The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 30)
Kathleen A. Coyne ("Plaintiff") has been a Deputy Public Defender for the County of San Diego since 1989. Plaintiff sued the County of San Diego*fn1 ("Defendant") in state court on February 29, 2008, alleging unlawful sex discrimination pursuant to Cal. Gov't Code § 12940(a); unlawful retaliation pursuant to Cal. Gov't Code § 12940(h); and unlawful retaliation pursuant to 42 U.S.C. § 2000e-3(a). (Doc. No. 1.) This employment discrimination action was properly removed to this Court on April 8, 2008. (Doc. No. 1.) Defendant filed its answer on April 17, 2008 and subsequently filed the present motion for summary judgment on July 28, 2009. (Doc. No. 30.) Plaintiff filed her opposition to the motion on October 22, 2009. (Doc. No. 37.) Defendant filed its reply on November 5, 2009. (Doc. No. 39.) The Court heard oral argument on December 10, 2009 and took the matter under submission. For the reasons stated below, the Court HEREBY DENIES Defendant's motion for summary judgment.
Plaintiff became a Deputy Public Defender ("DPD") in 1989. (Compl. ¶ 10.) There are five levels of seniority in the classified service for DPDs, and Plaintiff was promoted to the most superior level -- Level V -- by then-Public Defender Steven Carroll in late 1997 or 1998. (Carroll Decl. ¶ 6.) At this time, Plaintiff worked in the El Cajon branch of the Department. She never held an official "supervisory" position, despite her qualification to do so as a DPD Level V ("DVD V") and repeated requests by Plaintiff to do so. (See County Ex. 6, p. 11; Coyne Decl. ¶¶ 2, 3.)
In May of 2005, Attorney Bill Richardson was assigned to one of several available supervisory positions. Mr. Richardson was a DPD IV, one level lower that Plaintiff's status. (Coyne Decl. ¶ 3.) This assignment made Mr. Richardson Plaintiff's supervisor. Plaintiff was disappointed that she had been passed over for this position; in fact, she was not even interviewed for the position. (Coyne Depo. at 306-07.)
In March of 2006, several vacancies allowed Public Defender Steven Carroll (the "Public Defender") to promote a number of DPDs to DPD IV and PDP V status. (Carroll Decl. ¶ 4.) Mr. Richardson was one of the candidates for such a promotion. (Coyne Decl. ¶ 10.) The Public Defender initially had nine DPD IV and five DPD V vacancies. (Carroll Decl. ¶ 4.) However, the Public Defender asked the County for permission to increase the number of promotional vacancies, and the County gave the Public Defender authority to promote twenty DPD IVs and fourteen DPD v. (Carroll Decl. ¶¶ 4, 5, Ex. 1.) The promotions were announced on November 20, 2006, effective January 2007. Fourteen candidates - 12 men and 2 women - were promoted to DPD V. (Brown Decl. ¶ 3.) Mr. Richardson was one of the men promoted to DPD V. (Brown Decl. ¶ 4.)
Within days of the announced promotions, the County began getting complaints of gender discrimination, and several unsuccessful female applicants filed gender discrimination claims with the County Civil Service Commission and in Superior Court. (See Carroll Decl. ¶ 6; County Ex. 3 at 15, ¶ 19; Brown Decl. ¶ 5.) Plaintiff actively supported the women's appeal and later spoke at a meeting of the "Commission on the Status of Women" on March 7, 2009. (Compl. ¶ 15; Mem. ISO MSJ at 2 n.1; Coyne Decl. ¶ 13.) Defendant concedes that Plaintiff's "support to co-workers bringing a discrimination claim constitutes a protected activity under Title VII [of the Civil Rights Act] and FEHA [California's Fair Employment and Housing Act]."
For reasons much in dispute, and thoroughly discussed below, Plaintiff was informed on April 12, 2007 that she would be transferred from the El Cajon branch to the Juvenile Delinquency branch, which is geographically the next closest Public Defender's office. (Carroll Decl. ¶ 16; Coyne Decl. ¶ 18.) The transfer was made public on April 13, 2007, and Plaintiff was one of twenty other DPDs transferred in April 2007. (Carroll Decl. Exs, 8, 9.) This transfer is the basis for Plaintiff's sex discrimination and retaliations claims, as set forth in her Complaint.*fn2 (See Compl. ¶¶ 16, 22, 29, 35.)
There are other incidents that occurred prior to and throughout the litigation which become an issue in this case. I will describe them here and will reference these incidents below. One incident was between Plaintiff and Mr. Lucero, El Cajon's Chief Investigator. Lucero's declaration describes the alleged incident, which was documented several months before the transfer and before Plaintiff attended the Commission on the Status of Women meeting. (See Lucero Decl. Ex. A.) Essentially, Mr. Lucero states that he "experienced a number of incidents in late 2006 and early 2007 in which Plaintiff was confrontational or disrespectful towards [him]." (Lucero Decl. ¶ 3.) One particular incident, documented in an e-mail to his supervisor, see Lucero Decl. Ex. A, involved Ms. Coyne bypassing the system within the office requesting the investigators to deliver packages. (Id.) Mr. Lucero contended in the e-mail that Plaintiff was "disrepectful," "confrontational," "condescending" and "negative." (See Lucero Decl. Ex. A.)
Another relevant incident involved Mr. Richardson, a fellow attorney in the El Cajon branch who was selected for the branch Supervisor position in the El Cajon branch over Plaintiff.
(Coker Decl. ¶¶ 3-4; see also Pl. Depo. at 307-08.) Plaintiff admits that she believes Mr. Richardson is incompetent in the role of Supervisor and believed she was more qualified to serve as Supervisor. (Pl. Depo. at 288-89; 307-08.) The Chief Deputy overseeing branch operations, Mr. Coker, "would periodically hear reports from the El Cajon branch that [Plaintiff] was undermining Bill Richardson's authority as the branch Supervisor." (Coker Decl. ¶ 6.) One incident in particular involving Mr. Richardson occurred on March 22, 2007. On or about this date, Plaintiff received a copy of an Order from a district court concluding that Mr. Richardson rendered ineffective assistance of counsel in a case he handled in 1997. (Pl. Depo. at 286-287; see also Pl. Ex. C.) Plaintiff disseminated this Order to her colleagues (Pl. Depo. at 286-87), but the reason why is in dispute and discussed more below.
The third incident occurred after the Complaint had been filed in this case. On or about November 8, 2008, Plaintiff filed a motion in San Diego Superior Court to disqualify Judge Parsky from a case in which Plaintiff was assigned as the defender. (See Carroll Decl. Ex. 8.) "Without explanation, after the motion was filed [Plaintiff] was taken off the case and the motion was withdrawn." (Coyne Decl. ¶ 36.) On March 26, 2009, Mr. Carroll issued a formal Letter of Reprimand to Plaintiff involving this motion. (Id.) The Letter of Reprimand points to several errors on the face of plaintiff's moving papers -- errors Mr. Carroll believed fell "short of the quality of work expected of a Deputy Public Defender V in numerous ways." (Id.) Mr. Carroll "was particularly concerned with the numerous personal attacks made against the judge." (Mem. ISO MSJ at 16; Carroll Decl. ¶ 18.) Mr. Carroll felt that the facts in her brief and declaration did not support the accusations she made against the judge. (Id.) This Letter of Reprimand was later "changed to a letter of warning which, from [Plaintiff's] understanding, means there is no method by which [she] can appeal its presence in [her] personal file." (Coyne Decl. ¶ 14.)
A. Motion for Summary Judgment
Summary judgment is properly granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Entry of summary judgment is appropriate "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 Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial burden of establishing an absence of a genuine issue of material fact. Id. at 323. Where the party moving for summary judgment does not bear the burden of proof at trial, it may show that no genuine issue of material fact exists by demonstrating that "there is an absence of evidence to support the non-moving party's case." Id. at 325.
Once the moving party meets the requirements of Rule 56, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Without specific facts to support the conclusion, a bald assertion of the "ultimate fact" is insufficient. See Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A material fact is one that is relevant to an element of a claim or defense and the existence of which might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 248). When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] . . . ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
B. Plaintiff's Causes of Action
Plaintiff's first cause of action alleges sex discrimination in violation of Cal. Gov't Code § 12940(a), California's Fair Employment and Housing Act ("FEHA"). Section 12940(a) makes it unlawful for an employer "to discriminate against [a] person in the terms, conditions, or privileges of employment" based on the employee's sex.
Both Title VII of the Civil Rights Act of 1964 ("Title VII") and California's Fair Employment and Housing Act ("FEHA") make it an unlawful employment practice for an employer to retaliate against an employee who performed a protected activity. FEHA makes it unlawful for "an employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part, or the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov't Code 12940(h). Title VII makes it "unlawful . . . for an employer to discriminate against any . . . employee . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he had made a charge, testified, assisted, or participated in any manner in an investigation, proceedings, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
The plaintiff in an FEHA sex discrimination suit bears the initial burden of proving the elements of a prima facie case of discrimination. Though the specific elements may vary, "[g]enerally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position sought . . . (3) he suffered an adverse employment action, such as . . . denial of an available job, and (4) some other circumstances suggests discriminatory motive." Guz v. Bechtel Nat'l, 24 Cal.4th 317, 334 (2000).
In a FEHA and Title VII*fn3 retaliation lawsuit, the plaintiff bears the initial burden of establishing her prima face case of retaliation. Plaintiff must show "he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action." Flait, 3 Cal. App. 4th at 476; see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994); Guz, 24 Cal.4th at 355.
In both discrimination and unlawful retaliation cases, if the plaintiff meets the burden of proving its prima facie case, a rebuttable presumption of discrimination arises and the defendant must then "articulate a legitimate nonretaliatory explanation for its acts." Flait, 3 Cal. App. 4th at 476; see also Johnson v. United Cerebral Palsy/Spastic Children's Foundation, 173 Cal. App. 4th 740, 754-55 (2009). In this determination, the employer's "true reasons need not necessarily have been wise or direct . . . , the ultimate issue is whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons . . . are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." Guz, 24 Cal.4th at 358 (emphases omitted).
After the defendant has rebutted the presumption of discrimination by proffering legitimate nonretaliatory reasons for its actions, the burden then shifts back to the employee "to show that the defendant's proffered explanation is merely a pretext for the illegal [action]." Flait, 3 Cal. App. 4th at 476; see also Johnson, 173 ...