The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Cathy A. Monaghan ("Monaghan" or "Plaintiff") seeks redress for several federal and state law claims alleging that the El Dorado County Water Agency ("Agency") and individual Defendant William T. Hetland ("Hetland" or "Defendant") are liable for sexual harassment in violation of Title VII and the California Fair Employing and Housing Act ("FEHA"). Currently before the court is individual Defendant Hetland's motion for summary judgment or, in the alternative, summary adjudication.
Plaintiff opposes the motion. For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED in part.*fn1
On October 5, 2011, the court issued a memorandum and order granting in part and denying in part the Agency's motion for summary judgment (ECF No. 28). The facts relevant to the agency's motion are identical to the facts relevant to this motion.*fn3 The court recounted the relevant facts as follows:
Plaintiff Monaghan began working for [D]efendant Agency in May 2003, when she was hired as a full-time administrative assistant. ... [P]laintiff's immediate supervisor was [D]efendant, William T. Hetland ("Hetland"), the General Manager of the Agency.
After approximately one year of flirtation between
[P]laintiff and Hetland, [P]laintiff, a trained massage therapist, gave Hetland a massage, at the end of which she kissed him on the forehead. Plaintiff later gave Hetland another massage, which ended in the two engaging in a consensual sexual interlude.
Although both parties were married, Hetland and [P]laintiff proceeded to carry on a consensual sexual relationship. According to [P]laintiff'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. Indeed, according to [P]laintiff, the affair was completely mutual. Eventually, [P]laintiff decided to tell her husband about the affair. Afterward, [P]laintiff approached both her husband and Hetland with the proposition that the three of them engage in "three-way" sexual relations. Plaintiff, her husband, and Hetland, voluntarily engaged in a number of "three-way" sexual encounters. In October of 2007, [P]laintiff's husband asked her to end her relationship with Hetland. Although [P]laintiff did not want the relationship to end, she complied with her husband's wishes to end the affair. When [P]laintiff approached Hetland to end the relationship, he told [P]laintiff that "he understood, and he was going to say this once and only once, that he loved [her]."
For a number of months after the affair ended,
[P]laintiff and Hetland did not engage in any sexual activity. During this time, [P]laintiff and Hetland continued to send each other humorous emails with sexual undertones; according to [P]laintiff, this conduct was appropriate because they "were still friends, [they] weren't in an argumentative, combative relationship." Plaintiff testified that, after a couple of months, Hetland began complaining to [P]laintiff about a lack of intimacy with his wife, and told [P]laintiff that he missed their intimacy. According to [P]laintiff, this made her feel guilty, and eventually, [P]laintiff and Hetland resumed a flirtatious relationship. 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."
On a weekend in 2008, [P]laintiff and Hetland resumed a consensual sexual relationship at a Rancho Cordova hotel. According to [P]laintiff, 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." 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 [P]laintiff, she "felt that if emotionally [she] wasn't there for him that he could do away with [her]." Overall, Monaghan and Hetland had at least 12 more sexual encounters.
As stated above, during the course of the second affair, Monaghan began drinking heavily. In October of 2008, [P]laintiff voluntarily checked into an alcohol treatment program at Kaiser; however, in December of 2008, she began drinking again. Plaintiff admitted that, on several occasions, she was under the influence of alcohol at work. On one occasion, [P]laintiff "had some drinks at lunch" and "hit a curb going out of the parking lot." On June 8, 2009, [P]laintiff was arrested for driving under the influence of alcohol. Monaghan had to attend life skills courses as a provision of her punishment; she was permitted to leave work to attend those courses. On August 24, 2009,
[P]laintiff passed out at her desk after consuming too much alcohol. The situation culminated in August, 2009, when [P]laintiff was consuming alcohol from 7:00 a.m. until she fell asleep at night.
Plaintiff claims that she felt Hetland "was providing her alcohol and/or encouraging her to drink to keep her from reporting harassment." However, [P]laintiff, in her deposition, stated that Hetland never forced her drink alcohol. 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.
Plaintiff alleges that, in August of 2009, Hetland pressured her "to have a sexual encounter with him at Lake Tahoe." According to [P]laintiff's deposition, Hetland wanted to "get together" with [P]laintiff after a work meeting in Lake Tahoe. When [P]laintiff conveyed to Hetland that she preferred not to engage, "[h]e just sighed."
In late August 2009, [P]laintiff 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." Those terms required that [P]laintiff enter an alcohol rehabilitation treatment program and notify the Agency within three days of initial assessment, admission, or beginning treatment. 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."
In a later agreement, dated August 27, 2009,
[P]laintiff agreed to participate in a 28-day residential rehabilitation program offered by Duffy's Napa Valley from August 29, 2011, to September 27, 2009. The agreement stated that the Agency would like to meet with [P]laintiff on either September 28, 2009, or September 29, 2009, to receive her evaluation of the program. ... There is no dispute that [P]laintiff 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
[P]laintiff with a termination letter, signed by Hetland, on behalf of the agency. The letter stated the [P]laintiff's "'at-will' employment with the El Dorado County Water Agency is being terminated effective 5:00 p.m. on September 29, 2009." Plaintiff also signed an acknowledgment of notice that her "'at-will' employment status ... has changed by reason of Involuntary Discharge."
Monaghan never told Hetland that he was sexually harassing her. 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. Moreover, [P]laintiff never told any member of the Agency board that she had an affair with Hetland. 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. (Mem. & Order, [ECF No. 28] at 2:4-8:1) (internal quotations and footnotes omitted).
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 asserts claims against Hetland for: (1) sexual harassment in violation of California's Fair Employment and Housing Act ("FEHA"), California Gov't Code §§ 12900, ...