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Hartwig v. Del Norte County Unified School District


November 22, 2005


The opinion of the court was delivered by: Nandor J. Vadas United States Magistrate Judge


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 defragmentation of the hard drive, which he believes could have easily been done in less than ninety minutes. (Id., at ¶ 5,6)*fn7

The School District suffered a significant property loss when the TPP data was deleted and the backup disks taken. (Dec. Of JM, ¶ 21.) Silvia Gamez re-inputted the TPP data and the numerous forms that were deleted from the computer at plaintiff's workstation, using Excel and Word to recreate this information. (Declaration of Silvia Gamez, hereafter Dec. Of SG, ¶ 8.) The deleted database was made up of students' names, their social security numbers, their monthly work hours, and other information about their work status, all of which had to be inputted into a new Excel database. (Id.) It took approximately two months, working many hours of overtime, to re-input the deleted information (Id.)

In mid-May, 2002, plaintiff presented Richard Holley, the School District Personnel Director, with a letter which she stated was "Intended to be an informal step in filing a grievance." (Dec. RH, ¶ 13.) This letter was date-stamped in the personnel office on May 21, 2002. (Id.)*fn8 This grievance did not raise any claim of sexual harassment or violation of any other activity protected by the Title VII; rather, the letter addressed areas where plaintiff felt her work hours had been improperly reduced, problems she perceived with her immediate supervisor, and employment complaints extending back to May, 2000. (Id., at ¶ 13, Ex. K.) Mr. Holley responded with a letter dated May 23, 2002. (Id., at ¶ 14, Ex. H. ) Since he was unclear of the nature of her grievance, he sent her copies of the grievance procedures, and he recommended that she consult with a union representative to help her with her concerns. (Id.) Mr. Holley stated that he had given a copy of this letter to Ms. Moorehouse on May 22, 2002, something plaintiff had requested Mr. Holley to do when she was in the personnel office a couple days earlier. (Id.) Mr. Holley also pointed out that the Union Bargaining Agreement required that grievances had to be made within sixty days of the occurrence of the violation. (Id.)

May 30, 2002, Superintendent Lynch wrote plaintiff, requesting a meeting with her to discuss her grievances. (Dec. Of FL, ¶ 2, Ex. A.) June 3, 2002, plaintiff sent Mr. Lynch an e-mail stating, "This e-mail is to let you know that if Mr. Mathews is not placed on leave and I'm not asked to return to work in TPP by Wednesday, June 5, 2002, I will require that resolution cannot be reached. At such time, I will consider our Thursday morning meeting canceled; relinquish all assistance for the DNCSSD; and seek legal representation." (DP of MH, p. 448, lns. 15-21, Ex. III.)

Plaintiff was placed on paid administrative leave on May 30, 2002. (Dec. Of RH, ¶ 11, Ex. I.) She remained on paid leave through the remainder of the school year. (Id., at ¶ 12, Ex. J.) August 8, 2002, Francis Lynch, the School District Superintendent, sent plaintiff a Notice of Intention to Recommend Termination. (Declaration of Francis Lynch, hereafter Dec. Of FL, ¶ 4, Ex. B.) August 23, 20202, he wrote plaintiff and informed her that she remained on administrative leave. (Id., at ¶ 5, Ex. C.)

June 21, 2002, Superintendent Lynch wrote plaintiff and informed her of his findings based on her complaints. (DP of MH, p. 454, lns. 15-20, Ex. NNN.) Plaintiff was informed that she could work with her union to further appeal the matter, if she so desired. (Id.) Plaintiff's next step in this complaint process would have been to request a hearing before the governing board under Level IV of the complaint procedure. (Dec. Of RH, Ex. H, p.6) Plaintiff did not pursue any further administrative remedies under this complaint procedure.

September 12, 2002, the School District Board of Trustees met and considered the recommendation for plaintiff's termination. (Id., at ¶ 6.) Following their evaluation, the Board of Trustees recommended termination, and plaintiff was sent Notice of Termination September 13, 2002. (Id., at ¶ 6, Ex. D.)

Plaintiff then requested an Evidentiary Hearing before the Personnel Commission to appeal her termination (Id., at ¶ 7, Ex. E.) The appeal before the Personnel Commission was scheduled for October 30, 2002, and two days prior to the hearing plaintiff delivered a letter to the School District Personnel Office withdrawing her request to appeal her termination of employment with the School District. (Id., at pp 8-9, Exs. F, G; DP of MH p. 194, lns. 7-21.) The findings of the School District Board of Trustees became final and conclusive upon plaintiff's withdrawal from the appeal process. (Dec. Of FL, Ex. D.)

The record shows that plaintiff's termination was directly related to the destruction and theft of school district property, and her failure to follow directions from her immediate Supervisor, Mr. Mathews, this constituted insubordination, inattention to and dereliction of her duties, and willful and/or persistent violation of school district rules and regulations. (Dec. Of RH, ¶ 15; Dec. Of FL, ¶ 10, 12; and Dec. Of JM, ¶ 21.) Her termination was directly related to the foregoing and was not in retaliation for filing the informal grievance. (Dec. Of RH, ¶ 15; and Dec. Of FL, ¶ 12.) On the morning of May 30, 2002, Ms. Moorehouse had moved plaintiff from TPP to a new position to accommodate plaintiff and defuse any personality conflicts, despite the budget impact to the School District. The recommendation for termination was made only after plaintiff returned to TPP and deleted computer files and removed the backup disks. (Dec. Of JM, ¶ 21.)

On or about December 15, 2003, plaintiff executed her Complaint of Discrimination to the California Department of Fair Employment & Housing and the EEOC, in which she alleged she was terminated in retaliation for opposing sexual harassment. (Dec. Of RH, ¶ 3, Ex. A.) Nowhere in the grievance given to Mr. Holley does plaintiff claim Mr. Mathews retaliated against her for opposing sexual harassment. (Dec. Of RH, Ex. K.) The school district had no record of any complaint of sexual harassment claim by plaintiff until it received notice of this charge of discrimination in early 2003. (Dec. Of RH, ¶ 3.)


A. Legal Standard for Summary Judgment

Summary judgment may be granted when, viewed in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F. 2d 626, 631 (9th Cir. 1987); Diaz v. American Tel & Tel., 752 F. 2d 1356, 1359 n. 1 (9th Cir. 1985), "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is warranted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id.

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-23. The burden then shifts to the nonmoving party to set forth by affidavit or as otherwise provided by Rule 56, specific facts demonstrating a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Matsushita, 475 U.S. at 587. The nonmoving party may not rest upon mere allegations or denials of his pleadings. Fed.R.Civ.P.56(e) Anderson, 477 U.S. at 256; Matsushita, 475 U.S. at 587. Rather, the nonmoving party must produce specific facts by affidavit or other evidentiary materials contemplated by Rule 56(e), showing that there is a genuine issue for trial. Fed. R.Civ.P.56(e); Anderson, 477 U.S. at 256; Matsushita, 475 U.S. at 587. If the evidence is merely colorable or is not significantly probative as to any material fact claimed to be disputed, summary judgment should be granted. Eisenberg v. Insurance Co. of North Am., 815 F.2d 1285, 1288 (9th Cir. 1987); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) (quoting Ruffin. v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979), cert. Denied, 445 U.S. 951 (1980)). A mere "scintilla" of evidence supporting the nonmoving party's position will not suffice. Anderson, 477 U.S. at 252. There must be enough of a showing that the jury could reasonably find for the nonmoving party. Id. At 256.

B. Title VII Legal Standard

Plaintiff alleges that she was terminated in retaliation for her complaints of sexual harassment.

As in this case, where a plaintiff cannot produce direct evidence of an employer's discriminatory intent, the plaintiff may prove her case by circumstantial evidence under the burden-shifting scheme of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, to make out a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that "(1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision." Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003).

Once a plaintiff makes out a prima facie case of retaliation "the burden shifts to the [defendant/employer] to articulate a legitimate, non-discriminatory reason for the adverse employment action." Manatt v. Bank of Am, N.A., 339 F.3d 792, 800 (9th Cir. 2003).

If the defendant articulates such a reason, the plaintiff "bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive." Id. (internal quotation marks and citations omitted); see also Ruggles v. Cal. Polytechnic State U., 797 F.2d 782, 786 (9th Cir. 1986).

As discussed below, plaintiff does not establish a prima facie case of retaliatory termination, and there were a number of legitimate reasons to support her termination from her position at Del Norte Unified School District.

1. Plaintiff Cannot Meet Her Burden of Demonstrating the Prima Facie Elements of a Retaliation Claim Because the Submission of the Grievance To the School District Was Not a Protected Activity Under Title VII.

Plaintiff's written grievance to the School District, dated May 16, 2002, was not based on sexual harassment, gender discrimination or any other conduct proscribed by Title VII. As a result, plaintiff's submission of the written complaint to the School District did not constitute "protected activity" under Title VII, and plaintiff cannot establish this prima facie element of her retaliation claim.

Under Title VII, an employer is prohibited from taking an adverse employment action against an employee because the employee: (I) opposed any practice made unlawful by Title VII ("opposition clause"); or (ii) made a charge, testified, assisted, or participated in any manner in any investigation, proceeding or hearing under Title VII ("participation clause"). 42 U.S.C. § 2000e- 3(a).

In order for an employee to establish a claim for retaliation under the opposition clause of Title VII, the employee must prove that the conduct the employee opposed fell within the protection of Title VII Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988). That is to say a that the employee must prove that she was retaliated against for opposing discrimination or harassment based upon race, color, religion, sex, or national origin. Ibid.; see also, 42 USC § 2000e-2(a)-(d) [setting forth protected classifications under Title VII].

To establish a claim for retaliation under the participation clause of Title VII, the employee must prove that she participated in a proceeding involving charges of discrimination or harassment which must be reasonably perceived as prohibited by Title VII (i.e., based on race, color, religion, sex, or national origin.) Ibid.

An employee's generalized complaints about her job conditions and how these conditions affect her work and her dissatisfaction with her job do not constitute protected activities under Title VII because they do not relate to conduct made unlawful by Title VII Ibid.; see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998 ["Title VII does not prohibit all verbal or physical harassment in the workplace ..."] Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987) [plaintiff's complaints about radio show format change were based on personal reasons, not discriminatory reasons]; Barber v. CSX Distribution Servs., 68 F.3d 694, 701-702 (3rd Cir. 1995) [complaints about unfair treatment in general, and not illegal discrimination, did not constitute requisite "protected conduct."]; and Ammons v. Zia Co., 448 F.2d 117, 120 (10th Cir. 1971) [termination was based on complaints stemming from complaints of underpayment, not complaints of underpayment by reason of sex.].

Plaintiff's written grievance to the School District, dated May 16, 2002, set forth generalized complaints regarding her job, including problems with her supervisor, Charles Mathews, as well as her perception that the allocation of work, work hours, and job duties were unfair. Nowhere in the written grievance does plaintiff state or imply that she was subjected to or complained of sexual harassment, gender discrimination, or any other activity prohibited by Title VII. Consequently plaintiff cannot establish the prima facie element that she engaged in a "protected activity," as required in order to pursue a retaliatory termination claim under Title VII.

Plaintiff's sole and proper remedy regarding the problems identified in her written grievance was the grievance process available to classified employees of the School District under the collective bargaining agreement. Plaintiff did not follow through with this process. Superintendent Lynch made his findings on her grievance on June 21, 2002. These findings became final after she did not request a hearing before the Governing Board under Level IV of the Complaint Procedure arising from the collective bargaining agreement. (See Dec. Of RH. Ex. H, p.6, DP of MH, p. 454, lns. 15-20, Ex. NNN). Plaintiff voluntarily opted out of this internal grievance process, thereby waiving her remedies.

The forum for adjudicating any dispute over her termination was an appeal before the Personnel Board (also provided for by the internal grievance policy). Plaintiff started this process and the hearing was set for October 30, 2002. Plaintiff voluntarily opted out of this process by withdrawing from her appeal on October 28, 2002, thereby waiving her remedies.

While Title VII provides a remedy for certain retaliatory termination claims, plaintiff's grievance, dated May 16, 2002, did not assert that she engaged in any protected activity under Title VII. Furthermore, in her complaint to the EEOC, plaintiff claimed only that she was terminated "in retaliation for opposing sexual harassment." Since plaintiff did not allege any other basis for a Title VII retaliation claim, other than one based on opposition to sexual harassment, she has failed to exhaust her administrative remedies before the EEOC, with regard to any claims arising from alleged protected activity not involving opposition to sexual harassment. Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003) [to establish subject matter jurisdiction in federal court over Title VII retaliation claims, plaintiff must first exhaust administrative remedies by filing timely charges with the EEOC, and claims that are not alleged in EEOC are not administratively exhausted.]

Simply put, there is nothing about opposing sexual harassment in the grievance plaintiff wrote on the evening of May 16, 2002. Based on the foregoing, summary judgment should be granted for defendant.

2. The School District Had Numerous Legitimate Reasons for Terminating Plaintiff Assuming, arguendo, that plaintiff could establish a prima facie case for retaliatory termination, the School District clearly had numerous legitimate, nondiscriminatory reasons for terminating her employment.

Starting on May 3, 2002, plaintiff's behavior was unprofessional, and by the morning of May 16, 2002, she had made at least two threatening statements to co-employees Jeanie Harris and Janet Bigham. Her behavior became more and more unpredictable and erratic as the month progressed.

Plaintiff was insubordinate to her supervisor, and she left work without official leave. Finally, on May 30, 2002, plaintiff deleted the whole TPP database and all the program forms, in addition to removing the valuable backup disks. Plaintiff admitted to deleting computer data, removing at least one disk, not following her supervisor Mr. Mathews' directions, and making threatening comments to co-workers. Furthermore, her termination by the School District was also justified by her surreptitious tape recording of co-workers, which plaintiff admitted in her deposition, and which violated California Penal Code §632, punishable by a fine up to $2,500 or imprisonment for up to one year in the county jail.

After a plaintiff makes out a prima facie case of retaliation, "the burden shifts to the [employer] to articulate a legitimate, non-discrimination reason for the adverse employment action.

Manatt v. Bank of Am, N.A. supra, 399 at 800. For the employer to satisfy its burden of articulating a legitimate, non-retaliatory explanation for the termination, the employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981).

Clearly, in this case the plaintiff's insubordination and failure to work harmoniously with others were legitimate nondiscriminatory bases for terminating her employment. Ogunleye v. Arizona, 66 F.Supp.2d 1104, 1108 (D.Az. 1999); citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999); and Carter v. Miami, 870 F.2d 578, 583-584 (11th Cir. 1989); see also Putman v. Unity Health System, 348 F.3d 732, 736 (8th Cir. 2003) and Mesnick v. General Electric Co., 950 F.2d 816, 827-829 (1st Cir. 1991) [Age Discrimination in Employment Act claim.]. Theft, suspicion of theft and destruction of property are also clearly legitimate, nondiscriminatory reasons for terminating an employee. See e.g., Britton v. City of Poplar Bluff, 244 F.3d 994, 998 (8th Cir. 2001) [affirming grant of summary judgment where plaintiff failed to establish that defendant's proffered reason that it suspected plaintiff of theft was pretextual]; see also Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999) [recognizing employer's belief of employee theft as legitimate, nondiscriminatory reason.]; and Ivy v. Meridian Coca-Cola Bottling Co., 641 F. Supp; 157 (S.D.Miss. 1986) [reckless destruction of property legitimate basis for termination.].

Threats to co-workers also constitute legitimate bases to terminate employment. See e.g., Vargas v. Gromko, 977 F.Supp. 996 (N.D.Cal. 1997). Unexcused absences constitute a legitimate, nondiscriminatory basis for termination. See, Contreras v. Suncast Corp., 237 F.3d 756, 765, (7th Cir. 2001); and, Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989 (8th Cir. 1984).

Moreover, tape recording confidential conversations with co-workers for purpose of disclosing the substance of those conversations to third persons is a legitimate, nondiscriminatory basis for termination. Shoaf v. Kimberly-Clark Corp., 294 F.Supp.2d 746, 756-757 (M.D.N.C. 2003). This activity constitutes criminal activity under California Penal Code § 632.

Plaintiff's multiple violations of School District policies and procedures, both before and after submission of the grievance, constituted legitimate, nondiscriminatory reasons for her termination.

3. Plaintiff Cannot Establish That The Legitimate, Nondiscriminatory Reasons For Her Termination Were Pretextual.

Even assuming, arguendo, that plaintiff could establish a prima facie case of retaliatory termination, there is no evidence (let alone specific and substantial evidence) that the multiple legitimate, nondiscriminatory bases for plaintiff's termination articulated by the School District were merely a pretext for discrimination proscribed under Title VII.

If an employer articulates legitimate, nondiscriminatory reasons for termination, the plaintiff must establish that the alleged nondiscriminatory reason is a "pretext" for unlawful discrimination. Washington v. Garret, 10 F.3d 1421, 1432 (9th Cir. 1993).

To survive a motion for summary judgment, the circumstantial evidence relied upon by the plaintiff to show pretext must be specific and substantial evidence of the employer's discrimination. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996) ["To avoid summary judgment, [plaintiff] must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses. She must produce specific, substantial evidence of pretext."]

An employer is not and should not be handcuffed from disciplining employees for unprotected conduct detrimental to its office function merely because the employee has engaged in some conduct that was protected under Title VII. See, Garner v. Motorola, Inc., 95 F.Supp.2d 1069, 1080 (D.Az.2000); quoting Mesnick v. General Electric Co., supra, 950 F.2d at 828 ["Were the rule otherwise, then a disgruntled employee, no matter how poor his performance or how contemptuous his attitude toward his supervisors, could effectively inhibit a well-deserved discharge by merely filing or threatening to file, a discrimination complaint."] and Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (9th cir. 1988) [retaliation protection "does not clothe the complainant with immunity for past and present inadequacies, unsatisfactory performance, and uncivil conduct. . ."].

Plaintiff has produced no evidence during discovery to indicate that the legitimate, nondiscriminatory reasons for terminating her articulated herein were merely pretextual.

Title VII does not provide a remedy to every employee who feels that he or she has been wronged by her employer. Title VII provides relief only for employees who have suffered adverse employment actions on account of discrimination or harassment based on race, color, religion, sex, or national origin.

Here, plaintiff was unhappy with several aspects of her job with the School District. Her complaints are enumerated in her written grievance that she submitted to the School District, dated May 16, 2002. It is clear from the grievance that plaintiff did not complain of sexual harassment, gender discrimination or any other conduct prohibited by Title VII. Consequently, Title VII does not afford plaintiff a remedy for retaliatory termination.

However, plaintiff's termination was not based on the filing of her written grievance. Rather, as the record amply discloses, it was based on multiple violations of the School District policies and procedures, all of which are legitimate, nondiscriminatory reasons for termination. Plaintiff was emotional, agitated, and confrontational with co-workers, threatening them on at least two occasions. She surreptitiously tape recorded conversations of co-workers. Plaintiff failed to perform tasks as assigned by her supervisor, telling him that his priorities were wrong. After she was reprimanded for this insubordination, plaintiff left work and remained absent for several days without obtaining official leave. Even after Ms. Moorehouse accommodated plaintiff by assigning her to a new workstation in the front office of the high school, plaintiff deleted the TPP database and files and removed backup disks. The electronic documents plaintiff destroyed and the backup disks she removed were School District property.


Plaintiff has failed to offer sufficient evidence to create a triable issue of material fact of retaliation under Title VII. Accordingly, the Court finds that defendant is entitled to judgment as a matter of law and GRANTS summary judgment in favor of defendant as to all causes of action.

Judgment shall be entered for defendant. The Clerk of the Court shall close this case. Parties to bear their own costs.


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