United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RE: DKT. NO.
J. DAVILA United States District Judge.
Gina Smith, Laurey Shumaker, and Dagmar Chambers
(collectively, “Plaintiffs”),  bring this action
against the County of Santa Clara (“the County”),
and three County employees, Alfonso Banuelos, M.D., Barbara
Traw, and Anna Hughes (collectively,
“Defendants”), alleging violations of Title VII
of the Civil Rights Act of 1964 (“Title VII”),
the California Fair Employment and Housing Act
(“FEHA”), 42 U.S.C. § 1983, and other
before the court is Defendants’ Motion for Summary
Judgment (“Mot.”). Dkt. No. 49. Having now
carefully reviewed the parties’ papers and arguments in
conjunction with the record, the court has determined that
Defendants are entitled to summary judgment on some, but not
all, of Plaintiffs’ claims. Thus, Defendants’
Motion will be granted in part and denied in part for the
reasons explained below.
allege, and Defendants do not dispute, that they are employed
as Registered Nurses (“RN”) by the County of
Santa Clara. First Am. Compl. (“FAC”) ¶ 26,
Dkt. No. 5. Plaintiffs work at the Santa Clara Valley Medical
Center (“SCVMC”) in the Division of Maternity,
specializing in the field of Mother Infant Care at the Mother
Infant Care Center (“MICC”). Id.
The Mother Infant Care Center (“MICC”)
MICC is a postpartum care unit of the SCVMC offering medical
treatment to infants and mothers following childbirth. Nurses
in the MICC attend to the unique needs of new mothers and
babies, including helping the mother to use the bathroom and
bathe, changing the mother’s undergarments, performing
and assisting with breastfeeding techniques, and cleaning the
mother’s genital area of blood and other bodily fluids
- a technique known as perinatal care. Decl. of Charles A.
Bonner (“C. Bonner Decl.”) at Ex. 1, 77:4-78:23,
Dkt. No. 63.
employed by the County, including Plaintiffs, are members of
the Registered Nurses Professional Association
(“RNPA”). Id. ¶ 4. Like other
nurses at SCVMC, MICC nurses are categorized as “per
diem, ” “extra help, ” or
“coded” nurses. Decl. of Joanne Cox (“Cox
Decl.”) ¶ 5, Dkt. No. 52. “Per diem”
and “extra help” nurses fill staffing shortages
caused by vacations, leaves of absence, and patient
fluctuations, and are generally considered at-will employees.
Id. In contrast, “coded” nurses work a
minimum set number of hours each pay period, depending on
their code,  and are entitled to the rights set forth
in the RNPA’s Agreement with the County. Id.
¶ 6, Ex. A.
Traw is the Nurse Manager of the MICC. Decl. of Karl Sandoval
(“Sandoval Decl.”) at Ex. A, 71:5-7, Dkt. No. 51;
see FAC ¶ 60. In her capacity as Nurse Manager,
Traw oversees the day-to-day operations of the MICC, assists
in the hiring of new staff, handles patient and staff
complaints, and participates in disciplinary proceedings.
Id. at Ex. A, 71:7-21. Nurses in the MICC report to
Assistant Nurse Managers, who in turn report directly to
Traw. See id. at Ex. A, 105:3-6. During the time
period relevant to this action, there were three Assistant
Nurse Managers for the MICC: Krystal Kajoica during the day,
Annabelle Ablan in the evening, and Editha Guiang at night.
Id. at Ex. A, 95:9-12; Ex. F, 42:1-25; 50:19-51:1;
Ex. G, 8:19-23. Each shift also had a designated
“charge nurse” who was responsible for overseeing
the “workflow” of the shift, including ensuring
that nurses take breaks, assigning nurses to newly admitted
patients, and setting the assignments for the incoming nurses
on the next shift. Sandoval Decl. at Ex. F, 38:3-39:22.
Personnel Changes and Hiring Male Nurses in the MICC
2009 and 2011, the MICC went through at least two rounds of
“layoffs, ” resulting in the transfer of nurses
to other positions outside of the MICC or the elimination of
their position all together. See id. at Ex. B,
127:16-128:18. When Traw became the Nurse Manager of the MICC
in 2010, the SCVMC did not employ any male nurses in the
MICC, although there were male student nurses who would
rotate through the unit. See id. at Ex. A,
78:24-79:3; Ex. F 146:4-147:7. According to Plaintiffs, male
nursing students typically did not perform the more intimate
aspects of care in the MICC, such as checking for vaginal
bleeding or conducting breast examinations. Decl. of Gina
Smith (“Smith Decl.) ¶ 7-8, Dkt. No 61; Decl.
Dagmar Chambers (“Chambers Decl.”) ¶¶
9-10, Dkt. No. 60.
February 2011, Traw and the Assistant Nurse Managers -
Kajoica, Ablan, and Guiang - began interviewing applicants
for three “extra help” nursing positions in the
MICC. Id. at Ex. A, 82:2-83:24; 94:16-95:8. With
Traw’s agreement, the Assistant Nurse Managers extended
offers of employment to three male candidates, all of whom
were licensed to practice in California by the Board of
Registered Nursing. Id. at Ex. F, 452:3-9; Req. for
Judicial Notice (“RJN”), Dkt. No. 50, at Exs. B,
C, D. One of the new male hires was Trent Mikami
(“Mikami”), who had previously worked in the MICC
as a “special clerk.” See Sandoval Decl.
at Ex. F, 148:12-149:4.
discussed in greater detail below, Plaintiffs had concerns
regarding the hiring of the male nurses in the MICC, and
specifically regarding the hiring of Mikami. C. Bonner Decl.
at Ex. 1, 99:7-104:17.
Plaintiff Gina Smith
is an African-American female who is, and at all times
relevant to this action was, employed by the County as a
registered nurse. Smith is a 0.5 “coded” employee
and works the evening shift in the MICC from 3:00 p.m. to
11:30 p.m. See Sandoval Decl. at Ex. A, 70:5-7.
Smith began working for the County in 1992, and has worked in
the MICC since June 2006. Smith Decl. ¶ 2.
Smith Raises Concern Regarding the Hiring of Male Nurses in
February 25, 2011, Smith asked Dr. James Byrne, the chief of
the Maternal Child Health Division, “what his thoughts
were regarding the prospect of male nurses working in the
MICC unit as direct caregivers for mothers and babies.”
Smith Decl. ¶ 10. According to Smith, several female
patients had conveyed to her that they felt uncomfortable and
potentially unsafe with male nurses performing their care.
Sandoval Decl. at Ex. F, 195:15-196:2. Three days after the
conversation, Dr. Byrne wrote an email to the hospital
administration stating: “MICC RN Gina Smith asked me
what I thought of the prospect of male RN’s [sic] being
assigned to MICC. She stated that she was opposed and thought
it was wrong to have male RN’s [sic] present on her
ward.” Id. at Ex. K, 37:2-17; 60:15-23, Ex.
about March 10, 2011, Traw issued Smith an “Unfavorable
Report” based on her comments to Dr. Byrne opposing the
hiring of male nurses. Id. at Ex. A, 157:18-158:2,
Ex. 5. The Report stated that that Smith’s conduct
violated the County’s policy against gender
discrimination. Id. at Ex. A, 157:18-158:2;
359:13-19; 378:5-379:11. As part of the disciplinary action
in response to this Report, Traw also required Smith to
attend a Sexual Harassment and Discrimination training.
Id. at Ex. A at 168:169-4.
Smith Raises Concerns Regarding Staffing Assignments, Patient
Care, and Racial Favoritism
January 24, 2011, Smith sent an email to Traw and the Chief
Nursing Officer, Trudy Johnson, claiming that she had been
denied breaks on January 20, 2011 by Chau Luu, the charge
nurse on duty. C. Bonner Decl. at Ex. 2, 396:24-399:12. Smith
further informed Traw and Johnson that Luu had instructed the
MICC nurses “to relieve each other, ” which she
argues “would have resulted in each nurse doubling her
patient count” and improper patient to nurse ratios.
Smith Decl. ¶ 28(b), Ex. 6.
April 4, 2011, Smith sent an email to Traw and Johnson
accusing Ablan of racial favoritism. See Sandoval
Decl. at Ex. F, 318:8-12. Specifically, Smith testified that
Ablan gave “special assignments and treatment” to
Filipino nurses who were her friends. Id. at Ex. F,
318:8-12; 324:22-325:2. About a week later, on April 11,
2011, Smith sent another email to Traw and Johnson
complaining of favoritism and racism by Raquel Bautista, the
charge nurse on duty the previous day. Sandoval Decl. at Ex.
F, 342:2-19, Ex. 8. And on May 17, 2011, Smith spoke with
Traw about a patient assignment she considered unsafe and
claimed that the assignment was racially discriminatory.
Smith Decl. ¶ 28(c). Specifically, Smith voiced her
concern that she had been assigned to six patients, three of
whom were classified as “acuity level 3, ” while
other nurses had only “acuity level 2” patients.
Sandoval Decl. at Ex. F, 354:21-355:14. Traw acknowledged
that Smith’s complaint regarding this assignment raised
issues of patient care and safety. C. Bonner Decl. at Ex. 2,
400:6-401:12. Traw also stated she received a complaint from
the charge nurse on duty that day alleging that Smith had
been disruptive and unprofessional. Traw Decl. ¶ 4, Ex.
B, Dkt. No. 53.
on June 8, 2011, Traw issued Smith an “Employee Written
Counseling” for violating the County’s
“Code of Conduct” policy based on the May 17th
incident. See C. Bonner Decl. at Ex. 2, 421:1-18;
Smith Decl., Ex. 7, Dkt No. 61-7; Sandoval Decl. at Ex. A,
Ex. 40; Traw Decl. ¶ 4, Ex. B. The Written Counseling
alleged that Smith was disruptive, repeatedly interrupted the
charge nurse, attempted to change patient assignments without
supervisor authorization, refused to take breaks at the
scheduled time, and failed to use proper communication with
her colleagues. Smith Decl. Ex. 7; Traw Decl. Ex. B.
21, 2011, Smith was reviewing the schedule with Chambers, and
believed that Filipino nurses were “more frequently
scheduled to relief, resource and charge nurses than nurses
of other national origins.” Smith Decl. ¶ 28(d).
Smith raised this concern about the schedule to Ablan, who
was in charge of assigning the schedules, and accused her of
discrimination. Id. Smith also alleges that on the
same day, she was denied her 15 minute break. Id.
on or about August 9, 2011, Traw wrote Smith another
“Employee Written Counseling” regarding her
alleged conduct on July 21st and her failure to improve her
behavior generally since the June 8th write-up. See
C. Bonner Decl. at Ex. 2, 421:1-18, Ex. 42. The Written
Counseling accused Smith of continuing to compare scheduling
assignments, exhibiting “inappropriate behavior”
toward her charge nurse, and failing to take breaks at the
scheduled time, among other allegations. Id.; Smith
Decl. ¶ 28(c), Ex. 8, Dkt. Nos. 61-8, 61-9. The write-up
initially included a paragraph accusing Smith of failing to
perform routine duties regarding a “C-section”
patient, but Traw later deleted this paragraph after she
“went back re-talked to the nurse who had made these
statements, ” and the nurse was “no longer
willing to back them up.” C. Bonner Decl. at Ex. 2,
421:1-18, 423:17-426:12, Exs. 41, 42; Sandoval Decl. at Ex.
A, 421:1-18, 425:14-426:12, Ex. 41. Traw testified that the
Written Counseling was not a formal write-up, but rather was
a “plan of correction, ” intended only as a
talking point for improving Smith’s allegedly
inappropriate behavior. Sandoval Decl. at Ex. A,
422:3-423:13. The write-up was kept as part of Traw’s
file on Smith. Id.
Smith is Accused of Committing a HIPAA Violation
about August 18, 2011, Smith made a complaint of
discrimination to Vernon Crawley, a representative of the
Equal Opportunity Division (“EOD”), regarding the
allegedly unsafe patient staffing in the MICC. Sandoval Decl.
at Ex. I, 17:13-18, Dkt. No. 51-9. In support of her
concerns, Smith took an assignment sheet identifying the
acuity level of patients in the MICC and showed the document
to Crawley. Id. at Ex. I, 17:13-18:21. In September
2011, Traw reported this disclosure as a potential HIPAA
violation to Hughes, the Compliance and Privacy Officer for
the County’s Health and Hospital System. Id.
at Ex. A, 429:1-430:20; Ex. D, 201:4-202:8, Dkt. No. 51-4.
Hughes investigated and concluded that Smith’s actions
violated HIPAA on or about October 20, 2011. Id. at
Ex. D, 208:12-19; 209:20-210:19.
filed complaints with the Equal Employment Opportunity
Commission (“EEOC”) on August 19, 2011 and the
Department of Fair Employment and Housing
(“DFEH”) on November 9, 2011. Id. at Ex.
F, 434:12-24, Exs. 11, 21.
Plaintiff Dagmar Chambers
is a European-American female who has been a County employee
since February 1992 and began working in MICC in 2006.
Chambers Decl. ¶ 2.
Chambers Raises Concerns Regarding the “Misuse of
Public Money” and, In Particular, the
Hiring of Trent Mikami in the MICC
February 11, 2011, Chambers received an email from Johnson
regarding issues related to the hospital budget and
“inviting employee input.” Chambers Decl. ¶
3, Ex. 1. Chambers responded to the email, stating that she
believed there to be “corruption” and
mismanagement of taxpayer money occurring in the MICC.
Id.; Sandoval Decl. at Ex. H, 307:2-4, Ex. 11.
Specifically, Chambers claimed that Traw hired Mikami as an
“extra help” clerk without properly posting the
position and sent him to a paid two-day breastfeeding class,
which she thought was a misuse of public grant money.
Sandoval Decl. at Ex. H, 307:5-308:10, Ex. 11. Johnson
indicated that she would look into the process through which
Mikami was hired to “ensure everything is done
fairly…and that he is not getting special treatment,
” but that it was “not a problem” for an
employee to attend a paid breastfeeding class.”
Sandoval Decl. at Ex. E, 52:7-53:9. Johnson also testified
that she did not share further information with Chambers
because it was confidential employment information.
mid-February 2011, Chambers was involved in a conversation
with other MICC nurses regarding the implications of hiring
male nurses in the MICC. Chambers Decl. ¶¶ 13-15.
Among the concerns was the impact on patient care and safety.
Id. Thereafter, Guiang reported Chambers for
allegedly saying that she would not help male nurses if they
were hired. Sandoval Decl. at Ex. A, 112:7-11, Ex. 1;
125:14-17; 143:8-20, Ex. 4. Chambers disputes having made
this comment. Id. at Ex. A, 112:7-11, Ex. 1;
Chambers Decl. ¶¶ 17-19. On March 2, 2011, Chambers
states that she attempted to speak to Johnson regarding her
concerns about hiring male nurses in the MICC and its impact
on patient care, but that when she raised the issue, Johnson
put her hand up and said “that is sexual harassment,
sex discrimination…stop…stop!” Chambers
Decl. ¶ 15. Chambers asserts that Johnson repeated this
several times when other MICC nurses brought up the topic.
Id. On March 8, 2011, Traw issued Chambers an
“Unfavorable Report” based on the comments she
allegedly made regarding the male nurses, stating that
Chambers had engaged in gender discrimination and sexual
harassment. Sandoval Decl. at Ex. A, 112:7-11, Ex. 1;
Chambers Decl. ¶ 18. Traw instructed Chambers not to
discuss the write-up with anyone. Chambers Decl. ¶ 18.
Chambers is Investigated for Involvement in a Potential a
October 2011, Hughes commenced an investigation into an
alleged HIPAA and privacy violation. On or around October
24-26, 2011 County employee Sylvia Gallegos stayed in the
MICC where she was adopting a newborn baby. Chambers Decl.
¶ 30. To accommodate Gallegos, another patient was moved
out of a private room. C. Bonner Decl. Ex 1, 180:1-181:8.
Some MICC nurses were upset about this and expressed concern
that a County executive was being given special treatment at
the expense of other patients and taxpayers. Id. at
Ex. 1, 180:1-187:5; Sandoval Decl. at Ex. D, 117:2-118:5.
October 26, 2011, the County received an email from a San
Jose Mercury News reporter requesting a comment
regarding a “tip” that Sylvia Gallegos was
adopting a baby and was being given special treatment by way
of a multi-night stay in a private room at taxpayers’
expense. Sandoval Decl. at Ex. D, 57:13-60:9, Ex. 3. The
reporter included dates of hospitalization and reference to
the specific room number. Id. at Ex. D, 57:13-24,
Ex. 3. The reporter subsequently published an article
disclosing that information. See id. at Ex. A,
201:11-12; Chambers Decl. ¶ 34, Ex. 3A. Consequently,
Hughes initiated an investigation into the disclosure.
investigation included interviewing fourteen MICC employees
who had potentially come into contact with Gallegos,
including Chambers. Sandoval Decl. at Ex. D, 116:17-117:1;
119:15-16. One nurse purportedly claimed that Chambers told
her she had disclosed the information to the reporter.
Id. at Ex. D, 202:16-204:17. Hughes interviewed
Chambers and she denied having disclosed the information.
Id. at Ex. D, 168:5-24. Hughes states that she did
not believe Chambers based on the testimony of other nurses
and Chambers’ statements during her interview.
Id. at Ex. D, 168:25-169:6; 171:1- 21;
was then placed on paid administrative leave from November
2011 to May 2012 pending completion of Hughes’
investigation. Id. at Ex. H, 257:19-258:16, Ex. 9;
Chambers Decl. ¶¶ 36-38; C. Bonner Decl. at ¶
1, 205:12-206:19. During that time, Chambers was ineligible
for transfers or promotions. Chambers Decl. ¶¶
36-38, Ex 4. Hughes later concluded that Chambers was the
source of disclosure and Chambers was issued a formal
“Employee Written Counseling” on May 23, 2012 and
given a “bad Evaluation” by Traw. Sandoval Decl.
at Ex. D, 304:20-306:16; Ex. H, 117:6 - 118:21, Ex. 3;
Chambers Decl. ¶¶ 38, 40, Ex. 5.
Chambers’ Requested Schedule Modification Is
before being placed on administrative leave in November 2011,
Chambers requested a modification to her regular schedule
that would allow her to work an extra day during the week of
November 14, 2011, and then take an additional day off on
Thursday November 17, 2011 for the Thanksgiving holiday.
Chambers Decl. ¶ 48. This request was approved and
Chambers was scheduled to work nine days, beginning Tuesday
November 8, 2011 through November 16, 2011. Id.
on November 11, 2011, Ablan told Chambers that Traw denied
the request, and Chambers was no longer permitted to work
that Monday because it would require her to work eight days
in a row. Id. Traw states that she denied the
request because she “believed it to be unsafe for
nurses to work more than eight days in a row.” Traw
Decl. ¶ 6. But Chambers asserts that she had previously
worked more than eight days on a regular basis, including the
prior month wherein she had worked ten days in a row between
August 30, 2011 and September 8, 2011. Chambers Decl. ¶
49. Chambers also contends that she has continued to work for
as many as ten days in a row since that time. Id.
filed complaints with the DFEH alleging discrimination,
retaliation, and harassment on the basis of race and gender
on November 17, 2011 and December 2, 2011. Sandoval Decl. at
Ex. H, 453:24-454:12, Ex. 17; 466:10-466:25, Ex. 18.
Plaintiff Laurey Shumaker
Smith and Chambers, Shumaker is, and at all times relevant to
this action was, employed by the County as a registered
nurse. Declaration of Laurey Shumaker (“Shumaker
Decl.”) ¶ 2, Dkt. No. 62; Sandoval Depo. at Ex. B,
15:14-17; 16:3-4; FAC ¶ 57. Shumaker worked the evening
shift as a “0.5 coded” nurse and was assigned to
the MICC from September, 2001, when she became a county
employee, through February 2011, when she left on extended
disability leave. Sandoval Depo. at Ex. B, 16:12-21; 26:7-17;
31:21-32:7; Shumaker Decl. ¶ 13.
Shumaker’s RNPA Union Activity and
“Administrative Transfer” to the
was also the nurses’ RNPA union representative from
2006 to 2011. Shumaker Decl. ¶ 3; Sandoval Decl. at Ex.
B, 122:6-7. In that position, Shumaker was a vocal advocate
for other nurses and, in 2010, actively opposed the transfers
and layoffs occurring in the MICC. Shumaker Decl. ¶ 4;
Sandoval Decl. at Ex. B, 123:5-124:14;127:16-128:18.
Specifically, Shumaker believed that the proposed personnel
changes would have left SCVMC out of compliance with state
mandated nurse-to-patient ratios. Shumaker Decl. ¶ 4;
Sandoval Decl. at Ex. B, 123:5-124:14;127:16-128:18. To that
end, Shumaker organized and encouraged other nurses to fill
out forms regarding the non-compliant ratios for the RNPA
union, which the RNPA in turn presented to the County Board
of Supervisors at a meeting in or about January, 2011.
Shumaker Decl. ¶¶ 4-6; Sandoval Decl. at Ex. B,
January 2011, the Board decided to eliminate the equivalent
of 2.6 full-time positions from the MICC. Cox Decl. ¶ 7.
Pursuant to the RNPA Agreement’s provisions governing
layoffs, the 2.6 positions to be eliminated were those
positions held by the nurses with the least seniority.
Id., Ex. A, section 5.4-5.5. Shumaker was not one of
the nurses laid off. Id.; Sandoval Decl. at Ex. B,
131:23-24. However, on January 28, 2011, Traw sent Shumaker a
letter advising her that beginning on February 9, 2011, she
would be “administratively transferred” from the
evening shift (3:00 p.m. to 11:00 p.m.) to the night shift
(11:00 p.m. to 7:00 a.m.). Shumaker Decl. ¶ 7; Sandoval
Decl. at Ex. B, 141:15-142:3, Ex. 5. Traw testified that this
transfer was necessary because the layoffs left the night
shift understaffed. Sandoval Decl. at Ex. B, 534:20-537:11,
Ex. 67; 538:2-539:7, Ex. 68; 540:12-18, Ex. 69. And because
Shumaker occupied the lowest code (0.5) and had the least
seniority on the evening shift, she was administratively
transferred to the night shift. Id.
Shumaker’s Medical Disability and Request for
receiving the notice of transfer letter, Shumaker contacted
Johnson and Traw expressing her concern to that, unlike other
coded employees who were administratively transferred, she
had not been provided with sufficient notice of this change.
Shumaker Decl. ¶ 8; Sandoval Decl. at Ex. B, at
154:6-25. In response, Johnson and Traw agreed to provide her
with an additional ten days before her transfer went into
effect. Sandoval Decl. at Ex. B, 154:6-25; Ex. A,
on February 22, 2011, Shumaker was placed on medical
disability by her primary care doctor due to a diagnosed
sleep disorder that prevented her from being able to work the
night shift. Shumaker Decl. ¶¶ 10, 11, 18, Exs. 9,
10, 15, 17, 18. On March 31, 2011, Shumaker made a reasonable
accommodation request to transfer to evening or dayshift
anywhere in the Santa Clara County system, however, the
County indicated that there were no positions available to
accommodate her. Id. at ¶¶ 11-12.
Shumaker contends that other nurses of a different race and
gender from her were assigned to the evening shift following
her accommodation requests, which she argues undermines
Defendants’ letter stating that no accommodation
existed. FAC ¶ 61. Shumaker remained on medical leave
from February 23, 2011 until January 14, 2013, when the
County was able to accommodate her and she began work at the
Tully Clinic. Sandoval Decl. at Ex. B, 20:1-7; 15:14-19.
filed complaints with the DFEH and EEOC on October 17, 2011
alleging discrimination, retaliation, and harassment on the
basis of race, gender, age, and disability. Sandoval Decl.,
Exs. L, M.
motion for summary judgment or partial summary judgment
should be granted if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
moving party bears the initial burden of informing the court
of the basis for the motion and identifying the portions of
the pleadings, depositions, answers to interrogatories,
admissions, or affidavits that demonstrate the absence of a
triable issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the issue is one
on which the nonmoving party must bear the burden of proof at
trial, the moving party need only point out an absence of
evidence supporting the claim; it does not need to disprove
its opponent’s claim. Id. at 325. If the
moving party meets the initial burden, the burden then shifts
to the non-moving party to go beyond the pleadings and
designate specific materials in the record to show that there
is a genuinely disputed fact. Fed. R.Civ. P. 56(c);
Celotex Corp., 477 U.S. at 324.
“genuine issue” for trial exists if the
non-moving party presents evidence from which a reasonable
jury, viewing the evidence in the light most favorable to
that party, could resolve the material issue in his or her
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-49 (1986). The court must draw all reasonable
inferences in favor of the party against whom summary
judgment is sought. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). However, the mere
suggestion that there are facts in controversy, as well as
conclusory or speculative testimony in affidavits and moving
papers, is not sufficient to defeat summary judgment.
Id. (“When the moving party has carried its
burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts.”); Thornhill Publ’g Co. v.
GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead,
the non-moving party must come forward with admissible
evidence to satisfy the burden. Fed.R.Civ.P. 56(c).
principles of summary judgment apply equally in
discrimination cases. Steckl v. Motorola, Inc., 703
F.2d 392, 393 (9th Cir. 1983). General assertions that a
defendant had a discriminatory motive or intent in taking an
adverse action are insufficient to defeat summary judgment
unless supported by substantial factual evidence. Id.
Adetuyi v. City & Cty. of San Francisco, 63
F.Supp.3d 1073, 1080 (N.D. Cal. 2014) (“A party cannot
defeat a motion for summary judgment by offering
‘purely conclusory allegations of alleged
discrimination, absent concrete particulars ..., for to do so
would necessitate a trial in all Title VII cases.”)
(citing Candelore v. Clark Cnty. Sanitation Dist.,
975 F.2d 588, 591 (9th Cir. 1992)).
the nonmoving party fails to produce enough evidence to
create a genuine issue of material fact, the moving party
wins the motion for summary judgment.” Nissan Fire
& Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d
1099, 1103 (9th Cir. 2000). “But if the nonmoving party
produces enough evidence to create a genuine issue of
material fact, the nonmoving party defeats the motion.”
submitted a list of objections to the declarations submitted
by Plaintiffs in opposition to the motion. These evidentiary
objections are misplaced.
Rule 56, “[a] party may object that 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). Consequently, the focus of an objection at the
summary judgment stage is not “the admissibility of the
evidence’s form” but on the “admissibility
of its contents.” Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003). In consideration of the
applicable standard, “objections to evidence on the
ground that it is irrelevant, speculative, and/or
argumentative, or that it constitutes an improper legal
conclusion are all duplicative of the summary judgment
standard itself” and are unnecessary. Burch v.
Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1119
(E.D. Cal. June 5, 2006). So too are objections based on the
best evidence rule, or which assert that a declarant’s
statement was made without personal knowledge, “lacks
foundation, ” or is given in the form of a legal
conclusion. Alvarez v. T-Mobile USA, Inc., No. CIV.
2:10-2373 WBS, 2011 WL 6702424, at *3-4 (E.D. Cal. Dec. 21,
2011). “Instead of challenging the admissibility of
this evidence, lawyers should challenge its
sufficiency.” Id. Defendants objections made
on any of these ground are overruled.
have also objected to certain statements as contradictory of
deposition testimony, and have objected to certain
declarations as either untimely under Civil Local Rule
5-1(e)(4) or as offered by witnesses who were not disclosed
by Plaintiffs according to Federal Rule of Civil Procedure
26. These objections are not evidentiary in nature despite
the label Defendants have applied to them and are overruled
on that basis.
remains are objections based on hearsay. Because the court
will not rely on the particular evidence objected to by
Defendants, the hearsay objections are overruled as moot.
Exhaustion of Administrative Remedies for Age Discrimination
initial matter, Defendants contend that Smith and Chambers
failed to include allegations of age discrimination in their
EEOC and DFEH complaints, and consequently are barred from
bringing claims based on age discrimination in this court.
Mot. at 21.
both Title VII and FEHA, an employee-plaintiff alleging
discrimination must exhaust his or her administrative
remedies prior to bringing a civil action in court by filing
a timely charge with the appropriate administrative agency.
Lyons v. England, 307 F.3d 1092, 1104 (9th Cir.
2002) (“To establish federal subject matter
jurisdiction, a plaintiff is required to exhaust his or her
administrative remedies before seeking adjudication of a
Title VII claim.”); Okoli v. Lockheed Tech.
Operations Co., 36 Cal.App.4th 1607, 1613 (1995)
(“[I]n the context of the FEHA, exhaustion of the
administrative remedy is a jurisdictional prerequisite to
resort to the courts.”). For Title VII claims, this
means that an employee must first file a complaint with the
EEOC, and for FEHA claims, it means an employee must first
file a complaint with the DFEH. Lelaind v. City &
Cty. of San Francisco, 576 F.Supp.2d 1079, 1090 (N.D.
Cal. 2008). The scope of a subsequent civil action is
confined by the scope of the administrative
complaint.Accordingly, “unlawful conduct not included
in an administrative complaint is not considered by a court
unless the conduct is like or reasonably related to the
allegations in the administrative complaint, or can
reasonably be expected to grow out of an administrative
Smith and Chambers allege that the County violated Title VII
and FEHA by discriminating against them on the basis of age
in their First, Fourth, Fifth, and Eighth causes of action.
FAC ¶¶ 78-81; 90-93; 94-98; 111-116. Smith and
Chambers admit that they failed to expressly include age
discrimination in their respective administrative complaints,
but argue their claims are not precluded on exhaustion
grounds for two reasons. First, they contend that pursuant to
the Ninth Circuit’s decision in Bak v. Postal
Serv., (U.S.), 52 F.3d 241, 244 (9th Cir. 1995), a
claimant is no longer required to exhaust his or her
administrative remedies prior to filing a civil action for
age discrimination. Opp. at 23. Alternatively, they contend
that even if age discrimination claims are not exempt from
the exhaustion requirement, their age discrimination claims
are nevertheless “like or reasonably related” to
the other allegations of discrimination contained in the
administrative complaints. Opp. at 24. Each argument will be
addressed in turn.
to the first argument, Smith and Chambers’ reliance on
Bak is misplaced. Unlike in Bak, where the
plaintiff filed an age discrimination claim pursuant to the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, Smith and Chambers bring their age
discrimination claims pursuant to Title VII and FEHA. Under
the ADEA, a complainant may proceed directly to federal court
after giving the EEOC notice of intent to sue. 29 C.F.R.
§ 1614.201. This is not true of claims brought under
Title VII or FEHA. Indeed, the Ninth Circuit specifically
distinguished age discriminations brought pursuant to the
ADEA from claims brought pursuant to Title VII in
Bankston v. White, explaining that “[u]nlike
Title VII … the ADEA ‘contains no express
requirement that a federal employee complainant seek
administrative relief.’” 345 F.3d 768, 770 (9th
Cir. 2003) (quoting Stevens v. Dep’t of
Treasury, 500 U.S. 1, 12, (1991) (Stevens, J.,
concurring and dissenting). Therefore, while age
discrimination claims brought under the ADEA are “not
subject to any administrative exhaustion requirement, ”
age discrimination claims brought under Title VII and FEHA
still are. Accordingly, the court finds that Smith and
Chambers were required to exhaust their administrative
remedies prior to filing a civil action for age
discrimination in this court.
there is no dispute that Smith and Chambers failed to exhaust
their age discrimination claims through the appropriate
administrative processes, the remaining question is whether
the claims nevertheless are “like or reasonably
related” to the allegations contained in their
respective administrative complaints. See Lelaind,
576 F.Supp.2d at 1090; Lyons v. England, 307 F.3d
1092, 1104 (9th Cir. 2002) (“Incidents of
discrimination not included in an EEOC charge may not be
considered by a federal court unless the new claims are like
or reasonably related to the allegations contained in the
EEOC charge.” (quoting Green v. Los Angeles County
Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir.
argue that Smith and Chambers’ age discrimination
claims “necessarily involve different arguments and
evidence than their retaliation and race and
gender-discrimination claims, ” and consequently are
not “like or reasonably related” to such claims.
Def. Reply in Support of Mot. to Dismiss
(“Reply”) at 13-14, Dkt. No. 66. The court agrees
that Plaintiffs have failed to demonstrate why an
investigation regarding discrimination on the basis of race
and gender would reasonably trigger an investigation into
discrimination on the basis of age. See Stallcop v.
Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir.
1987) (holding that allegations of sex and age discrimination
in civil complaint were not encompassed by the charge filed
with the DFEH alleging only national origin discrimination).
Smith presents additional evidence that she included
“age” in her complaint because she checked the
box for “age” on her EEOC intake questionnaire.
Smith Decl. ¶ 31, Ex. 16. Accordingly, she argues that
her age discrimination claim “would have been
discoverable” during an investigation of her claims and
should not be barred for failure to exhaust. Opp. at 24.
Smith’s position is persuasive. In B.K.B. v. Maui
Police Department, the Ninth Circuit held that if the
charge is deficient in recording the complainant’s
theory of the case due to error of an agency representative,
“then the plaintiff may present her pre-complaint
questionnaire as evidence that her claim for relief was
properly exhausted.” 276 F.3d 1091, 1102 (9th Cir.
2002); see also Cheek v. W. & S. Life Ins., Co.,
31 F.3d 497, 502 (7th Cir. 1994) (finding that
“[a]llegations outside the body of the charge may be
considered when it is clear that the charging party intended
the agency to investigate the allegations”);
Sickinger v. Mega Systems, Inc., 951 F.Supp. 153,
157-58 (N.D. Ind. 1996) (holding that plaintiff could rely
upon allegations made in her pre-complaint questionnaire for
purposes of exhaustion where the EEOC representative failed
to include allegations of wrongful retaliation that were
presented on the questionnaire).
Smith checked boxes on her EEOC intake questionnaire form
indicating that she believed that she had been subjected to
discrimination based on “race, ” “sex,
” “age, ” and “national
origin.” Smith Decl. ¶ 31, Ex. 16. Liberally
construed, it is reasonable to interpret Smith’s EEOC
intake questionnaire as evidence that she intended her right
to sue letter to encompass an age discrimination claim. In
light of this, the court concludes that Smith properly
exhausted her administrative remedies and is not barred from
raising allegations of age discrimination in this case.
contrast, Chambers has not presented any evidence suggesting
that she intended to include age discrimination in her
administrative charges. Nor has she demonstrated why her age
discrimination claim would be related to or encompassed by an
investigation of the other discrimination allegations in her
EEOC or DFEH complaints. See Stallcop, 820 F.2d at
1050. Consequently, Chambers failed to properly exhaust her
administrative remedies. Therefore, Defendants’ motion
is GRANTED to the extent that the Fourth and Eighth causes of
action are based on allegations of age discrimination by
Discrimination and Retaliation Under Title VII and
VII makes it unlawful for an employer to “discriminate
against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2. Similarly,
FEHA prohibits employment discrimination, in relevant part,
on the basis of race, medical condition, gender, or age. Cal.
Gov’t Code § 12940(a). Title VII and FEHA also
prohibit an employer from retaliating against an individual
because he or she has made a charge of discrimination or
opposed a discriminatory practice. 42 U.S.C. § 2000e-3;
Cal. Gov’t Code § 12940(h).
prevail on a discrimination claim under Title VII, the
plaintiff bears the initial burden of establishing a prima
facie case of discrimination. Texas Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the
plaintiff succeeds in making a prima facie case, the burden
shifts to the defendant “to articulate some legitimate,
nondiscriminatory reason” for the allegedly
discriminatory conduct. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). If the defendant meets
this burden, the responsibility shifts back to the plaintiff
to prove that the reasons offered by the defendant were
pretext for discrimination. Id. at 804;
Burdine, 450 U.S. at 253.
burden-shifting analysis for Title VII discrimination claims
also applies to discrimination and retaliation claims made
pursuant to FEHA. See e.g., Guz v. Bechtel Nat.
Inc., 24 Cal.4th 317, 354 (2000) (discrimination under
FEHA); Yanowitz v. L’Oreal USA, Inc., 36
Cal.4th 1028, 1042 (2005) (retaliation under FEHA).
Accordingly, Plaintiffs’ Title VII and FEHA claims will
be addressed together using the same legal framework.
Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir.
2007); see also L.A. County Dept. v. Civil Service
Comm’n, 8 Cal.App.4th 273, 280 (1992) (explaining
that in employment discrimination cases, California courts
commonly adopt the standards used in proving intentional
discrimination under Title VII); Guz, 24 Cal.4th at
Prima Facie Case
Plaintiffs claim that Defendants’ violated Title VII
and FEHA by discriminating against them on the basis of race
and gender. Smith and Shumaker also claim discrimination
based on age. Additionally, Shumaker claims discrimination
due to her medical condition. Plaintiffs bring their
discrimination claims under both disparate impact and
disparate treatment theories of liability.
establish a prima facie case of employment discrimination
through disparate treatment, a plaintiff must offer evidence
that “give[s] rise to an inference of unlawful
discrimination.” Burdine, 450 U.S. at 253.
This inference arises if the plaintiff can demonstrate that
she (1) belongs to a protected class; (2) was performing her
job satisfactorily; (3) was subjected to an adverse
employment action; and (4) was treated less favorably than
other similarly situated individuals outside of her protected