United States District Court, N.D. California, San Jose Division
ORDER (1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [Re: ECF 45, 46]
BETH LABSON FREEMAN, District Judge.
In this employment suit, Plaintiff, an employee of the California Department of Rehabilitation ("DOR"), claims that her supervisor retaliated against her for engaging in conduct protected by the First Amendment. During a meeting with an angry DOR consumer, A.F., Plaintiff silently motioned to another DOR employee to call the California Highway Patrol ("CHP") because she felt that A.F. posed a threat to other DOR employees and her. Plaintiff's supervisor, Donna Hezel, determined that Plaintiff acted in violation of DOR policy, and placed a corrective memorandum, titled "Informal Corrective Interview Regarding Professional Conduct" (hereinafter "the Corrective Memorandum") in Plaintiff's file. Plaintiff brought suit against Ms. Hezel and the State of California.
Plaintiff alleges a Section 1983 claim against Ms. Hezel for retaliation in violation of her free speech rights. She further alleges two claims against the State: for retaliation under the Fair Employment and Housing Act ("FEHA"), and for medical condition discrimination in violation of Title VII and FEHA. Defendants seek summary judgment as to all claims, or, in the alternative, partial summary judgment on each of Plaintiff's claims. Plaintiff opposes, and filed a cross-motion for partial summary judgment as to her Section 1983 claim against Ms. Hezel. The Court has considered the briefing and oral argument of the parties, as well as the governing law. For the reasons stated below, the Court GRANTS Defendants' motion for summary judgment in its entirety and DENIES Plaintiff's cross-motion for partial summary judgment.
A. Procedural History
Plaintiff filed suit on June 20, 2013, and filed the operative First Amended Complaint ("FAC") on April 22, 2014. Defendants answered on May 12, 2014. Defendants filed their motion for summary judgment on January 2, 2015, and Plaintiff filed an opposition and partial cross-motion on January 18, 2015. The parties appeared for oral argument on February 12, 2015.
B. Undisputed Facts
Plaintiff is an employee of the California Department of Rehabilitation, a state agency tasked with serving individuals with disabilities, including mental disabilities. At the time of suit, Plaintiff held the title of Senior Vocational Rehabilitation Counselor ("SVRC"), where she had a "supported employment" caseload which consisted of working with individuals who were diagnosed with intellectual disabilities. Plaintiff's job functions included, but were not limited to, counseling individual consumers to determine their eligibility for services, arranging rehabilitative services for consumers, and "providing services in compliance with the Department's Rules and Regulations." See Mitchell-Matthews Decl., ECF 60 Exh. 1 at 1 (Plaintiff's job description, describing her "essential job functions").
1. Plaintiff Causes CHP to be Called During a Meeting with A.F., an Angry DOR Consumer
The first incident which gives rise to this suit occurred on June 8, 2011. Plaintiff was asked to attend a meeting with one of DOR's consumers, A.F., and another counselor, Linda Labit. See Mitchell-Matthews Depo., Hamilton Decl. Exh. 1 at 50:6-51:1 ("I was informed by Donna [Hezel] and Linda [Labit] that I was going to sit in a meeting with A.F."). Plaintiff understood prior to the meeting that A.F. was angry, and learned when the meeting began that A.F. was angry because his file had been closed by another DOR employee, which A.F. asserted caused a delay in his receipt of benefits. See id. at 50:16-54:19. Plaintiff, Ms. Labit, and A.F. met at DOR's offices. Plaintiff described A.F. as extremely angry, irate, agitated, and loud, see Mitchell-Matthews Decl., ECF 60-2 Exh. 2 at 4 (Plaintiff's incident report filed June 9, 2011, hereinafter "Plaintiff's Incident Report"); see also Mitchell-Matthews Depo. at 55:12-22, and states that he engaged in verbally abusive escalating behaviors, including speaking "about holding a grudge and wanting to kill [his] family members but he can't now because they are too old." Mitchell-Matthews Decl. ¶ 10. Plaintiff saw A.F.'s behavior as a potential threat to DOR staff and herself. Id. at ¶ 14.
At some point during the meeting with A.F., Ms. Labit instructed Plaintiff to leave the room in order to retrieve a form A.F. needed to fill out in order for his file to be reopened. See Mitchell-Matthews Depo. at 56:11-14. Ms. Labit remained in the room with A.F., alone, and states in an uncontroverted declaration that she did not feel threatened by A.F., nor did she perceive A.F. to be a threat to any other DOR employees, including Plaintiff. See Labit Decl., ECF 48 ¶ 6. While Plaintiff was out of the room, she spoke with another DOR employee, Dolora Gualberto, who was working at the front desk. See Mitchell-Matthews Decl. ¶ 11. Ms. Gualberto said that she could hear A.F. yelling through the door, and Plaintiff stated that she "might need [Ms. Gualberto] to call the CHP for back up if A.F. did not calm down." Id. Plaintiff declares that she was gone from the room "briefly, " id., and Ms. Labit's Incident Report states that Plaintiff was gone for approximately ten minutes. See Labit Incident Report, ECF 59-3 at 20. After Plaintiff returned to the room where A.F. and Ms. Labit were meeting, A.F.'s behavior continued to escalate, and Plaintiff "motioned to Ms. Gualberto [to] call the CHP" because she believed that A.F. posed a potential threat to Ms. Labit, staff, and herself. Id. at ¶ 14. After CHP arrived, A.F.'s behavior deescalated and he left the DOR office.
In Plaintiff's Incident Report, written the following day, she states that she was "not afraid of A.F., " but "for safety reasons believe[d] it was best to call for back up." Pl.'s Incident Report, ECF 60-2 at 4; see also ECF 59-1 at 29 (a July 5, 2011 letter written by Plaintiff in which she states "I was not afraid of the consumer."). In later deposition testimony, Plaintiff stated that she felt personally threatened by A.F., and believed that A.F. posed a threat to other office personnel. Mitchell-Matthews Depo. at 108:5-17.
2. Ms. Hezel's Response to Plaintiff Following the Incident
On June 9, Defendant Hezel, who was Plaintiff's supervisor, met with Ms. Labit and Plaintiff regarding the incident. See Mitchell-Matthews Decl. ¶ 16. After this meeting, Ms. Hezel spoke with Deborah Sweeney, the DOR District Administrator, regarding the incident. Ms. Hezel was concerned that Plaintiff had caused CHP to be called without first discussing it with Ms. Labit, who was also present at the meeting and had even been alone with the consumer. See Hezel Decl. ¶ 9. At Ms. Sweeney's instruction, Ms. Hezel spoke with Loreli Scozzari, the DOR's personnel analyst, because the incident concerned the proper application of one of DOR's policies. See id. It was determined that the appropriate response to Plaintiff would be an informal corrective memorandum. Id. at ¶ 11. Ms. Hezel gave Plaintiff the Corrective Memorandum on June 30, 2011, which includes "a summary of what was discussed when we met... on June 9." Mitchell-Matthews Depo. Exh. A, ECF 50-2 at 2. The Corrective Memorandum states that "[w]e discussed appropriate protocol to follow in the future should this type of incident arise again, " and expressed Ms. Hezel's opinion that Plaintiff "could have sought out another supervisor in the office to have them intervene and determine if the CHP should be contacted." Id. The Corrective Memorandum continued, "[p]lease know that CHP should not be contacted without guidance from a supervisor, " and in response to Plaintiff's indication that more training would be useful, Ms. Hezel advised her that DOR would schedule further training regarding when CHP should be contacted. Id. at 3. The Corrective Memorandum also noted that "Linda Labit did not feel threatened when interacting with the client." Id. at 2. The Corrective Memorandum was not placed in Plaintiff's personnel file, see Scozzari Decl. ¶ 3 ("Exhibit A [the Corrective Memorandum] was never placed in Ms. Mitchell-Matthews' Official Personnel File."), though Ms. Hezel did place the Corrective Memorandum in Plaintiff's "drop file, " which is an employee file kept by a supervisor and which can be passed between supervisors. Hezel Decl. ¶ 15; see also Hezel Depo. 160:18-161:15.
3. The DOR's Policies Regarding Contacting CHP
Plaintiff testified in her deposition that she contacted CHP based on her understanding of appropriate DOR policy. See Mitchell-Matthews Depo. at 119:1-9 (Mr. Hamilton: "By asking Dolly to call the CHP, you believed that you were complying with the policies and procedures as your understood them to be?" Plaintiff: "Yes."); see also id. at 228:18-229:14. It is undisputed that DOR has two policies that implicate when an employee may contact CHP in response to harassing or threatening behavior - though the parties dispute which policy applied to Plaintiff's conduct.
The DOR has promulgated a policy entitled "Guidelines for Addressing Threatening or Harassing Behavior by Applicants/Consumers" (hereinafter "Threatening Behavior Policy"). See Hezel Decl. Exh. A, ECF 47 at 27-30. This policy outlines what actions DOR employees can and should take when faced with a consumer who is engaged in threatening or harassing behavior, and is designed to "provide DOR staff with a consistent procedure for documenting and reporting threats and potential threats." Id. at 27. It states that the "DOR should seek assistance from law enforcement [ ] when an applicant or consumer commits or threatens to commit a crime... against DOR personnel." Id. But the Threatening Behavior Policy further instructs DOR employees to "take into consideration the disability of the applicant/consumer when assessing a behavior to determine if or whether it is threatening or harassing, " because a "disabling condition or medication problem could result in a behavior appearing to be but that is not threatening or harassing." Id. This policy outlines specific circumstances in which an employee may contact law enforcement:
Any emergency situation that involves a credible threat of imminent serious violence or physical harm that would cause a reasonable person to fear for his/her safety should be reported to local law enforcement.... Any employee [who] feels that he/she is at risk of harm may dial 9-1-1 with or without their supervisor's approval. If an employee does not consider himself/herself to be in immediate danger, he/she should notify his/her supervisory for the supervisor to determine the appropriate action.
Id. at 28. When DOR employees "observe or experience threatening or harassing behavior, " they are to "report it immediately to their direct supervisor." Id. at 29.
In addition to the Threatening Behavior Policy, which is specific to threatening and harassing behavior by consumers, the DOR also has a general Workplace Violence Policy, the objective of which is to "promote a safe, healthy, secure, and productive work environment" that is "free from threats and acts of violence to protect the health and safety of all employees." Bonner Decl., ECF 59-1 at 37-51.The Workplace Violence Policy states that "[b]ehavior of a threatening manner, harassment, intimidation, committing an act that results in bodily injury, or damage/destruction of property is prohibited." Id. at 39. The Workplace Violence Policy further instructs DOR employees that they may "[c]all 9-1-1 if there is an emergency situation necessitating immediate law enforcement intervention or if someone has been injured." Id. at 46. This Workplace Violence Policy also states that employees should "[r]eport all threats or acts of workplace violence to the supervisor or manager immediately, " id., outlines the responsibilities of employees when faced with violence in the workplace, and describes the discipline employees can face if they engage in conduct prohibited under the policy. See id. at 45.
4. Plaintiff's Testimony That She Acted in Conformance with Her Understanding of DOR Policy
In her deposition, Plaintiff testified that when she motioned to Ms. Gualberto to call CHP, she believed she was acting in conformance with DOR policy. See Mitchell-Matthews Depo. at 229:6-14; see also id. at 109:1-4 (Mr. Hamilton: "And in your mind also did you believe that you were [acting] in conformity and pursuant to what you believed the policy was?" Plaintiff: "Yes."). She states that prior to the June 8, 2011 incident, she was trained on when it was appropriate to contact CHP, id. at 228:18-22, and had been informed of DOR's policies regarding when an employee could contact CHP. See id. at 229:3-10. ...