ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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"). Defendants now move for summary judgment on
all remaining claims in this case. *fn2 For
the reasons that follow, the Court will grant Defendants' motion and
close this case
Dotson began her employment with the County in 1999 as a Substance Abuse Specialist 1 ("SAS 1"). In that capacity, Dotson counseled with drug-dependent adults. Dotson worked, and continues to work, in the County's Mental Health Department.
Dotson filed a charge with the EEOC on October 23, 2007. See DUMF 2. Under the "Discrimination Based On" section of the October 2007 Charge, only the box for "retaliation" is marked. See Defendants' Ex. B. 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 [against Greg Gause]. 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 offensive conduct of Greg Gause towards Dotson occurred between January 2006 and August 2006. DUMF 5. Gause was removed from the Mental Health Court team on August 30, 2006. Id. Lisa Gavin-Cruse ("Gavin-Cruse"), Dotson's supervisor during the Gause incident, declared that she believed that Dotson had done the right thing in complaining about Gause. See Gavin-Cruse Dec. ¶ 5. After August 30, 2006, there were no further incidents of sexual harassment, racial discrimination, or other inappropriate behavior between Gause and Dotson. Id. Dotson did not file with the EEOC or DFEH a charge of discrimination or harassment pertaining to comments made by Gause within one year of the alleged comments by Gause. DUMF 6. *fn4
On April 7, 2008, Dotson filed a second charge with the EEOC. See DUMF 3. 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 . . . 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 SAS II. (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." See Defendant's Ex. C.
In 2007, the Mental Health Court team was required to move its physical location to a facility known as Westwind due to the need to consolidate services as a result of budget cuts. DUMF 15. In late September/early October 2007, Dotson told her supervisors that she did not want to transfer to Westwind due to the presence there of individuals with whom she had experienced conflicts earlier in her career. See DUMF 16; Defendants Ex. J. Dotson was told by her superiors that if she did not want to transfer with her team to Westwind, she would need to transfer to another team. DUMF 17. Dotson told her superiors that she did not want to transfer to the ACT team due to travel and work hour requirements for the job. DUMF 18. To honor her request to not be assigned to Westwind or the ACT team, Dotson was transferred to the Green Gardens facility after her previous team transferred to Westwind. See DUMF 19. Dotson's supervisors at Green Gardens, Drakos, Skaggs, and Terry Parks ("Parks"), did not know that when Dotson came to work at Green Gardens that she had made previous complaints about Gause. See DUMF 24; Drakos Dec. ¶¶ 2-3 ; Parks Dec. ¶ 2; Skaggs Dec. ¶ 2. *fn5
In November 2007, an issue arose regarding Dotson's work schedule at Green Gardens. See Plaintiff's Ex. F. Drakos initially refused Dotson's request to work a 9/80 schedule. See DUMF's 23; Plaintiff's Ex. F. Dotson was not allowed to work a 9/80 schedule for approximately one to two pay periods, that is two to four weeks, while her supervisors verified the medical need for a 9/80 schedule. DUMF 23. *fn6 The decision to initially disallow the 9/80 schedule was made by Drakos. Id. On November 29, 2007, Dotson wrote a letter to Dr. Terleski (a deputy director of the Mental Health Department) about not being allowed to work under the 9/80 schedule. See Plaintiff's Ex. F. Dotson also submitted a letter from Dr. Cousin dated November 29, 2007, which stated that Dotson was to work a 9/80 schedule. See Defendants' Ex. F. Skaggs eventually authorized the 9/80 work schedule. DUMF 23. Drakos's initial refusal to allow Dotson to work a 9/80 schedule had nothing to do with any complaints she had made against anyone and was not retaliatory. DUMF 25. *fn7 Although Drakos from time to time would approve temporary alternative work schedules, he did not approve of 9/80 work schedules because, in his experience, individuals under the 9/80 schedule were not as productive. See Drakos Dec. ¶ 2. At the time Dotson requested to work under the 9/80 schedule, Skaggs was unaware of anyone working a 9/80 schedule who was under Drakos's supervision. See Skaggs Dec. ¶ 3. From October 2005, Dotson had worked under a restricted schedule pursuant to an October 14, 2005 doctor's note. See Dotson Depo. 105:10-22; Plaintiff's Ex. C.
Sometime in 2007, the County began implementing a computer record and data system called Anasazi. See Gutierrez Dec. ¶ 5; Defendants' Ex. H. Because the Anasazi system was to become the exclusive means of documenting services provided, employees needed to become competent in using Anasazi. See Gavin-Cruse Dec. ¶ 4. There were problems with the Anasazi system, especially during the first year of implementation. See Dotson Depo. 56:16-25; Gutierrez Dec. ¶ 6. Dotson experienced problems on a daily basis, including her computer freezing and losing 20 to 30 minutes worth of data entry. See Dotson Depo. 56:16-25. Dotson also experienced problems with entries being in a different server or under a different staff member's name. See Skaggs Depo. 38:11-21. Other County employees experienced the loss of notes and other work information on a regular basis due to the Anasazi system freezing.
See Gutierrez Dec. ¶ 6. One County employee opined that it was virtually impossible to meet the 75% productivity requirement because of the problems with the Anasazi system. See Gutierrez Dec. ¶ 8. The County still experiences some problems with Anasazi. See Skaggs Depo. 38:24-39:1. Dotson reported her problems with the Anasazi system to Skaggs, and reported the problems daily to Drakos. See Dotson Depo. 56:16-25. Skaggs had Anasazi staff come and try to work on Dotson's computer to fix some of the problems. See Skaggs Depo. 39:18-19. Dotson received what she describes as "very little" training on the Anasazi system. See Dotson Depo. 156:6-8. Rick Erickson was at least partly responsible for training Dotson on the Anasazi system, but he would not go to Dotson's desk even when Dotson had questions. See id. at 156:14-157:7. Dotson believed that she went to Skaggs's team without knowing about parts of Anasazi because Erickson did not show her. See id.
Dotson was not eligible for promotion from SAS 1 to SAS 2 prior to
2008 because she did not possess a CADAAC certification. DUMF 26.
*fn8 Defendants' contend that Dotson was not
reclassified or promoted from SAS 1 to SAS 2 at the time of her
request in 2008 because her productivity was significantly below the
department standard of 75%. See DUMF 27. The 2007/2008 evaluation
indicates that Dotson's productivity was 57.64% without factoring in
the first two months with the new Green Gardens team due to problems
with the Anasazi system. See Defendants' Ex. E. The evaluation states
that, if the first two months were included, productivity would have
been 49.11%. See id. Defendants contend that the denial of a promotion
at that time had nothing to do with prior complaints that Dotson had
made and was not retaliatory. See DUMF 27. The Mental Health
Department productivity standard is a vital component in generating
sufficient revenue to fund the direct client services provided by
employees of the Department to the community. DUMF 28.
*fn9 Dotson is aware of one employee, Jessie
Chavaria, who was promoted despite not meeting the 75% productivity
rating. See Dotson Depo. 63:24-64:6; 64:14-16. *fn10
Skaggs did not have authority to promote Dotson, but
recommended Dotson for promotion in 2008. DUMF 29.
In May 2007, December 2007, June 2008, and July 2008, Dotson received memoranda from the County regarding professional certification. See Defendants' Ex. O. Dotson understood that she was required by state law to keep a current copy of her professional certification on file with the County. DUMF 31. The memoranda sent to Dotson indicate that she needed to submit a current certification to the Mental Health Department, and they were sent to all licensed or certified employees employed by Mental Health because they were required by department policy. DUMF 32. In 2007-2008, there were approximately 300 employees in the Mental Health Department with professional licenses, certificates, or registrations. Id. In 2008-2009, there were approximately 750 such employees. See id. Even though Dotson did not need to be certified to work as an SAS 1, because she was certified and was providing drug counseling services, the Mental Health Department needed proof that Dotson was still authorized by the State to provide those services. DUMF 33. The memoranda sent to Dotson regarding her certification were not the product of retaliation. DUMF 34. Skaggs did not question Dotson's certification as a substance abuse counselor. DUMF 35.
Dotson has obtained all of her required Continuing Education Units each year she has been employed with the County. DUMF 36. However, Dotson had to obtain some of the credits on her own. See Dotson Depo. 70:6-10. On February 25, 2008, Drakos denied a request by Dotson to attend a continuing education program. See Defendants Ex. M; see also Drakos Dec. ¶ 7. Defendants contend that Drakos's refusal to approve Dotson's attendance at a continuing education program was based on her lack of productivity and that the subject matter of the course did not pertain to Dotson's clients. See DUMF 37; *fn11 Drakos Dec. ¶ 7. Defendants contend that it had nothing to do with any complaints Dotson had made at a prior time and was not retaliatory. Id. As it turned out, there was no urgency for plaintiff to attend the training. Id. Skaggs did not withhold continuing education units from Dotson and did not restrict her opportunity to obtain them. DUMF 38.
Dotson was off work beginning in October 2008 due to a knee injury which she sustained at work and for which she desired surgery. DUMF 20. When Dotson returned from knee surgery in 2009, she was transferred to a position in another division that was not as physically demanding. DUMF 21. In Dotson's new position, she is not required to meet a productivity standard. DUMF 22. Dotson was promoted to SAS 2 in June 2010. DUMF 30.
Dotson received every increment raise to which she was entitled as an SAS 1 while employed by the County. DUMF 7. Dotson has never been demoted or had her compensation reduced while employed by the County. DUMF 8. *fn12 Dotson has never been suspended while employed by the County. DUMF 9. As an SAS 1, Dotson has not received an evaluation with an overall rating lower than "standard" while employed by the County. DUMF 10. *fn13
Dotson first complained to a supervisor about Gause's behavior
about two months prior to his removal from the Mental Health Court
team on August 30, 2006. DUMF 11. Dotson was rated overall as
performing at a "standard" level both before she complained about
Gause and after she complained about Gause. DUMF 12. *fn14
Defendants contend that Dotson's 2006/2007 performance
rating was based on her performance and was not retaliatory. See DUMF
13. The 2006/2007 performance rating was signed by Dotson's then
supervisors (Rick Erickson and Lisa Gavin-Cruse) on May 10, 2007. See
Defendants' Ex. H. Dotson was rated as "standard" on 23 of 27
categories, rated "above standard" on 3 categories, and rated
"improvement needed" on the "promptness in completing work" category.
See id. Dotson refused to sign the evaluation. See id. Gavin-Cruse's
evaluation was based in part on concerns that Dotson was not
documenting her sessions in a timely manner and Dotson was continuing
to have difficulty with the Anasazi system. See Gavin-Cruse Dec. ¶ 3.
Defendants contend that Dotson's 2007/2008 performance evaluation was based on her performance and was not retaliatory. See DUMF 14. The 2007/2008 performance rating was signed by Drakos on September 12, 2008. See Defendants Ex. E. On the 2007/2008 evaluation, Dotson is rated "standard" on 22 of 27 categories, rated "above standard" on 4 categories, and rated "unsatisfactory" on the "volume of work produced" category. See id. Terry Parks replaced Skaggs in August 2008. Se Skaggs Dec. ¶ 7; Parks Dec. ¶ 2. Parks wrote on the evaluation that Dotson had refused to sign, that Dotson was offered a special 3 month evaluation for purposes of obtaining a promotion, but Dotson refused the 3 month evaluation. See Defendants Ex. E. Skaggs did not sign the 2007/2008 evaluation because she had originally rated Dotson as "improvement needed" under the "volume of work produced" category and had recommended Dotson for promotion to SAS 2. See Skaggs Dec. ¶ 9; Skaggs Depo. 82:10-16; Parks Dec. ¶ 3. Skaggs testified she was aware that Dotson had filed a grievance or complaint against the County for its failure to promote her, and from an administrative view, promotion should be considered to protect the County. See Skaggs Depo. 67:16-68:12. However, Skaggs did not think that an overall rating higher than "standard" for Dotson was justified because of Dotson's low productivity. See Skaggs Dec. ¶ 9. Drakos refused to authorize promotion for Dotson, and he ordered Parks to delete the recommendation for promotion and to change the rating under the "volume of work produced" category from "improvement needed" to "unsatisfactory." See Drakos Dec. ¶ 5; Skaggs Dec. ¶ 6; Parks Dec. ¶ 3.
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 papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
1. Ninth Claim -- Title VII Disability Discrimination
The County argues that summary judgment on this claim is appropriate because disability is not a protected class under Title VII. Dotson does not expressly respond to this argument or specifically defend this cause of action.
Summary judgment on this claim is appropriate. First, it is recognized that if the moving party meets its initial burden on summary judgment and the non-moving party fails to address or raise the claim in opposition to summary judgment, the Court may deem the claim abandoned and grant summary judgment. See Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008); Coufal Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000); Doe v. Dickenson, 615 F.Supp.2d 1002, 1010 (D. Ariz. 2009). Because Dotson did not acknowledge this claim or Defendants' argument, she has abandoned it. Second, Title VII protects persons on the basis of "race, color, religion, sex, or national origin," it does not protect persons on the basis of disability. See 42 U.S.C. §§ 2000e-2(a)(1), (m); Rahmann v. Wal-Mart Stores, Inc., 2010 U.S. Dist. LEXIS 21020, *11-*12 (D. S.C. Mar. 8, 2010); Montanez v. Education Tech. College, 660 F.Supp.2d 235, 243 (D. P.R. 2009); Scott v. City of Yuba City, 2008 U.S. Dist. LEXIS 80307, *11 (E.D. Cal. July 7, 2008). Thus, summary judgment on this cause of action is appropriate.
2. Fourth Claim (Title VII) & Fifth Claim (FEHA) -- Retaliation
The County argues that Dotson's claims fail because there was no adverse action, there is no causal link, and/or there were legitimate, non-retaliatory reasons behind each employment action alleged. Dotson identifies several actions in her complaint as retaliatory, but they are not actionable. First, with respect to performance reviews, Dotson was rated overall as "standard" both before and after her complaints, and her ratings during annual evaluations were based on legitimate concerns over her productivity, including her learning the Anasazi system. Second, the transfer to Green Gardens was an attempt to accommodate her request to not work at Westwind or the ACT team, and her transfer in 2009 was an attempt to accommodate her recent knee surgery. Third, Dotson was denied the 9/80 work schedule for a very limited period of time. Neither Skaggs nor Drakos knew that Dotson had been working the 9/80 schedule, neither Skaggs nor Drakos knew that Dotson had participated in protected activity, and once a current doctor's note was received, the 9/80 schedule was approved. Fourth, the denial of promotions were based on either Dotson's failure to obtain CADAAC certification or her low productivity. With respect to certification memoranda, Dotson was one of over 300 people to get these memoranda and her receipt of some of the memoranda was an error, but it had nothing to do with any protected activity. Fifth, on one occasion Dotson was denied permission to attend a continuing education class because of her low productivity and because the class dealt with juveniles, whereas Dotson's clients were adults. Finally, any attempt by Dotson to rely on conduct by Gause is time barred.
Dotson argues that she filed complaints against Gause, filed complaints with the EEOC and DFEH, requested accommodation for her disability, and raised complaints about the failure to accommodate her alternative work schedule. These are protected activities. Over the past years, Dotson suffered adverse employment actions through Defendants' failure to promote, poor marks on the 2007 and 2008 annual reviews, failure to accommodate, and denial of continuing education courses. The reasons offered by Defendants for this conduct are manufactured.
First, the County "routinely promoted" individuals regardless of certifications. Prior to filing complaints, Plaintiff had been recommended for promotion despite not having the CADAAC certification.
Second, Dotson's productivity was impacted by a new computer system. Dotson received minimal training, and the system would constantly freeze up and lose notes/entries and had numerous problems. The 75% requirement was not communicated or enforced prior to Dotson's complaints, and other individuals were promoted despite not meeting the 75% requirement. *fn15
Dotson received poor marks for the 2007 and 2008 reviews, and these "reviews are for the first two years for which the Defendant County went through their computer conversion. Defendants knew that all employees' productivity were affected." Opposition at 7:18-20. Also, Skaggs did not sign the 2008 review or approve of the changes made to the 2008 review because she did not agree with them.
Third, Defendants have a history of retaliating against employees who complain. Also, as described in counsel's declaration, the County has blackballed Dotson as a troublemaker because of her complaints about Gause and requests for accommodation. Other employees who suffered productivity issues or ...