The opinion of the court was delivered by: Nandor J. Vadas United States Magistrate Judge
ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT.
Before the court is Defendant Del Norte County Unified School District's motion for summary judgment. After careful consideration of the parties papers, relevant statutory authority and case law, and Good Cause Appearing, Defendant's motion is GRANTED for the reasons set forth below.
Plaintiff Marie Hartwig was hired by the Del Norte Unified School District on or about February 6, 1996, as a clerical assistant. (Declaration of Richard Holley, hereafter Dec. Of RH, ¶ 2.) On May 19, 1997, she began working as a Secretary I in the Transition Partnership Program (TPP) at Del Norte High School. (Id.) The Transition Partnership Program provides disabled students with work experience and is funded with grants from the Department of Rehabilitation and Department of Education. (Id.)
Plaintiff's immediate supervisor in TPP was Charles Mathews. (Declaration of Charles Mathews, hereafter Dec. Of CM, ¶ 1.) Her ultimate supervisor was Jan Moorehouse, the principal of Del Norte High School. (Declaration of Jan Moorehouse, hereafter Dec. Of JM ¶ 2; Dec of CM ¶ 1.) In May, 2002, plaintiff was working four hours a day in TPP and the remaining two hours a day providing front office relief at the high school and in the career center. (Dec. Of CM, ¶ 2; Dec. Of JM, ¶ 11.)
In May, 2002, plaintiff was moody and displayed erratic behavior with her co-employees, Janet Bigham, Jeanie Harris, and Silvia Gamez. (Declaration of Janet Bigham, hereafter Dec. Of JB ¶ 2; Declaration of Jeanie Harris, hereafter Dec. of JH ¶ 4; Declaration of Silvia Gamez, hereafter Dec. of SG ¶ 3.) Ms. Hartwig's immediate supervisor, Mr. Mathews, also found it more challenging and difficult to work with her in May, 2002. He experienced shifts in her mood from being very "up" to being very "down." (Dec. Of CM ¶ ¶ 2,3.) In her deposition, plaintiff admitted that these mood swings were a pre-menopausal symptom that she had experienced for three years. (Deposition of Marie Hartwig, hereafter DP of MH, p. 26, ln. 25 to p. 27, ln. 7.)*fn1
On May 3, 2002, it appears that plaintiff became very angry and frustrated in the presence of Janet Bigham and Jeanie Harris. (Dec. Of JB, ¶ 16; Dec. Of JH, ¶ 4; Dec. Of JM, ¶ 4, Ex. C.) As plaintiff left the room, she is alleged to have said to her co-employees, "Ladies, what goes around comes around." (Dec. Of JB, ¶ 16; Dec. Of JH, ¶ 4; Dec. Of JM, ¶ 4, Ex.C; DP of MH, p. 424, ln. 24 to p. 425 ln. 5.) On May 6, 2002, Ms. Moorehouse spoke with plaintiff about this unprofessional behavior. (Dec. Of JM, ¶ 5, Ex. C.) On May 15, 2002, plaintiff packed all of her personal possessions and left a note on the blackboard that said "Don't take it personally, I love you guys lots and lots!" (Dec. Of JB, ¶ 16, Ex. B; Dec. Of JH ¶ 4; Dec. Of JM, ¶ 6, Ex.A.) Janet Bigham and Jeanie Harris perceived these statements as possible threats from plaintiff. (Dec. Of JB, ¶ 16 ["It was weird and scary, since I didn't know why she wrote it or what she was planning."]; Dec. Of JH, ¶ 4 ["I could not figure out what this meant and did not know whether it was some type of threat from Marie Hartwig."]; and Dec. Of JM, ¶ 6, Ex. C).*fn2
Plaintiff reported in sick and did not work from Thursday, May 16, 2002 through Monday, May 20, 2002. (Dec. Of JM, ¶ 7, Ex.B.) After Ms. Moorehouse learned about plaintiff's unprofessional conduct in early May, 2002, followed by plaintiff removing her personal items from the TPP room and writing the May 15, 2002 blackboard note, Ms. Moorehouse further interviewed Jeanie Harris, Janet Bigham, and Silvia Gamez, who reported in more detail various problems they had been having with the plaintiff for some months. (Dec. Of JM, ¶ 4 to 8.) Because of the continuing problems, Ms. Moorehouse prepared a Written Warning about plaintiff's unprofessional conduct with co-employees on May 3, 2002. (Dec. Of JM, ¶ 9.) This warning, dated May 15, 2002, was presented to plaintiff May 20, 2002. Plaintiff refused to sign it. (Id., at ¶ 9, Ex. C.)
Plaintiff called Ms. Moorehouse on the evening of Thursday, May 16, 2002 and reported that she wanted to return to work somewhere other than at TPP. (Dec. Of JM ¶ 10.) Because of budget limitations, Ms. Moorehouse believed she did not have funding for such reassignment. (Id.)
Plaintiff returned to work Tuesday, May 21, 2002. (Dec. Of JM, ¶ 11, Ex. B.) Mr. Mathews asked plaintiff to work on a new binder system and not to meet with students on their senior portfolios until after June 1, 2002. (Dec. Of CM, ¶ 4, Ex. A; Dec. Of JM, ¶ 11, Ex. E.) Plaintiff refused to follow Mr. Mathews directions and met with a student to work on a senior portfolio. (Dec. Of CM, ¶ 4, Ex. A; Dec. Of JM, ¶ 11, Ex. E.) The new binder system used three-ring binders and information had to be moved from manilla files and placed in the binders which plaintiff thought was a "stupid task." (DP of MH, p. 61, lns. 1-11.) When she did work on the new filing system, she did not place labels on the binders as requested by Mr. Mathews. (DP of MH, p. 61, lns. 12-19 [Q: "Were you putting them [on] in a fashion that Charles asked you to do? A: No, I wasn't."]) Even though her co-employee, Silvia Gamez, had started the job with names printed vertically on the binder spine, plaintiff put the name tags horizontally, so that there was no continuity in labeling on the binders when stacked side by side on their shelves. (DP of MH, p. 65, lns. 6-23)*fn3
When asked by Jeanie Harris to do things Mr. Mathews' way, since he was her supervisor, plaintiff responded by telling Ms. Harris, "I am rebellious," and "I do things my way." (Dec. Of JH, ¶ 2.)*fn4
Plaintiff met with a student to do a senior portfolio, and on May 22, 2002, she again argued with Mr. Mathews about doing the binders and told him that his priorities were wrong. (Dec. Of CM, ¶ ¶ 4-5, Ex. A; and Dec. Of JM ¶ 11, Ex.D. Ex.E.) Mr. Mathews told plaintiff that if she wouldn't do the work as requested, she didn't need to be in the TPP room that day, and plaintiff stated, "Fine, I'm out of here!" and left TPP (Dec. Of CM, p 5, Ex. A; Dec of JM ¶ 11, Ex. D, Ex. E; and DP of MH, p. 437, lns. 12-15.)
Ms. Moorehouse met with plaintiff around noon on May 22, 2002, and they discussed her refusal to properly work on the new binder system and the specific directions not to work on student portfolios. (Dec. Of JM, ¶ 11.) Plaintiff told Ms. Moorehouse that she always worked on portfolios at that time of year, and Ms. Moorehouse explained to her that it was her responsibility to complete work assigned by Mr. Mathews, the Program Manager. (Dec. Of JM, EX.E.) Ms. Moorehouse suggested that because she had left work earlier in the morning, plaintiff finish the day off campus, and instructed her to be prepared to do assigned work when she returned to the school. (Dec. Of JM, ¶ 11, Ex .E.) As she was leaving, plaintiff stated that she would not return to the campus until Mr. Mathews was placed on administrative leave. (Id.; DP of MH, p. 438, lns. 6-10.)*fn5
Because plaintiff failed to follow Mr. Mathews' instructions, Ms. Moorehouse prepared another written warning on May 22, 2002, which plaintiff reviewed but again refused to sign on May 29, 2002. (Dec. Of JM, ;; 12, Ex. E; and DP of MH, p. 438, lns. 11-14). From Thursday, May 23, 2002 through Tuesday, May 28, 2002, plaintiff was absent from the school without leave, and Ms. Moorehouse prepared another written warning to plaintiff because of the absence without leave. This warning plaintiff signed on June 4, 2002. (Dec. Of JM, ¶ 13, Ex. F).
Because of the ongoing problems with plaintiff through May, 2002, Ms. Moorehouse reconsidered plaintiff's request to be reassigned to a position outside TPP. (Dec. Of JM, ¶ 14.) She decided to move her from TPP to a position in the front office of Del Norte High School, and early on Thursday, May 30, 2002, she met with Ms. Hartwig and discussed this change in work location. (Id., at ¶ 14, 15.) After meeting with Ms. Moorehouse, plaintiff returned to TPP to retrieve her purse and remove her password from the computer at her TPP workstation. (Id., at ¶ 16; and DP of MH, p. 363, ln. 16 to p. 364, ln. 17.) When plaintiff returned to TPP on the morning of May 30, 2002, Janet Bigham saw plaintiff sit at her computer for fifteen to twenty minutes. (Dec. Of JB, ¶ 9; and DP of MH p. 362, lns. 17-18.) During this time, she observed plaintiff accessing many different areas of the computer, typing very quickly into little boxes, with the screen periodically going black and coming on again. (Dec. Of JB, ¶ 10.) Janet Bigham also observed plaintiff take a number of disks and place them into a straw bag that was on the floor between her legs (Id.) As plaintiff left the room, she stated, "I'm out of here till Mr. Mathews is gone." (Id., at ¶ 11.)*fn6 Approximately an hour and a half later, at about 10:30 a.m., Janet Bigham needed to access information from the computer at plaintiff's workstation. (Id. At ¶ 12.) She then discovered that all of the TPP documents were missing from the computer. (Id.) She went to look for Ms. Moorehouse and told her that information had been deleted from the computer and that computer disks had been taken by plaintiff. (Id.)
Ms. Moorehouse then met with plaintiff in the presence of two California State Employees Association, CSEA (union) representatives, April Brock and Beverly Brand. (Dec. Of JM, ¶ 18.) They returned to the TPP room and inspected the computer at plaintiff's workstation. (Id.) Numerous icons were missing from the desktop, and Janet Bigham showed that the program material was completely missing. (Dec. Of JB, ¶ 13; and Dec. Of JM, ¶ 18.) She also showed them where backup disks were kept and that they were now missing. (Id.)
Ms. Moorehouse asked plaintiff to let the Union representatives examine the contents of her purse in the staff room in order to see if she had the various backup disks in her purse. (Dec. Of JM, ¶ 19.) Plaintiff refused this inspection. (Id.) Plaintiff left for lunch without revealing the contents of her purse. (Id.) She also called the TPP room and told Jeanie Harris, "I just want you to know that I have all kinds of tapes of you guys and I'm going to break those puppies out, so you're in deep trouble." (Dec. Of JH, ¶ 9; and Dec. Of JB, ¶ 14.)
Because of the destruction of essential TPP computer data and removal of the backup disks, Ms. Moorehouse prepared another written warning recommending that plaintiff be terminated. (Dec. Of JM, ¶ 20, Ex. G.)
At her deposition, plaintiff admitted erasing files on May 30, 2002 -- "I was trying to get the stuff I needed to work on that day onto the computer disk, and I blew it because the disk was blank. I erased files on my computer. I definitely -- I was a basket case for sure, although I did manage to complete my morning at the main office all by myself." (DP of MH, p. 362, lns. 5-10). However, when Ms. Moorehouse asked plaintiff what had happened to the computer data on May 30, 2002, while they were in the TPP room, plaintiff never acknowledged deleting the data and only said, "I don't know what to tell you." (Dec. Of JB, ¶ 13.)
Plaintiff also admitted at her deposition that she took at least one disk from her workstation on May 30, 2002. (DP of MH, p. 312, lns. 19-23.) She testified that she did not want to reveal the contents of her purse because she had a tape recorder and microphone in her purse. (DP of MH, p. 58, lns. 1-20; p. 363, lns. 20-25; p. 372, lns. 9-12.) She did not want Ms. Moorehouse to discover this tape recorder because plaintiff knew she should not be making surreptitious recordings of her co-workers.(Id.).
After discovering that computer information was missing, Ms. Moorehouse called Jay Fair, the Del Norte High School Technology teacher and asked him to secure the computer at plaintiff's workstation. (Declaration of Jay Fair, hereafter Dec. Of JF, ¶ 8.) He verified that all the TPP data was missing on May 30, 2002. (Id.) He also confirmed that numerous backup disks were missing from this workstation. (Id.) He then transferred the computer to Steve Capocci to see if the deleted material could be recovered. (Id.)
Steve Capocci, the computer Services Coordinator for the School District, tried to use a recovery tool to access the deleted information. (Declaration of Steven Capocci, hereafter Dec. Of SC, ¶ 1, ¶ 5.) A recently used file list identified fifteen or more documents that were no longer on the system -- one of the deleted files was an Excel spreadsheet that he had specifically been asked to try to recover from the machine. (Id., at ¶ 5.) He determined that there had been a ...