The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
United States District Court For the Northern District of California
Before the Court is Defendant Patrick R. Donahoe's motion for summary judgment, ECF No. 30.*fn1 Having considered the evidence, the parties' briefing, and argument, the Court GRANTS 17 in part and DENIES in part Defendant's motion for summary judgment for the reasons set forth 18 below.
This case arises out of alleged race and gender based discrimination and sexual harassment in the workplace. From 1982 until 2008, Plaintiff Carolina Medina, a 53 year old Hispanic woman, 22 was employed as a mail handler with the United States Postal Service ("USPS") at the San Jose Processing and Distribution Center ("P&DC"). Compl. 4; Scharf Decl. Ex. F, ECF No. 31, at 87.*fn2
Plaintiff alleges that from 2003 until 2008 she was subjected to sexual harassment from her male 3 supervisors and co-workers, which created a hostile work environment. Compl. 4. She further 4 alleges that since 2006, "management" at the San Jose P&DC failed to take corrective action. Id. 5
7 attached to the Declaration of James A. Scharf in Support of Motion for Summary Judgment, as 8
The factual record on this motion for summary judgment mostly consists of exhibits
Plaintiff did not attach any declarations or exhibits to her opposition. Defendant's exhibits include, 9 inter alia, the following: (1) the USPS Equal Employment Opportunity office's ("USPS EEO 10 office") Investigative Report, submitted September 24, 2008;*fn3 (2) affidavits submitted as part of the USPS EEO office's investigation, including an affidavit from Plaintiff; (3) Plaintiff's medical records attached to Plaintiff's USPS EEO affidavit; and (4) excerpts of Plaintiff's May 25, 2011 13 deposition in this federal court action. The USPS EEO office's Investigative Report and the 14 attached affidavits were part of the record in the proceedings before the USPS EEO Administrative Judge ("AJ") and the Equal Employment Opportunity Commission ("EEOC") on appeal, discussed 16 in Section I.B below. 17
The Court also considers the facts set forth in Plaintiff's summary judgment opposition of 18 which Plaintiff has personal knowledge. The Court deems Plaintiff's opposition to be a sworn 19 declaration because it includes the following statement: "I claim with all truth and integrity that the 20 documents that I have hereby submitted are factual and truthful," followed by Plaintiff's electronic 21 signature. Opp'n 12. 22 23 Scharf Declaration. The Court may not consider this statement because it was neither sworn nor 4 signed under the penalty of perjury. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 5 2002) ("A trial court can only consider admissible evidence in ruling on a motion for summary 6 judgment."). A chronological summary of the relevant facts is set forth below. 7
8 harassed by her then-supervisor Manny Navarro from 2000 to 2003. Opp'n 2. Supervisor Navarro 9 was "constantly asking [her] out," despite Plaintiff's repeated protestations to stop. Id. Supervisor 10
Plaintiff's shoulders, and comment on "how well [Plaintiff] fit [her] pants." Id. at 3.
On August 20, 2003, Plaintiff complained of Supervisor Navarro's sexual harassment to the USPS EEO office, alleging ongoing harassment since 2000. Scharf Decl. Ex. O, ECF No. 32, at 14
The Court does not, however, consider the facts set forth in Plaintiff's June 8, 2011 Case
Management Conference Statement, ECF No. 27, even though it is attached as Exhibit V to the 3
2003 Harassment. According to Plaintiff's summary judgment opposition, Plaintiff was
Navarro would touch Plaintiff's hair "with his hands pretending to brush it with his fingers," caress 47, 51. Plaintiff contacted the USPS EEO office one day after Supervisor Navarro had taken disciplinary action against Plaintiff for unauthorized overtime. Id. at 51. Supervisor Navarro was 16 of the opinion that "these claims of sexual harassment surfaced only after [Supervisor Navarro] 17 issued discipline against [Plaintiff]." Id. at 47. Plaintiff, on the other hand, contends that she 18 waited three years, from 2000 to 2003, to report the harassment because she was scared that 19
On October 10, 2003, the Manager of Distribution Operations ("MDO") Jung Kim, who
21 conducted the investigation into Plaintiff's sexual harassment complaint against Supervisor 22
Navarro for the USPS EEO, concluded that there was insufficient evidence to proceed further with 23 the investigation. Scharf Decl. Ex. O, at 47-48. Plaintiff, on the other hand, contends that she 24
"ended up dropping the case" because, among other reasons, none of the four witnesses to the 25 harassment were willing to come forward because they were afraid of retaliation. Opp'n at 4, 7. 26
Plaintiff further contends that MDO Kim was telling Plaintiff that Supervisor Navarro "really 27 28 needed [this] job" and that MDO Kim was sure Supervisor Navarro "didn't mean any of it." Id. at 4. 3
Plaintiff's summary judgment opposition states that in October 2003, her other supervisor,
Valentine Gomez, also harassed Plaintiff by slapping her behind. See Opp'n 4. Plaintiff did not 5 report this incident "nor write [Supervisor Gomez] up for sexual harassment at any time," because 6 she was scared and had no witnesses. See id. Thus, allegations about this incident do not appear in 7 the USPS EEO office's Investigative Report or the attached affidavits, and were therefore not 8 before the USPS EEO AJ or the EEOC on appeal. 9
menopausal women work here." Scharf Decl. Ex. F, at 53. Plaintiff was the only woman working 13 in the CC room at the time. Id. Defendant does not dispute that this incident occurred. According 14 to Plaintiff, while Plaintiff was out of the room getting Supervisor Gomez's attention, Mr. Baptista
took the sign down. Id. at 54. Supervisor Gomez's affidavit from the USPS EEO office's 16 investigation dated August 28, 2008, on the other hand, states that he looked for the sign, but did 17 not find it. Scharf Decl. Ex. Eat 37. Defendant's counsel admitted at the summary judgment 18 hearing that there was no further remedial action in response to this incident. Hr'g Tr. 9:14-24. 19
Medina Dep. 45:7-15. Plaintiff testified that she reported this incident to Supervisor Gomez, who 22 allegedly responded that Mr. Baptista was probably "just playing." Id. at 45:22-25. Allegations 23 about this incident do not appear in the USPS EEO office's Investigative Report or the attached 24 affidavits, and were therefore not before the USPS EEO AJ or the EEOC on appeal. 25
Plaintiff's affidavit from the USPS EEO office's investigation dated August 13, 2008
(hereinafter "Plaintiff's USPS EEO Affidavit"), states that sometime in 2003 Plaintiff's co-worker
Mike Baptista taped a sign up in the calling conveying room ("CC room") that read "pre-
In Plaintiff's May 25, 2011 deposition, Plaintiff testified that sometime in 2003, Mr.
Baptista put a plastic sleeve between his legs and pretended to masturbate in Plaintiff's presence. 21
Plaintiff also testified in her May 25, 2011 deposition that another time in 2003, Mr.
Baptista came into the CC room where Plaintiff was working, took an umbrella between his legs 27 and pretended to masturbate while calling Plaintiff's name and asking her "how she like[d] this 28 one." Id. at 46:14-47:7. Plaintiff testified that she reported this incident to Supervisor Gomez and 2
MDO Kim, both of whom told Plaintiff to "let it go." Id. at 47:17-48:7. Allegations of this 3 incident also appear in Plaintiff's medical records, which are attached to her USPS EEO affidavit, 4 see Scharf Decl. Ex. F, at 90, and were therefore before the USPS EEO AJ and the EEOC on 5 appeal. 6
According to Plaintiff's USPS EEO Affidavit and the attached medical records, on December 5 or 15, 2003, Plaintiff was invited to attend a meeting and become part of the joint 8 steering committee. Scharf Decl. Ex. F., at 53, 95. Supervisor Gomez was on the committee and 9 wanted Mr. Baptista on the committee. Id. at 53. Mr. Baptista was angry because Plaintiff, as a 10 woman, was chosen ahead of him, so he escalated the harassment, which made Plaintiff's life
miserable and forced her to step down from the Committee. Id.
2004 Harassment. According to Plaintiff's medical records attached to her USPS EEO
Affidavit, in March 2004, Plaintiff complained to her doctors at Kaiser Permanente about 14 workplace harassment on several occasions. See Scharf Decl. Ex. F, at 81-97 (documenting office
visits on March 5, 12, 16, and 22, and July 21, 2004). 16
On March 5, 2004, Plaintiff reported a "stressful working environment" and feeling
"anxious and depressed" due to "being harassed by her supervisor and co-workers." Id. at 81-82. 18
That day, Dr. Wachs wrote a verification of treatment ("VOT") authorizing Plaintiff not to work in 19 the CC room from March 5, 2004, through March 15, 2004. Id. 20
21 ground that Dr. Wachs's instruction had been too vague. Id. at 84. That day, Plaintiff returned to 22
Kaiser and saw Dr. Azer, who authorized "temporary total disability through [March 16, 2004]." 23
On March 16, 2004, Plaintiff returned to Kaiser and saw a clinical psychologist, Dr. Katz.
On March 12, 2004, Plaintiff's supervisor declined to move her from the CC room on the
Id. at 87-88. Plaintiff complained about anxiety attacks and reported that her physical symptoms 26 began in December 2003, in response to the harassment she received from Supervisor Gomez in 27 retaliation for Plaintiff's being invited to sit on the joint steering committee. See Scharf Decl. Ex. 28
F., ECF No. 31, at 53, 87, 95. Plaintiff also complained to Dr. Katz of harassment from Supervisor 2
Navarro, reporting "little innuendoes, caressing & touching . . . after ask[ing] him to stop." Id. at 3
Disorder with Mixed Anxiety and Depressed Mood." Id. 87. Dr. Katz recommended that Plaintiff 5 return to work, but stated that Plaintiff "would benefit from a change of supervisor" and that 6
Defendant does not deny that in 2004, Plaintiff's male co-workers, Mike Baptista, Mark
Combie, and Al Noseworthy, would turn Plaintiff's mail conveyor belt on and off. Scharf Decl. 9
95. Dr. Katz diagnosed Plaintiff with "Panic Disorder Without Agoraphobia" and "Adjustment 4
"[o]ptimally, she should not work with, or around, Supervisor Gomez." Id. at 88. 7
Ex. E, at 36. According to Plaintiff, these three male co-workers did this to sabotage Plaintiff's 10 work. Id. Supervisor Gomez and MDO Kim testified that Plaintiff's three male co-workers did so
as a safety precaution, because Plaintiff had a "tendency to overload belt system in CC room,"
sending mail to the wrong system. Scharf Decl. Ex. E, at 36; see also Ex. H, at 4. 13
14 and saw another psychologist Dr. Afrakhteh. Scharf Decl. Ex. F,at 89. Plaintiff complained to Dr.
According to Plaintiff's medical records, on March 22, 2004, Plaintiff returned to Kaiser
Afrakhteh that her "male co-workers have been making sexual innuendoes (e.g. taking a folded, 16 small umbrella, putting it in between their legs, and making sexual gestures/comments)." Id. at 90; 17 see also Medina Dep. 46:14-23 (naming Mr. Baptista as a participant in this incident). Plaintiff 18 also complained that her male co-workers lied to her supervisors and blamed Plaintiff for 19 workplace inefficiencies. Scharf Decl. Ex. F,at 90; see also id. at 52, 55. Dr. Afrakhteh noted that 20
Plaintiff "would benefit from working in a different physical location." Id. at 90. Dr. Afrakhteh 22 ordered that Plaintiff be given modified duty from March 23, 2004, until April 6, 2004. Id. at 89. 23
Plaintiff "has been experiencing a high level of stress at her current job assignment" and stated that 21
On July 21, 2004, Plaintiff returned to Kaiser and saw Dr. Katz again. Id. at 96-97.
Plaintiff stated that she had been fine, but that her symptoms returned "after being transferred back 25 to environment where alleged harassment has taken place." Id. at 96. Plaintiff reported symptoms 26 of depression, crying, hypersomnia, lack of appetite, hopelessness, and nausea. Id. Dr. Katz again 27 28
ordered modified work duties and stated that Plaintiff "would benefit from working in a different 2 environment and away from the individuals who have allegedly abused/harassed her." Id. at 97. 3
In her May 25, 2011 deposition, Plaintiff testified for the first time that sometime in 2004
4 she was molested and raped by an unnamed co-worker, but that she did not report this incident to 5 management. Medina Dep. 27:1-6, 28:4. Plaintiff explained that she did not tell her supervisors 6 because "[a]t that point [she] was having problems with [her] own . . . immediate supervisor 7 touching [her] inappropriately." Id. at 28:22-24. Allegations about this incident do not appear in 8 the USPS EEO office's Investigative Report or the attached affidavits, and were therefore not 9 before the USPS EEO AJ or the EEOC on appeal. There is also no evidence that Plaintiff's 10 supervisors were made aware of this incident.
2005. According to Plaintiff's Responses to Interrogatories in the USPS EEO case, dated December 30, 2008, in 2005, Plaintiff was assigned to work in the back dock in order to be 13 separated from Mr. Baptista. Scharf Decl. Ex. P, ECF No. 32, at 64. She "remained in this 14 assignment for approximately one year and experienced no problems while separated from Mr. Baptista." Id. 16
2006 Harassment. According to Plaintiff's USPS EEO Affidavit, on January 28, 2006,
Plaintiff complained that Mr. Baptista attempted to enter Plaintiff's car without authorization and 18 requested an investigation. Scharf Decl. Ex. F,at 55. According to MDO Kim's Affidavit from 19 the USPS EEO office's investigation, MDO Kim conducted an investigation at Plaintiff's request 20 but found that there was insufficient evidence to continue the investigation. See Scharf Decl. Ex. 21
H., at 5. At her May 25, 2011 deposition, Plaintiff admitted that she did not consider this incident 22 to be sexual harassment, but Plaintiff testified that management's failure to follow up with an 23 investigation was another form of harassment and discrimination. Medina Dep. 99:4-13. 24
25 unzipped his pants, exposed himself, and asked her to perform oral sex. Id. at 42:9-43:6. 26
Allegations about this incident do not appear in the USPS EEO office's Investigative Report or the 27 28
In her May 25, 2011 deposition, Plaintiff testified that sometime in 2006, Mr. Baptista
attached affidavits, and were therefore not before the USPS EEO AJ or the EEOC on appeal. 2
There is also no evidence that Plaintiff's supervisors were made aware of this incident. 3
4 harassment from Mr. Baptista in 2008. Scharf Decl. Ex. F., at 56-57. Supervisor Hideo Sato 5 became Plaintiff's supervisor in late 2007 or early 2008. Supervisor Sato's affidavit from the 6
USPS EEO office's investigation states that Supervisor Sato recalls Plaintiff's complaining about 7 being harassed and feeling threatened by Mr. Baptista. Scharf Decl. Ex. B, at 18-19. Supervisor 8
According to Plaintiff's USPS EEO Affidavit, on February 15, 2008, Mr. Baptista drove his
10 forklift past Plaintiff, made eye contact with her, and then pointed two of his fingers at his eyes and
then back at plaintiff in a threatening way. Scharf Decl. Ex. F, at 49-50. In her May 25, 2011
deposition, Plaintiff elaborated for the first time that Mr. Baptista said to Plaintiff, "I want you 13 sexually" and mouthed the words "I want to F you" while he drove his forklift past Plaintiff. Id. at 14
EEO AJ or the EEOC on appeal. There is also no evidence that Plaintiff's supervisors were made 17 aware of these additional details. 18
On February 21, 2008, Mr. Baptista and Plaintiff had a confrontation, and the record is
19 unclear as to exactly what happened. According to Mr. Baptista's affidavit from the USPS EEO 20 office's investigation, after 11:30 a.m. on February 21, 2008, he heard that Plaintiff was spreading 21 rumors that he was bi-sexual. Scharf Decl. Ex. C, at 23. Mr. Baptista was upset, so he drove his 22 mule past Plaintiff and told her, "you need to shut your mouth." Id. According to Supervisor 23
Mr. Baptista's outburst, Supervisor Gomez admonished Mr. Baptista "on the spot" and told him 25 that he "should not be doing that" behavior. Scharf Decl. Ex. E, at 37. Mr. Baptista claims, in his 26 affidavit from the USPS EEO office's investigation, that Mr. Baptista told Supervisor Gomez in 27
2008 Harassment. Plaintiff's USPS EEO Affidavit states that she suffered additional
Sato recalls that thorough investigations were conducted each time that Plaintiff complained. Id. 9
106:2-15. These additional details from Plaintiff's deposition do not appear in the USPS EEO
office's Investigative Report or the attached affidavits, and were therefore not before the USPS 16
Gomez's affidavit from the USPS EEO office's investigation, after Supervisor Gomez witnessed 24
2005 or 2006 that Plaintiff was spreading rumors about Mr. Baptista's sexuality and requested Mr. 28
Gomez to verify with co-workers if it was true, but "no investigation was done." Scharf Decl. Ex. 2
C, at 25. Supervisor Sato's affidavit from the USPS EEO office's investigation also states that Mr. 3
According to Plaintiff's USPS EEO Affidavit, at 11:40 a.m. on February 21, 2008, Mr.
Baptista drove his forklift into Plaintiff's workspace and charged at Plaintiff as she was preparing 6 to load mail into a wire basket, yelling "You Bitch. You're a Bitch. Shut Up. You're a bitch and 7 you better shut up or else." Scharf Decl. Ex. F, at 50. Plaintiff claims she barely had time to jump 8 out of the way. Id. After Mr. Baptista left, Plaintiff looked for Supervisor Sato, but could not find 9 him. Id. Mr. Baptista returned on his forklift at 11:47 a.m. and again attempted to hit Plaintiff with 10 the forklift. Id. Mr. Baptista was upset because he thought Plaintiff had told Teresa Lee that Mr. Baptista filed complaints about Plaintiff. Scharf Decl. Ex. B, at 19.
Baptista was gay. See id. Again, Plaintiff looked for Supervisor Sato, but he was not around. Id.
at 51. At 11:57 a.m. Plaintiff walked by Mr. Baptista, who was talking with Supervisor Gomez. 13
Id. Mr. Baptista yelled, "You bitch, you bitch. Shut up." Id. According to Plaintiff, Mr. Gomez 14 never tried to stop Mr. Baptista's rant. Id. Plaintiff states that on February 22, 2008, Mr. Baptista
again tried to drive his forklift into Plaintiff's work space and threatened, "Carolina, you better 16 watch yourself. Accidents happen all the time." Id. at 52. 17
According to Plaintiff's USPS EEO Affidavit, Plaintiff approached her union
18 representative, Irene Arquero, to file a grievance against Teresa Lee for starting rumors and 19 creating a hostile and abusive work environment. Id. at 57. Plaintiff claims she gave Ms. Arquero 20 a statement recounting the events of February 15 and 21, 2008. Id. Because Ms. Arquero was 21 stepping down as union officer, Plaintiff approached Nick Mandel to file a grievance on her behalf 22 and gave him a copy of the statement. Id. at 59. On February 26, 2008, Plaintiff faxed her 23 statement to Senior Plant Manager Balwant Grewel and called the postal inspector. Id. at 60. It is 24
Plaintiff's understanding that "an investigation was conducted regarding [her] concern of being 25 harassed, stalked, intimidated, and threatened by a co-worker." Id. 26
27 and Postal Inspector Woo met. Id. at 61. Inspector Woo "said he would continue his investigation 28
by speaking with Mike Baptista," and promised "he would speak to Joe Anguiano and let him 2 know it would be beneficial at this time for Mike Baptista and [Plaintiff] to be separated." Id. 3
According to Inspector Woo's affidavit from the USPS EEO office's investigation, Inspector Woo 4 spoke with Plaintiff and Mr. Baptista that same day and told them to stay away from each other and 5 to report any problems to their immediate supervisors. Scharf Decl. Ex. G, at 117. Plaintiff 6 contends, in her USPS EEO Affidavit, that the next day, on February 29, 2008, nothing had 7 changed. Scharf Decl. Ex. F, at 61. According to Inspector Woo's affidavit from the USPS EEO 8 office's investigation, Plaintiff called Inspector Woo on February 29 and March 1, 2008. Scharf 9
Decl. Ex. G, at 117. Plaintiff told Inspector Woo that Mr. Baptista was still harassing her and that 10 management had not told Mr. Baptista to stay away ...