United States District Court, E.D. California
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.
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.
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.
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
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).
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).
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).
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.
The Office of Violence Prevention Manager
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.
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.
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.
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.
Compliance with the Fair Labor Standards Act
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.
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.
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.
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.
planned, Glynn met with HR and a City Attorney on October 27
to discuss the City’s compensation
policies. 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.
Glynn’s Concerns About Due Process Violations
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.
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.
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.
Perceived Sexism and Hostility
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.
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 ...