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Smith v. County of Santa Clara

United States District Court, N.D. California, San Jose Division

August 1, 2016

GINA SMITH, et al., Plaintiffs,
COUNTY OF SANTA CLARA, et al., Defendants.


          EDWARD J. DAVILA United States District Judge.

         Plaintiffs Gina Smith, Laurey Shumaker, and Dagmar Chambers (collectively, “Plaintiffs”), [1] 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 related violations.

         Presently 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.


         Plaintiffs 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.

         A. The Mother Infant Care Center (“MICC”)

         The 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.

         RNs 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, [2] and are entitled to the rights set forth in the RNPA’s Agreement with the County. Id. ¶ 6, Ex. A.

         Barbara 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.

         B. Personnel Changes and Hiring Male Nurses in the MICC

         Between 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.

         In 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.[3] 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.

         As 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.

         C. Plaintiff Gina Smith

         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.

         i. Smith Raises Concern Regarding the Hiring of Male Nurses in the MICC

         On 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. 11.

         On or 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.

         ii. Smith Raises Concerns Regarding Staffing Assignments, Patient Care, and Racial Favoritism

         On 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.

         On 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.

         Thereafter, 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.

         On July 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. ¶ 28(e).

         Thereafter, 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.

         iii. Smith is Accused of Committing a HIPAA Violation

         On or 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.

         Smith 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.

         D. Plaintiff Dagmar Chambers

         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.

         i. Chambers Raises Concerns Regarding the “Misuse of Public Money” and, In Particular, the Hiring of Trent Mikami in the MICC

         On 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. Id.

         In 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.

         ii. Chambers is Investigated for Involvement in a Potential a HIPAA Violation

         In late 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.

         On 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.

         Hughes’ 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; 178:14-179:16.

         Chambers 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.

         iii. Chambers’ Requested Schedule Modification Is Denied

         Just 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.

         However, 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.

         Chambers 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.

         E. Plaintiff Laurey Shumaker

         Like 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.

         i. Shumaker’s RNPA Union Activity and “Administrative Transfer” to the Night Shift

         Shumaker 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, 123:5-124:14; 127:16-128:18.

         In 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.

         ii. Shumaker’s Medical Disability and Request for Accommodation

         Upon 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, 487:3-488:18.

         However, 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.[4] 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.

         Shumaker 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.


         A 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).

         The 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.

         A “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).

         The 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)).

         “If 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.” Id.


         A. Evidentiary Objections

         Defendants submitted a list of objections to the declarations submitted by Plaintiffs in opposition to the motion. These evidentiary objections are misplaced.

         Under 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.

         Defendants 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.

         What 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.

         B. Exhaustion of Administrative Remedies for Age Discrimination Claims

         As an 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.

         Under 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 investigation.” Id.

         Here, 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.

         Turning 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.

         Because 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. 1989).

         Defendants 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).

         However, 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).

         Here, 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.

         In 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 Chambers.

         C. Discrimination and Retaliation Under Title VII and FEHA

         Title 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).

         To 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.

         This 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 354 (same).

         i. Prima Facie Case

         All 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.[5]

         To 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 class. ...

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