AMENDED 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. Currently before the court is defendants' motion for summary judgment on all claims.*fn1
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 (Docket Nos. 37-48) Ex. B ("Hodgkins Decl.") ¶ 2; Pl.'s App'x (Docket No. 54) 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 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.)*fn2 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, and her responsibilities included tasks such as making presentations to community groups, designing and maintaining the website, and organizing community events. (Franklin Decl. ¶ 61; Buer Decl. ¶ 8.) 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 (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, the Director of Administration, refer to her as a "black bitch" on one occasion.*fn3
(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," and he denied her the six-month raise described to her at the time of her hiring. (Franklin Decl. ¶¶ 42-48; Pl.'s App'x Ex. 7 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 race discrimination. (Pl.'s App'x Ex. 10 at 1-2.) As a result of a mediation between plaintiff and Hodgkins, Hodgkins 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.) 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 succeeded Hodgkins as the SAFCA Executive Director. (Buer Decl. ¶ 1.) Plaintiff mentioned the 2001 charge of discrimination 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.)
Some time in the spring of 2005, plaintiff informally complained to Buer that she believed he was discriminating against her on account of race. (Franklin Decl. ¶¶ 104, 116.) 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.
(Id. ¶ 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.)
While working under Buer, plaintiff was excluded from certain meetings at which SAFCA's public relations were discussed. (Franklin Dep. 148:2-7.) In particular, plaintiff was not invited to or not allowed to attend sixty to seventy percent of manager-level meetings at the office, though she was considered a manager. (Buer Dep. 206:19-207:1; see Franklin Dep. 149:12-17.) Buer also declined to invite plaintiff to high-level "management coordination" meetings involving strategic planning between SAFCA and other agencies. (Buer Dep. 209:18-24.) Buer told plaintiff that her attendance at these meetings was not necessary. (Franklin Dep. 148:13-14; Buer Decl. ¶ 39.)
On August 3, 2006, Buer provided plaintiff with a 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 id. ¶ 32; Franklin Decl. ¶ 143; Defs.' App'x Ex. P.) Plaintiff disputed Buer's assessment and accused him in her written response 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.)*fn4
The performance evaluation was finally completed in September, after Buer responded to plaintiff's written response to the initial evaluation. (Buer Decl. ¶¶ 36-37.)
Then, on November 2, plaintiff emailed Buer a "courtesy copy" of a purported California Department of Fair Employment and Housing ("DFEH") complaint alleging that Buer had discriminated and retaliated against her. (Pl.'s App'x Ex. 13; Defs.' App'x Ex. Z; 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.)*fn5 Plaintiff was then terminated 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 the 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 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.
Defendants initially moved for summary judgment on January 12, 2009. On March 23, the court issued an Order ("March 23 Order") granting in part and denying in part defendants' motion. See Franklin v. Sacramento Area Flood Control Agency, No. 07-1263, 2009 WL 799107 (E.D. Cal. Mar. 23, 2009). Thereafter, defendants filed a motion for reconsideration, raising new arguments not presented in the original motion, and plaintiff filed an opposition that expanded on the parties' arguments on summary judgment and introduced nearly 100 pages of new evidence. (See Defs.' Mem. Supp. Recons. (Docket No. 71); Pl.'s Opp'n Recons. (Docket No. 76); Pl.'s App'x Opp'n Recons. (Docket No. 78) ("Pl.'s 2d App'x"); Defs.' Reply Recons. (Docket No. 79).) Upon reconsideration, the court's March 23 Order is set aside, and the court rules as follows on defendants' motion for summary judgment on all claims.
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.
The parties have invoked the three-step burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.").*fn6
Under the McDonnell Douglas framework, plaintiff must first establish a prima facie case showing that 1) she belongs to a protected class of persons; 2) she satisfactorily performed her job; 3) she suffered an adverse employment action; and 4) her employer treated her differently than similarly situated employees not of the same protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citing McDonnell Douglas, 411 U.S. at 802). The degree of proof necessary to establish a prima face case is "minimal and does not even need to rise to the level of a preponderance of the evidence." Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002). Then, if plaintiff successfully establishes her prima facie case, the "burden of production, but not persuasion,  shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802).
Finally, assuming the employer carries its burden, plaintiff "must [then] show that the articulated reason[s] [are] pretextual 'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Chuang, 225 F.3d at 1124 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). To satisfy this burden, plaintiff "must produce some evidence suggesting that [the employment action] was due in part or whole to discriminatory intent, and so must counter [defendants'] explanation." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004).
Here, defendants do not contest the first two elements of plaintiff's prima facie case. It is undisputed that plaintiff, as an African American, belongs to a protected class.
In addition, plaintiff's own assertion of adequate performance and evidence of positive assessments from others in her field (Franklin Decl. ¶¶ 4, 32; Pl.'s App'x Ex. 28 ("Taylor Dep.") 52:8-13) satisfies the second element. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002) (holding that even an employee's self-assessment was sufficient to establish a prima facie case).
With respect to the third element of plaintiff's prima facie case, "an adverse employment action is one that 'materially affect[s] the compensation, terms, conditions, or privileges of . . . employment.'" Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quoting Chuang, 225 F.3d at 1126) (alterations in original); see Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004) ("We define 'adverse employment action' broadly." (citing Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000))). Plaintiff contends that she suffered multiple adverse employment actions. The court will address plaintiff's prima facie case for each in turn.
To satisfy the fourth element of a prima facie case for discriminatory termination, a plaintiff ordinarily must show that the employer sought a replacement following the termination. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988). The prima facie case, however, "[is] not intended to be an inflexible rule." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978). Instead, the prima facie case serves to "eliminate the most common nondiscriminatory reasons" for the adverse employment action. Burdine, 450 U.S. at 254. In Pejic, for example, the court required the plaintiff to show that the employer sought a replacement as a means of "demonstrating a continued need for the same services and skills." 840 F.2d at 672.
Here, it is undisputed that SAFCA did not hire a new PIO. (Buer Decl. ¶ 56.) Nonetheless, plaintiff's former duties were reassigned to existing staff (id.), none of whom were African American (Franklin Decl. ¶ 2). In addition, even before plaintiff's termination, some of her duties had already been assigned to Gualco, who is also not African American. (Id. ¶ 58). Under these circumstances, plaintiff has adequately shown that SAFCA had a continuing need for the services she provided and that ...