ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 20)
This is an employment discrimination case brought by Plaintiff Darlene Dotson ("Dotson") against her employer Defendant Kern County ("the County") and fellow County employees Bill Drakos ("Drakos") and Felicia Skaggs ("Skaggs").*fn1 Dotson alleges causes of action under 42 U.S.C. § 2000e et seq. ("Title VII") and California Government Code § 1200 et seq. (the California Fair Employment and Housing Act -- "FEHA").*fn2 Drakos and Skaggs move for summary judgment on the only claim alleged against them, Dotson's first cause of action (hostile environment under FEHA). The County moves for summary judgment on Dotson's FEHA and Title VII claims based on race and gender/sexual discrimination (the second, third, sixth, and seventh causes of action). For the reasons that follow, Defendants' motions will be granted in part and denied in part.
Charges of discrimination 480-2008-00105 and 480-2008-02201 are the only Equal Employment Opportunity Commission ("EEOC") Charges of Discrimination filed by Dotson pertaining to her employment with the County. DUMF No. 1.*fn3 Neither of these Charges name or identify in any way either Drakos or Skaggs. See DUMF No. 2. Neither of these Charges make any factual allegation of gender discrimination or race discrimination. See DUMF No. 3; Defendants' Exs. A, B.
Charge 480-2008-00105 ("the October 2007 Charge") was filed with the EEOC on October 23, 2007. DUMF No. 4. Under the "Discrimination Based On" section of the October 2007 Charge, only the box for "retaliation" is marked. See Defendants' Ex. A. Under the "Particulars" section of the October 2007 Charge, it reads: "(I) In or around August 2006, I filed an internal complaint alleging racial and sexual harassment. In or around June 2007, I received a less than favorable performance evaluation. I have been an employee of the county since November 1999. (II) No reason was given for the less than favorable performance evaluation. (III) I believe I have been discriminated against in retaliation for having participated in a protected activity in violation of Title VII . . . ." Id.
The Intake Questionnaire associated with the October 2007 Charge was received by the EEOC in September 2007 ("the 2007 Intake Questionnaire"). See Plaintiff's Ex. B. Under the section asking "What is the reason (basis) for your claim of employment discrimination?", Dotson checked the boxes for "race," "color," and "retaliation." Id. Under the first section (subparagraph A) to explain what happened,*fn4 Dotson wrote: "Date: June 2007; Action: Retaliatory EPR -- See Attached; Name and Title of Person(s) Responsible: Rick Erickson (supervisor), Lisa Gaven-Cruise (administrator), and "Diane [indecipherable] (director)." Under the second section (subparagraph B) to explain what happened, Dotson did not identify a date or identify the name and title of those responsible. In describing the "action," Dotson wrote: "[work/done]*fn5 way after the fact & the ind. continued to work in the area and service clients, . . . one one [sic] incident that led to all this." Id.
On October 30, 2007, the California Department of Fair Employment and Housing ("DFEH") advised Dotson that they would not be investigating Dotson's claims, but were instead deferring to the EEOC. See Complaint Ex. C. The DFEH advised Dotson that the EEOC would be the agency responsible for processing her complaint and that she should contact the EEOC about any questions. See id. The DFEH stated that the notice constituted a right to sue letter, and that, "DFEH is closing its case on the basis of 'processing waived to another agency.'" Id.
Charge 480-2008-02201 ("the April 2008 Charge") was filed with the EEOC on April 7, 2008. DUMF No. 5. Under the "Discrimination Based On" section of the April 2008 Charge, only the boxes for "retaliation" and "disability" are marked. See Defendants' Ex. B. Under the "Particulars" section of the April 2008 Charge, it reads: "(I) On October 23, 2007, I filed a charge of discrimination with the EEOC [the October 2007 Charge] wherein I alleged differential treatment in retaliation for have [sic] participated in a protected activity. From on or about November 9, 2007, and continuing until the present, I have been harassed, transferred, repeatedly questioned about my certification, denied accommodation for my disabilities, denied Continuing Education Units, and denied a promotion to SASII. (II) No reason has been given for this treatment. (III) I believe I have been discriminated against in retaliation for having participated in a protected activity and my disabilities in violation of Title VII . . . and Title I of the Americans with Disabilities Act." Id.
The Intake Questionnaire associated with the April 2008 Charge was received by the EEOC in either February or March 2008 ("the 2008 Intake Questionnaire").*fn6 See Plaintiff's Ex. C. Under the section asking "What is the reason (basis) for your claim of employment discrimination?", Dotson checked the boxes for "disability" and "retaliation." Id. Under the first section (subparagraph A) to explain what happened,*fn7 Dotson wrote: "Date: Starting 11/9/07 Til Present; Action: Retaliation/Harassment 1) transferred 2) repeatedly questioned about certification 3) denied accomendations [sic] disability 4) denied CEU/training 5) cont. denied promotion to SAS II; Name and Title of Person(s) Responsible: Donald Terleski, Diane [indecipherable], Bill Drakos, Felicia Skaggs/Justice, Jim Waterman." Under the second section (subparagraph B) to explain what happened, Dotson identified the same date (November 9, 2007, to present), but did not identify any names or titles of persons responsible. In describing the "action," Dotson wrote: "Attached proof of ongoing retaliation harassment of me before and after submitting a claim to EEOC . . . on 10/23/07, I was transferred and wouldn't be accommendated [sic] with doctors orders that were accommendated [sic] prior. At my work place requesting yearly certification that wasn't due. Working me out of class." Id.
The EEOC issued right to sue letters on April 30, 2009. See Complaint Exs. A, B. Included in the records of the EEOC's investigation of Dotson's Charges is a copy of Dotson's September 1, 2006, internal grievance against Greg Gause ("Gause") for racial and sexual harassment. See PRDUMF No.3; Plaintiff's Ex. D. The September 1, 2006, grievance indicates that Gause racially and sexually harassed Dotson from December 2005 to July 2006, and lists many particular incidents and time frames. See Plaintiff's Ex. D.
SUMMARY JUDGMENT FRAMEWORK
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing ...