United States District Court, E.D. California
five years of working in the Nevada County Sheriff’s
Department, Kathleen Soga resigned, attributing her
resignation to the harassment of her former supervisor, Rolf
Kleinhans, the Chief Fiscal and Administrative Officer for
the Department. Shortly after her resignation, Ms. Soga filed
this action against Mr. Kleinhans, as well as the County of
Nevada, alleging sexual harassment, constructive discharge,
and retaliation. After the close of discovery, the County and
Mr. Kleinhans moved for summary judgment on all Ms.
Soga’s claims. Mot., ECF No. 17. Ms. Soga opposed the
motion, Opp’n, ECF No. 25, and defendants replied,
Reply, ECF No. 28.
hearing on the motion, Kerry Schaffer appeared for plaintiff
and Carl Fessenden and Ariana Van Alstine appeared for
defendants. ECF No. 29. For reasons explained below,
defendants’ motion is GRANTED IN PART and DENIED IN
I. PROCEDURAL HISTORY AND CLAIMS
discussed in more detail below, Ms. Soga’s suit tracks
an internal harassment and hostile work environment complaint
submitted to the County’s Human Resources (HR) division
on April 16, 2013. Defs.’ Ex. L, Soga’s Formal
Discrimination Harassment Complaint (HR Compl.), ECF No.
17-5. After submitting the HR complaint and before filing
suit, Ms. Soga filed an administrative complaint with the
California Department of Fair Employment and Housing (DFEH)
on September 5, 2013, alleging sexual harassment,
discrimination, retaliation, and constructive discharge.
Defs.’ Ex. M, ECF No. 17-5. Ms. Soga then filed a
complaint with the U.S. Equal Employment Opportunity
Commission (EEOC) on November 19, 2013, alleging sexual
harassment and retaliation. Defs.’ Ex. N, ECF No. 17-5.
Ms. Soga received immediate right-to-sue notifications from
both agencies. Defs.’ Ex. M; Defs.’ Ex. N. Ms.
Soga then commenced this action on May 1, 2014, asserting the
following claims: (1) hostile environment due to sexual
harassment in violation of Title VII and FEHA; (2)
retaliation in violation of Title VII and FEHA; and (3)
retaliation in violation of California Labor Code section
1102.5. See generally Compl., ECF No. 1.
Soga did not present her Labor Code retaliation claim in the
form of a California Government Tort Claim before filing suit
against the County or Mr. Kleinhans. Undisputed Material Fact
(UMF) No. 46.
UNDISPUTED MATERIAL FACTS
following facts are undisputed unless otherwise stated. Where
a genuine dispute exists, the court draws reasonable
inferences in favor of Ms. Soga. Tolan v. Cotton,
U.S., 134 S.Ct. 1861, 1868 (2014).
Ms. Soga’s History with County Sheriff’s
Soga started with the County Sheriff’s Department in
April 2008 as a dispatcher trainee, and then became a legal
office assistant (LOA) in Nevada City under the supervision
of Public Administrator Robert Wood. Mot. at 7; ECF No. 37-7
at 26. Under Mr. Wood’s supervision, Ms. Soga assisted
in the public administration of decedents’ estates.
Pl.’s Undisputed Material Facts (PUMF) No. 2, ECF No.
28-3. Mr. Wood retired in May 2011, and Ms. Soga then started
work under the supervision of Mr. Kleinhans, the new Public
Administrator and Chief Financial Officer (CFO) for the
Sheriff’s Department. PUMF Nos. 2, 9.
Interactions with Mr. Kleinhans
working on an estate matter together in June 2011, Ms. Soga
and Mr. Kleinhans encountered a beehive on the estate
property. UMF No. 28, ECF No. 28-1. Mr. Kleinhans suggested
his friend had experience with bees and could remove the
beehive. Id. Ms. Soga responded, “You
can’t hire your friends . . . you need to be careful
with that.” Id. Additionally, Ms. Soga told
him she had already called another company for a referral.
Soga Dep. 46:10-12.
relationship between Ms. Soga and Mr. Kleinhans turned sour
shortly after this incident. Soga Dep. 40:9-17. For example,
when working on another estate to collect donations with
representatives for Habitat for Humanity, Ms. Soga asked Mr.
Kleinhans for guidance, but he declined to help. HR Compl. at
Mr. Kleinhans eventually came to the estate, however, and
heard Ms. Soga had discovered a water leak on the property.
Id. Mr. Kleinhans suggested Ms. Soga call one of his
friends to do the plumbing work, and Ms. Soga again said he
could not hire his friends. Id. The conversation
quickly turned into an argument, and in Ms. Soga’s
view, Mr. Kleinhans was rude and disrespectful to her in
front of a Habitat for Humanity representative. Id.
Kleinhans left the property and the Habitat for Humanity
employee asked Ms. Soga, “What did you do to piss him
off?” Id. Ms. Soga replied, “I
don’t know, he’s just mad all the time.”
Id. The employee responded, “It’s
obvious he doesn’t like you and I bet it’s not
just you, it’s women in general. He wasn’t happy
that you knew where the water shut-off was when he
couldn’t find it.” Id. When she returned
to the Sheriff’s Department, Ms. Soga met with Mr.
Kleinhans to tell him she was embarrassed by the way he had
acted in front of the Habitat for Humanity employee.
Id. at 79. She accused Mr. Kleinhans of having
received his job on a silver platter, and asked that he show
more respect for the people they served and for his position
as Public Administrator. UMF No. 30.
Soga and Mr. Kleinhans soon developed strong opinions about
each other, with Ms. Soga describing him as arrogant,
dismissive, and like a “big rooster” puffing his
chest, Soga Dep. 36:17-37:9, and Mr. Kleinhans describing her
as uncommunicative and difficult, Kleinhans Dep. 56:3-14. As
their relationship worsened, Mr. Kleinhans sought advice from
Undersheriff Joseph Salivar, a captain in the Sheriff’s
Department, and Nancy Haffey, an Analyst in Human Resources
(HR). Defs.’ Ex. I, ECF No. 17-5.
receiving others’ advice, Mr. Kleinhans set up a
meeting with Ms. Soga and Undersheriff Salivar on July 13,
2011. UMF No. 9. In this meeting, Mr. Kleinhans and
Undersheriff Salivar gave Ms. Soga a letter of instruction,
advising her of the County’s expected standards of
performance and discussing Ms. Soga’s key strengths and
areas of needed improvement. Defs.’ Ex. J, ECF No.
17-5. For key strengths, the letter stated Ms. Soga brought
value to the Sheriff’s Department with her
“procedural knowledge, ” “compassionate
demeanor with those in a state of bereavement, ” and
“care about the states of the deceased.”
Id. For areas of needed improvement, the letter
stated Ms. Soga had not educated Mr. Kleinhans about the
duties of her position, needed to communicate with him in an
“open and honest manner, ” and needed to cease
her “discourteous treatment” of Mr. Kleinhans.
Id. For her part, Ms. Soga raised concerns about Mr.
Kleinhans’s behavior, asserting he was arrogant,
condescending, easily annoyed, gave improper referrals to
friends, and failed to adequately manage and handle estates.
Soga Dep. 93:19-21, 152:20-24; Defs.’ Ex. I at 51-52.
the July 2011 meeting, their relationship did not improve.
Kleinhans Dep. 178:4-22. Instead, their interactions grew
more contentious as time went on. In August 2011, Mr.
Kleinhans directed Ms. Soga to clean out storage units during
the heat of the summer, and in performing this task she
experienced heat exhaustion. HR Compl. at 81; Soga Dep.
153:19-22. When she informed Mr. Kleinhans of her condition,
his only reaction was, “[s]omeone your age has to be
careful in the sun.” HR Compl. at 81. In August or
September 2011, a house in the Nevada County town of North
San Juan had to be searched and sealed as part of the Public
Administrator’s duties. Id. at 81-82. When Ms.
Soga asked Mr. Kleinhans to come with her, he responded,
“You’ll have to find someone else to do
it.” Id. Around the same time, a family had
asked for directions regarding legal information, and Ms.
Soga provided five names of local attorneys she drew from a
list she received from Linda Hartman, the County Counsel.
Id. at 82- 83; Soga Dep. 155:15-23. Mr. Kleinhans
reprimanded Ms. Soga, asserting a breach of County policy,
which did not allow County employees to refer people to
specific vendors. HR. Compl. at 82-83. Shortly thereafter,
Ms. Soga worked with the Sheriff’s Department’s
property unit to process property that recently had been
removed from an estate. Soga Dep. 156:21-157:6. A
Sheriff’s Department employee, Mike Mariani, wrote an
email to Ms. Soga, copying Mr. Kleinhans, stating
“atta-girl” for a job well done on the estate.
Id.; HR Compl. at 83. Upon receiving the e-mail, Mr.
Kleinhans stormed out of his office and into Ms. Soga’s
cubicle, screaming the words, “[y]ou made him write
that, ” to Ms. Soga, while spitting on her. Soga Dep.
seeing no improvement in his relationship with Ms. Soga, Mr.
Kleinhans started visiting HR Analyst Nancy Haffey’s
office five to six times a day to seek advice in resolving
issues with Ms. Soga. Soga Dep. 177:1-13; Haffey Dep.
88:11-15, 98:25-99:16. During her deposition, Ms. Haffey
testified she did not recall when Mr. Kleinhans’s
frequent visits or calls started to occur, but noted he was
angry and frustrated during each visit. Haffey Dep. 88:11-15,
Ms. Haffey’s help, Mr. Kleinhans drafted a second
letter of instruction and issued it to Ms. Soga on September
23, 2011, again discussing her behavior. Haffey Dep.
99:20-25. According to the letter, Ms. Soga needed to improve
in “timely, open, and honest communication, ” and
take “personal initiative and responsibility.”
Defs.’ Ex. K, ECF No. 17-5. Shortly after receiving the
letter, in October 2011, Ms. Soga went on medical or stress
leave. Defs.’ Ex. M. She returned to work in December
Soga would continue to encounter Ms. Kleinhans after she
returned. In December 2011, Mr. Kleinhans approached Ms. Soga
while she was waiting for the elevator to say, “[y]ou
really should be taking the stairs, ” a remark Ms. Soga
interpreted as derogatory. UMF No. 27. A month later, Ms.
Soga witnessed Mr. Kleinhans approach Janet Brenneman, a
co-worker who sat in a nearby cubicle. HR. Compl. at 77. As
Mr. Kleinhans approached he asked, “What are you doing?
Getting dressed?” and Brenneman responded, “No,
I’m just combing my hair.” Soga Dep. 146:12-17.
Ms. Soga interpreted Kleinhans’s tone as inappropriate.
Id. at 146:16-17.
January 6, 2012, Ms. Soga requested and received a
reassignment to a different unit and a different supervisor,
Shelli Netherby, the records supervisor for the Nevada County
Sheriff’s Department. UMF No. 17. In her new position,
Ms. Soga completed several administrative tasks including
managing the front desk of the administrative unit in the
Department, answering phone calls, and completing crime
reports. Soga Dep. 111:9-14. Although they still were in the
same general office space, Ms. Soga did not encounter Mr.
Kleinhans often, and in any event, “avoided him at all
costs.” Id. at 111:17-112:7. For example, if
Ms. Soga saw Mr. Kleinhans walking down the hallway, she
would run in the other direction or hide behind a pillar
until he passed by. Id. at 112:9-12.
Soga still encountered Mr. Kleinhans at times. In March 2012,
while standing at a copy machine close to Ms.
Brenneman’s cubicle, Ms. Soga saw Mr. Kleinhans
approach Ms. Brenneman to ask how she was doing. HR Compl. at
76. Mr. Kleinhans said something to the effect of,
“What . . . you and your hubby, mumble, mumble . . .
bouncing, mumble . . ., all night?” Id.; Soga
Dep. 143:25-144:1-5. To Ms. Soga, Mr. Kleinhans’s tone
was inappropriately sexual. UMF No. 25. In May or June 2012,
a female member of the public came to the Sheriff’s
Department waiting area to obtain services connected with an
ongoing investigation of a burglary. Defs.’ Ex. M, ECF
No. 17-5. As the woman waited for assistance, Ms. Soga saw
Mr. Kleinhans inappropriately place his body in a way that
crowded the woman and blocked her movement. UMF Nos. 24, 49.
Mr. Kleinhans would not allow the woman to leave until
another person told the woman Ms. Soga wanted to talk with
her. Soga Dep. 140:9- 19.
attempt to get further away from Mr. Kleinhans and still keep
her job, Ms. Soga volunteered to transfer to a LOA position
in Truckee on January 14, 2013, and started in that position
shortly thereafter. UMF No. 18; Soga Dep. 189:11-16;
Defs.’ Ex. I. In her position, Ms. Soga was responsible
for picking up and taking mail from the Sheriff’s
Department in Nevada City to Truckee each morning. PUMF No.
17. In this position, Ms. Soga received the added benefit of
traveling to and from work on County-sponsored time in a
County car filled with fuel paid for by the County. Soga Dep.
189:25-190:5. During her deposition, Ms. Soga testified her
experience in Truckee was “beautiful, ” up until
the time she resigned on September 3, 2013. Soga Dep.
Soga successfully avoided Mr. Kleinhans from November 2012,
while still working in Nevada City, until April 2, 2013, by
which time she had started working in Truckee. On April 2,
2013, she had an encounter at the Sheriff’s Department
that she explained left her “rattled.” HR Compl.
at 74-75. While in the hallway, Mr. Kleinhans said,
“Hello”; Ms. Soga nodded without a verbal
response. Soga Dep. 137:1-8. Ms. Soga then heard five fast,
heavy footsteps behind her, with Mr. Kleinhans yelling,
“You need to stop being rude to me Kathleen!” Ms.
Soga did not look back, picked up her pace, and went quickly
down the stairs. She then heard him say, “Ok . . . okay
then!” HR Compl. at 74-75.
days after this incident, Mr. Kleinhans complained to Nevada
County Sheriff’s Department Captain Shannon Moon, Ms.
Soga’s supervisor, that Ms. Soga had been rude.
Id. at 73. Mr. Kleinhans also complained to Janet
Brenneman, who then went to Ms. Soga to say,
“[Kleinhans] is really, really mad at you, ” and
he “won’t rest until you’re gone.”
UMF No. 22.
Ms. Soga files an Internal Harassment Complaint Against
Mr. Kleinhans Ms. Soga’s interactions with Mr.
Kleinhans led her to file an internal formal complaint of
harassment and hostile work environment. HR Compl. She filed
the complaint with the County HR department on April 16,
2013, asserting the following incidents supported her claims:
1. Incident #1/June 2012: Ms. Soga’s warning that Mr.
Kleinhans’ referral to friends was improper. HR Compl.
2. Incident #2/June 2012: Mr. Kleinhans’s and Ms.
Soga’s argument in front of a Habitat for Humanity
employee. Id. at 78.
3. Incident #3/June 2012: The Habitat for Humanity
employee’s comment to Ms. Soga, noting Mr. Kleinhans
did not like Ms. Soga because she was a woman. Id.
4. Incident #4/July 2011: Mr. Kleinhans’s first letter
of instruction to Ms. Soga. Id. at 80-81.
5. Incident #5/August 2011: Mr. Kleinhans’s directive
that Ms. Soga clean out storage units in the heat of summer,
causing her to experience heat exhaustion, to which Mr.
Kleinhans replied, “[s]omeone your age has to be
careful in the sun.” Id. at 81.
6. Incident #6/September 2011: Mr. Kleinhans’s refusal
to help Ms. Soga search and seal a house in North San Juan.
Id. at 81-82.
7. Incident #7/September 2011: Ms. Soga’s infraction
arising from recommending attorneys to a family. Id.
8. Incident #8/September 2011: The “atta-girl”
email sent to Mr. Kleinhans, which resulted in Mr. Kleinhans
screaming at Ms. Soga. Id. at 83.
9. Incident #9/December 2011: Mr. Kleinhans’s comment
to Ms. Soga that she should take the ...