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Cathy A. Monaghan v. El Dorado County Water Agency


October 4, 2011



This matter is before the court on defendant El Dorado County Water Agency's (the "Agency" or "defendant") motion for summary judgment or, in the alternative, summary adjudication. Plaintiff Cathy A. Monaghan ("Monaghan" or "plaintiff") opposes the motion. For the reasons set forth below,*fn1 defendant's motion is GRANTED in part and DENIED in part.


Plaintiff Monaghan began working for defendant Agency in May 2003, when she was hired as a full-time administrative assistant. (UMF ¶ 5.) In 2005, plaintiff was promoted to administrative manager, working in human resources.*fn3 (UMF ¶ 7.) As part of her duties, plaintiff was responsible for ensuring that the workplace was free of harassment and discrimination. (UMF ¶ 8.) Plaintiff's immediate supervisor was defendant, William T. Hetland*fn4 ("Hetland"), the General Manager of the Agency. (UMF ¶ 6.)

After approximately one year of flirtation between plaintiff and Hetland, plaintiff, a trained massage therapist, gave Hetland a massage, at the end of which she kissed him on the forehead. (UMF ¶ 9.) Plaintiff later gave Hetland another massage, which ended in the two engaging in a consensual sexual interlude. (UMF ¶ 10.) Although both parties were married, Hetland and Plaintiff proceeded to carry on a consensual sexual relationship. (UMF ¶¶ 1, 11.) According to plaintiff's deposition testimony, during this time Hetland "[a]bsolutely [did] not" condition her employment on having sex with him, nor did he threaten her in any other way if she refused to have sex with him. (Monaghan Depo. at 193:9-21; 206:13-18.) Indeed, according to plaintiff, the affair was completely mutual. (Id. at 794:24; 153:10.)

Eventually, plaintiff decided to tell her husband about the affair. (UMF ¶ 11.) Afterward, plaintiff approached both her husband and Hetland with the proposition that the three of them engage in "three-way" sexual relations. (UMF ¶ 14.) Plaintiff, her husband, and Hetland, voluntarily engaged in a number of "three-way" sexual encounters. (UMF ¶ 15.) In October of 2007, plaintiff's husband asked her to end her relationship with Hetland. (UMF ¶ 20.) Although plaintiff did not want the relationship to end, she complied with her husband's wishes to end the affair. (Monaghan Depo. at 194:8-14.) When Plaintiff approached Hetland to end the relationship, he told plaintiff that "he understood, and he was going to say this once and only once, that he loved [her]." (Id. at 191:12-15.)

For a number of months after the affair ended, plaintiff and Hetland did not engage in any sexual activity. (Id. at 194:15-17.) During this time, plaintiff and Hetland continued to send each other humorous emails with sexual undertones; according to plaintiff, this conduct was appropriate because they "were still friends, [they] weren't in an argumentative, combative relationship." (Id. at 200:2-14; 202:17-18.) Plaintiff testified that, after a couple of months, Hetland began complaining to plaintiff about a lack of intimacy with his wife, and told plaintiff that he missed their intimacy. (Id. at 194:15-20.) According to plaintiff, this made her feel guilty, and eventually, plaintiff and Hetland resumed a flirtatious relationship. (Id. at 194:20-195:15.) Plaintiff testified that during this time, she "started drinking more, because [of] the anxiety that [she] was getting [from] trying to please [her] boss or a commitment or an obligation to him because he was unhappy." (Id.)

On a weekend in 2008, plaintiff and Hetland resumed a consensual sexual relationship at a Rancho Cordova hotel. (UMF ¶ 22.) According to plaintiff, she resumed the affair because she felt that she "had some obligation to Bill Hetland to fill in for the loss of intimacy he had with his wife." (Monaghan Depo. at 203:16-19.) Plaintiff testified that Bill never indicated that her job would be in jeopardy if she did not continue to have sex with him; instead, according to plaintiff, she "felt that if emotionally [she] wasn't there for him that he could do away with [her]." (Id. at 206:13-20; 207:6-9.) Overall, Monaghan and Heltland had at least 12 more sexual encounters. (UMF ¶¶ 27-28.)

As stated above, during the course of the second affair, Monaghan began drinking heavily. In October of 2008, plaintiff voluntarily checked into an alcohol treatment program at Kaiser; however, in December of 2008, she began drinking again. (UMF ¶ 7.) Plaintiff admitted that, on several occasions, she was under the influence of alcohol at work. (Monaghan Depo. at 107:11-13.) On one occasion, plaintiff "had some drinks at lunch" and "hit a curb going out of the parking lot." (Id. at 107:20-19.) On June 8, 2009, plaintiff was arrested for driving under the influence of alcohol. (UMF ¶ 82.) Monaghan had to attend life skills courses as a provision of her punishment; she was permitted to leave work to attend those courses. (Monaghan Depo. at 103:22-104:10.) On August 24, 2009, plaintiff passed out at her desk after consuming too much alcohol. (UMF ¶ 85.) The situation culminated in August, 2009, when plaintiff was consuming alcohol from 7:00 a.m. until she fell asleep at night. (UMF ¶ 83.)

Plaintiff claims that she felt Hetland "was providing her alcohol and/or encouraging her to drink to keep her from reporting harassment." (PRUF ¶ 43.) However, plaintiff, in her deposition, stated that Hetland never forced her drink alcohol. (Monaghan Depo. at 216:3-13.) Plaintiff stated that Hetland was not having her drink so that he was sober and she was not; instead, when they did drink alcohol together, she "could have three glasses to his one," because of her alcoholic condition. (Id. at 216:9-17.)

Plaintiff alleges that, In August of 2009, Hetland pressured her "to have a sexual encounter with him at Lake Tahoe." (Monaghan Decl. at 258:19-21.) According to plaintiff's deposition, Hetland wanted to "get together" with plaintiff after a work meeting in Lake Tahoe. (Id. at 261:22.) When plaintiff conveyed to Hetland that she preferred not to engage, "[h]e just sighed." (Id. at 261:25-262:6.)

In late August 2009, plaintiff and the Agency entered into a written agreement (the "Agreement") that provided in part, "On the basis of this conduct, Employer has decided to terminate Employee's employment, but will suspend the termination of employment on the following terms." (Declaration of Catherine Monghan (Monaghan Decl.), filed Sept. 02, 2011, [Docket #21 Ex. 1].) Those terms required that plaintiff enter an alcohol rehabilitation treatment program and notify the Agency within three days of initial assessment, admission, or beginning treatment. (Id.) The parties also agreed that, "during and following any period of initial or continuing treatment, Employee agrees that she will, as a condition of continued employment by the Employer, comply with the treatment recommendations of her treatment practitioners." (Id.)

In a later agreement, dated August 27, 2009, plaintiff agreed to participate in a 28-day residential rehabilitation program offered by Duffy's Napa Valley from August 29, 2011, to September 27, 2009. (Id. Ex. 2].) The agreement stated that the Agency would like to meet with plaintiff on either September 28, 2009, or September 29, 2009, to receive her evaluation of the program. (Id.) Plaintiff was permitted to take her accrued leave credits during her stay at the facility. (Id.) Plaintiff, however, had to pay for the agreement out-of-pocket. (Monaghan Depo. at 122:20-123:17.) There is no dispute that plaintiff finished the alcohol rehabilitation program in accordance with the Agreement.

Pursuant to the second agreement, Monaghan met with the Agency and Hetland, at which time Hetland presented plaintiff with a termination letter, signed by Hetland, on behalf of the agency. (Monaghan Decl. ¶ 22.) The letter stated the plaintiff's "'at-will" employment with the El Dorado County Water Agency is being terminated effective 5:00 p.m. on September 29, 2009." (Id., Ex. 2.) Plaintiff also signed an acknowledgment of notice that her "'at-will' employment status . . . has changed by reason of Involuntary Discharge." (Id. Ex. 3.)

Monaghan never told Hetland that he was sexually harassing her. (UMF ¶ 34.) Before she was terminated from the Agency, she never told anyone at the Agency about her affair and nobody knew of her relationship with Hetland. (UMF ¶ 44.) Moreover, plaintiff never told any member of the Agency board that she had an affair with Hetland. (UMF ¶ 45.) Monaghan did, however, have a discussion with the Agency's general counsel, Fred Schaefer, in which she reported that Hetland yelled at her and was erratic; however, she never reported to any person at the agency that she was being sexually harassed. (Monaghan Depo. at 227:6-24.)

On February 19, 2010, plaintiff filed a complaint in this court. Plaintiff filed a first amended complaint on June 2, 2010. In her first amended complaint, plaintiff alleges claims against Hetland and the Agency for (1) sex discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) sexual harassment in violation of California's Fair Employment and Housing Act ("FEHA"), California Gov't Code § 12900, et seq.; (3) failure to prevent sexual harassment in violation of FEHA; (4) retaliation in violation of Title VII; (5) retaliation in violation of FEHA; (6) breach of contract.*fn5


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).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered 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. Id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-289 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Id. at 251-52.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). 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. Anderson, 477 U.S. at 255. 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. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.


1. Plaintiff's Evidence

In opposition to defendant's motion for summary judgment, plaintiff presents a declaration of plaintiff as rebuttal evidence. Plaintiff's declaration poses numerous evidentiary problems.

Many of plaintiffs statements constitute unfounded, unsupported conclusions. Conclusory statements without factual support are insufficient to defeat a motion for summary judgment. National Steel Corp. v. Golden Eagles Ins. Corp., 121 F.3d 496, 502 (9th Cir. 1997). Further, [a] plaintiff's belief that a defendant acted from an unlawful motive, without evidence to support that belief, is no more than speculation or unfounded accusation about whether the defendant really did act from an unlawful motive. To be cognizable on summary judgment, evidence must be competent. . . . It is not enough for a witness to tell all she knows; she must know all she tells.

Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028 (9th Cir. 2001). The type of conclusory allegations employed by plaintiff in her declaration merely frame the ultimate issues to be determined, but do not create a genuine issue of triable fact to defeat summary judgment. Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543 (9th Cir. 1975).

Many of plaintiff's statements also contradict prior sworn testimony given though out her deposition. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting prior deposition testimony." Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). This rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony, but is applied to disallow a party to "create" an issue of fact by presenting "sham" testimony. Id. at 266-67. "The district court must make a factual determination that the contradiction was actually a 'sham.'" Id. at 267.

Defendant's objections to plaintiff's declaration are, in the majority, sustained. The court will address each evidentiary issue that is material to plaintiff's claim and defendant's motions in the context of its analysis.

2. Sexual Harassment under Title VII and FEHA *fn6 Defendant moves to dismiss plaintiff's claims for sexual harassment under both Title VII and FEHA because it contends that the sexual relationship was consensual. Moreover, defendant maintains that plaintiff has not submitted sufficient evidence to demonstrate that a reasonable person in her positions would believe she would suffer adverse employment consequences if she did not engage in a sexual relationship with Hetland, or if she did not continue to engage in a sexual relationship with Hetland.

Plaintiff contends that she reluctantly resumed a sexual relationship with Hetland in 2008. More specifically, plaintiff asserts that she continued to engage in sexual activity with Hetland because she felt an emotional obligation to him. As such, plaintiff maintains that Hetland insinuated that her employment may be in jeopardy if she did not continue to engage in their trysts.

Both Title VII and FEHA prohibit harassment based on sex.

42 U.S.C. 2000e; Cal. Gov't Code § 12940(j). Under Title VII, a claim for sexual harassment requires that plaintiff either be subjected to "quid-pro-quo harassment," i.e. that a supervisor conditioned employment benefits on sexual favors, or be subjected to harassment in the form of a hostile work environment. Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007). "[A]lthough the wording of the Fair Employment Housing Act and [T]itle VII of the Federal Civil Rights Act of 1964 . . . differs in some particulars, the antidiscriminatory objectives and the overriding public policy purposes are identical," and therefore, California courts refer to applicable federal decisions where appropriate. Sorosky v. Burroughs Corp., 826 F.2d 794, 803 (9th Cir. 1987) (citing County of Alameda v. Fair Employment & Hous. Comm'n, 153 Cal. App. 3d 499, 504 (1984); Miller v. Dep't of Corr., 36 Cal. 4th 446, 463 (2005); Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354 (2000)). A. Quid Pro Quo Harassment

Plaintiff's claim for quid pro quo harassment rests on her assertion that Hetland insinuated that her job may be affected if she refused to continue to engage in sexual relations with him.

More specifically, plaintiff asserts that she suffered a tangible employment action -- termination -- when she declined to "get together" with Hetland after a work meeting in South Lake Tahoe in July of 2009.

In order to withstand defendant's motion for summary judgment on plaintiff's claim for quid pro quo harassment, plaintiff must present sufficient evidence that: (1) she was subject to unwelcome sexual advances by a supervisor; (2) the harassment complained of was based on sex; (3) the employee's reaction to the harassment complained of affected tangible aspects of the employees occupation. Holly D. v. California Institute of Technology, 339 F.3d 1158, 1169-1171 (9th Cir. 2003). The Ninth Circuit has "recognized that a supervisor's demand for sexual favors accompanied by a threat of discharge represents archetypical quid pro quo harassment." Id. at 1169. It is not necessary that a supervisor explicitly demand sex in exchange for job security; instead, a quid pro quo claim may lie where plaintiff presents sufficient evidence that "the supervisor's words or conduct would communicate to a reasonable woman in the employee's position that such participation is a condition of employment." Id, at 1173. However, a "plaintiff may not rest on unsubstantiated assertions which describe a supervisor's behavior in a vague and general manner to show that the request for sexual favors or the conditioning of benefits is implicit. Id. at 1176.

In this case, under the standard for summary judgment as the Supreme Court set forth in Celotex, plaintiff has failed to comply with her burden of presenting sufficient admissible evidence that a reasonable woman in her circumstance would feel that her job was in danger if she did not continue to engage in a sexual liaison with Hetland. Indeed, plaintiff's claim rests on unsubstantiated, vague and general allegations that she was terminated only because she refrained from engaging in one last rendevous with Hetland in July of 2009.*fn7 However, plaintiff's own deposition testimony reveals that when she conveyed to Hetland that she preferred to not "get together" after the meeting in Lake Tahoe, Hetland replied only with a "sigh." (Monaghan Depo. at 261:25-262:6.) Such a vague response does not "show that the request for sexual favors or the conditioning of benefits is implicit." Holly D., 339 F.3d at 1176.

Perhaps even more persuasive than Hetland's response to plaintiff's denial of his request is that the evidence -- namely, plaintiff's own deposition testimony -- demonstrates that, when plaintiff ended the affair with Hetland the first time, in October of 2007, she did not suffer any "tangible employment action." Holly D., 339 F.3d at 1169. Indeed, when plaintiff told Hetland that she was ending the affair the first time, Hetland did not threaten plaintiff with any adverse employment action; he merely agreed to end the relationship and told her that he loved her. (Monaghan Depo. at 191:12-15.) Thus, no reasonable juror could find that a woman in plaintiff's position would believe that declining to engage in this single sexual encounter, after years engaging in numerous affairs with Hetland, would lead to termination on this occasion.

The fact that an employee had previously engaged in a consensual sexual relationship with a supervisor is not an affirmative defense to a claim of sexual harassment under either Title VII or FEHA. See Babcock v. Franks, 729 F.Supp.2d 279, 288 (S.D.N.Y. 1990). However, this fact cannot be ignored. Especially in a case arising under these circumstances; a case in which plaintiff voluntarily engaged in a years long, on-again-off-again, consensual relationship that never resulted in any tangible employment action. That is, not until plaintiff's own misbehavior and abuse of alcohol led to her eventual dismissal. When asked whether Hetland conditioned her employment on continuing to engage in a sexual relationship with him, plaintiff responded with an unequivocal "No." (Monaghan Depo. at 205:10-206:18.) Instead, plaintiff contends that she continued to engage in a sexual relationship with Hetland because she felt "emotionally obligated." (Id.) Plaintiff's own emotional proclivity to please her boss, however, without any concrete reason to believe that her job would be affected, is not sufficient to state a claim for quid pro quo harassment under either FEHA or Title VII.

Thus, defendant's motion for summary judgment as to plaintiff's quid pro quo sexual harassment claim under Title VII and FEHA is GRANTED.

B. Hostile Work Environment

Fefendant contends that plaintiff's claim hostile work environment "sexual harassment fail[s] because she admits being a voluntary participant in a longstanding sexual relationship with [Hetland] away from work." (Def.'s Mem. in Support of Mot. for Summ. J., filed Aug. 16, 2011, [Docket # 19], at 8:27-9:2.) Plaintiff counters that she "reluctantly" continued the relationship after the brief respite in the affair in the middle of 2008. More specifically, plaintiff contends that she only re-engaged in the affair with Hetland because she felt pressured to do so through Hetland's alleged emotional manipulation.

To establish a prima facie case for a violation of Title VII and FEHA based on a hostile work environment, plaintiff must demonstrate that the "workplace [was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted); Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 609 (1989). Sexual harassment includes "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the 'purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Miller, 36 Cal. 4th at 463 (quoting 29 C.F.R. § 1604.11(a)(3)). Moreover, "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986). Rather, "[t]he gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome.'" Id. (citations omitted). The determination of whether conduct was unwelcome "presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact." Id.

Supervisors with the authority to control the environment may be held personally liable for harassment in violation of FEHA if they tacitly approved of the actions or if they were aware of the harassment and failed to take action to prevent it. Matthews v. Superior Court, 34 Cal. App. 4th 598, 604 (1995). Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee's working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe when it enacted the FEHA. Our holding that the responsibility for such acts must be borne both by the offender as well as the employer who tolerates the offense is consistent with the Legislature's intent to provide effective remedies which will eliminate such discriminatory practices.

Id. at 605-06 (internal quotations omitted). Accordingly, where the harassment is committed by a supervisor, the employer is strictly liable. State Dep't of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1041 (2003).

Contrary to defendant's position, the voluntary nature of the relationship with Hetland is not sufficient reason to grant summary judgment on plaintiff's hostile work environment claim. The Supreme Court has specifically held that the mere fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986). Thus, the court finds defendant's voluntariness argument in the context of plaintiff's hostile work environment claim unpersuasive, and does not grant summary judgment on that basis.

In this case, the court cannot as a matter law, viewing the evidence in a light most favorable to the plaintiff, conclude that plaintiff was not subject to unwelcome sexual advances by Hetland. The evidence plaintiff submits creates a triable issue of fact as to whether Hetland's conduct amounted to "unwelcome sexual advances." Plaintiff presented evidence that after she ended the affair the first time, Hetland continued to make comments about their relationship that could be inferred as sexual advances. Specifically: Hetland continually told plaintiff that he did not get any intimacy at home; he told her that he missed their relationship;*fn8 when Hetland was diagnosed with cancer, he elected to not have surgery so that he could continue to have sex with her. (Monaghan Dep. at 194-195.) According to plaintiff, this conduct made her feel guilty and resulted in her re-engaging in the affair with Hetland out "of an obligation to him because he was unhappy." (Id.)

Whether this conduct amounts to a sexual advance and, more importantly, whether this conduct was unwelcome, constitutes a triable issue of fact that cannot be determined by this court as a matter of law. In this case, whether this conduct was unwelcome "presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact." Meritor, 477 U.S. at 68. Thus, defendant's motion for summary judgment as to plaintiff's claim for hostile work environment sexual harassment under Title VII and FEHA is DENIED.

2. Failure to Prevent Sexual Harassment

Defendant moves for summary judgment on plaintiff's claim against the Agency for failure to prevent harassment in violation of FEHA on the basis that plaintiff failed to complain of the harassment until after she was terminated.*fn9

It is an unlawful employment practice under FEHA "for an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring" in the workplace. Cal. Gov't Code § 12940(k). When a plaintiff seeks to recover damages based on a claim of failure to prevent harassment, she must show three essential elements: (1) plaintiff was subjected to discrimination, harassment or retaliation; (2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. Lelaind v. City and County of San Francisco, 576 F. Supp. 2d 1079, 1103(N.D. Cal. 2008) (citing California Civil Jury Instructions (BAJI) 12.11).

In this case, plaintiff's claim fails as a matter of law because the undisputed evidence demonstrates that not only did plaintiff fail to complain to the agency about harassment on the basis of sex, but no other person at the agency knew about the affair. Plaintiff alleges that she complained to the Agency's counsel that Hetland was yelling and belittling her; however, she admits that she never made any complaints regarding sexual harassment.*fn10 (UMF ¶ 50.) Moreover, plaintiff does not dispute that neither she nor Hetland ever told anyone at the agency, including any member of the board of directors, that her and Hetland engaged in a sexual relationship. (UMF ¶¶ 44-46.) Since no person at the agency knew of plaintiff's relationship with Hetland, and she never reported sexual harassment to any person at the agency, plaintiff cannot establish that the Agency failed to take reasonable steps to prevent sexual harassment under FEHA. Thus, defendant's motion for summary judgment as to plaintiff's claim for failure to prevent sexual harassment in GRANTED. ///

3. Retaliation

The Agency also moves for summary judgment on plaintiff's claims for retaliation under Title VII and FEHA, arguing that (1) plaintiff did not engage in protected activity, and (2) she cannot demonstrate a causal connection between any protected activity and her termination because no Agency official was aware of the relationship between plaintiff and Hetland. Plaintiff asserts that by rebuffing Hetland's overtures to engage in a sexual encounter at Lake Tahoe in August 2009, plaintiff opposed Hetland's allegedly unlawful discrimination prohibited under Title VII.

To state a prima facie retaliation claim under Title VII, a plaintiff must demonstrate "that (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision." Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1197 (9th Cir. 2003). Conduct constituting a "protected activity" includes filing a charge or complaint, testifying about an employer's alleged unlawful practices, and "engaging in other activity intended to oppose an employer's discriminatory practices." Id. (citing 42 U.S.C. § 2000e-3(a))(internal quotations omitted). The elements of a cause of action for retaliation under FEHA are identical. Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 n.4 (9th Cir. 1997) superceded by statute on other grounds as recognized in Leisek v. Brightwood Corp., 278 F.3d 895, 899 n.2 (9th Cir. 2002); see also Flait v. North American Watch Corp., 3 Cal. App. 4th 467, 476 (1992).

Protected activities generally include either "opposing an act of discrimination made unlawful by Title VII or participating in an investigation under Title VII." Hunt v. Nebraska Public Power Dist., 282 F.3d 1021 (8th Cir. 2002). "A plaintiff ordinarily can establish protected opposition activity by evidence that he or she complained to the employer about discriminatory action taken against plaintiff." George Chamberlin, 4 Causes of Action 2d. 331 (2011). Examples of protected activity that fall within the ambit of the "oppositional clause" include: filing a criminal complaint against an administrator; informally voicing complaints to a superior; circulating a petition protesting employer's discrimination; writing a letter to employee's immediate supervisor; and participating in a boycott or protest against employer. 45 Am. Jur. 2d Job Discrimination § 224 (2011).

Causation "may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) ("That an employer's actions were caused by an employee's engagement in protected activities may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision.") (internal quotations omitted). An employer's awareness of the protected activity is required to supply evidence of a causal link between the protected activity and the adverse action. See Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982).

In this case, plaintiff's claim fails as a matter of law because she has failed to present any credible evidence that she engaged in a protected activity. Plaintiff's contention that she opposed unlawful discrimination, and thus, engaged in a protected activity, merely by turning down Hetland's request to "get together" is without merit. As set forth above, opposition to unlawful discrimination is not simply turning down a sexual advance;*fn11 rather, the essence of opposing unlawful discrimination lies where an employee reports improper work-place conduct to a superior or governmental entity. Here, plaintiff never complained to anyone at the agency, including Hetland, about the alleged sexual harassment, nor to any person at the Equal Employment Opportunity Commission. (UMF ¶¶ 44-46.) Indeed, nobody at the agency even knew of plaintiff and Hetland's sexual engagement. (UMF ¶ 44.)

Cases of this nature necessarily turn on factual distinctions relating to management hierarchy. For example, if Hetland was plaintiff's sole recourse to complain of Hetland's own allegedly improper behavior and Hetland was solely responsible for decisions regarding plaintiff's continued employment, her claim based on retaliation would be clearly viable.

That, however, is simply not the case here. Not only did plaintiff, as a human resource employee, know that she had recourse to Hetland's superiors to seek redress outside of Hetland -- namely, the board or the agency's counsel -- but, she in fact complained to the agency's counsel reagrding Hetland's alleged non-sexual misconduct; that complaint, however, made no mention of any improper sexual misconduct. Plaintiff also admits that although she knew she could have filed a complaint with the equal employment opportunity commission or the California Department of Fair Employment and housing, she never did so. (UF ¶ 48.)

Moreover, this is not a case in which an employee is arbitrarily terminated without any rational justification. Indeed, plaintiff admits that she engaged in serious work-place misconduct. Specifically, plaintiff continually abused alcohol during work hours. Plaintiff's alcohol abuse caused her to pass out at her work desk as well as strike a curb with her vehicle outside of the Agency facilities.*fn12 Plaintiff admits that this conduct may constitute proper cause for termination. (UF ¶ 80.) The court finds that the serious nature of plaintiff's work place misconduct, combined with the fact that plaintiff, a human resources employee, never once complained to anyone whatsoever about Hetland's allegedly improper sexual harassment, is fatal to plaintiff's claim for retaliation.

Since plaintiff, by her own admission, did not engage in any protected activity, her claim for retaliation fails as a matter of law. Thus, defendant's motion for summary judgment as to plaintiff's claim for retaliation is GRANTED.

4. Breach of Contract

Defendant also moves for summary judgment as to plaintiff's breach of contract*fn13 claim on the grounds that she was an at-will employee.*fn14 Defendant's position rests entirely one sentence of the agreement: "Employee hereby acknowledges that she is an at-will employee and that she has engaged in disruptive and inappropriate conduct as an employee of [e]mployer." (Monaghan Decl., Ex. 1.) Plaintiff contends that by complying with the agreement's condition precedent -- paying for and completing alcohol rehabilitation -- defendant was bound to abide by its promise to not terminate plaintiff. Thus, plaintiff maintains, by terminating her days after she completed treatment, defendant breached the agreement.

California Labor Code § 2922 provides that "employment having no specified term, may be terminated at the will of either party on notice to the other." While § 2922 controls where an employer and employee do not reach an alternative agreement, it does not prevent the parties from settling on different terms, such as "an agreement that the employee will be terminated only for 'good cause' in the sense of a fair and honest cause or reason, regulated by good faith, as opposed to one that is trivial, capricious, unrelated to business needs or goals, or pretextual." Guz, 24 Cal. 4th at 336 (internal quotations and citations omitted). The "parties may define for themselves what cause or causes will permit an employee's termination and may specify the procedures under which termination shall occur." Id.

"Contract interpretation begins with the language of the written agreement." Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (citing Foley Co. v. United States, 11 F.3d 1032, 1034 (Fed. Cir. 1993)). Contract terms are to be given their ordinary meaning, and when the terms of the contract are clear, the intent of the parties must be ascertained from the contract itself. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1549 (9th Cir. 1990). However, a court may consider extrinsic evidence to construe an ambiguous written contract. Winet v. Price, 4 Cal. App. 4th 1159, 1165 (1992). "'A contract is ambiguous if reasonable people could find its terms susceptible to more than one interpretation.'" Tanadgusix Corp. v. Huber, 404 F.3d 1201, 1205 (9th Cir. 2005) (quoting Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1032 (9th Cir. 1989).

Based purely on the language of the agreement, the court cannot, as a matter of law, hold that plaintiff has no claim for breach of contract. Defendant attempts to marshal the language of the agreement by singling one phrase stating that plaintiff is an "at-will employee." An all-encompassing reading of the Agreement, however, paints a very different picture.

The Agreement provides, in relevant part, "Employer has decided to terminate Employee's employment, but will suspend the termination of employment on the following terms," specifying the requirement of alcohol rehabilitation treatment as a condition precedent to enforcement of the agreement. (Monaghan Decl., Ex.

1.) The portion of the agreement stating, "will suspend the termination of employment," is patently ambiguous -- it is not inconsistent with the alternative interpretations of either party. Specifically, this clause can be interpreted as entitling plaintiff to continued employment, as long as she completes alcohol rehabilitation and refrains from future improper conduct.*fn15 It can also be interpreted to hold plaintiff's termination in abeyance only for a period of time while she completed rehabilitation treatment.*fn16 As such, at this stage of the litigation, the court cannot conclude that the terms are clear on the face of the Agreement.

On a motion for summary judgment, where the court must view the allegations in the complaint in the light most favorable to the plaintiff, the court concludes that plaintiff has provided sufficient evidence to establish a plausible claim for breach of contract. Accordingly, defendant's motion to for summary judgment on this claim is DENIED.


For the foregoing reasons, defendant's motion for summary judgment is GRANTED in part and DENIED in part. Specifically:

1. Defendant's motion for summary judgment on plaintiff's claim for quid pro quo sexual harassment in violation of FEHA and Title VII is GRANTED.

2. Defendant's motion for summary judgment on plaintiff's claim for hostile work environment sexual harassment in violation of FEHA and Title VII is DENIED.

3. Defendant's motion for summary judgment on plaintiff's claim for failure to prevent sexual harassment in violation of FEHA is GRANTED.

4. Defendant's motion for summary judgment on plaintiff's claim for retaliation in violation of FEHA and Title VII is GRANTED.

5. Defendant's motion for summary judgment on plaintiff's claim for breach of contract is DENIED.


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