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Alma Burrell, Vickye Hayter, Margaret Headd v. County of Santa Clara

May 17, 2013

ALMA BURRELL, VICKYE HAYTER, MARGARET HEADD,
PLAINTIFFS,
v.
COUNTY OF SANTA CLARA, DAN PEDDYCORD, RAE WEDEL,
MARTY FENSTERSHEIB AND DOES 1 THROUGH 50, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs Alma Burrell ("Burrell"), Vickye Hayter ("Hayter"), and Margaret Headd ("Headd") (collectively, "Plaintiffs"), bring suit against their employer, County of Santa Clara 22 ("the County"), and three County employees, Dan Peddycord, Rae Wedel, and Marty Fenstersheib, 23 alleging: (1) retaliation in violation of California's Fair Employment and Housing Act ("FEHA"), 24 California Government Code § 12940(h);*fn1 (2) failure to protect from discrimination under FEHA, California Government Code § 12940(k); (3) discrimination based on disparate treatment in 2 violation of California Government Code § 12940(a) (claims 3, 4, and 5); (4) discrimination based 3 on disparate impact in violation of California Government Code § 12900 et seq. (claims 6, 7, and 4 8); and (5) retaliation for exercising free speech rights, as well as negligent hiring, training, and 5 supervision, in violation of 42 U.S.C. § 1983 (claims 9 and 10).*fn2

("April 4 hearing"). Having considered the parties' submissions, the parties' oral arguments, and 9 the relevant law, the Court GRANTS in part and DENIES in part Defendants' Motion for 10 13 amended on December 15, 2011, ECF No. 6 ("Amended Complaint" or "AC"). On February 3, 14

On January 24, 2013, Defendants filed the instant Motion for Summary Judgment, ECF No. 32 ("Mot."), and a Motion to Sever Plaintiff Headd, ECF No. 31 ("Mot. to Sever"). On January 17

Presently before the Court are Defendants' Motion for Summary Judgment and Defendants' Motion to Sever Plaintiff Headd.*fn3 The Court held a hearing on these motions on April 4, 2013 8 Summary Judgment. The Court DENIES Defendants' Motion to Sever as moot.

I. PROCEDURAL HISTORY

Plaintiffs filed their first Complaint on September 14, 2011, ECF No. 1, which they then 2012, Defendants answered the Amended Complaint. ECF No. 13 ("Answer"). 30, 2013, Plaintiffs filed an Ex Parte Motion to Extend Time from February 7, 2013, to February 14, 2013, to file oppositions to the Motion for Summary Judgment and Motion to Sever. ECF No. 42. The Court denied Plaintiffs' Ex Parte Motion to Extend Time. ECF No. 46.*fn4 On February 7, 3 ("Opp'n"). On February 11, 2013, Plaintiffs filed an "Amended Opposition," without an 5 accompanying motion or any form of explanation. See ECF No. 57. On February 14, 2013, 6 Defendants filed their Reply, in which they also moved to strike Plaintiffs' Amended Opposition as 7 untimely. ECF No. 59 ("Reply"), at n.1. Due to the Court's prior denial of an extension of time, 8 and the lack of any explanation accompanying Plaintiffs' Amended Opposition, the Court 9 After the April 4 hearing on these motions, on April 16, 2013, Plaintiffs submitted a declaration and attached document that Plaintiffs stated was erroneously excluded from the exhibits accompanying their Opposition to Defendants' Motion for Summary Judgment. ECF No. 75.

2013, Plaintiffs filed an Opposition to Defendants' Motion for Summary Judgment. ECF No. 50 4 GRANTS Defendants' Motion to Strike Plaintiffs' Amended Opposition. 10

The Court issued an Order stating its rulings on Defendants' Motion for Summary Judgment and Motion to Sever on April 30, 2013, ECF No. 98. The Court stated its reasons for its 15 rulings as to Plaintiff Burrell at the pre-trial conference on May 2, 2013, ECF No. 132.

Rule 7-3(a), as Plaintiffs did not include the evidentiary objections within their 30-page 20 Opposition. Instead, Plaintiffs raised their evidentiary objections in a separate two-page document. 21

But see Civil L. R. 7-3(a) ("Any evidentiary and procedural objections to the motion must be 22 contained within the brief or memorandum."). Accordingly, the Court OVERRULES Plaintiffs' 23 evidentiary objections for failure to comply with Civil Local Rule 7-3(a).

Court's schedule could not accommodate an extension of time as it would interfere with 28 preparation for the upcoming trial.

II. EVIDENTIARY OBJECTIONS

Both parties filed objections to the evidence submitted in relation to the Motion for Summary Judgment. However, Plaintiffs' evidentiary objections fail to comply with Civil Local 19

Hayter, and Margaret Headd, as well as four other accompanying declarations submitted as 4 exhibits supporting Plaintiffs' Opposition. To the extent that the Court relies on this disputed 5 evidence, the Court addresses the evidentiary objections below. The Court does not rely on the 6 remaining evidence and thus need not reach the remaining objections. However, the Court 7

Plaintiffs' declarations that make legal conclusions regarding which issues are "triable." See, e.g., 9

Defendants properly submitted evidentiary objections in their Reply. See ECF No. 59.

Defendants object to significant portions of the declarations of Plaintiffs Alma Burrell, Vickye 3

SUSTAINS Defendants' objections under Fed. R. Evid. 402 and 602 to the repeated statements in 8

Decl. of Alma Burrell ("Burrell Decl."), ECF No. 53, ¶ 11 ("There is a triable issue of fact as to 10 whether I was discriminated against on the basis of race and gender[.]"); Decl. of Vickye Hayter

("Hayter Decl."), ECF No. 54, ¶ 9 ("There is a triable issue of fact as to whether my race was a

motivating factor in the County's decision to pay me for only seventy (70) day [sic] . . ."); Decl. of 13

Margaret Headd ("Headd Decl."), ECF No. 55, ¶ 19 ("There is a triable issue of fact as to whether 14 the County's business reason for denying me a promotion, reinstatement to my former position, or 15 hiring me into a new position is false."). 16

III. FACTUAL BACKGROUND

Plaintiffs Alma Burrell, Vickye Hayter, and Margaret Headd are three female, African

American employees in the Santa Clara County Public Health Department ("PHD"). Each Plaintiff 19 alleges employment discrimination by the County, though based on different factual circumstances. 20

22 degree in Public Health, started working for the County approximately fifteen years ago. See 23

Alma Burrell ("Burrell Dep."), at 16:20-22. Burrell's current position is Health Care Program 25

Health Education Specialist at the Black Infant Health Program ("BIH"), and then as a Program 27

A. Alma Burrell

Alma Burrell, who holds a Bachelors of Science degree in Health Science and aMasters

Burrell Decl. ¶ 4; see also Decl. of Melissa Kiniyalocts ("MK Decl."), ECF No. 33, Ex. A, Dep. of 24

Manager II ("HCPM II"). Burrell Decl. ¶ 2. Prior to working as HCPM II, Burrell worked as a 26

Manager I. See Burrell Dep. 21:1-8. 28

3 that resulted in the reclassification of many employees. Burrell Dep. at 27:6-19; Decl. of Joanne 4

American employees as Senior Health Care Program Managers ("SrHCPM"), a higher level than 6

Burrell asked her manager, Dolores Alvarado, about the criteria that were used to determine 8 the reclassifications. See Burrell Dep. at 30:6-31:11; 34:11-17. Alvarado explained that the 9 classification "was based on complexity of your job, span of control, and . . . the number of staff or 10 type of staff." Burrell Dep. at 30:16-20. Burrell did not think that the reclassification was fair, however, because there were other employees promoted to SrHCPM positions who "had less span

of control and managed fewer or no employees" than Burrell. Burrell Decl. ¶ 4; Burrell Dep. 13

At some point thereafter, Burrell asked Alvarado about the prospects for getting promoted

15 to a SrHCPM position. Burrell Dep. 57:15-16. According to Burrell, Alvarado responded by 16 telling Burrell that she "needed to be patient" and that "other people [we]re involved in making 17 those decisions as well." Id. at 57:18-20. Specifically, PHD Administrative Services Manager, 18

Rae Wedel, allegedly said that Burrell "had not paid [her] dues" and that she was "moving up too 19 fast." Id. at 58:1-9. Burrell asked Alvarado if the reason that she was not getting promoted to 20

SrHCPM was because of her race. Alvarado responded by saying, "on [Alvarado's] part, no." Id. 21 at 59:9-10. Burrell then asked, "What about Rae? . . . D[oes] Rae have a problem with my race?" 22

Id. at 59:10-11. Alvarado allegedly responded by saying, "I hope not. I hope that is not . . . it." 23

Burrell complained about the results of the reclassification study to her union, but her union

25 representative said that he was not going to file a grievance because of a promise he made to the 26

Board of Supervisors. Id. at 36:22-39:23. Burrell's union representative did, however, organize a 27 meeting with Burrell and her supervisors to discuss the subject. Id. at 36:22-39:23. According to

1. 2002 Reassignment

In 2002,Burrell's job title changed from Program Manager I to HCPM II following a study

Cox ("Cox Decl."), ECF No. 36, ¶ 5. At that time, the County reclassified other, non-African 5

HCPM II. See Burrell Decl. ¶ 4; Burrell Dep. 30:23-31:11. 7

30:23-31:11. 14

Id. at 59:12-13. 24

Burrell, the meeting ended without resolution. Id. at 39:23. Burrell subsequently formed the 2 opinion that her reclassification was due to her race. Id. at 34:11-35:10. *fn5

2. 2008 Appointment

Around 2006, Burrell contends that she and Alvarado discussed Burrell's interest in a

SrHCPM position that included responsibility over the HIV/AIDS Program. Alvarado allegedly 6 started preparing Burrell for this position, which included sending Burrell to two conferences about 7

77:1. However, on January 28, 2008, PHD employee "J.M.," a European-American, was 9 administratively transferred into the position when his SrHCPM position was deleted due to budget 10 cuts. Id. at 71:9-20; 72:9-19; Cox Decl. ¶ 6. According to Defendants, J.M. was entitled to the

administrative transfer under the County's labor agreement with the union and its Merit System

Rules. Cox Decl. ¶ 6. 13

In July of 2008, at Alvarado's suggestion, Burrell submitted a "Classification Review" *fn6

request to Alvarado, asking that Burrell's position of HCPM II be reviewed to determine if the 16 appropriate classification for her responsibilities was a SrHCPM. Cox. Decl. ¶ 7. Alvarado 17 reviewed and signed the form and forwarded it to the County's Employee Services Agency 18

("Alvarado Dep.") at 116:12-17; Cox. Decl. ¶ 7. After Burrell's request was denied, she and her 20 union representative met with Senior Human Resources Analyst, Christine Goodson, to discuss the 21 denial on October 16, 2008. Burrell Dep. at 94:21-95:6; 97:14-98:11; Decl. of Christine Goodson 22

("Goodson Decl."), ECF No. 38, ¶¶ 3-4. Following the meeting, Burrell asked Goodson to provide 23 a written explanation of the reclassification denial. Goodson Decl. ¶ 5. On November 3, 2008, 24

HIV/AIDS and having Burrell tell her staff about the upcoming transfer. See Burrell Dep. at 74:3-8

12

3. 2008 Application for Reclassification

14

15

("ESA") for processing. See Burrell Dep. at 93:6-7; MK Decl., Ex. E, Dep. of Dolores Alvarado 19

Goodson provided Burrell a written response in which Goodson stated that Burrell was properly 2 classified based on her breadth of responsibility, independent judgment, program knowledge, 3 supervision exercised, and supervision received. Id. ¶ 6. 4

Burrell believes that the denial of her reclassification was based on her race. See Burrell

Dep. at 103:2-11. She alleges that Goodson did not conduct any investigation into the position 6 before denying Burrell's request, and that Goodson's stated reasons for the denial were erroneous. 7

Burrell did not supervise other managers, and that a SrHCPM would necessarily serve on an 9 146:1-147:25); Burrell Decl. ¶¶ 25, 31.

Specifically, Burrell states that Goodson based her Classification Report on the false assertions that 8

Executive team. See Opp'n at 4 (citing MK Decl., Ex. D, Dep. of Rae Wedel ("Wedel Dep.") at 10

13 in applying for "reallocation"*fn7 from a Public Health Nurse ("PHN") II to a PHN III. Burrell Dep. 14 at 211:10-15; MK Decl., Ex. B, Dep. of Vickye Hayter ("Hayter Dep.") at 115:22-25. Burrell 15 alleges that Alvarado warned Burrell that she would be looked upon unfavorably if she continued 16 to support Hayter's request for reclassification. Burrell Dep. at 219:14-220:3. 17

18

Burrell's support of Hayter's application for reclassification. Burrell is inconsistent as to whether 20 the removal of responsibility occurred in 2008 or 2009. Compare Burrell Dep. at 126:7-8; 128:15-21

(declaring that Alvarado removed these programs on July 16, 2008, while Burrell's own 23

4. Burrell's Support of Hayter's Application for Reallocation In 2007 and 2008, Burrell supported Hayter, one of the women Burrell supervised in BIH, According to Burrell, Alvarado then removed Burrell's responsibility over the Maternal Child and Adolescent Health ("MCAH") program, as well as another program, in retaliation for 19 130:3 (citing 2009 as the year that Alvarado removed these programs), with Burrell Decl. at ¶38 application for reclassification was pending). Burrell also alleges that the removal of these 2 programs interfered with her request to be reclassified as a SrHCPM. Burrell Decl. ¶ 38.

5 working "out of class" in a SrHCPM position held by "D.F.," who was out of the office on medical 6 leave. See Cox Decl. ¶ 8. 7 In February of 2010, Burrell met with her new manager, Charis Subil, to discuss a plan 8 created by Burrell to get promoted to SrHCPM. Burrell Dep. at 137:9-20. Subil allegedly thought 9 Peddycord. Burrell Dep. 138:6-9. Subil allegedly told Burrell that she thought Burrell should be promoted. Burrell Dep. 147:2-3. In March of 2010, Burrell met with Peddycord to discuss Burrell's promotion into a SrHCPM "code." Burrell Decl. ¶ 45. Burrell alleges that Peddycord 13 was initially enthusiastic about Burrell's proposal during the March 2010 meeting, and said that he 14 would support any decision made by Subil. Id.; Burrell Dep. at 146:11-17. 15 On April 5, 2010, as part of the PHD Fiscal Year 2011 Budget, the County permanently 16 transferred C.M. into D.F.'s SrHCPM position, and deleted C.M.'s former HCPM II position. See 17 In September of 2010, Burrell met with Peddycord and Subil to discuss Burrell's request to 19 be made a SrHCPM. Burrell Dep. at 147:17-149:12. Burrell contends that Peddycord told her she 20 would not be promoted because Burrell had not participated in H1N1 activities. Id. at 148:15-19. 21 Burrell says that she told Peddycord that she was on medical leave for three or four weeks and, 22 when she returned, Alvarado prohibited her from participating in different H1N1 outreach groups. 23 SrHCPM code that was previously held by PHD employee, D.F. Id. at 158:15-21. Burrell 25 contends that Peddycord said he would get back to her in two weeks, but never did. Id. at 160:23-26

5. 2010 Denial of Promotion

In October of 2009, "C.M.," another PHD employee also classified as a HCPM II, began Burrell's proposal was "a good idea," and that she would take it to the new PHD Director, Dan 10 Cox Decl. ¶ 6. 18 Id. at 149:6-12; 152:5-18. Burrell further alleges that she expressed interest at that meeting in a 24 County alleges that there was no requirement that the County post the SrHCPM position, accept 4 applications for the position, or interview candidates. Cox. Decl. ¶ 8. 5

In October of 2010, Burrell learned that C.M. had been promoted from HCPM II to the SrHCPM position previously held by D.F. Burrell Dep. at 166:2-167:13; Cox. Decl. ¶ 8. The 3 6. 2010 Department of Fair Employment and Housing Complaint Burrell filed a complaint alleging discrimination based on race with the Department of Fair Employment and Housing ("DFEH") on October 26, 2010, based on the September 2010 denial of 8 her request for a promotion. MK Decl. Ex. G. On May 27, 2011, the DFEH issued Burrell a right-9 to-sue notice. Id. 10 Vickie Hayter is an African American woman who holds a Bachelors of Nursing degree and a Masters of Science degree in Health Science. Hayter Decl. at ¶ 2, p .1,*fn8 ¶ 17. She began 13 working for the County in 2001, and transferred to the PHD in 2004, where she worked in the BIH 14 program. Hayter Dep. at 18:6-19:1, 22:23-23:15. Hayter was classified as a PHN II beginning in 15 March of 2005. Cox Decl. ¶ 9.

In December of 2005, Hayter applied for reallocation of her position from PHN II to PHN III. Cox Decl. ¶ 10. On February 21, 2006, Hayter's application was denied, purportedly because 19 she failed to meet the PHN III position's general requirement of working as a PHN for at least 20 three years. Hayter Dep. at 42:14-43:9; Cox Decl. ¶ 12. Hayter was on maternity leave at that 21 point, and she alleges that she was told that she could not have the decision reviewed because the 22 dates for review could not be adjusted. Hayter Dep. at 51:3-53:16. Defendants note that Hayter 23 did not request an allocation review hearing. Cox Decl. ¶ 12. 24 25 26 27

B. Vickye Hayter

1. December 2005 Application for Reallocation

2. January 2007 Application for Reclassification In January of 2007, Hayter applied for reclassification from PHN II to PHN III. Hayter Dep. at 55:14-19; 57:12-17; Cox Decl. ¶ 13.*fn9 On April 6, 2007, the application was denied on the 4 ground that she was performing duties consistent with a PHN II. Hayter Dep. at 59:12-61:25; Cox 5 Decl. ¶ 15. Hayter did not appeal this decision. Cox Decl. ¶ 15.

3. December 2007 Application for Reallocation

In December of 2007, Hayter applied again for reallocation from PHN II to PHN III.

Hayter Dep. at 65:5-11; Cox Decl. ¶ 16. Human Resources Analyst Kathy Buchanan 9 recommended that Hayter's application for reallocation be granted, Cox Decl. ¶ 16, but PHD 10 administration believed that Hayter was performing PHN II level duties and should not be reclassified. Wedel Dep. at 413:17-23; 414:22-415:3; Alvarado Dep. at 315:18-23; 324: 11-22.

Human Resources Director Joanne Cox states that she determined that Hayter may have been 13 performing some duties that were not PHN II duties, including researching and preparing grants for 14 her department, and therefore was performing her job in a manner inconsistent with County Policy. 15

Cox Decl. ¶ 17. On April 9, 2008, these duties were removed. Id. Cox alleges that she did not 16 know Hayter's race at the time that Cox recommended the removal of Hayter's extra duties. Id. 17

18 she would be paid for 70 days of working out of class, the number of work days from when Hayter 19 first submitted her Position Classification Questionnaire to her supervisor to the date of the 20 County's response. Cox Decl. ¶ 18. 21 alleging that the County denied her the right to arbitrate her request for reallocation. Hayter Dep. 24 Relations Department responded that she was not entitled to arbitration. Pineda Decl. ¶ 5. 26

On April 10, 2008, Hayter was notified that her position would not be reallocated, but that

4. Hayter's Grievance of the Third Denial of Reclassification

On May 6, 2008, Hayter filed a grievance with the County Labor Relations department,

81:12-13; Decl. of Pablo Pineda ("Pineda Decl."), ECF No. 35, ¶ 3-4. The County's Labor

On April 21, 2008, Hayter met with Kacy Snodgrass, SEIU Local 715 Contracts

Enforcement Specialist, and Alvarado. Hayter Decl. ¶ 12. At this meeting, Alvarado purportedly 3 accused Hayter of smirking, and subsequently told Burrell that Hayter had been rude and 4 unprofessional. Id. 5

6 a labor relations representative to discuss Hayter's grievance regarding the denial of her 7 reallocation, the amount of her compensation for working out of class, and the appropriate scope of 8 her work at BIH. Hayter Dep. at 102:3-15; Burrell Dep. at 218:13-19. Hayter states that Wedel 9 made a comment to the effect of: "the African-American population is only about 2.9 percent in 10

In April of 2010, Hayter and her union representative met with Wedel, Burrell, Pineda, and Santa Clara County, and that's pretty insignificant, and I was only serving a small percentage of those." Hayter Dep. 46:7-46:25.*fn10 See also Burrell Dep. 267: 1-23. Burrell also alleges that, after United States District Court For the Northern District of California this meeting, Wedel made a comment about "these people." Burrell Dep. at 241:4-241:5.

Hayter was on maternity leave with her third child followed by a medical leave from

September of 2010 until January of 2012. Hayter Dep. at 41:16-18. 15

5. Hayter's Two Applications to be A Public Health Nurse Manager

Hayter applied twice to work as a Public Health Nurse Manager ("PHNM positions"). Hayter Dep. at 30:3-13; Decl. of Sherae Moresco ("Moresco Decl."), ECF No. 37, ¶ 12; Decl. of Laura Brunetto ("Brunetto Decl."), ECF No. 40, ¶ 4. Defendants allege that Hayter was denied the first position because she lacked supervisory experience, and the second because another person, "G.A.," was selected who scored higher than Hayter on various selection criteria. Moresco Decl. ¶ 12; Brunetto Decl. ¶ 4.

(PHNM)

6. Hayter's Promotion to PHN III In June of 2011, the County notified Hayter that her PHN II code in the BIH program was deleted as the State changed the focus of the program to a more psychosocial model, and that she would be reassigned to a PHN II in Regional Services. Hayter Dep. at 147:15-19; Cox Decl. ¶ 19.

Hayter does not claim that this reassignment was discriminatory in nature. Hayter Dep. at 147:23-2 149:11. Hayter began working at Regional Services when she returned from her maternity and 3 medical leave in January of 2012. Id. at 41:16-18. 4 On April 30, 2012, Hayter was promoted to PHN III after applying and interviewing for a 5 vacant position. Hayter Dep. at 146:20-147:6; Moresco Decl. ¶ 13; Cox Decl. ¶ 20. 6 7. 2010 DFEH Complaint

On November 18, 2010, Hayter filed a complaint with the DFEH alleging discrimination 8 based on race due to an alleged denial of a promotion on April 29, 2010. MK Decl., Ex. H. On 9 July 14, 2011, the DFEH issued a right-to-sue notice. Id. On August 23, 2011, Hayter filed a 10 complaint with the DFEH alleging denial of promotion, retaliation, and denial of a pregnancy accommodation, on the basis of sex, race/color, and retaliation for engaging in protected activity or requesting a protected leave of accommodation. Id. This complaint referred to the denials of 13 Hayter's 2007 and 2008 applications for reallocation/reclassification. Id. On August 23, 2011, the 14 DFEH issued a right-to-sue notice. Id.

C. Margaret Headd

Margaret Headd is an African American woman who holds a Bachelors of Science in Health Science degree and a Masters degree in Public Health. Headd Decl. ¶ 2. She began 18 working at the County of Santa Clara Public Health Department in 2003. MK Decl., Ex. C, Dep. 19 of Margaret Headd ("Headd Dep.") at 19:16-23. From 2003 until January of 2006, Headd held 20 various non-permanent statuses. Cox Decl. ¶ 21. In May of 2006, Headd obtained permanent 21 status in a position with the County, when she was hired as a Health Education Specialist ("HES"). 22

Headd Dep. at 32:2-7; Cox Decl. ¶ 25. Headd began treatment for cancer in December of 2008, 23 and remained on medical leave until October of 2009. Headd Dep. at 34:9-14; 37:13-15. On May 24 18, 2009, while on leave, Headd learned that she was being laid off due to budget reductions. 25 Headd Dep. at 56:15-57:3; 174:2-9.

3 in being assigned to a new position through the County's in-placement process, by which the 4

County can transfer laid-off employees to suitable vacant positions if the employee has no right to 5 claim another position. Headd Dep. 172:24-178:25; Cox Decl. ¶ 29. On or about July 1, 2009, 6

County's reemployment list.*fn11 Cox Decl. ¶ 32; Headd Dep. at 56:15-21. Headd remained on 8 medical leave for the duration of her appointment in that position. Headd Dep. at 56:15-57:3. 9

1. Inplacement While on Medical Leave on July 1, 2009

Also in May of 2009, after learning that she would be laid off, Headd indicated her interest

Headd was in-placed in a vacant part-time Management Aid ("MA") position, and added to the 7

Headd alleges that "L.I.," a non-African American who was also on medical leave at that time, was 10 inplaced in a more desirable position. Headd Dep. at 90:24-91:22.

13 deleted due to program restructuring. Headd Dep. at 95:15-96:25 & Ex. 7; Cox. Decl. ¶ 35. 14

Infants, and Children ("WIC") Program, effective October 15, 2009. Id. Headd alleges that two 16 other employees, "R.G." and "C.V.," were laid off around the same time that she was 17 administratively transferred, but were subsequently transferred into higher-level positions than 18

Headd. Headd Dep. at 97:7-15, 98:5-9; Headd Decl. ¶ 4. Unlike Headd, R.G. and C.V. had 19 permanent underlying statuses in the positions to which they were transferred. Cox Decl. ¶¶ 25, 20

2. Administrative Transfer of October 15, 2009

United States District Court

For the Northern District of California

While Headd was still on medical leave, the MA position to which she was reassigned was

Headd was then administratively transferred to another part-time MA position in the PHD Women, 15 23 the WIC program until December of 2011. See Headd Dep. at 178:7-12: 59:17-60:24. She alleges 24 that the County did not engage in any interactive process with her to determine any limitations 25 26

3. Headd's Return to Work

In October of 2009, Headd returned from medical leave and remained in her MA position in when she returned to work, and that the County did not inform her of their reasonable 2 accommodation policy, of which she learned in January of 2012. Headd Decl. ¶ 5. 3

4

5 on December 26, 2009, she applied for a Health Program Specialist ("HPS") position and 6 interviewed for the position on January 21, 2010. Headd Dep. at 182:12-19; Moresco Decl. ¶ 14. 7

McPherson ("McPherson Decl."), ECF No. 41, ¶ 4. Although Headd disputes Defendants' stated 9 reasons for finding that Headd was insufficiently qualified for the position, she acknowledges that 10

3. Headd's Applications for Other Positions

From late 2009 until early 2011, Headd applied to several job openings in the PHD. First,

The job was given to R.G. Headd Dep. at 192:10-20; Moresco Decl. ¶ 14; Decl. of James 8

R.G. was qualified for the position. Id.

On April 29, 2010, Headd applied to transfer into an HPS Position, but was informed that

United States District Court

For the Northern District of California

she was not eligible for the transfer. Headd Dep. at 109:1-3; Moresco Decl. ¶ 15. Headd admits 13 that she was not in fact eligible to transfer into this position because the salary differential between 14 her original position and the new position was too great to qualify as a "transfer." Headd Dep. at 15

In August of 2010, Headd applied for an HPS position with PHD Administration, for which

17 she interviewed on August 27, 2010. Headd Dep. at 109:9-11; 220:9-11; Moresco Decl. ¶ 16. 18

Defendants allege that Headd was not selected for the position because she "lack[ed] experience in 19 both program management and administrative processes," and lacked knowledge of County 20 government processes. Moresco Decl. ¶ 16; Wedel Dep. 284:23-285:15; 288:15-18. Defendants 21 further allege that Headd did not submit a writing sample as requested, and that her application 22 materials contained multiple spelling, grammatical, and formatting errors. Moresco Decl. ¶ 16; 23

Wedel Dep. 290:20-291:8. Headd alleges that she had sufficient experience in management and 24 administrative processes, and that Wedel never requested a writing sample. Headd Decl. ¶¶ 8-9. 25

26

213:25-214:14. 16

In November or December of 2010, Headd applied for a Senior Health Care Program

Analyst transfer position but was not referred for an interview, allegedly for lack of sufficient 27 experience. Moresco Decl. ¶ 17; Headd Decl. ¶ 12. 28

On January 4, 2011, Headd applied for an HPS promotional position. Moresco Decl. ¶ 18.

Headd interviewed for the position, but was not selected to advance to a second round of 3 interviews. Headd Dep. at 184:23-185:17; Moresco Decl. ¶ 18; Decl. of Barbara Broderick 4

("Broderick Decl."), ECF No. 39, ¶ 4. Another PHD employee, "J.P.," was ultimately chosen for 5 the job, allegedly based on specific components of his past work experience. Moresco Decl. ¶ 18; 6

On July 27, 2011, Headd applied for a Health Planning Specialist II position and a Health

Care Program Analyst ("HCPA") II position. Moresco Decl. ¶ 19. The first position was deleted 9 before interviews were conducted, and Headd was told she lacked the depth and scope of analytical 10 and administrative experience required for the classification of the second position. Id. On

September 19, 2011, Headd interviewed for an HPS position, but another PHD employee, "L.C.," was selected, allegedly because she better matched the criteria for the job. Moresco Decl. ¶ 20; 13

On December 30, 2011, Headd accepted an offer from the County reemployment list for an

HES position. Headd Dep. at 169:21-170:20; 247:18-248:1; Moresco Decl. ¶ 21. 16

On June 7, 2011, Headd filed a DFEH complaint alleging discrimination based on race, sex,

18 age, and medical condition (cancer) based on her denial of promotions in August of 2010 and 19

February of 2011. Headd Dep. at 348:6-349:21 & Ex. 4. The DFEH issued a right-to-sue notice 20 on the same date. MK Decl., Ex. I. On June 28, 2011, Headd filed an amended complaint alleging 21 discrimination based on race, sex, age, disability, and medical condition and alleged the same 22 particulars as her June 7, 2011 complaint. Headd Dep. at 348:6-349:21 & Ex. 4. On August 29, 23 2011, the DFEH issued a second right-to-sue notice. MK Decl., Ex. I. dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law. 27

Broderick Decl. ¶ 6. 7

Broderick Decl. ¶¶ 8, 10. 14

15

5. 2011 DFEH ...


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