Soga v. Kleinhans

          ORDER

         After 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.

         At 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 PART.^[1]

I. PROCEDURAL HISTORY AND CLAIMS

         As 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.

         Ms. 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.

         II. UNDISPUTED MATERIAL FACTS^[2]

         The 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).

         A. Ms. Soga’s History with County Sheriff’s Department

         Ms. 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.

         B. Interactions with Mr. Kleinhans

         While 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.

         The 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 77.^[3] 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.

         Mr. 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.

         Ms. 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.

         After 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.

         After 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. 157:22-24.

         After 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, 98:25-99:16.

         With 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 2011. Id.

         Ms. 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.

         On 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.

         But Ms. 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.

         In an 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. 193:20-194:18.

         Ms. 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.

         Two 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.

         C. 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. at 77.

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. at 82-83.

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 ...