerous facts and

20

causes of action that were not included in the Amended Complaint. The Court will not consider

21

claims raised for the first time at summary judgment which Plaintiffs did not raise in their

22

pleadings. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (“A complaint

23

guides the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce in

24

order to defend against the plaintiff's allegations.”); see also Pickern v. Pier 1 Imports (U.S.), Inc.,

25

457 F.3d 963, 968 (9th Cir. 2006) (noting that plaintiff could not raise new factual allegations at

26

summary judgment because allegations not included in the complaint failed to “give the defendant

27
28

17
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

fair notice of what the plaintiff’s claim [were] and the grounds upon which [they] rest[ed],” as

2

required by Rule 8(a)(2) of the Federal Rules of Civil Procedure).

3

The Court first addresses each Plaintiff’s individual FEHA disparate treatment and FEHA

4

retaliation claims against Defendant County (Plaintiffs’ first, third, fourth, and fifth causes of

5

action), and then collectively addresses Plaintiffs’ FEHA disparate impact claims against

6

Defendant County (Plaintiffs’ sixth, seventh, and eighth causes of action); Plaintiffs’ FEHA failure

7

to protect claim against Defendant County (Plaintiffs’ second cause of action); and Plaintiffs’ 1983

8

claims against all Defendants (Plaintiffs’ ninth and tenth causes of action). For the reasons stated

9

below, the Court DENIES Defendants’ Motion with respect to Plaintiff Burrell’s FEHA disparate

United States District Court
For the Northern District of California

10

treatment claim alleging discrimination on the basis of race in 2010 (Plaintiffs’ third cause of

11

action), and further DENIES Defendants’ motion with respect to Plaintiff Burrell’s FEHA failure

12

to protect claim (Plaintiffs’ second cause of action). The Court GRANTS Defendants’ motion with

13

respect to all other claims, which include all claims against the individual Defendants Dan

14

Peddycord, Rae Wedel, and Marty Fenstersheib.

15

A.

Plaintiff Burrell’s Disparate Treatment and Retaliation Claims under FEHA

16

Defendants move for summary judgment on Plaintiff Burrell’s FEHA disparate treatment

17

and retaliation claims, contending that Burrell failed to exhaust her administrative remedies, and

18

filed her claims after the statute of limitations expired. Defendants further argue that Burrell has

19

not rebutted Defendants’ legitimate, nondiscriminatory reasons for their failure to promote Burrell.

20

The Court addresses each in turn.

21

1.

22

Defendants’ FEHA Administrative Exhaustion and Statute of
Limitations Challenges

23

a.

24
25
26
27
28

Insufficient Exhaustion Bars Burrell’s Gender and Age
Discrimination Claims

Prior to bringing a civil suit on a FEHA cause of action, a plaintiff must exhaust her
administrative remedies. See Rojo v. Kliger, 52 Cal. 3d 65, 83 (1990). Exhaustion requires filing a
complaint with the DFEH within one year of the date of the alleged unlawful practice and then
obtaining a notice of the right to sue. Cal. Gov’t Code § 12960; see Romano v. Rockwell Int’l, Inc.,
18
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

14 Cal. 4th 479, 492 (1996). Failure to exhaust deprives the court of jurisdiction over a plaintiff’s

2

cause of action. Miller v. United Airlines, Inc., 174 Cal. App. 3d 878, 890 (1985).

3

For a Plaintiff “[t]o exhaust his or her administrative remedies as to a particular act made

4

unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the

5

administrative complaint, even if the complaint does specify other cognizable wrongful acts.”

6

Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1724 (1994). “The scope of the

7

written administrative charge defines the permissible scope of the subsequent civil action.”

8

Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001) (citing Yurick v. Superior Court,

9

209 Cal. App. 3d 1116, 1121-23 (1989)). “Allegations in the civil complaint that fall outside of the

United States District Court
For the Northern District of California

10

scope of the administrative charge are barred for failure to exhaust.” Id.

11

However, in order to accomplish the broad purposes of FEHA—including the elimination

12

of employment discrimination—these procedural requirements are to be construed liberally. See

13

Cal. Gov’t Code § 12920; Cal. Gov’t Code § 12993(a). Therefore, the district court does have

14

jurisdiction over a civil claim if it is “reasonably related to the allegations of the [administrative]

15

charge.” Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); see Nazir v.

16

United Airlines, Inc., 178 Cal. App. 4th 243, 268 (2009) (“[W]hat is submitted to the DFEH must

17

not only be construed liberally in favor of the plaintiff, it must be construed in light of what might

18

be uncovered by a reasonable investigation”); see also Okoli v. Lockheed Tech. Operations, 36 Cal.

19

App. 4th 1607, 1615 (1995) (noting, in the analogous EEOC context, that “if an investigation of

20

what was charged in the [administrative complaint] would necessarily uncover other incidents that

21

were not charged, the latter incidents could be included in a subsequent action.”) (emphasis in

22

original). Thus, “[i]t is sufficient that the [DFEH] be apprised, in general terms, of the alleged

23

discriminatory parties and the alleged discriminatory acts.” Nazir, 178 Cal. App. 4th at 267

24

(internal quotation marks and citation omitted).

25

The parties do not dispute that Burrell exhausted her administrative remedies as to her

26

racial discrimination claim based on the September 3, 2010 denial of her promotion. Because

27

Burrell filed a DFEH complaint alleging racial discrimination on October 26, 2010, which was

28

19
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

based on the September 3, 2010 denial of her promotion, and then obtained a right to sue letter

2

from the DFEH on May 27, 2011, there is no question that Burrell timely exhausted her

3

administrative remedies. See MK Decl., Ex. G (“Burrell DFEH Complaint”).

4

The question here is whether Burrell’s gender and age discrimination claims, which were

5

not explicitly alleged in Burrell’s October 26, 2010 DFEH complaint, are “reasonably related” to

6

Burrell’s racial allegations such that they may be considered properly exhausted by those charged

7

allegations and the Court thus has jurisdiction over them. Burrell contends that her gender and age

8

discrimination claims are “reasonably related” to her racial discrimination claim because there is a

9

strong likelihood that the DFEH investigation into her racial discrimination claim “would reveal

United States District Court
For the Northern District of California

10

that, in addition to her race, there were gender and age . . . claims.” Opp’n at 17.

11

In support of Burrell’s position that her gender and age discrimination claims are

12

reasonably related to her racial discrimination claim, Burrell cites to the letter that she wrote that

13

accompanied her DFEH form complaint. This letter, in part, states the following:

14
15
16
17

More recently, with the knowledge that another opportunity for promotion was
coming available, management took away a portion of my responsibilities to lessen
my case for promotion. When the promotion was given to another Caucasian coworker (who did not at all meet the requirements), I was then given a significant
portion of her duties. Essentially, the workload of the promoted staff was lightened
while I took on more (her work) with no compensation.

18

Opp’n at 17 (citing language found in Burrell Decl., Ex. 37) (emphasis added). Burrell contends

19

that the reference to a Caucasian co-worker in this letter was sufficient to trigger a broad

20

investigation based on gender and age because men and women make up the class of “Caucasian

21

workers.” See Opp’n at 17. However, Burrell’s letter indicates that the Caucasian co-worker was

22

of the same gender as Burrell, female. In addition, this letter makes no reference to age.

23

Therefore, it is not clear why Burrell’s DFEH complaint based on racial discrimination would

24

reasonably trigger an investigation into discrimination on the basis of either gender or age. See

25

Okoli, 36 Cal. App. 4th at 1615 (noting that it would not be proper to expand a claim “when the

26

difference between the charge and the complaint is a matter of adding an entirely new basis for the

27

alleged discrimination. . . . For instance, a complaint alleging race discrimination is neither ‘like or

28

20
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

related to’ nor likely to be discovered in a ‘reasonable’ investigation of a charge of sex

2

discrimination.’”) (internal citation omitted); cf. Rodriguez v. Airborne Express, 265 F.3d 890, 898

3

(9th Cir. 2001) (holding that exhaustion of administrative remedies alleging discrimination on the

4

grounds of being Mexican-American was insufficient to exhaust a claim of disability

5

discrimination); Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987) (holding

6

that allegations of sex and age discrimination in civil complaint were not encompassed by charge

7

filed with the DFEH alleging only national origin discrimination).

8

Burrell has not exhausted her administrative remedies as to her gender and age

9

discrimination claims because they were not raised in her DFEH complaint and accompanying

United States District Court
For the Northern District of California

10

letter, and are not reasonably related to her racial discrimination claim. Accordingly, Defendants’

11

Motion for Summary Judgment as to Burrell’s gender and age discrimination claims is

12

GRANTED.

13

b.

Statute of Limitations Bars Burrell’s 2002-2009 Claims

14

Defendants also argue that each employment decision for Burrell between 2002 and 2009 is

15

barred by FEHA’s statute of limitations because each occurred more than one year before Burrell’s

16

October 26, 2010 DEFH filing. Mot. at 18. Specifically, Defendants contend that Burrell’s 2002

17

reassignment as an HCPM II, Burrell’s 2008 denial of promotion in favor of J.M., and the 2008

18

denial of Burrell’s application for reclassification all occurred more than one year before October

19

26, 2010.

20

To be timely, a DFEH complaint must be filed within one year of the alleged violation. See

21

Cal. Govt. Code § 12960(d). While Section 12960(d) includes certain exceptions to the statute of

22

limitations, Plaintiffs do not assert that any of these exceptions apply to this case. 12 Instead,

23
12

24
25
26
27
28

In her declaration, Burrell argues for the applicability of “equitable tolling,” noting that she
would have filed a DFEH complaint in 2008 if she had known of the report by Kathy Buchanan,
recommending that Hayter be reclassified as PHN III. Burrell Decl. ¶ 87-88. Plaintiffs’ allegations
regarding this report are discussed infra, Part V.B.2.a. Regardless of these allegations, Cal. Govt.
Code § 12960(d) specifically provides for a 90-day extension of FEHA’s one year limitations
period in instances of delayed discovery of an unlawful practice. Here, Burrell has not identified
the delayed discovery of an unlawful practice, nor argued that she filed her complaint within 90
days of such practice. Cf. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 106, 194
21
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

Plaintiffs cite the “continuing violations doctrine,” which allows plaintiffs to seek remedies for

2

actions that otherwise would be time-barred, if these actions are sufficiently linked to unlawful

3

conduct that occurred within the limitations period. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th

4

1028, 1057-59 (2005) (noting the underlying policy of discouraging early litigation and the

5

adjudication of unripe claims).

6

To establish a continuing violation, a plaintiff must establish that the actions occurring

7

outside of the limitations period should be viewed as a single, actionable course of conduct

8

because: “(1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency;

9

and (3) they have not acquired a degree of ‘permanence’ so that employees are on notice that

United States District Court
For the Northern District of California

10

further efforts at informal conciliation with the employer to obtain accommodation or end

11

harassment would be futile.” Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 823 (2001); see

12

generally Yanowitz, 36 Cal.4th at 1057-59 (extending continuing violations doctrine from

13

accommodation to discrimination claims). In analyzing the applicability of the statute of

14

limitations and the continuing violations doctrine, the Court notes that, unlike in Title VII cases,

15

courts have refused to take a strict approach to the FEHA limitations period, construing the statute

16

of limitations liberally “so as to promote the resolution of potentially meritorious claims on the

17

merits.” Romano v. Rockwell Internat., Inc., 14 Cal. 4th 479, 493-94 (1996); see also Yanowitz, 36

18

Cal. 4th at 1057–59 (distinguishing between Title VII and FEHA, and emphasizing FEHA’s “twin

19

policy goals of encouraging informal resolution of disputes and avoiding premature lawsuits”).

20

The Court finds that the continuing violations doctrine is inapplicable to this case. Burrell

21

alleges that, since 2002, she suspected that she was being discriminated against based on her race.

22

See Burrell Decl. ¶ 10. She now seeks to challenge specific incidents of discriminatory non-

23

promotion. 13 See AC ¶ 92 (“Burrell was repeatedly passed over for promotions.”). Even if the

24
25
26
27
28

P.3d 1026, 1036 (2008) (defining equitable tolling as a doctrine available when an injured person
“has several remedies and, reasonably and in good faith, pursues one.”).
13
Plaintiffs’ Opposition argues for the first time that Plaintiffs’ declarations “show a pattern and
practice of discrimination against African-American [sic] dating back to 2002 and continuing to
date.” Opp’n at 22. The Court notes that no pattern and practice of discrimination is alleged in the
Amended Complaint, and that it is raised in Plaintiffs’ Opposition only with respect to the
continuing violations doctrine. Moreover, Plaintiffs’ Opposition does not elaborate on this new
22
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

2002 and 2008 actions could be considered “sufficiently similar in kind” to the 2010 action, and

2

could be found to have occurred “with reasonable frequency,” the Court finds that the 2002 and

3

2008 actions acquired a degree of permanence which should have put Burrell on notice that further

4

efforts at informal conciliation with the employer to end the alleged discrimination would be futile.

5

See Richards, 26 Cal. 4th at 823. Thus, Burrell cannot establish the third element of a continuing

6

violation and these claims are time-barred.

7

Specifically, the Court finds that Burrell’s 2002 reassignment as a HCPM II rather than as a
SrHCPM, pursuant to a consultant’s classification study, acquired a degree of permanence at the

9

time the decision was made. See Cox Decl. ¶ 5 (describing the County’s reclassifications of mid-

10
United States District Court
For the Northern District of California

8

level managers following a consultant’s study and a County Board of Supervisors amendment to

11

the County Salary ordinance); Burrell Dep. 32:24-34:10; 36:22-37:5 (explaining that Burrell

12

complained about the results of the study to her union, but the union representative responded that

13

the union did not intend to challenge the study or file a grievance on her behalf). Several courts

14

have found that discrete instances of denials of hiring or promotion are generally made permanent

15

when a plaintiff is informed that he or she has not been hired or promoted to a position. See

16

Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 67 (2000) (finding that each decision not

17

to hire an applicant was sufficiently final to bar the applicant’s reliance on the continuing

18

violations doctrine); Maridon v. Comcast Cable Commc’ns Mgmt., LLC, No. 12-2109, 2013 WL

19

1786592 at *13 (N.D. Cal. Apr. 25, 2013) (finding that a plaintiff’s “failure to secure past

20

promotions in a number of specific, discrete instances” was final as to each incident, even if the

21

plaintiff was not convinced that the employer would never promote her in the future). As with the

22

decisions not to hire or promote the plaintiffs in Morgan and Maridon, Burrell’s reclassification

23

appears to be a unique, one-time event. Burrell was on notice, or should have been, that challenges

24

to the reclassification would be futile no later than the time her union declined to take action

25
26
27
28

pattern and practice theory. The Court finds that Plaintiffs’ new pattern and practice theory and
allegations are not properly before the Court. See Coleman, 232 F.3d at 1292 (complaint guides
the parties discovery and puts defendant on notice of evidence needed for its defense); see also
Pickern, 457 F.3d at 969 (holding that plaintiff cannot raise new factual allegations of which
defendant had no prior notice at summary judgment).
23
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

challenging the result. See Morgan, 88 Cal. App. 4th at 67; Maridon, 2013 WL 1786592, at *9-11;

2

see also Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 921 (N.D. Cal. 2012) (finding

3

employment actions final when “[e]ach event involved a final decision to either retire or not

4

reinstate Plaintiff, with no opportunity for further discussion . . . [Although Defendants] could still

5

hire Plaintiff in the future, a final decision was still made to not hire Plaintiff at that time.”)

6

(emphasis in original). Thus, a claim based on Burrell’s 2002 reassignment is time-barred, because

7

the reassignment became permanent in 2002 and the continuing violations doctrine is inapplicable.

8
9

Similarly, the Court finds that the 2008 denial of Burrell’s promotion and reclassification
became permanent at the time the decisions were made. The first 2008 event that Burrell

United States District Court
For the Northern District of California

10

challenges—the appointment of J.M., a non-African American employee, into a SrHCPM position

11

for which Burrell had been preparing—became final no later than the time when J.M. was

12

administratively transferred into the position. See Burrell Dep. 71:9-72:19; 76:7-15; Cox Dec. ¶ 6.

13

The second 2008 event that Burrell challenges—the denial of her application for reclassification—

14

also involved a final decision. As with a denial of an application for promotion, the denial of

15

Burrell’s request for reclassification involved a specific and discrete application process and

16

acquired permanence after Burrell: (1) met with her union representative and Senior Human

17

Resources Analyst Christine Goodson on October 16, 2008, Goodson Decl. ¶ 5; (2) received a

18

written explanation of the decision on November 3, 2008, Goodson Decl. ¶ 6; and (3) did not

19

pursue an appeal. See Burrell Dep. 123:19-124:16 (stating that Burrell believed that she would not

20

change Goodson’s mind about the denial of her request for reclassification, and that Burrell did not

21

pursue a grievance or appeal). Thus, claims based on the 2008 appointment of J.M. and the 2008

22

denial of Burrell’s application for reclassification are time-barred because these employment

23

actions became permanent in 2008 and the continuing violations doctrine is inapplicable. See

24

Morgan, 88 Cal. App. 4th at 66; Richards, 26 Cal. 4th at 823.

25
26
27
28

24
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1
2

Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment as to
Burrell’s 2002 and 2008 claims. 14

3

c.

4

Ripeness and Insufficient Exhaustion Bar Burrell’s Retaliation
Claim

Lastly, Defendants challenge Burrell’s FEHA retaliation claim as insufficiently exhausted.

5
6

Burrell, in addition to the other two Plaintiffs, alleges retaliation under FEHA against the County

7

on the basis of filing a complaint to the DFEH and Equal Employment Opportunity Commission

8

(“EEOC”). See AC ¶ 81 (“Defendant COUNTY took adverse employment action against Plaintiffs

9

in violation of [FEHA] by retaliating against Plaintiffs for participating in statutorily protected

United States District Court
For the Northern District of California

10

activity. Plaintiffs’ complaints to the [DFEH] and to the [EEOC] were all protected activities.”).

11

The Court finds Burrell’s allegations of retaliation to be either unripe or unexhausted.
First, the only adverse employment actions against Burrell that were alleged in either the

12
13

DFEH complaint or the federal Amended Complaint took place prior to the filing of the DFEH

14

complaint. See AC ¶ 40 (concluding Burrell’s chronological factual recitation with the filing of the

15

DFEH complaint on October 26, 2010); MK Decl., Ex. G (DFEH complaint listing date of most

16

recent discrimination as September 3, 2010). It is illogical that adverse employment actions that

17

occurred prior to the filing of a DFEH complaint would constitute retaliation for the filing of that

18

administrative complaint. At the April 4 hearing, Plaintiffs’ counsel could not explain this

19

quandary, and instead stated that the retaliation claim was merely a “prospective pleading,” and

20

thus alleged in anticipation of future retaliation after the filing of the DFEH complaint. Plaintiffs’

21

anticipation of “prospective” retaliation is not ripe for this adjudication.

22

Additionally, although not mentioned in the Amended Complaint’s retaliation cause of

23

action, the Amended Complaint’s general recitation of facts alleges that Burrell was retaliated

24

against because Burrell supported Hayter’s application for reclassification. See AC ¶ 34. In

25

Burrell’s declaration, Burrell alleges that this retaliation occurred on July 16, 2008, when Alvarado

26
14

27
28

Despite the fact that these previous incidents do not represent distinct bases for liability,
Plaintiff may introduce evidence about these incidents as relevant to her surviving claim. See
Maridon, LLC, 2013 WL 1786592 at *14 n.6. (citing Gardner, 838 F. Supp. 2d at 921).
25
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

removed two of the programs for which Burrell was responsible. Burrell Decl. ¶ 38-39; see also

2

Opp’n at 5. In the Amended Complaint and in Burrell’s deposition, Burrell alleged that this

3

retaliation occurred in 2009, though she could not remember the month. See AC ¶ 34; Burrell Dep.

4

125:8-17; 128:15-129:6.

5

Even if this allegation were sufficiently pleaded, the Court finds that it was insufficiently

6

exhausted. Burrell’s 2010 DFEH complaint refers only to her non-promotion, and does not

7

reference removal of job duties as an act of retaliation. See MD Decl., Ex. G; Burrell Decl., Ex.

8

37. Moreover, Burrell does not suggest that a DFEH investigation into her charge of

9

discriminatory non-promotion in September of 2010 would have uncovered an alleged act of

United States District Court
For the Northern District of California

10

retaliation for supporting Hayter’s promotion in 2008. Compare Wills v. Superior Court, 194 Cal.

11

App. 4th 312, 157 (2011) (modified) (finding a retaliation claim insufficiently exhausted by a

12

discrimination claim where there was no indication in the administrative complaint of any conduct

13

related to the alleged retaliation), with Washington v. California City Correction Ctr., 871 F. Supp.

14

2d 1010, 1023 (E.D. Cal. 2012) (noting that a retaliation claim could be deemed “like and

15

reasonably related to” a general claim of discrimination when the allegations related to the same

16

adverse employment actions). Therefore, as with Burrell’s gender and age discrimination claims,

17

the Court finds this claim to be insufficiently exhausted. 15 The Court GRANTS Defendants’

18

Motion for Summary Judgment as to Burrell’s retaliation claim.

19

2.

20

Plaintiff Burrell’s Surviving Disparate Treatment Claim under FEHA

Next, Defendants move for summary judgment on Plaintiffs’ third cause of action, Burrell’s

21

allegation of racial discrimination based on disparate treatment. See Mot. at 20. Disparate

22

treatment is “intentional discrimination against one or more persons on prohibited grounds.” Guz

23

v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 n.20 (2000) (emphasis in original). Prohibited

24

discrimination based on disparate treatment occurs when an “employer simply treats some people

25

less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters

26
15

27
28

Accordingly, the Court need not reach the question of whether the continuing violations doctrine
could save this claim from being barred by FEHA’s one year statute of limitations. See Yanowitz v.
L’Oreal USA, Inc., 36 Cal. 4th 1028, 1057-59 (2005).
26
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

v. United States 431 U.S. 324, 335-336, n.15 (1977). “Proof of discriminatory motive is critical,

2

although it can in some situations be inferred from the mere fact of differences in treatment.” Id.

3

Burrell alleges that, in 2010, she was improperly denied classification as a SrHCPM due to

4

her race. As a basis for this allegation, Burrell asserts that, in February of 2010, Burrell met with

5

her new manager, Charis Subil, and presented a proposal for her promotion to a SrHCPM position.

6

Burrell Dep. at 137:9-20. Subil agreed Burrell should be promoted. Burrell Dep. at 138:6-9.

7

Then, in March of 2010, Burrell met with the new PHD director, Dan Peddycord, who also

8

expressed support for her proposal. Burrell Decl. ¶ 45. However, in September of 2010, Burrell

9

alleges that she was denied a promotion to the position of SrHCPM without sufficient justification.

United States District Court
For the Northern District of California

10

AC ¶¶ 38, 92, 93. Burrell contends that, during the time Burrell’s proposal for promotion was

11

pending, PHD Administrative Services Manager Rae Wedel appointed a less qualified non-African

12

American employee, C.M., to fill an open SrHCPM position. See Opp’n at 4-5; MK Decl., Ex. G.

13

Defendants dispute that Burrell can establish a disparate treatment claim on this basis,

14

arguing that, “[t]he County had legitimate, non-discriminatory reasons for promoting C.M. to

15

SrHCPM.” Mot. at 20. For the reasons stated herein, the Court finds that a genuine dispute of

16

material fact exists as to whether Defendants in fact denied Burrell a promotion for non-

17

discriminatory reasons or because of Burrell’s race.

18

“California has adopted the three-stage burden-shifting test established by the United States

19

Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment.”

20

Guz, 24 Cal. 4th at 354 (noting California courts’ reliance on the federal burden shifting test

21

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Generally, to establish a

22

prima facie case of disparate treatment under FEHA, a plaintiff must provide evidence that:

23

25

(1) [s]he was a member of a protected class, (2) [s]he was qualified for the position
[s]he sought or was performing competently in the position [s]he held, (3) [s]he
suffered an adverse employment action, such as termination, demotion, or denial of
an available job, and (4) some other circumstance suggests discriminatory motive.

26

Id. at 355. Once the prima facie case is established, “the burden shifts to the employer to rebut the

27

presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to

24

28

27
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory

2

reason.” Id. at 355-56 (internal quotation marks and citations omitted). If the employer sustains

3

the burden, “[t]he plaintiff must then have the opportunity to attack the employer’s proffered

4

reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” Id.

5

at 356. However, when an employer moves for summary judgment, “the burden is reversed . . .

6

because the defendant who seeks summary judgment bears the initial burden.” Dep’t of Fair Emp’t

7

& Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) (citing Hanson v. Lucky Stores,

8

Inc., 74 Cal. App. 4th 215, 224 (1999)); see Martin v. Lockheed Missiles & Space Co., 29 Cal.

9

App. 4th 1718, 1730 (1994) (“A defendant seeking summary judgment must bear the initial burden

10
United States District Court
For the Northern District of California

1

of showing that the action has no merit, and the plaintiff will not be required to respond unless and

11

until the defendant has borne that burden.”); see also Rangel v. Am. Med. Response West, No. 09-

12

01467, 2013 WL 1785907, *9 (E.D. Cal. Apr. 25, 2013) (same).

13

To prevail on summary judgment, the employer is “required to show either that (1) plaintiff

14

could not establish one of the elements of [the] FEHA claim or (2) there was a legitimate,

15

nondiscriminatory reason for its decision to [take an adverse employment action].” Lawler v.

16

Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013) (internal quotation marks and

17

citations omitted). If the employer meets its burden, the employee must demonstrate either “that

18

the defendant’s showing was in fact insufficient or . . . that there was a triable issue of fact material

19

to the defendant’s showing.” Lucent Techs., Inc., 642 F.3d at 746 (quotation omitted). A plaintiff

20

can satisfy this latter option by “‘produc[ing] substantial responsive evidence that the employer’s

21

showing was untrue or pretextual.’” Id. (quoting Hanson, 74 Cal. App. 4th at 225); see also

22

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (holding that a plaintiff “may

23

establish pretext either directly by persuading the court that a discriminatory reason more likely

24

motivated the employer or indirectly by showing that the employer’s proffered explanation is

25

unworthy of credence.”).

26

“Where evidence of pretext is circumstantial, rather than direct,” as in this case, “the

27

plaintiff must produce ‘specific’ and ‘substantial’ facts to create a triable issue of pretext.” Earl v.

28

28
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (citing Godwin, 150 F.3d at

2

1222). “‘An employee in this situation cannot simply show the employer’s decision was wrong,

3

mistaken or unwise.’” Lucent Techs., Inc., 642 F.3d at 746 (citing Morgan, 88 Cal. App. 4th at

4

75). “‘Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies,

5

incoherencies or contradictions in the employer’s proffered legitimate reasons for its action that a

6

reasonable factfinder could rationally find them unworthy of credence . . . and hence infer that the

7

employer did not act for the . . . non-discriminatory reasons.’” Id. (internal quotation marks and

8

citation omitted). Nevertheless, the Ninth Circuit has made clear that courts should be cautious in

9

granting summary judgment for employers on discrimination claims. See Lam v. University of

10
United States District Court
For the Northern District of California

1

Hawai’i, 40 F.3d 1551, 1564 (9th Cir. 1994) (amended) (finding that the ultimate question in a

11

discrimination case can only be resolved through a “searching inquiry”) (internal quotation marks

12

and citation omitted).

13

Defendants do not address whether Burrell can establish a prima facie case of disparate

14

treatment. Rather, Defendants state that there were legitimate, nondiscriminatory reasons for

15

promoting C.M. rather than Burrell to a SrHCPM position. Defendants set forth evidence that: (1)

16

C.M. worked temporarily in the SrHCPM position for six months prior to receiving the promotion,

17

while D.F., the employee who previously held the position, was on leave; (2) the transfer of C.M.

18

to D.F.’s position comported with the county’s union contract and the County Merit System Rules;

19

and (3) Burrell admitted that C.M. had more experience than Burrell in some areas relevant to

20

D.F.’s position. See Mot. at 20; Cox Decl. ¶ 8; Burrell Dep., Ex. 1 to MK Decl., at 194:14-195:22.

21

However, Defendants’ showing fails to address the full scope of Burrell’s disparate

22

treatment claim. Burrell does not exclusively challenge C.M.’s appointment to D.F.’s position.

23

Burrell also challenges the denial of her proposed promotion to a SrHCPM code at the same time

24

that C.M. was promoted to a SrHCPM code. Defendants do not discuss the denial of Burrell’s

25

proposal for a promotion at all in their analysis of Burrell’s disparate treatment claim. Mot. at 20.

26

In fact, Defendants’ only reference to Burrell’s proposal is in Defendants’ statement of facts, in

27

which Defendants state the following: “Burrell contends that Peddycord told her she would not be

28

29
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

promoted because she had not participated in H1N1 activities.” See Mot. at 5 (citing Burrell Dep.

2

at 148:15-19). Defendants do not, however, assert that this is their reason for denying Burrell’s

3

promotion. Thus, without offering any legitimate explanation for denying Burrell’s proposed

4

promotion, Defendants have failed to carry their burden on summary judgment.

5

Moreover, even assuming Defendants’ reasons for appointing C.M. to an SrHCPM code

6

were sufficient to satisfy Defendants’ burden, Burrell has set forth sufficient evidence to raise a

7

triable issue of material fact as to whether Defendants’ showing is “untrue or pretextual.” See

8

Lucent Techs., Inc., 642 F.3d at 746.

9

First, Burrell contends that Defendants’ showing may be untrue or pretextual because she

United States District Court
For the Northern District of California

10

was more qualified for a SrHCPM position than C.M. Importantly, Burrell contends that the

11

SrHCPM code to which C.M. was appointed was not linked to the actual job C.M. performed or

12

contingent on the specific tasks required for the position to which C.M. was appointed. See

13

Burrell. Dep. 158:23-25. Consequently, the SrHCPM code could have been used anywhere in the

14

department. As such, Burrell asserts that the SrHCPM code would have been more appropriate for

15

her because she was more qualified for performing the overall tasks of a SrHCPM: 16

16

If one were to place C.M. and me side by side, there would be no daylight between
us in our abilities and qualifications to perform the duties of SrHCPM. In fact, I
was more qualified than C.M. at the time Wedel appointed C.M. to the position in
April 2010, I managed the following programs: Black Infant Health, Adolescent
Family Life, and Immunization Education and supervised approximately 11 line
staff and one manager. I was responsible for a budget of approximately $3.5 million.
In contrast and comparison to C.M. who managed, at [sic] time of Wedel’s
appointment, one program and two staff and no budget.

17
18
19
20
21

Burrell Decl. 67.

22
23

Defendants do not address Burrell’s qualifications for performing the SrHCPM position,
but rather object to this testimony as lacking foundation. The Court infers personal knowledge as

24
25
26
27
28

16

As outlined in Goodson’s report, “the Senior Health Care Program Manager has overall
responsibility for overseeing major program activities. . . . Decisions generally require
independent judgment and to develop policy guidelines for other program activities. The
incumbent would possess a thorough understanding of multiple or complex program activities and
legal operational mandates.” Goodson Decl., Ex Y (“Summary Classification Report, Health Care
Program Manager II – Department of Public Health: Alma Burrell”).
30
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

the basis of the testimony, and Defendants do not provide any contrary evidence. Defendants

2

further seek to exclude this testimony by alleging that it contradicts Burrell’s deposition testimony

3

that, in C.M.’s new position, C.M. manages the contracts unit, drafts MOUs and transmittal service

4

agreements, and is a compliance officer, and that C.M. had more experience in those areas than

5

Burrell did. Reply at 3; Burrell Dep. 194:6-195:22. Defendants submit that Burrell is thus

6

precluded from asserting that she is equally or more qualified. See Reply at 3 & n.3 (citing

7

Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975), for the proposition

8

that, “[i]f a party who has been examined at length at his deposition could raise an issue of fact

9

simply by submitting an affidavit contradicting his prior deposition testimony, this would greatly

10
United States District Court
For the Northern District of California

1

diminish the utility of summary judgment on screening out sham issues of fact.”). However, on

11

summary judgment, all justifiable inferences are to be drawn in favor of the non-movant, in this

12

case Burrell. See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th

13

Cir. 1988) (en banc). It is not clear that Burrell’s concession that C.M. had more experience in

14

certain areas relevant to D.F.’s position directly contradicts Burrell’s statement that C.M. was less

15

qualified for a SrHCPM code. Accordingly, Defendants’ objection is OVERRULED.

16

Accordingly, there is a triable issue of fact with respect to the relative qualifications of Burrell and

17

C.M. for a SrHCPM position.

18

Second, Burrell contends that Defendants’ showing is questionable because Defendants

19

refused to provide any explanation of why Burrell was not promoted to the SrHCPM position,

20

despite her qualifications. Notably, Burrell alleges that, when she asked Peddycord in September

21

of 2010 why she was not qualified for the promotion, Peddycord responded by stating: “You

22

deserve an answer. I should give you an answer, but I’m not going to be pressed into giving you an

23

answer at this point.” Burrell Dep. 161:13-16. Burrell conveyed the importance of a response by

24

stating, “If you can’t tell me, then I’ll be back here next year. I’ll be back here the year after next.

25

I’ll be back here in two months. I need someone to be honest and frank with me and tell me what

26

the real problem is.” Burrell Dep. 161:7-12. Peddycord allegedly stated that he would give an

27

answer within two weeks, but never did. Burrell Dep. 161:17-162:4. Defendants do not dispute

28

31
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

that this conversation occurred, or that Peddycord failed to provide an explanation of the reasons

2

for denying Burrell’s attempts to become a SrHCPM. See Mot. at 5. The Court finds that

3

Defendants’ failure to address the reasons for the denial of Burrell’s promotion proposal also

4

presents a triable issue of fact as to whether the denial of Burrell’s promotion was because of her

5

race or because of legitimate business reasons.

6

Third, Burrell introduces evidence that raises questions about the general treatment of
African Americans within the PHD, which further supports Burrell’s allegations of pretext. For

8

example, Burrell references a meeting from April 24, 2010, in which Wedel allegedly made a

9

comment that “the African-American population is only about 2.9 percent in Santa Clara County”

10
United States District Court
For the Northern District of California

7

and then said either “that’s pretty insignificant” or that the African American population “couldn’t

11

be considered a community.” Burrell Decl. ¶ 91; see also Hayter Dep. 46:7-46:25; Hayter Decl.

12

¶ 15. However, in Burrell’s deposition, she described her memory of Wedel’s comment as “more

13

of an impression” that “the population that we’re serving isn’t as significant.” Burrell Dep. at

14

266:20-267:1-7. After this meeting, Wedel allegedly made a comment about “these people,”

15

although the context of the comment was unclear. Burrell Dep. at 241:4-241:5.

16

The Court notes that “discriminatory thoughts, beliefs, or stray remarks that are

17

unconnected to employment decisionmaking” cannot alone support a disparate treatment claim

18

under FEHA. See Harris v. City of Santa Monica, 56 Cal. 4th 203, 231 (2013) (holding that FEHA

19

does not prohibit discrimination “in the air,” and emphasizing FEHA’s causation requirement); but

20

see Reid v. Google, Inc., 50 Cal. 4th 512, 539 (2010) (rejecting categorical exclusion of “stray

21

remarks” evidence). Nevertheless, in light of the disputed facts with respect to Burrell and C.M.’s

22

relative qualifications for a SrHCPM position, and PHD’s failure to explain the denial of Burrell’s

23

promotion, this comment provides further support for the Court’s finding that there are factual

24

questions about the validity of Wedel’s purported non-discriminatory reasons for appointing C.M.

25

to a SrHCPM position rather than Burrell.

26
27
28

Additionally, Burrell notes that, during Wedel’s deposition, Wedel admitted that she has
only hired two African Americans and promoted only one in her 24 years as a manager with hiring
32
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

authority. See Burrell Decl. at ¶ 63; Wedel Dep. at 145:4-2. This evidence cannot alone constitute

2

the significant and substantial evidence required to demonstrate pretext, but is consistent with the

3

other factors that the Court finds suggestive of pretext. See McGinest v. GTE Service Corp., 360

4

F.3d 1103, 1123 (9th Cir. 2004) (finding circumstantial evidence of pretext based, in part, on

5

absence of evidence to support defendant’s explanation, as well as defendant’s “permissive

6

response to harassing actions undertaken by coworkers and supervisors, combined with the absence

7

of black supervisors and managers in the workplace”); cf. Bergene v. Salt River Project Agr. Imp.

8

and Power Dist.,272 F.3d 1136, 1143 (9th Cir. 2001) (holding that absence of female supervisors

9

was one piece of circumstantial evidence to be considered in considering pretext for failure to

United States District Court
For the Northern District of California

10

promote); but see Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989), superseded

11

by statute on other grounds as recognized in Fray v. Omaha World Herald Co., 960 F.2d 1370,

12

1376 (8th Cir. 1992) (noting that statistical comparisons must address the “racial composition of

13

the at-issue jobs and the racial composition of the qualified . . . population in the relevant labor

14

market.”).
Viewing the facts in the light most favorable to Burrell, the non-moving party, the Court

15
16

finds that, based on the cumulative circumstantial evidence, a triable factual dispute exists as to

17

whether Plaintiffs can demonstrate that Defendants’ alleged non-discriminatory reasons for

18

denying Burrell’s promotion were pretextual.

19
20

B.

Plaintiff Hayter’s Disparate Treatment and Retaliation Claims under FEHA

The Amended Complaint alleges retaliation against Plaintiff Hayter for filing a DFEH

21
22
23
24

complaint, AC ¶ 81, and disparate treatment on the basis of Hayter’s race, gender, and pregnancy,
AC ¶ 95.
Unlike Burrell, Hayter filed two DFEH complaints. Hayter’s first DFEH complaint, filed

25

on November 18, 2010, alleges only discrimination on the basis of race due to: (1) the denial of

26

Hayter’s December 2005 application for reallocation (Hayter’s “December 2005 application”); (2)

27
28

the denial of her January 2007 application for reclassification (“January 2007 application”); and (3)
33
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

the denial of her December 2007 application for reallocation (Hayter’s “December 2007

2

application”). MK Decl., Ex. H. The DFEH issued a right-to-sue notice on or about July 14, 2011.

3

See id.

4
5
6
7
8
9

Hayter filed a second DFEH complaint on August 23, 2011. In this second complaint,
Hayter checked the boxes for the following conduct: (1) denial of promotion; (2) retaliation; and
(3) denial of pregnancy accommodation. Hayter further checked the following boxes as the bases
for adverse employment actions: (1) sex; 17 (2) race/color; and (3) retaliation for engaging in
protected activity or requesting a protected leave or accommodation. Hayter alleges that all of

United States District Court
For the Northern District of California

10

these acts of discrimination occurred “on about or before” April 21, 2010. See MK Decl. at Ex.

11

H. 18 The DFEH issued a right-to-sue notice for this complaint on August 23, 2011. Id.

12
13

The Court first addresses Defendants’ contentions that Hayter’s claims are barred by
FEHA’s exhaustion requirement and statute of limitations. The Court then addresses Hayter’s

14
disparate treatment allegations, which appear to refer to Hayter’s December 2005 reallocation
15
16
17

application, her January 2007 reclassification application, and her December 2007 reallocation
application. 19

18
17

19
20
21
22
23
24
25
26
27
28

FEHA prohibits employment discrimination on the basis of numerous classifications, including
sex, gender, gender identity, and gender expression. See Cal. Gov't Code § 12940(a). Plaintiffs’
Amended Complaint alleges disparate treatment on the basis of all three Plaintiffs’ “gender –
female.” AC ¶¶ 92, 95, 98. However, the DFEH complaint forms only provide a box to check for
“sex,” and not for gender, gender identity, or gender expression. Because the parties do not
distinguish between discrimination on the basis of gender as opposed to sex, the Court assumes for
the purposes of this case that a DFEH complaint of discrimination on the basis of “sex”
encompasses allegations of discrimination on the basis of “gender.”
18
Hayter’s second DFEH complaint is particularly difficult to decipher. Nonetheless, the Court
does its best to discern the allegations therein.
19
In addition, Plaintiffs’ Opposition references Hayter’s January 2008 and February 2011
applications for a PHNM position. See Opp’n at 18. Hayter Decl. ¶¶17-18; Moresco Decl. ¶12.
These applications were not referenced in the Amended Complaint or in either of Hayter’s DFEH
complaints, and are thus not properly before the Court. See Coleman, 232 F.3d at 1292 (complaint
guides the parties discovery and puts defendant on notice of evidence needed for its defense); see
also Pickern, 457 F.3d at 969 (holding that plaintiff cannot raise new factual allegations of which
defendant had no prior notice at summary judgment).
34
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

1.

Defendants’ FEHA Administrative Exhaustion and Statute of
Limitations Challenges

2
3

Defendants argue that FEHA’s administrative exhaustion and time requirements bar several

4

of Hayter’s claims. The Court finds that the statute of limitations bars Hayter’s 2005 and 2007

5

claims and pregnancy accommodation claim, and that her only properly pleaded retaliation claim is

6

not ripe for adjudication.

7

a.

8

Statute of Limitations Bars Hayter’s 2005 and 2007 Claims

Like Burrell, Hayter alleges that she “was repeatedly passed over for promotion” over the
course of several years, including in 2005 and 2007. AC ¶ 95. However, in order for the Court to

10
United States District Court
For the Northern District of California

9

have jurisdiction to review Hayter’s claims, Hayter must have filed a DFEH complaint within one

11

year of each alleged violation. See Cal. Govt. Code § 12960(d). As stated previously, Hayter filed

12

her complaints in 2010 and 2011. See MK Decl., Ex. H. Despite the one-year bar, Hayter

13

contends that her 2005 and 2007 claims are timely because of the continuing violation doctrine.

14

As noted above, if an adverse employment action is deemed permanent, the continuing

15

violation doctrine does not apply. Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1057-59

16

(2005). The Court finds a discrete application for reclassification or reallocation to be similar to an

17

application for promotion, the denial of which carries a degree of permanency. See Maridon, 2013

18

WL 1786592, at *13 (finding that a plaintiff’s “failure to secure past promotions in a number of

19

specific, discrete instances” was final as to each incident, even if the plaintiff was not convinced

20

that the employer would never promote her in the future). Here, Hayter’s 2005 application for

21

reallocation and her 2007 application for reclassification are each discrete processes which

22

obtained a degree of permanence when Hayter was informed of the adverse decisions and did not

23

pursue any grievance procedure. See Morgan, 88 Cal. App. 4th at 67; Maridon, 2013 WL

24

1786592, at *9-11; see supra Part V.A.1.b. Accordingly, the continuing violations doctrine does

25

not apply to the denials of Hayter’s December 2005 and January 2007 applications.

26
27
28

Consequently, the Court finds these claims time-barred, and GRANTS Defendants’ Motion
for Summary Judgment as to these claims.
35
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1
2

b.

Statute of Limitations Bars Hayter’s Pregnancy Accommodation
Claim

The Amended Complaint does not reference any claim for the absence of pregnancy

3
accommodation. However, the Amended Complaint’s statement of facts alleges that, after
4
5

Hayter’s December 2005 reallocation application was denied in February of 2006, Hayter

6

contacted Kathy Buchanan, Human Resources Analyst, about arbitrating the decision. Buchanan

7

allegedly asked if Hayter had just had a baby and was on maternity leave, and allegedly told

8

Hayter, “this is probably not a good time for you.” AC ¶ 44. When Hayter asked if there was

9

anything else she could do about arbitrating, she was allegedly told there was not. Id. This same

United States District Court
For the Northern District of California

10

incident is referenced in Hayter’s 2011 DFEH complaint, which “checks the box” for “denial of

11
12

pregnancy accommodation.” MK Decl., Ex. H. Thus, it appears that Hayter’s alleged denial of

13

pregnancy accommodation relates to the allegation that, in 2006, she was not allowed to participate

14

in pre-arbitration because she was on maternity leave, and PHD was unwilling to engage in further

15

arbitration after her maternity leave ended. Based on this allegation, particularly in light of the fact

16

that Hayter was explicitly told that there was nothing further that she could do to arbitrate, a

17

reasonable employee would have believed that this decision was final. Consequently, the Court

18
finds that this alleged adverse employment action was sufficiently permanent, such that the
19
20

continuing violations doctrine does not apply. See Yanowitz, 36 Cal. 4th at 1057-59; Richards v.

21

CH2M Hill, Inc., 26 Cal. 4th 798, 823 (2001). As the event giving rise to Hayter’s claim based on

22

a denial of a pregnancy accommodation occurred in February of 2006, but Hayter did not file a

23

DFEH complaint related to this event until August of 2011, the Court finds this claim to be time-

24

barred. Thus, the Court GRANTS Defendants’ Motion for Summary Judgment as to this claim.

25

c.

Hayter’s Retaliation Claim is Not Ripe for Adjudication

26
Defendants also challenge Hayter’s retaliation claim as improperly exhausted. See Reply at
27
28

9. As stated above, all three Plaintiffs allege retaliation as their first cause of action. AC ¶ 81.
36
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

However, the Amended Complaint does not reference any specific acts of retaliation against Hayter

2

other than the “prospective pleading” of retaliation for filing DFEH complaints. Because Hayter

3

has not alleged any acts of retaliation for filing DFEH complaints and the Court does not find

4

prospective pleading claims ripe for adjudication, the Court GRANTS Defendants’ Motion for

5

Summary Judgment as to this claim. 20

6

2.

Plaintiff Hayter’s Surviving Disparate Treatment Claim under FEHA

7
In contrast, Hayter’s FEHA disparate treatment claim based on the denial of her December

8
9

2007 application for reallocation is not barred for lack of exhaustion of administrative remedies or

United States District Court
For the Northern District of California

10

timeliness, and is properly before the Court. Defendants concede that Hayter’s claim for the denial

11

of her December 2007 application for reallocation was timely filed because Hayter filed a

12

grievance pertaining to this denial on May 6, 2008, which the union pursued on her behalf until

13
14

December 13, 2011. See Hayter Dep. 84:1-10; Pineda Decl. ¶¶ 4-7. Defendants acknowledge that
pursuit of an administrative remedy tolls the statute of limitations. See Mot. at 18 (citing

15
16

McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 108 (2008)). Moreover, both the

17

adverse employment action and the alleged discriminatory cause of the alleged adverse

18

employment action appear to be contained in the DFEH complaints. 21

19
20

20
21
22
23
24
25
26
27
28

Hayter also seeks to raise additional claims of retaliation in Plaintiffs’ Opposition. Although the
basis of these claims is not entirely clear, the Opposition alleges that Hayter was retaliated against
after she advocated for more resources for the BIH program. See Opp’n at 27. Hayter’s
Declaration states that the fact that she was paid for “seventy (70) hours [sic] for working out-ofclass when [she] had been performing the same ‘out of class’ duties for four (4) years” was
evidence of retaliation. See Hayter Decl. at ¶ 9. However, because Plaintiffs’ Amended Complaint
does not provide any factual allegation of retaliation other than for filing the DFEH complaint,
these claims are not properly before the Court. See Coleman, 232 F.3d at 1292 (complaint guides
the parties discovery and puts defendant on notice of evidence needed for its defense); see also
Pickern, 457 F.3d at 969 (holding that plaintiff cannot raise new factual allegations of which
defendant had no prior notice at summary judgment).
21
Although the two DFEH complaints are not clear, the Court discerns that the 2007 failure to
reclassify was allegedly caused by discrimination on the basis of both race and gender. The
allegation of racial discrimination was in both the 2010 and 2011 DFEH complaint, and the
allegation of gender discrimination was included in the 2011 DFEH complaint.
37
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

Hayter appears to suggest two potential grounds for disparate treatment related to this

2

December 2007 reallocation request. First, Hayter points to the denial of the December 2007

3

reallocation request itself, followed by the elimination of four of Hayter’s duties: (1) researching

4

grants; (2) preparing grant applications; (3) preparing contracts; and (4) preparing budgets

5

(Hayter’s “additional duties”). See Cox Decl. ¶ 17. Second, Hayter alleges that Defendants’

6

decision to pay her 70 days for “working out of class” was an incident of disparate treatment. The

7
8
9
United States District Court
For the Northern District of California

10

Court addresses each in turn.
a.

Denial of Hayter’s December 2007 Reallocation Request and
Elimination of Some of Hayter’s Additional Duties

In December of 2007, Hayter applied for “reallocation” from PHN II to PHN III, a request

11
12

which the County ultimately denied. Hayter Dep. at 65:5-11. In the course of evaluating Hayter’s

13

December 2007 application, however, Human Resources Analyst Kathy Buchanan initially

14

recommended granting Hayter’s application for reallocation, finding that Hayter was performing

15

duties outside of the PHN II level. Cox Decl. ¶ 16, Ex. O. In making this assessment, Buchanan

16

noted that the “[t]he PHN II is distinguished from the PHN III in that the PHN II ‘normally carries

17

a full case load’ and the PHN III performs ‘special assignments requiring more sophisticated health

18
assessment and evaluation techniques and frequently acts in a consulting capacity.’” Cox Decl.,
19
20

Ex. O. Buchanan’s report also noted that PHD administration did not believe that Hayter should be

21

reclassified because she was performing PHN II level duties. Id. Upon reviewing Buchanan’s

22

report, Human Resources Director Joanne Cox determined that Hayter should not be reclassified,

23

and that certain additional duties that Hayter was performing should be removed because they were

24

outside the scope of PHN II duties. Cox Decl. ¶ 17. This determination was consistent with

25

Defendants’ contention that “[t]he program where Hayter worked as a PHN II (the BIH program)

26
did not have, and did not require, nurses at the PNH III level.” Mot. at 21 (citing Hayter Dep. at
27
28

38
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1
2

63:15-64:6; Burrell Dep. at 200:9-21; MK Decl, Ex. F, Dep. of Marty Fenstersheib (“Fenstersheib
Dep.”) at 58:5-18; 61:14-62:10).
Hayter argues that she was subjected to disparate treatment because Wedel and Alvarado

3
4

removed Hayter’s additional duties “in order to defeat Hayter’s application for promotion.” Opp’n

5

at 7. According to Hayter, “[t]here did not appear to be any legitimate reason to refuse to allow

6

Ms. Hayter to continue doing the 4 duties.” Opp’n at 7. Hayter further alleges that, “[i]t was clear

7
8
9

not [sic] one wanted Hayter’s duties removed except Wedel who directed Alvarado to direct Burell
to remove Hayter’s duties.” Opp’n at 7-8. Moreover, Hayter argues, “[i]t is clear Wedel and

United States District Court
For the Northern District of California

10

Alvarado are more interested in preventing [Hayter] from promoting [sic] than ensuring that the

11

BIH program is properly staffed.” Opp’n at 8. 22

12
13

Defendants do not address whether Hayter has established a prima facie case for disparate
treatment. However, unlike Defendants’ failure to respond to Burrell’s allegations, Defendants

14
squarely address their non-discriminatory reasons for denying Hayter’s reallocation application and
15
16

removing her additional duties.

17

Defendants explain that, pursuant to ESA policy, if there is a dispute between the

18

department and ESA about whether an employee is doing work authorized by his or her job code,

19

an ESA Human Resources employee conducts an independent investigation to determine whether

20

the duties are within the authorized job code’s responsibilities. See Cox Decl. ¶ 17. In this case,

21
22
23
24
25
26
27
28

22

Hayter also suggests that the removal of her additional duties was an act of retaliation for
complaints about the “dismissive and de minimus view management expressed of the BIH
Program.” Opp’n at 7. As discussed above, Burrell’s 2008 retaliation allegation is the only
retaliation claim discussed in the Amended Complaint; other retaliation allegations are not properly
before the Court. See Coleman, 232 F.3d at 1292 (complaint guides the parties discovery and puts
defendant on notice of evidence needed for its defense); see also Pickern, 457 F.3d at 969 (holding
that plaintiff cannot raise new factual allegations of which defendant had no prior notice at
summary judgment). Moreover, Hayter has not identified further information about when she
allegedly made complaints prior to the removal of her duties, to whom she complained, or any
other information about the relationship between such unidentified complaints and the removal of
her additional duties.
39
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

Human Resources Director Joanne Cox conducted the investigation, taking Buchanan’s report into

2

consideration. Id. ¶¶ 16-17. According to Defendants, Cox carried out her evaluation of Hayter’s

3

job duties and reached her ultimate conclusion to remove some of Hayter’s job duties in a manner

4

that was entirely consistent with ESA policy and the County’s collective bargaining agreement

5

with Hayter’s union. Cox determined that Hayter “may have been performing some duties that

6

were not PHN II duties, and that the assignment of these duties was inconsistent with the ESA

7
8
9

policy that employees should not work out of class unless there was a reason as outlined in the
policy.” Id. ¶ 17. Cox explained that, “[b]ecause the assignment of the [sic] Ms. Hayter’s job

United States District Court
For the Northern District of California

10

description was inconsistent with the ESA policy that would allow such a reclassification to be

11

implemented, such duties were removed on April 9, 2008.” Id. According to Cox, “[m]y objective

12

in removing these duties was to ensure that Ms. Hayter was properly classified and that she was

13

performing primarily case management duties.” Id.

14
Defendants further assert that the decision to remove some of Hayter’s job duties rather
15
16

than to reallocate her position was not motivated by discriminatory animus because, at the time

17

Cox made the decision to remove Hayter’s additional duties, she did not know Hayter’s race. Cox

18

Decl. ¶ 17 (“At the time I made my decision to remove duties from Ms. Hayter I did not know her

19

race and I did not make any effort to access information about her race.”).

20
21

The Court finds that Defendants have satisfied their burden of showing legitimate,
nondiscriminatory reasons for their employment actions. See Reid v. Google, Inc., 50 Cal. 4th 512,

22
520 n.2 (2010) (holding that a legitimate reason is one that is “facially unrelated to prohibited bias,
23
24

and which if true, would thus preclude a finding of discrimination.”) (internal citations omitted);

25

Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355-56 (2000). Consequently, Hayter must demonstrate

26

either that Defendants’ showing is insufficient or that there is a triable issue of fact material to the

27

defendant’s showing. See Lucent Techs., Inc., 642 F.3d at 746. To do so, Hayter must “‘produc[e]

28

40
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1
2

substantial responsive evidence that the employer’s showing was untrue or pretextual.’” Id.
(quoting Hanson, 74 Cal. App. 4th at 225).
The Court finds that Hayter has failed to produce either direct evidence or “specific” and

3
4

“substantial” circumstantial evidence to create a triable issue of pretext. See Earl, 658 F.3d at

5

1113; see also Lucent Techs., Inc., 642 F.3d at 746 (holding that, to create a triable issue of pretext,

6

evidence cannot “simply show the employer’s decision was wrong, mistaken or unwise,” but must

7
8
9

“demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable factfinder could

United States District Court
For the Northern District of California

10

rationally find them unworthy of credence . . . and hence infer that the employer did not act for the

11

. . . non-[discriminatory] reasons.”).

12
13

As a preliminary matter, Hayter offers no specific or substantial evidence that Cox’s
decision to remove Hayter’s job responsibilities was either contrary to ESA policy or in any way

14
related to Hayter’s race. Indeed, Hayter offers no evidence at all to refute Cox’s statement that
15
16

Cox did not know Hayter’s race at the time Cox made the decision. Hayter does allege that Cox

17

“should have known” Hayter’s race because Hayter previously protested that her “numerous”

18

denials of promotion were “based on racial discrimination.” Hayter Decl. ¶ 6; Opp’n at 9.

19

However, Hayter does not specify to whom Hayter made these protests, when she made these

20

protests, whether any protests were made prior to Cox’s decision, or why Cox should have known

21
22

about them. As a result, Hayter has not rebutted Defendants’ contention that Cox made the
employment decision based on criteria unrelated to racial bias. 23 Moreover, contrary to Hayter’s

23
24
25
26
27
28

assertion that “[t]here did not appear to be any legitimate reason to refuse to allow Ms. Hayter to

23

Hayter also attempts to show that Cox’s decision was pretextual by alleging that “Ms. Cox is not
very familiar with the PHN III job description.” Hayter Decl. ¶ 7. However, Hayter provides no
support for this conclusory statement, nor any basis for knowledge. See Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989) (holding that a “summary judgment motion cannot be defeated by
relying solely on conclusory allegations unsupported by factual data.”).
41
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

continue doing the 4 duties,” Opp’n at 7, the “reason” set forth by Cox was to ensure that Hayter’s

2

job duties were consistent with the ESA policy for the PHN II class, and the needs of the PHD. Id.

3

¶ 17. PHD administration determined that the program required a PHN II rather than a PHN III.

4

See Fenstersheib Dep. at 61:14-62:10. While Hayter may think this reasoning is “wrong, mistaken,

5

or unwise,” Hayter has not demonstrated any basis for finding that Cox’s explanation is unworthy

6

of credence. See Lucent Techs., Inc., 642 F.3d at 746.

7
8
9

In addition, Hayter offers no evidence to support her allegation that Wedel and Alvarado
removed Hayter’s duties in order to defeat Hayter’s application for a promotion. Rather, the

United States District Court
For the Northern District of California

10

evidence indicates that these responsibilities were removed at the direction of Cox, the Human

11

Resources Director. See Cox Decl. ¶¶ 16-18. Further, Hayter provides no support for her

12

allegation that “it was clear not [sic] one wanted Hayter’s duties removed except Wedel . . . .”

13

Opp’n at 7-8. While Plaintiffs cite to paragraph 14 of Hayter’s declaration to support this point,

14
nothing in this paragraph provides evidence for this proposition. See Hayter Decl. ¶ 14 (making
15
16

an unsupported allegation that “Cox has not been involved in this matter until her declaration in

17

this case”). Indeed, Hayter’s insistence that some ambiguity previously existed about the proper

18

classification of Hayter’s additional duties is precisely why Cox was consulted and asked to make

19

an independent assessment of Hayter’s job responsibilities, which she subsequently determined

20

should be removed. Hayter has not provided any evidence that Wedel or Alvarado, rather than

21

Cox, decided that Hayter’s additional duties should be removed. See Cox Decl. ¶ 18 (“On April

22
10, 2008, Ms. Buchanan, pursuant to my direction, provided Ms. Hayter written notice that her
23
24

position would not be reallocated . . .”).

25

Finally, Hayter sets forth no evidence to support her assertion that, “[i]t is clear Wedel and

26

Alvarado are more interested in preventing Ms. Hayter from promoting than ensuring that the BIH

27

program is properly staffed.” Opp’n at 8 (emphasis added). As her best evidence of this

28

42
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

proposition, Plaintiff references an email exchange in which, when asked whether it would be

2

possible to remove some of Hayter’s duties, Wedel responded by saying, “absolutely.” See Opp’n

3

at 19. 24 Even if admissible, this exchange does not rise to the level of “substantial” evidence from

4

which a reasonable fact finder could conclude that the basis for removing Hayter’s duties was

5

discriminatory intent.

6

The statement of facts in Plaintiffs’ Opposition references two additional incidents which

7
8
9

do not ultimately create a triable issue of pretext. First, Hayter alleges that, on April 21, 2008,
Burrell’s manager, Dolores Alvarado, pointed her finger in Hayter’s face and said, “‘don’t you

United States District Court
For the Northern District of California

10

smirk at me’ young lady.” Hayter Decl. ¶ 12. Hayter adds that an SEIU Contracts Enforcement

11

Specialist who was present told Alvarado that Hayter was merely smiling. Id. See id.; Opp’n at 9-

12

10. However, Plaintiffs do not identify the relative age of Hayter or Alvarado, or the racial

13

implications of the comment. In light of Plaintiffs’ failure to elaborate on this statement, the Court

14
declines to speculate as to its racial implications. See United States v. Dunkel, 927 F.2d 955, 956
15
16

(7th Cir. 1991). Additionally, Hayter references Wedel’s 2010 comment about the size of the

17

African American community of Santa Clara County. See Hayter Decl. ¶ 11. However, Hayter

18

does not provide evidence or analysis tying this comment to Cox’s decision in 2008 to remove

19

Hayter’s duties. Without further explanation, these comments, at most, constitute evidence of the

20

possibility of discrimination “in the air,” rather than discrimination connected to employment

21

decision making. See Harris, 56 Cal. 4th at 231; Pottenger v. Potlatch Corp., 329 F.3d 740, 747

22
24

23
24
25
26
27
28

Plaintiffs cite to “Alvarado Depo Ex 27.” However, Exhibit 27 is not attached to the deposition
of Dolores Alvarado. See Bonner Decl, Ex. 4. As addressed above, supra Part I, on April 16,
2013, nearly two weeks after the April 4 hearing, Plaintiffs’ counsel submitted a supplemental
declaration and exhibit, ECF No. 75, stating “During oral argument for the Motion for Summary
Judgment, I noticed that Exhibit 43 of the Declaration of Vickye Hayter was incorrect. We are not
sure if the incorrect document was included in the Court’s copy of Ms. Hayter’s declaration. We
are supplementing the Court’s copy in an abundance of caution.” ECF No. 75, ¶ 3. The
declaration attaches a page of the email exchange in which Wedel responds that Hayter’s additional
duties may “[a]bsolutely” be removed, which was indeed omitted from Hayter Decl., Ex. 43. See
ECF No. 75, Ex. 1.
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1

(9th Cir. 2003) (finding isolated or ambivalent remarks insufficient to defeat an employer’s

2

summary judgment motion); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (finding the

3

comment “we don’t necessarily like grey hair” was “at best weak circumstantial evidence” of age

4

discrimination). Because Hayter has not identified evidence or factual disputes to tie these

5

incidents to Cox’s decision, these incidents are insufficient to rebut Defendants’ proffered

6

explanation.

7
8
9

In sum, the Court finds that, unlike Burrell, Hayter has failed to identify an insufficiency in
Defendants’ showing of a non-discriminatory reason, or evidence of a triable issue of fact with

United States District Court
For the Northern District of California

10

respect to that showing. In reaching such a conclusion, the Court does not ask whether

11

Defendants’ decision was “mistaken or unwise,” but rather must inquire whether Hayter has

12

presented such “specific and substantial evidence” that a reasonable factfinder could find the

13

proffered reasons “unworthy of credence” and infer that the employer did not act for the alleged

14
non-discriminatory reason. See Lucent Techs., Inc., 642 F.3d at 746 (citing Morgan, 88
15
16

Cal.App.4th 52). Based on Plaintiffs’ presentation of the evidence, the Court finds that Hayter has

17

failed to meet her burden, and this claim cannot survive Defendants’ Motion for Summary

18

Judgment.

19
20
21

b.

Defendants’ Decision to Pay Hayter 70 Days for “Working
Out of Class”

Hayter also alleges disparate treatment based on Defendants’ decision to pay her 70 days

22

for working out of class. Although Hayter’s reimbursement for working out of class is referenced

23

in the Amended Complaint, Hayter’s disparate treatment cause of action only explicitly references

24

her denial of a promotion. Compare AC ¶ 46, with AC ¶ 95. Even assuming that Hayter’s

25

reimbursement claim was sufficiently alleged in the Amended Complaint to put Defendants on

26
notice of the allegation, the Court finds that Defendants have presented a legitimate reason for their
27
28

decision, which Hayter has failed to rebut.
44
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1

Defendants contend that, under the terms of the County’s MOU with Hayter’s union, SEIU,

2

the County had the right to remove Hayter’s duties within 20 working days after the receipt of her

3

reallocation request. Cox Decl. ¶ 18. Because the County did not timely respond to the request

4

within 20 days, Cox determined that Hayter should be paid for working out of class for 70 days,

5

“the number of work days from when Ms. Hayter submitted her Position Classification

6

Questionnaire to her supervisor to the date of the County’s response on April 10, 2008.” Id.

7
8
9

Defendants contend that Hayter did not have a right to arbitrate because she was paid for working
out of class. Id. At the time that Cox made this decision, she did not know Hayter’s race. Id.

United States District Court
For the Northern District of California

10

Hayter does not dispute these facts. Rather, she alleges that Wedel suggested paying a non-

11

African American employee a year’s salary for working out of class. See Hayter Decl. ¶ 10 (citing

12

Wedel Dep. Vol. III 457:4-461:1). The statement of facts in Plaintiffs’ Opposition specifically

13

alleges that, on August 10, 2010, Wedel sent an email inquiring about paying a non-African

14
American woman for a full year of working out of class. Opp’n at 9 (citing Hayter Decl. ¶ 18).
15
16

At Wedel’s deposition, Wedel read from this email in which she inquired about paying a

17

non-African American employee for a full year of working out of class. The email stated that this

18

employee had been on special assignment in the Public Health Preparedness department for about a

19

year, in a job that had been determined to be a PHN II job. Wedel Dep. Vol. III 457:16-20. Wedel

20

wrote, “However, during the past year, with increased level of involvement in the H1N1 response,

21

I believe this PHN was functioning more as a PHN III.” Wedel Dep. Vol. III 457:20-23. Wedel

22
inquired:
23
24
25

Is there a mechanism [sic] we can pay her a full year of retro pay to the higher
level? The nurse was formerly a 521 steward, and although she’s been very
gracious about helping, she’s also mentioned to several people that she is doing
PHN III work.

26
27
28

Wedel Dep. Vol. III 457:4-461:12.
45
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
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1

This email does not sufficiently rebut the legitimate reasons that Defendants assert for the

2

decision to pay Hayter for only 70 days. First, there is no evidence that this other employee

3

actually received any payment that differed from that which Hayter received, or any other evidence

4

of differential treatment. In fact, Plaintiffs’ counsel confirmed this lack of evidence at the May 2

5

pre-trial conference. Second, there is no evidence tying Wedel’s inquiry to Cox’s decision to pay

6

Hayter for the 70 days between the time that Hayter submitted her request for reallocation and the

7

time that her duties were removed. Consequently, this evidence is also insufficient to raise a triable

8

question of fact with respect to pretext.

9
United States District Court
For the Northern District of California

10

Accordingly, the Court GRANTS Defendants Motion for Summary Judgment with respect
to Hayter’s disparate treatment claim.

11

C.

Plaintiff Headd’s Disparate Treatment and Retaliation Claims under FEHA

12

Plaintiff Headd alleges disparate treatment on the basis of race, gender, age, and medical

13

disability, AC ¶ 98, and retaliation for filing a DFEH complaint, AC ¶ 81. 25 Although the factual

14

bases for this claim are not specifically identified, the allegation appears to arise out of Headd’s

15

contention that, between 2009 and 2011, she was not hired, transferred, or promoted into certain

16

positions. Opp’n at 10-12.

17

The instant suit followed two DFEH complaints. Headd first filed a complaint with DFEH

18

on June 7, 2011, alleging that she was denied promotions in August of 2010, February of 2011, and

19

April of 2011, due to discrimination based on her race, age, and medical condition. MK Decl., Ex.

20

25

21
22
23
24
25
26
27
28

It appears Headd may now also seek to pursue a disability accommodation claim. See Headd
Decl. ¶¶5, 16; Opp’n at 10-11. Under FEHA, Cal. Govt. Code Section 12940(m) requires
reasonable accommodation for disabilities, which gives rise to a separate cause of action from
FEHA's employment discrimination provision in Section 12940(a). See Diaz v. Fed. Express
Corp., 373 F. Supp. 2d 1034, 1054 (C.D. Cal. 2005) (citing Bagatti v. Dep't of Rehabilitation, 97
Cal. App. 4th 344, 362 (2002)) (“Subdivision (m) ... defines a separate and distinct unfair
employment practice independent of subdivision (a)”). Although the Amended Complaint
references discrimination on the basis of disability, it does not allege any cause of action or facts
supporting a disability accommodation claim, nor do either of Headd’s DFEH complaints reference
disability accommodation. Accordingly, Headd’s disability accommodation claim is not properly
before the Court. See Coleman, 232 F.3d at 1292 (complaint guides the parties discovery and puts
defendant on notice of evidence needed for its defense); see also Pickern, 457 F.3d at 969 (holding
that plaintiff cannot raise new factual allegations of which defendant had no prior notice at
summary judgment).
46
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1

C, Dep. of Margaret Headd (“Headd Dep.”) 348:6-349:21 & Ex. 4. She filed an amended DFEH

2

complaint on June 28, 2011, discussing the same incidents and bases for discrimination, but adding

3

a claim of disability discrimination. See Headd Dep. at 348:6-349:21 & Ex. 4. The DFEH issued

4

right-to-sue notices on June 7, 2011, and August 29, 2011. MK Decl., Ex. I.

5

Defendants contend that FEHA’s statute of limitations bars Headd’s disparate treatment

6

claims that are predicated on incidents that occurred over a year before her June 7, 2011 DFEH

7

complaint. Mot. at 19. Defendants further contend that Headd failed to exhaust her retaliation

8

claim. Mot. at 26. For Headd’s remaining allegations, Defendants contend that Headd has not

9

rebutted Defendants’ legitimate, non-discriminatory reasons. The Court addresses each in turn.

United States District Court
For the Northern District of California

10
11

Defendants’ FEHA Administrative Exhaustion and Statute of
Limitations Challenges

12

a.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1.

FEHA Statute of Limitations Bars Headd’s Claims that Arose
Over One Year Before Her June 7, 2011 DFEH Complaint

Despite the fact that Headd alleged only three adverse employment actions in her DFEH
complaint, Headd’s Amended Complaint appears to base her federal claims on additional adverse
employment actions. See AC ¶¶ 58-78. Specifically, it appears from the Amended Complaint and
Plaintiffs’ Opposition to Summary Judgment that Headd is also challenging: (1) her 2009 lay-off;
(2) her 2009 placements into two different Management Aide positions; and (3) the February 2010
denial of her application for a Health Program Specialist position. See Mot. at 19-20; Opp’n at 13.
However, because Headd did not file her first DFEH complaint until June 7, 2011, these claims are
barred by FEHA’s one year statute of limitations. See Cal. Govt. Code § 12960(d).
Like Burrell and Hayter, Headd relies on the continuing violations doctrine as an exception
to FEHA’s statute of limitations. Opp’n at 22. As explained previously, the continuing violations
doctrine requires that: “(1) the actions are sufficiently similar in kind; (2) they occur with sufficient
frequency; and (3) they have not acquired a degree of ‘permanence’ so that employees are on
notice that further efforts at informal conciliation with the employer to obtain accommodation or
end harassment would be futile.” Richards, 26 Cal. 4th at 823. In this case, Headd’s claims
acquired a degree of permanence over a year before she filed her complaint. Specifically, Headd’s
47
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

2009 lay-off and 2009 placements in Management Aide positions became final at the time the

2

employment actions occurred, even if the actions were not necessarily permanent in the sense that

3

Headd could still be re-hired or transferred to another position in the future. See Gardner v. City of

4

Berkeley, 838 F. Supp. 2d 910, 920 (N.D. Cal. 2012). If Headd believed she was wrongly laid off

5

or improperly placed, she could have pursued these claims at the time. Similarly, Headd’s

6

February 2010 denial of her application for a Health Program Specialist position became

7

permanent at the time of Headd’s denial. See Morgan, 88 Cal. App. 4th at 67; Maridon, 2013 WL

8

1786592 at *9-11.

9

Because the Court finds that these new adverse employment actions acquired a degree of

United States District Court
For the Northern District of California

10

permanence over a year before Headd filed her first DFEH complaint, the continuing violations

11

doctrine does not save these claims from FEHA’s statute of limitations, and the Court GRANTS

12

Defendants’ Motion for Summary Judgment as to these claims.

13
14

b.

Headd’s Retaliation Claim is Not Ripe for Adjudication

Defendants also challenge Headd’s retaliation claim as improperly exhausted. See Mot. at

15

26; Reply at 10. However, the Court need not reach the exhaustion issue, because the Amended

16

Complaint does not allege any acts of retaliation against Headd. Rather, the only basis for Headd’s

17

retaliation claim is the Amended Complaint’s allegation that Defendant County retaliated against

18

Plaintiffs for filing DFEH complaints. AC ¶ 81. At the April 4 hearing, Plaintiffs’ counsel

19

conceded that the allegation of retaliation for filing DFEH complaints was not supported by any

20

facts, but rather was “prospectively” pleaded in the event of future retaliation. Accordingly, the

21

Court does not find this claim ripe for adjudication, and the Court GRANTS Defendants’ Motion

22

for Summary Judgment as to this claim.

23
24

2.

Plaintiff Headd’s Surviving Disparate Treatment Claims Under FEHA

Defendants also move for summary judgment on the remainder of Headd’s disparate

25

treatment claims. As with Burrell and Hayter, the Amended Complaint does not clearly identify

26

the factual basis of Headd’s disparate treatment allegations, stating only that Headd was

27

“repeatedly passed over for promotion,” and required “to re-apply for each job and was not

28

48
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
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1

promoted,” “[e]ven though she was on a promotional list.” AC ¶ 98. Nevertheless, the adverse

2

employment actions on which Headd appears to rely for this claim include Headd’s: (1) August

3

2010 application for a Health Program Specialist (“HPS”) position with PHD Administration; (2)

4

November or December 2010 application for a Senior Health Care Program Analyst transfer

5

position for which she was not referred for an interview; (3) January 2011 application for a HPS

6

“promotional recruitment”; and (4) July 2011 application for a Health Planning Specialist II

7

transfer opportunity and a Health Care Program Analyst II transfer opportunity. Headd alleges that

8

the discrimination she encountered relating to each incident “was motivated by [P]laintiff’s race –

9

African-American, [P]laintiff’s gender – female, [P]laintiff’s age—over 40 and Plaintiff’s medical

United States District Court
For the Northern District of California

10
11

disability.” AC ¶ 98.
The County does not address Headd’s prima facie case of disparate treatment. Assuming

12

without deciding that Headd presents a prima facie case, the Court finds that the County has set

13

forth legitimate, non-discriminatory reasons for each employment action taken during the statutory

14

period. Headd does not identify any specific evidence, let alone substantial evidence, that rebuts

15

Defendants’ explanations. Therefore, Headd fails to raise a triable question of fact regarding

16

whether Defendants’ proffered explanations are pretextual. Accordingly, the Court finds that, on

17

this record, a reasonable jury could not “conclude by a preponderance of the evidence that the

18

defendant undertook the challenged employment action because of [Headd’s] race [or gender, age,

19

or medical disability].” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1037 (9th Cir.

20

2006) (internal citation omitted).

21
22

a.

August 2010 Application

In August of 2010, Headd applied for a HPS position with PHD Administration. Headd

23

Dep. at 109:9-11; Moresco Decl. ¶ 16. Defendants allege that they did not hire Headd for this

24

position because she: (1) lacked the requisite knowledge of Santa Clara County government

25

processes; (2) submitted application materials containing multiple spelling, grammatical, and

26

formatting errors; and (3) failed to submit a writing sample as requested. Moresco Decl. ¶ 16.

27
28

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1

Moreover, no candidate was ultimately hired for the position because the County deleted the

2

position. Id.
Headd fails to set forth significant and substantial evidence rebutting Defendants’ rationale

4

for not promoting her to the HPS position in August of 2010. First, Headd challenges the veracity

5

of Defendants’ assertion that she lacked the requisite knowledge of Santa Clara government

6

processes. Headd Decl. ¶ 8. However, Headd provides no evidence beyond her assertion, made in

7

her declaration, that the “County’s position is false and disputed” to demonstrate why the County’s

8

position was wrong. See id. Second, Headd does not dispute that her application contained

9

multiple errors. Third, while Headd disputes that she was instructed to submit a writing sample as

10
United States District Court
For the Northern District of California

3

part of her application, she acknowledges that she was instructed to bring “a sample of [her] most

11

recent administrative (versus program planning) complex[,] high-level project you have managed.”

12

See Headd Decl. ¶¶ 7-8; Moresco Decl. at ¶ 16. Headd does not indicate that she complied with

13

the request for a project sample. Most importantly, Headd does not dispute that the HPS position

14

was deleted, and in fact nobody was hired for the job. Thus, even taking the disputed facts in the

15

light most favorable to the non-moving party, Headd fails to present a triable issue of pretext.

16
17

b.

November or December 2010 Application

In November or December of 2010, Headd also applied for a Senior Health Care Program

18

Analyst transfer position but was not referred for an interview. See Moresco Decl. ¶ 17 (stating

19

Hayter’s application was submitted in November of 2010); Headd Decl. ¶ 12 (mistakenly quoting

20

Moresco Decl. as stating that the application was submitted in December of 2010). Defendants

21

assert that Headd lacked the experience required under the County Employment Standards, which

22

required four years of professional level analytical and administrative experience, two of which

23

must have been in a health care setting. Moresco Decl. ¶ 17 (reviewing records related to the

24

recruitment process). In response, Headd alleges that she “did not lack sufficient experience as

25

[she] had been performing in a lead position role and coordinating programs since [she] became a

26

Santa Clara County employee.” Headd Decl. ¶ 12. However, Headd does not provide any

27

evidence that she had “four years of professional level analytical and administrative experience,” as

28

50
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

required by the position. She also fails to provide any indication of pretext. Consequently, Headd

2

fails to present significant and substantial evidence rebutting Defendants’ proffered reason for not

3

referring her for an interview for the SHCPA position.

4

c.

January 2011 Application

5

In January of 2011, Headd applied for an HPS “promotional recruitment.” Moresco Decl.

6

¶ 18. According to the County records, the hiring manager, Barbara Broderick, stated that Headd

7

was not selected because, among other reasons, Headd “‘did not show breadth [of] knowledge and

8

skills’ relevant to the program; had not worked on policy systems and environmental change

9

strategies; and had ‘[l]imited experience in management and team building.’” Id. (quoting records

United States District Court
For the Northern District of California

10

kept by the County); Broderick Decl. ¶¶ 4, 6. Headd does not dispute these reasons or offer any

11

evidence that would indicate that her race, gender, age, or medical disability were actually

12

motivating reasons for the County’s decision. She simply states that, “Broderick was aware of my

13

skills and my eagerness to grow and develop new skills.” Headd Decl. ¶ 14. Headd provides no

14

evidence that Broderick’s stated reasons were pretextual.

15
16

d.

July 2011 Application

In July of 2011, Headd applied for a Health Planning Specialist II transfer opportunity and a

17

Health Care Program Analyst II transfer opportunity. Moresco Decl. ¶ 19. The Health Planning

18

Specialist II job was deleted before any interviews took place.

19

With respect to the Health Care Program Analyst II position, ESA informed Headd that

20

“she did not have the depth and scope of analytical and administrative experience required for the

21

classification.” Id. Headd neither contests this, nor offers any significant or substantial evidence

22

that would indicate that the County’s motivation for denying her application was based on her race,

23

gender, age, or medical disability. Consequently, Headd provides no evidence that the reason she

24

was not granted the Health Planning Specialist II job was pretextual.

25
26
27
28

e.

Comparable Positions

Headd also contends that from October 2009 until 2012, PHD created 10 “comparable
positions” for which she alleges that she was qualified. Opp’n at 12; Headd Decl. ¶ 6, 19.
51
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
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1

However, she does not offer any evidence demonstrating her qualifications for the positions,

2

whether the positions were vacant, or whether they were filled. The Court does not find this

3

allegation indicative of disparate treatment.

4
5

f.

Additional Allegations

Finally, Headd also sets forth additional allegations related to her time-barred claims.
Although Headd may include time-barred allegations for evidentiary purposes, Defendants have

7

provided specific explanations for each of their previous decisions, which Headd’s unsupported

8

claims fail to rebut. For example, Headd alleges that other employees, R.G. and C.V., were laid off

9

at the same time that she was in 2009, but were subsequently re-hired to higher level positions than

10
United States District Court
For the Northern District of California

6

Headd. Headd Decl. ¶ 4; Headd Dep. at 97:7-15; 98:5-9. However, Defendants explain that both

11

R.G. and C.V. were assigned to these positions because, unlike Headd, they held underlying

12

permanent status in these positions. See Cox Decl. ¶ 36. Headd does not provide any evidence to

13

contest this.

14

In lieu of providing factual evidence of discrimination, Headd’s declaration cites her own

15

deposition testimony, alleging that her deposition “reflects that I did feel I was discriminated

16

against based on my medical history, race and age.” Headd Decl. ¶ 10 (citing Headd Dep. at

17

262:10-263:8). While it is undisputed that Headd felt discriminated against, she has not identified

18

sufficient facts to demonstrate that Defendants’ explanations for their employment actions were

19

pretextual. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED as to Headd’s

20

remaining disparate treatment claims.

21

D.

Disparate Impact (Sixth, Seventh, and Eighth Causes of Action)

22

Each of the three Plaintiffs also bring FEHA claims of disparate impact, alleging that the

23

County’s policies had a disparate impact on African Americans. AC ¶¶ 100-113. A disparate

24

impact claim is a claim that “a facially neutral employer practice or policy, bearing no manifest

25

relationship to job requirements, . . . ha[s] a disproportionate adverse effect on members of the

26

protected class [regardless of motive].” Guz, 24 Cal. 4th at 354 n.20 (citing Griggs v. Duke Power

27

Co., 402 U.S. 424, 431 (1971)); Raytheon Co. v. Hernandez, 540 US. 44, 52-53 (2003). To prevail

28

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
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1

on a disparate impact claim, a plaintiff must identify a specific employment practice that is

2

challenged, and must then present statistical evidence showing that that practice has caused an

3

adverse impact on members of a protected class. See Carter v. CB Richard Ellis, Inc., 122 Cal.

4

App. 4th 1313, 1323-34 (2004). “The proper comparison is between the racial composition of the

5

at-issue jobs and the racial composition of the qualified . . . population in the relevant labor

6

market.” Wards Cove Packing Co., Inc., 490 U.S. at 650.

7

Here, Plaintiffs neither identify a specific employment practice nor present competent

8

statistical evidence comparing the racial composition of the relevant market to the workers in the

9

jobs at issue. Plaintiffs quote precedent that “[a]n employer’s facially neutral practice of

United States District Court
For the Northern District of California

10

committing employment decisions to the subjective discretion of supervisory employees [is] a

11

specific employment practice properly subject to a disparate impact analysis.” Opp’n at 29

12

(quoting Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990)). Plaintiffs do not,

13

however, specify which of the County’s employment practices involve this kind of delegated

14

discretion. Plaintiffs also do not present any evidence of the kind of criteria the County uses in

15

establishing eligibility for the various positions at issue in this lawsuit. In fact, Plaintiffs have

16

made no statement at all about the particular practice to which they object.

17

Plaintiffs do refer vaguely to a failure to “take action to insure that Plaintiffs were not

18

stymied by the glass ceiling.” Id. Plaintiffs cite, without explanation, portions of the testimony of

19

their expert Amy Oppenheimer regarding her untimely amended report. 26 However, the Court

20

notes that the amended report did not contain any evidence of the type courts have held is required

21

for establishing disparate impact claims. Even considering Oppenheimer’s amended report and

22

testimony, Plaintiffs have failed to raise a genuine disputed issue of material fact. Rather,

23

Oppenheimer’s amended report merely suggests that Defendants could have been clearer in

24

delineating the promotion process and could have investigated more. See Decl. of Charles Bonner,

25

ECF No. 52, Ex. 9, Dep. of Amy Oppenheimer (“Oppenheimer Dep.”) at 100:9-101:11. The cited

26

testimony does not, however, identify any particular employment practice to which Plaintiffs take

27

26

28

As noted supra note 3, the Court has ruled to exclude Oppenheimer’s untimely amended report,
and any testimony related to it.
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1

issue. See id. at 100:16-101:1 (stating that the County “did not provide guidance and mentoring, . .

2

. failed to make the procedures clear and, for lack of a better term, user friendly[, and]. . . failed to

3

consistently communicate and support [plaintiffs] in terms of their desires to be promoted.”) These

4

vague allegations concerning how the situation could have been better do not constitute

5

identification of a specific employment practice for disparate impact purposes.

6

Plaintiffs also fail to provide any statistical evidence of disparate impact, despite

7

recognizing the need for comparative statistics in order to prevail on a disparate impact claim. See

8

Opp’n at 28 (“The first step in a statistical analysis is to identify the base population for

9

comparison.”) (citing Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002), and Wards Cove

United States District Court
For the Northern District of California

10

Packing, 490 U.S. at 650-51). Plaintiffs do not attempt to provide any statistical analysis.

11

Plaintiffs state only that, “[b]ased on the implicit bias test studies, there are few groups of

12

employees as impacted by the glass ceilings as much as African Americans. . . . Further, the

13

Counties [sic] actions and inaction were inconsistent with a real commitment to diversity.” Id. at

14

29. In so claiming, Plaintiffs cite to several passages from Oppenheimer’s deposition. Again, even

15

if admissible, Oppenheimer’s testimony does not include any analysis of the racial makeup of

16

either the applicant pool or the current workforce. See Oppenheimer Dep. at 101:12-15 (“Q: Have

17

you done any statistical analysis in this case? A: No, they did not provide any statistics. I would

18

like to see them.”). Oppenheimer’s testimony concerning glass ceilings is general in nature, and

19

does not address the situation in the PHD. See, e.g., Oppenheimer Dep. at 99:20-100:1 (“Q: So

20

what is the underlying basis for your assertion that there are few groups of employees impacted by

21

glass ceilings as much as African Americans?” A: Studies I’ve read, the implicit bias test I

22

mentioned earlier, statistics of African-Americans as opposed to women as partners in law firms, as

23

CEO’s and, you know, different roles in our society.”). Testimony about the general challenges

24

faced by a minority group, without more, does not constitute evidence that any particular

25

employer’s practices had a disparate impact on that group.

26

Plaintiffs also claim that, “[t]he declarations of African-Americans in the PHD creates [sic]

27

a disputed triable issue of fact as to whether County’s promotions policies have a disparate impact

28

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on African-Americans.” Opp’n at 29. These three declarations, which are from PHD employees

2

Terry Pryor, Michael Bradford, and Mary Azah, state the approximate number of African

3

Americans in the PHD, but do not identify “the racial composition of the qualified . . . population

4

in the relevant labor market.” Wards Cove Packing, 490 U.S. at 650-51. 27

5

In sum, Plaintiffs have not presented any evidence that a specific employment practice in

6

the County’s PHD has a disparate impact on African Americans, both because they have failed to

7

identify the specific employment practice at issue and because they have presented no evidence

8

about the relevant labor market. Accordingly, Defendants’ Motion for Summary Judgment is

9

GRANTED as to Plaintiffs’ claims of disparate impact.

United States District Court
For the Northern District of California

10

E.

All Plaintiffs’ Failure to Protect Claim under FEHA

11

In addition to prohibiting discrimination, FEHA also makes it illegal for “an employer,

12

labor organization, employment agency, apprenticeship training program, or any training program

13

leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and

14

harassment from occurring.” Cal. Gov’t Code § 12940(k). “One such reasonable step, and one

15

that is required in order to ensure a discrimination-free work environment, is a prompt

16

investigation of [a] discrimination claim.” Cal. Fair Emp’t & Housing Comm’n v. Gemini

17

Aluminum Corp., 122 Cal. App. 4th 1004, 1024 (2004) (citing Northrop Grumman Corp. v.

18

Workers’ Comp. Appeals Bd., 103 Cal. App. 4th 1021, 1035 (2002)). “Other reasonable steps an

19

employer might take include the establishment and promulgation of antidiscrimination policies and

20

the implementation of effective procedures to handle complaints and grievances regarding

21

discrimination.” Id. at 1025. However, such a claim requires identification of actionable

22

discrimination. The California Court of Appeal has explained that it does “not believe the statutory

23

language supports recovery on such a private right of action where there has been a specific factual

24

finding that no such discrimination or harassment actually occurred at the plaintiffs’s [sic]

25
26
27
28

27

Defendants have argued that these declarations are inadmissible because Plaintiffs did not list
any of these three declarations in their Rule 26 initial disclosures. See Reply at 8. Because these
declarations do not create a genuine issue of material fact as to the disparate impact of any specific
policy, the Court need not reach the question of their admissibility for purposes of deciding the
instant motion.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

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workplace.” Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280, 288-89 (1998) (affirming

2

trial court’s grant of judgment as a matter of law for defendants where jury found that there had

3

been a failure to protect but there had been no discrimination).

4

Defendants’ only stated basis for objecting to Plaintiffs’ claims of failure to prevent

5

discrimination is the assertion that “there is no evidence that any employment action at issue was

6

based on discrimination.” Mot. at 25; Reply at 17. The Court agrees with respect to Plaintiffs

7

Hayter and Headd, who have failed to allege actionable claims of discrimination, and therefore

8

GRANTS Defendants’ Motion for Summary Judgment with respect to these Plaintiffs.

9

However, because Plaintiff Burrell’s disparate treatment claim has survived summary

United States District Court
For the Northern District of California

10

judgment, Defendants have failed to carry their initial burden of “identifying the portions of the

11

declarations, pleadings, and discovery that demonstrate an absence of a genuine issue of material

12

fact” with respect to this claim. See Celotex Corp., 477 U.S. at 323. Plaintiff Burrell has alleged

13

that she repeatedly raised concerns of discrimination to Alvarado and Peddycord, and that no

14

investigation followed. See Burrell ¶¶ 6-9; 28 Gemini Aluminum Corp., 122 Cal. App. 4th at 1024

15

(finding investigation of discrimination claims to be a “required”). Defendants have failed to

16

introduce evidence that this fact is undisputed. Accordingly, the Court DENIES Defendants’

17

Motion for Summary Judgment with respect to Plaintiff Burrell.

18

F.

19

Defendants also move for summary judgment on Plaintiffs’ two remaining claims under 42

All Plaintiffs’ 1983 Causes of Action

20

U.S.C. § 1983: (1) retaliation for exercising free speech, and (2) negligent hiring, training, and

21

supervision. The Court addresses each in turn.

22
23
24
25
26
27
28

28

Defendants have objected to these conversations as hearsay. However, this testimony can be
elicited without eliciting hearsay. Moreover, the Court does not rely on Burrell’s testimony about
conversations alleging discrimination for the truth of the matter asserted. See Fed. R. Evid. 802.
Defendants also object on the basis of personal knowledge. Fed. R. Evid. 602. The Court
interprets Burrell’s statement regarding the absence of investigations as limited to the extent of her
personal knowledge.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

1.

2

Retaliation for Exercising Free Speech (Tenth Cause of Action)

To state a claim under Section 1983, including a claim for retaliation based on the exercise

3

of freedom of speech, Plaintiffs must prove: (1) “the violation of a right secured by the

4

Constitution or laws of the United States”; and (2) “that the alleged deprivation was committed by

5

a person acting under color of law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, the

6

Constitutional right at issue is the First Amendment right to freedom of speech.

7

The Ninth Circuit has established a five-part test to determine whether a public employee

8

has been retaliated against for exercising free speech rights: “(1) whether the plaintiff spoke on a

9

matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3)

United States District Court
For the Northern District of California

10

whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse

11

employment action; (4) whether the state had an adequate justification for treating the employee

12

differently from other members of the general public; and (5) whether the state would have taken

13

the adverse employment action even absent the protected speech.” Eng v. Cooley, 552 F.3d 1062,

14

1070 (9th Cir. 2009) (interpreting the “tangled history” of Pickering v. Bd. of Educ., 391 U.S. 563,

15

568 (1968)).

16

Plaintiffs allege in their Amended Complaint that “Defendant County took adverse

17

employment action against Plaintiffs in violation of FEHA by retaliating against Plaintiffs for

18

participating in statutorily protected activity and speech. Plaintiffs’ complaints to the [DFEH] and

19

[EEOC] were all protected activities. Defendant’s adverse employment action against Plaintiffs as

20

herein alleged was unprivileged, unlawful, and without business purpose.” AC at ¶¶ 117-118. 29

21

Based on this Amended Complaint, Defendants were properly on notice that Plaintiffs were

22

alleging retaliation for the filing of DFEH complaints. See also Mot. at 27 (moving for summary

23

judgment on Plaintiffs’ claims of first amendment retaliation for filing charges with the DFEH).

24

However, no facts have been alleged to support these claims, as the alleged discriminatory actions

25

all took place prior to the filing of the DFEH complaints.

26
27
28

29

The parties clarified at the April 4 hearing that the same complaints were automatically filed
with both the DFEH and the EEOC.
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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

As discussed above, Plaintiffs’ Opposition attempts to include entirely new claims of

2

retaliation that were not raised in the Amended Complaint. Specifically, Plaintiffs’ Opposition

3

8

alleges:
As a concerned private citizens [sic], Burrell and Hayter advocated with speech for
more resources for the BIH program, repeatedly explaining to my [sic] managers,
Alvarado, Charis Subil, and Ira Schwartz, that we needed a PHN III to assist our
efforts in effectively serving the African-American community . . . Burrell and
Hayter also spoke out as private citizens about the discrimination in PHD. . . .
Protesting discrimination in the PHD is protected speech . . . Here, the genuine
material disputed facts is [sic] whether Defendants retaliated against Burrell and
Hayter for their public speech against discrimination in PHD and for more resources
for the BIH program.

9

Opp’n at 27. See Burrell Decl. ¶¶ 34-39 (discussing her own and Hayter’s requests for promotion);

4
5
6
7

United States District Court
For the Northern District of California

10
11

Hayter Decl. ¶¶ 4-24 (describing complaints limited to her own employment).
However, the Amended Complaint’s First Amendment claim (Plaintiffs’ tenth cause of

12

action) only identified EEOC complaints as the protected activity and did not discuss advocacy on

13

behalf of the BIH program. See AC at ¶¶ 117-118. As explained above, such claims cannot be

14

raised for the first time on summary judgment. See Coleman, 232 F.3d at 1292 (complaint guides

15

the parties discovery and puts defendant on notice of evidence needed for its defense); see also

16

Pickern, 457 F.3d at 969 (holding that plaintiff cannot raise new factual allegations of which

17

defendant had no prior notice at summary judgment). The prejudice to Defendants of raising such

18

claims at summary judgment is evidenced in Defendants’ summary judgment motion, which is

19

premised on the assumption that “Plaintiffs claim that Defendants retaliated against them for filing

20

charges with DFEH.” Mot. at 27 (citing AC ¶ 117). Defendants were not sufficiently on notice

21

regarding what speech Plaintiffs alleged took place in Plaintiffs’ capacity as private citizens, nor

22

which alleged employment actions were purportedly in retaliation for such speech. Accordingly,

23

the Court GRANTS Defendants’ Motion for Summary Judgment on Plaintiffs’ tenth cause of

24

action for First Amendment retaliation.

25
26
27
28

2.

Negligent Hiring, Training, and Supervision (Ninth Cause of Action)

Lastly, Defendants have moved for summary judgment on Plaintiffs’ ninth cause of action,
under 42 U.S.C. § 1983, for negligent hiring, training, supervision, and retention. This claim
58
Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

1

requires a showing that Plaintiffs’ constitutional rights have been violated, and also requires a

2

showing that the negligent hiring, training, or supervision policies directly caused the plaintiff’s

3

constitutional injury. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (“[A]

4

municipality can be found liable under § 1983 only where the municipality itself causes [a]

5

constitutional violation at issue.”) (citing Monell v. New York City Dep’t. of Soc. Services, 436 U.S.

6

658, 694-95 (1978)). Plaintiffs failed to present any evidence or argument opposing summary

7

judgment on this claim.

8
9

Because the Court has granted summary judgment for Defendants on Plaintiffs’ First
Amendment claim—Plaintiffs’ only allegation of a constitutional violation—Plaintiffs cannot

United States District Court
For the Northern District of California

10

establish the prerequisite constitutional violation to sustain a Section 1983 claim, much less that the

11

County’s policies caused such a violation. Accordingly, Defendants’ Motion for Summary

12

Judgment on Plaintiffs’ ninth cause of action is GRANTED.

13

IV.

14

CONCLUSION
For the reasons explained above, the Court DENIES Defendants’ Motion for Summary

15

Judgment as to the third cause of action by Plaintiff Burrell, “Discrimination-Disparate Treatment,”

16

and as to Plaintiff Burrell’s second cause of action, “Failure to Protect from Discrimination under

17

FEHA.” The Court GRANTS Defendants’ Motion for Summary Judgment as to all remaining

18

causes of action. Accordingly, Defendants Motion for Summary Judgment is GRANTED as to all

19

claims by Plaintiffs Hayter and Headd, and as to all claims again individual Defendants Dan

20

Peddycord, Rae Wedel, and Marty Fenstersheib. Defendants’ Motion to Sever is DENIED as

21

moot.

22

IT IS SO ORDERED.

23

Dated: May 17, 2013

24

_________________________________
LUCY H. KOH
United States District Judge

25
26
27
28

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Case No.: 11-CV-04569-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT