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 ...