MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiff Maggie Franklin filed this action against defendants Sacramento Area Flood Control Agency ("SAFCA") and the City of Sacramento ("City") alleging racial discrimination, retaliation, and wage violations during her tenure as the Public Information Officer ("PIO") of SAFCA in violation of state and federal law. Defendants now move for summary judgment on all claims.
I. Factual and Procedural Background
In October 2000, plaintiff, who is African American, moved from Toledo, Ohio, to California to start work as the PIO of SAFCA. (Defs.' App'x Ex. B ("Hodgkins Decl.") ¶ 2; Pl.'s App'x Ex. 26 ("Franklin Decl.") ¶ 10.) SAFCA is a joint powers agency, created by the City and other public entities, that partners with state and federal agencies to construct levees and implement flood control measures. (Defs.' App'x Ex. A ("Buer Decl.") ¶ 1.) When plaintiff interviewed for her position and started work, Francis "Butch" Hodgkins ("Hodgkins") served as the Executive Director of SAFCA. (Hodgkins Decl. ¶ 1.)
SAFCA is a fairly small agency consisting of about twelve personnel (Buer Decl. ¶ 4), and plaintiff was the first person to serve as PIO (see Hodgkins Decl. ¶ 6). The PIO position was created in 1999 by a contract between the City and SAFCA in which the City agreed to establish a position on its payroll to be filled by a candidate of SAFCA's choosing. (See Defs.' Ex. H ("PIO Agreement") § 1; Hodgkins Decl. ¶ 3.)*fn1 The PIO Agreement provided that the PIO would be a SAFCA employee for all purposes except payment and benefits, that SAFCA would provide supervision and work space, and that the SAFCA Executive Director would determine the PIO's exact compensation within City ranges and steps. (PIO Agreement §§ 1, 3.)
As PIO, plaintiff organized and coordinated SAFCA's public communications plan. (Franklin Decl. ¶ 61; Buer Decl. ¶ 8.) Her responsibilities included designing and maintaining the SAFCA website, making presentations to community groups and others, planning and coordinating community events, and acting as a liaison between SAFCA and other public entities and officials. (Franklin Decl. ¶ 61.) At some point early in plaintiff's employment, Hodgkins decided that she would manage only SAFCA's community relations, while all government relations duties would be assigned to an outside consultant, Barbara Gualco ("Gualco") (Pl.'s App'x Ex. 23 ("Hodgkins Dep.") 17:18-25), who is not African American (Franklin Decl. ¶ 58).
Shortly after she began work at SAFCA, plaintiff objected to the language used in the office. She complained to Hodgkins about the pervasive use of profanity by SAFCA personnel, including by Hodgkins himself. (Id. ¶ 28.) Hodgkins agreed to address this issue, but plaintiff did not observe a significant reduction. (Id. ¶¶ 29-30.) In addition, plaintiff, the only African American at SAFCA for the entirety of her employment (id. ¶ 2), alleges that she overheard Julie Lienert ("Lienert"), the office administrator, refer to her as a "black bitch" on one occasion. (Pl.'s App'x Ex. 15-16 ("Franklin Dep.") 88:10-11.) Lienert also allegedly once called plaintiff a "lazy nigger" outside of plaintiff's presence, though the specific timing of the statement is not clear. (See Pl.'s App'x Ex. 24 ("Squaglia Dep.") 18:19-19:8 (testifying that the statement was made some time between May 2002 and April 2003).)
At the end of plaintiff's first six months, Hodgkins conducted an evaluation of plaintiff in which he told her that she "did not fit in," that the other managers in the office considered her "uppity," and that she should do more "menial tasks." (Franklin Decl. ¶¶ 42-45.) He then denied plaintiff the six-month raise described to her at the time of her hiring. (Id. ¶ 48; Pl.'s App'x Ex. 7 ("Employment Letter") at 1; Hodgkins Dep. 72:12-14.) In response, plaintiff filed a charge of discrimination with the City on May 18, 2001, alleging that Hodgkins and Lienert subjected her to discrimination on account of her race. (Pl.'s App'x Ex. 10 at 1-2.) As a result of a mediation between plaintiff and Hodgkins, he agreed to award plaintiff her six-month raise and to hold cultural diversity training for the office. (See Franklin Decl. ¶ 50; Hodgkins Dep. 39:24-25, 70:15-18.) Plaintiff received the raise but Hodgkins never held the diversity training. (Franklin Decl. ¶¶ 51, 53.)
Thereafter, beginning in June 2001, Hodgkins required plaintiff to account for her time and submit time sheets to City payroll. (See id. ¶ 31.) Hodgkins questioned the accuracy of plaintiff's time sheets, though he did not do so for other SAFCA workers who also had to submit time sheets to the City. (Pl.'s App'x Ex. 20 ("Ceragioli Dep.") 65:20-25.) Plaintiff had to complete time sheets for the duration of her employment, and she was docked either leave time or pay for partial-day absences.
(See Franklin Dep. 135:17-22, 290:8-9.)
In July 2004, Stein Buer ("Buer") succeeded Hodgkins as the SAFCA Executive Director. (Buer Decl. ¶ 1.) Hodgkins told Buer that plaintiff performed poorly and that she had made a charge of discrimination against him in 2001. (Buer Dep. 116:1-20.) Plaintiff also mentioned the 2001 charge to Buer at an introductory meeting and requested that Buer schedule the cultural diversity training. (Franklin Decl. ¶ 75.) Plaintiff alleges that Buer stated in that conversation that he could not work with someone who filed a claim of racial discrimination against him. (Id. ¶¶ 76-77.) When plaintiff responded that his statement sounded like retaliation, Buer purportedly said, "It's not retaliation, it is a fact." (Id. ¶¶ 78-79.) Buer also stated that he did not think it was his responsibility to hold the diversity training. (Franklin Dep. 116:3-5.)
Then, at some point in the following year, plaintiff informally complained to Buer that she believed he was discriminating against her on account of race. The informal complaint concerned Buer's reassignment of the management of the American River Flood Plain Announcement, a significant public event involving Congressman Matsui, to Gualco. (Franklin Decl. ¶ 116; Buer Dep. 88:5-20.) Buer responded that plaintiff should make a formal charge if she believed he had discriminated against her, but plaintiff did not file a formal complaint at that time. (Franklin Decl. ¶ 119; Buer Decl. ¶ 59.)
On August 3, 2006, Buer provided plaintiff with his first formal evaluation of her performance. (Buer Decl. ¶¶ 30-31.) Buer gave plaintiff a negative review, citing low-quality written work, low productivity, and poor responsiveness to Buer's assignments. (See Buer Decl. ¶ 32; Franklin Decl. ¶ 143; Defs.' App'x Ex. P.) Plaintiff disputed Buer's assessment and accused him of racial discrimination. (See Defs.' App'x Ex. R at 6.) Buer requested that the City investigate plaintiff's allegations. (Buer Decl. ¶ 34; Defs.' App'x Ex. Q.)*fn2 On November 2, plaintiff emailed Buer a courtesy copy of a purported California Department of Fair Employment and Housing complaint alleging that Buer had discriminated and retaliated against her. (Pl.'s App'x Ex. 13; Franklin Decl. ¶ 148.) Some time in late October or early November, Buer learned that the City's investigator concluded that he had not discriminated against plaintiff. (See Buer Decl. ¶ 51; Edmonson Decl. ¶ 5.)*fn3 He thereafter terminated plaintiff on November 8, 2006. (Buer Decl. ¶ 53; Franklin Decl. ¶ 168.) SAFCA did not hire a new PIO. (Buer Decl. ¶ 56.)
Plaintiff filed the instant action on June 26, 2007, and filed her First Amended Complaint ("FAC") on June 16, 2008. The FAC asserts nine claims against SAFCA and the City. The first and second claims allege racial discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2, and the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940(a), respectively; the third and fourth claims allege retaliation for complaints about discrimination in violation of Title VII, 42 U.S.C. § 2000e-3, and FEHA, Cal. Gov't Code § 12940(h), respectively; the fifth claim alleges a failure to prevent discrimination or retaliation in violation of FEHA, Cal. Gov't Code § 12940(k); the sixth and seventh claims allege the failure to pay wages in violation of the California Labor Code, Cal. Lab. Code §§ 510, 515, and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1), respectively; and the eighth and ninth claims allege retaliation for complaints about the failure to pay wages in violation of the California Labor Code, Cal. Lab. Code § 98.6, and the FLSA, 29 U.S.C. § 215(a)(3), respectively.
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Id. at 256. On issues for which the ultimate burden of persuasion at trial lies with the nonmoving party, the moving party bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the nonmoving party's case or by demonstrating that the nonmoving party cannot produce evidence to support an essential element of its claim or defense. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
Once the moving party carries its initial burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). On those issues for which it will bear the ultimate burden of persuasion at trial, the nonmoving party "must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103.
In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court also may not engage in credibility determinations or weigh the evidence, for these are jury functions. Anderson, 477 U.S. at 255.
Claims of racial discrimination under Title VII are evaluated pursuant to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which involves a three-step process. Claims pursuant to FEHA are subject to that same analysis. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996); see Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) ("Because of the similarity between state and federal ...