Glynn v. City of Stockton

          ORDER

         Jessica Glynn alleges her former employer, the City of Stockton, discharged her because of her pregnancy and because she reported violations of the Fair Labor Standards Act (FLSA) and U.S. Constitution. The City disagrees, and moves for summary judgment. The court held a hearing on July 1, 2016. Nancy McCoy appeared for Glynn, and Marciana Arredondo appeared for the City. The motion is granted in part.

         I. PROCEDURAL BACKGROUND

         Glynn filed a complaint in this court in March 2015, which she amended with the court’s permission in May 2016. See Order, ECF No. 21; First Am. Compl., ECF No. 22. The amended complaint remains operative. Glynn asserts five claims against the City of Stockton: (1) gender and pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); (2) an essentially identical discrimination claim under the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940(a); (3) failure to prevent discrimination under the FEHA, Cal. Gov’t Code § 12940(k); (4) unlawful retaliation for reporting violations of the FLSA, 29 U.S.C. § 215(a)(3); and (5) unlawful retaliation for reporting constitutional and labor violations under California Labor Code section 1102.5. See First Am. Compl. at 6-11.

         The City moved for summary judgment on May 11, 2016. ECF No. 23. Glynn opposed the motion, ECF No. 35, and the City replied, ECF No. 36.

         II. EVIDENTIARY OBJECTIONS

         The City objects to many of the record citations Glynn submitted in support of her opposition brief. See generally Def.’s Resp. Pl.’s Stmt. Disp. Facts (Resp. Stmt.), ECF Nos. 36-1 and 36-2. In recent years, many judges in this district, including the undersigned, have cautioned litigants against terse and reflexive objections at summary judgment, especially when the objector is the moving party. See, e.g., Lindell v. Synthes USA, __ F.Supp.3d __, 2016 WL 70305, at *2 (E.D. Cal. Jan. 6, 2016); U.S. E.E.O.C. v. Placer ARC, 114 F.Supp.3d 1048, 1052-53 (E.D. Cal. 2015); Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F.Supp.2d 1122, 1126 n.1 (E.D. Cal. 2008); Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006). Counsel may find these orders useful for future reference.

         The admissibility of evidence at trial is governed by different rules and different motivations than at summary judgment. Whereas the full panoply of the Federal Rules governs evidence presented to a jury at trial, at summary judgment, Federal Rule of Civil Procedure 56 provides that a party may raise objections if “the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). As this language suggests, at summary judgment propriety depends not on form, but on content. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001). Thus, for example, on review of summary judgment, the Ninth Circuit has considered the hearsay contents of a diary whose substance would have been admissible in another form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Similarly, if evidence lacks full-fledged authenticity or foundation at summary judgment, it may yet warrant consideration if “substantive evidence could be made use of at trial.” Portnoy v. City of Davis, 663 F.Supp.2d 949, 953 (E.D. Cal. 2009) (citing Fraser, 342 F.3d at 1036) (quotation marks omitted).

         Relevance, vagueness, speculation, and similar objections are a particularly poor fit for summary judgment because the court may simply disregard irrelevant or indecipherable evidence. See, e.g., Burch, 433 F.Supp.2d at 1119. Likewise, an objection that a statement is argumentative or mischaracterizes the record either requests a credibility determination unsuited for summary judgment or would better be directed at the underlying evidence itself. See, e.g., Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1034 (C.D. Cal. 2013).

         The City’s objections fall into two categories: relevance and hearsay. See, e.g., Resp. Stmt. nos. 86-90. None is supported by argument, and only one citation follows each objection: the corresponding federal rule. See, e.g., id. no. 86 (“Objection. Inadmissible as hearsay. Fed.R.Evid. 801, 802.”). These objections are overruled. First, the evidence considered in this order is relevant, and objections to other evidence are moot. Second, the City’s hearsay objections do not fit the evidence they confront. Many of these objections target statements that are not hearsay. See, e.g., id. no. 91 (a supervisor gives advice about a media appearance); cf. Fed. R. Evid. 801(d)(2) (excluding from hearsay the statements of a party opponent). Other objections target statements unlikely to be offered to prove the truth of any underlying factual assertion. See, e.g., Resp. Stmt. no. 92 (the same supervisor makes an unflattering comparison between his wife and the plaintiff); cf Fed. R. Evid. 801(c)(2) (a statement is hearsay if it is offered “to prove the truth of the matter asserted in the statement”). The remaining statements are admissible in some other form at trial. See, e.g., Resp. Stmt. no. 103 (an employee said she has experience in a particular grant application process); cf. Fed. R. Evid. 602 (a witness may testify about her own personal knowledge).

         III. FACTUAL BACKGROUND

         When considering a motion for summary judgment, the court relies on whatever facts are undisputed and otherwise considers the evidentiary record in the light most favorable to the party opposing the motion. See, e.g., A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016). In this case that procedure sets up the following factual background.

         A. The Office of Violence Prevention Manager

         This case concerns Jessica Glynn’s former employment in Stockton’s Office of Violence Prevention (OVP). As its name suggests, the OVP works to prevent and reduce violence and crime in the City. See First Am. Compl. ¶ 9, ECF No. 22; Answer ¶ 9, ECF No. 27; Wilson Decl. ¶ 3, ECF No. 23-8. In short, OVP staff works with local community organizations to reach Stockton youth and young adults who are at greatest risk of violence. See Wilson Decl. Ex. A, at 1, ECF No. 23-8. In 2014, the City approved the creation of a position to oversee the OVP, the OVP Manager. Id. Among other responsibilities, the OVP Manager would direct the work of the OVP’s staff; ensure the OVP operated within City policy and any applicable state and federal law; monitor legislation and relevant legal developments; coordinate efforts between the OVP and other City agencies, law enforcement, and the public; oversee private and public fundraising efforts; and generally monitor the OVP’s budget and expenditures. Id. The OVP Manager would report to the City Manager’s Office. Id.

         In mid-2014, the City created a job description, see id., and set out to hire an OVP manager, Wilson Dep. 23. Several dozen candidates applied, and more than a dozen applications were forwarded to the City Manager, Kurt Wilson. Wilson Dep. at 24-25. Together, Wilson and the Chief of Police reviewed these applications and selected a handful of finalists. Id. at 25-26. Two panels of City employees interviewed the finalists, among whom was the plaintiff, Jessica Glynn, an attorney. Id. at 33-35. The interviewers had some concerns about Glynn’s qualifications, but in general their impression of her was favorable. See Id. at 34-40. In the end, Wilson concluded Glynn was the most qualified among the candidates the City interviewed. Id. at 42. He later described her as a “particularly qualified candidate” with a “unique combination of management and academic skills.” Wilson Dep. Ex. 15. On September 25, 2014, after a final interview, Wilson offered her the job. Id. at 58, 62-65 & Ex. 14.

         Glynn received an offer letter the day after her interview. See Clegg Decl. ¶ 2, ECF No. 23-9; Wilson Decl. Ex. D, ECF No. 23-8. She met with Christian Clegg, the Assistant to the City Manager, for a few hours on October 8, 2014 “to start planning out OVP” and to sign her offer letter. Glynn Dep. 152-53. At the end of this meeting, after signing the letter, she told Clegg she was pregnant. Id. at 153-55. He was surprised and told her that for him, “family comes first.” Id. at 153-54. He said that his wife was an attorney like Glynn, but that she stayed at home with their children because taking care of children is a full-time job. Id. at 153-54, 56. In Glynn’s memory, it was an awkward exchange. Id. at 155. Clegg explains that he had intended to communicate the City’s support for her well-being, i.e., that her family would come first. Clegg Dep. 305-06. He repeated this statement-“family comes first”-several times during her employment with the City. Glynn Dep. 156-57.

         On October 10, 2014, Glynn received a letter confirming her appointment as OVP Manager. Glynn Decl. ¶ 50 & Ex. O, ECF No. 32. October 16, 2014 was her first full day on the job. Id. ¶ 6. Clegg was her direct supervisor, and Wilson was Clegg’s superior. Wilson Decl. ¶ 7. Glynn’s subordinates, in order of rank, were the OVP Program Specialist, the Outreach Coordinator, and five Outreach Workers. Id.

         B. Compliance with the Fair Labor Standards Act

         On Glynn’s first full day as OVP Manager, Glynn Decl. ¶ 60, Wilson wanted to meet with her that day, but he was too busy. Glynn Decl. Ex. U; Clegg Dep. 59. The office was closed on Friday, so on Monday, Glynn arranged a meeting with Wilson for Tuesday, October 21. See Glynn Decl. ¶ 6 & Ex. U; Clegg Dep. 58.

         Glynn’s duties as OVP Manager included ensuring FLSA compliance. Clegg Dep. 274. Before her Tuesday meeting, Glynn became concerned that the City’s compensation policies for its outreach workers violated the FLSA. See Glynn Decl. ¶ 62 & Ex. V. Glynn asked to meet with someone from the City’s Human Resources department about these concerns, and a meeting was scheduled for October 27, 2014 with the City’s Assistant HR Director and the City Attorney. Id. ¶¶ 62, 64.

         A few minutes after scheduling her meeting with HR and the City Attorney, Glynn met with Wilson and Clegg, as she had arranged the day before. Id. ¶ 63. She told them about her concerns and her upcoming October 27 meeting, and she said, “I may have just saved you a wage and hour lawsuit.” Id. Clegg and Wilson understood her comment as a proposed justification for a raise and promotion, see Clegg Decl. ¶ 2; Clegg Dep. 58-59; Wilson Decl. ¶ 12, but Glynn did not intend her comment this way, Glynn Decl. ¶ 63. They thought she meant to ask for a promotion because in the same meeting, she revisited concerns she had raised earlier about her title and compensation: Before she signed her offer letter, she had asked Clegg and Wilson about whether the OVP Manager position was akin to that of a director. Glynn Dep. 259. To her mind, the job description resembled that of standalone director-level positions she had seen in other cities-positions generally independent of a city manager’s oversight or control-and she was curious or concerned why the City had decided its OVP Manager would report to the City Manager’s Office. Id. at 258-60. This difference also meant she would receive a lower salary. See Id. In response, Clegg explained the City Manager wanted to play a role in the OVP’s work and development. Id. at 260. Clegg said they would wait and “see how it develops” in response to Glynn’s concerns about her title and pay. Id. at 260-61.

         This exchange, misunderstanding or not, caused tension between Clegg and Glynn for several weeks, and he became concerned about their working relationship. Clegg Decl. ¶ 3; Clegg Dep. 60. Wilson also immediately second-guessed his decision to hire Glynn after their meeting on October 21. Wilson Decl. ¶ 12.

         As planned, Glynn met with HR and a City Attorney on October 27 to discuss the City’s compensation policies.^[1] Glynn Decl. ¶ 64. She remained convinced the City’s policies violated the FLSA, and again brought the matter to Clegg’s attention. Id. ¶ 65. He dismissed her concerns as an overreaction. Id. Glynn nevertheless told her subordinates in the OVP about their rights under the FLSA and attempted to avoid compliance problems by monitoring their timekeeping. Id. ¶¶ 66-67; see also Praegitzer 30(b)(6) Dep. at 40-41. She brought these same FLSA concerns to Clegg’s attention again in later conversations, but he admonished her for talking to her subordinates about their timekeeping and again said she was overreacting. Id. ¶¶ 68-69.

         C. Glynn’s Concerns About Due Process Violations

         Soon after Glynn started, she was alarmed by meetings that officers of the Stockton Police Department and OVP’s outreach workers had been holding every other week. Glynn Dep. 104, 117, 124-25; see also Praegitzer 30(b)(6) Dep. at 38-39; Praegitzer Dep. at 55; Clegg Dep. 288; Gomez Dep. 77. The purpose of these meetings was to allow police detectives and outreach workers to “share information.” Glynn Dep. at 104-05. In actual practice, however, police detectives used the meetings to gather information from the outreach workers about Stockton residents who were OVP’s clients. See Id. Experts from an outside organization, the California Partnership for Safe Communities, were surprised to hear from Glynn that the City held these meetings, as was Trevor Womack, a Stockton Deputy Police Chief. Id. at 105, 107-09. Womack believed conversations between line officers and outreach workers would be counterproductive, because the Police Department had no interest in cultivating the perception that it used outreach workers as informants. See Womack Dep. 22, 52-53.

         Glynn concluded the information meetings risked violations of OVP’s client’s due process rights and increased the probability of an investigation by the U.S. Department of Justice. Glynn Dep. 110, 150-52; Womack Dep. 53-54. She ended the meetings. Glynn Dep. 125. She expressed her concerns to Clegg, who said she was blowing any constitutional exposure out of proportion. Id. at 127; Clegg Dep. 287-90. In his view she had called for unnecessarily urgent action. Clegg Dep. at 291-92. He said she was behaving overdramatically and asked her subordinates whether they had concerns about her work. Glynn Dep. 131-33.

         Glynn also brought up her concerns in a meeting with representatives of the City Manager’s Office, the City Attorney’s Office, and the Police Department. See Womack Dep. 51- 54. The group listened to Glynn’s concerns, which she explained in terms of the Fourth and Fifth Amendments, and discussed how those concerns could be addressed. Id. at 53-54. They decided that if police or prosecutors wanted to use information obtained from an outreach worker, that worker would act as a witness like any other rather than pass tips to police informally as a confidential informant. Id. at 54. Glynn revisited the issue frequently in conversations with staff because some outreach workers had a habit of giving tips to police without her knowing. See Glynn Dep. 145.

         D. Perceived Sexism and Hostility

         As noted above, throughout Glynn’s employment with the City, Clegg told her that for him, “family comes first, ” Clegg Dep. 305; Glynn Dep. 156-57, 159, often in the context of her anticipated maternity leave, Glynn Dep. 158-59. The phrase “family comes first” became more offensive to her as time went on; she came to believe that “there was more to it” or that his words had a “deeper meaning” than simply underscoring the importance of one’s family. See Id. at 157-60. Glynn also inferred from Clegg’s Mormon faith, which he volunteered at one point, that his statement “took on more of a meaning.” Id. at 188. In her complaint, she alleges he believed a woman’s place was at home, not at work, and thought she was not putting her family first. First Am. Compl. ¶ 11, ECF No. 22.

         Clegg made other comments Glynn found condescending and sexist. He told her that she was overdramatic, that she overreacted, and that she was too hasty. Glynn Dep. 90, 161. Before Glynn’s first media interview, in response to her request for advice, Clegg said she should not be “so confident.” Id. at 161-64. He “shut down” her requests to talk about sexism in the office. Id. at 204-05. He compared her to his wife, whom he described as forceful and dramatic, and said ...