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Smith v. State Dep't of Highway Patrol

United States District Court, N.D. California

December 10, 2014


Page 1174

For Nicole Summer Smith, Plaintiff: Susan Sher, LEAD ATTORNEY, Law Offices of Susan Sher, Ukiah, CA; Terry Nan Gross, LEAD ATTORNEY.

For The State of California Department of Highway Patrol, Defendant: Austin Jacobs Cattermole, LEAD ATTORNEY, Attorney General's Office, Oakland, CA; Mary Susan Cain-Simon, LEAD ATTORNEY, CA State Attorney General's Office, Oakland, CA.

Page 1175


JAMES DONATO, United States District Judge.


In 2010, while applying to be a cadet with defendant, the California Highway

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Patrol (" CHP" ), plaintiff Nicole Summer Smith suffered an incident that she describes as sexual harassment and that the CHP concedes was inappropriate. Smith stuck with the cadet application process after that incident and eventually was recommended for hire by the CHP, but she voluntarily terminated her candidacy. In the complaint, Smith says she walked away from the job because the CHP subjected her to retaliation for filing a complaint about the alleged sexual harassment incident, which dissuaded her from accepting CHP employment. In fact, Smith basically alleges that all of her interactions with the CHP for several years after the 2010 incident were a form of retaliation. Smith sued the CHP in March 2013 for retaliation under Title VII of the Civil Rights Act of 1964 and California's Fair Employment and Housing Act (" FEHA" ). Dkt. No. 1. This case is about retaliation only. Smith did not file a sexual harassment claim.

This order addresses the CHP's motion for summary judgment on Smith's claims. Dkt. No. 36. The Court has spent a substantial amount of time sifting through the parties' papers to resolve the motion. Smith made this process unnecessarily difficult by failing to identify what exactly she contends was retaliatory over a multi-year period of frequent interactions with the CHP. Despite the vagueness, the Court has determined that some of Smith's allegations have enough disputed evidence behind them to go to trial. Consequently, the Court grants in part and denies in part the CHP's motion.


Smith comes from a family with ties to the CHP and decided that she wanted to join the department. Dkt. No. 47 at 1. On December 16, 2010, as part of the CHP cadet application process, Smith took a background screening test -- the Critical Voice Stress Analysis (" CVSA" ) test -- at the CHP Northern Division headquarters in Redding, California. Dkt. No. 45 at 2. Smith avers that the officer administrating the test, CHP Officer Brian Call, asked several intrusive, highly personal and offensive questions about her sex life, including: how old was she when she lost her virginity, how many sexual partners had she had, would she ever consider cheating on her husband, and did she find him (Call) attractive. Id. That same day, after completing the CVSA test, Smith took and passed the required CHP written psychological exam. Id. at 3. During the exam, Smith alleges that Call came into the room and tried to make casual conversation with her, which made her feel uncomfortable. Id.

Smith confided in Officer Casey, a family friend and CHP officer, about Call's behavior. Id. Casey reported the behavior to his superior officer, Captain Paul Davis, who in turn notified Captain Morrison, Call's commander. Id. Captain Morrison assigned Sergeant Annie Garcia, one of the two sergeants in charge of the Investigative Services Unit, to investigate the matter. Id.

On June 14, 2011, Garcia called Smith and the two met in person the following day. Id. at 5. Garcia provided Smith with a citizen's complaint form, but did not refer Smith to the CHP's Equal Employment Opportunity (" EEO" ) process. Id. The CHP states that Smith told Garcia during this meeting that she did not want to file a complaint against Call, which Smith disputes. Id. at 6. Smith contends that the citizen's complaint form is used for situations involving the conduct of CHP officers and employees with the public, and that sexual harassment claims by an applicant for employment should be referred to a CHP EEO investigator. Id. at 19-20.

Smith filled out and returned the CHP citizen's complaint form. Id. at 7. On

Page 1177

July 7, 2011, following an internal investigation regarding Smith's allegations, the CHP took several corrective steps that included disciplining Call in a Memorandum of Direction, changing CVSA exam procedures, implementing protocols to track CVSA audio recordings and requiring mandatory training on CVSA exams for background investigators. Dkt. No. 36 at 7. On August 30, 2011, Garcia called Smith to advise her that the investigation was complete, Smith's allegations were sustained and that corrective action had been taken. Id. at 7-8. During this call, Smith " agreed to not have the complaint filed." Dkt. No. 45 at 7. Garcia told Smith to contact her if she changed her mind. Dkt. No. 36 at 8. Smith contends that she did, in fact, change her mind and called Garcia back to request that the citizen's complaint be filed. Dkt. No. 45 at 7. The CHP disputes that Smith made this call. Dkt. No. 36 at 8.

On September 12, 2011, Smith received a letter from Captain Morrison, which stated that she had been recommended for hire as a cadet. Dkt. No. 46, Ex. 2. The letter also stated that Smith had " related [that she] did not want to file a complaint." Id. Smith alleges that the letter mischaracterized her wishes, so she contacted Garcia again to say she wanted to continue with the complaint process. Dkt. No. 45 at 9. The CHP disputes that Smith made this phone call to Garcia. Dkt. No. 36 at 8.

Garcia states that she left a voicemail for Smith on September 1, 2011, saying that Smith's federal I-9 form for verifying citizenship or immigration status for employment was missing and that the CHP would send it to Smith to sign and return. Dkt. No. 39, Ex. C. Garcia also alleges that she called and left a message for Smith on September 22, 2011 stating that the I-9 form had still not been received. Id. Smith contends that she did not receive either voicemail. Dkt. No. 45 at 9-10.

After arriving home from vacation, Smith found a letter dated October 6, 2011, from Captain Morrison. Dkt. No. 39, Ex. A. The letter stated that the Applicant Investigation Unit had recently sent Smith an I-9 form and that Smith needed to return the form to the CHP's Northern Division. Dkt. No. 46, Ex. 3. The letter mentioned Garcia's calls about the I-9 form and advised Smith that " [i]f you wish to remain active in the background process for the position of Cadet, CHP, you must contact Northern Division within ten calendar days of the date on this letter, to express your interest in continuing the process. Failure to respond within the ten day time period will result in removal of your name from the certification list." Id. Defendant contends that the letter is " a standard letter commonly used when documentation is needed from an applicant." Dkt. No. 38 at 2. Smith called her Background Investigator and requested he send her the form, which Smith completed and returned to the CHP. Dkt. No. 45 at 10. Her application package was forwarded to Cadet Hiring in Sacramento as a recommend-for-hire. Dkt. No. 36 at 9.

In January 2012, Smith contacted Captain Davis for advice because she had not received any further information about the citizen's complaint. Dkt. No. 45 at 10. Davis told Smith that Officer Morrison had said Smith did not want to file a complaint. Id. Davis provided Smith with contact information for three CHP Equal Employment Opportunity officers. Id. at 11. She contacted and met with one of the officers, Sergeant Daniel Fansler. Id. Fansler offered Smith the remedy of re-opening her previous citizen's complaint. Id. ...

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