United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
Diana Bernhardt, the plaintiff, worked for the California Department of Corrections and Rehabilitation (the CDCR) at High Desert State Prison. She alleges her former supervisor, Lt. David Griffith, created and presided over a sexually hostile work environment, one that forced her into a medical leave of absence in February 2012. She also claims the CDCR retaliated against her after she reported Lt. Griffith's actions. The CDCR has moved for summary judgment. The court held a hearing on January 16, 2015. Shelley Bryant appeared for Ms. Bernhardt, and Scott Sommerdorf appeared for the CDCR. After evaluating the evidence, the parties' briefs, and the arguments at the hearing, the court GRANTS the motion in part and DENIES it in part.
I. EVIDENTIARY OBJECTIONS
The parties dispute the admissibility of several documents. At summary judgment, admissibility of evidence depends not on form, but on content. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible...." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). A district court may nonetheless exercise its discretion "to be somewhat lenient" should a party opposing summary judgment fall short of the "formalities of Rule 56." Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993). See also Celotex, 477 U.S. at 324 ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.... [Rule 56] permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves"); Block, 253 F.3d at 418-19 ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rule of Civil Procedure 56.").
To the extent the court cites and relies on evidence here, it overrules any contrary objections for purposes of this motion. Three objections, however, warrant particular mention. First, Bernhardt relies extensively on a written report on the CDCR's internal investigation. See generally Internal Affairs Investigative Report (Inv. Rep.), Bryant Decl. Ex. D, ECF No. 36-7; Pl.'s Opp'n Undisp. Mat. Facts (UMF1), ECF No. 36-2; Def.'s Obj. Undisp. Facts (UMF2), ECF No. 38-1. The CDCR opposes this court's consideration of that report, predominantly because it argues the report is inadmissible hearsay. See, e.g., UMF2 no. 81. Hearsay statements are those "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(c). Hearsay is generally inadmissible unless federal law or the Federal Rules of Evidence provide otherwise. Id. R. 802. Federal Rules of Evidence 801 and 803 describe a number of exclusions and exceptions to this general rule.
Here, the internal report was composed outside of this court, and in many instances Bernhardt offers the report for evidence of Lt. Griffith's and the CDCR's alleged wrongdoing documented within it. See, e.g., UMF2 no. 93. It fits the definition of hearsay. Under the circumstances of this case and motion, however, consideration of the report is proper. The CDCR or its agents created it, and the circumstances of its creation suggest its reliability and accuracy. It describes interviews with several witnesses who could testify at trial, and in this way it is demonstrative of genuine disputes of material fact. It is offered against the CDCR and may also qualify as a record of a regularly conducted activity or a public record. See Fed.R.Evid. 801(d)(2), 803(6), (8). In sum, because the report may fall within an exclusion or exception to the general bar against hearsay statements, because it is indicative of genuine disputes of material fact, and because this court has discretion to grant leniency at this stage of the litigation, exclusion of the report in total is improper here. Cf., e.g., Hatcher v. Cnty. of Alameda, No. 09-1650, 2011 WL 1225790, at *3 (N.D. Cal. Mar. 31, 2011) (denying at summary judgment the defendants' request to exclude as hearsay the contents of an internal investigative report, because, among other reasons, the testimony in question could be admitted directly at trial). The CDCR may of course later move in limine to exclude specific portions of the report, or object to their introduction at trial.
Second, Bernhardt relies on a letter she wrote to Associate Warden Peery to show she was "chastised" for seeking evidence of sexual harassment against other employees and to show the CDCR delayed its investigation in retaliation against her. Bryant Decl. Ex. G, ECF No. 36-10. The letter, dated May 31, 2012, documents a May 25 telephone conversation between Bernhardt and Associate Warden Peery on May 25, 2012. Id. at 2. Bernhardt accuses Peery of seeking only to protect Griffith, subjecting her to a "gag order" to prevent her discussion of her claims against him, and warning other employees not to speak with her. The CDCR argues this letter is inadmissible hearsay. The letter was composed out of court, and in addition describes a conversation that occurred out of court. Bernhardt offers it as evidence of the truth of its contents, that is, to show the CDCR in fact sought to delay its investigation in retaliation for her report. For purposes of this motion, however, and in the appropriate spirit of leniency, because Bernhardt may take the stand at trial and offer the same statements she seeks to admit here by document, this first layer of hearsay is not fatal. But whether in the letter or on the witness stand, Bernhardt's reports of Peery's words must eventually qualify under an exclusion or exception to the rule against hearsay. Because Peery's statements were ostensibly offered in her capacity as associate warden, at trial they may be properly excluded from the definition of hearsay by Federal Rule of Evidence 801(d)(2)(D) ("A statement that meets the following conditions is not hearsay:... The statement is offered against an opposing party and... was made by the party's agent or employee on a matter within the scope of that relationship and while it existed...."). The court will consider the letter for purposes of this motion.
Third, Bernhardt relies on her declaration as evidence of her interactions with the Equal Employment Opportunity Commission (EEOC), California Department of Employment and Housing (DFEH), and the CDCR in 2012 and 2013. See Bernhardt Decl., ECF No. 36-18. Her declaration describes phone calls and letters between her and several others. See id. ¶ 2. The CDCR contends these statements are hearsay. See, e.g., UMF2 No. 177. These statements, all made out of court, may nonetheless be admitted for any relevant purpose other than their truth. The apparent purpose for which Bernhardt has offered the statements of EEOC and CDCR representatives is not to show, for example, that the EEOC in fact was waiting for the CDCR's internal investigation, see id. no. 180, but to show the effect of this statement on Ms. Bernhardt, that is, to dissuade her from filing a formal charge. Moreover, many of the statements the CDCR contends are hearsay may very well also be admissible in the form of its own statements-those of Bernhardt's party opponent-and excluded from the hearsay rule should the letter itself be offered at trial. See, e.g., id. no. 184 ("On or about April 8, 2013, Plaintiff received a letter form [sic] the OCR stating that it had received Plaintiff's request, the investigation was complete, and her warden at HDSP had the results...."). The objection is overruled for purposes of this motion, but as noted above, at trial this and any evidence may be admitted only in accordance with the Federal Rules of Evidence.
The following facts are not disputed for the purpose of this motion unless otherwise noted. Bernhardt began working at High Desert State Prison on June 2, 2003. UMF1 no. 1. Bernhardt alleges Lt. Griffith, her supervisor, began sexually harassing her at work in August 2010. Id. nos. 2, 27-51. The internal CDCR report describes interviews the CDCR conducted with Bernhardt, her coworkers, and with Lt. Griffith. Lt. Griffith's reported indiscretions include the following: He referred to Bernhardt as "Hot-Ass Dee Dee" from August 2010 through the fall of 2011. Inv. Rep. at 21, 72. He referred to other women as "Sugar Tits, " id. at 78-79, and "the virgin daughter, " id. at 79-80, and called other men and women "fat fuck, " id. at 82-83, "pussy, " id. at 84-85, and "pissy pants, " id. at 71. He frequently accused Bernhardt and other women of staring at his and other men's crotches. Id. at 81-82. He once displayed scratch marks on his buttocks supposedly sustained in a recent sexual encounter. Id. at 72-73. On several occasions in 2010 and 2011, he bragged that if Bernhardt and other women would spend one night with him, no other man would satisfy them. Id. at 73-74. In the summer of 2011, he asked Bernhardt's coworker if that coworker had ever given her ex-husband a blowjob; after she admitted to giving him an "accidental blowjob, " he distributed a video to the office depicting a man and woman in circumstances he suggested demonstrated how an accidental blowjob could occur. Id. at 74-75. He once also personally demonstrated how he believed an accidental blowjob may have occurred after removing his trousers, although not his underwear. Id. at 75-76. At some time between November 2011 and January 2012, he grasped the breast of Bernhardt's coworker in her presence. Id. at 77-78. Neither Bernhardt nor her coworkers immediately reported this conduct. UMF1 nos. 29, 32, 35, 38, 42, 45, 46, 51. Several sergeants who worked in the same department denied knowledge of it, and many coworker-interviewees' accounts differ in the details. See generally Inv. Rep.
Bernhardt's healthcare provider put her on stress-based medical leave in February 2012. UMF1 nos. 3, 53. The last day she reported to work was February 23, 2012. Id. no. 3. Some evidence shows she told the CDCR that Lt. Griffith's harassment brought about her leave of absence. Id. nos. 53, 55. On March 3 and 13, 2012, Bernhardt made her first complaints of sexual harassment and requested an internal investigation. Id. nos. 20-21. For fear of being labeled a "rat, " she had withheld any earlier report. Id. no. 52. Bernhardt says Lt. Griffith secured employees' continuing tenure in his department by threat and intimidation; she recalls his words: he would "take them down" if they filed a complaint; the CDCR does not agree. Id. no. 54. The parties do agree Bernhardt did not allege any retaliation in March 2012. UMF1 no. 22.
By the CDCR's reckoning, the evidence shows it "immediately developed a plan of action." Id. no. 56. On March 13, 2012, it interviewed Bernhardt about her complaint, id. no. 57, and about a week later, it informed her it had reassigned and admonished Lt. Griffith. Id. nos. 58-60. On March 28, 2013, Griffith received a notice of adverse action. Beckler Decl., Ex. E, at 1, ECF No. 33-5. His pay would be reduced by ten percent for two years, effective May 1, 2013. Id. Griffith retired before the penalty took effect. UMF1 no. 63; Griffith Dep. 126:20-127:17, ECF No. 36-4. The CDCR also offered Bernhardt a new position in the accounting office, but she refused. UMF1 nos. 61-62.
Bernhardt argues that other evidence shows how the CDCR dragged its feet. Id. no 56. After Lt. Griffith was reassigned, on March 24, 2012, Bernhardt and a coworker sent the CDCR a memo expressing their fear that Lt. Griffith would violently retaliate against them. Inv. Rep. at 9. Deposition testimony suggests the prison did not address this memo. See UMF1 no. 56; Spoon Dep. 82:7-83:11, ECF No. 36-12; Foulk Dep. 46:6-48:12, ECF No. 36-13. A letter Bernhardt received in April 2012 informed her the CDCR would not investigate her allegations because they were under administrative review. Bryant Decl. Ex. E, ECF No. 36-8. On May 25, 2012, by Bernhardt's account, an associate warden chastised her for asking others about Griffith's harassment, UMF1 no. 56; UMF2 no. 86, then dismissed her feelings and ignored her complaints, id. no. 87. She argues the CDCR delayed its investigatory interviews for about seven months and withheld information for a year. UMF1 no. 56; see Inv. Rep. (dated February 8, 2013). The parties agree Bernhardt has remained absent from work since April 2012 due to a back injury unrelated to her claims stemming from Lt. Griffith's actions. Id. no. 72.
On May 29, 2012, the CDCR notified Bernhardt by letter an investigation would begin. Suppl. Bernhardt Decl. Ex. Y, at 17, ECF No. 41. In August 2012 she first took her case outside the CDCR and filed a pre-complaint questionnaire with the federal Equal Employment Opportunity Commission (EEOC). EEOC Intake Questionnaire 4, ECF No. 36-19. She alleged sex discrimination, sexual harassment, and a hostile work environment, but not retaliation. Id. at 2. She requested the EEOC look into the discrimination and confirmed she wanted to file a charge against the CDCR, acknowledging that her name and claims may be disclosed. Id. at 4. The parties agree the EEOC did not forward the intake questionnaire to the California Department of Fair Employment and Housing (DFEH). In September 2012 she contacted the EEOC again and learned it required more information about the CDCR's internal investigation. Bernhardt Decl. ¶¶ 2b, 2c, ECF No. 36-18. Bernhardt contacted the EEOC again in October, November and December of 2012, and in January and March of 2013. Id. ¶¶ 2d-2 l.
In April 2013, Bernhardt received notice the CDCR's internal investigation was complete. Id. ¶ 2m; UMF1 no. 23. She requested its conclusions. Bernhardt Decl. ¶ 2m, ECF No. 36-18. The CDCR later informed her it had sustained nine of her seventeen allegations, id. ¶ 2n, and she forwarded this information to the EEOC. Id. In June 2013, the EEOC told her it had not finished its investigation, id. ¶¶ 2q, so she filed a charge of discrimination on July 2, 2013, id. ¶¶ 2q, 2s, and requested a right to sue letter, id. ¶ 2u, which she received on November 13, 2013, id. ¶ 2w. On June 21, 2013, she also filed a complaint of discrimination with the DFEH and received a right-to-sue letter the same day. Id. ¶ 2r. Before June 12, 2013, Bernhardt was acting without representation. Bernhardt Decl. ¶ 3.
The original judicial complaint in this case was filed on July 11, 2013. Compl., ECF No. 2. The First Amended Complaint, filed August 15, 2013, remains the operative pleading. First Am. Compl., ECF No. 8. Bernhardt alleges two statutory causes of action. First, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), she alleges sexual harassment, sex discrimination, and the CDCR's retaliation after she made her report. First Am. Compl. ¶¶ 14-16. Second, under the California Fair Employment and Housing Act (FEHA), California Government Code § 12940, she alleges the same claims: sexual harassment, sex discrimination, and retaliation. First Am. Compl. ¶¶ 19-22.
The CDCR moved for summary judgment on December 16, 2014. ECF No. 33. It advances three arguments: first, that Bernhardt did not timely exhaust her administrative remedies as to her Title VII and FEHA claims of discrimination and a hostile work environment; second, that it is entitled to an affirmative defense against both the Title VII and the FEHA discrimination claims because its policy against sexual harassment was effective and reasonable and Bernhardt did not take advantage of the CDCR's anti-harassment apparatus; and third, that Bernhardt has put forward insufficient evidence to establish a prima facie case of retaliation under either Title VII or the FEHA.
After reviewing the applicable legal standard, the court evaluates each of the CDCR's arguments in the context ...