United States District Court, N.D. California
ORDER RE MOTIONS FOR SUMMARY JUDGMENT, JUDICIAL NOTICE, AND EVIDENTIARY OBJECTIONS
WILLIAM ALSUP, District Judge.
In this action under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act, employer moves for summary judgment. Employer also objects to improper authentication of several exhibits appended to employee's exhibits. To the extent stated, summary judgment is GRANTED.
1. COVINGTON'S EMPLOYMENT.
Beginning in 2005, plaintiff Sandra Covington worked as a licensing program analyst for defendant California Department of Social Services, which operates in Alameda County, among other places. The LPA position involved licensing work and site evaluations of community care facilities for adults and children. Covington declares that from 2005 to 2008, she passed her probationary period, received no negative performance evaluations or discipline, and "was often complimented by management for [her] exemplary performance" (Covington Decl. ¶ 4).
Covington has since brought three claims against the Department, each one made under Title VII and FEHA: (1) race discrimination based on disparate treatment; (2) hostile work environment based on race; and (3) retaliation. The nub of her claims is this: starting in 2008, her managers have subjected her to unfair work scrutiny and criticisms, unjustified denials of salary adjustments and training opportunities, and other disciplinary measures - all on account of her African American race and in retaliation for her complaints of race discrimination (Amd. Compl. ¶¶ 8-19). No racial epithets or racially derogatory comments were ever made, but in Covington's view, the Department treated her non-African American co-workers more leniently. Of note, Covington was never fired and still works for the Department.
2. COVINGTON'S WORK PERFORMANCE.
In June 2008, Marie Christie, a Caucasian, was Covington's manager, evaluating Covington's work performance through a written "Individual Development Plan." This plan marked two out of nine performance factors as needing improvement to meet expected standards: "quality of work" and "meeting work commitments." In addition, the plan noted that Covington was expected to turn in her statements of facts on time, and that several of her reports contained incorrect citations for civil penalty assessments (Martin Exh. A at AGO-MSJ-003-4).
In April 2009, Covington received a second individual development plan. Like before, this plan marked two performance factors as needing improvement, while again noting problems with incorrect citations and several other issues (Martin Exh. C at AGO-MSJ-009-13). As a result, a Hispanic manager, Mary Troupe, denied Covington a 2009 "Merit Salary Adjustment, " i.e., a five-percent salary increase following twelve months of satisfactory performance. Troupe then gave Covington four more individual development plans - in April 2010, September 2010, April 2011, and April 2012. All of these plans marked two to five performance factors as needing improvement - including "work habits, " "taking action independently, " and "analyzing situations and materials" - and recorded various work errors committed by Covington. None of the individual development plans, or any of the other work documents submitted on this record, suggest that race was a factor in identifying Covington's work performance as substandard.
Collectively, the negative feedback from these plans led to several consequences. One was the denial of subsequent Merit Salary Adjustments for Covington in 2010, 2011, and 2012 (in addition to her 2009 Merit Salary Adjustment denial). Another was the Department's two changes to Covington's "Alternate Work Week" schedule, which otherwise permitted her to work more hours on certain days (still for a total of forty hours per week) in exchange for one day-off every two weeks. Under the first change in July 2009, Covington was no longer allowed to "flex" her day-off; under the second change in June 2011, her AWW schedule was rescinded all together, with the requirement that she work a regular "8 am to 5 pm" schedule every workday. Covington also complains that she was denied training opportunities, including the 2009 and 2010 "Master Analyst Program" training for staff members who were selected "based on their demonstration of leadership qualities, analytical performance, high quality work product and possession of skills which would be enhanced by the MAP training" (Amd. Compl. ¶¶ 8-17; Covington Decl. ¶ 18; Martin Decl. ¶ 10). Furthermore, after telling Troupe that she was "an evil insecure little witch" and that she had "no respect for [Troupe] whatsoever, " Covington was demoted to the role of office technician, effective January 1, 2014. At the hearing, counsel for both sides represented that Covington has since been restored to her LPA position, where she remains to date. The goal of this action is to recover the merit raises and other monetary damages.
3. COVINGTON'S GRIEVANCES TO HER EVALUATIONS.
Through her union's grievance process, Covington made at least five challenges in connection with her negative performance evaluations. For example, she grieved the April 2009 individual development plan, asking that her evaluation be revised to "meet expectations" for all performance factors and that she be awarded her 2009 merit salary adjustment. The Department, however, denied the grievance based on the documented examples of her work not meeting expectations in her June 2008 and April 2009 individual development plans. Covington appealed to "level two" of the review process, with the Department later finding "no evidence of reprisal" after "[t]he Labor Relations Bureau [had] conducted an investigation" (Martin Exh. C at AGO-MSJ-029-30). She then submitted four more grievances for her subsequent individual development plans, merit salary adjustment denials, and AWW schedule rescission - even appealing some grievances to "level three" of the process and filing several rebuttals of her own. But the Department denied each grievance at each stage, due to the work errors recorded in Covington's individual development plans.
In May 2010, Covington filed a charge of discrimination with the Equal Employment Opportunity Commission and the California Department of Fair Employment Housing.
Moreover, on August 5, 2010, she met with Department representatives to discuss her grievances. As one of the representatives, the Department's Adult and Senior Care Program Administrator wrote to Covington (Martin Exh. D at AGO-MSJ-058):
After consideration of the issues brought forward, and a review of [Covington's] performance with her management team, it has been determined that the basis for the denial of the MSA is valid, and therefore my decision is to uphold the first and second level denials of the grievance.
Later, on May 4, 2011, Covington filed an internal discrimination complaint with the Department's own Equal Employment Opportunity office, which examined each of her allegations and reported the following (Martin Exh. G at AGO-MSJ-123-32) (emphasis added):
Well-documented instances of casework, erroneous actions taken and consequences of errors attest to the fact Ms. Covington received negative evaluations as a result of an extensive history of work performance issues, not as an act of retaliation of discrimination due to race or color.
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The evidence shows that Ms. Covington's MSA denials were based on unsatisfactory performance, not discrimination or retaliation.
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The evidence shows Respondents based their decision not to nominate Complainant for MAP training based on her work performance, not discrimination or retaliation.
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Interviews with respondents and witnesses revealed no racial or retaliatory motives were involved in the above employment decisions. Ms. Covington was unable to produce any evidence that she was held to a higher standard than other LPAs.
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It is true not all LPAs in the Oakland office received annual evaluations... but received them sporadically. This fact alone is not sufficient evidence to support Ms. Covington's allegation she was issued annual evaluations as an act of harassment and retaliation by Respondents. Ms. Covington's well-documented PASs and three MSA denials clearly illustrated a need for improvement in her work performance and work product.... Annual evaluations therefore, were a consequence of Ms. Covington's established work performance as an LPA.
She commenced the instant action on September 7, 2012, with trial set for May 27, 2014.
Now, the Department seeks summary judgment on all of Covington's claims. It argues that (1) Title VII and FEHA's statutes of limitations bar those claims to the extent that they are based on events from 2008 through May 19, 2009; and (2) in any event, Covington lacks evidence of race discrimination, hostile work environment, or retaliation. This order follows full briefing, supplemental responses, and oral argument.
Ordinarily, Covington's FEHA claims would be dismissed without prejudice because "the Eleventh Amendment bars [a plaintiff's] FEHA claim in federal court" against a state agency. Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 846 (9th Cir. 1999). The Department is such an agency, but it has waived sovereign immunity after failing to raise that defense in its present ...